CJornpU Ham iriiool Hibrarg Cornell University Library KF 5569.G69 A treatise on the law of waters :includi 3 1924 020 002 733 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020002733 A TREATISE LAW OF WATERS, INCLUDING RIPARIAN RIGHTS,, PUBLIC AND PRIVATE RIGHTS IN WATERS TIDAL AND INLAND. BY JOHN M. GOULD, OF THE BOSTON BAB. «>«£> CHICAGO: CALLAGHAN & COMPANY. 1883. Entered, according to Act of Congress, in the year 1883, Bt JOHN M. GOULD, In the Office of the Librarian of Congress at Washington. J. S. Cdshing & Co., Phinteks, 115 High Stbbet, Boston. PEEEAOE. THE present work was begun about three years since with the intention of stating the law upon Riparian Rights, Mill Privileges, and rights in fresh waters only. As. the authorities upon Tide Waters were found to be not fully collated elsewhere, and in view of their importance in relation to public and private rights in our large fresh- water rivers and lakes, it was deemed advisable to review also the rules applicable to that topic. The subject of navigable waters, both salt and fresh, is still encumbered by some of the refinements which prevailed before the necessities of modern commerce brought sufficient cases before the courts to clearly define the law, and is affected by ancient usages and local or general laws in certain States, while in others the real or supposed rules of the common law have been held inapplicable. The develop- ment of these topics has been traced historically from the earliest times to the present, in England and in this country ; the attempt has been made to indicate the prin- ciples conducing to harmony ; and the aim has been to present exhaustively and concisely all the authorities, ancient and modern, which have been collected by a thorough examination of all the original reports and abridgments. On account of the difficulty and complexity arising upon questions of substantive law, and the delay inci- dent to a proper consideration of them, the author was IV PREFACE. led to entrust to Merritt Starr, Esq., of the Chicago bar, the preparation of that part of the work which relates to Private Remedies at common law, in equity, and under the Mill Acts of different States. To his thorough and efficient labors are due the credit and responsibility of the entire discussion of those topics in Chapter XII. (beyond § 367), and in Chapters XIII. and XIV., subject to verbal changes in order to secure uniformity of stylfe throughout the work, and the division into sections, which were made by the author. He is further indebted to "William V. Kellen, Esq., of the Boston bar, for valuable assistance in collecting the authorities in several Southern and Western States, and in the preparation of the original draft of that part of Chapter IX. which relates to surface water, and the latter part of Chapter X.; and to Samuel H. Emery, Jr., Esq., of the Boston bar, for assistance and important suggestions in the revision of proofs. The veri' fi cation of references throughout the book was done in Boston under the author's supervision. The hope is indulged, that the great labor expended in collecting from original sources the numerous authori- ties cited or discussed in each chapter, and in assorting and digesting them, may prove serviceable to the profession in their investigations of a topic, which, from its nature, and the many conflicting interests so frequently involved, will doubtless continue to be as intricate as any in the law. Boston, October, 1883^ 63 Sears* Building. TABLE OF 00H"TE1^TS. Paet I. — Public Watees. CHAPTER I. PAGES. Of Property in Tide Waters at Common Law 1-66 CHAPTER n. Of Property in Tide Waters in this Country 67-92 CHAPTER ni. Rivers and Lakes .... 93-161 CHAPTER IV. The Public Right of Navigation 162-273 CHAPTER Y. Riparian Rights. — Boundaries 274-357 Paet II. — Peivatb Watees. CHAPTER VI. Rights of Riparian Proprietors in the Natural Flow and Con- dition of the Stream 358-402 CHAPTER VII. Appropriation and Rights acquired by Priority .... . 403-423 VI TABLE OF CONTENTS. CHAPTER VIII. PAGES. Eminent Domain 424-462 CHAPTER IX. Surface and Subterranean Waters. — Mines 463-497 CHAPTER X. Contracts and Covenants 498-536 CHAPTER XI. Prescription. — Severance of Tenements 537-573 CHAPTER XII. Remedies at Law 574-691 CHAPTER XIII. Equitable Remedies 692-754 ■ CHAPTER XIV. .'Statutory Remedies and Effect thereof 755-816 TABLE OF OASES OITED. A. Abbe de Stratforde's Case, 396, 428, 430. Abbot V. Kennedy, 40. Abbott 0. Baltimore Steam Packet Co., 143'. c. Mills, 122, 123. c. Upham, 597. Abbott of Strada Marcella's Case, 184. Abby, The, 4. Abel V. Love, 231. Abendroth v. Greenwich, 132. Aberdeen v. Menzies, 160. Aberdeen Arctic Co. v. Sutter, 1. Aborn v. Dubuque Mining Co., 143. f. Smith, 138, 164, 165, 171. Abraham v. Great Northern Railway Co., 41, 42, 93, 135. Ackerman ;;. Horicon Iron Co., 555, 586. Ackhert v. Lansing, 113. Ackroyd v. Smith, 301. Acquackanonk Water Co. v. Watson, 245. Acton V. Blundell, 204, 280, 282, 290, 542. Adams o. Barney, 46, 160, 204, 206, 214, 364, 365. V. Barnes, 504. V. Boston Wharf Co., 162, 164. o. Conover, 305, 459. 0. Earmer, 175. V. Frothingham, 155, 195. V. Harrison, 266. <;. Hastings Railroad Co., 273. )•. Manning, 225, 540, 550. ■J. Patrick, 574. V. Pearson, 000. V. Pease, 4, 46, 54, 56, 112, 182, 185. Adams v. Popham, 121, 212, 541. V. Rivers, 105. V. St. Louis, 76, 77, 106. c. Slater, 213, 243, 375. V. Walker, 267. V. Warner, 320. V. Wiggins Ferry Co., 96. Addison v. Hack, 323, 496, 497. V. Rowc, 250. Ad. Hine v. Trevor, 67. Admiralty, The, 4, 5. Adsit V. Brady, 115. iEtna Mills v. Brookline, 245, 281. u. Waltham, 245. Agar V. Regent's Canal Co., 507. Agawam Canal Co. i\ Edwards, 196, 204, 364. Aguirre v. Maxwell, 35. Aikin v. Benedict, 373. u. Mills, 599. V. Western Railroad Co., 145, 146, 193. Alton V. Stephen, 141. Aken v. Parfrey, 599, 600. Akin V. Davis, 210, 585, 620. V. Mills, 586. Alabama ,-. Bell, 109. u. Georgia, 45, 58, 202. Albany Bridge Case, 35. Albany Street, in re, 242. Albany v. Cunliff, 113, 115. V. Trowbridge, 114, 120. Albee v. Ilayden, 307. Albernathy v. Dennis, 13. Albright v. Penn, 193. Alcock V. Cooke, 6, 192. Alcorn v. Hamer, 138. Alden v. Minneapolis, 269, 270. V. Pinney, 108, 177. Alder ;;. Savill, 599. Missing Page Missing Page TABLE OF CASES. Alder v. Savin, 344. Alderman v. Hastings, 183. Aldred's Case, 185, 219, 376, 378. Aldrich v. Cheshire Railroad Co., 250, 252, 257, 582. V. Tripp, 116. V. Wright, 102. Alexander v. Beresford, 325. u. Kerr, 210, 214, 303. u. Milwaukee, 117, 143, 248, 257, 261. Alexandria Railway Co. o. Faunce, 103, 178, 179. Allegheny v. Zimmerman, 121. Allegheny City v. Moorehead, 36 65, 148. c. Nelson, 65. V. Reed, 65. Allen V. Bates, 318. u. Buncombe Turnpike Co., 145. V. Chippewa Falls, 258, 270. V. Donnelly, 21, 189. ^. Piske, 323. V. Holton, 37, 148. V. Jay, 242. V. McCorkle, 211. 0. Marion, 188. V. Monmouth Co., 115, 121, 132, 134, 139, 140. V. Munn, 148. V. Newberry, 33, 67. V. Pray, 114. V. Scott, 312. Allentown v. Kramer, 183, 260. Allgood V. Gibson, 24. AUnut V. Inglis, 119, 120. Almy V. Grinnel, 99, 100. V. Harris, 193. Alston V. Scales, 376, 479, 582. Alston's Estate, in re, 22. Alton ;;. Hope, 272. V. Illinois Transportation Co., 105. Alton Railroad Co. v. Deitz, 256, 273. Alves V. Henderson, 105. America, The, 35. American Co. r. Bradford, 231, 238 341. American Guano Co. v. United States Guano Co., 1. American Ins. Co. v. Canter, 40. * American River Water Co. u. Ams- den, 109. American Union Telegraph Co. v. Middleton, 441. Ames V. Cannon Mauuf. Co., 211c, 368, 555. V. Port Huron Log Co., 241. Amick V. Tharp, 261. Amidon v. Harris, 299. Ammand ti. Turnpike Co., 144. Ammidown o. Granite Bank, 195, 371. Amoskeag Manuf. Co. v. Goodale, 121, 128, 206, 208, 210, 211 b, 214, 243, 364, 405, 584. V. Head, 242, 253. V. The John Adams, 96. Anderson v. Kerns Draining Co., 241. V. Oppenheimer, 461. V. Rochester Railroad Co., 122. V. St. Louis, 104.' Andover v. Sutton, 212, 253, 416, 584, 589. Andrews v. Johnson, 621. V. Mulford, 331. Androscoggin Booms v. Haskell, 143. Androscoggin Bridge v. Bragg, 323. Angus V. Brown, 214. V. Dalton, 329. Ann, The, 9, 38. Annapolis, The, 4. Annapolis v. Harwood, 146. Annett v. Poster, 96. Ann Ryan, The, 35. Anon. (1 Camp. 517, n.), 186. (1 Ves. Jr.), 552. {Dyer, 326 b), 6, 18. (2 Eq. Cas. Abr.), 323. (Loft. 364), 183. (6 Mod. 149), 6, 21, 189, 192. (2 P. W. 75), 30. V. Deberry, 300, 412, 415. Anthony v. Adams, 117, 260. (.. Gifford, 25. f. Lapham, 204, 205, 217. V. Lawhorne, 609. Apollon, The, 64. Appleton V. PuUerton, 214. Aram v. Shellenberger, 123. Arbuckle v. Ward, 329. ArcheboU and Borrell's Case, 428. Arctic Fire Ins. Co. v. Austin, 96. Arden c. Kermit, 165. Ardery v. Rowles, 194. TABLE OF CASES. XI Ariraond v. Green Bay Canal Co., 75, 103, 222, 243, 257, 305, 329, 398, 584, 586. Argo, The, 175. Arkwright v. Cell, 225, 340. Armstrong v. Hasten, 312. V. Pennsylvania Railroad Co., 241, 331. o. Potts, 213. V. Eisteau, 176. Arnold o. Elmore, 75, 105, 111, 148, 196. V. Foot, 204, 205, 208, 213, 218, 264, 285. V. Hudson River Railroad Co., 248. V. Klepper, 121, 615. „. Mundy, 18, 25, 30, 31, 32, 36, 58, 171, 189. V. Stevens, 334, 351. Arthur v. Bank, 144. u. Case, 57, 196, 209, 215, 524, 534, 537. Arundell v. McCuUoch, 21, 121, 128, 139. Ash V. Cummings, 244, 580, 586, 605. Ashby V. Eastern Railroad Co., 150, 162, 164, 169, 195, 250, 252, 304 a. V. White, 409. Ashley v. Ashley, 338, 376, 379, 479, 480. V. Pease, 204, 318, 320. V. Port Huron, 261, 272. V. Wolcott, 41, 275. Askew V. "Wynne, 105. Associates v. Jersey City, 157, 171. Astrow V. Hammond, 133. Atchison v. Challis, 262, 270. V. Peterson, 204, 228, 229, 231, 236, 240, 511, 543. Atchison Railroad Co. t. Hammer, 273. Atkins V. Boardman, 122, 126, 347. Atkinson v. Newcastle Waterworks Co., 250. (>. Philadelphia Railroad Co., 140. Atlas, The, 96. Atlee u. Packet Co., 132, 140, 149, 160, 179, 181. Atlanta Mills v. Mason, 215, 314, 318, 351, 537. Atlantic Dock Co. v. Brooklyn, 175. r Attorney General v. Acton Local Board, 519, 544, 545, 546, 554. V. Barker, 21. V. Basingstoke, 544, 545. c. Birmingham, 121, 123, 152, 185, 219, 223, 226, 525, 527, 628, 530, 544, 545, 546, 559. o. Boston, 118, 162, 193. V. Boston & Lowell Railroad Co., 1.38. V. Boston Wharf Co., 27, 121, 102, 164, 165, 169. V. Bradford Canal, 152, 223, 527, 528, 533, 544, 550, 559. ' V. Burridge, 4, 19, 21, 121, 168. V. Cambridge, 138, 139, 512. u. Chamberlaine, 21, 23, 155. u. Chambers, 4, 9, 18, 19, 23, 27, 37, 155, V, Cleaver, 21, 121. 0. Cockermouth Local Board, 219, 223, 544, 545. V. Cohoes Co., 21, 121, 168. V. Colney Hatch Asylum, 152, 219, 223, 527, 529, 530, 545, 659. V. Conservators of the Thames, 26, 124, 149, 250, 547. V. Constable, 21. V. Delaware Railroad Co., 30, 58, 64, 65, 121, 132, 168, 171. V. Dossee, 30. V. Eau Claire, 132, 133, 140, 143, 241. c. Evart Booming Co., 21, 93, 93 « , 95, 96, 108, 110. ... Gee, 152, 223, 509, 546. o. Great Eastern Railway, 205, 634, 548. V. Farmen, 18, 23; 36. V. Forbes, 21, 121, 513, 514. V. Furness Railway Co., 134. u. Hackney Local Board, 219, 223, 545, 546. V. Halifax, 223, 345, 527, 53Cfc 5*5, 559. • '■' V. Hanmer, 28, 36. V. Heishon, 121. V. Hudson Tunnel Co., 32, 136, 13« V. Hudson River Railroad Co.. 121, 132, 135. V. Hunter, 506, 507, 541. xu TABLE OP CASES. Attorney General v. Johnson, 21, 121, 167, 108, 525, 533. V. Jones, 25, 28. V. Kingston on Thames, 219, 223, 512, 544, 545. B. Lake Superior Canal Co., 68. u. Lea, 121. I'. Leeds Corporation, 152, 219, 222, 223, 346, 512, 527, 544, 545, 546. o. London, 4, 17. o. Lonsdale, 86, 121, 140, 160, 208, 547. V. Luton Local Board, 219, 612, 520, 527, 544, 545, 546. V. Mathias, 24. V. Metropolitan Board of Works, 250, 552. V. Mid Kent Eailway Co., 134. u. New Jersey Railroad Co., 115, 121, 555. V. New York llailroad Co., 132, 135. «. Parmenter, 4, 19, 21, 121, 167, 168. I/. Paterson llailroad Co., 132. V. Philpot, 21. o. Plymouth, 533. V. Portsmouth, 333. u. Public Board, 545. u. Old Colony Railroad Co., 139. u. Railroad Co., 103. o. Richards, 19, 21, 121, 167, 168. V. Richmond, 223, 645. u. Roanoke Navigation Co., 144. u. St. Aubyn, 10, 18, 21. o. Salem, 121. V. Sheffield, 223. V. Sheffield Gas Co., 512, 533. V. Stevens, 32, 132, 135, 137, 139, 140. V. Stewart, 30, 121, 219, 544. V. Suton, 544. V. Terry, 4, 21, 86, 95, 121, 140, 160, 208. «. Tomline, 4, 21, 24, 91, 121, 161. V. Tomsett, 8. 0. Turner, 18, 158. u. XJtica Ins. Co., 121. V. Woods, 27, 42, 43, 44, 86, 108, 109, 111, 138, 169. Atwater v. Bodfish, 313. V. Schenck, 69. Attwood V. Fricot, 214. Atwood V. Caswell, 187, 189. Auburn Congregational Church u. Walker, 305. Audenreid f. Pliiladelphia Railroad Co., 552. Au Gres Boom Co. o. Whitney, 162. Augusta, The, 192. Aurora v. Gillett, 261, 272. V. Love, 272. V. Reed, 272. Austin V. Carter, 169. u. Helms, 614. u. New Jersey Steamboat Co., 89, 96. V. Rutland Railroad Co., 66, 82, 179, 198, 203, 471. Averett v. Brady, 193. Averill v. Hull, 189. Avery v. Empire Woolen Co., 160. v. Fox, 64, 1.32, 242, 243. V. Police Jury, 143, 241. Avid, The, 90. Avon, The, 33, 67. Avon Manuf . Co. v. Andrews, 309, 477. Ayraud v. Babin, 331. Aynsley v. Glover, 223. B. Babb V. Mackey, 263, 579. Babcock v. Buffalo, 149, 649. V. Herbert, 88, 193. V. New Jersey Stock Yard Co., 219, 544. u. Utter, 197, 305, 323, 338. V. Western Railroad, 262, 256. Bacon, The H. D., 07. Bacon v. Arthur, 126, 136, 608. c. Bowdoin, 305. V. Jones, 525. V. Mulford, 117. Badger o. South Yorkshire Railway Co., 101, 104, 241. Baer v. Martin, 373. Bagnall v. London Railroad Co., 256, 273, 294. Bagott V. Orr, 4, 20, 24, 26, 26, 47. Bailey v. Applegard, 329. c. Burges, 138. V. Miltenberger, 65. c. New York, 589. u. Philadelphia Railroad Co., 3.j, 123, 130, 132, 1.36, 150, 250. TABLE OF CASES. Bailey v. Rust, 227, 884. V. Sisson, 25. V. Woburn, 245. , Bainbridge v. Sherlock, 71, 95, 96, 99, 104, 179. Baines v. Baker, 121. Bains v. The James and Catherine, 66. Baird v. Daly, 67. V. Fortune, 25. V. Shore Line Railroad Co., 129, 130. V. Wells, 579, 583. V. Williamson, 288, 295. Baker v. Bessey, 305. «. Boston, 122, 338. V. Brown, 205, 329. V. Byrne, 113. V. Chicago Railroad Co., 323. V. Dale, 291. u. Johnson, 241. V. Lewis, 65, 95, 96. V. MeGuire, 344. V. Sanderson, 376, 879, 380, 479, 480. V. Wentworth, 187. Balch V. Smith, 113. Bald Eagle Boom Co. u. Sanderson, 143. Baldwin v. Calkins, 211, 214, 227, 342, 343, 386, 387, 412. V. Smith, 363. V. Oskaloosa Gas Light Co., 416. Baldy v. Wells, 302. Ball V. Herbert, 4, 49, 55, 91, 99, 103, 104. V. Nye, 219, 288. c: Slack, 27, 32,46, 65, 99, 173. Ballacorkish Mining Co. u. Harrison, 286, 295. Ballard v. Ballard Vale Co., 595. .. Butler, 848. V. Child, 169. Balliet v. Commonwealth, 65, 157. Ballou V. Hopkinson, 206, 511, 512, 540. V. Wood, 540. Balston v. Bensted, 280, 281, 330. Baltic, The, 96. Baltimore, The City of, 87, 96. Baltimore v. Appold, 204, 205, 271, 513, 516, 522, 557, 558. o: Gill, 121. V. Kennedy, 21. Baltimore v. McKim, 21, 58, 176, 196. V. Marriott, 116, 122, 125. V. St. Agnes Hospital, 176. V. State, 13. „. StoU, 135. V. Warren Manuf. Co., 565. V. White, 147, 176. Baltimore Railroad Co. u. Chase, 149, 155, 176. V. Magruder, 250, 256. u. Reaney, 136. i;. Wheeling Transportation Co., 96, 132. Baltimore Wharf Case, The, 4. Banghart v. Plummerfelt, 300. Bangor v. Lansil, 41, 264, 267, 277. Bangor Booming Co. v. Whiting, 145. Bank v. Miller, 301, 305. Bankhead ti. Brown, 241. Banks v. Ogden, 76, 148, 155, 157. Bannister v. Grassy Ford Ditching Association, 69. Bannon v. Angler, 318, 348, 351. Banta v. McNeil, 35. u. Savage, 326. Barataria Co. v. Meld, 247. Barber v. Fox, 477. <;. Nye, 304, 386, 847. V. Wharton, 4. Barclay v. Commonwealth, 555, 556. V. Howell, 105, 148. Barclay Railroad Co. v. Ingham, 36, 46, 65, 91, 108, 110, 111, 608. Bard v. Yohn, 222. Barden v. Crocker, 187, 188. Bardwellu. Ames, 56, 166, 304, 518, 534, 540. Bare v. Hoffman, 210, 213, 215, 420. Barker v. Bates, 18, 25, 31, 90, 169, 192, 199. V. Bodwell, 23. V. Kings Norton Sanitary, 582. V. Richardson, 381. Barkley r. Levee Commissioners, 138. V. Tieleke, 234. V. Wilcox, 265, 267, 271. Barlout v. Rhodes, 301. Barnard v. Hinckley, 55. Barnes v. Burt, 310. V. Calhoun, 121. u. District of Columbia, 13, 116. u. Haynes, 329. V. Heath, 110. TABLE OF CASES. Barnes v. Lloyd, 310, 348. V. Loach, 354. V. Eacine, 121, 127, 128, 134, 135, 136, 140, 212. V. Sabron, 41, 229, 231, 236, 240, 265, 519, 543. Samet v. Ihre, 368, 391. Barney v. Baltimore, 105, 106. 1.. Keokuk, 18, 27, 32, 33, 40, 54, 64, 67, 72, 76, 106, 143, 151, 155, 166. Barns v. Hannibal, 260. Barnstable v. Thacher, 18, 37. Baro V. Phillips Co., 247. Barr v. Stevens, 125. Barre v. New Orleans, 155, 156. Barret v. Hosmer, 318. Barrett v. Bangor, 92, 103, 192. V. Black, 113, 114. V. New Orleans, 155, 157. V. Parsons, 313. Barring v. Commonwealth, 278. Barrington v. Neuse River Ferry Co., 104, 241. Barron v. Baltimore, 122, 123, 149, 261. V. Davis, 108. Barrow v. Landry, 266. Barrows v. McDermott, 169. Barry v. Arnaud, 6. V. Commonwealth, 268. V. Lowell, 262, 270. Bartholomew v. Candee, 504. V. Edwards, 196. Bartle j;. Des Moines, 269. Bartlett v. Baker, 98. V. Budd, 1. V. Corliss, 195. Barton v. Bouvier, 36. V. Syracuse, 113, 261. Basey v. Gallagher, 229, 231, 233, 240, 548. Basley v. Susquehanna Canal, 101. Bass V. Fontleroy, 193. Bassett v. Carleton, 110. V. Salisbury Manuf. Co., 79, 208, 210, 213, 220, 265, 280, 281, 287, 377, 405, 525, 528. Bastable v. Syracuse, 272. Batavia Manuf. Co. v. Newton Wagon Co., 302, 373, 374, 408, 447. Batchelder v. Hibbard, 323. V. Keniston, 162, 163, 164. I. Sanborn, 322. Bateman v. Bluck, 92, 128. V. Hussey, 405. Baten's Case, 293, 363, 368. Bates V. Illinois Central Kailroad Co., 78, 148, 165. „. Bay, 431, 595, 599. V. Sloan, 590. V. Smith, 41, 268. V. State, 191. V. Weymouth Iron Co., 253, 594. Bath Kiver Navigation Co. a. Willis, 103. BattishiU V. Reed, 210, 293, 373, 376, 378, 381, 415, 420, 424. Baughton v. Carter, 256. Baxendale v. McMurray, 344, 346, 544. Baxter v. Taylor, 331, 376, 479. I/. Winooski Turnpike Co., 122, 126. Bay City Gaslight Co. v. Industrial Works, 75, 82 o, 138, 162, 163, 165. Bayley v. Wolverhampton Water Works Co., 115. Beach v. Child, 383. V. New York, 175. V. Schoff, 128. V. Trudgain, 364. Beahan v. Stapleton, 194, 197. Bealey v. Shaw, 264, 219, 227, 281, 330, 476, 500. Beals V. Stewart, 308, 328. Bean v. Hinman, 597. V. Mayo, 455. Bear Camp Elver Co. v. Woodman, 147. Bear Eiver Co. v. Boles, 236. V. York Mining Co., 229, 543. Bear Water Co. t. New York Mining Co., 231. Beard v. Morancy, 247. V. Murphy, 41, 275, 278. V. Yates, 485. Beardslee v. French, 348. Bearse v. Perry, 213, 216. Beasley v. Clarke, 339. Beatty v. Conner, 621. Beaty v. Baltimore Eailroad Co., 256. Beaufort v. Duncan, 155. V. Morris, 295, 507, 524, 527. V. Swansea, 6, 21, 22, 23, 29. Beaver v. Manchester, 115. Beavers v. Trimmer, 220, 227, 392. TABLE OP CASES. XV Beckett v. Midland Railway Co., 124, 150, 251. Beckley ti. Learn, 193. Beckman v. Kraemer, 182. Beckwith v. Griswold, 412, 413. V. Racine, 13. Becton v. Chestnut, 195. Bedingfield v. Onslow, 376. Beecher v. "Weathersby, 30. Beekman v. Saratoga Railroad Co., 241, 253. Beeler v. Turnpike Co., 147. Beeston v. Weate, 340, 346, 648. Beidelman v. Foulk, 204, 324, 329, 333, 365, 387, 471. Beissell v. Scholl, 204, 210, 214. Belfast, The, 33, 67. Belfast Dock, in re, 22, 23, 28. Belknap v. Belknap, 545. V. Trimble, 225, 340, 537, 540. Bell V. Blount, 513, 541. V. Clegg, 142. V. Elliott, 350, 587. V. Gough, 4, 18, 21, 27, 30, 31, 32, 36, 58, 99, 171, 189, 193. V. Harrison, 431. V. Hull & Selby Railway Co., 150. V. McClintock, 143, 211 c, 298, 608. V. Midland Railway Co., 376, 378. V. Quebec, 124, 149, 151. V. Shultz, 220. .,. Twentyman, 296, 366, 376, 378. Belleville v. Stookey, 55. Bellinger v. New York Central Rail- road, 250, 258, 296, 394, 588, 589. Bellows V. Sackett, 268, 290, 292, 373. Bemis v. Clark, 368. V. Upham, 368, 511, 612, 534, 665. Benest v. Pipon, 4, 25. Benett v. Costar, 183. Benjamin v. Manistee River Improve- ment Co., 35. V. Storr, 124. V. Wheeler, 290, 679, 589. Benner v. Platter, 70, 200. Bennett v. Boggs, 31, 32, 38, 64, 65, 189. V. Clemence, 106. V. Murtaugh, 213. Bennett's Branch Improvement Co.'s Appeal, 144. Bensley v. Mountain Lake Water Co., 236, 244. Benson v. Ketchum, 1. V. Morrow, 68, 73, 76, 77, 99, 155, 166. V. New York, 175, 266. V. Soule, 336. Bent V. Wheeler, 206, 217. Bentz V. Armstrong, 268. Bernard v. Brewer, 609. Berridge v. Ward, 197. Berry v. Carle, 53, 56, 108, 192. V. Raddin, 84, 164, 169. V. Snyder, 18, 46, 62, 76, 77, 93 a, 155. Bersie v. The Shenandoah, 120. Berwick v. Ewart, 426. Beswick v. Combdon, 373, 381, 392, 394. Bethall v. Seifert, 265, Bethum v. Turner, 24, 105. Beveridge v. Lacey, 121. Bevier v. Dillingham, 211, 601. Beyer v. Numberg, 96. Bibb V. Mountjoy, 609, 610. Biccot V. Ward, 482. Bickel V. Polk, 58, 99, 104, 189. Bickett V. Morris, 160, 404, 613. Bidder v. Croydon, 219, 544, 545. Bigelow V. Battle, 320, 344. u. Hartford Bridge Co., 121, 123. V. Newell, 683. Biggs V. Eerrall, 193. Bigler v. Antes, 257, 608. u. Morgan, 189. V. O'Connor, 97. Bigley v. Nunan, 123. Bill V. Smith, 96. Billings V. Berry, 600. V. Breinig, 96. Bingham v. Doane, 105, 118, 140. Binghampton Bridge, The, 145, 146. Binney's Case, 58, 111, 241, 507, 534, 651. Bird V. Holbrook, 128. V. Lisbros, 230. V. Randall, 604. V. Smith, 65, 99, 103, 106, 121, 193. Birmingham Canal Co. v. Lloyd, 295, 323, 350, 507, 527. Bisher v. Richards, 103, 208. Bishop V. Morgan, 194. .;. Seeley, 197, 200. Bissell V. Grant, 317. XVI TABLE OF CASES. Bissell V. New York Central Railroad Co., 121, 200. V. Southworth, 56. Bittle V. Stuart, 13, 69, 112. Black V. Delaware Canal Co., 241. Blackman v. Halves, 241. Blackpool Pier v. Fylde Union, 13, 14, 15, 155. Black River Improvement Co. v. La Crosse Booming Co., 143, 146, 246. Blacks V. Hepburn, 471. Blackwell v. Old Colony Railroad Co., 122, 123, 126, 135. V. Phinney, 599. Blagrave v. Bristol Water Works Co., 126. Blaine v. Chambers, 305. Blaisdell v. Portsmouth Railroad, 323. ■o. Stephens, 222. Blake v. Clark, 306, 307. u. Everett, 329, 339. 0. Madigan, 312, 320. V. Winona Railroad Co., 142, 143. Blakeley v. Le Due, 193. Blakemore v. Glamorganshire Canal, 504, 526, 534, 552. Blanc V. Bowman, 105. V. Klumpke, 123. Blanchard v. Baker, 205, 214,217,323, 324, 327, 383, 405. 0. Doering, 317, 530. u. Moulton, 95. «. Porter, 49, 70, 71, 123, 179. c. Western Union Telegraph Co., 92, 134. Bland r. Lipscomb, 24, 85, 184. Blaney v. Rice, 194. Blankard v. Galdy, 30. Blantyre v. Doon, 160. Blatchford v. Plymouth, 461. Blessing v. Blair, 217. Blevvett v. Tregonning, 24, 25. Bliss V. Greeley, 280. V. Kennedy, 204, 507. I'. Kingdom, 241. o. Rice, 213, 214, 314, 333, 344, 502, 540, 561, 599. Blodgett V. Dwight, 509. V. Syracuse, 128. Blood V. Keller, 488. V, Light, 555. Blood V. Nashua Railroad Co., 56, 108, 122, 127, 256. Bloodgood V. Mohawk Railroad Co., 242, 244. Bloomer v. Morss, 363. Bloomfleld v. Johnston, 23, .52, 81. Bloomfleld Gas Light Co. u. CaUdns, 105. Bloomington v. Brokaw, 272. Blundell ;;. Catterall, 4, 6, 18, 19, 20, 21, 23, 24, 26, 27, 47, 91, 93, 99, 100, 104, 123, 189. Blunt ji. Aikin, 368, 390. Blydenburgh v. Miles, 189. Blyth 0. Birmingham Water Co., 296, 298. Boatwright v. Bookman, 59, 182, 186, 189. Bodflsh V. Bodfish, 335. Bodley v. Taylor, 145. Bogardus v. Trinity Church, 30. Bogart V. Haight, 113. Boggs V. Merced Mining Co., 223, 593. Bohannan n. Hammond, 33. Boissonnault v. Oliva, 54, 108. Bolivar Manuf. Co. v. Neponset Mauuf. Co., 210, 214, 227, 336, 410. Boiling V. Mayor, 260. Bolt V. Stennett, 18, 119. Bonaparte v. Camden Railroad Co., 142, 244, 250. Bond V. Kenosha, 118. Bonewits v. Wygant, 166. Bonshaw v. Prince, 560. Boom Co. V. Patterson, 251. Boorman v. Sunnachs, 75, 76, 85, 155, 158, 160, 179. Booth V. Hubbard, 71. V. Woodbury, 242. Borchardt v. Wausau Boom Co., 211 c, 248 a. Borden v. Crocker, 429. V. Lewis, 128. V. Vincent, 122, 140, 333. Borden Mining Co. v. Barry, 114. Borell V. New York, 175. Borst V. Empie, 320. Boscawen v. Canterbury, 56, 198, 202. Bostock . Long Wharf, 37, 162. Brinckerhoff v. Starkins, 189. Brink ;;. Eichtmyer, 99, 100, 166. Brisbane v. O'Neall, 363, 366. Brisbine v. St. Paul Railroad Co., 76, 105, 148, 150, 157, 179, 181. Briscoe v. Drought, 264. Bristol V. Carroll County, 76, 155. V. Morgan, 21. V. Ousatonic Water Co., 187, 188. Bristol Harbor Case, 21. Bristol Hydraulic Co. u. Boyer, 211 c, 224, 478. Bristol Manuf. Co. a. Gridley, 122. Bristow V. Cormican, 18, 23, 52, 53, 80, 81. Britain v. Cromford Canal, 36. British Cast Plate Manuf. Co. v. Mere- deth, 143. Britton v. Hill, 185, 189. Broadbent v. Ramsbotham, 218, 265, 279, 283, 352. Broadhead v. Milwaukee, 242. Broadway Ferry Co. t/. Hankey, 119. Broadwell v. Swigert, 96. Brock V. Hishen, 244. Broder v. Saillard, 267, 296. V. Water Co., 240. Bronson v. Coffin, 302, 351. V. Taylor, 136. Brook V. Willett, 340. Brooke v. Winter, 215, 220. Brookfield v. Walker, 212. Brookhaven v. Strong, 21, 31, 188, 189, 196. Brooklyn, in re, 138. Brooklyn Park Commissioners v. Arm- strong, 151, 175. Brooks V. Britt, 196. V. Curtis, 293. u. Davenport Railroad Co., 252. Broome v. Mordant, 374. Broughton v. Carter, 369. Brower v. Merrill, 211, 212, 594. Brown v. Ashley, 224, 519. V. Atlanta, 211, 211c. c,. Best, 204, 342, 488. u. Black, 108, 111. V. Bowen, 210, 323, 376, £177. „. Brown, 24, 379. o. Bush, 204. u. Bussell, 291. t7. Camden Railroad Co., 64. V. Carolina Central Railroad Co., 256, 555. u. Catlettsburg, 117. V. Cayuga Railroad Co., 136, 256, 394. V. Chadboume, 53, 54, 56, 99, 102, 108, 109, 110, 111, 128, 132, 200, 363. V. Collins, 90, 102, 296. u. Commonwealth, 111, 121, 132, 579, 581, 608. I,. Dean, 218, 222. 0. Ellicott, 119. V. Gugy, 124, 149, 160. V. Huger, 194. „. Illius, 278, 280, 288. V. Keener, 241. V. Kentfield, 95, 108. 1 . Lakeman, 27, 29. V. Lynn, 89. V. McAlUster, 266, 278. V. Mallett, 98. V. Maryland, 35, 129. u. Morris Canal Co., 171. u. Nye, 37. V. Perkins, 128. V. Preston, 43, 139. f. Providence Railroad, 252. V. Smith, 236. V. Spalding, 350. l: Watson, 126. u. Woodworth, 300, 368, 478. V. Worcester, 244. Browne r. Kennedy, 21, 31, .32, 58, 91. 159, 170, 182, 189, 196. i.: Scofield, 53, 57, 108, 126, 132. TABLE OF CASES. XIX Browne v. Stone, 89, 95, 96. V. Trustees, 348. Brownlow v. Metropolitan Board of Works, 115, 160. Brubaker v. Paul, 53, 121, 128. Bruce's Case, 66. Bruce v. Morgan, 194, 197. y. Taylor, 62, 194. V. Willis, 101. Brucklesbank v. Smith, 92. Bruger v. Butler, 305, 307. Brumagim v. Bradshaw, 27, 196, 199. Bruning v. New Orleans Canal Co., 126. Bryan v. Burnett, 583. Bryant v. Bigelow Carpet Co., 257, 589. a. Foot, 184. V. Glidden, 584, 597, 601. V. Whistler, 324. Buccleuch v. Cowan, 219, 398. V. Metropolitan Board of Works, 124, 149, 150, 151. Buchanan v. Grand Eiver Log Co., 547. Buck V. Spofford, 540. V. Sguires, 46, 196, 197, 200. Buckbee v. Brown, 113, 114, 120. Bucker v. Athens Manuf . Co., 211 c. Buckeridge ;;. Ingram, 101. Buckeye State, The, 120. Buckhurst, The, 96. Buckingham v. Pisher, 113. V. Smith, 241, 329. Buckley v. Blackwell, 197. V. Gilmore, 194. Bucklin v. Truell, 343. Buck Mountain Coal Co. v. Lehigh Coal Co., 552. Budd V. Brooke, 201. V. Sip, 187, 189. Buddington v. Bradley, 204, 205, 330. Buell V. Long, 66, 67. Buffalo, re, 255. Buffalo Iron Works v. Buffalo, 118. BufEum V. Harris, 41, 265. V. Hutchinson, 310. Bulbrook v. Goodere, 21. Bull V. Bell, 574. V. Valley Falls Co., 511, 579. BuUard v. Saratoga Manuf. Co., 208, 210, 214. BuUen v. Runnels, 300, 318, 341. BuUer v. Society, 507, 524. Bullock V. The Lamar, 66. V. Wilson, 74. Bulstrode v. Hall, 4, 18, 50. Bulwer's Case, 428, 429, 430, 436, 445. Buncombe Turnpike Co. v. McCarson, 144. Bunnell v. Read, 570. Burbank v. Ditch Co., 211 c. V. Fay, 331, 532. Burden v. Stein, 241, 245, 506, 534. Burdge v. Underwood, 233. Burdick v. Glasko, 478. Burgess v. Clark, 254, 621. Burhop v. Milwaukee, 145. Burkhalter v. Edwards, 146. Burleigh v. Lumbert, 602. Burlington v. Beasley, 143, 254. Burlington Ferry Co. o. Davis, 35. Burnett y. Nicholson, 210, 211 b, 412, 420. V. Thompson, 196. V. Whitesides, 238. Burnham v. Hotchkiss, 93, 128. u. Kempton, 305, 330, 333, 343, 344, 502, 512, 513, 517, 538, 540, 599. a. Story, 579, 583. V. Thompson, 253, 617. V. Webster, 187, 189. Burnis v. Brown, 160. Burns v. Clarion Co., 13. 1/. Greaves, 197. Burr V. Dana, 105. «. Mills, 354, 356. Burroughs u. Housatonic Railroad Co., 588. Burrows v. Gallup, 43, 103, 119, 168, 170, 335. V. Pixley, 123. Burton v. Chattanooga, 260. Burwell v. Cannady, 210. V. Hobson, 160, 513, 548, 555. Busby V. Chesterfield Water Co., 205. Bush V. Golden, 540. V. Steinman, 506. u. Trowbridge Waterworks Co., 245. V. Western, 506, 507, 534. Bushnell v. Proprietors, 220. Buszard v. Capel, 181, 304 a. Butler V. Huse, 307, 699. u. Peck, 200, 271, 276. TABLE OF CASES. Butler V. Sewer Commissioners, 244. f. State, 136, 212. „. Worcester, 261. Butman v. Hussey, 214, 227. Butte Canal Co. v. Vaughn, 229, 238, 239, 643. Butte Mining Co. c. Morgan, 228, 229, 237. Butterfield v. Forrester, 92, 125. Butterworth v. Crawford, 360. Butz V. Ihrie, 209, 307, 312, 351. Buzzard v. The Petrel, 96. Bye, in re, 1. Byrd v. Blessing, 209. Byrne v. Chicago, 114. Byrnes v. Cohoes, 261, 262, 272. C. Cabell V. Vaughn, 396. Cadigan v. Brown, 121, 206. Cady V. Conger, 105. Caliill V. Eastman, 296, 298. Cairo Railroad Co. v. Houry, 265. V. Stevens, 268. V. Turner, 243, 244. Calahan v. Babcock, 1. Calais v. Dyer, 594. Caldwell v. Copeland, 329. Caledonian Railway Co. v. Ogilvy, 124. Calhoun v. Palmer, 587, 609. California, The, 35. Californian Telegraph Co. u. Alta Telegraph Co., 193. Calk V. Stribbling, 197. Calking v. Baldwin, 145, 582. Call V. Buttrick, 128, 364. c,. Lowell, 164. Calmady v. Rowe, 4, 6, 14, 18, 22, 23, 24, 28. Calvert v. Aldrich, 328. Calvin's Case, 30. Cambre v. Cohn, 155, 157. Camden v. Creel, 46, 196. Camden Railroad Co. u. Briggs, 142, 144. o. Pinch, 120. Campbell v. Bear River Mining Co., 232, 298. V. Branch, 104. V. Hall, 30. c Portland Sugar Co., 113. Campbell v. Seaman, 121. v. Smith, 227, 329, 330. V. State, 555. ^. Talbot, 334. V. West, 238, 329. V. Wilson, 330, 341. Canal Appraisers v. People, 57, 64, 82, 143, 249. Canal Commissioners v. People, 27, 30, 54, 82, 166, 195, 198, 203, 243. Canal Co. v. Hill, 304. D. Railroad Co., 145. Canal Trustees v. Haven, 69, 76, 204. Canfield v. Andrew, 208, 213, 220, 410, 534, 544, 561. V. Erie, 96. Canhara v. Fisk, 313. Cannon v. Boyd, 355. V. New Orleans, 34, 35, 142. Cannovan v. Conklin, 113. Cansler v. Henderson, 196, 197. Canyonville Road Co. u. Stephenson, 145. Carbrey v. Willis, 280, 293, 337, 358, 360, 362. Card ;;. McCaleb, 191. Cape Elizabeth v. County Commis- sioners, 134, 139. Cardiff v. Cardiff Water Works, 507. Carhart v. Auburn Gas Co., 219, 375. Carleton v. Franconia Iron & Steel Co., 113, 114. V. Redington, 300, 323, 324, 392, 393, 395. Carli v. Stillwater Street Railway Co., 149, 150. Carlisle v. Blamire, 450. V. Cooper, 210, 212, 263, 329, 336, 337, 340, 341, 343, 344, 348, 349, 506, 527, 530, 534, 537, 551, 553. V. Graham, 4, 158, 159, 183, 189. V. State, 71. V. Stevenson, 520, 521, 530, 552. Carlyon v. Levering, 220, 329, 345, 401. Carman v. Berlin Mills Co., 391. Carmen p. Clarion River Navigation Co., 144. CaroUton Railroad Co. v. Winthrop, 99, 105, 157. Carondelet Canal Co. u. Parker, 35, 143. TABLE OF CASES. XXI Carpenter v. Mann, 122, 125, 127. V. Rogers, 40. V. Spencer, 590. 1 . State, 101, 103. Carr v. Foster, 335. ,.. Lowry, 302, 447. o. Northern Liberties, 262, 270. Carraway v. Witherington, 194. Carriger v. East Tennessee Railroad Co., 273. Carroll v. Cockey, 462. Carrow v. Bridge Co., 145. Carruthers v. Tillman, 412, 415. Carsely v. White, 96. Carson v. Blazer, 4, 31, 63, 65, 182, 246. V. Coleman, 122, 244, 248. o. Perry, 570. Carson River Co. u. Barrett, 40. Carson R. L. Co. v. Patterson, 35. Carstairs v. Taylor, 296. Carter v. Berlin Mills Co., 108. V. Harlan, 321. V. Murcot, 4, 21, 46, 48, 50, 91, 121, 183, 189. V. Oldham, 200. .;. Page, 323. V. Tliurston, 53, 54, 56, 90, 102, 108. Carutliers v. Pemberton, 236. Carver v. Miller, 320, 540. Cary v. Brooks, 122, 126. V. Daniels, 89, 95, 204, 227, 313, 452. Case V. Haight, 310, 311, 513, 534. V. Weber, 208, 218, 873. Casebeer v. Mowry, 210, 211 c. Casey ;;. Ingloes, 21, 58, 176. Cash V. Auditor, 112. V. Whitmore, 247. Casher v. Holmes, 141. easier v. Shipman, 318, 320, 344, 351. Cass V. Pennsylvania Railroad Co., 331. Castello V. Landwehr, 88, 92, 137. Castner v. The Dr. Franklin, 68, 76. Caswell V. Johnson, 183. Cate V. Sandford, 238. Cates V. Wadlington, 46, 59, 109, 111, 182. Catharina, The, 11. Catharine v. Dickinson, 96. Cator V. Lewisham Board, of Works, 220, 261, 345, 375, 546. Cattle V. Stockton Water Works, 296. Cave V. Calraes, 586, 610, 611. V. Crafts, 240. Cawkwell v. Russell, 365. Cayuga Bridge Co. v. Stout, 145, 146. C. B. R. Co. V. Twine, 123. C. D. Jr., The, 128. Cemetery Association v. Meninger, 55. Central Bridge v. Abbott, 147. Central Railroad Co. v. Wood, 212. Central Wharf v. India Wharf, 37, 153, 162, 195. Chad V. Tilsed, 21, 22, 23. Chadwick v. Marsden, 319, 357. Chalk V. McAlily, 210, 214, 333, 341. V. Wyatt, 24, 534. Chalker v. Dickinson, 183, 189. Challenor v. Thomas, 471. Chalmers v. Dixon, 296. Chamberlain v. West End of London Railway Co., 150, 251. Chambers v. Furry, 99, 103, 105. V. Kyle, 241. Champion v. Doughty, 426. Champlain Railroad Co. y. Valentine, 57, 82, 136, 158, 198, 203. Chandler v. Douglass, 133. V. Howland, 218. V. Jamaica Pond Aqueduct Co., 348. Channel Co. v. Railroad, 241. Chapin v. Bourne, 39. ^ V. Crusen, 133, 145. Chapman ;;. Albany Railroad Co., 143. V. Copeland, 213, 214, 215, 405. u. Edmands, 199. V. Edwards, 195. V. Gates, 244. V. Groves, 616. V. Hoskins, 36, 58, 155, 176, 189. V. Kimball, 18, 25, 32, 37, 56, 155, 158, 170. V. Morgan, 426. u. Oshkosh & Mississippi Railroad Co., 150. V. Rothwell, 113. V. Thames Manuf. Co., 214, 366, 404, 405. Charlfes v. MonsonManuf . Co., 595, 597. V. Porter, 599. Charles River Bridge v. Warren Bridge, 31, 36, 145, 146, 249, 255, 256. TABLE OF CASES. Charlestown v. County Commissioners, 43, 86, 108, 109, 139. V. Tufts, 164, 169, 199. Cliarlestown Brancli Railroad u. Mid- dlesex, 244. Cliarlotte Eoab, The, 96. Chase v. American Steamship Co., 1, 5, 9, 32. ... Corcoran, 90, 192. V. Dvvinel, 147. li. New Yorli: Central Railroad Co., 211a, 419. V. Silverstone, 280, 284. V. Steell, 231. u. Sutton Manuf. Co., 255, 599. Chasemore t. Richards, 41, 42, 55, 148, 204, 206, 214, 216, 227, 280, 281, 283, 284, 334. Chatfield v. Wilson, 205, 214, 265, 280, 290, 405. Cheever v. Pearson, 338. Chelsea Water Co. v. Bowley, 101. Chenango Bridge Co. v. Lewis, 145, 146, 398. 0. Paige, 56, 57, 143, 246. Cherokee Nation v. Georgia, 30. Cherry v. Stein, 293. Chesapeake Canal Co. a. Key, 241. u. Young, 241. Chesapealce Railroad Co. u. Bobbett, 213, 215. Cheshire v. Adams Reservoir Co., 594. Chesley v. King, 290. Chess V. Mantown, 103, 173. Chester Mill Case, 21, 91, 187. Chestnut Hill Turnpike Co. v. Martin, 147. V. Rutter, 135. Chiapella v. Brown, 133. Chicago V. Dermody, 116. 2'. Huenerbein, 211, 211 a. c Joney, 116. ^. Laflin, 69, 99, 120, 179. 1 . McGinn, 35, 69, 132, 133, 143. V. McGraw, 143, 144. u. Rock Island Railroad Co., 211 a. Chicago & Alton Railroad Co. r. Maher, 386, 416, 418; 419, 571,574, Chicago Dock Co. v. Kinzie, 76. Chicago Oil Co. v. United States Petroleum Co., 291. Chicago Railroad Co. v. Carey, 211, 256, 257. V. Fuller, 35. V. Iowa, 143. V. Lake, 242, 255. a. Moffitt, 248 a, 256. V. Stein, 69, 78, 150, 255, 418. Chicago Railway Co. v. Hoag, 211c, 332, 334. Chick V. Rollins, 596. Chidester v. Consolidated People's Ditch Co., 211 c. V. Lethbridge, 126. Child V. Boston, 12.S, 261. V. Chappell, 120. c: Greenhill, 183, 185. V. Starr, 27, 41, 197, 200. Chiltern v. London, 184. Chilton V. Adams, 24. Chilvers v. People, 35. China v. Southwick, 211 c, 298. Chipman v. Palmer, 222, 338. Choate i-. Bumhara, 318. Cholmondeley v. Clinton, 338. Christian Smith's Case, 388. Christmas v. Oliyer, 322. Christopher Columbus, The, 96. Church V. Chambers, 62, 71. V. Hubbard, 4, 9, 11, 16. a. Meeker, 25, 27, 28, 30, 31, 32, 37, 103, 170, 189. Churchill v. Grundy, 194. Church Wardens v. Robertson, 4. Chusan, The, 34. Chy Lung v. Freeman, 35. Cilly V. Cincinnati, 534. Cincinnati v. Hamilton Co., 105. o. Penny, 241. V. Presbyterian Church, 105. V. White, 105. Cincinnati Railroad Co. u. Ahr, 160, 268, 273. V. Zinn, 255. Cire V. Rightor, 156, 157. City of Erie, The, c. Canfield, 108, 110. Clack V. White, 241. Clancy v. Byre, 113, 175. r. Houdlette, 81, 37, 169. Clapp V. Herrick, 218, 589. Clara, The, 96. Clara Killam, The, 92. Claremont v. Carlton, 56, 166, 196. TABLE OF CASES. Claremont Bridge Co. v. Royce, 142. Clarita, The, 96. Clark V. Campau, 75, 162, 163, 164. I . Chamberlain, 192. «. Close, 321, 324. I". Cogge, 314. , . Conroe, 280, 286, 291, 303, 458, 460. V. Dasso, 89. V. Des Moines, 118. V. Hannibal Railroad Co., 253, 273. o. Lake, 140. V. Lake St. Clair Ice Co., 93, 128. V. Lawrence, 288. V. Nevada Land Co., 211, 412, 420. V. Peckham, 92, 123, 126, 138, 149, ' 150, 152, 153, 172. V. Plummer, 540. u. Ralls, 326. V. Reeves, 36. V. Richards, 331. V. Saybrook, 123, 139, 248. V. Smith, 30. V. Storrs, 368. V. Syracuse, 136, 549, 582. V. Union Ferry Co., 193. V. Willet, 233, 234. V. Wilmington, 269, 270. Clarke v. Birmingham Bridge Co., 135. V. Clarke, 35. V. French, 222. V. Wagner, 166, 333. Clason V. Milwaukee, 117., Clawson I'. Primrose, 329. Claxton V. Claxton, 279, 404. Clay V. Pennoyer Creek Improvement Co., 103, 111, 143, 253. V. Thackrah, 491, 503. Clayton v. Carby, 24. Clegg V. Dearden, 210, 294, 421. Clement v. Burns, 18, 24, 25, 32, 56, 122, 123, 139, 168, 169, 189, 199. V. Durgin, 300, 322, 599. Cleaveland v. Norton, 189. Cleveland Railroad Co. v. Ball, 150. Clink V. Thurston, 504. Clinton v. Englebrecht, 40. r. Myers, 204, 208, 210, 218. Clinton Bridge, The, 34, 35, 129, 132. Close V. Samm, 210, 214, 583. Clothier v. Webster, 115. Clowes V. Beck, 24. u. Staffordshire Waterworks Co., 219, 223, 404, 520, 534, 544. Cloyes V. Keatts, 142. Clute V. Briggs, 112, 594. V. Carr, 321,^323. Clyde V. Clyde, 415. Clyniene, The, 35. Coalter v. Hunter, 213, 334, 512, 530, 532, 557. Coast Line Railroad Co. v. Cohen, 121. Coates V. New York, 121, 128. Coats V. Clarence Railway Co., 535. Cobb V. Bennett, 65, 87, 128. V. Cromwell, 570. V. Davenport, 24, 49, 58, 83, 85, 182, 183, 184, 185. V. Fisher, 300, 302. t. Illinois & St. Louis Railroad Co., 248 n. (... Lavalle, 156. o. Smith, 75, 103, 110, 132, 13;:;, 210, 211 c, 244, 253, 323, 329, 412, 512, 530, 586. Coburn v. Ames, 39, 97, 120, 171, 174, 179. Cocheco Manuf. Co. v. Strafford, 203. V. Whittier, 310, 312. Cochran v. Fort, 156, 157. V. Wood, 621. Cochrane v. Minto, 79. Cocker v. Cowper, 227, 300, 322. Cockey v. Smith, 32, 176. Cockrell v. McQuinn, 62, 194. Coddington v. White, 175. Codman v. Evans, 184, 368, 373, 555. V. Winslow, 37, 169, 199. Codner v. Bradford, 121. Coe V. Hall, 587, 588. V. Railroad Co., 144. V. Schultz, 128. o. Winnipiseogee Lake Co., 508, 510, 512, 520. V. Wise, 115. Coffman v. Robbins, 206, 576, 577. Cogswell V. Essex Mill Co., 122, 1.30, 250, 582. Cohn V. Wausau Boom Co., 75, 103, 108, 179, 181, 241. Coker v. Simpson, 236. Colburn (,•. Richards, 217, 363. XXIV TABLE OF CASES. Colchester v. Brooke, 4, 20, 21, 26, 42, 43, 86, 87, 92, 96, 98, 102, 128, 141, 189. Cold Spring Iron Works v. Tolland, 196, 197, 202. Coldwater v. Tucker, 262, 546. Cole V. Hayncs, 200. c. Sprowl, 123, 126. Cole Silver Mining Co. v. Virginia Water Co., 233, 281, 287, 542, 543, 652. Coleman, The, 96. Coleman v. Andrews, 601. V. Chadwick, 280, 295. V. Moody, 609. I . San Raphael Road Co., 37. CoUard v. Eddy, 192. CoUett V. London Railroad, 113, 203. Collier v. Pierce, 360. Collins V. Benbury, 60, 182, 183, 185, 189. o. Macon, 161. V. Philadelphia, 262. u. Plumb, 447, 572. V. Prentice, 306, 314, 362. V. State, 159. 'Cellis V. Selden, 113. •Colton V. Rossi, 244. ,v- Smith, 120, 141. 'Columbia Bridge Co. u. Geisse, 35. ■Columbia Mining Co. u. Holter, 235, 237, 543. ' Columbia Water Power Co. u. Colum- bia, 573, 576. t Columbus V. Grey, 119, 120. V. Hydraulic Woollen Mills Co., 219, 260, 261, 545. V. Jaques, 121. Columbus Gaslight Co. v. Ereeland, 208. Columbus Ins. Co. c. Curtinius, 132, 133. u. Peoria Bridge Co., 93, 125, 132, 133, 134. Colvin V. Burnett, 303. Colwell V. May's Landing Co., 305, 537. Comet, The, 96. Commerce, The, 33, 67. Commissioners v. Beckwith, 46. V. Clark, 35, 120, 175. V. Erie Railway Co., 175. u. Erost, 175. Commissioners w. Green River Navi- gation Co., 35. V. Holyoke Water Power Co., 36, 139, 182, 187, 253. V. Kempshall, 57, 196, 243, 246. V. Pidge, 71, 133, 136. V. Queen's County, 106. V. State, 144, V. Taylor, 122. ^. Vanderbilt, 175. V. Willamette Transportation Co., 242. 0. Withers, 63, 68, 99, 132, 133, 245, 248. Commonwealth v. Alburger, 121. V. Alger, 4, 5, 9, 18, 19, 21, 31, 32, 36, 37, 56, 84, 121, 138, 139, 158, 161, 162, 164, 168, 169, 182, 195, 199. V, Allegheny Bridge Co., 144. V. Bailey, 20, 189. V. Beatty, 591. V. Beeson, 103. u. Bilderback, 95. V. Boston & Maine Railroad Co., 27, 122, 136, 169. V. Breed, 35, 88, 109, 132, 135, 139, 144. V. Caldwell, 92. V. Chapin, 4, 42, 54, 55, 56, 87, 108, 182, 186, 187, 188, 189. V. Charlestown, 21, 27, 43, 108, 109, 121, 139, 168, 169. V. Church, 86, 121, 135, 140, 173, 608. c. Clarke, 212. V. Commissioners of Allegheny, 472. o. Coombs, 139. V. Crowninshicld, 23, 95, 171. u. Dearfield, 160. u. Ellis, 580, 598. V. Essex Co., 88, 132, 187, 253. V. Paris, 581, 587. V. Fisher, 65, 143, 173, 211, 212, 249, 584. v. Fleming, 92, 97. V. Frazer, 65. V. Garner, 71, 202. (,-. Gloucester, 139, 140. V. Howes, 121. V. Knowlton, 140. u. Look, 189. TABLE OF CASES. XXV Commonwealth v. Lyons, 434. V. MeCurdy, 187, 189. V. McDonald, 121. V. McLoon, 7, 8, 11, 13. V. May, 95. V. Nashua Railroad, 140. I,. New Bedford Bridge Co., 1.32, 135, 140, 146. V. Newbury, 37. V. Newburyport Bridge, 144. V. Pennsylvania Canal Co., 136. V. Peters, 5, 244. V. Philadelphia, 105. V. Plumer, 681, 608. V. Eeed, 136. V. Eichter, 150. V. Roxbury, 4, 5, 9, 13, 18, 27, 30, 31, 32, 36, 37, 139, 169. V. Euggles, 121, 186, 187. V. Shaw, 173. r. Stevens, 212, 255, 581, 584. V. Strickler, 92. V. Supervisors, 472. V. Taunton, 132. V. Tewksbury, 24, 92. „■. Tiffany, 84, 187, 189. V. Tucker, 106. V. Upton, 121, 532, 533. V. Vermont Railroad Co., 123. V. Vincent, 42, 56, 84, 182, 187, 189, 191. u. Weatherhead, 84, 189. V. Webb, 212. ... Weiher, 139. V. Wilkinson, 142. V. Wright, 18, 21, 95, 121. Compton V. Eichards, 354. V. Susquehanna Eailroad, 21. Comstock V. Johnson, 318, 539. Concord Railroad v. Greeley, 242, 252, 494. Conder v. Coor, 197. Conger v. Weaver, 233, 235. Congleton v. Pattison, 302. Conhocton Co. v. Buffalo Railroad Co., 273, 388, 394. Conklin v. Boyd, 279. Conley v. Chedic, 35. Connecticut Mutual Ins. Co. v. Cross, 133. Connehan v. Ford, 105. Consolidated Channel Co. v. Central Pacific Eailroad Co., 241. Constable's (Henry) Case, 6, 21, 192. Constable's (.John) Case, 3, 6, 7. Constable v. Nicholson, 24. Continental, The, 1. Converse v. Symmes, 390. Conway v. Taylor, 35, 62, 71, 133, 142, 145, 193. Conwell V. Brookhart, 307. V. Hagerstown Canal Co., 582. Cookt;. Bath, 121, 348. V. Burlington, 105, 151, 157. V. C. B. & Q. R. Co., 322, 323. V. Champlain Transportation Co., 89. 0. Farrington, 199. V. Hull, 214, 216, 217. c. KendaU, 620. V. McClure, 155, 200, 203. V. Pridgen, 321, 323. V. Steams, 300, 321, 323. Cooke V. Chilcott, 281, 447, 575. Cooleyr.BoardofWardens,35,129,131. Coolidge V. Hagar, 366. V. Learned, 24, 37, 105, 106, 121 329, 330. V. Williams, 104. Cooling, re, 249. Coombes's Case, 66. Coon V. Monongahela Navigation Co., 135. Cooper V. Athens, 116, 146, 193. V. Barber, 209, 214, 280, .345. V. Bloodgood, 171. V. Cedar Rapids Water Power Co., 196, 315, 316. V. Hall, 208, 210, 214. o. Phibbs, 185. V. Smith, 66, 103, 173, 329. V. Williams, 20, 99, 100, 143, 188, 204, 241, 246. Coovert v. O'Connor, 46, 66, 110, 111, 196, 197,608. Copie V. I de B., 314. Corby v. Hill, 113. Corfield v. Coryell, 32, 33, 38, 64, 189. Cornelius v. Glenn, 60, 136, 188. Cornes v. Harris, 308. Corning v. Gould, 322, 351. V. Lowerre, 121. V. Troy Iron Factory, 197, 204, 215, 322, 338, 350, 385, 420, 506, 613, 520, 521, 531, 534, 552, 553. TABLE OF CASES. Cornish v. Chicago Ra,iIroacl Co., 273. Cornish Bridge ;;. Richardson, 132. Correa v. Frietas, 237. Corsey v. Hammond, 201. Cortelyou v. Van Brmidt, 24, 27, 30, 99, 100, 104, 105. Cory V. Bristow, 14, 91, 101. V. Silcox, 210, 214. Coryell v. Cain, 230, 235. Coryton i'. Lithebye, 476. Coster I'. Albany, 143. u. Tide Water Co., 242, 244. Cotes V. Davenport, 261, 270. Cott V. Lewiston Railroad Co., 136, 256. Cotton V. Mississippi Boom Co., 123, 241, 520, 547, 548. a. Pocasset Manuf. Co., 342, 594. Cotton Plant, The, 67. Cottrill V. Myrick, 121, 140, 187, 188, 253. Couchman v. Thomas, 195. County of St. Clair v. Lovington, 76, 155, 194, 197. County Commissioners v. Duckett, 115. Courand v. Vollmer, 30. Courier, The, 66. Courtney v. Collet, 185, 369. Courtwright v. Bear River Co., 123, 168, 233. Covil V. Hart, 318, 320. Covington v. Becker, 214. Cowan V. Glover, 609, 612. V. Buccleuch, 382. V. Hardeman, 166. Cowden v. Kerr, 71. Cowell V. Martin, 123, 138, 545, 547. V. Thayer, 227, 336, 344, 599. Cowles !.. Gray, 105, 148. V. Kidder, 204, 209, 211c, 227, 323, 405. Cowley V. Copley, 247. Cowling V. Higginson, 335. Cowper V. Baker, 24. V. Hall, 70. Cox V. Buis, 621. V. Freedley, 200. u. Mathews, 214, 227, 354, 374. u. State, 33, 54, 71, 02, 111, 130, 133, 435. Cracknell v. Thetford, 115, 160, 161. Craig V. Allegheny, 241. Craig V. Kline, 34, 35, 130. V. Lewis, 580, 595. Grain v. Beach, 466. Crake v. Crake, 133. Crandall, ex parte, 130, 132. Crandall v. Nevada, 33, 34, 35, 131, 132. V. State, 38. r. Woods, 205, 230, 238. Crane v. Reeder, 19. Crapo V. Kelly, 1. Crary v. Campbell, 231. Crawford v. Delaware, 123. Creighton v. Evans, 214. Crenshaw v. Slate River Co., 61, 128, 254, 507, 549. Cress V. Varney, 320. Crichton v. Collery, 183. Grill V. Rome, 57, 121, 246. Crippen v. Morss, 382, 383. Criswell V. Clugh, 121, 128, 187, 579. Crittenden v. Alger, 204. .■. Field, 305, 309, 539. V. Wilson, 121, 122, 136, 243, 581, 582, 588. Crocker v. Old South Society, 464. Crockett v. Millett, 584. Cromie v. Trustees, 191, 241. Crommelin v. Coxe, 292. Crompton v. Lee, 161, 295. Cromwell v. Selden, -320, 373. Crook V. Seaford, 163. Crocker v. Bragg, 166, 205, 214. Crosby v. Bessey, 214, 220, 345. V. Bradbury, 305. V. Hanover, 132, 146, 202, 242. u. Smith, 110, 530, 537, 591, 579. Gross V. Lewis, 330, 331, 341. V. Morristown, 532. Crossley v. Lightowler, 204, 214, 219, 220, 222, 223, 224, 342, 345, 348, 358, 404, 519, 544. Croucher v. Wilder, 120. Crowder ;;. Tinkler, 121, 547. Crowell V. Sonoma County, 298. Crowhurt v. Amersham Burial Board, 296. Crowley v. Copley, 161. Crown II. Leonard, 508, 510. Crowther v. Oldfield, 477. Crump V. Mims, 103, 143. Cuff V. Newark Railroad Co., 134. Culbcrtson v. The Southern Belle, 95, 117. TABLE OP CASES. XXV 11 Culbertson v. Wabash Navigation Co., 132, 143. Cumberland v. Willison, 243, 250, 271. Cumberland Canal Co. v. Hitchings, 210, 259, 424. Cummings v. Barrett, 84, 191, 208, 214, 217, 410, 507. V. Peters, 241. Cummins v. Bresley, 92. ri. Spruance, 20, 96. Cunningham v. Breed, 121. V. Browning, 32. Curling v. Wood, 114. Currier v. Gale, 331. Curtice v. Thompson, 388, 389, 392, 395. . Curtis V. Angler, 335. ^. Ayrault, 213, 263, 265, 360. V. Eastern Railroad Co., 252, 273. V. Francis, 37, 162. ^. Gardner, 310. V. Jackson, 215, 315. V. Keesler, 24, 57, 105, 108, 109, 111, 121, 547. o. Noonan, 322, 351. V. Smith, 305. Cushing V. Adams, 377. V. Worrick, 25. Cushman v. Smith, 244. Cuthbert v. Lawton, 329, 348, 351. Cuthbertson v. Shaw, 95, 96. Cutler V. Howard, 115. Cutter V. Tufts, 310, 312. Cutts V. Hussey, 28. D. Daily v. Swope, 138. Dakin v. Cornish, 214, 497. Dalrymple v. Mead, 65, 95, 99. Dalton V. Bowker, 204, 229, 543. V. Helm, 467. V. Watei; Commissioners, 241. Daraouri'.Lyons City, 269, 270, 272. Dana, The, 66. Dana v. Jackson St. Wharf Co., 120, 138, 140, 167, 174. V. Valentine, 336, 351. Dand v. Kingscote, 306. Daniel v. Anderson, 355. u. Chaffin, 328. V. North, 331. Daniel Ball, The, .34, 35, 67, 111, 1.30. Daniel Drew, The, 89. Daniels v. Cheshire Kailroad Co., 194, 200. V. Citizens' Savings Institution, 344, 594. V. Denver, 144. Dans V. Jerkins, 87. Dare v. Heathoote, 335. Darge v. Horicon Iron Co., 599. Dark v. Johnston, 291, 324. Darling f. Blaekstone Manuf. Co., 599. V. Crowell, 311. Darlington v. New York, 175. o. Painter, 330, 342, 366. Darst V. Rush, 232. Darwin v. Upton, 3.30. Daughtry v. Warren, 253. Davidson v. Boston & Maine Railroad, 132, 135, 165, 169, 244, 248 a, 255, 257. V. Eowler, 318. Davies v. Mann, 92, 128. V. Marshall, 349. V. Stephens, 335. Davis V. Atkins, 154. V. Brigham, 336, 344, 597. c. Central Congregational Society, 113. V. DuPont, 194. f. Fuller, 204, 211 c, 227, 330. V. Gale, 213, 235, 237, 238, 239, 375. .,. Getchell, 204, 206, 217, 218. V. Jenkins, 134. c. Jewett, 376, 379, 479, 480. V. Londgreen, 271, 536. V. Mayor, 21. u. Morgan, 469. V. Muncey, 320. ,.. New York, 121. V. Police Jury, 193. V. Rainsford, 194, 318. u. Stevens, 595. V. Wilson, 303. V. Winslow, 92, 95, 96, 108, 110, 121, 218. Dawes v. Prentice, 162. Dawson v. James, 71. V. Moons, 609. V. Norfolk, 331. V. St. Paul Ins. Co., 121. xxvm TABLE OF CASES. Day V. Allender, 105. I'. Compton, 38. V. Day, 58, 128, 176, 189, 36.3. V. Stetson, 104, 241. V. Walden, 351. Dayton Mining Co. v. Seawell, 241, 242. Deacon v. Shrere, 431. Dean v. Colt, 227, 583. V. Davis, 247. , <). McLean, 373. Deansville Cemetery Association, Matter of, 242. Dearborn v. Boston Railroad Co., 589. De Armes v. United States, 30. Dearing v. Long Wharf, 37. ' De Ben v. Gerard, 247. Decatur Gaslight Co. u. Howell, 268, 418. Decker t'. Fisher, 189. u. Jaques, 118. Decorah Woolen Mill Co. v. Greer, 2110,2116,344. De Costa v. Massachusetts Mining Co., 422, 424. Dedrick v. Wood, 111, 608. Deerfield v. Arms, 46, 155, 162, 163, 1G4, 160. Deering v. Long Wharf, 169. Degan v. Dunlap, 119. Dekay v. Darrah, 331. Delahoussaye v. Judice, 266. De Laney v. Blizzard, 121, 123, 368, 555. Delaney v. Boston, 58, 121, 225, 340, 555. Delaphine v. Chicago Railway Co., 75, 76, 85, 103, 149, 150, 160, 179, 203. Delaware Canal Co. v. Lawrence, 35, 93, 95, 140, 168, 175. V. Lee, 126, 1.36, 210, 257, 589. V. Torrey, 135, 405. V. Raritan Railroad Co., 189. V. Wright, .343, 412. Delaware Division Canal Co. u. Com- monwealth, 1.36, 212. Delaware Railroad Company v. Han- non, 16.3, 164. o. Stump, .37, 121, 176, 189. Delaware River Steamboat Co. i. Burlington Ferry Co., 96. Delhi V. Youmans, 280, 281, 290, 542. Delord v. New Orleans, 163. lie Lovio V. Boit, 4, 5, 66, 441. Demeyer v. Legg, 196. Den V. Jersey City, 20, 31, 72. V. Morris Canal Co., 257. Denman v. Prince, 540. Denner v. Chicago Railroad Co., 368, 555. Dennis v. Wilson, 301. Denniston v. Unknown Owners, 108. Denslow v. New Haven Co., 136, 256, 582, .587, 588, 595. Dent V. Auction Mart, 223. Denton v. Leddell, 312, 361, 506, 534. Denver Railway Co. o. Denver City Railway Co., 121. Depew V. Board of Trustees, 133, 136, 212. V. Wabash & Erie Canal, 132. Derby Turnpike Co. v. Parks, 136. Derry v. Flitner, 119. h. Ross, 511. Deshon v. Porter, 318, 320. Desser v. Basanquet, 147. Detroit v. Blackeby, 13, 116. V. Corey, 262. V. Detroit Railway Co., 55. Devery v. Grand Canal Co., 210, 412. Devoe D.Penrose Ferry Bridge Co., 130. Devonshire v. Eglin, 535. u. Hodnett, 21, 32, 189. Dewees v. Adger, 120. Dewey v. Bellows, 320. V. Williams, 318. Dewhirst v. Wrigley, 506, 527, 535. De Witt V. Harvey, 304, 320. V. Hays, 120. Dexter v. Providence Aqueduct Co., 280. Dick V. Bird, 238. V. Caldwell, 235. V. Webster, 210, 421. Dickens v. Shaw, 6, 19, 22, 24, 27, 192. Dickenson v. Breeden, 69. Dickerson v. Grand Jimction Canal Co., 320. Dickinson v. Boyle, 211c, 421. V. Codwise, 155, 175. V. Grand Junction Canal Co., 204, 280, 281, 283, 538. V. Worcester, 41, 267, 270, 275, 279. TABLE OF CASES. XXIX Dickson v. Central Pacific Railroad Co., 394. V. Chicago Railroad Co., 210, 416. Diedrichc. Northwestern Railway Co., 21, 63, 75, 82 a, 85, 105,148, 149, 150, 100, 179, 181 Dill V. Wareham, 20, 188. Dilling V. Murry, 204, 208, 213. DUrmgham v. Smith, 198. Dillman v. Hoffman, 357. Dimes v. Grand Junction Canal, 101. V. Petley, 92, 128, 140. Dimmett v. Eskridge, 128, 140, 609. Dingley v. Boston, 241. V. Gardner, 579, 594. Direct U. S. Cable Co. v. Anglo- American Telegraph Co., 4, 5, 13. District Attorney v. Lynn Railroad Co., 148, 152. Dively v. Cedar Falls, 118. Dixon V. Baker, 270. V. Metropolitan Board of Works, 248 a. Doan V. Metcalf, 315, 318, 320. Doane v. Badger, 328. V. Broad Street Association, 169, 195. V. Willcutt, 28, 29, 195, 199. Dobhins v. Brown, 456. Dobson V. Blackmore, 376, 378. Dodd V. Burchell, 306, 314, 365, 358, 302. V. "Williams, 136. Dodge V. Berry, 191. V. County Commissioners, 150, 252. V. McClintock, 324. c. Harden, 238, 240. V. Stacy, 392. V. Van Lear, 126. Dodridge v. Tliompson, 200. Dodson V. Fort Smith, 13. Doe V. Beebe, 40. !'. Butler, 351. !'. East India Co., 31. f. Georgia Railroad Co., 244. <■. Hilder, 348. V. Hildreth, 194. V. Oliver, 504. V. Redfern, 18 V. Reed, 331. V. Wood, 145. Doe V. York, 21. Doerbaum v. Fisher, 268. DoUifl V. Boston & Maine Railroad, 300. Donaldson v. Lucett, 194. Donegal v. Templeton, 23. Donnebaum ti.Tinsley, 194. Donnell v. Clark, 37, 334. V. Humphreys, 234, 305. Donoliue v. New York, 261. Dore V. Gray, 91. Dorian o. East Brandywine Railroad Co., 252, 259. Dorman v. Ames, 209, 211 c, 388, 389, 399, 412, 450. f. Turnpike Co., 147. Dome V. Caslilord, 477. Dorr i>. Waldron, 07. Dotson V. Sibert, 612. Doty e-. Gorham, 193. Doud i: Guthrie, 209. Dougal V. Wilson, 330. Dougherty v. Bunting, 122. V. Creary, 231, 239. 0. Haggin, 236. ■Douglas County Road t . Canyonyille Road Co., 145. Douglass v. State, 121, 212. Doughty V. Conover, 189. Doulson r. Matthews, 426, 430, 436. Douty !-. Bird, 294. Dover v. Portsmouth Bridge, 32, 130, 132. Dow V. Edes, 318. r. Wakefield, 135. Doward v. Lindsay, 89. Dowell V. General Steam Navigation Co., 96. Drainage, in re, 212. Drake v. Curtis, 37, 162, 169. V. Hamilton Woolen Co., 218, 594. V. Wells, 324. Draper v. Mackey, 121. Drew V. Westfield, 260. Drewett v. Sheard, 264, 340, 491. Drinkwater v. Porter, 37. Driver v. Simpson, 91, Druley v. Adams, 204, 213, 375. Drummond v. Hinckley, 318. Drury v. Midland Railroad, 23, 122. Dryden v. Jepherson, 318, 333. Dubois ;;. Glaub, 008. Dubose L, Levee Commissioners, 247. TABLE Oir CASES. Dubuque v. Stout, 118. Duchess, The, 96. Duchess of Kingston's Case, 504. Dudden v. Glutton Union, 41, 536. V. Guardians of the Poor, 218, 264, 285. Dudley v. Camden Railroad Co., 193. V. Kennedy, 126. Dudley Canal Navigation Co. v. Giaze- brook, 296. Dugan V, Baltimore, 119, 176. u. Bridge Co., 135. Dukes V. Gostling, 482. Dumont v. Kellogg, 206, 208, 213, 214, 227, 409. Dunbar v. Vinal, 53, 139. Duncan v. Markley, 122, 412. V. Sylvester, 99, 100, 169, 384, 416. Duncombe v. Randall, 204, 402. Dundy v. Chambers, 321. Dunham v. Lamphere, 5, 9, 13, 16, 38, 130, 189. Dunklee v. Wilton Railroad Co., 196, 323, .854, 360, 453. Dunlap V. Stetson, 169, 195, 197, 199, 200. V. Yoakum, 193. Dunleith Bridge Co. i/. Dubuque County, 202. Dunn V. Birmingham Canal Co., 115, 296. V. Hayes, 194. V. Stone, 122. Dunwich v. Sterry, 6, 90, 192. Durel V. Boisblanc, 314. Durell V. Pritchard, 552. Duren v. Getchell, 590. Durgin u. Leighton, 590. Durham v. Bishopwearmouth, 141. Durkin v. Troy, 113. Durning v. Burkhardt, 556. Durrett v. Simpson, 325. Duryea v. Burt, 231. V. Mayor, 412, 414. u. New York, 175. Dutton 0. Strong, 27, 32, 41, 76, 89, 93, 119, 120, 122, 149, 168, 179, 181. ,1. Howell, 30. Duval V. McLoskey, 39. i Dwight Printing Co. u. Boston, 219, 245, 603. Dwinel ;;. Barnard, 108, 110, 142, 159.' Dwinel v. Veazie, 92, 110, 122, 128, 180. Dwyer v. Rich, 52, 196. Dyce V. Hay, 24. Dyer v. Depui, 128, ."08, 351, 365. ■ V. Curtis, 121, 191. V. Fitch, 114. V. Haley, 192. V. Sandford, 322, 351. V. Tuscaloosa Bridge, 132, 145, 250. Dygert v. Bradley, 89. V. Matthews, 310. „. Schenck, 532. Dyson i'. Collick, 377. E. Eads, The, 67. Eads V. Brazelton, 98. Eagle, The, 33, 67. Eagle V. Beard, 13. Eames v. New England Worsted Co., 123, 211, 212, 587, 589, 594. Earl V. De Hart, 41, 263, 264, 279, 555. Earp V. Lee, 128. Easby i>. Patterson, 153. Eason v. Perkins, 253, 509, 541. Easterbrook o. Erie Railway Co., 220, 256, 419, 424. Eastern Counties Railway Co. v. Dar- ling, 128, 154. Eastham v. Anderson, 185, 188, i89, 323. East Hampton v. Kirk, 25, 28, 37, 199. East Hartford v. Hartford Bridge Co., 193. East Haven v. Hemingway, 27, 30, 31, 36, 170, 195. East India Co. u. Vincent, 514. East Jersey Iron Co. c. Wright, 324. Eastman v. Amoskeag Manuf. Co., 136, 243, 334, 385, 388, 389, 392, 506, 525, 528, 550, 581. V. Meredith, 116. V. St. Anthony Water Power Co., 368, 555, 603, 620. Easton, ex parte, 33, 67, 120. Easton v. New York Railroad Co., 132, 146. TABLE OF CASES. XXXI Eaton V. B. C. & M. R. Co., 21, 90, 102, 243, 245, 248 a, 257, 296, 588. u. Knapp, 194. V. Swansea "Waterworks, 333, 385. Eberhard v Tuolumne Water Co., 220. Eccleston v. Clipsham, 467. Eddings v. Seabrook, 119, 251. Eddy V. St. Mars, 155, 337. V. Simpson, 204, 235, 239. Edgerton v. Huff, 191, 241. Edjuljee Byramjee, ex parte, 21. Edson V. Munsell, 330, 331. Edwards v. AUenez Mining Co., 220. V. Elliott, 33. 1'. Ogle, 71, 85. Egremont v. Pulman, 376, 378. V. AVilliams, 304 a. Egyptian, The, 96. Elder v. Burrus, 51, 54, 60, 197 V. Bemis, 579, 582. Eldred, in re, 122, 140, 430, 433, 442, ■ 443. Eldridge v. Cowell, 32, 39, 132, 138, 140, 157. V. Hill, 568. Eleanor, The, 5. Electra, The, 96. Elgin V. Kimball, 272. Elgin Hydraulic Co. u. Elgin, 220. Elizabeth, The, 5. Elizabethport Eerry Co. v. United States, 35. Eliza Jane, The, 5. Ellen S. Terry, The, 96. EUerman y. McMains, 35, 117. Ellery v. Cunningham, 192. Ellicott u. Lamborne, 482, 494. Ellington v. Bennett, 212, 214, 343. .ElHott V. Fitchburg Railroad Co., 205, 206, 208, 213, 214, 215, 217, 227, 410, 497. u. North Eastern Railway Co., 289, 513. V. Pray, 110. V. Ehett, 354. V. Sallee, 307, 313, 356, 359. V. Shepherd, 305. Ellis V. Carey, 53, 74, 109. V. Duncan, 280, 290, 542. V. Harris, 493, 587. V. Welch, 456. Ellis V. Iowa City, 269. ... Tone, 205, 543. Ellison V. Commissioners, 512. V. Jackson, 234. Ellsworth V. Putnam, 368. Elmhirst v. Spencer, 231, 512, 514, 525, 534. Elmira Shepherd, Xhe, 67. Elston V. Chicago, 118. Siting Woolen Co. v. Williams, 583. Elwell V. Crowther, 295, 512, 530, 534, 558, 560. Ely V. Rochester, 135, 143. i,. Stewart, 307. V. Supervisors, 128. Emans v. TurnbuU, 24, 25, 155. Embleton v. Brown, 4, 14. Embrey v. Owen, 204, 206, 214, 216, 217, 218, 219, 288, 404, 405, 407, 497. Embury v. Conner, 241, 242, 244. Emerson v. Mooney, 310. V. Taylor, 162, 163, 164, 169. Emery v. Erskine, 121, 206. y. Lowell, 41, 123, 261, 269. V. Webster, 195. Emmons v. Milwaukee, 105. Emporia v. Soden, 241, 281. Enfield Toll Bridge Co. v. Hartford Railroad Co., 56, 136, 142, 144, 145, 146. Engard v. Frazier, 210. English V. Johnson, 240. Engs V. Peckham, 138. Ennor v. Barwell, 265, 536. Enos u. Hamilton, 108, 110, 122, 123, 120, 127, 183, 140. Ensminger v. People, 55, 69, 71, 99, 120, 179. Ensworth v. Commonwealth, 579, 581, 608. Eppes V. Cralle, 609, 610. Erie, The, v. Canfield, 93. Erkenbrecher v. Cincinnati, 241. V. Este, 534. Erskine v. Moulton, 169, 194, 200. Eschelman v. Snyder, 305, 373. Esling V. Williams, 341. Esrainge v. Mclntire, 233. Esmond v. Chew, 233, 240. Esson V. McMaster, 54, 108, 405, 547. Estabrooks v. Peterborough Railroad, 256, 588, 589. xxxu TABLE OF CASES. Estell l: Myers, 325. Estes V. Cliina, 302. Esty V. Baker, 305, 318. V. Currier, 312. Etlielridge v. Jones, 192. Etter V. Edwards, 90, 192. Etz V. Daily, 105. Eubanls: v. Pence, 187, 010. Eulricli 17. Eichter, 41, 218, 263, 275. Evangelical Home v. BufEalo Hy- draulic Co., 318. Evans v. Dana, 355. V. Merriweather, 204, 205. Evansville v. Martin, 117, 128, 149. Evansrille Railroad Co. v. Dick, 256. Evelyn v. Haynes, 504. Everett v. Council Bluffs, 149. -«. Dockery, 203, 233, 311. V. Hydraulic Flume Tunnel Co., 232, 298. Everman, The J. W., 96. Ewart V. Cochrane, 357. Ewell V. Greenwood, 121, 123. Exchange Eire Ins. Co. v. Delaware Canal Co., 114. Exeter v. Trimlet, 141. V. Warren, 4, 18, 141. Express, The, 96. Eyber v. County Commissioners, 260. F. Fabian v. Collins, 231, 234, 236, 237. Fagan v. Armistead, 60. Fair v. Philadelphia, 262, 270. Fairfax v. Hunter, 31. Fairhaven Marble Co. u. Adams, 508, 520, 521. Fall V. Sutter, 143, 145, 146. Fall River Iron Works Co. r. Old Colony Railroad, 122, 137. Falls Village Co. u. Tibbetts, 121. Falmouth v. George, 4, 141. V. Innys, 329. Fame, The, 4, 64, 203. Fanning v. Gregoire, 35, 133, 145. Faribault v. Hulett, 611. V. Sater, 325. Parish v. Coon, 39. Farley w. Spring Valley Mining Co., 240, 543. Farmer v. McDonald, 323. Farmer v. Ukiah Water Co., 356. Farmers of Hampstead Water, Case of, 423. Farmers' Loan Co. v. Kcw York, 175. Farnum v. Blackstone Canal Co., 145, 593. Farquharsen's Case, 160. Farquharsen v. Farquharsen, 100. Farragut, The, 96. Farrar v. Cooper, 305, 318, 348, 350. V. Stackpole, 305. Farrell v. Richards, 206, 217. Farrelly v. Cincinnati, 122, 125. Farris v. Ware, 325. Fashion, The, 67. Faville v. Greene, 386, 595, 598. Fawcett v. The Natches, 89. Fay, Petitioner, 190. Fay V. Prentice, 292, 364, 373. V. Salem Aqueduct Co., 84, 191, 203, 245, 246. Feather v. Queen, 36. Fehr v. Schuylkill Navigation Co., 220, 582, 589. Felder . Pennsylvania Canal Co., 240. Hoffman v. Savage, 348. V. Stone, 229, 238. u. Tuolumne Water Co., 298. V. Union Ferry Co., 96. Hogarth i'. Jackson, 1. Hogg V. Zanesville Canal Co., 70, 111, 121, 125, 132, 134, 140. Hogwood V. Edwards, 210, 211 c. Hoit V. Stratton Mills, 102, 324. Holbert v. Edens, 60, 194. Holbrook v. Moore, 159. Holden v. Joy, 30. V. Lake Co., 204, 206, 211 b. V. Robinson Manuf. Co., 56, 108, 111. Hole I). Sittingbourne Railway Co., 134. Holford V. Bailey, 183, 185. V. George, 183. V. Pritchard, 185. Holker r. Porritt, 224, 226, 227. HoUaday i-. Frisbie, 138. Holland v. Long, 335. HoUcnbeck v. McDonald, 306. I-Iollis V. Goldfinch, 101, 104. Ilollingsworth v. Dunbar, 465. Hollister v. Union Co., 32, 143, 248, 248 a. Holmes v. Barclay, 440. V. Buckley, 302, 447. u. Drew, 597. V. Goring, 306, 314. V. Mallett, 68. V. Moore, 381. V. North Eastern Railway Co., 113. V. Seely, 55, 306. V. Townsend, 122, 127. 0. Wilson, 423, 424. TABLE OF CASES. Xil Holsman v. Boiling Spring Bleaching Co., 204, 212, 214, 219, 223, 345, 346, 506, 507, 508, 510, 525, 532, 534, 544. Holt V. Rochdale, 544, 545, 546. Holton V. Milwaukee, 150, 244. Holyoke Water Power Co. v. Lyman, 187, 253. Home V. Richards, 46, 61, 609. Homer v. Watson, 295. Honenstine v. Vaughan, 610. Honsee v. Hammond, 206, 220. Hood V. Dighton Bridge Co., 132, 143. Plook V. Smith, 583, 615, 621. Hooker v. Cummings, 54, 55, 57, 182, 187. V. New Haven Co., 103, 136, 143, 252, 256, 588. Hooksett V. Amoskeag Manuf. Co., 211 c, 222, 227, 255, 580. Hooper v. Hobson, 99, 102, 108. V. Wilkinson, 266. Hope, The, 96. Hopkins v. Crombie, 128. o. Great Northern Railway Co., 145. c. Kent, 70, 200. V. Stockton, 147. V. Western Pacific Railroad Co., 123, 128. Hopkins Academy v. Dickinson, 42, 50, 56, 155, 159, 164, 166, 198. Hopper ti. Lutkins, 300. Hoppock V. United Railroad Co., 241. Hopwood V. Schofield, 376. Horn V. Mackenzie, 41, 44. V. People, 117. Horner v. Stillwell, 329, 343, 348. Horton v. Cook, 194. V. Hall, 211 h. V. Roscoe, 197. V. Smith, 35. Hosher v. Kansas City Railroad Co., 273. Hot Spring Railway Co. «. Tyler, 257. Houck V. Yates, 69. V. Wachter, 122, 125. Houle V. Fulton, 121. Hough V. Doylestown, 205, 213, 245, 512, 525. Hougan v. Milwaukee Railroad Co., 252. Houghton V. The C. D. & M. R. Co., 45, 72, 151. Housatonic Railroad v. Lee Railroad, 255. House V. Metcalf, 113, 121. Houston r. Laffee, 323. V. Police Jury, 126. r. Wheeler, 635. Houston Railroad Co. t. Knapp, 256, 257. c. Parker, 121, 258. Howard v. IngersoU, 27, 32, 45, 58, 166, 197, 202. V, Locks and Canals, 599. 7). Mitchell, 504. u. Moale, 176, 194. V. Robbins, 93. V. Wadsworth, 311. Howard Manuf. Co. v. Water Lot Co., 302. Howcott V. Coffield, 621. Howe V. Norman, 218, 245, 536, 585. V. Ray, 595, 599. V. Stowell, 3, 24, 25. Howe Scale Co. u. Terry, 204, 207, 320, 392. HoweU V. McCoy, 204, 214, 219, 362, 492. V. Robb, 189. Hoxsie V. Hoxsie, 206, 508, 537, 540. Hoy V. Sterrett, 204, 210, 214, 218, 227, 290. Hoye V. Swan, 176. Hoyt V. Hudson, 41, 263, 265, 270, 275, 296. Hubbard v. Bell, 53, 69, 109, 112, 547. V. Russell, 368, 396. o. Toledo, 133. V. Webster, 269. Hubert v. Groves, 125. Hudson V. Cuero Land Co., 132, 193, 255. V. Gustier, 9. V. McRae, 52, 184. a. Maddison, 121, 382. V. New York, 261. u. State, 142. V. Tabor, 24, 91, 161. Hudson Canal Co. v. New York Rail- road Co., 255. Hudson River Railroad Co. v. Loeb, 32, 121, 125, 127, 128, 151,, 175,544,547. xlii TABLE OF CASES. Hudson Tunnel Co. i\ Attorney Gen- eral, 30. Hufiman v. Vaughan, 583. Hughes V. Heiser, 126, 249. V. Mung, 388, 392. V. Providence Railroad Co., 56, 197. Hull ;;. Fuller, 318. V. Leonard, 311. Hull & Selby Railway Co., in re, 4, 21, 49, 155, 158. Hulme o: Shreve, 214, 320, 323, 343, 405, 513, 534. Humes v. Shugart, 583, 609. Humphrey v. Berkshire Woollen Co., 598. Humphreys ;;. Armstrong, 115. V. Cousins, 296. o. McCall, 230. Humphries v. Brogden, 289. Huuchliffe V. Kinnoul, 306. Hundhausen v. Bond, 97. Hungarian Hill Mining Co. v. Moses, 234, 543. Hunsicker v. Briscoe, 247. Hunt V. Card, 35. u. Kansas Bridge Co., 132. V. "Whitney, 258, 590, 599. Hunter v. Gibbons, 281. V. Howard, 65. V. Matthews, 609, 615. V. Middleton, 69. V. Perry, 147. V. Sandy Hill, 105. Hunting v, Curtis, 610. V. Waterman, 585. Huntress, The, 66. Hurd !,-. Curtis, 302, 304, 310, 312, 351, 448. Hurdman v. North Eastern Railway, 265, 267, 294, 296. Hurlburt v. Leonard, 214, 343. Hurley v. Morgan, 195. Huston V. Leach, 286. Hutchins v. Smith, 368. Hutchings v. Talbott, 32. Hutchinson v. Chase, 383. V. Chicago Railway Co., 256, 305. V. Coleman, 204, 210. V. Granger, 211, 211 b, 484, 486. V. Thompson, 133. Huttemeier v. Albro, ;!55. Huzzey v. Field, 193. Hyde v. Russell, 187, 189. Hyman v. Beed, .36. Hyslop ;;. Finch, 244. L Illinois, The, 67. Illinois Canal Co. o. St. Louis, 118. Illinois Central Railroad Co. v. Allen, 349. o. Bethel, 258, 590. V. Fehringer, 481. o. Grabill, 419. V. Wren, 305. Illinois River Packet Co. v. Peoria Bridge Co., Ill, 132, 133. Imler v. Springfield, 41, 269. Imperial Gas Co. . Ottawa, 134. Kostendader v. Pierce, 252. Kownslar v. Ward, 212, 610. Kraut i: Crawford, 72, 76. Kreamer v. Chicago Railroad Co., 133. Krekeler v. Eitter, 504. Kucheman ;;. The C. C. & D. K. Co., 151. Kutz V. McCune, 303, 355, 454. Lackland v. North Missouri Railroad Co., 123. Lacy V. Arnett, 322, 324, 343, 599. V. Green, 27, 41, 45, 65. Lady Brown's Case, 293, 313. Lady Franklin, The, 96. Lady Pike, The, 33. Lafayette Plank Road v. New Alhany Railroad Co., 145, 250, 252. Lafayette Railroad Co. v. Murdock, 255. Laing ;•. Whaley, 475. Laird v. Briggs, 26. Lake v. Tolles, 230. u. Virginia Railroad Co., 145, 146. Lake Superior Railroad Co. u. Greve, 252. Lakeman v. Burnham, 20, 32, 169, 189. I. Butler, 29, 183. Lallande :. The C. D., Jr., 96. Lamar ;■. Charlotte Railroad Co., 258. Lamb v. Crosland, 331. 0. Danforth, 303, 451. );. Ricketts, 70, 155, 200. „. Schottler, 244. V. Walker, 412. Lambert v. Bennet, 312. V. Staten Island Railroad Co., 96. Lamborn «. Covington Co., 508, 534, 555. Lamme v. Buse, 76. ' Lammers v. Nissen, 76, 77, 148. Lampman v. Milks, 305, 314, 355, 356, 360. Lamprey i: Nelson, 108. Lancaster v. Kennebeck Co., 241. Lancaster Canal Co. v. Parnaby, 114. Lancey v. Clifford, 92, 96, 108, 110, 204, 584. Lane v. The A. Denike, 92. ... Miller, 323, 344, 616. 1. Newdigate, 552, 554. V. Salter, 114. Laney v. Jasper, 508, 536. Langdeau v. Hanes, 30. Langdon v. C. B. & Q. R. Co., 210. V. New York, 120, 175. Langford i\ Commissioners, 244. V. Owsley, 412. ,;. Poppe, 333. Langley v. Hammond, 355. Lanoue v. McKinnon, 305. Lansing v. Smith, 33, 36, 122, 123, 125, 128, 143, 151, 175. V. Wiswall, 122, 125. Lapham v. Curtis, 298. Lapish f. Bangor Bank, 31, 44, 169, 195, 199. TABLE OF CASES. xlvii La riaisance Bay Harbor Co. v. Mon- roe, 3G, 68, 75, 82 n, 133, 143. Ijaramie Co. i'. Albany Co., 13. Laredo c. Martin, 198. Large v. Orvis, 579, 583, 597. Larsh v. Test, 213, 383. Larson v. Furlong, 128, 179, 365. Lassater ;•. Garrett, 212. Lathrop v. Grosvenor, 250. Lattimore c. Davis, 266. Laughlin v. Lamasco City, 179. Laumier v. Francis, 266, 276. Laverty v. Moore, 164, 576. Law V. McDonald, 339, 341, 422. Lawler v. Boom Co., 103, 108, 211 c, 241. Lawrence t. Fairhaven, 122, 260, 333. ;;. Great Northern Railway Co., 256, 286. Lawson v. Langley, 500. 1'. Price, 206, 220, 395. „. Mowry, 196, 213. Lawton v. Rivers, 104. Lay V. liing, 99, 189. Lazaretto Road, in re, 148. Lean o. Burbank, 193. Leary v. Woodruff, 113. Leathers v. Aiken, 35. Leavenworth v. Casey, 270. V. Laing, 121. Leavenworth Railroad Co. v. United States, 30, 36. Leavitt v. Towle, 318. Lebanon v. Olcott, 143, 582, 605. Le Barron v. East Boston Ferry Co., 193. Le Beau v. Gavin, 73, 157. Lebeaume v. Poctlington, 157. Leblanc v. Pittman, 161. Leconfield v. Lonsdale, 54, 187. Leda, The, 4, 9, 11. Ledyard v. Ten Eyck, 82, 83, 99, 155, 198. . Lee V. Brown, 23. ... McLeod, 323. V. Minneapolis, 272. V. Pembroke Iron Co., 132, 243, 250, 581, 583. V. Stevenson, 363. Lee Conservancy Board v. Button, 101. Leech v. Schweder, 223. Leeds v. Shakerley, 475. Leeds Canal v. Huster, 36. Le Fevre v. Le Fevre, 322, 323. Leffingwell v. Warren, 37. Le Franc v. Richmond, 194. Legg V. Horn, 338, 367, 508, 510, 535. Legge V. Boyd, 6, 192. Leggett V. Kerton, 305. Leggins v. Inge, 496. Lehigh Bridge Co. v. Lehigh Coal Co., 90, 98, 143, 298. V. Lehigh Navigation Co., 211 c. Lehigh Valley Railroad Co. o. McFar- lan, 257, 329, 330, 331, 532, 549, 563, 564, 567, 568. V. Society, 537, 540. V. Trone, 65, 150, 173, 211. Leigh V. Burley, 5, 66. V. Holt, 179. L\ Independent Ditch Co. ,229, 233. V. Jack, 197. Leighy v. Ashland Lumbering Co., ■ 112. Leisse v. St. Louis Railroad Co., 244. Leland v. Woodbury, 579, 581. Lenox v. Winissimmet Co., 96. Leo, The, 96. Leon I'. Garcelan, 33, 67. Leonard, The, 67. Leonard v. Leonard, 306, 335, 338, 362. V. Schenck, 584, 594, 600. V. Storer, 113, 293. V. Wading River Reservoir Co., 584, 590. u. White, 305. Leopold V. Chesapeake Canal Co., 101. Lepretre v. General Council, 247. Le Roy v. Bradley, 305. V. Dunkerly, 39. Leslie v. St. Louis, 104. Le Strange o. Rowe, 22, 23, 24, 28. Letton V. Gooden, 193. Levaroni v. Miller, 220, 233. Leveridge v. Hoskius, 369, 428, 430. Levett V. Wilson, 19, 23. Lewen v. Smith, 74. Lewenthali'. Mayor, 261. V. New York, 261. Lewin v. Simpson, 210. Lewis V. Baird, 133. V. Gainsville, 193. V. Keeling, 60, 99, 182. V. Lewis, 194. u. McClure, 240. u. Price, 329. xlviii TABLE OF CASES. Lewis r. Stein, 121, 219, 223. License Cases, Tlie, 85, 129. Liggins V. Inge, 227, 322, 351, 496. Lillywhite v. Trimmer, 223, 509, 512, 546. Limerick Co.'s Appeal, 277. Lincoln v. Chadbourne, 121, 128, 227, 377, 583. V. Rogers, 233. u. Taunton Copper Manuf. Co., 211, 219. V. Wilder, 56, 194, 200. Lindeman v. Lindsey, 302, 365, 447. Lindsay v. Lindley, 193. Lingwood v. Stowmarket Co., 219, 544, 558. Linthicum v. Eay, 120, 301, 312. Linton v. Wilson, 383. Lion, The, 96. Liskeard Union v. Liskeard Water Works Co., 241. Lisley v. Lobley, 244. Lister- ti. Newark Plank Road Co., 135. Little V. Dublin Railway Co., 250. V. Stanback, 204, 210, 603, 615. Littledale v. Smith, 1. Littlefield v. Littlefield, 28. V. Maxwell, 24, 105. Little Miami Elevator Co. v. Cincin- nati, 241. Little Miami Railroad Co. v. Dayton, 255. Littlepage v. Fowler, 197. Little Rock v. Willis, 262. Little Schuylkill Navigation Co. c. French, 222. V. Richards, 222, 375, 398. Livermore v. Jamaica, 244. Livett V. Wilson, 330, 334. Livezey c. Gorges, 368. V. Philadelphia, 90, 98, 102. Livingston v. Adams, 298. ('. Heerman, 155. V. Jefferson, 426, 436. r. McDonald, 263, 266, 268, 2/1, 276. c. New York, 244. r. Ogden, 175. V. Van Ingen, 35. Livingston County v. Graves, 328. Livisay u. Delp, 103. Lloyd V. Guibert, 1. 1/. Jones, 24, 184. Lloyd V. New Tork, 261. Lobdell V. Hall, 234. V. Simpson, 229, 231, 543. Locke V. Motley, 99, 100, 169, 189. Lockhart v. Geir, 489. Locks and Canals v. Lowell, 123, 255, 261, 375. , . Nashua & Lowell Railroad Co., ,37, 256, 348, 588. Lockwood V. New York Railroad Co., 157, 170. c. Wood, 24. ( Locust Mountain Coal and Iron Co. f. Gowell, 295. Lodge V. Lee, 166. Logan 11. DriseoU, 233. Logansport r. Wright, 270. Loker v. Simpson, 512. Lomax i-. Stott, 295. Lombard v. Kinzie, 156. London, The City of, 96. London v. Hunt, 141. V. Richmond, 302. Loudon & Birmingham Railway Co. V. Grand Junction Canal Co., 547, 560. London Wharfs, Case of, 4. Lonergan ;'. Mississippi River Bridge Co., 146, 249. Long V. Beard, 193. V. Boone, 41. V. Long, 504. f. Merrill, 193. V. Swindell, 222. V. Weller, 325. Longstreet i\ Harkrader, 160, 214. Long Wharf v. Palmer, 120. Longwood Valley Railroad Co. v. Baker, 537, 552. Lonsdale Co. c. ^loies, 299. Lopez i'. Andrews, 4, 19, 23. Lord V. Commissioners of Sidney, 27, 124, 148, 190. V. Oconto, 118, 144. V. Steamship Co., 1, 34, 129. Lord Advocate v. Blantyre, 18, 23. o. Hamilton, 4, 21, 52. V. Sinclair, 21. Lord Warden v. The King, 6. Lorenz v. Jacobs, 316. Loring v. Norton, 104. Lorman v. Benson, 54, 68, 75, 99, 108, 133, 150, 101, 203. TABLE OP CASES. xlix Los Angelos v. Baldwin, 240. Losee v. Buchanan, 296, 588. Lottawanna, The, 33, 35, 67. Loughbridge v. Harris, 253, 623. Louisiana, The, 89, 96. Louisville v. United States Bank, 62, 105, 147. Louisville Railroad Co. v. Hodge, 256. o. McAfee, 256, 278. Love V. Montgomery, 96. V. Schenck, 13. Loverin v. "Walker, 820. Lovett V. Salem Railroad Co., 128. Lovington v. County of St. Clair, 76, 155. Low V. Grand Trunk Railway Co., 113. V. Knowlton, 122, 126, 169. V. Mumford, 896. V. Pew, 1. V. Tibbetts, 197. Lowber v. Wells, 97. Lowe V. Govett, 4, 21, 25, 27, 189. Lowell u. Boston, 215, 227, 241, 242, 243. V. Locks & Canals, 260. V. Robinson, 195, 196, 208. V. Shaw, 597, 599. V. Spring, 599. Lower Chatham, re, 241. Lower King's River Water Co. v. Iving's River & Fresno Canal Co., 429. Loweree v. Newark, 38, 244. Lowndes v. Eettle, 519. V. Dickerson, 57, 189. L. T. Co. V. S. & "W. R. Co., 122. Luce V. Carley, 57, 166, 197. Lufkin V. Haskell, 169, 195, 199. Luke V. Brooklyn, 175. Lull c. Eox Improvement Co., 222, 599. Lumbard v. Stearns, 144, 241, 245. Luming i'. State, 580. Lummery v. Braddy, 579. Lund V. Kew Bedford, 214, 245, 331, 410. Luuing V. State, 212, 581. Lunt V. Holland, 46, 166, 194, 196. V. Hunter, 187. Luther v. "Wiunisimmet Co., 41, 263, 267. Luttrell's Case, 320, 344, 346, 584. Luxford V. Large, 06. Lyle V. Richards, 368. Lyme Regis v. Henley, 113, 126. Lynch v. Allen, 159, 195, 260, 269. V. Mayor, 270. Lynn v. Mount Savage Iron Co., 302. V. Nahant, 37. V. Taylor, 24. V. Turner, 43, 116, 161. Lyon u. Fishmongers' Co., 148, 149, 151, 204, 404, 547. V. Green Bay Railway Co., 258. V. McLaughlin, 513, 520, 540. V. Parker, 302. V. Ross, 506. Lyons v. Hinckley, 247. Lytton V. Stewart, 512. M. Mabie v. Matteson, 218. Mabire v. Canal Bank, 243. McAfee v. Kennedy, 254, 609. McAllister v. Devane, 313. McArthur v. Green Bay Canal Co., 298. V. Kelly, 241, 513, 516. McAuley v. Roberts, 521. V. Western Vermont Railroad Co., 244. McCallum v. Germantown Water Co., 345, 507, 524, 534. McCalmont v. Whitaker, 204, 209, 210, 227. McCann v. Otoe County Commission- ers, 250. McCannon v. Sinclair, 14. McCarthy v. Syracuse, 261. McCarty v. Kitchenman, 355. Macauley v. New York, 113, 116. McCauley v. Weller, 244. McClary v. Hartwell, 253. McClellan v. Pisher, 599. McClinton v. Pittsburgh Railroad Co., 244. McClure v. City of Red Wing, 264. McConnell v. Denver, 231. V. Kibbe, 412. McCord V. High, 204, 245, 363. V. Sylvester, 250. V. The Tiber, 96. McCormick v. Horan, 271, 274. u. Huse, 60, 1 TABLE OF CASES. McCormick v. Ives, 67. [•. Kansas City Railroad Co., 266, 273, 589. McCowan v. Wliitesides, 125. McCoy V. Commonwealth, 38. V. Danley, 200, 210, 211 c, 298. McCready v. Virginia, 20, 32, 38, 189. McCuUoch V. Aten, 70, 200. V. Wainright, 41, 45. McCullough r. Wall, 46, 55, 59, 76, 166, 197. MeCune v. Norwich City Gas Co., 290. McCuthen v. McCuthen, 195. McDiarmid v. McMillan, 194. McDonald v. Askew, 204, 234, 548. V. Bear River Co., 829, 333, 334, 336, 337, 344, 543. V. Mallory, 1. McDonough v. Gilman, 892, 893. V. Virginia City, 121. McDougle V. Clark, 611, 612. McDowell V. Langdon, 210. Mace V. Philcox, 26. McElear v. Elliot, 65. McElroy v. Goble, 205, 214, 410. Macey v. Metropolitan Board, 547. McFall V. Commonwealth, 62, 71. McFarland v. McKnight, 62. i: Stone, 331. McFarlin v. Essex Co., 56, 182, 183, 184, 187, 335, 342. McGenness v. Adriatic Mills, 219. McGillivray v. Evans, 231, 316. McGinnis v. Blackman, 126. I. The Pontiac, 67. McGregor ;,■. Boyle, 128, 363. V. Wait, 331. McGuiness v. New York, 116. McHugh V. Curtis, 293. Mcllvaine v. Marshall, 415, 623. Mclntire v. State, 244, 251. V. Storey, 105. V. Western Railroad, 250. Mcintosh f. Gastenhofer, 112. Mclver v. Walker, 194. McKay v. Carrington, 574. McKee o. Grand Rapids Railway Co., 142. McKeen ;;. Delaware Division Canal Co., 68, 143, 246, 249. V. Kurfurt, 99. McKellip V. Mcllhenny, 210, 323, 496. McKclway v. Cook, 570. McKelway v. Seymour, 320. Mackenzie v. Banks, 79, 81. MeKenzie v. liulet, 60, 189. McKernan v. Indianapolis, 248, 260. Mcliinley v. Union Co., 263. McKinney v. Monongahela Naviga- tion Co., 244, 582. V. Smith, 231, 235, 236, 237, 239. McKnight v. Ratcliff, 294. McLaren v. Caldwell, 547. McLaughlin v. Charlotte RaUroad Co., 122, 123, 126. V. Dorsey, 381. I. Stevens, 148. McLean v. Mathews, 97, 128. McLellan v. Jenness, 383. McLeod V. Burroughs, 146. V. Savannah Railroad Co., 145. McMahon v. Council Bluffs, 123, 248. McManus v. Carmichael, 4, 18, 26, 36, 53, 68, 71, 72, 151, 198. McMaster v. Commonwealth, 244. McMullen v. Hodge, 30. McMuUin v. Wooley, 299, 451, 458. McMurry v. Baltimore, 106. McNairy v. Paine, 120. McNally v. Smith, 594. Macnamana ;;. Higgins, 24. McNeil, ex parte, 1, 34, 35, 134. McOsker v. Burrell, 248 a, 250. Macomher v. Godfrey, 264, 309. Macon v. Owen, 610. Macon Railroad v. Pate, 140. McPhaul V. Gilchrist, 197. McPheeters v. Merimac Bridge Co., 142. McRee v. Wilmington Railroad Co., 145. McReynolds r. Smallhouse, 35, 143. McRoberts v. AVashburne, 142, 146, 193. McSwiney v. Haynes, 366, 513, 548, 553. McTairsh v. Carroll, 362. Maddox v. Goddard, 305, 806, 384. Madison v. Hildreth, 71. V. Tloss, 262. Madras Railway Co. v. The Zemindar, 296. Maenner v. Carroll, 113. Maeris v. Bicknell, 229, 235, 236, 237. Magee v. Hallett, 74. Mager v. Grima, 35. TABLE OP CASES. Magnolia, The, v. Marshall, 55, 63, 99, 120, 196. Magor V. Chadwick, 225, 340. Magoon v. Harris, 286. Magouh V. Lapham, 194; Magraw v. Hailman, 157. Maguire v. Baker, 344, 348, 351. V. Card, 33, 67. Mahan v. Brown, 281, 290. Mahler v. Norwich Transportation Co., 5, 13, 16, 32, 64. Mahoney ;'. Libbey, 297. Mailhot V. Pugh, 160. Main and Hamburgh Street Canal, Matter of, 255. Maire v. Gallahue, 212, 609. Mairs v. Manhattan Real Estate Asso- ciation, 272. Major V. Taylor, 580, 610. Makepeace v. Bancroft, 318. Malone v. Toledo, 241, 255. Malcomson v. O'Dea, 21, 23, 50, 183, 189. Maiden v. Woolyet, 24. Maloon v. "White, 24.~ Man V. Drexel, 504. Manchester v. Hudson, 138. V. Yale, 423. Manchester Railway Co. v. Worksop Board, 219, 513, 516, 544, 545, 546, 552, 559. Mandlebaum v. Russell, 35. Mangum v. Farrington, 120, 147. Manhattan Co., ex parte, 255. Manhattan Gaslight Co. v. Barker, 121, 12.3, 127, 151, 175. Manhattan Manuf. Co. v. Van Keuren, 128. Manier v. Myers, 329, 344. Maniou v. Crcigh, 24. Mankato v. Meagher, 105. V. Willard, 76, 105. Manley v. People, 13. V. Raleigh, 13. V. St. Helen's Canal Co., 115. Mann v. Wilkinson, 555, 560. Manning v. Lowell, 261. u. Smith, 313, 314. a. Wasdale, 299. Manser v. Northern Counties Railway Co., 256, 535. Mansur v. Blake, 196, 203, 335. Marble v. Adams, 213, 215, Marblehead t. Essex Commissioners, 139. March v. Portsmouth Railroad Co., 256. Marcia Tribon, The, 96. Marcly ;;. Shults, 337, 599. Marcy v. Darling, 21. V. Pries, 210. Maria, The, 4. Mariner v. Schulte, 75, 85, 111, 148, 203. Maris v. Parry, 368. Mark ;;. Buffalo, 210. V. Hudson River Bridge Co., 89. Marlborough Manuf. Co. v. Smith, 204. Marriott v. Stanley, 125. Marsh v. Brooks, 365. a. Burt, 197. V. Colby, 85. ,.. Pier, 504. V. Trullinger, 211, 368, 419, 555. Marshall v. Cohen, 296, 391. c. Grimes, 85, 133. V. Guion, 175. V. Niles, 173. 0. Peters, 191. u. UUeswater Steam Navigation Co., 26, 52, 80, 81, 154, 175, 183. u. Vicksburg, 117. c. Vultee, 175. 0. Welwood, 296. Marston v. Gale, 323. Martha Anne, The, 4. Martin, ex parte, 243, 545. Martin v. Beverley, 61, 609. y. Bigelow, 204, 227, 374. V. Bliss, 54, 126. V. Boon, 194. u. Carlin, 194. V. Evansville, 71, 138. V. Jett, 204, 266. u. Nance„60, 197, 198. V. O'Brien, 27, 32, 104, 138, 140, 145. V. Riddle, 204, 266, 271, 275. V. Rushton, 610. V. Simpson, 292. o. Stiles, 584. V. Waddell, 4, 18, 20, 30, 31, 32, 38, 58, 64, 67, 73, 166, 189, Martyn v. Knowllys, 383. Maryland Railroad Co. v. Stump, 547. lii TABLE OF CASES. Mary Stewart, The, 33. Mary Washington, The, 67. Mason r. Boom Co., 35, 135. 0. Cotton, 508, 584. u. Harper'sFerry Bridge Co., 145. „■. Hill, 204, 214, 219, 226, 227, 830, 374, 402, 544. V. Kennebec Railroad, 258. V. Mansfield, 87. V. Police Jury, 247. V. Rhinelander, 114. V. Shrewsbury Railway Co., 160, 340, 388, 389. V. Turner, 440. Massengill v. Boyles, 197, 201. Massot V. Moses, 145. Masten, The, 96. Master r. Prats, 35. Mather v. Chapman, 25, 27, 28, 29, 155, 170. Matson ;;. Scobell, 141. Matteson v. Wilbur, 316. Matthews v. Alexandria, 118. „. Perrea, 240, 330. V. Kinsell, 232. V. Ward, 32. Maud Webster, The, 33. Maverick, The, 96, 193. Maximilian v. Mayor, 115. Maxwell v.' Bay City Bridge Co., 76, 127, 324. V. The City, 116. May V. Hanson, 193. i,. Parker, 206, 382, 383, 540, 550, 595. Mayhew r. Norton, 169, 195. Maynard v. Weeks, 197. Maynell r. Saltmarsh, 126. Mayo V. Quimby, 197. V. Turner, 212, 610. Mayor ?■. Bailey, 261. V. Cardiff Waterworks, 525. r. Commissioners, 204, 246, 304, 415, 538. V. Cunliff, 890. V. Hart, 195. V. New England Transportation Co., 146. V. Pemberton, 512. u. Rice, 175. V. Sheffield, 121. u. State, 104, 140. o. Whitney, 175. Mead v. Haynes, 61, 609. ,.. Hein, 595. Mebane v. Patrick, 331, 338. Mechling v. Kittanning Bridge Co., 121. Medway Navigation Co. a. Romney, 92, 213, 404. Meigs V. The Northerner, 96. Mellen v. Western Railroad, 250, 256, 258. Mellon V. Smith, 96. Mellor r. Pilgrim, 268. a. Spateman, 24, 214, 404, 477. Melvin v. Locks & Canals, 341. V. Whiting, 24, 55, 183, 329, 331, 335, 342. Memphis v. Kimbrough, 116. V. Memphis Water Co., 241. u. Overton, 54, 60, 99, 103. V. Wright, 104. Memphis Packet Co. ... Grey, 120, 310, 311. Memphis Railroad Co. u. Hicks, 122, 126, 135. Menard v. Aspasia, 133. Menzies v. Breadalbane, 41, 160, 208. Mercer v. The Florida, 96. V. Selden, 331. Merrick i\ Avery, 67. Merrifleld v. Lombard, 206, 219, 223, 544. i: Worcester, 204, 206, 220, 375. Merrill v. Calkins, 318, 320, 539. i'. Kalamazoo, 260. Merriman v. Russell, 302. Merritt v. Brinckerhoff, 214, 218, 227, 874. V. Judd, 224. V. Parker, 160, 204, 213, 218. Mersey Docks v. Cameron, 115. V. GibbS, 113, 114, 115, 141. 0. Penhallow, 113. Mersey & Irwell Navigation Co. u. Douglas, 426, 481. Mertz V. Dorney, 336, 343. Merwin v. Wheeler, 24, 28. Metropolitan Board v. London Rail- way Co., 544, 54.5, 546. o. McCarthy, 124, 149, 150, 151, 251. Metropolitan Building Association , . Petch, 376, 479. Mexborough v. Bower, 295, 548, 552. TABLE OF CASES. liii Meyers i>. St. Louis, 45, 73, 76, 148, 149, 151, 179, 204, 245, 246. Michon v. Gravier, 163. Midas, The, 96. Middle Bridge Co. v. Brooks, 147. V. Marks, 132, 142, 147 Middlekauff v. Smitli, 328. Middlesex Railroad v. Wakefield, 88, 132, 135. Middlesex Turnpike Co. «. Freeman, y . 143. Middleton v. Mat River Booming Co., 108, 109, 110, 121, 206. - V. Franklin, 121. c. Gregorie, 225, 340. V. Perry, 195. V. Pritchard, 69, 76, 99, 196. Middletown, Matter of, 241. Middletown v. Sage, 30, 31, 36, 37, 42, 166. Milan County v. Bateman, 255. Milarkey v. Foster, 126. Miles V. Knott, 194. V. Rose, 43, 504. Milford V. Holbrook, 293. Mill-dam Foundry v. Hovey, 300, 469. Miller's Case, 4, 310. Miller v. Auburn Railroad Co., 300, 323. V. Bristol, 305. V. Burch, 363. t;. Cliurch, 394. V. Craig, 212, 244. V. Oarlock, 329, 341. V. Hepburn, 62, 76, 162, 163, 164. V. Lapham, 299, 318, 320, 324. i;. Laubach, 266, 271, 274. o. Little, 52, 159, 183. V. Mayor, 34. V. Miller, 194, 208, 217, 305, 315, 405. V. Milwaukee, 117, 118. V. New York, 129, 130, 132. 0. Prairie Du Chien Railway Co., 137. V. Seolfield, 328. V. Stowman, 341, 583. V. Troost, 253, 583, 620. V. Trueheart, 212, 587. V. Vaughn, 305. Mill River Woollen Manuf. Co. . Annesley, 331. , V. Newman, 204, 227, 327, 344. Savannah v. Georgia, 35, 130. o. State, 138. Savannah Canal Co. v. Bourquin, 210, 412, 424. Savannah Railroad Co. u. Shields, 121. Sawyer ;;. Eastern Steamboat Co., 95. V. Kendall, 335. V. Oakman, 114. Saxby ;;. Manchester Railway Co., 399. Saxonia, The, 4, 11, 96. Sayre v. North-western Turnpike Road, 115. Schall V. Nusbaum, 122. Schenck v. Wood, 23. Schenley v. Commonwealth, 331. Schermerhorn i. New York, 105, 175. Schieble v. Law, 211. Schilling v. Rominger, 229, 234. Schlichter v. Phillipy, 211, 263, 275. Schoeh V. Foreman, 210. Schoff V. "Upper Connecticut River Co., 103, 210. Schools V. Risley, 73, 78, 157. Schuffletown Fence Co. v. McAllister, 244. TABLE OF CASES. Ixix Schulte V. Korth Pacific Transporta- tion Co., 123. Schultz V. Winter, 121. Schurmeir v. St. Paul Railroad Co., 68, 76, 78, 149. Schuylliill Navigation Co. v. Freedley, 143. V. McDonough, 115, 220, 589. ' V. Moore, 304. u. Stoever, 333. Schwartz v. Flatboats, 35. Scioto, The, 96. Scotia, The, 1. Scott V. Bentel, 355. V. Brest, 432. V. Chicago, 88. V. Des Moines, 118. V. Hare, 326. V. Jones, 40. V. Napier, 79. V. Shepard, 369. i,. Wilson, 35, 53, 56, 108, 192. V. The Young America, 33, 67. Scranton, The E. C, 96. Scratton v. Brown, 4, 6, 18, 21, 22, 28, 158, 189. Scudder v. Trenton Falls Co., 21, 121, 258, 508, 510, 534. Seabrook v. King, 104. Seaman v. Lee, 185, 219, 544. o. New York, 113, 114, 116, 118. Seamen v. Smith, 27, 203. Sears v. Warren Co., 130. Seavey v. Jones, 305. Secomhe v. Railroad Co., 242. Seebkristo v. East India Co., 21, 155. Seeley v. Bishop, 121, 123, 306, 314. 1,. Bridges, 583, 619. V. Brush, 30, 37, 170, 191, 208, 214. Seely v. Alden, 220, 222, 375, 376, 379, 416, 419. V. Sebastian, 241. Seibert v. Levan, 225, 357. Seidensparger v. Spear, 300, 322, 353, 599, 602. Seigbert v. Stiles, 112. Selby V. Levee Commissioners, 247. ■u. Robinson, 24. Selden v. J)elaware Canal Co., 296, 323, 582, 588. Self V. Dunn, 193. Sellers v. Union Lumbering Co., 108, 143. Sellick V. Hall, 222, 278, 389, 397. Selma Railroad Co. v. Keith, 256, 589. Selman v. Wolfe, 54, 128, 133, 135, 140. Seneca Nation v. Knight, 46, 197, 200. Seneca Woollen Mills v. Tillman, 506, 507, 534, 539. Sessions v. Crunkilton, 241. Severy v. Central Pacific Railroad Co., 123. V. Nickerson, 113. Sevey's Case, 105. Sewell's Pall Bridge v. Pisk, 108, 110^ 135. Seymour v. Carpenter, 596. o. Carter, 300, 599. V. Courtenay, 183. c. Lewis, 299, 356, 361. V. Sage, 313. Shaber v. St. Paul Water Power Co., 447. Shackleford v. Coffey, 254, 610. Shadwell v. Hutchinson, 378, 380. Shafer v. Stonebraker, 210. Shaffer v. Lee, 466. Shamleffer v. Peerless Mill Co., 204, 215. Shand v. Gage, 144, 720. V. Triplett, 59, 194. Shane v. Kansas Railroad Co., 273. Shanklin v. Evansville, 255. Shannon v. State, 210. u. Wisconsin, 252, 255. Sharp V. Waterhouse, 300, 302, 447. Sharpless v. Philadelphia, 143. Shaubut V. St. Paul Railroad Co., 122. Shaw V. Crawford, 53, 57, 108, 121, 187. V. Cummiskey, 208, 213. ,.. Etheridge, 210, 356, 360, 412. u. Stenton, 295. V. Wells, 579, 594. Shawneetown v. Mason, 272. Shears v. Wood, 218, 482. Sheboygan v. Sheboygan Railroad Co., 103, 507. Shed V. Hawthorn, 121, 125. V. Leslie, 320. Sheets v. Selden, 304 a, 468. Sheffield v. Collier, 323. Sheffield Waterworks v. Yeomans, 567. Sheldon v. New Orleans Canal Co., 142. Ixx TABLE OF CASES. Sheldon v. Eockwell, 210, 349, 530. V. Sherman, 90, 98, 102, 192. Shelling v. Farmer, 426. Shelton v. Maupin, 73, 76, 194. Shepard v. Leverson, 189. V, People, 556. Shepardson v. Perkins, 225, 340. Shephard v. Barnett, 127. Shepherd v. Commonwealth, 65. V. Lincoln, 115. V. Third Municipality, 117. V. Willis, 495. Sherlock v. Ailing, 1, 5, 34, 35, 71, 134. V. Bambridge, 71, 76, 95, 96, 99, 140, 179. Sherman v. Fall River Iron Works, 219, 222, 288. V. Tobey, 123. Sherry v. Freckiag, 373. Sherwood v. Burr, 329, 330. V. Vliet, 329, 532. Sheuber v. Held, 329. Shields V. Arndt, 41, 263, 348, 508,513, 532, 534. Shlndlebeck v. Moon, 113. Shinkle v. Covington, 116. Shipley v. Caples, 125. V. Fifty Associates, 293, 391. Shipp V. Miller, 194. Shively v. Hume, 330. Shoebottom v. Egerton, 115. Shoemaker v. Hatch, 76, 77. V. State, 189. Short I. Baltimore City Passenger Railway Co., 296. V. Woodward, 300, 322, 344, 599. Shorter v. Smith, 145, 146. Shortridge v. Lamplugh, 424. Shreve v. Voorhees, 204, 329, 334, 509, 512, 534. Shrevcs v. Liveson, 190. Shrewsbury v. Brown, 211 c, 329, 342. V. Smith, 298. Shrunk v. SclmylkUl Navigation Co., 65, 99, 100, 143, 173, 182, 187, 246, 249. Shufeldt V. Spaulding, 85, 194. Shiuuway v. Simons, 329. Shury v. Piggot, 204. Shuter v. City, 288. Shuttleworth r. Le Feming, 299. Sibley v. Ellis, 338. V. Hoar, 320. Side Booms v. Weld, 144. Sidelinger v. Hagar, 596. Sidney v. Lord Commissioners, 27. Sigler V. State, 54, 60, 110. Silliman v. Hudson River Bridge Co., 34, 35, 132, 134. V. Lewis, 96. r. Troy Bridge Co., 35, 130, 182. Silver Spring Co. v. Wanskuck 'Co., 544. Siman v. Rhoades, 110, 112, 620. Simmer v. St. Paul, 261. Simmons v. Baker, 194. V. Brown, 211 b. V. Clocnan, 305, 360. V. Cornell, 121. V. LiUystone, 123, 426, 427, 430. e. Mumford, 138, 139. Simonds v. Pollard, 292, 373. Simons v. French, 32, 170. Simonton v. Loring, 296. Simpson's Appeal, 35. Simpson v. Hand, 96. V. Keokuk, 211 a, 269, 272. V. Neill, 65, 173. V. Savage, 376. V. Seavey, 86, 92, 121, 222, 396, 397. ,,•. Stafeordshire Water Co., 101, 250. Simpson County Court v. Arnold, 143. Sims V. Smith, 229. Sinclair v. Roush, 495. Singleton v. Whiteside, 194. Sinnickson v. Johnson, 103, 122, 136, 243, 250. Sinnott v. Davenport, 34, 35. Sizer v. Devereux, 197, 200. Skinner v. Chapman, 1. V. Hettrick, 60, 99, 100, 183, 189. Skull V. Glenister, 354. Slack V. Lyon, 598. u. Marsh, 205. V. Walcott, 445. Slade V. Green, 195. V. Neal, 193, 194. Slater v. Fox, 108, 160. Slaughter v. Commonwealth, 38. Sleight V. ICingston, 92, 272. Sloan V. Beimiller, 70, 82 a, 179, 182, 198, 203. Sloane v. McConahy, 105. Slocumb 1-. C. B. & Q. R, Co., 213. TABLE OF CASES. Ixxi Sly V. MoTdaat, 476. Smallman v. Onions, 511. Smallwood v, Hatton, 197, 201. Smart v. Commonwealth, 128. V. Dundee, 155. Smidt V. People, 656. Smith V. Adams, 280, 281, 285, 509. V. Agawam Canal Co., 209, 211 c, 227, 298, 583. D. Alexandria, 272. u. Ankrim, 102. V. Atlantic Kailroad Co., 138. V. Auldxidge, 197. 17. Bamham, 220. V. Barret, 471. V. Boston, 122, 127. V. Buhler, 247. V. Comptroller, 114. V. Connelly, 609, 610. V. Elliot, 504. V. Evans, 194 V. Eletcher, 296, 372. V. Flora, 55, 105. V. Floyd, 105. V. Ford, 196, 200, 299. <;. Goulding, 300, 322, 699. V. Harkins, 193. V. Hughes, 464. V. Ingram, 36, 46, 60, 136, V. Kemp, 183, 185. V. Kendriek, 280, 288, 294 t/. Levinus, 32. V. Lockwood, 121. Sturges V. Bridgman, 55, 214. V. Theological Education Society, 225. Sturgis V. Spofford, 34, 134. Stump V. McNairy, 109. Stuttsman v. State, 189. Sublett V. Kerr, 478. Submarine Telegraph Co. v. Dickson, 92. TABLE OF CASES. Ixxv Success, The, 11. Sudbury Meadows v. Middlesex Canal, 582. Suffield V. Brown, 356, 358. Sugar Refining Co. v. Jersey City, 134, 135, 143. Sullivan v. Beardsley, 229. V. Supervisors, lt)3. Summy v. Mulford, 585, 616. Sumner v. Finegan, 431. u. Foster, 320. V. Miller, 621. V. Richardson Lake Co., 248. o. Stevens, 338. V. Tileston, 211 6, 330, 337, 376, 396, 479. Supervisors v. McFaddeh, 193. t . United States, 28. Sury V. Pigott, 293, 313, 314, 356, 359. Susquehanna Boom Co. v. Dubois, 143, 144. Susquehanna Canal Co. v. Wright, 111, 132, 173, 246, 249, 257, 591, 608. Susquehanna Turnpike Co. v. People, 582. Sutcliffe V. Booth, 225. Sutton V. Buck, 6, 192. V. Clarke, 396, 412, 428 Sutton Harbor Co. v. Hitchins, 547, 567. Swan, The, 98. Swan V. Williams, 40. Swansborough v. Coventry, 354. Swanton v. Crooker, 194. Swartz V. Swartz, 306, 322. Swasey v. Brooks, 305, 458. Swearingen v. The Lynx, 76. Sweeney v. Old Colony Railroad Co., 113, 114. Sweet V. Buffalo Railway Co., 118. V. Troy, 143. Swenson v. Lexington, 270, 272. Swett V. Cutts, 41, 263, 265, 279, 280, 281, 296. Swineford v. Franklin Co., 115, 363. Sword V. Allen, 511, 520. Swords 0. Edgar, 113, 119, 175. Swindon Water Co. v. Wilts Canal, 205, 223, 245. Swift V. Gifford, 1. Swisher v. Grumbles, 194. Switzer v. McCullough, 534. Symonds v. Cincinnati, 133, 244. Taber v. Jenny, 1. Tabor v. Bradley, 305. V. Commissioner, 166. Talbot V. Commanders, The, 66. V. Grace, 99, 105. (,;. Hudson, 241, 242, 253. i: Lewis, 6, 102. V. Richmond Railroad Co., 157. V. Whipple, 210. Talbot County v. Queen Anne's County, 132. Tamor Navigaton Co. v. Wagstaff, 144. Tanner v. Volentine, 292, 300, 321. Tappan v. Burnham, 37, 169, 199. Tardos v. Jefferson, 247. Target v. Lloyd, 447. Tarrar v. Nunamaker, 128. Tarry v. Ashton, 113. Tarter v. Spring Creek Co., 233. Tate V. Parrish, 219, 364, 368. Tatum V. Sawyer, 3(3, 60. Taunton v. Caswell, 188. Taylor v. Atlantic Ins. Co., 98, 118, 175, 431. V. Beebe, 120, 175. V. Bennett, 374. o. Dustin, 211. V. Fickas, 41, 192, 204, 275, 280. V. Hampton, 349, 351. V. Monroe, 122. V. Newbern, 117. V. New York, 113, 116. V. Porter, 241. V. St. Helens Co., 41, 304 a. V. Stendall, 294. ,.. Underbill, 36, 156, 174, 280. V. Waters, 322. V. Whitehead, 366. V Wilmington Railroad Co., 193. Teakle v. Nace, 351. Tebbutt V. Selby, 481. Templeton v. Coburn, 140. 0. Voshloe, 268. Tenant v. Goldwin, 219, 294, 354. Ten Eyck v. Delaware Canal Co., 103, 136, 143, 160, 210, 243. V. Runk, 400. Tenham v. Herbert, 568. Tenney v. Miners' Ditch Co., 232, 298. Terro Haute Bridge Co. u. Halliday, 132, 133, 134. Ixxvi TABLE OP CASES. Terre Haute Railroad Co. v. McKinley, 250, 589. Territory v. Lee, 40, 240. Terry v. New York, 262. Tescheniacher v. Thompson, 4, 27, 30, 39, 174. Tewksbury v. Schulenberg, 112, 132, 133, 143. Texas NaTigation Co. v. Galveston Co., 103. Texas Railway Co. v. Sutor, 256. Thacher v. Cobb, 37. c. Dartmouth Bridge Co., 136, 143, 250. Thames Bank v. Lovell, 130, 143. Thayer v. Boston, 122. ... Brooks, 213, 412, 414, 437, 439. u. New Bedford Railroad Co., 122, 132,135,248 a. V. Payne, 360, 362. V. Wheelock, 460. Thien v. Voegtlander, 136, 253, 599. Thomas ;;. Birmingham Canal Co., 211c. V. Brackney, 214, 220, 375. V. Calhoun, 212. ,.. Godfrey, 197, 201. V. Hatch, 195, 196, 197. V. Hill, 583. V. Kenyon, 268. u. Lane, 66. V. Marshfield, 37. V. Sorrell, 609. V. Thomas, 293, 318, 314, 491. i;. Woodman, 349. Thomas A. Scott, The, 96. Thomas Jefferson, The, 66. Thomaston v. St. George, 202. Thompson v. Allen, 363. u. Androscoggin Co., 21, 54, 56, 90, 102, 105, 110, 112, 136, 143, 243, 248, 308, 333. V. Banks, 308. V. Crocker, 213, 214, 218, 429. u. Gregory, 310, 311, 321. V. Hoskins, 382. V. Lee, 235. u. Mayor, 113. V. McElarney, 324. V. Milwaukee Railway Co., 494. V. Miner, 355. V. Moore, 374, 589. I,. New York, 120, 175. Thompson v. New York Railroad Co., 145. V. North Eastern Railway Co., 113, 114, 115. u. Proprietors, 105. ^. Shattuck, 302, 447, 450. u. Whitman, 38. V. Woods Co., 241. Thomson v. Waterlow, 355. Thorn v. Sweeney, 241. Thornley, The, 89. Thornton v. Foss, 37, 162, 169. V. Grant, 93, 95, 121, 154, 162, 164, 165, 171, 172, 509, 547. V. Turner, 603, 620. u. Webb, 620. Thorp V. Freed, 240. V. Woolman, 229. Thunder Bay Booming Co. u. Speechly, 75, 103, 108, 109, 110, 111, 263. Thurber v. Martin, 208, 214, 227, 334. Thurman v. Morrison, 62, 179. Thurston v. St. Joseph, 261. Tibbets, ex parte, 57. Tickle V. Brown, 339. Tide Water Canal Co. o. Archer, 241. Tide Water Co. v. Coster, 241, 247. Tifft V. Jones, 115. Tillotson V. Smith, 204, 208, 210, 214, 218, 405, 497. Tilton, The, 6. Timm v. Bear, 206, 208, 218, 227. Tinder v. Duck Pond Co., 241. Tinicum Fishing Co. v. Carter, 24, 32, 44, 64, 65, 99, 100, 173, 182, 184, 189, 249, 329. Tinkham v. Arnold, 227, 322, 353, 602. Tinsman v. Belvidere Delaware Rail- road Co., 127, 143, 151, 160, 331, 376, 380, 479. Tipping V. Eckersley, 219, 300, 519, 534, 538, 544. V. St. Helen's Smelting Co., 222. Tippits V. Walker, 144. Titan, The, 96. Titcomb v. Kirk, 240. Tobin V. Portland Railroad Co., 113. Todd V. Austin, 253, 431, 599, 606. o. Cochell, 232, 298. o. Dunlap, 155. V. Flight, 118, 388. Toledo Railroad Co. i-. Hunter, 266, 273, 388. TABLE OF CASES. Ixxvii Toledo Railroad Co. v. Morrison, 273. Toll Bridge Co. w. Osborn, 145. Tolle V. Correth, 205, 217. Tome V. Dubois, 192. V. Four Cribs of Lumber, 192. Tomlin v. Dubuque Railroad Co., 72, 151. V. Fuller, 300, 392, 394. Tomlinson v. Derby, 122. u. Ousatonic Water Co., 463. Toney v. Johnson, 580. Toombs V. Hornbuckle, 2-36. Toothacker v. Winslow, 111, 222. Tootle V. Clifton, 266, 276, 329, 405. Topsell V. Ferrers, 141. Topsham v. Lisbon, 248 a. Tourne v. Lee, 117. Tourtellot r. Phelps, 204, 207, 318, 320, 354, 399, 497. Tower v. Boston, 582. Towle V. Palmer, 175. V. Remsen, 32, 175. V. Smith, 175. Town V. Faulkner, 599, 605. Townsend, Matter of, 242, 250. Townsend v. Brown, 171. I,. Downer, 341. ^. McDonald, 204, 209, 225, 329, 348, 351. u. Susquehanna Turnpike Co., 114. Towson V. Debow, 622. Trabue v. Macklin, 610, 611. Tracy v. Atherton, 330, 331, 332, 339. V. Nonvich Railroad Co., 37, 42, 155, 166. Trammell v. Trammell, 321.- Transportation Co. v. Chicago, 116, 123,248 a. V. Wheeling, 35. Trask v. Ford, 333, 334. I,. Patterson, 362. Traster v. Snelson, 458. Traveller, The, 35. Treat v. Bates, 121, 210, 274. V. Chipman, 37, 162, 164. V. Lord, 35, 36, 99, 102, 108, 109, 111, 121, 132, 584. V. Strickland, 169. Trematon Case, 10. Trent v. Cartersville Bridge Co., 145, 193. Trenton Banking Co. v. McKelway, 530. Trenton Water Power Co., re, 255. Trenton Water Power v. Chambers, 530. 0. Raff, 132, 136, 243, 257, 588. Trim V. Vallejo St. Wharf Co., 113. Trimble v. Gilbert, 211. Trinity House ;■. Clark, 141. V. Sorsbie, 141. c: Staples, 141. Tripp V. Spring, 40. Trotter v. Harris, 329. Trout V. McDonald, 280, 295. Trower v. Chadwick, 294. Troy V. Cheshire Railroad Co., 416, 582. I'. Coleman, 207. V. Norment, 507, 524. Trull V. Wheeler, 195. Trustees v. Dennett, 82, 251. V. Strong, 182, 183. V. Tatman, 193. V. Wagnon, 62, 194. Tuckahoe Canal Co. o. James River Railroad Co., 145. V. Tuckahoe Railroad, 255. Tucker v. Burlington Co., 132, 139, 140. V. Campbell, 595. V. Jewett, 227, 313. u. Newman, 376, 378. Tuckerman v. Newman, 291, 373.. Tudor V. Cambridge Water Works, 84, 191. Tufts V. Charlestown, 37, 164. Tuolumne County Co. v. Columbia Water Co., 232, 236, 236, 298. Tuolumne Water Co. v. Chapman, 506, 512, 534. Turget V. Lloyd, 302. TurnbuU v. Rivers, 104. Turner v. Blodgett, 122, 136. V. Cape Fear Navigation Co., 326. V. Dartmouth, 269, 272. V. Holleran, 620. V. Holtzman, 128. f. Mirfield, 288. V. Strange, 469. !'. Tuolumne Water Co., 232. v. Whitehouse, 595, 597. Turnpike Co. v. Brown, 147. c. Campbell, 135, 142. V. Illinois, 142, V. State, 146. Ixxviii TABLE or CASES. Turnpike Co. v. Van Dusen, 147. Turpin v. Eagle Creek Co., 69. TuthiU V. Scott, 209, 364, 405. Twee Gebroeders, The, 4, 8, 11, 12. Twiss V. Baldwin, 206, 218, 477. Twist V. Union Canal Co., 322. Twitchell v. Blodgett, 242. Twogood V. Hoyt, 76. Tyler v. Beecher, 253, 254, 598, 607. V. Hammond, 31, 203, 314, 348. V. Mather, 335, 407, 493, 497, 498, 499, 503, 599. V. People, 9, 13. V. Wilkinson, 56, 196, 204, 206, 214, 227, 330, 331, 332, 335, 534. Tyrrell v. Lockhart, 53, 126, 183. Tye V. Catching, 227. Tyson v. Commissioners, 248. tr. TJdall V. Brooklyn, 175. TTeberoth v. Lehigh Coal Co., 249. TJlrieh V. Hull, 555, 571. Underhill v. Saratoga Kailroad Co., 464. "Underwood v. North Wayne Scythe Co., 353, 579, 602. V. Waldron, 292, 293. Union v. Durkes, 272. lUnion Canal Co. v. Landis, 65, 132. o. Stump, 243. (Union Mill Co. v. Dangberg, 205, 206, 214, 217. „. Ferris, 40, 204, 205, 207, 208, 217, 229, 230, 240, 334. Union Pacific Railroad Co. u. Hall, 137, 176. Union Petroleum Co. v. Bliven Petro- leum Co., 291. Union Springs v. Jones, 300. Union Steamship Co. o. New York Steamship Co., 96. V. Nottinghams, 96. Union Trust Co. v. Kuppy, 256. United States v. Ames, 265, 593. u. Appleton, 306, 354, 356. V. Bain, 35, 154, 178. V. Beef Slough Manuf. Co., 129. V. Bennett, 1. V. Bevans, 5, 13, 33. United States v. Castillero, 168. V. Cook, 30. V. Coombs, 33, 34. V. Davis, 4, 9. u. Duluth, 34, 129, 1.34, 507, 524, 526. V. 43 Gallons of Whiskey, 30. V. Gratiot, 40. V. Grush, 4, 5. V. Hamilton, 4. V. Holliday, 34. V. Jackson, 35. . V. Kessler, 4, 9, 11. V. Milwaukee Railroad Co., 134. V. Mississippi River Boom Co., 129. V. Morrison, 35. V. New Bedford Bridge, 5, 27, 35, 43, 126, 130, 132, 135, 139. V. Oslo, 166. V. Pacheco, 27. V. Percheman, 30. o. Peters, 21. V. Pirates, 4. V. Railroad Bridge Co., 34, 35, 121, 132, 134. u. Robinson, 4, 5. (,. Ross, 5. V. Ruggles, 136. V. Rum River Boom Co., 129. V. St. Louis, 96. V. Seagrist, 4. , V. Smiley, 1, 9. V. Smith, 4. V. The William Pope, 35. V. Vigil, 40. V. Wilson, 4, 67. V. Wiltberger, 4, 5, 66. Universities v. Richardson, 534. Updike V. Wright, 247. Upjohn V. Richland Township, 288. Upton !>. Dawkin, 183. Ure V. Coffman, 67, 96. Vail V. Mix, 329, 541. Valentine k. Central Railroad Co.. 257. V. Piper, 37, 162, 164, 169, 195. Vallego V. Wheeler, 141. Van Auken v. Decker, 185. TABLE OF CASES. Ixxix Van Bergen v. Van Bergen, 507, 534, 537, 552, 555. Vanblaricum v. State, 251. Van Brunt v. Ahearn, 368, 555. VaneouTer, The, 88. Vanderbilt, ex parte, 175. Vanderbilt v. Adams, 35. V. New York, 175. Van Der Brooks v. Currier, 93, 154. Vanderburgh v. Vanbergen, 215, 300. Vanderplank v. Miller, 96. Vanderwater v. NewYork, 113, 175. Vanderwere v. Delaware C^anal Co., 210. Vanderwiele v. Taylor, 268. Vandusen v. Comstoek, 699, 600. Van Gordon v. Jackson, 194. Van Hoesen v. Coventry, 213, 214. Van Hoozier v. Hannibal Kailroad Co., 210. Van Horn v. Richardson, 305. Van Home v. Dorrance, 21, 244. Van Maren v. Johnson, 30. Van Ohlen v. Van Ohlen, 323. Van Orsdol v. E. R. Co., 256, 416. Van Pelt v. Davenport, 211 a, 262. Van Rensselaer v. Read, 302. Van Schoiek v. Delaware & Raritan Canal Co., 416. Van Sickle v. Haynes, 36, 40, 204, 206, 214, 230, 240. Van Wagener v. Newark Plank Road Co., 134, 135. Vanwinkle v. Curtis, 509, 513, 517. Van Zandt v. New York, 120, 176. Varick v. Smith, 55, 57, 108, 196, 200, 241, 242, 534, 535. Varney v. Pope, 507, 513. Vasser v. George, 138. Vaugh V. Wetherell, 595. Vaughn v. Williams, 133. Veazie v. Dwinell, 56, 92, 95, 108, 110, 121, 126, 128, 132, 220, 365, 579, 583, 584. V. Moor, 34; 35, 129. Vedder v. Vedder, 381, 421, 422. Veeder v. Guppy, 30. Veghte V. Raritan Water Power Co., 348,351. Venard v. Cross, 123, 253, 255, 584, 620. Vennall v. Garner, 96. Vermont Central Railroad Co. v. Hills, 304. Verplanck v. New York, 175. Verplank v. Hall, 82 a, 194. Viall V. Carpenter, 306, 314. Vianna, The, 96. Vickerie v. Buswell, 310, 312,344,599. Vicksburg v. Tobin, 142. Victoria, The, 96. Vigilantia, The, 11. Vincennes v. Richards, 261. Vinkersterne v. Ebden, 141, 147. Vinton v. Welsh, 187, 188. Vliet V. Sherwood, 218, 334. Volk V. Eldred, 111, 135. Volusia, The, 120. Vooght V. Winch, 21, 43, 121, 504, , 532. Vose V. Coekcroft, 67. Voter V. Hobbs, 599. Vowles V. Miller, 477. W. Wabash v. Erie Canal Co., 241, 243, 252, 588. Waddell's Appeal, 241. Waddell v. New York, 143. Waddingham v. St. Louis, 117, 119. Waddy v. Johnson, 579, 587, 621. V. Newton, 185, 471. Wade V. Howard, 310. V. Riclimond, 13. Wadsworth v. Smith, 46, 54, 56, 108, 111, 114, 142, 263. u. Tillotson, 204, 205, 213, 214, 217, 410. Waffle V. Barber, 274. u. New York Railroad Co., 271, 274. Waggoner v. Jermaine, 368, 390. Wagner v. Long Island Railroad, 263, 273. Wahle V. Reinbach, 288. Wainwright v. McCullough, 36, 45, 65. Wakefield v. Newell, 269. Wakely v. Davidson, 539. Wakeman v. West, 501. Wales V. Stetson, 128, 139. Walker v. Armstrong, 103. V. Board of Public Works, 70, 93 a, 111,143,166,243. V. Boston & Maine Railroad Co., 162, 164, 195. Ixxx TABLE OF CASESi Walker v, Boynton, 194. a. Butz, 415. V. Columbus, 105. ,>. Cronin, 290. <). Goe, 115. V. Jackson, 142, 193. V. Marks, 27, 28. V. Old Colony Railroad Co., 273. V. Orr, 194. V. Oxford Woollen Manuf. Co., 539, 579, 580, 595, 597. V. Shepardson, 75, 121, 123, 127, 134, 136, 138, 140, 169, 179, 197, 243. V. Stewart, 317. V. Wilson, 458. Wall V. Cloud, 299, 305. V. Nixon, 500. Wallace v. Fletcher, 329, 330, 331. u. Headley, 211 c. ,,. New York, 113. V. Sheldon, 247. V. State, 92. V. Trustees, 13. Waller v. McConnell, 110, 112, 598. Wallis V. Harrison, 351. Walsh V. Mead, 113, 293, 390. V. New York Dry Dock Co., 175. V. Rogers, 67. Walter v. County Commissioners, 122. Walters v. Houck, 610. V. The MoUie Dozier, 67. Waltham v. Kemper, 116. Walton V. Dickerson, 504. V. Mills, 612. V. Tifft, 57, 166, 196. Ward V. Creswell, 189. V. Higgs, 554. V. Lee, 115. V. Mulford, 27, 30, 39. V. Robins, 335, 491. f. Severance, 145. , . Ward, 210, 348. V. Willis, .32, 60. Wardens, Board of, v. Philadelphia, 185. Wardle v. Brocklehurst, 354, 360. Ware v. Regent's Canal Co., 527. Waring v. Clarke, 33, 66. Warne v. Morris Canal Co., 511. Warner v. Bacon, 415. .,. Southworth, 56, 196. Warren v. Blake, 358, 360. Warren v. Chambers, 76, 155. V. Hunter, 345. V. Jacksonville, 105. V. McDiarmid, 147. V. Matthews, 4, 21, 48, 50, 186, 189. V. Prideaux, 91, 141. V. Syme, 351. a. Webb, 426, 427. Warrick v. Queen's College, 184. Warrington v. Morley, 120. Washabaugh v. Oyster, 320. Washburn v. Oilman, 92, 220, 298, 375. Washburn & Moen Co. v. Worcester, 92', 261. Washhofe V. Dracourt, 311. Washington Bridge Co. u. State, 130, 136. Washington Ice Co. v. Shortall, 191, 371. Wasliington Toll Bridge v. Beaufort, 145. Wasmer v. Delaware Railroad Co., 394. Wason V. Sanborn, 521, 525. Water Commissioners, re, 132, 252, 341. Watercourses, Case of the, 349. Waterford & Whitehall Turnpike i. People, 121, 582. Waterloo Bridge Co. v. Cull, 14. Waterloo Turnpike Road Co. <-. Cole, 147. Waterman v. Connecticut Railroad Co., 273, 589. V. Johnson, 27, 56, 7,9, 196, 198, 203, 318. Waterpark v. Fennell, 23. Waters v. Lilley, 24, 42, 85, 182, 184, 187, 188, 499. V. Ross, 30. I'. Travis, 574. Watertown v. Cowen, 21, 121. V. Draper, 187, 189. o. White, 185, 188. Waterworks Co. „. Burkhart, 241, 242. Watkins v. Holman, 37. <'. Milton, 91. u. Peck, 322, 329, 331, 339, 340. Watrous v. Watrous, 300. Watson V. Marshall, 161. v. Peters, 75, 77, 157, 166, 196. r. Van Meter, 212, 214, 587, 617. Watts V. Kelson, 320, 357. !;. Kinney, 319, 436. Waugh V. Leech, 105, TABLE OF CASES. Ixxxi Wii^land V. County Commissioners, 245. V. Middlesex, 241. V. St. Louis Railway Co., 394. Weakly v. Legrand, 197. "Weatherby v. Micklejohn, 143, 225. Weathersfleld v. Humphrey, 43, 139. Wearer v. Conger, 236. u. Eureka Lake Co., 231, 285, 236. V. Mississippi Boom Co., 243. Webb V. Bird, 55, 334. V. Dunn, 35. V. Portland Manuf. Co., 207, 210, 213, 214, 215, 405, 407, 497, 513, 534. V. Russell, 302. Weber v. Harbor Commissioners, 39, 40, 138, 149. Webster v. Fleming, 209, 213. V. Holland, 595, 596. V. Potter, 305. Wedderburn v. Paterson, 158. Weekly v. Wildman, 24. Weeks v. Heward, 544. Weimer v. Lowery, 233. Weis V. Madison, 248 a, 261, 271. Weise v. Smith, 54, 76, 95, 99, 108. Weitner ;;. Delaware Canal Co., 114. Welby V. Rutland, 506. Weld u. Androscoggin Side Booms, 144. V. Hornby, 21, 23, 91, 121, 187, 532. Weller v. Smeaton, 323, 506, 527, 534. V. Siioyer, 181. Wellington, Petitioner, 139. Wellington v. Murdock, 194. Wells V. Bridgeport Hydraulic Co., 245. V. Day, 326. V. Kingston-upon-Hull, 116. u. Ody, 372, 428. Welton V. Martin, 121, 122, 214, 508, 521. Wendell v. Baxter, 113, 114. u. Pratt, 389. Wentworth v. Poor, 227, 583. u. Sandford Manuf. Co., 343, 602. Wertz V. State, 435. Wesson v. Washburn Iron Co., 122, 123. West V. Louisville Railroad Co., 256. V, Walker, 511, West Boston Bridge v. Middlesex, 255. West Branch Canal Co. v. Elmira Rail- road Co., 36. V. MuUiner, 250, 257, 288, 289. Westbury v. Pond, 402. V. Powel, 214. West Cumberland Iron Co. v. Kenyon, 281, 295. Western Union Telegraph Co. v. At- lantic Telegraph Co., 132. Westfall V. Van Anker, 99, 100. West Maryland Railroad Co. u. Pat- terson, 146. Westminster Brymbo Coal Co. v. Clay- ton, 294, 552. Weston V. Alden, 205. ■ V. Sampson, 4, 9, 18, 20, 21, 32, 37, 169, 188, 189. West Roxbury v. Stoddard, 37, 84, 86, 109, 111, 148, 182, 191, 198, 203. West Virginia Transportation Co. v. Volcanic Oil Co., 241. Wetmore v. Atlantic White Lead Co., 104, 138, 151, 175. V. Brooklyn Gaslight Co., 120, 138, 175. V. Law, 196. I/. Robinson, 330. u. Tracy, 121, 128. v. White, 307, 323. Weyman v. Jefferson, 272. Whaler v. Ahl, 210, 218, 227. Whaley v. Lang, 224. Whalley v. Thompson, 355. Wharf Case, The, 119, 120, 176, 181, 212. Wheatley v. Baugh, 204, 280, 285, 290, 295. V. Chrisman, 204, 208, 347, 375, 408, 415. Wheeldon v. Burrows, 354, 357, 358. Wheeler v. Brown, 310. V. Essex Public Road, 117, 248. V. Schad, 302. u. Spinola, 27, 121, 195, 198, 203. u. State, 551. V. Steele, 517. i>. Stone, 37, 162, 164, 195. u. Worcester, 41, 222, 260, 262, 274, 398. Ixxxii TABLE OP CASES. Wheelock v. Thayer, 302, 448. Whetmore, The A. R., 96. Whetstone v. Bowser, 281, 285. WMppIe V. Cumberland Manuf. Co., 214, 227, 405. Whistler v. Wilkinson, 108, 110. Whitaker v. Delaware Canal Co., 135. V. Wise, 18. Whittaker v. Burhaus, 99, 100. Whitchurch v. Hide, 507, 548. White V. Bass, 358. V. Bliss, 599. V. Chapin, 271, 279, 328, 329, 338, 340, 341, 364, 365, 367. V. Crawford, 351. V. Crisp, 98. V. riannigan, 123. V. Forbes, 507, 584. V. France, 113. V. Hardin, 325. V. King, 134. V. Leeson, 306. V. Loring, 341. V. Luning, 195. t. Moseley, 210, 2116, 421, 424. V. Phillips, 113, 114. V. South Shore Railroad Co'., 257. V. Todd's Water Co., 236. ■«. Whittier, 104. V. Winnisimmet Co., 193. White's Bank v. Nichols, 348. White Deer Creek Co. u. Sassaman, 111, 148. Whitehall Transportation Co. v. New Jersey Steamboat Co., 96. Whitehead ;;. Garvis, 878. V. Parks, 281, 286, 300. Whiteliouse v. Birmingham Canal Co., 25C. V. Fellows, 115, 295, 412, 420. White River Booming Co. v. Nelson, 90. White River Co. v. Vermont Central Railroad Co., 145. Whiteside v. Singleton, 294. Whitfield V. Rogers, 520. Whitman v. Boston & Maine Railroad, 194, 252, 255. Whitmarsh v. Walker, 322. Whitmore v. Bischoff, 412. V. Bowman, 193. Whitney v. Allaire, 325. I/. Eames, 204, 227. Whitney v. New York, 12D. V. Olney, 805, 306. i: Sanders, 268, 373. V. Sauche, 112. Whiton V. Albany Ins. Co., 1. Whitstable Free Fishers v. Gann, 4, 9, 18, 20, 21, 26, 141, 189. Whittier v. Cocheco Manuf. Co., 844. Whitwell V. Wells, 197. Whitworth v. Puckett, 609. Wickersham v. Bills, 305. Wickham v. Walker, 184. Wicks V. Hunt, 513, 516, 518, 527, 530, 554. Wier V. Covell, 484. Wigford V. Gill, 365. Wiggins I'. Boddington, 115, 125, 126, 134. V. Tallmadge, 105. Wiggins Ferry Co. v. East St. Louis, 35, 1.33. Wight V. Packer, 586, 590. Wilbur V. Brown, 447, 478. Wilcox V. Wheeler, 428, 525, 535. AVilcoxon v. McGee, 227, 305. Wilder v. Clough, 885. V. De Cou, 123. V. Strickland, 509, 541. Wilkes «. Hungerford Market Co, 123, 124, 126. V. ICirby, 141. Wilkins r. Irvhie, 300, 578. V. Lamb, 28, 210. V. McClue, 245. Wilkinson v. Applegate, 210. V. Mayo, 609. V. Proud, 829. Wilklow V. Lane, 342. Willamett Falls Co. v. Kelly, 259. Willard v. Cambridge, 122. t/. Forsythe, 193. r. Magoon, 165. Williams v. Baker, 156, 176, 304a. V. Beardsley, 132, 13.^ c: Blackwell, 128. i>. Buchanan, 196. V. Cammack, 188. V, Canaday, 625. u. Cummington, 121. V. Davidson, 118, 193. V. Elting Woollen Co., 583. V. Fink, 128. i: Gale, 274. TABLE OF CASES. Ixxxiii Williams v. Glover, 74. V. Ingloes, 138. V. Jaclison, 194. u. The Jenny Lind, 67. V. Jersey, 323, 630. V. Kivett, 195. V. Morland, 204, 227, 402. V. Nelson, 227, 253, 335, 351, 353, 602, 603. V. New York Central Railroad Co., 136, 212. a. Pomeroy Coal Co., 281, 421. V. Smith, 123. V. Tripp, 123, 126. o. Turner, 193. V. Wilcox, 4, 20, 21, 52, 53, 54, 55, 86, 91, 92, 98, 99, 140. Williamson v. Carlton, 595. V. Lock's Creek Qanal Co., 204, 210, 213, 265. V. Tingling, 222. Willing V. Bozman, 189. Willingale v. Maitland, 24, 184. Willis V. Sproule, 128. Willoughby v. Horridge, 193. V. Shipman, 611. Willyard v. Hamilton, 241. Wilmarth v. Knight, 599. Wilson, The, 34. Wilson V. Blackbird Creek Co., 33, 34, 35, 130, 131, 132, 134. V. Cochran, 460. V. Forbes, 60, 182. V. Hamilton, 193. V. Ingloes, 176. V. McNamee, 1. V. McNeal, 462. V. Mills, 35. V. Myers, 579, 603, 621. o. New Bedford, 209, 280, 288, 296. V. Newberry, 96. V. New York, 261, 270. V. Eobertson, 141. V. Smith, 111. V. Sulkin, 193. V. Susquehanna Turnpike Co., 114. V. Vaughn, 349. V. Waddell, 267, 289, 295. V. Wentworth, 192. V. Willes, 24. V. Wilson, 334, 341, 373. Wilts Canal v. Swindon Water Co., 205, 214, 245, 513, 519, 534. Winch V. Conservators of the Eiver Thames, 101, 115. Winchester v. Osborne, 220, 345. Winder v. Blake, 85. Windham t'. Portland, 13. , Winham v. McGuire, 323. Wing V. Pairhaven, 509, 561. Wingard v. Tift, 323. Wingate v. Waite, 161. Winkler v. Meister, 371. Winkley v. Salisbury Manuf . Co., 319, 584, 590, 599. Winn V. Rutland, 243, 261, 272, 278. Winne v. Kelley, 211 6, 327. Winnipiseogee Lake Co. a. Perley, 568, 570, 575. V. Worster, 611. V. Young, 330, 335, 344, 477, 521, 550, 599. Winnisimmet Co. i/. Wyman, 162, 164. Winon v. Rutland, 261. Winpenny ik Philadelphia, 98, 116, 117, 138. Winship v. Hudspeth,, 334,, 335. Winslow v. Puhrman, 226. a. Patten, 169. V. Walker, 192. Winsmore v. Greenbank, 392. Winston v. Gwathmey, 325, 326. Winter v. Brockwell, 322. c. City, 167. o. Winter, 338. Winterbottora v. Derby, 125, 126. Winthrop v. Curtis, 194. V. Fairbanks, 310. I Wisconsin v. Doty, 40. V. Duluth, 34, 129, 132, 134. V. Eau Claire, 132, 136, 143. Wisconsin Railroad Co. u. Manson, 103. Wisconsin River Improvement Co. v. Lyons, 75, 108, 126, 133, 134, 140, 179. V. Manson, 35, 132, 133. Wiseman v. Lucksinger, 300, 323, 338. Wishart v. Wyllie, 46, 160, 196. Wiswall V. Hall, 27, 120, 304 a. Witherly v. Regent's Canal Co., 115. Withers v. Buckley, 32, 34, 36, 39, 132, 143. V. North Kent Railroad Co., 98. Witt V. Jefcoat, 69, 110, 147. Wixon V. B. & A. Water Co., 233, 543. Ixxxiv TABLE OF CASES. "Wolcott Manuf. Co. (,. Upham, 579, 580, 594. Wolf V. Coffy, 585. V. St. Louis Water Co., 232, 298, 364. Wolverton v. Lacey, 67. Wonson v. Sayward, 192. a. Wonson, 27, 162, 163, 164, 169. Wood's Case, 31. Wood ;;. Appal, 65, 76, 162, 197, 198. V. Boughan, 609. u. Chicago Railway Co., 471. V. Commissioners of Bridges, 195. V. Edes, 217, 218, 300. u. Fowler, 76, 112, 191. ■u. Hustis, 75, 110, 579, 591. V. Jackson, 504. V. Kelley, 189, 196, 203, 335, 344, 603. V. M. K. & F. R. Co., 30. 0. Rice, 108, 483. u. Richardson, 239. V. San Francisco, 157. V. Sawin, 305. V. Sutcliffe, 219, 223, 508, 509, 510, 525, 528, 530, 544. u. State, 435. o. Truckee Turnpike Co., 142. V. Veal, 331. V. Waud; 41, 204, 205, 213, 219, 225, 265, 279, 288, 340, 345, 352, 375, 403. ». Wilson, 616. Woodbury ;;. Parshley, 324. V. Short, 159. V. Willis, 376, 379, 480. Woodcock V. Estey, 286, 304 a, 318. Woodman v. Kilbourn Manuf. Co., 68, 132, 133, 134, 136. V. Spencer, 46. V. Tufts, 214, 383, 385, 388, 389, 392, 393, 405. Woodring v. Fords Township, 260. Woodrufe r. Fisher, 212, 545. 0. Lockerby, 524. V. Neal, 260. ,1. North Bloomfield Gravel Min- ing Co., 540, 544, 566. V. Trenton Water Power Co., 302, 574. Woods V. Henry, 13. V. Nashua Manuf. Co., 143, 250, 416, 579. Woodward v. Aborn, 219, 375. ,;. Carl, 192. ... Fox, 17, 192. V. Seely, 321. 0. Worcester, 219. Woodyear v. Sehaefer, 219, 222, 544, 565. Wooley V. Campbell, 188, 189. Woolever v. Stewart, 187, 188. Wooliscroft V. Norton, 302. Woolman v. Garringer, 236, 237, 239, ' 543. Wooster v. Great Falls Manuf. Co., 253, 438, 579, 593. Wootten V. Campbell, 609, 610. Worcester v. Georgia, 30. Worcester Railroad v. Railroad Com- missioners, 255. Workman v. Curran, 329, 332. V. Great Northern Railway Co., 259. V. Worcester, 261. Works V. Junction Railroad Co., 34, 95, 121, 132, 134. Wormersley v. Church, 288, 319, 542. Worsley v. 2d Municipality, 35. Worster r. Winnipiseogee Lake Co., 428, 430. Worthington v. Gimson, 314, 355, 357. Wright V. Brown, 89. V. Chicago, 118. V. Cooper, 222. V. Day, 75, 76, 85. V. Freeman, 314, 348. V. Gully, 326. u. Howard, 196, 204, 214, 227, 330, 375, 402. i;. Moore, 212, 215, 329, 365, 508, 510, 532, 533, 534. u. Pugh, 585, 610, 616. V. Shorter, 145. V. Stowe, 605, 621. V. Thomas, 138. V. Williams, 219, 345, 491. Wroe V. Harris, 61, 609. V. State, 122. Wyatt V. Thompson, 95, 99, 120, 124. Wyckofl V. Queen's County Ferry Co., 193. Wyman v. Farrar, 306, 311. Wynkoop v. Burger, 318. Wynn v. Garland, 323. Wyoming Coal Co. v. Price, 241, 255. TABLE OF CASES. Ixxxv Tadkin Navigation Co. u. Benton, 104, 140. Yale V. Brace, 340. V. Hampden Turnpike Co., 116. Yankee Jim's Water Co. v. Crary, 238. Yard v. Carman, 183, 189. •i. Pord, 193, 331. Yarmouth v. Eaton, 4, 120, 141. V. Skillings, 187. Yates V. Judd, 54, 75, 105, 111, 134, 138, 140, 148. i). Milwaukee, 32, 76, 78, 122, 124, 128, 138, 149, 151, 179, 243,246. V. Van Be Bogert, 200. Yeatman v. Crandall, 247. V. New Orleans, 157. Yeaw V. Holland, 91. Yellow Kirer Improvement Co. «. Ar- nold, 145. Yoder v. Swope, 197. Yolo Co. V. Sacramento, 92, 121, 123, 124. York II. Pilkington, 563, 564, 565. York Railway Co. v. Keg. 115. Young V. , 99. V. Chicago Railway Co., 256. V. Frost, 176. u. Harrison, 55, 58, 142, 144, 259. V. Hitchens, 1. V. Leedom, 268, 298. V. Price, 609. Youngman v. Elmira Railroad Co., 144. Yunker v. Nichols, 234. Zeidler v. Johnson, 598. Zenor v. Concordia, 247. Zetland v. Glover Incorporation of Perth, 158. Zimmerman v. Union Canal Co., 65, 143, 249. Zoebisch v. Tarbell, 113. Zug V. Commonwealth, 65, 173. Zweig V. Horicon Iron Co., 586. THE LAW OF WATERS. THE LAW OF WATERS. Paet I. PUBLIC WATEES. CHAPTER I. OF PEOPEETY IN TIDE WATERS AT COMMON LAW. SECTION. 1. Property in the open sea. 2, 3. Eights in territorial waters. 4, 5. The Crown's property in tide waters within the realm. 6. What this includes. 7-9. The seaward limit of national property and jurisdiction. 10. Eight to minerals beneath the sea and seashore. 11, 12: Eegina v. Keyn. Vi, 14. The authority of this decision. . 15, 10. Eifect of legislation respecting territorial waters. 17, 18. The nature of the Crown's title. The jus ^u6Kc«ni and the-_/«s-pn't!a*M7«'. 19. Foundation of the doctrine of a jus privatum. 20. What are included within the public rights of navigation and fishery. 21. Purprestures and nuisances. 22, 23. Prescriptive rights against the Crown. 24, 25. The rights of the public with respect to sand, gravel, and sea-weed, 20. Bathing. 27. Limits of the shore. 28. Words synonymous with "shore." 29. Meaning of these terms in legal instruments. 2 THE LAW OF WATERS. [PAJBT I. § 1, The sea is serviceable for important uses, especially for nayigation and fishery ; but it is incapable, from its nature, of permanent appropriation and continuous occupa- tion. It thus remains without an owner, as a barren and unappropriated waste. When articles of value are taken from the sea, they belong to the finder, inasmuch as there is no title which is superior to his possession. Between dif- ferent claimants what constitutes such possession may depend upon usage. In the whale fisheries, it is a valid usage that the boat first striking a whale shall be entitled to the fish.^ But, where no special custom of fishery was proved, it was Tield that the plaintiff, who while fishing had nearly encom- passed the fish with his net, could not recover from the defendant for rowing his boat to the opening, thereby dis- turbing the fish and preventing their capture.^ The tests for determining the ownership of such parts of the sea as can be appropriated, or of islands arising therefrom or newly discovered, are occupancy, discovery, or conquest.^ Those, for instance, who expend money in mining guano upon a newly discovered island and convey it to the shore, are lemtitled to protection in the enjoyment of the property thus laequired.* Ships upon the ocean continue subject to .the law of the flag, making those on board amenable to the ^laws of the nation to Ivhich the vessel is accredited.^ A ' ' Fennings v. Grenville, 1 Taunt. ' Lawrence's Wheat. Int. Law, pt. '241 ; Littledale v. Smith, Id. 243, note; IL e. 4, § 5; 2 Black. Com. 3, 8, 268, Aberdeen Arctic Co. v. Sutter, 4 Macq. 400 ; 3 Kent Com. 318 ; Grotiu8, Mare H. L. Cas. 355 ; Young v. Kitchens, 6 Lib. c. 5, 7 ; Fleta, lib. 3, c. 2, §§ 6, 9 ; Q. B. 606 ; Stevens v. Jeacocke, 11 Just. Inst. lib. 2, tit. 1, § 22 ; Schultes, Q. B. 741 ; Hogarth v. Jackson, M. & Aquatic Rights, 45. M. 58 ; Skinner <,. Chapman, Id. 59, * American Guano Co. v. United note ; Taber v. Jenny, 1 Sprague, 315 ; States Guano Co., 44 Barb. 23. See Bartlett u. Budd, 1 Lowell, 223 ; 11 U. S. Stats, at Large, 119 ; U. S. Bourne v. Ashley, 1 Lowell, 27 ; Swift Key. Stats. §§ 5570-5578 ; Benson v. V. Gifford, 2 Lowell, 110. Fish not Ketchum, 14 Md. 331 ; Whiton u. Al- reclaimed or confined are not the sub- bany Ins. Co., 109 Mass. 24. ject of larceny. Rex v. Carrodice, 2 ^ Crapo v. Kelly, 16 Wall. 610 ; 45 Euss. 1199 ; State v. Krider, 78 N. C. N. Y. 86 ; 41 Barb. 603 ; McDonald v. 481. A sale of fish afterwards to be Mallory, 77 N. Y. 547 ; In re Bye, 2 caught in the sea is invalid. Low v. Daly, 525 ; Lloyd v. Guibert, L. R. 1 Pew, 108 Mass. 347. Q. B. 115 ; Reg. v. Bjornsen, 10 Cox, ' Young V. Hitchens, 6 Q. B. 006. C. C. 74 ; Reg. v. Sattler, 7 Id. 431 ; CHAP. I.J OP PEOPERTY IN TIDE WATERS. 3 nation's jurisdiction extends to the punishment of its citizens for offences committed on deserted islands or an uninhabited coast ; ^ and the consensus of civilized nations may establish rules for navigators having the force of a law of the sea.^ But, with respect to property, the sea is not subject to the Dears. & B. C. C. 525 ; Reg. <7. Lesley, 8 Cox, C. C. 269; Bell, C. C. 220; Reg. u. Anderson, L. R. 1 C. C. 161 ; Lawrence's Wheat. Int. Law, pt. II. e. 2, § 4; Wildman's Int. Law, 40; Halleck's Int. Law, 185 ; Bluutschli, § 317 ; Parker v. Byrnes, 1 Lowell, 539 ; Johnson v. 21 Bales, 2 Paine, 601 ; United States v. Bennett, 3 Hughes, 400 ; Calahan v. Babcock, 21 Ohio St. 281. The State to which a vessel belongs, and not the United States, is, in this country, the sover- eignty whose laws accompany the ves- sel in respect to matters which are not granted exclusively to the general government or rightfully legislated upon by Congress. Crapo v. Kelly, supra ; Steamboat Co. v. Chase, 10 Wall. 522 ; 9 R. I. 419 ; Sherlock v. Allmg, 93 U. S. 99 ; McDonald v. Mal- lory, 77 N. Y. 546. ' United States v. Smiley, 6 Sawyer, 640. ^Ex parte McNeil, 13 Wall. 236; The Scotia, 14 Wall. 170, 187 ; The Continental, 14 Wall. 345 ; Wilson v. McNamee, 102 U. S. 572; Lord v. Steamship Co., 102 U. S. 541 ; 1 Kent Com. 27; Vattel, bk. 1, c. 19, § 216; 2 Rutherford's Inst. bk. 2, c. 9, §§ 8, 19. In The Scotia, 14 Wall. 187, Mr. Jus- tice Strong said : " Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of na- tions, it rests upon the common con- sent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has be- come the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which, when gen- erally accepted, became of universal obligation. The Rhodian law is sup- posed to have been the earliest system of marine rules. It was a code for Rhodians only, but it soon became of general authority, because accepted and assented to as a wise and desir- able system by other maritime nations. The same may be said of the Analplii- tan Table, of the ordinances of the Hanseatic League, and of parts of the marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. And it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and neces- sities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, ex- press or understood, of maritime na- tions ? When, therefore, we find such rules of navigation as are mentioned in the British orders in council of January 9, 1863, and in our Act of Congress of 1864, accepted as obliga- tory rules by more than thirty of the 4 THE LAW OF WATERS. [PAET I. exclusive dominion of any nation, and cannot be apportioned by municipal law.^ § 2. It is somewhat different with respect to those parts of the sea which adjoin the shores of civilized nations. By general consent they have been regarded as capable of appro- priation, and of being held by a kind of possession. Mari- time countries have claimed from the earliest times a more or less extended dominion over these waters, and subjected them to the laws and regulations of the state ; and upon grounds of self-protection and mutual advantage to all such countries, the dominion of the land has been acknowledged to carry with it the control of the contiguous seas,^ and the exclusive right to enjoy whatever of value may be acquired therefrom.^ The dominion over the territorial seas, as they are called, may, therefore, include rights of jurisdiction, or of property, or both. By the modern law of nations, the territorial waters extend only to such distance as is capable of command from the shore, or the presumed range of cannon, which, for the purpose of certainty, is regarded as one marine league.* principal commercial states of the fendorf, De Jure Naturae, lib. 4, c. world, including almost all which liave 2, § 8 ; Vattel, Droit des Gens, §§ 205, any shipping on the Atlintic Ocean, 288-295 ; Craig, Jus Feud. lib. 1, § we are constrained to regard them, as, 13, p. 140 ; Wolff, Jus Gentium, u. 1, in part at least, and so far as relates §§ 128-132 ; Hautefeuille, Hist, du to these vessels, the laws of the sea. Droit Maritime, p. 197 ; Ortolan, as having been the law at the time Diplomat de la Mer, lib. 1, pp. 174, when the collision of which the libel- 175, 177 ; lib. 2, c. 8, p. 157 ; Heffter, lants complain took place. This is Pub. Int. Law, §§ 72, 75; Halleck, not giving to the statutes of any na- Int. Law, e. 5, § 13 ; 1 Kent Com. tion extra-territorial effect. It is not (12th ed.), 27-30; Manning, Law of treating them as general maritime Nations (Ames's ed.), p. 119; Law- laws, but it is a recognition of the his- rence's Wheaton's Int. Law, pt. II. c. torical fact that, by common consent 4; 1 Phillimore's Int. Law (2d ed.), of mankind, these rules have been ac- 209, 218, 235. quieseed in as of general obligation. ^ Puffendorf, lib. 4, c. 5, § 7 ; Vat- Of that fact we think we may take tel, lib. 1, c. 23; Schultes, Aquatic judicial notice. Foreign municipal laws Eights, 1-5; Lawrence's Wheaton's must indeed be proved as facts, but it Int. Law, pt. II. c. 4, §§ 8, 10 ; 1 PhiiU- is not so with the law of nations." more's Int. Law (2d ed.), 200, 218, 2S5; ' Vattel, § 279; Grotius, bk. 2, §§ 1 Kent Com. 20-31. 3, 7 ; Cooper's Justinian, 07, § 1 ; 1 ■* Ibid. According to some writers Phil. Int. Law, u. 5. a nation may extend its jurisdiction ^ Grotius, De Jure Belli, lib. 2, cap. seaward with the increased range of 2, § 13; cap. 3, §§ 13, 3 ; Loccenius, cannon. Hall, Int. Law, 127; 1 Fiore Do Jure Maritirao, c. 4, §5 5, 6; Puf- Int. Law, 373 ; Bliintschli, § 303. CHAP. I.] OF PROPERTY IN TIDE WATERS. 5 § 3. Amid the diversity of opinions which have prevailed respecting this dominion, claims have been advanced both as to its extent and character which now seem extravagant.' At an early period England claimed dominion over the four seas which surround her coasts, includi'hg the right to prohibit foreign vessels from passing over them, and the right of prop- erty in them ; and in the controversy as to the freedoiti of the seas in the seventeenth century, the English writers and lawyers, under the lead of Selden,^ strenuously maintained ' In Regina v. Keyn, 2 Ex. D. 63, 176, which is referred to post, §§ 11, 12, Cockburn, C. J., thus states some of the views as to the extent of this juris- diction : " Alhericus Gentilis extended it to one hundred miles ; Baldus and Bodinus to sixty. Loccenius (De Jure Maritimo, c. 4, § 6) puts it at two days' sail ; another writer malces it extend as far as could be seen from the sliore. Valin, in his Commentary on the French Ordinances of 1681 (c. 5) would have it reacli as far as tlie bottom could be found with the lead-line, etc." ^ Selden's Mare Clausum was pub- lished in 1635. Tlie doctrine main- tained by Selden, so far at least as there was occasion to assert it in treat- ing of the common law, was accepted by his contemporaries. Bacon, Coke, Hale, and Staunford. See 1 Bacon Abr. 640; Co. Litt. 107 ; Hale, De Jure Maris, c. 4, 6 ; and Pleas of the Crown. Lord Hale says : "The king of England hath the propriety as well as the juris- diction of the narrow seas ; for he is in a capacity of acc[uiring the narrow and adjacent sea to his dominion by a kind of possession which is not com- patible to a subject ; and accordingly regularly the king hath that propriety in the sea : but a subject hath not nor indeed cannot have that property in the sea; through a whole tract of it, as the king hath ; because without a regular power he cannot possibly pos- sess it. But though a subject cannot acquire the interest of the narrow seas, yet he may by usage and pre- scription acquire an interest in so much of the sea as he may reasonably possess, viz. of a districtus maris, a place in the sea between such points, or a particular part contiguous to the shore, or of a port or creek or arm of the sea. These may be possessed by a subject, and prescribed in point of interest both of the water, and the soil itself covered with the water within such a precinct ; for these are manoriable, and may be entirely pos- sessed by a subject." De Jure Maris, C.6. And seepos?, §§21-23. The words "infra quatuor maria" are said to mean, within the kingdom of England, and the dominions of the same king- dom. Co. Litt. 107. The four seas are : 1. The Atlantic, which washes the western shore of Ireland, and which comprises, as it were by way of sub- division, tlie Irish Sea, St. Georg-c's Channel, and the Scottish Sea to the north-west; 2. The North Sea of the coast of Scotland; 3. The German Ocean on the cast ; and 4. The British Channel on the south. Co. Litt. 107 (a), note 7. The jurisdiction of the king, as lord and sovereign of the sea, has been defined, with respect to the Channel, to extend between England and Prance, and to the middle of the sea between England and Spain. Sir John Constable's Case, 3 Leon. 73; 5 Com. Dig. 102. "With respect to the western and northern oceans, there was said to be more uncertainty as to the limits of British dominion. Selden 6 THE LAW OP WATERS. [PAET L the right of the crown of England to these waters, insisting that the title to the sea arid to the fundus maris, or bed of the sea — tarn aquae quam soli — was in the king.^ This is the doctrine of the ancient municipal law of England, under which the Crown had a property in the adjacent seas both as against foreign nations and its own subjects.^ Under the civil law, the sea was common property, and the seashore was classed by different writers among the res communes, or among the res puhlicae, as being either common property or the property of the state.^ There was here no exclusive or bene- ficial interest in the sovereign, but so far as private property is concerned, the sea and its shores were considered to bo res nulUus.* By the Roman law, and by the ancient common law, as stated by Bracton, occupancy was the source of title to the sea and, the seashore, and pearls, gems, and other things found there, as well as islands which spring up in the contended for the fullest exercise of dominion over the British seas, hoth as to the passage through and fishing in them; while Sir Philip Medows suggested more confined rights,, as to exclude all foreign ships of war from passing upon any of the seas of Eng- land without special license, to have the sole marine jurisdiction within those seas, and also an appropriate fishery. Woolrych on Waters, 5; Selden, Mare Clausum, lib. 1, c. 26. Observations concerning the Dominion and Sovereignty of the Seas, by Sir Pliilip Medows (1689) ; Justice's Sea Laws, art. 1, pt. 1 ; Co. Litt. 107 b, 260 a, note 1, and Hargrave's notes ; Hall on the Seashore (2d ed.), 1, 2; Jerwood on the Seashore, 13 ; Chitty on the Prerogative, 142, 173, 200. ' Selden, Mare Clausum, c. 22, 24 ; Bacon's Abr. tit. Prerogative, B. 3 ; Hall on the Seashore (2d ed.), 2 ; Jer- wood on the Seashore, 13 ; Co. Litt. 107 a, 260 a, and notes ; 4 Inst. CO ; 2 Roll. Abr. 169, 170 ; Royal Fishery of the Banne, Sir John Bavies, 149 ; Sir John Constable's Case, 3 Leon. 71, 73 ; Staunford's Abr. ; Life of Sir Leo- line Jenkins, vol. 2, p. 732 ; Sir Philip Medow's Observations ; Justice's Sea Laws, art. 1. 2 Ibid. Lord Hale says: "The narrow sea, adjoining to the coast of England, is part of the waste and de- mesnes and dominions of the king of England, whether it lie within the body of any county or not. This is abundantly proved by that learned treatise of Master Selden called Mare Clausum; and therefore I shall say nothing therein, but refer the reader thither." De Jure Maris, c. 4; Har- grave's Law Tracts, 10. Lord Hale refers frequently in the same treatise to "the property and jurisdiction of the king of England in the narrow seas." See Hargrave's Law Tracts, 31, 32, 41, 43. ' The seashore was classed among things common by Justinian (I. 2, 1, 1) ; but Celsus says (D. 43, 8, 3) that it belonged to the state. See Mac- kenzie's Roman Law, 152; Goudsmit's Roman Law, 113, note. ■" Taylor's Summary of the Civil Law, 471 ; Inst. lib. II. tit. 1, §§ 1, 2, 5; Dig. lib. 43, tit. 12-14; Bracton, lib. I. c. 12, f ol. 7, 8 ; lib. II. f ol. 7. § 5 ; 2 Domat, Civil Law, vol. 1, 1, tit S. Ji l- CHAP. I.J O^ PROPERTY IN TIDE WATERS. 7 sea, and derelict goods, belonged to the finder or first occu- pant.i The rule of the modern common law, whereby the king has a private interest, apart from the ownership of the adjoining lands, in those tide waters which are within the territory of England, appears to be connected historically with the above claim of sovereignty over the narrow seas, and to be derived therefrom.^ § 4. By the present law of England, the Crown has the right of property in the arms and inlets of the sea within the realm, if not in the sea itself.^ This right includes the bed of all tide waters which are or may be within the counties.* The strip of land along the coast which is daily covered and left bare by the tide, and is called the shore,^ is a part of the county when the tide is out and a part of the sea when the tide is in.^ There is here divisum imperium between the ' Inst. II. 1, § 18 ; Dig. XLI. 1, § 7 ; 1 Twiss's Bracton,68; Greene's Koman Law (3d ed.), 74; Howe u. Stowell, Alcoclc & Nap. 348, 358. ^ See post, § ]9. England's claim of exclusive jurisdiction over all per- sons navigating tlie British seas ap- pears to liave been very ancient. These seas, says Sir Travers Twiss, under tlie name of " (juatuor maria," are tlirice mentioned by Bracton and distinctly designated as "les quatre mers d'Angleterre " in four different places in the Domus Day of Gippes- wich. Law Mag. & Kev. 4th series, vol. 2, pp. 150, 151. While Bracton, writing in the thirteenth century upon the laws of England, thus speaks of the four seas, he makes no mention of any peculiar rights of property pos- sessed by the Crown in them. He follows the civil law, and says that the sea and its shores are common property. Bk. L c. 12, fol. 7, 8. This has a tendency to show that the theory of JTirisdiction preceded that of prop- erty. Sir Travers Twiss observes, in the article above referred to (pp. 155, 160) : " The claim to the lordship of the 'narrow sea,' which the student (Doctor and Student, 270) asserts for the kings of England, cannot be traced so far back as their claim to the lord- ship of ' the four seas,' unless upon the principle that omne majus continet in se minus. Nevertheless, the lord- ship of ' the narrow sea,' as asserted by the Commons of England in the reign of Henry V., rested on a more solid pretext of right than the lord- ship of ' the four seas.' It rested on a principle of public law, which holds good in the present day in respect of the stream of navigable rivers, name- ly, that the kings of England, being in physical possession of both shores of the British Channel, were in juridical possession of the waters contained be- tween those shores. . . . The jurisdic- tion of the Admiralty, on the other hand, rests upon juridical principles totally distinct from those of territo- rial sovereignty. It was originally a personal jurisdiction." 3 Post, §§ 5-10. " Eegina v. Keyn, 2 Ex. D. 63. * Post, § 27. * See next note. THE LAW OF WATErvS. [PAKT I. courts of commou law, whose jurisdiction is limited by the bouudaries of counties, and the courts of admiralty which have jurisdiction of questions arising upon the sea, — the first having jurisdiction at low tide and the latter at high tide.i The seashore is thus, during parts of each day, within the limits of the adjacent county, and, as far as the ordinary high-water mark, it is the property of the Crown.^ Rivers and parts of rivers, in which the tide ebbs and flows, are also within the body of the county, although the admiralty may also have jurisdiction in them, and the soil of such rivers, so far as the tide reaches inland and up their shores. ' Constable's Case, 5 Kep. 106 a; The Admiralty, 12 Co. 79, 80 ; Regina II. Two Casks of Tallow, 2 Hagg. 294 ; Co. Litt. 260 ; 4 Inst. 135 ; Finch, L. 75, 78; 1 Black. Com. 110, 112; 4 Id. 268; 2 Hale, P. C. c. 3 ; 2 East, P. C. 803 ; 1 Kent Com. 366 ; The Pauline, 2 C. Rob. 358; Embleton v. Brown, 3 El. & El. 234; Regina v. Musson, 8 El. & Bk. 900 ; Regina v. Keyn, 2 Ex. D. 63, 66, 67; Rex u. 49 Casks of Brandy, 3 Hagg. Adm. 257 ; Lopez v. Andrew, 3 M. & R. 329 ; Barber v. Wharton, 2 Ld. Raym. 1452; De Lovio V. Boit, 2 Gall. 398; United States V. Davis, 2 Sumner, 482 ; United States V. Wilson, 8 Blatch. 435 ; Wes- ton V. Sampson, 8 Cush. 347, 354. ' Ibid. ; Hale, De Jure Maris, c. 4; 1 Hargr. Law Tracts, 12, 13; 1 Black. Com. 110, 264; Constable's Case, 5 Rep. 106 a ; Dyer, 326 ; At- torney General v. Burridge, 10 Price, 350 ; Attorney General o. Parmenter, 10 Price, 378, 412 ; Blundell v. Cat- terall, 5 B. & Aid. 268 ; Colchester u. Brooke, 7 Q. B. 339 ; Lopez v. Andrew, 3 M. & E. 829 ; Attorney General o. Chambers, 4 De G. M. & G. 206 ; Lowe u. Govett, 3 B. & Ad. 863; Scratton r. Brown, 4 B. & C. 485; Somerset v. Vogv/ell, 5 B. & C. 883; Attorney General v. London, 1 H. L. Cas. 440 ; 8 Beav. 270, and 12 Beav. 8, 171 ; 2 MacN. & G. 247 ; In re Hull & Selby Railway, 5 M. & W. 327 ; Benest v. Pipon, 1 Knapp, 60; Attorney Gen- eral V. Tomline, 12 Ch. D.214 ; 5 Com. Dig. 102 ; Calmady .,. Rowe, 6 C. B. 861, 878 ; 2 Dane Abr. 694 ; Common- wealth V. Alger, 7 Cush. 53 ; Weston V. Sampson, 8 Cush. 347; Common- wealth V. Eoxbury, 9 Gray, 451, 482; 3 Kent Com. 427, 431; Providence Steam Engine Co. K.Providence Steam- ship Co., 12 R. L 348; Pollard v. Hagan, 3 How. (U. S.) 212; Goodtitle V. Kibbe, 9 How. (U. S.) 471 ; State v. Sargent, 46 Conn. 358 ; Bell v. Gough, 21 N. J. L. 156 ; 22 Id. 441 ; 23 Id. 624; Stevens i: Pat«rson Railroad Co., 37 N. J. L. 340; Galveston o. Menard, 28 Texas, 349; Teschemacker i. Thompson, 18 Cal. 11 ; People v. Davidson, 30 Cal. 379. The main or high sea begins at low water-mark on the external coast. United States v. Wiltberger, 5 Wheat. 76, 94; United States v. Pirates, 5 Wheat. 184, 200 ; De Lovio v. Boit, 2 Gall. 398, 4^8 ; United States v. Ham- ilton, 1 Mason, 152; The Abby, 1 Mason, 360 ; United States v. Grush, 5 Mason, 290 ; United States v. Robin- son, 4 Mason, 307 ; United States v. Sea-grist, 4 Blatch. 420 ; United States !i. Wilson, 3 Blatch. 435 ; Johnson ■;. Twenty-one Bales, 2 Paine, 601 ; United States V. Smith, 3 Wash. C. C. 78, n. ; The Martha Anne, Olcott, 18 ; Miller's Case, Brown Adm. 156; 1 Black. Com. 110. CHAP. I.] OF PROPERTY IN TIDE "WATERS. 9 appertains to the Crown.i The territorial jurisdiction of a State now extends seawards to the distance of three geo- graphical miles ; ^ and where bays and inlets are formed by the indentations of the coast, even though they are somewhat broader than the double range of cannon, this external limit of jurisdiction is determined by measuring seaward from a straight line drawn from one enclosing headland to the other.^ Such inlets and branches of the ' Royal Fishery of the Banne, Sir John Davies, 149; Bulstrode v. Hall, Sid. 149; Fitzwalter's Case, 1 Mod. 105 and 3 Keb. 242 ; Warren u. Mat- thews, 6 Mod. 63 and Salk. 357; Carter i'. Murcot, 4 Bur. 2162 ; Rex v. Smith, 2 Dougl. 441 ; Bagott v. Orr, 2 Bos. & P. 472 ; Ball v. Herbert, 3 T. R. 253 ; Blundell ... Catterall, 5 B. & Aid. 268; Mayor of, Colchester v. Brooke, 7 Q. B. 3.39 ; Williams v. Wil- cox, 8 Ad. & El. .314; Murphy v. Ryan, I. R. 2 C. L. 143; Attorney General v. Chambers, 4 De G. M. & G. 206 ; Attorney General v. Terry, L. R. 9 Ch. 423 ; Whitstable Free Fish- ers a. Gann, 11 H. L. Cas. 192 ; 19 C. B. N. s. 803 ; 13 Id. 853, and 11 Id. 387 ; Penryhn v. Holme, 2 Ex. D. 328; Mayor of Carlisle v. Graham, L. R. 4 Ex. 361 ; Smith v. Officers of State, 13 Jur. 713 ; Lord Advocate o. Ham- ilton, 1 Macq. 46 ; 1 Black. Com. 264 ; 8 Bacon's Abr. tit. Prerogative, B. 3 ; 5 Com. Dig. Navigation, A., B, ; 1 Roll. Abr. 168, 169; Selden, Mare Clau- sum, 251; Hale, De Jure Maris, 11, 12 ; Palmer v. Mulligan, 3 Caines, 307 ; Adams v. Pease, 2 Conn. 481 ; Mc- Manus v. Carmichael, 3 Iowa, 1 ; Carson v. Blazer, 2 Binney, 475 ; In- graham V. Wilkinson, 4 Pick. 268; Commonwealth v. Chapin, 5 Pick. 199; Weston 17. Sampson, 8 Cush. 347; 1 Dane Abr. 690, 692 ; 1 Kent Com. 367 ; 3 Id. 427 ; Martin v. Waddell, 16 Peters, 367 ; Hagan v. Campbell, 9 Porter, 40. The part of a tidal river thirty miles from its mouth is not the "sea" within the meaning of 48 Geo. III. c. 75, so as to render the county chargeable with the expense of burying persons whose bodies are cast ashore from a wreck Recurring near such spot. Church Wardens v. Robertson, 44 L. T. N. s. 747. ' Bynkershoek, De Dominio Maris, c. 2, p. 257 ; Pando, Elem. del Der. Int. 155 ; Loccenius, De Jure Mari- timo, c. 4 ; Heineccius, lib. 2, c. 3, § 12 ; Grotius, De Jure Belli, lib. 2, c. 3, § 13; Vattel, Droit des Gens, lib. 1, c. 23, §§ 288-295 ; De Rayvenal, Liberte' des Mers, vol. 1, p. 212 ; Wolff, Jus Gen- tium, §§ 128-132; Azuni, vol. 1, 67, 68 ; Ortolan, Diplom. de la Mer, vol. 1, bk. 2, c. 8; Hautfeuille, Hist, du Droit Mar, 197; Marten, Precis du Droit, bk. 2, c. 1, §§ 40, 41, and bk. 4, c. 4 ; Heffter, Pub. Int. Law, § 75 ; 1 Phillimore's Int. Law, c. 4, § 154, and c. 8, § 196 ; Lawrence's Whea- ton's Int. Law, pt. II. c. 4, §§ 6-10 ; 1 Kent Com. 28; Manning's Law of Nations (Amos' ed.), 118, 119; Regina V. Keyn, 2 Ex. D. 63 ; The Maria, 1 C. Rob. 352; The Twee Gebrocders, 3 C. Rob. 162; The Annapolis, Lush. Adm. 295 ; The Leda, Swa. Adra. 40; Regina v. 49 Casks of Brandy, 3 Hagg. Adm. 247 ; The Saxonia, 15 Moore, P. C. 262 ; Gammel v. Commissioners of Woods, 3 Macq. 419, 465; Gann v. Whitstable Free Fishers, 11 H. L. Cas. 192; 13 C. B. n. s. 853, and 11 Id. 387; General Iron Screw Co. v. Schurmanns, 1 J. & II. 180; Church V. Hubbard, 2 Cranch, 187; United States V. Kessler, Bald. 15. ^ Post, § 5 ; Regina v. Cunningl'om, 10 THE LAW OF ATATBRS. [PAET I. sea, when sufficiently narrow, and within this line of juris- diction, may be within the body of the adjacent county.i When shut in and protected by the land, they form harbors and havens. They may also be established as ports. A harbor or haven is a place for the shelter and safe riding of ships ; a port is a haven and something more.^ How- Bell, C. C. 86 ; Phillimore's Int. Law, pt. III. u. 8 ; Lawrence's "Wheaton's Int. Law, pt. II. e. 4, § 6 ; Manning's Law of Nations, 120 ; 1 Twiss, Law of Nations, c. 10 ; Martens, Precis du Droit, § 40 ; Ortolan, Diplom. de la Mer, bk. 1, c. 2, and bk. 2, e. 7 ; 1 De Cussy, Droit Marit., tit. 2, § 40 ; Kluber, Droit des Gens, § 130. ' Hale, De Jure Maris, c. 4 ; 4 Co. Inst. 140; Fitzherbert's Abr. 399; Eegina u. Cunningham, Bell, C. C. 86 ; Direct TJ. S. Cable Co. v. Anglo- American Telegraph Co., 2 App. Cas. 394, 419 ; Ins. Co. v. Dunham, 11 Wall. 1 ; The Fame, 3 Mason, 147 ; De Lovio u. Boit, 2 Gall. 398 ; 1 Kent Com. 30 ; post, § 5. ^ The following are among the more important passages upon this subject, in Hale's De Portibus Maris : '■ A haven is a place of a large receipt and safe riding of ships, so situate and secured by the land circumja- cent, that the vessels thereby ride and anchor safely, and are protected by the adjacent land from dangerous or violent winds ; as Milf ord haven, Ply- mouth haven, and the like. And these are some larger, some narrower. The smaller are sometimes made or at least helped by art ; the greater are made only by nature. A port is an haven, and somewhat more. 1st, it is a, place for arriving and un- lading of ships or vessels. 2nd, it hath a superinduction of a civil signature upon it — somewhat of fran- chise and privilege, as shall be shown. 3rd, it hath a ville or city or bor- ough, that is the caput portus, for the receipt of mariners and merchants, and the securing and vending of their goods, and victualling their ships. So that a port is guid aggregatum, con- sisting of somewhat that is natural, viz., an access of the sea, whereby ships may conveniently come, safe situation against winds, where they may safely lie, and a good shore where they may well unlade ; something that is artificial, as keys and wharfs and cranes, and warehouses and houses of common receipt; and something that is civil, viz., privileges and fran- chises, jus appKcandi, jus mercati, and divers other additaments given to it by civil authority. A port of the sea includes more than the bare place where the ships unlade, and sometimes extends many miles ; as the port of London anciently ex- tended to Greenwich, in the time of King Edward the First. ... A creek is of two kinds ; viz., creeks of the sea, and creeks of ports. The former sort are such little inlets of the sea, whether within the precinct or extent of a port or without, which are narrow little passages, and have shore of either side of them. The latter, viz., creeks of ports, are by a kind of civil denomination such. They are such, that though, possibly, for their extent and situation they might be ports, yet they are either members of, or dependent upon other ports. And it began thus : Tlie king could not con- veniently have a customer and comp- troller in every port and haven; but these custom officers were fixed at some convenient port ; and the small- er adjacent ports became, by that means, creeks, or appendants of that where these custom officers were placed." Ilalc, Do Portibus Maris, CHAP. I.J OP PEOPEETY IN TIDE WATERS. 11 ever coramodious the haven may be, and. whatever pro- tection to vessels it may afford, it is not a port unless t. 2; Hargrave's Law Tracts, 46-48. " It is a part of the jus regale or royalty of the Crown of England orig- inally and de novo to erect publick ports in this kingdom. As all fran- chises within the kingdom are derived from the Crown, either immediately - and explicitly ; as by new erection, grant, or charter, or presumptively and consequentially, as by custom or prescription ; so in a special manner jire the ports and the franchises there- of." Id. c. 3 ; Hargrave's Law Tracts, 53, 54. "In all publick sea-ports in England, there are three kinds of rights that m'eet; and though they are dis- tinct one from ' another, yet they consist one with another, whether the ports belong in point of franchise or propriety to the king or to a subject. 1st, Jus privatum, interest of propriety or franchise. 2nd, Jus publicum, the common interest that all persons have to resort to or from publick ports, as publick sea-marts or markets, with their goods, and wares, and merchan- dises. 3rd, Jus regium, or the right of superintendency and prerogative that the king hath for the safety of the realm, or benefit of commerce, or se- curity of his customs. . . . The jus privatum takes iu these several branch- es ; 1st, The right of the lord or owner of the port. 2nd, The right of those that have the propriety of the shore contiguous to tlie port. 3rd, The right of the town, or ville, that is the caput partus, and the inhabitants thereof. . . . Though of common right, the king is prima facie the owner and lord of every publick sea-port, yet a subject may by charter or prescription be lord or owner of it. . . . The ownership of propriety is, where the king or com- mon person by charter or prescription is the owner of the soil of a creek or haven where ships may safely arrive and come to the shore. This interest of propriety may, as hath been shown, belong to a subject. But he hath not thereby the franchise of a port ; neith- er can he so use or employ it, unless he hath had that liberty time out of mind or by the king's charter." Id. c. 6; Hargrave's Law Tracts, 72, 73. Id. c. 4; Hargrave, 54, 55. "Though A. may have the propriety of a creek or harbour or navigable river, yet the king may grant there the liberty of a port to B. and so the interest of pro- priety and the interest of franchise several and divided. And in this no injury is at all done to A. for he hath what he had before, viz., the interest of the soil, and consequently the im- provement of the shore and the liberty of fishing ; and as the creek was free for any to pass in it agains.t all but the king, for it was publici juris as to that matter before, so now the king takes off that restraint, and by his licence and charter makes it free for all to come and unlade." Id. u. 6 ; Hargrave, 73. . . . " "When a port is fixed or settled by such means, though the soil and franchise or dominion thereof prima facie be in the king or by derivation from him in a subject ; yet that jus priva- tum is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this king- dom are interested, by reason of com- mon commerce, trade, and intercourse. And this publick right consists prin- cipally in these : 1st, They ought to be free and open for subjects and for- eigners, to come and go with their merchandise. . . . 2nd, There ouglit to be no new tolls or charges imposed upon them without sufficient warrent, nor the old inhanced. . . . 3rd, They ought to be preserved from impedi- ments and nusanees that may hinder or annoy the access or abode or recess of ships and vessels and seamen, or 12 THE LAW OF WATEKS. [part I. it has been established as such by authority of the Crown.^ Hence, in ports, not only is the ownership of the soil vested the unlading or relading of goods. Nusances of ports are of two kinds : 1. Such as are immediately only nus- ances to the private concernment of the lord of the franchise of the town that is caput partus. ... 2. Such nusances as are common to all men that have occasion to come, go, or stay at ports. I will give instances of some. 1. Silt- ing or choaking up the port, either by the sinking of vessels in the port, or throwing out of filth or trash into the port, whereby it is choaked. 2. De- cay of the wharfs, keys, and piers, which are for the landing of merchan- dise and safe-guard of shipping. 3. The leaving of anchors in the port with- out buoys or marks, whereby ships or vessels may strike against them and be spoiled. 4. The building of new wears or inhancing of old, whereby navigation or passage of vessels is obstructed. 5. The straightening of the port, by building too far into the water, where ships or vessels might have formerly ridden ; for it is to be observed, that nusance or not nus- ance in such case is a question of fact. It is not therefore every building below the high water mark, nor every building below the low water mark, is ipso facto in law a nuisance. For that would destroy all the keys that are in all the ports in England. For they are all built below the high water mark ; for otherwise vessels could not come at them to unlade ; and some are built below the low water mark. And it would be impossible for the king to licence the building of a new wharf or key, whereof there are a thousand in- stances, if ipso facto it were a common nusance, because it straitens the port, for the king cannot license a common nusance. Nay, in many cases it is an advantage to a port to keep in the seawater from diffusing at large ; and the water may flow in shallows, where it is impossible for vessels to ride. Indeed, where the soil is the king's, the building below the high water mark is a purpresture, an encroach- ment, and intrusion upon the king's soil, which he may either demolish or seize, or arent at his pleasure ; but it is not ipso facto a common nusance, unless indeed it be a damage to the port and navigation. In the case therefore of building within the extent of a port in or near the water, whether it be a nusance or not is quaestio facti, and to be determined by a jury upon evidence, and not quaestio juris. . . . A port or publick passage may not be obstructed; nay, if it begins to be silted or stopped, yet it must be scoured, and cannot be wholly dammed or filled up, although another cut be made as beneficial as the former, with- out an inquisition by writ of ad quod damnum finding it to be no damage to the publick, and the king's licence thereupon obtained ; as appears by the writ of ad quod damnum cited for- merly to another purpose. Register 252. ... As to the provisions by the common la* we are to observe, that as the common law hath intrusted the king with the patronage and protec- tion of the jura publica, as highways, publick rivers, ports of the sea, and the like ; so the care of preventing and reforming of publick nusances therein is left to him, and his courts of justice, the prosecutions for them are in his name, and the fines for the de- fects or annoyances in them are part of his revenue." Id. c. 7 ; Hargrave, 84-87. ' Foreman i-. AVhitstable Free Fish- ers, L. R. 4 H. L. 266 ; L. R. 3 C. P. 584; Nicholson v. 'WiUiams, L. R. 6 Q. B. 632 ; Case of the London Wharfs, 1 Sir W. Black. 581; Jenkins v. Har- vey, 1 C. M. & R. 877 ; Falmouth , . George, 5 Bing. 286 ; Exeter v- War- CHAP. I.] OF PEOPEETY IN TIDE WATERS. 13 prima facie in the Crown, but there is tlie further prerog- ative right to determine what places shall be ports, and to grant the privilege of erecting them ; and the king may first grant the soil to A, and afterwards grant the franchise of a port to B,i if the vested rights of A are not impaired by the second grant.^ Ports are for the receipt of goods and the collection of the customs, and a subject cannot legally land or ship customable goodp on his own land or in creeks or havens, or other places out of ports, unless it be in case of danger or necessity.^ Ports have been styled the gates of the kingdom,* and are established and controlled by the king as guardian of the realm.^ § 5. "With respect to the larger arms of the sea, such as bays, estuaries, and sounds, the rule is that "that arm or branch of the sea which lies within the fauces terrae, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county."® The ren, 5 Q. B. 773 ; Yarmouth v. Eaton, 3 Burr. 1402; Hale, De Portibus Ma- ris, c. 2; 2 Black. Com. 499. ' Hale, De Portibus Maris, c. 6. See note 2, ante, p. 10. ^ Exeter v. Warren, 5 Q. B. 773. ' Per Holroyd, J., in Blundell v. Catterall, 5 B. & Aid. 268 ; The Balti- more Wharf Case, 3 Bland Ch. 383. * Ports are thus frequently charac- terized in the older authorities. 1 Black. Com. 264 ; 2 Feud. 1, 56 ; F. N. B. 113 ; Royal Fishery of the Banne, Sir John Davies, 149 ; Hale, De Porti- bus Maris, c. 3, 7 ; Hargrave's Law Tracts, 50, 54; Bacon Abr. tit. Pre- rogative, D. 5; Com. Dig. tit. Navi- gation; Chitty's Prerogatives of the Crown, 100. * Ibid. ° Hale, De Jure Maris, c. 4; 2 Hale, . . . P. C. 16, 17, 54 ; Staunford, P. C. bk. 1, p. 51; Hawkins, P. C. pt. 2, c. 9, § 14 ; 4 Inst. 140 ; Fitzherbert's Abr. Corone, 399 ; Case of the Admiralty, 12 Co. 79 ; Cunningham's Case, Bell, C. C. 80; Eex V. Bruce, Euss. & Ey. 243, and 2 Leach, C. C. 1093; Direct U. S. Cable Co. V. Anglo-American Telegraph Co., 2 App. Cas. 394 ; King v. Soleguard, Andrew, 231 ; Leigli v. Burley, Owen, 122; Eegina o. Keyn, 2 Ex. D. 63; The Eleanor, 6 Eob.. Adm. 39; The Public Opinion, 2 Hagg. Adm. 398; The Eliza Jane, 3 Ibid. 335 ; United States V. Bevans, 3 Wheat. 336, 387 ; United States v. Grush, 5 Mason, 290 ; The Harriet, 1 Story, 251; United States V. New Bedford Bridge, 1 Wood. & M. 401, 483 ; Commonwealth «. Pe- ters, 12 Met. 387 ; Dunham v. Lam- phere, 3 Gray, 268, 270; People v. Supervisors, 73 N. Y. 393, 396 ; Uni- ted States V. Eobinson, 4 Mason, 307 ; DeLovio v. Boit, 2 Gall. 398, 425; United States v. Wiltberger, 5 Wheat. 106; 2 Hawkins, P. C. c. 9, § 14; 2 East, P. C. 804 ; Com. Dig. tit. Adm. E. ; Bacon's Abr. tit. Admiralty, A. ; 1 Kent Com. 366, 307. See United States V. Eoss, 14 American Law Eev. 530 ; 2 Broivnc, Civ. £ Adm. Law, 92. 14 THE LAW OP WATERS. [part I. rule being dependent upon the eyesight, is somewhat difficult of application. The bay or inlet must be so narrow that persons and objects can be comprehended across it by the naked eye ; and while in each case it is a question of fact to be determined upon the evidence, yet the weather and the size and distinctness of the objects may cause variation and uncertainty.! This question is distinct from that of the ter- ritorial jurisdiction of , the nation,^ which is determined by the presumed range of cannon, and by measuring three miles seaward from the exterior limit of the bay, and not by the line itself. Certain bays and estuaries of the sea, which are greater in Avidth than six miles, or the double range of can- non, may be within the limits of counties and of the nation. Islands which lie within arms of the sea, and are also within the county, have been regarded as opposite shores within the foregoing rule,^ and in treaties between nations,* Hale thus refers to the same rule again in De Portibus Maris, c. 7 (Har- grave's Law Tracts, 88) : " By the book of 8 E. 2 Corone, every arm or creek of the sea within the points of the laud, where a man may discern clearly from side to side, is within the body of the county. Yet the admiral hath used at least a concurrent juris- diction in many. such creeks and arms of the sea, up to the first bridges as to matter of nusances, upon a mis- ,take, perchance, of the words les pounts in the printed statute of IG, R. 2, c. 3, whereas some read it points." ' United States v. Bevans, 3 Wheat. 336 ; United States v. Grush, 5 Mason, 290 ; Commonwealth v. Peters, 12 Met. 387 ; Dunham v. Lamphere, 3 Gray, 268. In the recent case of Di- rect U. S. Cable Co. o. Anglo-Ameri- can Telegraph Co., 2 App. Cas. 394, 417, Lord Blackburn, referring to Coke and Hale (see ante, § 4, note) said : "Neither of these great authori- ties had occasion to apply this doc- trine to any particular place, nor to define what was meant by seeing or discerning. If it means to say what men are doing, so, for instance, that eye-witnesses on shore can say who was to blame in a fray on the waters, resulting in death, the distance would be very limited; if to discern what great ships were about, so as to be able to see their manoeuvres, it would be very much more extensive. In either sense it is indefinite." ^ Ante, § 4, and note 1, p. 15. ^ Per Story, J., in United States v. Grush, 5 Mason, 290, 301. ■• Thus, in the treaty of 1867, be- tween England and France, as to Sea Fisheries, confirmed by act of Parlia- ment in 1868 (31 & 32 Vict. c. 45), it was provided that " the distance of three miles fixed as the general lim- it for the exclusive right of fishery upon the coasts of the two countries, shall, -.vitn respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to head- land," and that these miles " are geo- graphical miles, whereof sixty make a degree of latitude." CHAP. I.] OF PBOPEKTY IN TIDE WATERS. 15 and in the works of writers upon international law,i bays having a width of ten miles have been conceded to be a part of the territory of the nation by which they are enclosed. In Regina v. Cunningham,^ the question was whether certain foreigners, who had committed a crime upon a foreign vessel lying in the Bristol Channel, were subject to the jurisdiction of the common-law courts in the county of Glamorgan. Although the place where the offence was committed was below low-water mark, beyond any river, and at a point where the sea was more than ten miles wide, it was held to be within the body of the adjacent county. It would nec- essarily be within the territory of England, since the counties cannot extend beyond the limits of the nation .^ In this ease, the situation and condition of the place in question were considered, and the fact that it had always been treated as a part of the county of Glamorgan was regarded as a strong illustration of the principle that the whole of the Bristol Channel was within the adjacent counties.* It is established that the right of property in all the soil which is covered by tide water, and is also a part of the nation's ter- ritory, is prima fade in the Crown by the common law.^ ' Manning's Law of Nations, 120. American Telegraph Co., 2 App. Cas. In the law of nations, bays are re- 394, 419 ; Eegina v. Keyn, 2 Ex. D. garded as part of the territory of the 03. See Commonwealth v. Peters, 12 country when their dimensions and Met. 387 ; Commonwealth v. Alger, configuration are such as to show that 7 Cush. 82 ; Commonwealth v. Rox- the nation occupying the coast also bury, 9 Gray, 451, 494, 512, note ; ; occupies the bay as part of its terri- Pollard v. Hagan, 3 How. 230. tory. Wheaton's Int. Law (8th ed.), * Bell, C. C. 86. Compare Chase 255, 256, n., 325; Grotius, De Jure «. American Steamboat Co., 9 R. I. Belli, bk. 2, c. 3, §§ 7, 8 ; Vattel, bk. 419 ; s. c. nom. Steamboat Co. v. Chase, 1, c. 3, § 290; Ortolan, Diplom. de 16 Wall. 522, in which usage was la Mer, bk. 2, c. 8 ; 1 Phillimore's Int. relied upon as showing that Narra- Law, § 200; 1 Kent Com. 28, 29; Di- gansett Bay is within the jurisdiction rect U. S. Cable Co. v. Anglo-Ameri- of the common-law courts of Rhode can Telegraph Co., 2 App. Cas. 394, Island, ijnd not of the admiralty ex- 419. In this country, a territorial ju- clusivcly. Sherlock a. Ailing, 93 TJ. risdiction has been claimed over ex- S. 99, 104. As to the jurisdiction tensive portions of the sea, including over Long Island Sound, see Mahler waters within lines drawn from dis- v. Norwich Transportation Co., 35 N. tant headlands. 1 Kent Com. 30. Y. 352; Keyser v. Coe, 9 Blatch. 32,- ■^ Bell, C. C. 86. The Sloop Elizabeth, 1 Paine, C. C. 10. = Direct TJ. S. Cable Co. v. Anglo- ^ ^^j^^ § 4 . Direct U. S. Cable 16 THE LAW OP WATEBS. [PAET I. § 6. The title to land under water is not changed when the soil becomes bare, and the Crown is entitled to land which is left by the sudden recession of tide waters within the realm, and to islands which arise therefrom.^ In strict- ness, also, the Crown has the right of property in all things which are found upon the seashore between high and low- water mark, and have no acknowledged owner, such as sea- weed, amber, jet, etc., and in minerals lying under the navi- gable waters of the kingdom.^ The ancient franchise of royal fish taken within the arms of the sea or in the narrow seas,^ and the right to wreck, i.e., to goods from a lost vessel which were thrown upon the shore,* also belonged to the Crown in virtue of the royal prerogative, and formed one of the ordinary branches of the king's revenue. But these rights, although originally associated with the dominion of the sea, were not enjoyed as appurtenant to the ownership of the sea or the seashore, for the king might grant them to a subject without granting the shore ; or, he might grant the wreck to one person and royal fish to another, and the shore itself to a third person.^ According to Hale and Coke, a grant by the Crown to an individual of the right to take wreck, raises a prima facie presumption that the seashore itself was also intended to pass, inasmuch as a ship cannot Co. V. Anglo-American Telegraph Co., "Wreck; Phcar's Eights of Water, 99; 2 App. Cas. 394 ; Regina u. Keyn, 2 2 Kent Com. 321, 322 ; Woolrych on Ex. D. 63. Waters, 11 ; Jerwood on the Seashore, iflale, De Jure Maris, c. 4, 6; 57; The Pauline, 2 Rob. Adm. 358; Anon. Dyer, 320 b ; Rex v. Yarhor- Rex v. 49 Casks of Brandy, 3 Hagg. ough, 2 Bligh, N. S. 162; Callis on 257; Rex u. 2 Casks of Tallow, Id. Sewers, 45, 47. 294 ; Palmer v. Rouse, 3 H. & N. 505 ; 2 Post, § 10. Talbot V. Lewis, C. & P. 603; Barry » Post, § 20. This prerogative was u. Arnaud, 10 Ad. & El. 040 ; Sutton treated as not obsolete in 1831. Lord v. Buck, 2 Taunt. 355; Hamilton r. Warden o. The King, 2 Hagg. Adm. Davis, 5 Burr. 2732 ; Blundcll o. Cat- 438. terall, 5 B. & Aid. 208; Dunwich ,. "Hale, De Jure Maris, c. 7; Har- Sterry, 1 B. & Ad. 831 ; Alcock w. Cooke, grave's Law Tracts, 37-41 ; 2 Co. 2 M. & P. 025 ; Legge i.. Boyd, 1 C. B. Inst. 107 ; 1 Black. Com. 202, 283, 92 ; Stackpoole ;■. The Queen, Ir. R. 290 ; 3 Id. 100 ; Callis on Sewers, 40 ; 9 Eq. 020 ; The Tilton, 5 Mason, .477. Sir Henry Constable's Case, 5 Co. ^ Ibid. ; Anon. Mod. 149 ; Scrat- 107; Sir John Constable's Case, An- ton v. Bromi, 4 B. & C. 485; Hall on derson, 80; Bracton, lib. 3, 120, § 5; the Seashore (2d ed.), 80, 82 ; Talbot Com. Dig. tit. Prerogative, D. and i . Lewis, 1 C. M. & E. 495 ; 5 Tyr. 1. CHAP. I.J OF PROPERTY IN TIDE WATERS. 17 be a wreck, within the legal meaning of the terra, without being cast upon the land between high and low-water mark : ' but the better view appears to be that the right to wreck ia a franchise, which carries with it no right to the soil of the seashore.^ A grant of the shore does not pass wreck of the sea without express words.^ § 7. Prior to the recent case of Regina v. Keyn,^ the open seas around the coasts of Great Britain were considered to be the property of the Crown, and it was commonly said that the sea is not only under the king's dominion, but that it is his proper inheritance.^ According to Selden and the writers of his time,^ the king is lord of the great waste, both land and water. Lord Hale says'' that the king is owner of this waste, and that the narrow sea adjoining the coast of England is " part of his dominions, whether it lie within the body of any county or not." In ancient times, it was de- clared ^ that the sea is within the legiance of the king, as of his crown of England ; and in the Rolls of Parliament,^ in the reign of Henry V., it appears that the Commons pra5'ed that whereas the king and his progenitors have always been lords of the sea, and now it happens that the king is lord of the coasts of both sides of the sea, that therefore the king, will lay an imposition upon strangers passing over the sea.. Coke, Bacon, Blackstone, Chitty, and Woolrych,!" writing- ' Hale, De Jure Maris, c. 6; Har- ed.), 207 ; Sir John Constable's CSiso, ,■ frrave's Law Tracts, 27 ; Constable's .3 Leon. 71, 7.3. Case, 5 Rep. 107 ; Calmady v. Rowe, " Selden, Mare Clausum, lib. 2^ e. 6 0. B. 861 ; Rex o. Ellis, 1 M. & S. 22, 24 ; Hall on the Seashore (2(J ed;), 2,", 062 ; Beaufort v. Swansea, 3 Exch. ante, § 3. 413 ; Talbot v. Lewis, 6 C. & P. 606 ; ' Hale, De Jure Maris, c. 4, 5 ; 1: . Parsons v. Smith, 5 Allen, 578. Hale, P. C. 154 ; 2 Id. 12-15. ' Ibid. ; Phear's Rights of Water, •* 6 Rich. II. ; Fitzherbert, tit. Pro- 52; Hall on the Seashore (2d ed.), 20, tection, 46; Royal Fishery of the 76, 81-99 ; Dickens v. Shaw, Ibid. App. Banne, Sir John Davies, 149, 152 ; 54,66. Callis on Sewers, 39; Hale on Adm. ' Alcock V. Cook, 2 M. & P. 625. Jurisdiction, cited in Commonwealth * 2 Ex. D. 63 ; post, § 11. „•. McLoon, 101 Mass. 1, 12, pi; 5. * Royal Fishery of the Banne, Sir ^ 1 Rot. Pari. 8 Hen. V. W. 6 ; 16 John Davies, 149, 152 ; 16 Vin. Abr. Vin. Abr. tit. Preroga>ti've, B. ; Wool- tit. Prerogative, B. ; 1 Roll. Abr. 528 ; rych on Waters, 19. 2 Id. 168, 170 ; Com. Dig. tit. Preroga- '" Co. Litt. 107, 260 It, § 439; Bacon's tire ; Molloy, De Jure Maritimo (9th Abr. tit, Coiu-t of AcJtairivUy', 1 Black. IS THE LAW OF WATERS. [PAKT I. at difterent periods, reassert the same doctrine ; and Callis considers that, by the common law, the king has, in the English seas, possession and rights of property as well as of jurisdiction.^ § 8. The narrow seas were thus considered to be within the realm of England.^ Although the Admiralty now has exclusive jurisdiction of questions arising upon the ocean, yet it appears that a concurrent jurisdiction was formerly exercised by the common-law courts in cases of felonies done upon the narrow seas, although they were still regarded as high seas.^ Under this theory, the Crown was entitled to royal fish which were captured in the British seas, though not to those taken in the seas beyond,* and to islands which Com. 110; 2 Id. 264; Chitty's Pre- rogatires of the Crown, 142, 173, 206. ,See also Hall on the Seashore, 13 ; fichultes. Aquatic Rights, 1-5 ; Jer- ^wood on the Seashore, passim. ' CalUs (on Sewers, 39-4t 53) rsajss ; " Touching our Mare Anglicum, ;in whom the interest therein is, ;and ^y what law the government -thereof is, is a fit question, and worth the lianWing. And in my argument therein I Tiope to make it manifest by manyproofs and precedents of great 1 worth and esteem, that the king hath ; therein these powers and properties, .videlicet: [\) Iniperium regale ; [2) Po- I testatem legalem ; (3) Proprietatem tarn soli quam aquae ; (4) Possessionem et projituum tarn reale quam personale. And all these lie hath by the common laws of England." ■' 1 Hale, P. C. 424; 2 Ibid. 13-17; Hale, De Jure Maris, e. 4; 1 Com. Dig. 369 ; 4 Inst. 134, 137 ; 2 East, P. C. 803 ; 6 Dane's Abr. 355 ; Attor- ney General v. Tomsett, 2 Cr. M. & R. 170, 174 ; The Twee Gebroeders, 3 C. Bob. 336 ; 1 Phill. Int. Law, c. 6, 7. '■' Ibid. ; Commonwealth v. McLoon, 101 Mass. 1. ■• Britton, c. 17. " Touching royal fish, therefore called so, because of common right snch fish, if taken with- in the seas parcell of the dominion and Cro\vn of England, or in any creeks or armes thereof, they belong to the Crown ; but if taken in the wide sea, or out of the precincts of the seas belonging to the Crown of England, they belong to the taker. 39 E. 3, 35, per Belknap. Touching the kind of these fishes that are called royal fish, there seem to be but three, viz. : sturgeon, porpoise, and balaena, which is usually rendered a whale. . . . But because they may be great fish that come under no known denomination, we find the claim of such under the name of piscis rerjius, or sometimes grand pisce, without any certain de- nomination. . . . But salmon or lam- prey are not royal fish. By the com- mon right of the king's prerogative these belong to the king, if taken within his seas or the armes thereof. Anciently the intire sturgeon belonged not to the king, but only the head and the tail of the whale, according to Bracton, cited by Staunford upon this chapter of the prerogative. According to the custom used in the admiralty, these great fish, if taken in the salt water within the king's seas, they were divided, and a moiety was allowed to. CHAP. I.] OF PEOPEUTY IX TIDE WATEUS. 19 arose from these waters.^ So broad a claim has not been sanctioned by the acquiescence of other nations,^ yet it is asserted by modern writers upon the common law,^ and Avas insisted upon by the British government in the present century.'' § 9. It has been held by eminent judges that the Crown retains within the three-mile belt the rights which were for- merly ap23ropriated to it over entire seas. Thus, in the case of the Whitstable Free Fishers v. Gann,'' which involved the right to collect tolls for anchorage beyond low-water mark, Erie, C. J., laid down broadly that " the soil of the seashore, to the extent of three miles from the beach, is vested in the Crown." When this case came before the House of Lords on appeal,^ Lord Wensleydale appears to have assented '^ to that rule, as he also did upon another occasion ; ^ but the taker, the other moiety to the admiral in right of the king." De Jure Maris, c. 7, 4, 6; Hargrave's Law Tracts, 42, 43; Woolrych on Waters, 63. ' Ante, § 6. " Ortolan, Diplom. de la Mer, torn. 1, liv. 2, c. 15; Grotius, Mare Libe- rum; Vattel, Droit des Gens, liy. 1, c. 23, § 289; Martens, Precis du Droit des Gens, liv. 2, c. 1, § 42; 11 Edin- burgh Review, art. 1, pp. 17-10; Klii- ber, § 132 ; Lawrence's Wheaton's Int. Law (2d ed.), pt. IL u. 4, p. 328. Ac- cording to an ancient record between Edward the First of England and Philip the Pair of Prance, all the maritime nations of Europe assented to the exclusive possession and do- minion of the English kings in the seas of England. Selden, Mare Clau- sum, lib. 2, c. 23 ; 4 Co. Inst. 142 ; 1 Eoll. Abr. 528, pi. 2 ; 6 Vin. Abr. tit. Court of Admiralty, 2 ; 1 Molloy, De Jure Maritimo {9th ed.), c. 5, pi. 14; Woolrych on Waters, 5. ^ Chitty on the Prerogative, 143, 173, 206 ; Woolrych on Waters, 41 ; Hall on the Seashore (2d ed.), 2, 3, 154 ; Schultes on Aquatic Eights, 1-5. ■* In 1803 the negotiations for a set- tlement of the controversy between this country and England, as to the impressment of seamen by British cruisers from American merchant ves- sels, were broken off in consequence of the British government insisting that the " narrow seas " should be ex- cepted out of the sphere over which the contemplated stipulations against impressment should extend. See La^vrence's Wheaton's Int. Law (2d ed.), pt. II. c. 2, p. 211. Saluting the flag was the usual recognition of Eng- land's dominion over the seas. 1 Philli- more's Int. Law, 100. Mr. Hall refers to a regulation of the English Admiralty, as existing in 1805, by which English war vessels were directed to insist upon the salute of the flag over the sea south of England as far as Cape Finisterre. Hall's Int. Law, 121. 5 11 C. B. N. s. 387, 413. ^ 11 H. L. Cas. 192 ; see the same case before the Exchequer Chamber, 13 C. B. N. s. 853. ' p. 213. * Gammel u. Commissioners of Woods, 3 Macq. 419, 465. Lord Wens- 20 THE LAW OF AYATBES. [PAUT I. Lord Chelmsford, adverting more directly to the statement of Erie, C. J., and recognizing it so far as it related to terri- torial property and jurisdiction as against foreign powers, doubted its correctness with reference to the subjects of England.! gg^ according to Lord Cranworth,^ Judge Story,-'* and Chief Justice Shaw,* the right of soil in the sea as well as the shore was in the Crown by the common law. In the case of The Leda,^ Dr. Lushington, although not passing directly upon the Crown's right of property in the sea, held Icydale here said that *' the distance of three miles, by the acknowledged law of nations, lielongs to the coast of the country." See Regina v. Kcyn, 2 Ex. D. 03, 120, 124, 227. ■ 11 II. L. Cas. 217, 218. Lord Chelmsford here said : " With great respect for the learned Chief Justice, I do not think it can bo assumed as an unquestionable proposition of law, that, as between the Crown and its subjects, the seashore, to the extent mentioned, is the property of the Crown in such an absolute sense as that a toll may be imposed upon a subject for the use of it in the reg- ular course of navigation. In stating tiie right of the Crown in the sea- shore, the text-writers invariably confine it to the soil between high and low-water mark. The three miles limit depends upon a rule of interna- tional law, by which every independent state is considered to have territorial property and jurisdiction in the seas which wash their coasts within the assumed distance of a cannon shot from the shore. Whatever power this may impart with respect to foreigners, it may well be questioned whether the Crown's ownership in the soil of the sea to this large extent is of such a character as of itself to be the foun- dation of a right to compel the sub- jects of this country to pay a toll for the use of it in the ordinary course of navigation." ' Attorney General v. Chambers, 4 Oe Gex, Mac N. & G. 200, 21.3. ' The Brig Ann, 1 Gall. 02. See Church V. Hubbard, 2 Cranch, 187, 2.34. ■• Commonwealth v. Ro-xbury, 9 Gray, 451, 482 ; Weston v. Sampson, 8 Cash. 347, 351 ; Commonwealth v. Alger, 7 Cush. 53, 82 ; Dunham c. Lampherc, 3 Gray, 268. * Swabey's Adm. 40 ; In Chase v. American Steamboat Co., 9 R. I. 419, 426, Potter, J., said, in discussing the admiralty jurisdiction under the Con- stitution of the United States : " Before the adoption of the Constitution, the State had jurisdiction over the bay (Narragansett Bay), and over the coasts of the sea, to the extent of the marine league. Lawrence's Wheaton, 321, 933 ; 6 Dane's Abr. 359, &c. ; 3 Hagg. Adm. 290, 375; De Lovio u. Boit, 2 Gallis. 398, 425. See opinion of Johnson, J., in Ramsay v. AUegre, 11 Wheat. 614. This jurisdiction was exercised by its courts of common law." Mr. Dane says that " the realm includes the narrow seas and the coasts" (6 Dane's Abr. 350); and that at the date of the Massachusetts charter (1691), the admiralty jurisdic- tion was " exclusive on the high seas, the common highway of nations, with- out the territorhal line, usually cannon shot from the shore ; concurrent with the common law on the coasts between the shore and that line, and without the bodies of counties, and within them only such admiralty limited jurisdiction the said prior statutes gave, and that was the colonial view of the subject." Dane's Abr. 357. CHAP. I.] OF PROPERTY IN TIDE WATERS. 21 that the words " United Kingdom," as employed in a statute with reference to salvage, included both the land of the kingdom and three miles from the shore. In Church v. Hubbard,^ in the Supreme Court of the United States, the question was whether an insurance company was liable for a vessel named the Aurora, which was seized and condemned some four or five leagues from the coast of Brazil for at- tempting to trade illicitly. Marshall, C. J., said: "That the law of nations prohibits the exercise of any act of authority over a vessel in the situation of the Aurora, and that this seisure is, on that account, a mere marine trespass, not with- in the exception, cannot be admitted. To reason from the extent of protection a nation will afford to foreigners to the extent of the means it may use for its own security does not seem to be perfectly correct. It is opposed by princi- ples which are universally acknowledged. The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act, which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyond the limits of its territory." In United States v. Smiley,^ the defendant was indicted for the larceny of treasure lost from a wreck and buried in the sea sand within one hundred and fifty feet from the shore of Mexico. Field, J., held that the jurisdiction of that country over all offences committed with- in a marine league from its shores, not on a vessel of another nation, was complete and exclusive, and that the United States had no jurisdiction over the place or the property. § 10. In the present century the question arose in England as to the rights of the Queen and the Pi'ince of Wales, as Duke of Cornwall, io the mines and minerals under the sea adjoining the coasts of Cornwall. This involved the right of ' 2 Cranch, 187, 234 ; Hudson v. vis, 2 Sumner, 482 ; Montgomery v. Gustier, 4 Cranch, 293; The Brig Ann, Henry, 1 Dall. 49; People v. Tyler, 1 Gall. 62; United States e. Kessler, 7 Mich. 161; 8 Mich. 320. Bald. C. C. 15; United States ^. Da- =6 Sawyer, 640. 22 THE LAW OF WATERS. [PAKT I. property in minerals between high and low-water mark around the coasts of that county, and also the right of property in minerals beyond low-water mark, won by an extension of workings begun above low-water mark, and was determined by arbitration.! It appeared that the Prince was in posses- sion, and had worked the mines from land which was his own. With respect to the title beyond low-water mark, it was con- tended, on behalf of the Crown, that the bed of the sea was its property ; and on behalf of the Prince it was insisted, first, that under the terms of the original grant from the Crown, the Duke of Cornwall acquired everything adjoining and con- nected with the county, and that, even if the bed of the sea elsewhere belonged to the Crown, it had passed to the Duke in the seas adjoining Cornwall ; ^ second, that the bed of the sea did not belong to the Crown by the common law, but that the Prince was entitled to the mines as first occupant. The decision of the arbitrator was that all the mines and min- erals lying under the seashore between high and low-water marks, and under the estuaries, tidal rivers and other places beyond low-water mark, which were within the county,- belonged to the Prince as part of the soil and territorial pos- sessions of the Duchy of Cornwall ; but that the right to all mines and minerals beyond low-water mark, under the tide waters adjacent to, but not part of, the county, was vested in the Queen in right of her Crown, although won by workings commenced above low-water mark and extended below it.^ An act of Parliament was passed to give effect to this decis- ' This arbitration is reviewed in C. J., in Eegina v. Keyn, 2 Ex. D. 68, Regina r. Keyn, 2 Ex. D. 63, at pages 155-157. Lord Coleridge here saj-s 121, 155-158, 199-202. See, also, 6 that all the proceedings in both ref- Law Mag. & Eev. 113. The reference erences were in writing, that he was was made by Lord Chancellor Cran- furnished with copies of the whole of worth on the part of the Queen, and them, and that most of the authori- by Lord Kingsdown, then Chancellor ties cited in the case then before the of the Duchy of Cornwall, on the court were cited there, as well as some part of the Prince of Wales, to the others of considerable importance, arbitration of Sir John Patteson. A ' See Trematon Case, Wightwick, further question, involving the con- 167 ; Attorney General c. St. Aubyn, struction of the Act of Parliament Id. 270 ; Peuryhn v. Holm, 2 Ex. D. referred to in the text, was afterwards 328 ; Eegina i'. Keyn, 2 Ex. D. 63. referred to the arbitration of Sir John ' 21 & 22 Vict. c. 109. Coleridge. See opinion of Coleridge, CHAP. I.] OP PEOPBKTY IN TIDE WATERS. ' 28 ion in favor of the Crown, by which it was declared and enacted that all mines and minerals lying below low-water mark under the open sea adjacent to but not being part of the county of Cornwall were, as between the Queen, in right of her Crown, and the Prince, in right of his Duchy of Cornwall, vested in the Queen " in right of her Crown as part of the soil and territorial possessions of the Crown." It would seem that the Prince, being owner of the shore between high and low-water marks around the county, would control the access from the land to the bed of the sea ; and that, as he was the first occupant of the mines, the Crown could be held to be the owner of the fundus maris beyond the limits of the county, independently of a title to the shore, only under the supposed rule of the common law, while the Crown's rights in the sea-bottom adjacent to but beyond the limits of Cornwall would, according to this arbitration and statute, be similar to those which it had been thought to possess around all the coasts of the kingdom. ^ § 11. In Regina v. Keyn,^ it appeared that the Franconia, a German vessel, while proceeding from one foreign port to another, negligently came in collision with an English vessel off Dover, and at a point less than three miles distant from the coast of England. It was held that the defendant, who was in command of the Franconia, and was charged with manslaughter for causing the death of a passenger upon the English vessel, was not subject to the jurisdiction of the Eng- lish admiralty.^ The six judges who dissented from this con- clusion were of the opinion that the territory of England and the jurisdiction of the Crown, and the Admiral, included the ' See the judgment of Amplett, J. ferred by Stat. 4 & 5 Will. 4, c. 36 ; A., and Lord Coleridge, C. J., in Regi- Stat. 7 & 8 Viet. c. 2. The judge na V. Keyn, 2 Ex. D. 63, 121, 155-158, who presided at the trial reserved and the criticism upon this arbitration the question of jurisdiction for the by Coekburn, C. J., in the same case, Court for Crown Cases Reserved. 2 Ex. D. 199-202. See post, § 12. The case was argued a second time ^ 2 Ex. D. 63. in this court before fourteen judges. ^ The trial was in the Central Crim- Archibald, J., one of this number, inal Court, to which the jurisdiction died before judgment, but agreed of the admiral over crimes was trans- with the majority. 24 THE LAW OF WATBCS. [PART I. waters within tlie three-mile belt, and the fact that the pas- senger's death occurred upon an English vessel was regarded by Lord Coleridge, C. J., and Denman, J., as sustaining the jurisdiction .1 It was also held that express legislation is neces- sary to Confer upon the courts jurisdiction over foreign vessels passing near the coast ; that the Admiralty had not such jurisdiction in the particular case under the statutes then in force ; that, with respect to both property and jurisdiction, the territorial seas and the ocean beyond are alike high seas, open to the peaceful navigation of all nations,^ and that the territory of England extends only to low-water mark on the external coast.^ §12. Of the opinions delivered in Regina v. Keyn, that of Cockburn, C. J.,* contains the fullest discussion of the ques- ' See Reg. v. Coombes, 1 Leacli, C. C. 388 ; Commonwealth o. Mac- loon, 101 Mass. 1. The admiralty has no jurisdiction of an offence committed by a foreigner upon a foreign vessel upon the high seas beyond the three- mile belt, even when the offence is committed against English subjects. Reg. . 63, 70, 77, 82, 91, 119, 206, 217 ; The"Saxonia, 1 Lush. 410 ; 11 H. L. Cas. 192 ; L. R. 4 H. L. 266 ; The Twee Gebroeders, 3 C. Rob. 336, 352 ; The Vigilantia, 1 C. Rob. 1 ; The Catharina, 5 C. Rob. 161 ; The Success, 1 Dodd's Adm. 131 ; United States v. Kessler, 1 Bald. C. C. 15, 17. ' In Manning's Law of Nations (Amos's ed.), 119, the purposes for which jurisdiction over the sea may be exercised under the law of nations are said to be: (1) the regulation of fisheries ; (2) the prevention of frauds on custom laws ; (3) the exaction of harbor and lighthouse dues; and (4) the protection of the territory from violation in time of war between other states. This passage was noticed and apparently approved in Regina v. Keyn. See, also, Reg. v. 49 Casks of Brandy, 3 Hagg. Adm. 247, 289; Mer- lin, Rep. de Juris, vol. 10, p. 135 ; Or- tolan, Diplom. de la Mer, vol. 1, p. 157, 174-177; United States v. Kess- ler, 1 Bald. C. C. 34 ; The Leda, Swa. Adm. 40 ; General Iron Co. v. Schur- manns, 1 J. & H. 193 ; Wheaton's Int. Law, pt. II. c. 4, §§ 6-10 ; 1 Kent Com. (12th ed.), 28; Kent, Int. Law, 115; Manning's Law of Nations (Amos's ed.), 119; Vattel, lib. 1, u. 23, § 295; Church V. Hubbard, 2 Cranch, 234. "The learned judge(2Ex.D.177,178) regards Bynkershoek, whose treatise De Dominio Maris was published in 1702, as the first to limit the territo- rial jurisdiction over the sea to the range of cannon. After reviewing the diverse opinions expressed by various writers with reference to the character and extent of this jurisdic- tion, the opinion proceeds : " But it is said that, although the writers on international law are disagreed on so many essential points, they are all agreed as to the power of a littoral state to deal with the three-mile zone as subject to its dominion, and that consequently we may treat it as sub- CHAP. I.J OF PROPERTY IN TIDE WATERS. 25 tions considered and of the Crown's property in the sea. The learned judge, adverting to the fact that Selden, Hale, ject to our law. But this reasoning strikes me as unsatisfactory, for what does this unanimity in tlie general avail us when we come to the practical application of the law in the particu- lar instance, if we are left wholly in the dark as to the degree to which the law can be legitimately enforced ■? This unanimity of opinion that the littoral sea is, at all events for some purposes, subject to the dominion of the local state, may go far to show that, by the concurrence of other nations, such a state may deal with these waters as subject to its legisla- tion. But it wholly fails to show that, in the absence of such legislation, the ordinary law of the local state will extend over the waters in question — which is the point which we have to determine. Not altogether uninfluenced, per- liaps, by the diversity of opinion to which I have called attention, the argument in support of the prosecu- tion presents itself — not without some sacrifice of consistency — in more than one shape. At one time it is asserted that, for the space of three miles, not only the sea itself, but the bed on which it rests, forms part of the ter- ritory or realm of the country owning the coast, as though it were so much land; so that the right of passage and anchorage might be of right de- nied to the ships of other nations. At another time it is said that, while the right is of a territorial character, it is subject to a right of passage by the ships of other nations. Sometimes the sovereignty is asserted, not as based on territorial right, but simply as attaching to the sea, over which it is contended that the nation owning the coast may extend its law to the foreigner navigating within it. To those who assert that to the extent of three miles from the coast, the sea forms, part of the realm of England, the .question may well be put, When did it become so ? Was it so from the beginning f It certainly was not deemed to be so as to the three-mile zone, any more than as to the rest of the high seas, at the time the statutes of Richard II. were passed. For in those statutes a clear distinc- tion is made between the realm and the sea; the jurisdiction of the admi- ral being (subject to the exception already stated as to murder and may- hem) confined strictly to the latter, and its exercise " within the realm " prohibited in terms. . In these statutes the jurisdiction of the admi- ral is restricted to the high seas, and in respect of murder and mayhem, to the great rivers below the bridges, while whatever is within the realm, in other words within tlie body of a county, is left within the domain of the common law. There is no dis- tinction taken between one part of the high sea and another. The three-mile zone is no more dealt with as within the realm than the seas at large. The notion of a three-mile zone was in those days in the womb of time. When its origin is traced, it is found to be of comparatively modern growth. The first mention of it by any writer, or in any court of this country, so far as I am aware, was made by Lord Stowell, with reference to a question of neutral rights, in the first year of the present century, in the case of The Twee Gebroeders (3 C. Rob. 162). To this hour it has not, even in the- ory, yet settled into certainty. For centuries before it was thought of, the great landmarks of our judicial sys- tem had been set fast — the jurisdic- tion of the common law over the land and the inland waters contained within it, forming together the realm of England, that of the admiral over 26 THE LAW OF WATERS. [PAKT I. and. other early writers who assert an unrestricted sovereignty over the sea,i wrote at a period when the three-mile rule was altogether unknown, and in support of England's dominion over the whole of the - narrow seas, concluded that, as this theory is now exploded, the unlimited jurisdiction and the rights of property maintained by these writers cannot be revived so as to attach to the distinct dominion since acquired over the territorial seas ; that no distinction being suggested by them between one part of the narrow seas and another, no time can be designated when the three-mile zone became part of the realm ; that the assertions of publicists and jurists, even if in harmony, could not add to the territory of a nation or confer jurisdiction upon its courts ; that the right to erect wharves, piers, breakwaters, forts, etc., upon the open sea-coast below low-water mark, would be determined merely by the prior occupancy of the space covered by them; and that, while such encroachments, being commonly in aid of navigation, are readily acquiesced in,^ it would be worthy of considera- tion, if the case arose, whether there would not be just cause for complaint if they obstructed navigation by foreign vessels. the English vessels on the seas, the gone, the territorial property which common property or highway of man- was suggested to be consequent upon kind." Reference is made to the it must necessarily go with it. But statements of Selden, Hale, Coke, we are met here by a subtle and inge- andBlackstone (see an(e, § 7) and it is nious argument. It is said that then said (p. 196) : " To what, after although the doctrine of the criminal all, do these ancient authorities jurisdiction of the admiral over for- amount ? Of what avail are they eignei;s on the four seas has died out, towards establishing that the soil in and can no longer be upheld, yet, as the three-mile zone is part of the no% by the consent of nations, sov- tcrritorial domain of the Crown ? ereignty over this territorial sea is These assertions of sovereignty were conceded to us, the jurisdiction for- manifestly based on tlie doctrine that merly asserted may be revived and the narrow seas are part of the realm made to attach to the newly acquired of England. But that doctrine is now domain. I am unable to adopt this exploded. . . No one has gone the reasoning." length of suggesting, much less of ' Ante, § 7. openly asserting, that the jurisdiction ' If erected for purposes of defence, still exists. It seems to me to follow they are within the principle that a that when the sovereignty and juris- nation may do what is necessary for diction from whicli the property in the protection of its own territory, tlio soil of the sea was inferred is Per Cockburn, C. J., 2 Ex. D. p. 199. CHAP I.J OF PEOPBRTY IK TIDE "WATERS. 27 § 13. The decision iu Regina v. Keyn was that of a bare majority of a court composed of thirteen judges, and it is uncertain how far it may be approved in this country .1 Lord Hale thought it no objection to the theory of sove- reignty over the narrow seas that it extended the rights and jurisdiction of the king beyond the counties,^ and, under that theory, the sea and tlie land appear to have been re- garded as distinct territories.^ If, as Cockburn, C. J., sug- gests,^ the three-mile rule was adopted as a compromise of the earlier diverse claims, there would, perhaps, be no incon- sistency in maintaining that it limited this dominion in ex- tent but did not change its character, which, by the common law, if not by the law of nations, included rights of property as well as of jurisdiction.^ In this country, counties are dependent for their existence upon the consent of the leg- islature, which may change their boundaries at pleasure, if not restricted by express constitutional provisions ; ^ and to ' The decision in Regina v. Keyn is binding upon all the English courts. Harris v. The Franconia, 2 C. P. D. 173. See Direct U. S. Cable Co. v. Anglo-American Telegraph Co., 2 App. Cas. 394. In Blackpool Pier v. Pydle Union, 46 L. J. M. C. 189, the part of a pier which was beyond low-water mark was held to be beyond the realm, and not ratable as an extra-parochial place, under 31 & 32 Vict. c. 122, § 7. ^ " The narrow sea adjoining to the coast of England is part of the waste and demesnes and dominions of the king of England, whether it lie "within the body of any county or not." De Jure Maris, c. 4 ; Hargrave's Law Tracts, 10. See also Hale's unpublished treatise on Admiralty Jurisdiction, quoted by Gray, J., in Commonwealth v. Macloon, 101 Mass. 1, 12, pi. 5. ^ In 1 MoUoy, De Jure Maritimo (9th ed.), e. 5, pi. 14, note, it is said, with reference to the four seas : "The right unto the sea ariseth not froni the possession of the shores; far the soa and land make distinct territories, and by the laws of Eng- land, the land is called the realm, but the sea the dominion ; and as the loss of one province doth not infer that the prince must resign up the rest, so the loss of the land territory doth not by concomitancy argue the loss of the adjacent sea." " 2 Ex. D. 63. 5 Ante, §§ 7-10. * Laramie Co. v. Albany Co., 92 TJ. S. 307 ; Burns v. Clarion Co., 62 Penn. St. 425 ; Windham v. Portland, 4 Mass. 589; Opinion of the Justices, 6 Cush. 578 ; Stone i-. Charlestown, 114 Mass. 214; Eagle u. Beard, 33 Ark. 497 ; Dodson v. Fort Smith, Id. 508; Bittle v. Stuart, 34 Ark. 224, 231; Reynolds v. Holland, 35 Ark. 56 ; Albernathy e. Dennis, 49 Mo. 408 ; State v. Shortridge, 56 Mo. 126 ; Opinion of Supreme Court, 55 Mo. 295; "Woods u. Henry, Ibid. 560; Baltimore v. State, 15 Md. 37C ; GroC 0. Frederick City, 44 Md. 67; Fred- erick V. Goshon, 30 Md. 430; Wade V. Richmond, 18 Gratt. 583 ; Manly v. Raleigh, 4 Jones Eq. 370; Love c. 28 THE LAW OF WATERS. [part I. declare that the external bounds of a State upon the sear coast are limited by those of its counties, is but another form of saying that both depend upon the will of the legis- lature. According to the decisions in the State courts, these boundaries are not necessarily identical.^ Thus, in Schooner Norway v. Jensen,^ in Illinois, Breese, C. J., said, with refer- ence to the western part of Lake Michigan : " It is true, no portion of this vast body of water has been assigned to the counties bordering upon it, or received in any manner the attention of the legislature, yet it is, nevertheless, a portion of the navigable M^aters of this State and of our territory." The right of fishing within the distance of three miles from the shore was not considered in Regina v. Keyn, and appears to belong exclusively to the inhabitants of the littoral State.^ Schenck, 12 Ired. 304; Wallace v. Trustees, 84 N. C. 164 ; People v. Hill, 7 Cal. 97 ; San Francisco e;. Canavan, 42 Cal. 541 ; State v. Branin, 3 Zab. 485; Pell v. Newark, 40 N. J. L. 71; Detroit o. Blackeby, 21 Mich. 84; Barker v. District of Columbia, 91 tJ. S. 540; Beckwith v. Eacine, 7 Biss. 142. ' Mahler v. Norwich Transporta- tion Co., 35 N. Y. 358 ; 45 Barb. 226 ; .30 How. 237 ; Manley v. People, 7 N. Y. 295, 299, 303; Dunham v. Lam- phere, 3 Gray, ' 268, 270 ; Common- wealth V. Roxbury, 9 Gray, 451, 494; Koyser v. Coe, 37 Conn. 597, 613; Powers V. Larrabee, 1 Wis. 200 ; State V. Cameron, 2 Chand. (Wis.) 172 ; Hart V. Rogers, 9 B. Mon. 418, 422 ; United States v. Bevens, 3 Wheat. 336, 386 ; Montgomery v. Henry, 1 Dall. 49; Tyler v. People, 8 Mich. 320; 7 Mich. 161 ; 11 Am. L. Rev. 625. In this article in the American Law Review by Hon. Dwight Foster, it is said with reference to a nisi prius case tried in the Superior Court of Massa- chusetts in Barnstable County : " In the course of the trial, the presiding judge remarked : ' If the jurisdiction of the State extends to the distance of a marine league from the shore, as I suppose it does, it does not follow, as a matter of course, that the jurisdic- tion of the county of Barnstable ex- tends to that distance. I do not find any authority to that effect.' This nisi prius ruling was made by one of the ablest men of his day (Charles Allen of Worcester), who shortly after declined the place 'of Chief Jus- tice of Massachusetts, upon the re- signation of Shaw, C. J. But we refer to it, chiefly because it led to the immediate passage of the Massa- chusetts statute cited above." In the King r. 49 Casks of Brandy, 3 Hagg. Adm. 275,290, Sir John Mcholl said : " No person ever heard of a land jurisdiction of the body of a county wliich extended to three miles from the coast." In Maine, it is held that every part of the State is within some one of its counties. State u. Wagner, 61 Maine, 178. = 52 111. 373, 380. '•' See Gammell u. Commissioners of Woods and Forests, 3 Macq. 149 ; Dunham v. Lamphere, 3 Gray, 268; Schultes, Aquatic Rights, 3 ; Chitty on the Prerogative, 100; Vattel, tit. 1, c. 23; Puftendorf, IV. 4; VII. 8; Craig, Jus Feud. lib. 1, 15, § 13 ; Law- rence's Wheaton's Int. Law, pt. II. c. 4 ; CHAP. I.J OF PROPERTY IN TIDE WATERS. 29 § 14. All political bodies are not limited by the lines which bound their sub-divisions.^ Counties are made up o£ towns, cities, or parishes, and yet the seashore between high and low-water mark, though within the county at low tide,^ is presumed to be extra-parochial with respect to jurisdic- tion.^ This presumption applies to the shore of an arm of the sea * and of a tidal river ^ as well as to the shore of the external coast. § 15. In Regina v. Keyn, Kelly, C. B., and Sir R. Phillimore doubted whether Parliament could, consistently with a due regard to the rights of other nations and the principles of international law, create a general jurisdiction over the three- mile belt. It appears, however, to admit of little doubt that there is no legal restraint upon the legislature to assert and , exercise such power.^ The subject was discussed in Parlia- ment shortly after the above decision, and a statute was enacted by which foreigners passing in foreign vessels, with- in three miles of the shore, were made subject to the criminal law of England.'^ This statute appears to extend the juris- diction only. Martens, Precis du Droit, § 153; Hall's El. & El. 1068 ; McCannon v. Sinclair, International Law, 125. In the recent 2 lb. 53 ; Perrott v. Bryant, 2 Y. & C English work by Coulson and Forbes 61, 69; 31 & 32 Vict. c. 122, §27 on Waters (pp. 2, 4, 11) it said that a Blackpool Pier Co. u. Eylde Union, nation may bind itself by treaty, and 46 L. J. M. C. 189; 36 L. T. 251 perhaps by non-user, from participa- Reg. v. Newport, 31 L. J. M. C. 267. ting in the common right of fishing ^Ipswich Dock Commissioners r. at certain places in the sea in favor St. Peter, 7 B. & S. 310. of other nations ; and that " there can * Bridgewater Trustees v. Bootle- be no doubt but that by treaty, or by cum-Linacre, L. R. 2 Q. B. 4 ; 7 B. the implied assent of nations, the right & S. 348 ; Cory v. Bristow, 2 App. of fishing within three miles of the Cas. H. L. 262. Rex v. Landulph, coast of the United Kingdom is vested 1 Mod. & Rob. 393, seems to apply exclusively in the inhabitants subjects to parishes bordering on private of her Majesty." streams. • Embleton v. Brown, 3 El. & El. = Post, e. 3. 234; Regina v. Musson, 8 El. & Bk. " See Regina v. Keyn, 2 Ex. D. 63. 900; ante, § 13. ' 41 & 42 Vict. c. 73, entitled The '' Re^na v. Musson, 8 El. & Bk. Territorial Waters Act. In the House 900; Waterloo Bridge Co. a. Cull, 28 of Lords, the Lord Chancellor (Lord . L. J. Q. B. 75; 5 Jur. 1288. See Hale, Cairns), in duscussing the proposed De Jufe Maris, c. 6, I; Calmady v. legislation, said : "The jurisdiction to Bowe, 6 C..B. 880; Regina v. Gee, 1 which he had to call attention was 30 THE LAW OF AVATBES. [PAET 1. § 16. The effect of legislation relating to territorial waters lias also been brought in question. In Regina v. Keyn,' the not over rivers, bays, or harbours, because in respect of that no contro- versy had ever arisen, but the juris- diction over tlie territorial waters in that belt or zone of tlie high seas which more or less surrounded the shores of the empire. This, at iirst sight, would appear to be a question of law. No doubt it was a question of law, but he rather thought of that which had been described as the first law of nature — the law of self-pres- ervation. It was necessary, to some extent and in some measure, that there should be a territorial jurisdic- tion over the high seas surrounding the seaboard. No empire which had a seaboard could be allowed to remain without a jurisdiction of that kind. If in the case of such an empire it was held that the jurisdiction of the kingdom ended with the dry land, the consequence would be that the subjects of that kingdom in the pres- ence of foreigners would be absolutely without defence from the moment they entered the sea for the purpose of bathing, or fishing, or for any other purpose. Not only so, but when on dry land they would be without a protection, because if no jurisdiction from the land extended to the sea surrounding the seaboard, people from all parts of the world might come to tlie part of the high sea con- tiguous to the land and resort to practices which might be of the most serious character to people on shore. So, again, in the case of war, hostili- ties carried on by belligerents outside the shore might expose a neutral pow- er to the greatest danger. It might be asked whether the question was not solved, so far, at all events, as to the low-water mark to which unques- tionably the territorial jurisdiction extended. With regard to the low- water mark, it must be remembered that there were parts of the coasts wiiere there were considerable inter- vals between high and low-water marks, and also there were in the kingdom, as their lordships knew, many places where the sea came so close to the clifts that there was abso- lutely no horizontal interval between high and low-water mark. It had been suggested, or might be suggested, that if the jurisdiction of this country extended over the part of the high seas immediately adjoining the shore, inasmuch as the right of passage over that part was allowed to foreign ships, it would be unfair to claim such juris- diction as against them. He was quite willing to concede the right of passage contended for, but he had imagined that it was to be conceded on this footing and this fooling only — that those who availed themselves of the rights of passage should not expose themselves to any complaint of a violation of the rights of those by whom the right of passage was conceded. In truth, any such exemp- tion would apply to the case of for- eign ships coming into one of our bays." With respect to the decision in Eegina v. Keyn, the Lord Chancellor said : " One of the learned judges, for whom they all had the greatest re- spect, and whose judgment, from his experience in criminal cases, was of the greatest weight — Mr. Justice Lush — stated that though he con- curred with the Lord Chief Justice in that learned judge's view of the case, yet he wished to guard himself in this particular case with respect to the limits of the high seas." He then quoted the passage in the opinion of Lush, J-, in which that judge declined to adopt any expressions implying a doubt as to the competency of Par- ' 2 Ex. D. 03. CHAP. I.] OF PUOPEETY IK TIDE WATERS. 31 provision of the Merchant Shipping Act,^ authorizing the detention of a foreign vessel which had caused injury to the liament to legislate for these waters, and proceeded : " As he understood these words, if Sir Robert Lush had found that in the particular place Parliament had stepped in and said that portion of tlie water was part of the United Kingdom, he would have been of opinion that the Crown had territorial jurisdiction over it, and the conviction ought not to quashed. It was fortunate for the prisoner in the Tranconia' case, though not fortu- nate for the vindication of the law, that Mr. Justice Lush was under the impression that that had not been done which really had been done. It appeared that in an Act of 1848 for the regulation of customs there was a provision authorizing the Lords of the Treasury to establish ports in many places where ports were required, and to define their limits. Under that provision the Lords of the Treasury issued a warrant, which was inserted in the London Gazette of the 3rd of March, 1848. In that warrant were these paragraphs : ' That the limits of the port of Dover shall commence at St. Margaret's Bay aforesaid, and continue along the said coast of Kent to Cape Point in the said county. That the limits of the port of Folke- stone shall commence at Cape Point aforesaid, and continue along the coast to Dungeness, in the said coun- ty.' 'And we, the said Commissioners of Her Majesty's Treasury, do further declare that the limits seaward of the said ports shall extend to a distance of three miles from low-water mark, out to sea, and that the limits of such ports shall include all islands, bays, harbours, rivers, and creeks within the same respectively.' So that under Parliamentary powers the proper au- thorities had declared, long before the 'Franconia' case, that the limits of ' 17 & 18 Vict. the Port of Dover extended three miles out to sea. He understood the view of the majority of the judges to be this, there was one jurisdiction by land and the other by sea; that the jurisdiction by land was one limit- ed by the limits of counties, taking into the county the low-water mark, and the harbours and rivers within the county; and the jiirisdiction by sea, the old jurisdiction of the Lord High Admiral now exercised by the Central Criminal Court; that the jurisdiction of the Lord High Admiral extended to the high seas, but the persons over whom it was exercised must be British subjects, not foreign- ers ; and that the Central Criminal Court had no jurisdiction over the persons of foreigners beyond the low- water mark. That he understood to be the common ground on which the majority of the judges acted in quash- ing the conviction. And taking that as the ratio decidendi of the judges in a decision which he accepted, it would at first sight appear that there was nothing more for him to do than to ask the favorable consideration of their lordships for a Bill to amend the law; but there fell some observations from Sir Eobert Philli- more, the Lord Chief Baron, and the Lord Chief Justice, whose judgment was the most elaborate, and might be regarded as the leading judgment of the majority, and which contained a principle that seemed to challenge the right of Parliament to legislate on this subject. Expressions of the Lord Chief Justice would certainly seem to imply that we could not legislate with respect to the high seas even within the limits of the belt or zone to which he had referred without the consent of foreign nations, or until after communication with foreign ^. 104, § 527. 32 THE LAW OF WATERS. [PAET I. property of English subjects in any part of tlie world, if at any time thereafter such ship was found in any port or river of the United Kingdom, or within three miles of the coast, was considered insufficient to include the three-mile belt within the realm, and Cockburn, C. J., doubted whether it would apply to a ship on a foreign voyage. In 1794, Con- gress recognized the three-mile rule by authorizing the dis- trict courts to take cognizance of complaints in cases of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof.^ In the case of the Brig Ann,^ a seizure was made off Newbury- port, and within three miles of the shore, for violation of the embargo acts. Story, J., held that, as a principle of public law, the Avaters within the three-mile belt form part of the nation's territory ; * and that, as the acts in question extended to all places within the jurisdiction of the United States, these waters, as well as ports and rivers, were within the operation of the statutes. In Dunham v. Lamphere,* Shaw, C. J., expressed the opinion that, by virtue of a statute of Massachusetts, which prohibited fishing with a seine within one mile of the shores of^ Nantucket and other small islands, that extent of sea was within the territorial limits of the State. It is now provided by statute, in this and other nations. This was a very serious to a question in reference to the pro- question. If the judgments of those jected channel tunnel, in the House learned judges amounted, as they of Commons, Mr. Joseph Chamber- were supposed to do, to a proposition lain, president of the Board of Trade, of that kind, of course Parliament said that the chairman of the South- would be exceeding its powers if it eastern Railway had been warned that entered into legislation applj ing to the government claimed the bed of the that belt or zone with the view of sea for throe miles below low-water making foreigners answerable to our mark, and held themselves free to law. But he would ask their lord- use any powers at their disposal as ships to consider whether there was Parliament may direct, or the national any foundation for that principle, interest may require. He ventured to think there was not, ' 1 Stats, at Large, p. 384, c. 50, and he thought it would be a very § 6 ; 1 Kent Com. 26-30. serious thing if there were." London ' 1 Gall. 62. Times, Feb. 15, 1878, reprinted in 2 ^ Citing Church u. Hubbard, 1 Halleck's Int. Law (Baker's ed.), 559. Cranch, 187, 234. Blackpool Pier v. Fylde, 46 L. J. M. ■• Dunham v. Lamphere, 3 Gray, C. 189. On March 30, 1882, ia reply 268, 209. CHAP. I.] OF PEOPEETY IN TIDE WATEES. 33 States, that the territorial limits of the State extend three miles seaward from the shore. -^ § 17. The rights of the Crowij in tide waters are classed among the regalia or prerogative rights, like the right to treasure trove, to wreck, and the privilege of appointing ports and havens. Such privileiges are accorded to the king by the common law, as incident to the powers of govern- ment, for the protection of the realm, the regulation of the marine revenues, and in the interest of commerce.^ Accord- ' In Massachusetts, " the territorial limits of this commonwealth extend one marine league from its seashore at low-water mark"; "the bounda- ries of counties bordering on the sea extend to the line of the State as aboTe defined " ; and " the soTereign- ty and jurisdiction of the common- wealth extend to all places within the boundaries thereof." St. 1859, c. 289; Gen. Sts. (1860) c. 1, §§ 1, 2. And the boundaries of cities and towns bor- dering upon the sea extend to the State line. St. 1881, c. 196. In Rhode Island there is a similar statute, the line being, however, one league from the seashore at Ajy/i-water mark. Gen. Sts. (1872), c. 1, §§ 1, 2. See Eev. Sts. of E. I. (1857), c. 7, 8. In the Con- stitution of California, Art. 12, the State is bounded on the south along the boundary line between the United States and Mexico "to the Pacific Ocean, and extending therein three English miles"; and in the Political Code of that State it is provided, with respect to county boundaries (Sec. 3907), that "the words 'in,' 'to,' or ' from ' the ocean shore mean a point three miles from shore. The words 'along,' 'with,' 'by,' or 'on' the ocean shore, mean a line parallel with and three miles from the shore." Thus the boundary of Del Norte County, which is the northerly sea-coast coun- ty of that State, begins at a point in the Pacific Ocean, at the southern line of Oregon, and runs "thence southerly 6^ ocean shore," &e. Code, § 3909. As to the statutes of New York, see Mahler v. Norwich Trans- portation Co., 35 N. Y. 352, 360. See, also. Constitution of Alabama, Art. 2, § 1, and Code 1876, § 12 (16). The Eepublic of Texas defined its south- ern boundary as extending from " the mouth of the Sabine Elver and run- ning west along the Gulf of Mexico^, three leagues from land to the moutli of the Eio Grande," and after the' annexation of Texas, the State reaf-- firmed this right of jurisdiction, in-. Galveston i. Menard, 23 Texas,. 349,. 391, it is said that the admission; of ' this claim by other nations might depend upon the power of the Ettoral state to enforce it, but that the Boun- dary thus established was concliisive between its own citizens Avith' respect to the right of soil. 'Sy the treaty between the United States and' Mexi- co (9 St. at Large, 926, § 5), it was provided that the boundary • line be- tween the two countries should com- mence in the Gulf of Mexico three leagues from land opposite the mouth of the Eio Grande Eiver, and run north- ward with the middle of the river. See The Peterhoff, 5 Wall. 28, 51. ^ 1 Black. Com. 26.3,264; 2 Id. 14, 105, 204 ; Selden, Mare Qausum, lib. 2, c. 22, 24 ; Califs; on .Sewers, 39-41 ; Chitty's Prerogative of the Crown, 142, 173, 206i, GSm. Dig. . tit. Pre- 34 THE LAW OF WATERS. [PAET I. ing' to the treatise De Jure Maris, commonly ascribed to Lord Hale, and other authorities of the seventeenth century, which refer to early precedents, the Crown's interest in navi- gable waters is of a two-fold nature : first, the juH publicum, a right of jurisdiction and control for the benefit of its sub- jects, which is similar to the jurisdiction over public high- ways by land, though the right of soil maj' be in the owners of the adjoining estates, and for the protection of which the king, as the head of the realm, may interpose when the rights of the public are impaired ; ^ second, the ju8 privatum, or right of private property, which is subject to the jus pub- licum, and which cannot be used by the Crown or conveyed to a subject discharged of this public trust, or so as to justify any interference with the public rights of navigation and rogative D., and Navigation B. ; Ba- con's Abr. tit. Court of Admiralty A., and Prerogative B. 1, 3 ; 2 Roll. Abr. 168 ; Co. Litt. lb, So a; 3 Kent €om. 487 ; Woodward v. Fox, 2 Ven- iris, 267 ; Bracton, lib. 3, § 120 ; Hall Hale, De Portibus Maris, c. 7 ; Q. B. 330 ; Hex v. Tindall, 1 K & P. Hargrare's Law Tracts, 84 ; Callis on 723. Sewers, 174, 175 ; Woolrych on ■* Hale, De Portibus Maris, c. 7 ; "Waters, 193 ; 2 Story Eq. Jur. §§ 921 Hargrave's Law Tracts, 85 ; Attorney -925; Eden on Injunctions, 259; General i;. Richards, 2 Anst. 603, 015 ; Beames's GlanvUle, 239, note ; 3 Kent Attorney General v. Burridge, 10 Com. 432. Price, 350 ; Reg. u. Betts, 16. Q. B, 2 Ibid. ; New Orleans v. United 1022 ; Reg. v. Randall, 2 Car. & M. States, 10 Peters, 623 ; Hart v. Mayor, 496 ; Attorney General v. Terry, L. R. 9 Wend. 571; Commonwealth c. 9 Ch. 423; Attorney General v. Wright, 3 Am. Jur. 185 ; Watertown Evart Booming Co., 34 Mich. 462 V. Cowen, 4 Paige, 510 ; Attorney People v. St. Louis, 5 Gilman, 351 ; General v. Cohoes Co., 6 Paige, 133 ; Diedrich v. North Western Railway Mohawk Co. u. Railroad Co., Id. 554 ; Co., 42 Wis. 248. Davis V. Mayor, 14 N. Y. 526 ; People ^ Eden on Injunctions, 223 ; 2 Story V. Vanderbilt, 28 N. Y. 376. Eq. Jur. § 922 ; 2 Dan. Ch. Prac. 'Hale, De Portibus Maris, e. 7; (4th ed.), 1481; State u. Arledge, 1 Hargrave's Law Tracts, 85; Gann v. Bailey (S. C), 551. Whitstable Free Fishers, 11 H. L. «Ibid.; Milford Eq. PI. 145; At- Cas. 192; Williams v. Wilcox, 8 Ad. torney General v. Richards, 2 Anst. & El. 314; Colchester v. Brooke, 7 60G. 46 THE LAW OF WATEES. [PAKT I. cum of his subjects from the nuisance.' The terms purpres- ture and nuisance are sometimes used interchangeablj'. But, in strictness, that which is simply a purpresture is not subject to indictment, although abatable by the Crown.^ If the structure is both a purpresture and a nuisance, or if, being authorized by the Crown, it is a nuisance and not a purpresture, it is also liable to indictment,^ and to a private action in favor of individuals who sustain an injury distinct from that suffered by other members of the public* The mode of proceeding at common law to authorize the erection of wharves and other structures on the shores of the sea or of navigable rivers, where the property remained in the Crown, was to sue out a writ of ad quod damnum, and upon the return of an inquest by a jury, finding that no injury would result to the king or others from the grant, the Crown licensed what would otherwise be a purpresture.* Although a royal grant or license would not protect from indictment or injunction, ' Attorney General v. Parmenter, 10 Price, 378, 412 ; Attorney General v. Burridge, Id. 350; Attorney General V. Chamberlaine, 4 K. & J. 292 ; At- torney General v. St. Aubyn, Wightw. 167 ; Attorney General i. Kichards, 2 Anst. 003; Attorney General u. Johnson, 2 Wils. Ch. 87; Attorney General v. Philpot, cited 2 Anst. 607 ; Bristol Harbor Case, cited 18 Ves. 214 ; Attorney General v. Tomline, 12 Ch. D. 214; Attorney General ;;. Cleaver, 18 Ves. 218 ; Attorney Gen- eral <■. Forbes, 2 Myl. & Craig, 129; Bristol i;. Morgan, and Newcastle v. Johnson, cited in Hale, De Portibus Maris, c. 6; Hargrave's Law Tracts, 81; 2 Story Eq. Jur. §§ 921-925; Cooper, Eq. PI. 102 ; People v. Van- derbilt, 26 N. Y. 287 ; 28 N. Y. 396 ; 38 Barb. 282 ; Davis v. Mayor, 14 N. Y. 526 ; Mohawk Bridge Co. v. Utica Railroad Co., 6 Paige, 559; Hart c. Albany, 3 Paige, 559 ; Attorney Gen- eral V. Cohoes Co., 6' Id. 133; People V. St. Louis, 5 Gilman, 351. ■' Ibid.; 4 Black. Com. 271, note. ■■' Hex V. Grovcsnor, 2 Stark, 511 ; Attorney General v. Richards, 2 Anst. 603 ; Newcastle v. Clark, 2 Moore, 666; Rex c. Clark, 12 Mod. 615; Rose v. Miles, 4 M. & S. 101. * Post, § 122. ' Com. Dig. tit. Ad quod damnum ; Rex V. Montague, 4 B. & C. 598 ; Rex c. Russell, 6 B. & C. 566 ; Common- wealth V. Alger, 7 Cush. 53, 82 ; Nich- ols V. Boston, 98 Mass. 39, 41 ; Bell v. Gough, 23 N. J. L. 624, 661 ; Hen- dricks V. Johnson, 6 Porter, 572. The proceeding by inquisition under the writ of ad quod damnum, which was the common-law mode of taking pri- vate property for public use, is now quite generally superceded by the pro- visions in acts authorizing canals, dams, railroads, etc., for the condem- nation of private property. If the act of incorporation is silent as to the mode of proceeding, or the nature of things requires it, the principles, ap- plicable to proceedings under the writ of ad quod damnum, still govern. Compton V. Susquehanna Railroad, 3 Bland, 386. CHAP. I.J OF PROPERTY IN TIDE WATERS. 47 as nuisances, buildings which impair the common right of navigation, yet Parliament has the power to determine whether this would be for the public advantage. It may legalize encroachments which are for the benefit of naviga- tion,' and, it would seem, may also sanction such as are not in aid of the public right.^ § 22. The general principle is that no time runs against the king;^ yet by custom or prescription a subject may acquire certain of the maritime interests of the Crown, including the right of several fishery in the creeks and arms of the sea, the property in the shore and in land left by the reces- sion of the sea, and in wreck.* Lord Hale says that the evidence to prove that the shore is parcel of a manor are commonly these: "Constant and usual fetching gravel and seaweed and sea-sand between the high-water and low-water mark, and licensing others so to do ; inclosing and imbanking against the sea, and enjoyment of what is so inned ; enjoy- ment of wrecks happening upon the sand ; presentment and • Lowe V. Govett, 3 B. & Ad. 863 Eex V. Montague, 4 B. & C. 598 Vooght u. Winch, 2 B. & Aid. 602 Attorney General v. Burridge, 10 Price, 350 ; Attorney General v. Par- menter, 10 Price, 378, 412 ; Williams v. Wilcox, 8 Ad. & El. 314 ; Kex v. Mon- tague, 4 B. & C. 598 ; Arundel o. Mc- CuUoch, 10 Mass. 70 ; Commonwealth V. Charlestown, 1 Pick. 180, 185; Wes- ton w. Sampson, 8 Gush. 347, 352; Commonwealth v. Alger, 7 Cush. 53, 83; Nichols v. Boston, 98 Mass. 39, 41 ; People v. New York Ferry Co., 68 N. Y. 71 ; Vanhorne v. Darrance, 2 Dall. 304 ; Flanagan v. Philadelphia, 42 Penn. St. 219, 230; Scudder v. Trenton Falls Co., Sax. (N. J.) 696; Gough V. Bell, 22 N. J. L. 441, 457. * Ibid. In this country, the powers of Congress and of the State legisla- tures are restrained by written con- stitutions, bilt acts of Parliament are valid, though they conflict with the unwritten constitution. 4 Co. Inst. 36 ; 1 Black. Com. 90, 160, 161, 244 ; Halo, Of Parliaments, 49 ; Locke on Gov- ernment, p. 2, §§ 149, 227; Broom's Const. Law, 795; De Tocguevillo, Democracy in America, c. 6 ; Hodgdon V. Little, 14 C. B. n. s. Ill ; 16 Id. 198; EoUe v. Whyte, L. E. 3 Q. B. 286, .306 ; Eduljee Byramjee, Ex parte, 5 Moo. P. C. 294; 3 Moo. Ind. App. 468 ; Eaton v. B. C. & M. E. Co., 51 N. H. 504, 510 ; Thompson v. Andros- coggin Co., 54 N. H. 545, 556. ^ 3 Black. Com. 257 ; Broom's Le- gal Maxims, 165. No lapse of time will legalize a public nuisance, and the right to maintain encroachments which limit the public right cannot be gained by prescription. Post, § 121 ; Peckman v. Henderson, 27 Barb. 207. * Hale, De Jure Maris, c. 5, 6 ; I-Iar- grave's Law Tracts, 18, 25, 27, 29, 31, 32 ; Kingston v. Homer, Cowper, 102, 215; In re Belfast Dock, 1 Ir. Rep. EcL. 128 ; Re Alston's Estate, 5 W. E. 189. 48 THE LAW OF WATERS. [PAKT I. punishment of purprestures there in the court of a manor ; and such like. And as it may be paroell of a manor, so it may be parcell of a vill or parish ; and the evidence for that will be usual perambulations, common reputation, known metes and divisions, and the like." ' He does not indicate how many of these evidences should combine in order to establish such title to the shore. It has been held that a prescriptive right to wreck will not alone confer such title as against the Crown.^ It would, however, appear that long- continued enjoyment of the shore by taking shell-fish and gravel, or by letting it to tenants to take seaweed, may suffice to prove that it is part of the adjacent manor.^ Mr. Hall* discusses this doctrine of prescription at length, and concludes that the shore, being land,^ must be governed by the rules of law which applj^ to inland estates ; that a title to this, as well as other land, can only be established, by prescription against the Crown, by showing an adverse pos- session for sixty years, which is the period prescribed by the Statute of Limitations as to Crown lands ; that such adverse possession must, as in the case of the dry land, be proved by showing occupation and actual possession, and that the taking of wreck and seaweed, and the exercise of similar privileges, which do not necessarily imply a title to the soil, because they may be possessed without it, cannot be evidence to establish an absolute ownership in the shore hy prescrip- tion. § 23. Under a royal grant, no alienation will be presumed beyond what is clearly and indisputably expressed.^ But 1 Hale, De Jure Maris, c. 7; Har- "'Hall on the Seashore (2d ed.), grave's Law Tracts, 27; As to par- 16-40, 217. See Phear's Eights of ishes, see Perrott o. Bryant, 2 Y. & Water, 88. Col. 61. ' Scratton v. Bro\™, 4 B. & C. 485 ; " Dickens v. Shaw, reported in Hall Chad v. Tilsed, 2 Brod. & Bing. 403, on the Seashore (2d ed.), App. 45. 409; 5 Moore, 185 ; Beaufort t;. Swan- See Chad V. Tilsed, 5 Moore, 185, 197 ; sea, 3 Exch. 413. 2 Brod. & Bing. 403 ; Calmady v. Kowe, * Royal Fishery of the Banne, Sir 6 C. B. 861, 891 ; ante, § 6. John Davies, 149 ; Somerset o. Fog- ^ See Le Strange v. Rowe, 4 F. & well, 5 B. & C. 375; Attorney Gen- F. 1048 ; Healy v. Thome, Ir. R. 4 C. eral v. Farmen, 2 Lev. 171 ; post, § 29. L. 495. CHAP. I.] OP PEOPEETY IN TIDE WATERS. 49 where the subject possesses land adjoining the sea, the title to which was acquired under an ancient grant from tlie Crown, which does not by its terms clearly exclude the shore, modern usage is admissable to interpret the grant, and to establish a title to the soil between high and low-water mark as part of the adjoining lands.' Thus, modern acts of ownership may be admitted to show that ancient grants of King John and Edward I. included the sea-coast down to low-water mark;^ to show whether the words "river L." iu an ancient patent comprised the bed of the river down to a point where it reached the sea, or only to a certain ford some distance up the river,^ or to shoAv that the seashore is parcel of a manor.* In Chad v. Tilsed,^ it appeared that a grant of wreck was made by King Henry II., in connection with the grant of certain lands upon the coast, which was confirmed by Henry VIII. The proprietors had erected an embankment upon the shore forty j^ears prior to the suit, and, though the bank had been broken by tempests, had since asserted, without opposition, an exclusive right to the soil thus enclosed. It was held that this exclusive occupa- pation and usage constituted evidence from which a previous, usage might be presumed, and that such usage, coupled with. ' Chad ,: Tilsed, 5 Moore, 185; 2 E. 877; Brine v. Thompson, 4 Q. B.. Brod. & Bing. 403 ; Beaufort r. Swan- 543, 552 ; Iv re Belfast Dock Act, Ir.. sea, 3 Exch. 413; Levett ;■. AVileon, 3 E. 1 Eq. 128; Healy v. Tlwrne, Ir: Bing. 115; Lopez v. Andrews, 3 Man. E. 4 C. L. 405; Donegal v. Temple-- &Ryl. 329; Weld ,. Hornby, 7 East, more, 9 Ir. C. L. E. 374; Brew r. Ha- 104, 199 ; Attorney General c. Jones, ren, Ir. E. 11 C. L. 198 ; Ir. E. 9 C. L. 2 H. & C. 347 ; Calmady r. Rowe, 6 C. 29 ; Boyle ;•. MulhoUand, 10 Ir. C. L., B. 861; Attorney General v. Cham- E. 150; MulhoUand v. Killen, Ir. E. berlaine, 4 K. & J. 292; Hastings r. 9 Eq. 471 ; Bloomfleld v. Johnson, Ir. Ivall, L. R. 19 Eq. 558; Attorney E. 8 C. L. 68, 91. General v. Chambers, 4 De Gex & J. '-^ Beaufort v. Swansea, 3 Exch. 413 ; 55; 4 De Gex, MacN. & G. 200; Attorney General y. Jones, 2 H. & C. ■JVaterpark v. Eennell, 7 H. L. Cas. 347 ; Le Strange v. Eowe, 4 E. & F. 650; Malcomson v O'Dea, 10 H, L. 1048; Hunt on Boundaries (2d ed.), Cas. 593; Rogers v. Allen, 1 Camp. 225. 309 ; Lee v. Brown, 2 Mod. 69 ; Bris- ^ Donegal v. Templemore, 9 Ir. , tow V. Cormican, 3 App. Cas. 641 ; Ir. Com. Law, 374 ; In re Belfast Dock, R. 10 C. L. 425 ; Lord Advocate o: 1 Ir. Eq. 128. Blantyre, 4 App. Cas. 770; Newcas- " Calmady v. Rowe,.6.G. B. 861. tic Pilots V. Bradley, 2 El. & B. 428, ^ H Moore,, 185; 2 Brod. & Biiii;. note; Jenkins v. Harvey, 1 C. M. & 403. 50 THE LAW OF WATERS. [PAET I. the general terms of the grant, served to elucidate it and to establish the asserted right to the shore. Dallas, C J., said:' " 1 agree that cases of this sort may rest on one or both of the two following grounds : That is to say, on grant, or on usage which presupposes a grant ; I agree, also, that in the ease of a grant, no usage, however long, can countervail the clear words of the instrument, for what is done under usurpation cannot constitute a legal usage ; but it is equally clear that when a grant of remote antiquity contains general words, the best exposition of such a grant is long usage under it. Unless, therefore, the usage of forty years ago can be proved to have originated in usurpation, it is evidence whence usage anterior to that time may be presumed ; and such a length of modern usage, connected with the ancient usage, affords the strongest exposition of the meaning of the original grant." In the recent case of Hastings v. Ivall,^ the town of Hastings sought to restrain the defendant by injunc- (tiou from depositing earth upon a portion of the shores with- in its limits. Letters patent from Queen Elizabeth to the (Corporation were produced, which granted certain lands in • and about Hastings, and "all that her parcel of land and her hereditaments called the Stone Beache, with the appur- tenances in Hastings aforesaid, in the said county of Sussex, .and all messuages, houses, edifices, and buildings whatsoever, -with the appurtenances, in and upon the aforesaid parcel ■ of land called the Stone Beache." It appeared that the i.corporation had exercised acts of ownership over the beach; that these acts had on several occasions been recognized by the Crown, but that there had been certain acts on the part of the corporation tending to show admissions of the title of the Crown to certain parts of the beach. The power of the Crown to grant the shore in the reign of Elizabeth was not doubted, and as the term " Stone Beach " was now applied to the soil below, as well as above, high-water mark, the corpora- tion was held to have a sufficient possessory title to the space between high and low-water mark to enable it to maintain the suit against a mere trespasser, even though the ' 2 Brod. & Bing. p. 406. » L. E. 19 E^. 558. CHAP. I.] OF PBOPEETY IN TIDE WATERS. 51 evidence might not be sufficient to displace the prima facie title of the Crown. In this country, also, ancient patents, or grants from the government, in which the description of the land is vague, may be interpreted by the acts of the government, of the parties, and of those claiming under similar grants of the contiguous lands. ^ So, also, ancient deeds and plans may be introduced in evidence to show the position of a creek or arm of the sea which has been filled up since they were made.^ § 24. In strictness, the jus publieum is limited to the rights of navigation and fishery, and to the incidental rights above referred to.^ In the case of Bagott v. Orr,* in which the prima facie right of every subject to take shell-fish found upon the sea beach between high and low-water mark was recognized, the court declined to express an opinion as to the subject's right to take shells, saying that, as no authority was cited in support of it, they should pause before estab- lishing a general right of that kind.^ In Porter v. Shehan,^ in Massachusetts, it was held, with respect to . unenclosed flats, which were private property, subject to the right of the pubUc to take floating and shell-fish therefrom, that the pub- lic right of fishery does not include the right to take the soil, or fish shells, part of the soil, except such slight portions of the soil as would necessarily and ordinarily be attached to shell-fish when taken. So, the public have no right to take mussel-bed manure from private flats,^ or sand, gravel, ' Schenck v. Wood, 13 Johns. 346; * Bos. & P. 472. Hewlett V. Cock, 7 Wend. 371 ; Owen * Id. p. 479 ; Blundell v. Catterall, V. Bartholomew, 9 Pick. 520 ; Boston 5 B. & Aid. 268, 299. See Hall on V. Richardson, 105 Mass. 351, 371 ; the Seashore (2d ed.), 187. Stoutenburgh v. Murray, 7 Johns. 5 ; * 7 Gray, 435. Hardenberg v. Schoonmaker, 7 Johns. ' Moore v. Griffin, 22 Maine, 350, 12 ; Wilkins v. Lamb, 7 Cowen, 431. 355 ; Moulton v. Libbey, 37 Maine, ' Drury v. Midland Railroad, 127 493 ; Clement v. Burns, 43 N. H. 609. Mass. 571 ; Bust v. Boston Mill Cor- See Le Strange v. Rowe, 4 I". & E. poration, 6 Pick. 158; Sparhawk i'. 1048 ; Cowper «. Barker, 17 Ves. 128; BuUard.lMet. 95; Barker w. Bodwell, Brew v. Haren, Ir. B. 11 C. L. 198; 3 Dane Abr. 397 ; Commonwealth Calmady v. Bowe, 6 C. B. 879 ; Jer- u. Crowniushield, 3 Dane Abr. 397. wood on the Seashore, 87. See Ma- 3 Ante, § 20. loon v. White, 57 N. H. 152. In tlie 52 THE LAW OF WATEKS. [PAKT I. or shingle from the shore above high water, even when it is case of Dickens c. Shaw (Hall on tlie Seashore, 2(1. ed., App. 45, GO, 64, 05), the lords of the manor of Brighton sued the defendant for digging and taking away sand from the seashore of Brighton, and the jdaintiffs, being put to proof of their title to the locus in quo, proved only, as a badge of ownership, tlie right to wreck. Mr. Justice Park instructed tlio jury inler alia that by the law of England the king had the right of soil between liigh and low-water mark, but that the subject might be in possession of it by grant or prescription, which was evidence from which they might draw an inference, and that, if the lord of the manor was entitled to wreck, this, if uncontradicted, was evidence of a, title to the soil. The jury returned a verdict for the defendant, with which the presiding justice certified that he was not satisfied. Upon the hearing to obtain a new trial, Mr. Justice Bailey said (p. 50) with reference to the fact that many pei'sons had com- monly taken sand from this beach : " I do not think that it proves the right is not in the Crown ; for, in general, the Crown has the right, — not with a view to the private reser- vation to collect the stones for itself, or to collect the sand for itself, but for t!ie general interest for the public ; and if you can, without interfering with and prejudicing the interest of the I)ublic, remove the sand and the stones, the Crown will not interfere. But if you do that which amounts to a nuisance, then you may be indicted for it." Mr. Justice Holroyd (p. fiO) said ; " The circumstance of any per- sons who chose getting sand, and their manner of conducting themselves, evidently thinking they had a right to do it, is evidence to show that the right was in the Crown, and not in the lord of the manor, who may be presumed to have been present and looking' after his right, not person- ally, but by his reeve or bailiff or some other person whose business it was to look after his property. If the right is in the Crown, the Crown is more likely not to be looking after this, wliieh, though it may have been beneficial to the public, yet it is a sort of property which the Crown would be less likely to interfere with, and to take away the right from the subject, who is likely to derive some benefit from it." Mr. Justice Best (p. 57) said: "AVhat Lord Ilale says is that a party having one right is some evidence to show that he ha« another; but not that it is suflBcient to show, by having the right of wreck, that he is the owner of the soil. The ease liere is nothing like that which he i)uts ; he should show that he has continually taken sand, and licensed others to do so ; — is there any evidence of that kind in this cause 'i It appears that, in ancient times, whoever thought proper to carry a^vay sand did so. It appears that, in modern times, the lord has interrupted the parties ; but it does not appear that he has, in any other instance, either licensed others to ex- ercise this right, or exercised it him- self. I think this was an extremely weak case on the part of the lord of the manor; and, in my judgment, certainly not sufficiently strong to beat down the common-law right wliieh exists in the king. It has been argued that these acts were done by individuals at Brighton wlio gave no proof of riglit ; if the right is in the king, it is not necessary they should have given that proof, because he has the common-law right. Is there any evidence to show that the com- mon-law right has, or has not, been transferred to the lord ? It is to be presumed that, while the right is in the king, he would permit these things to be done, if they were not injurious to the navigation." jV new trial was CHAl'. I.J OF PROrERTY IN TIDE AVATERS. 53 desired for ballast in aid of navigation.^ If the sand of the shore is drifted by' the wind upon a private close, it becomes a part of that close, and a custom to take such sand is bad.^ No right to thus remove the soil of a landowner can be ac- quired by a custom, not annexed to the person or attached to a particular estate, on behalf of the inhabitants of a town or locality, however ancient or imiform sucli custom may have been ; ^ nor can the public gain such a right by general custom or prescription,* inasmuch as a claim destructive of refused. It is clear from these ex- pressions, and from the fact that the presiding judge was not satisfied with the verdict, that, in the opinion of these judges, there is no affirmative general right to take sand or gravel from the shore, although the Crown may suffer, or even may be presumed to suffer it to he done when the pub- lic rights will not be impaired. See also Bro. Abr. tit. Customs, 46 ; and remarks of Holroyd, J., in Blundell v. Catterall, 5 B. & Aid. 268. ' In Lime Regis v. Taylor, 3 Lev. IGO, it was held that a custom to take gravel for ballast in ships is a good custom. See also Johnson w. Wyard, 2 Lutw. 1344. But this is not sup- ported by tlie later decisions cited in the following notes. " Blewett V. Tregonning, 3 Ad. & El. 554. ' Loyd V. Jones, 6 C. B. 81 ; Mur- phy P. Ryan, Ir. E. 2 C. L. 143; Bland v. Lipscomb, 24 L. J. Q. B. 155, note ; Pitts r. Kiugsbridge Board, 19 W. E. 884; Constable t. Nicholson, 14 C. B. N. s. 230 ; Maldon v. Woolvet, 12 Ad. & El. 13 ; Eace v. Ward, 4 El. & Bl. 702 ; Eivers v. Adams, 3 Ex. D. 361 ; Chilton v. London, 7 Ch. D. 735 ; Saltash ^: Goodman, 5 C. P. B. 431 ; Attorney General v. Mathias, 4 K. & J. 579; Allgood v. Gibson, 34 L. J. N. B. 883 ; Murgatroyd ;;. Robinson, 7 El. & Bk. 391 ; Padwick v. Kcight, 7 Exch. 854; MacNamara c. Iliggins, Ir, E. 4 C. L. 326; Dyce v. Hay, 1 Macq. H. L. 305 ; Oxenden v. Palmer, 2 B. & Ad. 230; Gateward's Case, 6 Rep. 59 b; Grimstead i-. Marlowe, 4 T. R. 718; Willingale v. Maitland, L. E. 3 Eq. 103 ; Lynn v. Taylor, 3 Lev. 160;, Hall on the Seashore, (2d ed.), 196 eJ ssq.; Lockwood i>. Wood, 6 Q.B. 50 ; Weekly v. Wildman, 1 Ld. Eaym. 405 ; Selby v. Robinson, 2 T. R. 758 ; Rogers v. Brenton, 10 Q. B. 26 ; Mel- lor V Spateman, 1 Saund. 341 ; Wil- son V. Willes, 7 East, 121 ; Clayton v. Corby, 5 Q. B. 415; 5 Tin. Abr. 29; Waters v. Lilley, 4 Pick. 145 ; Melvin V. Whiting, 7 Pick. 79 ; 13 Pick. 184 ; Coolidge V. Learned, 8 Pick. 503 ; Sale u. Pratt, 17 Pick. 191, 197; Green v. Chelsea, 24 Pick. 71, 80; Porter r. Sullivan, 7 Gray, 441 ; Bos- ton r. Richardson, 98 Mass. 351, 357; Morse r. Marshall, 97 Mass. 519 ; Per- ley V. Langley, 7 N. H. 233 ; Knowles V. Dow, 22 N. H. 387 ; Nudd !•. Hobbs, 17 N. H. 524; Merwin v. Wheeler, 41 Conn. 14; Hill r. Lord,48 Maine, 83, 98. " Ibid. ; Hilton r. Granville, 5 Q. B. 701 ; Fitch r. Bawling, 2 H. Bl. 393 ; Pearsall v. Post, 20 Wend. 119; s. c. 22 Wend. 425; Cortelyou .,. Van Brundt, 2 Johns. 357 ; JMunson v. Hun- gerford, 6 Barb. 265, 271; Curtis v. Keesler, 14 Barb. 511, 521 ; Cobb v. Davenport, 33 N. J. L. 223 ; Tinicum Fishing Co v. Carter, 61 Penn. St. 21 ; Merwin r. Wheeler, 41 Conn. 14; Manion r. Creigh, 37 Conn. 462 ; State V. Wilson, 42 Maine, 9, 28 ; Bethum I. Turner, 1 Greenl. Ill; Littlefield V. Maxwell, 31 Maine, 134, 141. 64 THK LAW OF WATE1^S. [PAKT I. the subject-matter of a grant cannot be set up by usage. The Crown, being charged by the prerogative with a duty to protect the reahn from the inroads of the sea, may restrain a subject from removing sand or stones from the seashore, if the effect will be to destroy a natural barrier against the sea.^ So, in this country, the legislature of a State may, by statute and without compensation, prohibit the removal of stones, gravel, or sand from a beach when such removal would endanger a harbor and its navigation. 2 The rights of the public in tide waters and their shores, for navigation and fishery, not being affected by a transfer of the Crown's in- terest to individuals, it would appear that, as the public have no right to take sand from a private beach, they cannot claim that right where the shore remains in the Crown.^ When ' Attorney General v. Tomline, 12 Ch. D. 214 ; Nicholson v. Williams, h. R. 6 Q. B. 632. " Commonwealth v. Tewksbury, J.1 Met. 55; Boston y. Richardson, 105 Mass. 351, 362 ; Boston v. Lecraw, 17 How. (U. S.) 420, 433. Large stones are not " gravel " or " sand," though imbedded in and mi.\ed with the gravel of a beach. Brown u. Brown, 8 Met. 573. ^ Blundell v. Catterall, 5 B. & Aid. 268 ; per Best, J. ; Dickens v. Shaw, in Hall on the Seashore (2d ed.), App.; Howe V. Stowell, 1 Alcock & Nap. 356 ; Bagott v. Orr, 2 Bos. & Pul. 472 ; Moore v. Griffin, 22 Maine, 350, 355 ; -Dickens v. Shaw, above cited. Mr. Hall (on the Seashore, 2d ed., 92, 186), argues in favor of the right of the pub- lic to take sand, etc., from the shore, although he admits that there is no direct authority upon the question in England, p. 210. He refers to the statute 7 James, c. 18, making it law- ful for the inhabitants of tlie maritime counties of Devon and Cornwall to take sea-sand at all places under the full sea-mark "as they have hereto- fore used to do " (until interrupted by the owners of the lands adjacent to the sea-coast, who demanded "com- position with them at such rates as they themselves set down"), and thinks that this act, though locally limited in its application, is declara- tory of the common law. pp. 96, 209- Lord Hale, in stating how the subject may become possessed of the shore, cites this statute, saj'ing : " The shore ' may belong to ' a subject. The statute 7 James, u. 18, supposeth it, for it provides that those of Devon and Cornwall may fetch sea-sand for the bettering of their lands, and shall not be hindered by those who have their lands adjoining the sea-coast, which appears by the statute they could not formerly ." De Jure Maris, e. 6, 1. Mr. Hall considers (p. 95, note) tliis interpretation contrary to the words of the statute. In this country Mr. •Dane (Dane's Abr. art. 3, § 2) says that the Massachusetts ordinance of 1641, which extended the title of tlic littoral proprietor to low-water mark not exceeding one hundred rods [post, §§ 27, 169), but reserved "free fishing and fowling " to the public, had been constantly practiced upon " as to fish- ing and fowling, taking sand, sea- manure, and ballast as the right of soil in flats ground." In Moore r. Griffin, 22 Maine, 350, 355, which ro- CHAP. I.] OP PROPERTY IN TIDE WATERS. 55 the shore is private property, a removal of sand or gravel therefrom by the owner is a natural and lawful use of such property, and he appears to be subject to no liability, if the Crown or the State does not interfere, for injury to the ad- joining lands resulting from a consequent overflow of the sea.' § 25. The right to gather seaweed and other marine growths is analagous to the right to take sand and gravel. The sea and the soil under it being the property of the Crown, the lord of a manor cannot acquire an exclusive right to take seaweed growing below low-water mark, except by grant from the Crown, or such long and undisturbed en- joyment as will establish a title by prescription.^ When these products become detached from the sea-bottom by natu- ral causes, and float from place to place with the tides and currents, a different rule is applied in practice. While sea sand does not lose its character of realty by natural changes,' seaweed is, by some authorities, classed with personal prop- erty.* It does not appear that the Crown has ever made any lated to flats between high and low- heach above high-water mark, and the water mark, Shepley, J., said, with decision there was that an individual, reference to Mr. Dane's statement : as one of the public, could not acquire "No such right of taking sand, man- such a right by prescription, it not ure, or ballast is reserved in the grant being incident to an estate in other made to the owner of the adjoining lands. land. And Mr. Dane does not refer ' Attorney General v. Tomline, 12 to any authority or decision in sup- Ch. D. 215; Hudson v. Tabor, 2 Q. B. port of that practice. No such prae- D. 290. As to the remedy in equity tice can be recognized as depriving to protect private property from being the legal owner of his rights accord- endangered by the removal of shingle, ing to his title, unless supported by etc., forming a defence against the proof that would establish a common sea, see Clowes v. Beck, 13 Beav. 347 ; right. The language of the ordinance Chalk v. Wyatt, 3 Meriv. 388 ; Cowper cannot be extended beyond the obvi- v. Baker, 17 Ves. 128 ; Maloon v. ous meaning of the words fishing and White, 57 N. H. 152. fowling. . . . Neither the ordinance '' Benest v. Pipon, 1 Knapp P. C. 68. nor the common law would authorize ' Blewett v. Tregonning, 3 Ad. & the taking of 'mussel-bed manure' El. 554. from the land of another person." * Church v. Meeker, 34 Conn. 421 ; See, also, Clement v Burns, 43 N. H. Mather o. Chapman, 40 Conn. 382. 609 ; Emans v. TurnbuU, 2 Johns. 313, Seaweed, cast upon the shore by the 322. The recent case of Merwin r,. sea, and left ungathered by him who Wheeler, 41 Conn. 14, related to the has the exclusive ownership of such taking of sand by prescription from a shore, has been held in Ireland not to 56 THE LAAV OF WATKilS. [rAUT I. exclusive claim to seaweed,i and the public may have a per- missive right to take it, vs'hen not cast upon those parts of the shore which have passed into private hands. Floating seaweed may thus, in point of fact, be regarded as having ]io owner. In the few instances in which the title to it has been called in question, the contest has been between those who claimed by prior occupancy and the proprietor upon whose land it was carried by the sea.^ If seaweed is de- posited by storms or tides upon the upland above high-water mark, or upon flats below high-water mark, belonging to an individual, the owner of the land is constructively first occu- pant, although he may leave it ungathered.-^ A stranger can- be the subject of larceny. Queen c. Clinton, Ir E. 4 C. L. 6. In the recent Irish case of Brew r. Haren, Ir. K. 11 C. L. 198; s. c. Ir. R. 9 C. L. 29, it was held (two judges dissenting) that trover lay by one wlio owned the shore down to low-water mark, for the wrongful taking of seaweed cast upon' the shore between higli and low-water mark, though such seaweed had been left ungathered by the plaintiff ; it being considered that trover might be maintained for the conversion of an article the taking of which would not constitute larceny. Upon the other hand, Chancellor Kent treated sea- weed, when washed ashore, as realty. In the leading case of Emans v. Turn- bull, 2 Johns. mS, 322, he said: "The seaweed thus thrown up by tlie sea" (i.e. upon a portion of the seashore which was private property) " may be considered as one of those marine increases arising by slow degrees ; and according to the rule of the common law, it belongs to the owner of tlie soil. The rule is that, if the marine increase be by small and almost im- perceptible degrees, it goes to the owner of the land ; but if it be sudden and considerable, it belongs to the sovereign (2 Black. Com. 261 ; Harg. Law Tracts, 28). The seaweed must be supposed to have accumulated gradually. The slow increase, and its usefulness as a manure, and as a protection to the bank, will, upon every just and equitable principle, vest the property of the weed in the owner of the Jand. It forms a rea- sonable compensation to him for the gradual encroachments of the sea, to which other parts of his estate may be exposed ; this is one sound reason for vesting these marine increments in the proprietor of the shore. The jus alluvionis ought in this respect to receive a liberal encouragement in favor of private right." ' Brew V. Haren, Ir. E. 11 C. L. 205, per Fitzgerald, J., who further says : " There seems also to be an absence of any claim to the property in such weed before appropriation on behalf of the grantee of the Crown until very recent times. Tlie grantee of the Crown usually asserted his riglits, whatever they were, by exclud- ing the public from going on or over his lands to the seashore ; or by excluding them from the seashore when he was in a position to assert his exclusive title to the soil of the seashore." " Church V. Meeker, 34 Conn. 421 ; Mather v. Chapman, 40 Conn. 382; Chapman r. Kimball, 9 Conn. 38 ; Hill „. Lord, 48 Maine, 83. ^ Emans !,■. Tiu-nbuU, 2 Johns. 313, 821 ; Parsons v. Miller, 15 AVcnd. 561 ; CHAr. I.j OF PKOPERTY IN TIDE WATERS. u7 not lawfully enter upon land for the purpose of taking sea- ^yeed,' and a statute wliicli gives it to a person other than Phillips V. Rhodes, 7 Met. 322 ; Bar- I'.er V. Bates, 1 The Clymene, 24 Alb. L. Journ. 491. 1 Mobile V. Kimball, 102 TJ. S. 691. * Inman Steamship Co. v. Tinker, 94 U. S. 238; Transportation Co. i: Wheeling, 09 IT. S. 273; Steamship Co. V. Portwardens, 6 Wall. 31 ; Cran- dall ,,. Nevada, 6 Wall. 35; State Tonnage Tax Cases, 12 Wall. 204; Peete v. Morgan, 19 Wall. 581 ; Can- non V. New Orleans, 20 Wall. 577; Hackley v. Geraghty, 34 N. J. L. 332; John Kyle Steamboat Co. u. New Orleans, 23 Int. Rev. Rec, 19. CHAP. II.] OF rEOPEUTY IK TIDE WATEES. 81 taxes upon the transportation of passengers ; ^ or imposts or duties upon exports and imports.^ Wharfage charges, im- posed on vessels as an equivalent for the benefits and facili- ties furnished to them in mooring and landing cargoes, arc not within these prohibitions, even though the vessels are enrolled and licensed under the acts of Congress, and the rates are proportioned to their tonnage ; ^ but one State can- not, under the pretence of exacting wharfage dues, build up its domestic commerce by means of oppressive burdens upon the industry and business of other States.* A State may also authorize enrolled and licensed steamboats, plying between different ports upon a river, to be taxed as personal property by the city which is their home port, and in which the com- pany owning them has its principal office." So, it may pro- vide a remedy in personam for injuries caused by the negli- gence of a common carrier upon the bays and rivers withim its territorial jurisdiction, and the law giving such remedy is not invalid as a hindrance to the free exercise of the license to vessels navigating such waters under the acts of Congress." It may regulate the manner of rafting and driving logs down its rivers,'^ and may incorporate companies, ^yitIl power to » Smith V. Turner, 7 How. 283 ; 4 man v. McMains, 30 La. Ann. 190 ; Denio, 475, n. ; New York ik Miln, 11 1st Municipality v. Pease, 2 La. Ann. Pet. 102 ; Groves v. Slaughter, 15 Pet. 538 ;' Cannon v. New Orleans, 20 Wall. 449; Railroad Co. v. Maryland, 21 577; 27 La. Ann. 16; Leathers v. Wall. 460 ; Chy Lung v. Freeman, 92 Aiken, 25 Alb. L. Journ. 254 ; Stcrrett U. S. 275; Henderson v. New York, u. Houston, 14 Texas, 153. See Nortli- 92 U. S. 259 ; Norris v. Boston, 7 How. western Co. v. St. Paul, 3 Dill. 454. 283 ; 4 Met. 282. * Guy v. Baltimore, 100 TJ. S. 434 ; ••' Brown v. Maryland, 12 Wheat. The John M. Welcli, 18 Blateh. 54 ; 419; The License Cases, 5 How. 504 ; Webb v. Dunn, 18 Fla. 721. Nathan v. Louisiana, 8 How. 73; Mager '' Transportation Co. o. Wheeling, I. Grima, Id. 490; Aguirre v. Max- 90 U. S. 273; The North Cape, (i well, 3 Blateh. 140 ; Clarke v. Clarke, Biss. 505 ; People t . Commissioners, 3 Woods, 408. 48 Barb. 157. ^ Packet Co. v. Keokuk, 95 U. S. « Steamboat Co. v. Chase, 10 Wall. 80 ; Nohhwestern Union Packet Co., 522 ; 9 R. I. 419 ; Sherlock v. Ailing, i: St. Louis, 4 Dillon, 10, 18, n. ; The 03 U. S. 99; 44 Ind. 184. Ann Eyan, 7 Ben. 20; Keokuk u. 'Scott v. Wilson, 3 N. H. 321; Keokuk Northern Line Packet Co., Craig ?>. Kline, 05 Penn. St. 399 ; Har- 45 Iowa, 196 ; Worsley v. 2d Munici- rigan i-. Connecticut lUver Lumber pality, 9 Rob. (La.) 324; Schwartz Co., 120 ZIp.ss. 580; Treat r. Lord, 42 '-'. Platboats, 14 La. Ann. 243; Eller- Maine, 552; Mandlcbauni v. Russell, 82 THE LAW OF AVATEES. [PAKT I. convert unnavigable into navigable streams, and to levy tolls on vessels or logs passing them, or to improve the navigation of streams partially navigable ; ^ but it cannot authorize the imposition of tolls for the passage of logs to other States, upon waters the navigation of which it has not improved.^ It cannot grant exclusive rights of navigation upon waters which are channels of intercourse between different States ; ^ but it may grant such rights upon lakes which are wholly within its limits, and not accessible from other States, and upon those parts of rivers from which, by reason of rocks, or other obstructions, inter-state communication is excluded.'* The power to establish and regulate ferries is subject to the control of the States, and not of the general government;* and, in the case of boundary rivers, like the Mississippi, a ferry franchise conferred by a single State is valid without ihe concurrent sanction either of Congress or of the State ivhich bounds upon the opposite side of the river, or the right of landing beyond the limits of the State by wliich the grant is niade.'^ i .Nev. 551; Mason v. Boom Co., 3 Wall. Jr. 252. ' Carondelet Canal Co. v. Parker, .29 La Ann. 430 ; Commissioners v. Green River Navigation Co., 79 Ky. ,7.3 ; post, c. 4. ^ Carson E. L. Co. v. Patterson, 33 Cal. 334. See Conley ,: Chedio, 7 Nev. 336. ^ Gibbons u. Ogden, 9 Wheat. 1, reversing s. c. 17 Johns. 488; and overruling Livingston o. Van Ingen, 9 Johns. 507; North River Steam- boat Co. V. Livingston, 3 Cowen, 713 ; Hopk. Ch. 149; Ogden v. Gibbons, 4 Johns. Ch. 174; United States v. Morrison, 4 New York Leg. Obs. 333; United States v. Jackson, Id. 450. ■■ Veazie y. Moor, 14 How. 568 ; Withers v. Buckley, 20 How. 84; Moore i-. American Transportation Co., 24 How. 1, 36; United States v. Railroad Bridge Co., 6 McLean, 517 ; Moor V. Veazie, 32 Maine, 343; 31 Maine, 360 ; The Daniel Ball, 10 Wall. 557; The Montello, 20 Wall. 430; The Bright Star, Woolw. 266. = Conway v. Taylor, 1 Black, 603; Gibbons v. Ogden, 9 Wheat. 1, 214; Fanning v. Gregoire, 16 How. 534;' Hall ^. De Cuir, 95 U. S. 485, 488; Elizabethport Ferry Co. v. United States, 5 Blatch. 198 ; United States v. The James Morrison, 1 Newb. 241, 257; United States v. The William Pope, Id. 256; People v. Eabcock, 11 Wend. 506; People v. T. R. Co., 19 Wend. 113; Freeholders v. New Jer- sey, 4 Zab. 718 ; Columbia Bridge Co. V. Geisse, 38 N. J. L. 39, 580; Wig- gins Ferry Co. i\ East St. Louis, 102 111. 560 ; Chilvers v. People, 11 Mich. 43 ; Jones v. Fanning, Morris (Iowa), 348 ; Burlington Ferry Co. o. Davis, 48 Iowa, 133 ; Alb. L. J. June 16, 1883. ^ Ibid. ; Marshall v. Grimes, 41 Miss. 27. As to the right of ferriage over a river forming a national boundary, and its suspension during war between CHAP. II.J OF PEOPBETY IN TIDE WATEES. 83 § 36. The State may grant to individuals or corporations the soil of public navigable waters^ or exclusive rights of fishery in them.^ If the terms of the grant are doubtful, that construction will be adopted which least restricts the rights of the State and of the public, inasmuch as public grants, whether made by the Crown, or by Congress, or by a State, are construed strictly, and pass only what appears by express words or necessary implication.^ When the legisla- ture provides for the sale or occupation of lands owned by the State and adjacent to tide water, an express declaration is necessary to warrant the inference that it was intended to permit the shore below high-water mark to be converted into private property.^ A statute which extends the bounds of a town over tide waters, so as to include certain islands therein, confers jurisdiction only, and conveys no right of property in the soil under the water.® A confirmation the nations on opposite sides of the stream, see Ogden v. Lund, 11 Texas, 688 ; Prather v. New Orleans, 24 La. Ann. 42. The commissioners of either of two countries bounding upon a river may license a ferry across it. Jones V. Johnson, 2 Ala. 746. ' Commonwealth v. Alger, 7 Gush. 53 ; Arnold ti. Mundy, 1 Halst. 1 ; Bell V. Gough, 23 N. J. L. 624 ; Attorney General v. Delaware Eailroad Co., 27 N. J. Eq. 1, 631 ; Hudson Tunnel Co. V. Attorney General, Id. 176, 573; Galveston v. Menard, 23 Texas, 349. ' Post, c. 4. ' Royal Fishery of the Banne, Da- vies, 149; Somerset v. Fogwell, 5 B. & C. 875; The Eebekah, 1 Rob. Adm. 227, 230; Feather v. The Queen, 6 B. & S. 257 ; Attorney General v. Farm- er, Sir T. Raym. 241; 2 Lev. 171; Bro. Abr. Patent, pi. 62 ; Charles River Bridge v. Warren Bridge, 11 Peters, 420, 544, 557 ; Leavenworth Railroad Co. B. United States, 92 V. S. 733; Minturn v. Larue, 23 How. 435; 1 McAU. 370;' Rice v. Railroad Co., 1 Black, 358 ; Boston v. Richardson, 13 Allen, 146; 105 Mass. 351; Com- missioners V. Holyoke Water Power Co., 104 Mass. 446, 449 ; People v. New York Ferry Co., 68 N. Y. 71 ; People II. Canal Appraisers, 33 N. Y. 461 ; Clark V. Reeves, 3 Caines, 293 ; Lans- ing ti. Smith, 4 Wend. 9 ; 8 Cowen, 46 ; Morris Canal Co. v. Central Railroad Co., 16 N. J. L. 419; Hartford Bridge Co. V. Union Ferry Co., 29 Conn. 210 ; West Branch Canal Co. jj. Elmira Railroad Co., 55 Penn. St. 180; Mc- Manus v. Carmichael, 3 Iowa, 1 ; La Plaisance Bay Co. r. Monroe, Walk. Ch. 155 ; Haight v. Keokuk, 4 Iowa, 200 ; North- Western Fertilizing Co. v. Hyde Park, 70 111. 634; Mills v. St. Clair County, 2 Oilman, 198 ; 8 How. 569 ; Vansickle v. Haines, 7 Nev. 249. See Hyman v. Reed, 13 Cal. 444. So a grant from the sovereign of the right to take toll is construed against the grantee. Stourbridge Canal i,. Wheeley, 2 B. & A. 793; Britain v. Cromford Canal, 3 B. & Aid. 140; Leeds Canal v. Huster, 1 B. & C. 424 ; Woolrych on Waters, 306, 312. * Kimball v. Macpherson, 46 Cal. 103. ^ Palmer u. Hicks, 6 Johns. 133 ; 84 THE LAW OF WATERS. [PAKT I. by a colonial assembly to proprietors, who had purchased from the Indians, of lands which included an arm of the sea, with all ports, rivers, etc., was held not to be a grant of the soil between high and low-water mark.i So, a general authority conferred by the legislature to lay out highways will not authorize the laying out of a highway over navigable waters.^ A conveyance by the State of all its right, title, and interest in and to the bed of a navigable river does not authorize a destruction or exclusive use of the navigation ; ^ and if the legislature confers upon a railroad company power to construct its road " along " tide water, this does not authorize the construction of the road below high-water mark.* So, a charter to a miU corporation, au- thorizing it to exclude tide water from flats belonging to .the State, and to use them as a basin for the purpose of mill People V. Schermerhorn, 19 Barb. 540. This was an action of debt for a pen- alty prescribed by the town of Flush- ing against any person raking clams within its boundaries, and the regula- tion prescribing the penalty was held to be illegal and void. The court said that the statute by which the bounds of the town were extended over the bay and into the Sound, so as to include the islands southward to the main channel, was merely for the purpose of jurisdiction and no evi- dence of a grant of property in the soil covered by the water, and that the town must show such right of property in order to entitle it to regulate the use of such lands. It was also said : "All the ground, under the navigable waters of the Hudson River, is within . the boundaries of some town, for the purposes of civil and criminal jurisdiction ; but it does not follow that the lands under the water belong to the town situated on the river." In Commonwealth i'. Koxbury, 9 Gray, 451, 594, Shaw, C. J., said : " Counties are composed of towns. And for many purposes, the body of the county extends not only over the shores of the sea, but to some distance below the ebb of the tide, for many purposes of civil and criminal proceedings, and for certain purposes of jurisdiction ; and, for the like purposes, towns may be consid- ered as having a coextensive jurisdic- tion ; but this has no bearing upon the question of property. An act of incorporation, therefore, without words of grant of the soil, would vest no part of the property of the gov- ernment in such town. Nor was tlie purpose of the organization of such u nature as would require of the gov- ernment any portion of the public right vested in them for public use and benefit ; therefore, no portion of the jus publicum will be presumed to have been granted without express words." ' East Haven v. Hemingway, 7 Conn. 186; Middletown v. Sage, 8 Conn. 221 ; Commonwealth u. Eox- bury, 9 Gray, 49.3, 494. ^ Post, c. 4. ^ Treat v. Lord, 42 Maine, 552'. '' Stevens v. Erie Railway Co., 21 N. J. Eq. 259 ; Stevens v. Paterson Railroad Co., 34 N. J. L. 532. CHAP. II.J OF PKOPERTY IN TIDE WATERS. 85 power, does not release the title of the State to the flats. ^ State laws providing for the entry and sale of pnblic lands, or for the sale of swamp and overflowed lands, do not ex- tend to the soil beneath navigable waters, and no right to obstruct the navigation passes to the purchaser under such laws.^ In Attorney General v. Hannier,^ letters patent of the Crown, as lord of the manor of Englefield, granting " all those coal mines found or to be found within the com- mons, waste grounds, or marshes within the said lordship of Englefield," with a proviso that the grant should be con- strued strictly against the Crown, and most strictly and bene- ficially for the grantees, was held to pass coal Ij'ing under the foreshore of the estuary of the River Dee, between high and low-water marks, and forming part of the manor of Englefield. § 37. Individuals may also acquire by prescription, against the Crown or the State, the right to the soil of public waters ; '' and, by the weight of authority, they may gain, in the same way, exclusive rights of fishery in them.*^ "When the shores or flats of tide waters have become private property, the ' Commonwealth u. Roxbury, 9 St. 118. In People v. Morrill, 26 Cal. Gray, 451. 336, land containing asphaltum be- " Chapman o. Hoskins, 2 Md. Ch. tween higli and low-water mark on 485 ; People v. Morrill, 26 Cal. 336 ; the Pacific Ocean, was treated as open Taylor v. Underbill, 40 Cal. 471 ; to location of mining claims under Tatum i;. Sawyer, 2 Hawks (N. C.) the general law the same as other 226; Smith v. Ingram, 7 Ired. 175; lands of the State. See, also, More Preytag v. Powell, 1 Whart. 536 ; Bar- ^. Massine, 37 Cal. 432. ton 17. Bouvier, 1 Phila. 523 ; Brandt ^ 27 L. J. Ch. 837. 0. McKeever, 18 Penn. St. 70; Bar- *■ Hale, De Jure Maris, c. 5; Har- clay Railroad Co. v. Ingham, 36 Penn. grave's Law Tracts, 18 ; Nichols u. St. 194 ; Storer u. Jack, 60 Penn. St. Boston, 98 Mass. 39 ; Boston v. 339; Allegheny City v. Moorehead, Richardson, 105 Mass. 41; Kean v. 80 Penn. St. 118 ; Philadelphia „. Stetson, 5 Pick. 492, 495 ; Leffingwell Scott, 81 Penn. St. 80; Hinman ... v. Warren, 2 Black, 599; Tracy v. Warren, 6 Oregon, 408 ; Norfolk City Norwich Railroad Co., 39 Conn. 382 ; .;. Cooke, 27 Gratt. 430. If the stream Seeley v. Brush, 5 Conn. 419 ; Church of a public navigable river is artifl- v. Meeker, 34 Conn. 421 ; Cliapman cially ^diverted from its channel, the v. Kimball, 9 Conn. 41 ; Middleton u. land reclaimed cannot be appropriated Sage, 8 Conn. 228 ; Palmer c. Hicks, by warrant and survey. Poor o. Mc- 6 Johns. 133 ; 2 Kent Com. 427. In Clure, 77 Penn. St. 214; Wainwright Massachusetts, see Stat. 1867, c. 275. I'. McCuUough, 63 Penn. St. 66 ; Al- * Post, i;. 5. legheny City v. Moorehead, 80 Penn. 86 THE LAW OF WATERS. [PAKT I. title thereto may be lost by disseisin,! and a title to the ujy land, acquired by long-continued possession, carries the adjoining flats as appurtenant or parcel without proof of actual possession, unless there is evidence that the title to the upland has been separated from that to the flats.^ A disseisin of flats is made by a continued, exclusive, and ad- verse occupation thereof for the statutory period, usually twenty years ; as by enclosing them with a boom, which rests thereon, when the tide is out, under a claim of title to the flats,^ by enclosing a small pond with a wall, and the use of the same for the purpose of a tide-mill and for storing logs ; ■• by filling them up and using them for a highway,^ or erect- ing a wharf thereon and using tlie adjoining flats for moor- ing vessels,*' or maintaining fences of stakes or twigs, erected for fish weirsJ The habitual and continued taking of wreck or seaweed from unenclosed flats, and licensing others to do so, or cutting grass thereon, under a claim of right, may or may not, it seems, establish a disseisin according to the cir- cumstances of the case.^ But sailing over unimproved flats when covered by the tide, or anchoring upon them, or using ' Wheeler v. Stone, 1 Cush. 313 Boston V. Eichardson, 105 Mass. 351 Clancey v. Houdlette, 39 Maine, 451 exclusive possession and holding against the latter's will, and that an easement does not become merged or Treat v. Chipman, 35 Maine, 34. lost by a disseisin or wrongful claim ^ Valentine v. Piper, 22 Pick. 85 ; of title against the owner of the ser- Porter v. Sullivan, 7 Gray, 441, 445 ; vient tenement. Stetson v. Veazie, 11 Commonwealth «, Alger, 7 Cush. 53, Maine, 408 ; Locks & Canals d. Nashua 80 ; Sparhawk v. BuUard, 1 Met. 95 ; Railroad Co., 104 Mass. 1, 8. Thornton v. Poss, 26 Maine, 402 ; " Wheeler v. Stone, 1 Cush. 313 ; Brackett v. Persons Unknown, 53 Rust v. Boston Mill Corporation, ti Maine, 228, 238. As one tract of land Pick. 158 ; 9 Gray, 524 ; Hamblet v. cannot pass as an appurtenance to Francis, 4 Mass. 75; Treat t;. Chip- another tract, the flats go with the up- man, 35 Maine, 34 ; State i-. Wilson, land as parcel rather than as appur- 42 Maine, 9. tenant. Ammidown v. Granite Bank, ' Treat >■■ Cliipman, 35 Maine, 34. 13 Allen, 285, 291 ; Central Wharf v. » Hale, De Jure Maris, c. 6 ; Har- India Wharf, 123 Mass. 561, 566. grave's Law TYacts, 27 ; Hall on the ' Stetson V. Veazie, 11 Maine, 408. Seashore (2d ed.), 32 ; East Hampton * Tufts V. Charlestov'fn, 117 Mass. v. Kirk, 84 N. Y. 215; 68 N. Y. 459; ^01. Commonwealth v. Roxbury, 9 Gray, » Tyler v. Hammond, 11 Pick. 193. 451, 499 ; Tliacher o. Cobb, 5 Pick. It was also held in Tyler v. Hammond 423 ; Tappan v. Burnham, 8 Allen, that the lessee of an easement in a 65 ; Thornton c. Foss, 26 Maine, 402 ; dock may disseise the lessor by taking Clancey i: Houdlette, 39 Maine, 457. CHAP. II.J OF PROPERTY IN TIDE "WATERS. 87 them for the purpose of approaching a wharf from the sea, or taking shell-fish therefrom, being the exercise of a public right, is not such possession as constitutes a disseisin.' So a grant by the State of a several fishery in a public navigable river cannot be presumed from the uninterrupted use and enjoyment of such fishery by an individual in coiuraon with others for more than twenty years .^ The mere user of the seashore by the turning on of cattle, although continued for a period of sixty years, is not such an act of ownership as to raise a presumption of title in the owner of the^ cattle, without proof of the exercise of the right in the face of op- position on the part of the person interested in resisting the right, or of knowledge and acquiescence on his part, inas- much as the seashore is property of such a nature that it cannot easily be protected against intrusion, and would not usually be worth the trouble and expense of fencing.^ In case of a mixed possession, the seisin of flats follows the legal title ; * and, if the claim is doubtful in extent, or not to the entire parcel, a title by disseisin is limited by the actual oc- cupation, and is not to be extended by construction.^ If the individual inhabitants of a town use land upon the seashore as a landing place, this does not support, but is adverse to, a claim of possession by the town in its corporate capacity,^ ' Drake v. Curtis, 1 Cush. 395 ; Pick. 171 ; Wlieeler v. Stone, 1 Cush. Curtis V. Francis, 9 Cush. 466 ; Brim- 317 ; 9 Gray, 623 ; Barnstable v. mer c. Long Wharf, 5 Pick. 139; Thacher, 3 Met. 239; Tappan v. Gray v. Bartlett, 20 Pick. 192 ; Wes- Burnham, 8 Allen, 65, 70 ; Coleman ton V. Sampson, 8 Cush. 347 ; Porter v. San Raphael Road Co., 49 Cal. 517 ; V. Sullivan, 7 Gray, 441 ; Tracy v. Stearns o. Woodbury, 10 Met. 27. Norwich Railroad Co., 39 Conn. 382 ; ' Boston v. Richardson, 105 Mass. Boulo V. New Orleans Railroad Co., 55 372 ; Kennebeck Purchase v. Springer, Ala. 480 ; Deering v. Long Wharf, 25 4 Mass. 416 ; Boston Mill Corpora- Maine, 65. tion V. Bulfinch, 6 Mass. 229 ; Brown ^ Delaware Railroad Co. v. Stump, v. Nye, 12 Mass. 285 ; Brimmer o. 8 Gill & J. 479. Long Wharf, 5 Pick. 131 ; Porguand ^ Attorney General u. Chambers, v. Smith, 8 Pick. 272 ; AVheeler u. 4 De Gex & J. 55 ; Thomas v. Marsh- Stone, 1 Cush. 313, 317, 322 ; Allen c. field, 10 Pick. 364; 13 Pick. 240; Holton, 20 Pick. 458; Watkins v. Donnell v. Clark, 19 Maine, 174, 183. Holman, 16 Peters, 25, 55 ; Thornton * Codman u. Winslow, 10 Mass. v. Foss, 26 Maine, 402. 151 ; Hamblet v. Francis, 4 Mass. 75; " Green v. Chelsea, 24 Pick. 71. In Brimmer v. Long Wharf, 5 Pick. 135 ; Boston v. Richardson, 105 Mass. 351, Rust u. Boston Mill Corporation, 6 evidence was held admissible, in sup- 88 THE LAW OF WATEUS. [PABT I. although the use and enjoyment of the Liiicling place by the inhabitants of other towns, as well as by those of the town in which it is situated, would be sufficient to establish a right by prescription in all the inhabitants of the State.^ So the acts of such individual inhabitants, during a long period of time, in taking seaweed from a beach for the purpose of manuring their lands, is not competent evidence of a lost grant to the town from the owners of the beach.^ Peram- bulations are not evidence against the State that a town possesses the title to flats within its limits ; ^ nor do votes of a town, which grant annually to individuals the right to take shell-fish from beaches within its limits for a specified price paid to the town, and which provide for the preserva- tion of the beaches, tend to establish in the town an absolute title to the beaches.* § 38. In Corfield v. Coryell,^ the question was whether a statute passed hj the legislature of New Jersey, which pro- hibited any person, not an actual resident of the State, rak- ing or gathering clams, oysters, or shells in any of the rivers, bays, or waters in the State, was repugnant to the provision of the constitution of the United States that " the citizens of each State shall be entitled to all the privileges and im- munities of citizens in the several States." ^ It was held that the control of fisheries was not ceded to the United States by the commerce clause of the constitution; that this port of a claim of title ty disseisin, parage the public right. Drinkwater in favor of a city, that it had main- v. Porter, 7 C. & P. 181 ; Eex v. Sut- tained u, fish-house and engine-house ton, .3 N. &. P. 509. at the end of a highway toward the ^ Sale v. Pratt, 19 Pick. 191. sea, and had repaired a capsill stand- ^ Commonwealth v. Eoxbury, 9 ing on a stone wall at the head of the Gray, 457. But see Hale, De Jure dock; with respect, at least, to the Maris, c. 4; Hargrave's Law Tracts, land covered hy the buildings. 27. ' Coolidge !^ Learned, 8 Pick. 504 ; ' Lynn v. Nahant, 113 Mass. 433; Commonwealth v. Newbury, 2 Pick. West Eoxbury v. Stoddard, 7 Allen, 51. Eeputation is evidence upon the 158. question whether a landing place is ^ 4 Wash. C. C. .371 ; Bennett v. public or private property, and there Boggs, 1 Bald. C. C. 72 ; Thompson !'. is no distinction between the evidence Whitman, 18 Wall. 457. of reputation to establish and to dis- ^ Art. 4, § 2. CHAP. II.J OF PEOPEETY IN TIDE WATERS. 89 is a right o£ property vested in certain individuals, or in the State for the use of its citizens ; and that the provision just quoted did not amount to a grant of the common property of the State to the citizens of all the other States. In the case of Smith V. Maryland,! in the Supreme Court of the United States, the question was whether a vessel, which was owned by a citizen of Pennsylvania, and was enrolled and licensed for the coasting trade under an act of Congress, was lawfully condemned to be forfeited to the State of Maryland for the violation of an act of that State designed to protect the growth of oysters in its waters by prohibiting the use of par- ticular instruments in dredging them. The court expressed no opinion upon the questions considered in Corfield v. Cor- yell, but held that it was within the legislative power of the State to interrupt the voyage and inflict the forfeiture of a vessel enrolled and licensed under the laws of the United States for a disobedience, by those on board, of the law in question. In the recent case of McCready v. Virginia,^ the same court held, with respect to a statute of Virginia, simi- lar in its provisions to that considered in Corfield v. Coryell,^ that the power over fisheries had not been granted to the United States, and that the right to gather oysters is a right of property, which, though common to all the citizens of the particular State, is not a general privilege or immunity of citizenship. The same has frequently been held in the State courts.* In Dunham v. Lamphere,^ in Massachusetts, the defendant was a citizen of Rhode Island, and had a fishing license under the laws of the United States, and the action was brought to recover a. penalty imposed for the violation of a statute of Massachusetts, which made it unlawful for any person to take fish with seines within one mile from the ' 18 How. 71; Thompson u. Wliit- State c. Medbury, 3 E. I. 138; New man, 18 Wall. 457 ; The Ann, 24 Alb. England Oyster Co. c-. McGarvey, 12 L. Journ. 515. E. I. 385 ; Crandall v. State, 10 Conn. " 94 U. S. 391 ; McCready v. Com- 340 ; Dunham v. Lamphere, 3 Gray, monwealth, 27 Gratt. 985, 982 ; Mar- 268 ; People v. Coleman, 4 Cal. 46 ; tin i: Waddell, 16 Peters, 367. Slaughter v. Commonwealth, 13 Gratt. ' 4 Wash. C. C. 371, cited above. 767 ; Johnson r. Drummond, 20 Gratt. * Haney v. Compton, 36 N. J. L. 419. 607 ; Day v. Compton, 37 N. J. L. 514 ; ° 3 Gray, 268. 90 THE LATV" OF WATEBS. [PaKT 1. shores of Nantucket and other small islands. It was held that this law, which applied to the coast fisheries in the outer sea as Avell as in the waters within the islands, was not repugnant to the Federal Constitution. This decision was prior to the Massachusetts statute, which extended the ter- ritorial jurisdiction of the State one marine league seaward from its seashore at low-water mark,^ and the statute de- clared to be constitutional was treated as making the sea within a mile from the islands a part of the territory of the State.^ It follows from these authorities that the coast ■ fisheries, as well as those in inland tide waters, and the tak- ing of both shell and floating fish, are under the control of the respective States, and that each State may lawfully ex- clude the citizens of other States from these privileges. § 39. The United States is the source of title to lands within its limits which are not within the boundaries of the States, and the new States, being admitted into the Union upon an equal footing with the original States, become entitled to all the rights and privileges possessed by the latter.^ They have the same rights, sovereignty, and juris- diction, as to the soil of navigable waters, as the older States ; * and neither the right of the United States to ' Mass. St. 1850, c. 6 ; Gen. Sts. and, in ascertaining the line of shore, c. 1, § 1 ; Ante, § 16. this limit does not follow each narrow ^ Shaw, C. J., here said (3 Gray, inlet or arm of the sea ; hut when the 269, 270): "The fact of taking fish inlet is so narrow that persons and by a seine within a mile of the shore objects can be descried across it by of Gravel Island, which constitutes the naked eye, the line of territorial part of the territory of the State, after jusrisdiction stretches across from the act went into operation, is plainly one headland to the other of such contrary to the letter of the statute, inlet." and leaves the only question to be, ' Pollard v. Hagan, 3 How. 212. whether the statute itself has the * Pollard v. Hagan, 3 How. 212 ; force of law. Being within a mile of Goodtitle v. Kibbe, 9 How. 471 ; Hal- the shore puts it beyond doubt that it lett v. Beebe, 13 How. 25 ; Withers v. was within the territorial limits of the Buckley, 20 How. 84 ; St. Clair Co. i'. State, although there might in many Lovington, 23 "Wall. 46, 68 ; Mumford cases be some difficulty in ascertaining v. Wardwell, 6 Wall. 423, 436; Weber precisely where that limit is. We f. Harbor Commissioners, 18 Wall. 57; suppose the rule to be that these lim- Friedman v. Goodwin, 1 McAU. 142 ; its extend a marine league, or three Teschemacher u. Thompson, 18 Cal. geographical miles, from the shore; 11; Gunter v. Geary, 1 Cal. 402; CHAP. II.] OF PEOPEETY IN TIDE WATEES. 91 the public lands, nor the power conferred upon Congress to make laws and regulations for the sale and disposition thereof,' enables the general government to grant the shores and bed of such waters within the limits of a new State after its admission into the Union. ^ The new States may possess lands, either under grants from the United States or by virtue of their sovereignty ; and their ownership of the seashore and of the soil of the bays and inlets of the sea is of the latter class.^ § 40. In Hinman v. Warren,^ in Oregon, it was held that the United States, while holding the title to the soil of tide waters, cannot make a valid conveyance of such soil. There are also dicta to this effect in the case of Haiglit v. Keokuk,* in Iowa, but Hinman v. Warren appears to be the only adju- dication upon the subject. According to this view, the United States holds purely as trustee for the future State, and is without statutory or constitutional authority to do any act making it impossible to admit the new State upon a footing equal, in all respects, with that of the other States. The decisions of the Supreme Court of the United States have been thought to lead to the conclusion reached in Hinman v. "Warren ; ^ but it would seem that there is no very direct expression of such a view, in the opinions of that court.^ The power of Congress to legislate in the interest Chapin o. Bourne, 8 Cal. 298 ; El- ' Ibid. ; Pollard u. Hag&n, 3 How. dridge v. Cowell, 4 Cal. 81 ; People y. 212, 230. Davidson, 30 Cal. 379 ; Parish v. Coon, ' Guy v. Hermance, 5 Cal. 73 ; 40 Cal. 33; Coburn v. Ames, 52 Cal. People v. Morrill, 26 Cal. 336; Ward 385 ; Le Roy ;.•. Dunkerly, 54 Cal. 452 ; v. Mulford, 32 Cal. 365. Hinman v. Warren, 6 Oregon, 408 ; ^ 6 Oregon, 408. Strader ;;. Graham, 10 How. 83 ; Boulo ' 4 Iowa, 199, 213. V. Mobile Railroad Co., 55 Ala. 480. ^Hinman «. Warren, 6 Oregon, 408, See Pollard v. Kibbe, 14 Peters, 353 ; 411. 9 Porter, 712 ; Mobile v. Eslava, 16 ' In Weber v. Harbor Commission- Peters, 234 ; 9 Porter, 577 ; Mobile v. ers, 18 Wall. 57, 65, Mr. Justice Field Ilallet, 16 Peters, 261; Mobile u. said: "Although the title to the soil Emanuel, 1 How. 95 ; Pollard v. Files, under the tide waters of the bay (of 2 How. 592, 3 Ala. 47; Duval v. San Francisco) was acquired by the McLoskey, 1 Ala. 708, 747 ; Kemp u. United States by session from Mexico, Thorp, 3 Ala. 291; Hagan v. Camp- equally with the title to the upland, bell, 8 Porter, 9. they hold it only in trust for the future 92 THE LAW OF WATERS. [PAUT of a territory is superior to that of the territorial legislature,' apart from the authority to regulate commerce, granted by the Cqnstitution of the United States ; and it would seem that Congress may, at least, make such grants in aid of com- merce and navigation, as are necessary for the erection of wharves, piers, dams, and bridges in navigable waters, if, indeed, there is any power in the courts to review its deter- mination as to the means of promoting these public interests. In the earlier cases of Mobile v. Eslava,^ and Mobile v. Hal- let,2 Mr. Justice Catron says, in a dissenting opinion, that it had not been doubted that the United States could convey the soil under the navigable waters of Alabama, prior to its admission into the Union. State. Upon the admission of Cali- fornia into tiie Union upon an equal footing with the original States, ab- solute property in, and dominion and sovereignty over, all soils under the tide waters within her limits passed to the State." But in Barney v. Keokuk, 94 U. S. 324, 338, the question was left open, Bradley, J., saying, in speak- ing of the surveys by the general gov- ernment of lands adjoining the naviga- ble fresh rivers of the West {jyost, § 68 ) : " It properly belonged to tlie States by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its surveys and grants beyond the limits of high water." In Gavit u. Chambers, 3 Oliio, 49C, 498, the court, in adopting the common-law rule, by which the title of riparian proprietors upon all fresh-water streams extends usque adjilum aquae, said: "There is nothing in the trust vested in Con- gress, and executed by them, and noth- ing in the manner of executing it, to warrant the establishment of a differ- ent principle here." ' See U. S. Rev. Stats. §§ 1850, 1891 ; American Ins. Co. v. Canter, 1 Peters, 511, 545 ; Scott v. Jones, 5 How. 343 ; United States i.. Gratiot, 14 Peters, 520; Reynolds u. United States, 98 U. S. 145 ; Ferris v. Higley, 20 Wall. 375; National Bank u. Yankton, 101 U. S. 129, 133 ; Clinton v. Englebrecht, 13 Wall. 434; United States c. Vigil, 13 Wall. 449, 451 ; Johnson u. Mcin- tosh, 8 Wheat. 543 ; Fletcher v. Peck, 6 Cranch, 142; Carpenter v. Rogers, 1 Mon. Ter. 90; Territory v. Lee, 2 Id. 124; Reynolds v. People, 1 Col. 179; Carson River Co. v. Barrett, 2 Nev. 249; Swan u. Williams, 2 Mich. 427; 3 Story'Com. 193, 536; 1 Kent Com. 257, 384; Franklin c/. 'United States, 1 Col. 35 ; Reynolds v. People, Id. 179 ; Wisconsin v. Doty, 1 Pinney (Wis.) 396; Van Sickle v. Haines, 7 Nev. 249 ; Union Mining Co. v. Ferris, 2 Sawyer, 170. ^ 16 Peters, 234 ; 9 Porter, 577. ' 16 Peters, 261. See also Pollard V. Hagan, 3 How. 212; Hagan v. Campbell, 8 Porter, 1 ; Abbot v. Ken- nedy, 5 Ala. 393, 390; Hendricks v. Johnson, 6 Porter, 472 ; Mobile i-. Emanuel, 1 How. 95, 98, 102; 17 Peters, 155 ; '9 Porter, 403 ; Pollard v. Files, 2 How. 591; s. c. 3 Ala. 47; Pollard V. Kibbe, 14 Peters, 353; 9 How. 471; s. c. 1 Ala. 403; Doe v. Beebc, 13 How. 25 ; Hallett v. Beebe, 13 How. 25 ; 8 Ala. 909 ; Pollard v. Greit, 8 Ala. 930; Hallett v. Hunt, 7 Ala. 882. See Tripp v. Spring, 6 Saw- yer, 209. CHAPTER III. EIVEES. SECTION. 41. Rirer and water course defined. 42. NarigaMe or tidal rivers. 43. What streams are navigable and public. 44. A river is navigable and public at common law as far as tlie water is ordinarily ponded back by the tide. 45. Banks and shores of rivers. 46. Property in fresh-water streams and rivers. 47. Navigable fresh-water rivers. — Bracton. 48. Ibid. — Case of the Royal Fishery of the Eanne. 49. Ibid. — De Jure Maris. 50. Ibid. — ■ Early English decisions. 51, 52. Ibid. — The present rule in England. 53-55. Ibid. — The rule applicable in this country. 56-58. Ibid. -^ The common-law rule adopted in New England and other States. 59. Ibid. — South Carolina. 60. Ibid. — North Carolina and Tennessee. 61. Ibid. — Virginia. 62. Ibid. — Kentucky. 63, 64. Ibid. — Mississippi. 65. Ibid. — Pennsylvania. 66, 67. Ibid. — The effect of decisions respecting the admiralty jurisdiction. 68. Ibid. — The ordinance of 1787. 69. Ibid. — The public land system. Illinois. 70. Ibid. — Ohio. 71. Ibid. — The Ohio Eiver. Indiana. 72. Ibid. — Iowa. 73. Ibid. — Missouri. 74. Ibid. — Alabama. 75. Ibid. — Michigan and Wisconsin. 76. Late decisions in the Western States limit private ownership to the margin of the river. 94 THE LAW OP WATERS. [part I. SECTION. 77. What is the river under this rule. 78. Unnavigable streams in the West. 79. Lakes and ponds. 80, 81. Ibid. — The common-law rule as to property in them. 82-83. Ibid. —The rule in this country. 84. Ibid. — Massachusetts. 85. Ibid. — The rule in the Western States. § 41. A river is a running stream of water pent in on either side by banks, shores, or walls ; and it bears that name as well where the waters flow and reflow with the tide as where the current is always in one direction.^ Every river consists of: (1) the bed; (2) the water: (3) the banks or shores;^ and it also has a current.^ It is a river or water course from the point where the water comes to the surface and begins to flow in a channel until it mingles with the sea, the arms of the sea, lakes,* etc. It may sometimes be dry, but in order to be within the above definition it must appear that the water usu- ' Callis on Sewers, 77; Woolrych on Waters, 31 ; Tenterden, C. J., in Rex V. O.xfordshire, 1 B. & Ad. 289, 301 ; Rex. u. Trafford, 1 B, & Ad. 874, 887; 8 Eing. 204; Queen o. Derby- shire, 2 Q. B. 745, 756 ; Rex. v. Whit- ney, 3 Ad. & El. G9 ; 1 H. & N. 147 ; 7 C. & P. 208; Abraham v. Great Northern Railway Co., 16 Q. B. 586, 697 ; Menzies v. Breadalbane, 3 Wil- son & Shaw, 235, 243 ; Long v. Boone County, 36 Iowa, 60. ^ " Shore " is strictly applicable only to the space between ordinary high and low-water mark in a tidal river, but it is sometimes used with refer- ence to a fresh river, or lake, either as synonymous with bank, or as denot- ing that portion of the bank which touches the margin of the stream at low water. See Handly v. Anthony, 5 Wheat. 374, 385; Dutton o. Strong, 1 Black, 23, -32 ; Child v. Starr, 4 Hill, 369, 875, 380; Stone ^. Augusta, 46 Maine, 127, 137 ; McCulloch v. Wain- right, 14 Penn. St. 171', post, § 45; Lacy v. Green, 84 Penn. St. 514. A fresh river " has ripam, but not Ultus." Per Walworth, Ch., in Child v. Starr, 4 Hill, 369, 375. " The bank and the water are correlative. You cannot own one without touching the other." Per Cowen, J., in Starr c . Child, 20 Wend. 149, 152. 3 State V. Gilmanton, 9 N. H. 461 ; 14 N. H. 467. ■* Home ;;. Mackenzie, 6 CI. & Fin. 628; Dudden v. Clutton Union, 11 Ex. 627; Rawstron v. Taylor, Id. 360; Wood ,: Waud, 3 Ex. 748; Regina V. Metropolitan Board of Works, 3 B. & S. 710 ; Taylor v. St. Helen's Co., 6 Ch. D. 264; Gallup o. Tracy, 25 Conn. 16. As to river-water flowing into an arm of the sea, see Horrie c. Mackenzie, 6 CI. & Fin. 628 ; post, § 44, note. CHAP. III.] EIVEES. 95 ally flows in a particular direction, and has a regular channel, with bed, banks, or sides.^ Whether it does so flow is a question of fact for the jury.^ The bed, which is a definite and commonly a permanent channel, is the characteristic which distinguishes these waters from mere surface drainage, flow- ins: without a defined course or certain limits, and from water percolating through the strata of the earth, both of which are not subject to riparian rights, but form part of the realtj^ and belong exclusively to the owner thereof.^ The fact that these waters have a current gives rise to questions relating to the obstruction and acceleration of the water which do not arise in the case of still waters, like lakes and ponds. A stream necessarily involves the idea of a current ; ^ and a statute which provides for bridges over streams sepa- rating towns confers no authority to construct bridges over lakes, bays, or marshes, in which the water has no regular and perceptible flow.^ § 42. Those rivers and parts of rivers in which the tide ebbs and flows are known as " navigable " rivers, and by the common law they are vested prima facie in the Crown.*' ' Chasemore v. Richards, 7 H. L. Murphy, 37 Vt. 99 ; Swett v. Cutts, Cas. 349 ; 5 H. & N. 983 ; 2 H. & N. 50 N. H. 439 ; Kauffman v. Griesemer, 163 ; Rawstron v. Taylor, 11 Exch. 26 Penn. St. 407 ; Gillham v. Madison 369; Luther v. Winnesimmet Co., 9 Railroad Co., 49 III. 484; Hoyt v. Cush. 171; Ashley v. Wolcott, 11 Hudson, 27 Wis. 650; Eulrich v. Cush. 192, 195 ; Parks v. Newbury- Richer, 37 "Wis. 226 ; 41 Wis. 318 ; port, 10 Gray, 28 ; Flagg v. Worces- Barnes v. Sabron, 10 Nev. 217 ; Imler ter, 13 Gray, 601; Dickinson !j. Worces- v. Springfield, 55 Mo. 119; Jones v. ter, 7 Allen, 19 ; Wheeler v. Worcester, Hannovan, Ibid. 462 ; New Albany 10 Alien, 591 ; Gannon v. Hargadon, Railroad Co. u. Peterson, 14 lud. 112 ; 10 Allen, 106 ; Bates u. Smith, 100 Greencastle v. Hazelett, 23 Ind. 186 ; Mass. 181 ; Emery v. Lowell, 104 Taylor v. Eickas, 64 Ind. 167 ; Schlich- Mass. 13 ; Morrill v. Hurley, 120 Mass. ter v. Phillipy, 67 Ind. 201. 99 ; State v. Gilmanton, 14 N. H. 467 ; ^ Ibid. ; Eulrich v. Richer, 37 Wis. Bangor v. Lansil, 51 Maine, 521 ; 226 ; 41 Wis. 318. Greeley c. Maine Central Railroad ^ Taylor v. Fickas, 64 Ind. 167, and Co., 53 Maine, 200 ; Morrison v. above authorities. Bucksport Railroad Co., 67 Maine, * Joliet Railroad Co. u. Healy, 94 353; BufEum v. Harris, 5 R. L 243; 111. 416,421. Goodale v. Tuttle, 29 N. Y. 459 ; Earl '" In re Freeholders, 68 N. Y. 376, V. De Hart, 1 Beasley, 280 ; Bowlsby 459. V. Speer, 31 N. J. L. 351 ; Shields v. « Ante, § 4. The different mean- Arndt, 3 Green Ch. 234 ; Beard c . ings of the word " navigable," as em- 96 THE LAW OF WATERS. [PAET I. Plence, as was said in an early case, " all the navigable rivers in England appertain to the king." ^ Thej' are arms of the sea, and the king has them becanse they partake of its nature.^ This ownership is for the public benefit,^ and in this country each state, as sovereign, has succeeded to the rights which the king formerly possessed in such rivers and in the soil beneath.* The high and low-Water marks which define the shores are determined by the same rules as in the case of the shores of the sea and the arms of the sea, and the rights of the public extend to ordinary high-water mark.^ Islands which are formed in these rivers belong to the Idng," and in this country to the respective States as sovereign powers,'^ and the rights of navigation ^ and fishery in them, which are prima facie common to all, cannot be impaired by a grant from the Crown at common law, but may be by a State within the limits of which the waters lie, if intercom- munication between different States is not thereby affected. § 43. The presence of the tide is strong prima faoie evi- dence that a river is public and useful for navigation. It is ployed in legal phraseology, are thus 10 Wall. 557. See also, Mayor of defined by Gray, C. J., in Common- Colchester r. Brooke, 7 Q. B. .339, 374; wealth V. Vincent, 108 Mass. 441, 447 : The Montello, 20 Wall. 430, 442 ; " The term ' navigable waters,' as com- Abraham r. Great Northern Railway monly used in the law, has three dis- Co., 16 Q. B. 586, 598. In those West- tinct meanings : 1st, as synonymous ern States, where there are no tidal with ' tide waters,' being waters, waters, the word " navigable " is not whether salt or fresh, wherever the commonly employed in the technical ebb and flow of the tide from the sea sense. See Hiekok i . Hine, 23 Ohio is felt; or, 2d, as limited to tide St. 523. waters which are capable of being ' Kex. v. Trinity House, 1 Sid. 86 ; navigated for some useful purpose ; s. c. 1 Kcb. 331. or, 3d (which has not prevailed in = Royal Fishery of the Banne, Sir this Commonwealth), as including all John Davics, 149. waters, whether within or beyond the ^ Ante, § 17. ebb and flow of the tide, which can be ^ Ante, § 32. used for navigation " ; citing Com- ^ xinte, § 27. monwealth t-. Chapin, 5 Pick. 199 ; « Hale, Dc Jure Maris, c. 0, ii. ; Cal- Rowe V. Granite Bridge Co., 21 Pick, lis on Sewers, 45. 344 ; Murdock u. Stickney, 8 Cush. ' Middletown v. Sage, 8 Conn. 221 ; 11-3, 115; Attorney GeneraU'. Woods, Tracy <■. Norwich Railroad Co., 30 108 Mass. 436 ; Waters v. Lilley, 4 Conn. 382 ; Hopkins Academy i . Pick. 145, 147 ; Genesee Chief ;-. Fitz- Dickerson, 9 Cush. 544, 550. hugh, 12 How. 443; Tlie Daniel Ball, » Ante, § 21. CHAP. III.J EIVEES. 97 not, however, conclusive. In many small creeks and inlets of the sea private property n;iay exist. The extent to which a river, whether its waters are salt or fresh, is used for navi- gation, affords the strongest evidence of its navigable capac- ity.-'^ If the channel is broad and deep and adapted to the purposes of commerce, it is a natural conclusion that it is a public navigation ; ^ but if it is a small creek, navigable only at exceptional and extraordinary tides,^ or at certain states of the tide, and then only for a short time and by very small boats, its inadaptability for general use is strong, if not con- clusive, evidence against the existence of a public right.* 1 See Miles ;;. Rose, 5 Taunt. 700 ; Vooght o. Winch, 2 B. &. Aid. 062. In the early case of Commonwealth v. Charlestown, 1 Pick. 180, 180-188, Parker, C. J., said : " By the common law, the property of the sovereign is s:iid to extend to all places where tlie sea ehbs and flows, whether such places are navigable or not ; but it is probable the usages of our country have given a reasonable limitation to this doctrine, confining the publip right to what may be of public use ; so that in many little creeks into which the salt water flows, but which are incapable of being navigated at all, private property may be main- tained. This is undoubtedly tlie case with many of the creeks which run through our extensive marshes, over which small bridges are thrown for the convenience of removing the hay ; and yet whenever these streams arc largo enough for the passage of boats, and gondolas, or lighters, and pass through the lands of several proprie- tors, no one can obstruct them, even i:i his own grounds, unless he has ac- (Xuired a right by prescription ; which probably is the case with many of them. . . . There is but one princi- ple for judicial courts to be governed by, and that is, to consider as public property all those inlets of the sea which arc capable of sustaining vessels . of any description, with their lo.iding. for purposes really useful to trade or agriculture. It has been urged, that the actual use of them for such pur- poses is necessary to give them the character of public iiroperty; but it is obvious there can be no such qual- ification of the principle at common law; for it would go to allow the- occupation, by individuals or corpora- tions, of many of the most important public privileges, in the early settle- ment of the country, before ports and places of deposit should become valu- able." It is now settled that the public right is limited to those streams and,', inlets which are capable of public use.. Rowc !■. Granite Bridge Co., 21 Pick. 344 ; Charlestown v. County Com- missioners, -3 Met. (Mass.) 202; Attor- ney General r. Woods, 108 Mass. 430 ; Gray, 519, note ; The Montello, 20 AVall. 4.30, 442, 443; United States V. New Bedford Bridge, 1 Wood. £ M. 401, 487; Weathersfleld v. Hum- phrey, 20 Conn. 218 ; Groton ;;. Hurl- burt, 22 Conn. 178 ; Burrows v. Gallup, 32 Conn. 501 ; Brown v. Pres- ton, 38 Conn. 210; Glover y. Powell, 10 N. J. Eq. 211 ; Flanagan c. Phila- delphia, 42 Penn. St. 219. ' Sec per Bailey, J., in Kex v. Montague, 4 B. £; C. 508. ' Rowe V. Granite Bridge Co., 21 Pick. 344 ; Attorney General ;■. Woods, 103 Mass., -i3j.. * Colchester, i: Broolie, 7 Q. B. 330. 98 THE LAW OF WATERS. [PAKT I. The term " navigable," says Denman, C. J.,' " is a relative and comprehensive term, containing within it all snch rights upon the water way, as with relation to the circumstances of each river, are necessary for the full and convenient passage of vessels and boats along the channel." In ^Nlayor of Lynn v. Turner,^ the corporation of Lynn Regis was sued for not repair- ing and cleansing a tidal creek, " as from time immemorial they had been used," whereby, as appeared by'one coimt of the declaration, the plantiff lost the use of his navigation. It was urged that if one count of the declaration was bad, the judgment against the corporation should be set aside, and that, as the place in question was a public navigable river within the tide, no action would lie without proof of special damage ; but Lord Mansfield considered that it did not sufficiently .appear that it was a navigable river, and that the presence of the tide did not prevent its being in the 2orivate estate of the corporation. In Miles v. Rose,^ Gibbs, 'C. J., considered the flowing of the tide not absolutely incon- :sistent with a right of private property in a creek, although strong prima facie evidence against such right. In Vooght v. Winch,* Holroyd, J., said that if a stream had ever been capa- ble .of navigation, an act of Parliament was the only means by ■which the public right could be determined ; but in the later ,case of Rex v. Montague,* he concurred in the opinion that ■ ' Colchester v. Brooke, 7 Q. B. 339, a common and ancient highway. At 374. the trial it appeared that the highway '' 1 Cowper, 86, Lofft. 556. Lord in question was an embankment across Mansfield here said : "Ex facto oritur a creek, and that the defendants cut jus. How does it appear that this is down this embankment by order of a navigable river f The flowing and the corporation of London, who con- reflowing of the tide does not make it tended that the creek was a public so ; for there are many places into navigable stream, and that the road which the tide flows, that are not nav- improperly obstructed it ; that the igable rivers ; and the place in ques- road had been so high for twenty years tion may be a creek in their own that no boats could pass over it at private estate." The corporation was any time ; and that, for years before, held to be bound by prescription to the only evidence of an actual naviga- repair. tion was by very small boats for a brief ' 5 Taunt. 706. period at the time of high water. * 2 B. & Aid. 662. Bailey, J., said : " It was for the de- ° 4 B. & C. 598. This was an in- fendant to make out that there once dictment for cutting a trench across was a public navigation. Now it does CHAP. III.] ravEES. 99 the public right miglit be extinguished in otlicr ways than by act of Parliament ; as by Avrit of ad quod damnum, or by the commissioners of sewers in certain cases, or by natural causes, such as the filling of the channel or the recession of the sea. Again, in the case of Mayor of Colchester v. Brooke,^ Lord Denman, C. J., while regarding the flow and reflow of the tide as the strongest evidence that a river was public and navigable, considered the fact that the soil in arms of the sea and public navigable rivers, independently of any ownership of the adjoining lands, is prima facie vested in the Crown, but subject to the public right, and that the grantee of the Crown takes subject to the same right, not inconsistent with the loss of such right if the channel became choked up by natural causes. § 44. The question at what point a river ceases to be tidal, or navigable, first arose in the courts in the case of not necessarily follow, because the tide flows and rcflows in any partic- ular place that there is therefore a public navigation, although of suffi- cient size " ; and after reviewing the above cases of Mayor of Lynn v. Turner, and Miles v. Rose, he said further : " The strength of this prima fade evidence, arising from the flux and reflux of the tide, must depend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude that it has been a public navigation ; but if it is a petty stream, navigable only at certain periods of the tide, and then only for a short time, and by very small boats, it is difficult to suppose that it ever haS been a public navigable channel. But even supposing this to have been at some time a public navigation, I think that from the manner in which it has been neglected by the public, and from the length of time during which it has been obstructed, it ought to be presumed that; the rights of the public have been lawfully determined. Most probably the rights of the public (if they ever had any) arose from the flux and reflux of the tides of the sea, so as to make the channel navigable. If then the sea retreated, or the chan- nel silted up, so as to be no longer navigable, why should not the public rights cease 1 If they arose from natural causes, why should not natu- ral causes put an end to them 1 But they might also be put an end to b/ act of parliament, or by writ of ad quod damnum, and, perhaps, by com- missioners of sewers, if there were any appointed for the district and they found that it would be for the benefit of the whole level. For these reasons it appears to me that if this case were sent down for trial again, the jury would be bound to find either that there never was a public naviga- tion through the locus in quo, or that it has been determined by some lawful means." The opinions of Holroyd, J., and Littledale, J., were to the same effect. ■ 7 Q. B. 339, 373, 374. See also Rex V. Douglas, 2 Ld. Kenyon, 499; Woolrych on "Waters, 237. 100 THE LAW OF WATERS. [PAET 1. Rex V. Smith.^ In that case the city of London, acting under powers conferred by statute, was proceeding to con- struct a towing path upon the bed of the river Thames, and the defendants were indicted for destroying a pile driven in the course of tlie work between high and low-water mark near Richmond. In the statement of the case, the river was admitted to be "navigable"; but, as the right of the city was regarded as derived from the Crown's title to tide waters, it was contended in argument that the Thames above London Bridge was not navigable in the technical sense, although there was a regular rise and fall of the river caused by the accumulation and pressure backwards of the fresh water. Lord Mansfield said that the distinction between rivers navigable and not navigable, and those where the sea does or does not ebb and flow, was very ancient, but that the distinction then insisted on, between the case of the tide occasioned by the flux of the sea-water and the pressure backward of the fresh water, seemed to be entirely new." He said that the case did not state whether the water, where the tide rises at Richmond, is fresh or salt ; but that it rather took it for granted that it is salt, describing the Thames gen- erally as a navigable river. The point was simply raised in that case, and not decided.^ But it is settled in this country ' 2 Dougl. 441 (1780). In Home called an arm of the sea), that fresh !'. Mackenzie, 6 CI. & Fin. 628, 64.3, rivers, " though they are public rivers, tlie question was whetlier the defend- yet are not arms of the sea. But it ants had fished unlawfully by means seems that, although the water be of stake-nets, which was an illegal act fresh at high water, yet the denomi- by statute if done in a " river," but nation of an arm of the sea continues, permissible in the sea; and it was if it flow and reflow as in Thames held that the jury were improperly above the bridge." instructed that "the thing to be looked ^ This case seems to have been at is the absence or prevalence of misunderstood. In Angell on Water- the fresh water, though strongly im- courses, § 544, it is said of it that the pregnated by salt " ; and that the point in question was by Lord Mans- absence or prevalence of salt water field " pronounced new and inadmissi- was a consideration of minor import- ble " ; while in Attorney General v. ance in such a case. Woods, 108 Mass. 439, Chapman, 0. ' The question was not altogether J., spoke of the question as there new, for Lord Hale says (De Jure "settled." The point was indeed Maris, c. 4, with reference to the urged by counsel, but Lord Mansfield extent to which a river io properly expressed no opinion upon it, saying CHAP. III.] EIVBES. 101 that it is the fluctuation of the water, as shown by its regu- lar rise and fall, under the influence of the tide, and not the proportion of salt water to fresh, that determines the point in a river at which its navigable character ceases. It was so decided in the Supreme Court of the United States with reference to the Mississippi River at New Orleans ; * in Maine, ill respect to the Penobscot River at Bangor ; ^ and in Massa- chusetts, as to a portion of the Mystic River where the rise and fall of the water was two feet and the stream only about the same number of feet deep at low tide.^ In the recent English case of Reece v. Miller,'' it appeared that the water of the river Wj^e was not salt at the spot in question, and that in ordinary tides it was unafPected by any tidal in- fluence, but that, upon the occasion of very high tides, the rising of the salt water in the lower parts of the river dammed back the fresh water, and caused it to rise and fall with the tide. It was held that the right of the Crown and the public right of fishery did not apply to the part of the river affected by the tide only under such circumstances or when the action of the tide was reinforced by a strong wind. § 45. A fresh-water river, like a tidal river, is composed of the alveus, or bed, and the water ; but it has banks in^ stead of shores.® The banks are the elevations of land which confine the waters in their natural channel when they rise the highest and do not overflow the banks ; ^ and in that condition of the water the banks, and the soil which is per- manently submerged, form the bed of the river." The banks "that there were no facts set forth i;i ^ See ante, § 41, note. I'lo case which let in the consideration ^ Howard v. Ingersoll, 13 How. of that distinction." (U.S.) 381, 391, 427; 17 Ala. 780; ' Peroux V. Howard, 7 Peters, 343. Houghton v. The C. D. & M. E. Co., 47 ' Lapish V. Cangor Bank, 8 Grcenl. Iowa, 370 ; Haight v. Keokuk, 4 Iowa, !''j. 199, 212 ; Stone v. Augusta, 46 Maine, ^ Attorney General v. Woods, 108 127, 137 ; Alahama v. Georgia, 23 How. Mass. 436. To the same effect are 506. Tinicum Msliiug Co. v. Carter, 01 ' Ibid. ; 13 How. {XJ. S.) p. 415. Penn. St. 21; Stone u'. Augusta, 46 In distinguishing the banks from the Maine, 127, 137; People o. Tibbetts, permanent bed of the river, the line ]OXY. 523. is determined by examining the bed ' 8 Q. B. D. 626. and banks, and ascertaining where the 102 THE LAW OF AVATEKS. [PAET I. are a part of the river-bed,^ but the river does not include lands beyond the banks, which are covered in times of freshets or extraordinary floods, or swamps or low grounds which are liable to overflow, but are reclaimable for meadows or agriculture, or which, being too low for reclamation, though not always covered with water, may be used for cattle to ' range upon, as natural or unenclosed pasture.^ Fresh rivers, although not subject to the daily fluctuations of the tide, may rise and fall periodically at certain seasons, and thus have defined high and low-water marks. The low- water mark is the point to which the river recedes at its lowest stage.^ The liigh-water mark is the line which the river impresses upon the soil by covering it for sufficient periods to deprive it of vegetation and to destroy its value for agriculture.* § 46. Fresh-water streams which are not a common pas- sage are private property, and the title to the bed of the river ad filuni aquae is in the riparian proprietors in severalty and not in common ; ^ they own the islands which form in presence and action of the water are Press, 18 La. 125, 278; Lacy v. Green, so common and usual, and so long 84 Penn. St. 514 ; Gavit o. Chambers, continued in all ordinary years, as to 3 Ohio, 495. mark upon the soil of the bed a char- ^ Rex v. Wharton, Holt, 499 ; 12 Mod. acter distinct from that of the banks, 510 ; Carter v. Murcot, 4 Burr. 2M2 ; in respect to vegetation, as well as in King v. King, 7 Mass. 499 ; Lunt o. respect to the nature of the soil itself. Holland, 14 Mass. ; Dearfield v. Arms, Ibid., per Curtis, J., pp. 427, 428 ; Mc- 17 Pick. 41 ; Knight v. Wilder, 2 Gush. Culloch V. Wainvvright, 14 Penn. St. 200; Seneca Nation u. Knight, 2:S 171. N. Y. 498; Woodman v. Spencer, 54 ' Ibid. ; Haight v. Keokuk, 4 Iowa, N. H. 507 ; Adams y. Barney, 25 Vt. 199. 225; Jackson v. Louw, 12 Johns. 252; 2 Ibid. ; 13 How. (U. S.) p. 415. Ball v. Slack, 2 Whart. 538; Coovert 3 13 How. pp. 417, 415, 428. v. O'Conner, 8 Watts, 470 ; Barclay * Howard v. IngersoU, 13 How. 881 ; Railroad Co. v. Ingham, 36 Penn. St. Houghton V. The C. D. & M. R. Co., 47 194 ; Poor v. McClure, 77 Id. 214 ; Iowa, 370 ; Musser v. Hershey, 42 Bradford v. Cressey, 45 Maine, 9 ; Iowa, 356; McCuUough v. Wainwright, Poor v. McClure, 77 Penn. St. 214 ; 14 Penn. St. 171 ; Stover v. Jack, 60 Gates v. Waddington, 2 McCord Penn. St. 339; Wainwright v. McCul- (S. C.) 580; McCuUough <-. Wall, 4 lough, 63 Penn. St. 66. See The Bat- Rich. (S. C.) 68; Noble v. Cunning- ture, Am. State Papers, vol. 17, p. 90 ; ham, McMullan (S. C.) 289; Hayes r. Public Lands, vol. 2, p. 90, et seq.; Bowman, 1 Rand. (Va.) 417; Homer. Municipality No. 2 c. Orleans Cotton Richards, 4 Call, 441 ; Smith ,■. In- CHAP. III.J EIVEES. 103 the stream,! and have the exclusive right of fishing ; ® and if the banks on both sides of tlie river belong to the same per- son, he owns the entire river-bed according to the extent of his lands in length.^ There is great conflict of authority with respect to the large rivers and parts of rivers which, being navigable in fact, resemble tidal rivers, and, being fresh, partake of the nature of the small unnavigable streams which feed them. Where a fresh navigable river is held to be private property, the Crown and the public gram, 7 Ired. (S. C.) 175 ; Ingraham V. TreadgiU, 3 Dev. (N. C.) 59; Cam- den V. Creel, 4 W. Va. 365. 1 Briekett v. Morris, L. E. 1 H. L. Sc. 47; Wishart u. Wyllie, 1 Macq. H. L. 389. - Ibid. ' Wadsworth v. Smith, 11 Maine, 278, 281. Tlie ground on wliich this rule is founded is thus explained in the dissenting opinion of Redfiold, J., in Buck c. Squires, 22 Vt. 484, 494: " The rule itself is mainly one of pol- icy, and one which to the unprofes- sional might not seem of the first importance ; but it is at the same time one which the American courts, especially, have regarded as attended with very serious consequences, when not rigidly adhered to ; and its chief object is, to prevent the existence of innumerable strips and gores of land, along the ' margins of streams and highways, to which the title, for gen- erations, shall remain in abeyance, and then, upon the happening of some unexpected event, and one, conse- quently, not in express terms provided for in the title deeds, a bootless, almost objectless, litigation shall spring up to vex and harass those, who in good faith had supposed themselves secure from such embarrassment. It is, as I understand the law^ to prevent the occurrence of just such contingencies as these, that in the leading, best reasoned, and best con- sidered cases upon this subject it is laid down and fully established that courts will always extend the bounda- ries of land deeded as extending to and along the sides of highways and fresh-water streams, not navigable, to the middle of such streams and high- ways if it can be done without mani- fest violence to the words used in the conveyance. And, to have this rule of theleastpraetical importancetocure the evil which it is adapted to rem- edy, it must be applied to every case, where there is not expressed an evi- dent and manifest intention to the con- trary, — one from which no rational construction can escape. The rule, to be of any practical utility, must be pushed somewhat to the extreme of ordinary rules of construction, so as to apply to all cases, when there is not a clearly expressed intention in the deed to limit the conveyance short of the middle of the stream or way. If it is only to be applied like the ordinary rules of construction as to boundary, so as to reach, as far as may be, the clearly formed idea in the mind of the grantor at the time of executing the deed, it will ordina- rily be of no utility as a rule of expe- diency or policy. For in ninety-nine cases in every hundred, the parties, at the time of the conveyance, do not esteem the land covered by the high- way of any importance either way; hence, they use words naturally de- scriptive of the prominent idea in their minds at the time, and in doing so, define the land which it is expected the party will occupy and improve." 104 THE LAW or WATEIIS. [PAET have no rights in it which are not connected with the navi- gation.^ § 47. Bracton, who wrote in the thirteenth century, and is the earliest English authority upon this question, says that of natural right flowing water, the air, the sea, and the shores of the sea are common property ; that all rivers that flow perpetually are public, and that the right of fislung therein and the use of the river banks are public also.^ This, though not the modern common-law rule, corresponds with the doctrine of the civil law, and the phraseology is substantially the same as that of the Institutes.^ No dis- ' Orr Ewing v. Colquhoun, 2 App. Cas. 839, 871 ; Binney's Case, 2 Bland, !)9, 125 ; Adams v. Pease, 2 Conn. 483; Ross V. Faust, 54 Ind. 471 ; Braxton i>. Bressler, 64 III. 488 ; Berry !'. Sny- der, 3 Bush, 266, 285. A right of public passage acquired over a high- way by prescription dpes not authorize the public authorities to quarry stone, for the repair of other highways, in the bed of a river spanned by a bridge which forms part of the highway in question. Overman v. May, 35 Iowa, 89 ; Commissioners y. Beckwith, 10 Kansas, 603. ^ The passages in Bracton (lib. I. c. 12, fol. 7, 8) are as follows ; " Naturali vero jure communia sunt omnia haec, aqua profluens, aer et mare, et littora maris, quasi maris accessoria Publica vero sunt omnia flumina et portus. Ideo- que jus piscandi omnibus commune est in portu et in fluminibus. Ripa- rum etiam usus publicus est de jure gentium, sicut ipsius fluminis. Itaque naves ad eas applijare, funes arboribus ibi natis religare, onus ali- quod in lis reponere, cuivis llberum est, sicut per ipsum fluvium navigare, sed proprietas earum est illorum quo- rum prediis adhaerent, et eadem de causa arbores in eisdem natae eorun- dem sunt ; et haec intelligenda sunt de fluminibus perhennibus, quia tempo- ralia possunt esse privata." These passages are translated in Sir Travers Twiss's edition of Bracton (vol. i., 57) as follows : " Of natural right all these things are common : flowing water, air and sea, and the shores of the sea, as being as it were approaches to the sea. All rivers and ports are public, and accordingly the right of fishing in a port and in rivers is common to all persons. The use of the banks is also public by the right of nations, as of the river itself. It is free to every person to moor ships there to the banks, to fasten ropes to the trees growing upon them, to land cargoes and other things upon them, just as to navigate the river itself; but the property of the banks is in those whose lands they adjoin ; and for the same cause the trees growing upon them belong to the same per- sons ; and this is to be understood of perennial rivers, because streams which are temporary may be prop- erty." 3 See Inst. lib. 2, 1, §§ 1, 2, 5 ; Royal Fishery of the Banne, Sir J. Da; vies, 149, 150 ; Blundell v. Catterall, 5 B. & Aid. 268, 304 ; Bagott v. Orr, 2 Bos. & P. 472. Bracton does not here follow the civil law, for while he says that the use of the sea, etc., are common, he does not add the remain- der of the sentence from the civil law. CHAP III.] EIVERS. 105 tinction is here drawn between those rivers v/hich arc and those which are not navigable in fact. The passage seenii; to show either that tlie rules of the common and civil lav/ were the same at this early period, or that Bracton, fmding the subject undefined in the law of England, supplied the deficiency, as he was wont to do, by borrowing from the Roman code.^ that the property in these things can- not be tatcn to belong to any one. See Hall on the Seashore (2(1 ed.), 104, 105. The Itom.an law declared navi- gable rivers to be so far public prop- erty that a free passage over them was open to everybody, but distin- guished between rivers and the sea, the former being classed among res pubUcae, and the latter among res communes. Just. Inst. lib. II. tit. 1, §§ 1, 2 ; Dig. 43, 12 ; 2 Domat. bk. I. tit. 8, §§ 1, 2 ; 1 Phillimore's Int. Law, §§ 155-6 ; Vattel, Droit des Gens, liv. II. c. 9, §§ 126-130; u. 10, §§ 132-134; Puilendorf, De Jur. Nat. et Gen. lib. III. c. 3, §§ 3-0; Poison, Law of Na- tions, §- 5 ; 1 Halleck Int. Law, c. 0, p. 147. ' As to the authority of Bracton, see 2 Reeve's History of the English Law (3d ed.), 88, 282 , Crabb's History of the English Law, 157, 158 ; 1 Black. Com. 72; 4 Id. 425; Guterbock's Bracton, *Preface ; King v. Yarbor- ough, 3, Dow & Clark, 178, 187. Mr. Eeeve (p. 88 above) says: "The fa- miliarity with which Bracton recurs to the Roman code has struck many readers more forcibly than any other part of his character ; and some have thenee pronounced a hasty judgment upon his fidelity as a writer on Eng- lish law. But the passages to which such persons take exception, if put together, would perhaps not fill three whole pages of his book ; and it may be doubted whether they are such as can always mislead the reader. Upon a second consideration of those places where the Roman law is stated with most confidence, it will be seen that it is rather alluded to for illustration and ornament, than adduced as an au- thority, though it is visible that Brac- ton, with all Ms endeavors to give form and beauty to our own law, by setting forth its native strengtli to advantage, did not refuse such helps as could be derived from other sources to improve and augment it." Mr. Crabb (p. 158) goes farther, and says that it is evident, from an at- tentive perusal of Bracton's works, that they contain nothing but whiit has been admitted by legal authorities into English jurisprudence. In Blun- dell o. Catterall, 5 B. & Aid. 268, Best, J., who differed from the ma- jority of the court as to the public right of bathing in the sea, said, witli reference to the above passage from Bracton : " Bracton has not stated this as civil law ; he has made it part of his book De Legibus ci Consuetu- dlnilms Anijliue. He was Chief Justice of England in the reign of Henry the Third; and Lord Hale (Hist, of the Common Law, c. 7) says, that in his time the common law was much im- proved, and the pleadings were more perfect and orderly than in any pre- ceding period of our history. Surely such a man is no mean authority for what the common law was at the time he wrote. . . . Bracton speaks not of newly-made rivers, but of such as were always navigable, and the banks of which had been as open to the public as their waters. This I take to be the law with all inland naviga- tions in the reign of Henry the Third. These, like the sea and its shores, were then the property of tlie public, 106 THE LAW OF WATBES. [PAKT I. § 48. The question appears to have been first passed upon judicially in the case of the Royal Fishery of the Banne,^ decided in Ireland in the year 1611. It was there resolved : (1) that, although the rule of the civil law be as it is found in Bracton, " yet, by the common law of England, a man may have a proper and several interest as well in a water or river as in a fishery " ; (2) that " there are two kinds of rivers : navigable and not navigable. Every navigable river, so high as the sea Hows and ebbs in it, -is a royal river, and the fishery of it is a royal fishery, and belongs to the king by his prerogative ; but in every other river, not navigable, and in the fishery of such river, the ter-tenants on each side have an interest of common right." It is further said in this case : " The river Lee is found by acquisition the king's high stream ; and in the stat. of 28 Hen. 8, c. 22, enacted in this kingdom, the rivers Barrow, Noire, and Suire are called the king's rivers, and the weirs erected in them arc called pur- preshi7-es ; and, although the king permit his people, for their ease and commodity, to have common passage over such navigable rivers, yet he hath a sole interest in the soil of such rivers, and also in the fishery." The conclusion was, that " the river Banne, so far as the sea flows and ebbs in it, is a royal river ; and the fishery of salmon there is a royal fishery, which belongs to the king as a several fishery, and not to those who have the soil on each side of the water. But, on the other part, it was agreed that every inland river," not navigable, appertains to the owners of the soil where it hath its course, and if such river runneth between two manors, and is the mear and boundary between them, the one moiety of the river and fishery belongeth to one lord, and the other moiety to the other." and the right of the public in them rights of the people. In England, our was not acquired by any compromise ancestors put the public rights in with the interests of any individual, rivers under the safeguard of Magna ... In the first ages of all countries, Charta. The principle of exclusive not only the sea and its shores, but appropriation must not be carried all perennial rivers, were left open to beyond things capable of improve- public use. In all countries, it has ment by the industry of man." been matter of just complaint, that ' Sir John Da vies, 149. individuals have encroached on the CHAP, in.] EIVEES. 107 The real question presented for decision was, whether a royal grant of certain lands, adjacent to the river Banne, con- Teyed a salmon fishery at a point in the river where it was "navigable." If the word "navigable," as here used, means tidal,! ll^Q question of title to a fresh-water river was not in issue ; and the first part of the last resolution, in which the king is held to be the owner of tidal rivers, and the resolu- tion that nothing passes by implication in a royal grant, em- brace the only points that were directly decided. It should also be noticed that the Barrow, the Noire, and the Suire, which are both navigable and fresh,^ are here called royal rivers, and that the king is said to have a sole interest in the soil of these rivers, and also in the fishery. § 49. The treatise De Jure Maris, published in 1787, and usually ascribed to Sir Matthew Hale, who died in 1676, begins with the statement^ that "fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent ; so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing, usque filum aquae ; and the owners of the other side the right of soil or ownership, and fishing unto the filum aquae on their side." In the second chapter of the treatise, the resolution in the case of the Royal Fishery of the Banne, in which the Barrow and other fresh rivers are termed royal rivers, is criticised,* but no authorities are cited in support of ' The word " navigable " in this not supported by tlie English de- case is, perliaps, of somewtiat doubt- cisions in whicli these cases are re- ful meaning, it being said that " every ferred to. navigable river, so high as the sea ebbs '' See Encyclopedia Britannica, tit. and flows in it," is a royal river ; that Barrow ; Murphy o. Ryan, Ir. R. 2 "every other river not navigable," C. L. 143, 153; De Jure Maris, c. 2; and " every inland river not navi- post, § 51 ; People v. Canal Appraisers, gable," are private, etc. In People y. 33 N. Y. 461, 470. Canal Appraisers, 33 N. Y. 461, 470, ^ Hale, De Jure Maris, c. 1, 3 ; Davies, J., interprets the case of the Hargrave's Law Tracts, 5. Koyal Fishery of the Banne, and, also, * De Jure Maris, c. 2. This pas- Warren D. Matthews, 6 Mod. 73, and sage is as follows : "As the common Carter v. Murcot, 4 Burr. 2162, as dis- highways on the land are for tlie com- tinguishing only between tliose rivers mon land passage, so these kinds of which are, and those which are not, rivers, whether fresh or salt, that hour navigable in fact. But this view is boats or barges, are highways by 108 THE LAW OF WATERS. [PAET I. this passage, or of the subsequent statement that the rivers which Bracton declares to be public, " must be taken to be rivers that are arms of the sea." ^ In the same chapter, which is entitled " Of the right of prerogative in private or fresh rivers," it is said that the king has jurisdiction to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges and boats, and to reform the ob- structions or annoyances therein ; that these public streams which are highways by water, are called roj^al, not in refer- ence to the propriety of the river, but to the public use, and that they are under the king's special care and protection, whether the soil be his or not. In chapter four it is said that the king has the right of property in the sea, and in the shore and in the creeks and arms thereof, where the sea flows and re-flows, and so far only as the sea so flows and re- flows ; and that, although the water be fresh at high water, yet the denomination of an arm of the . sea continues, if it flow and re-flow. These passages support the doctrine that the public have no rights in any fresh-water river except that of navigation. The authorship of the work ^ would not, per- water; and as the highways by land arc is said that salmons, "though they called ahae viae regiae, so these puhlick are great fish, are not royal fish, as rivers for publick passage are called tlie report of Sir John Daries in the fluvii regales, and haul streames le roij ; case of the fishing of Banne would not in reference to the propriety of the intimate." The other passage relates river, but to the publick use ; all to the acquisition by a subject of things of publick safety and con- rights in the sea by prescription or venience being in a special manner usage, in which it is said : " I have under the king's care, supervision, and added the more, because there are protection. And, therefore, the re- certain glances and intimations in the port in Sir John Davys, of the pis- case of the piscary of Banne, in Sir cary of Banne, mistakes the reason John Davies's reports, as if the fishing of those books, that call these streames in these kinds of royal rivers were not le roij, as if tliey were so called in re- acquirable but by special charter, spect of propriety (as 19 Ass. 6 Dy. which is certainly untrue ; for they 11), for they are called so, because are acquirable by prescription or they are of publick use, and under usage, as well as royal fish may the king's special care and protection, be." whether the soil be his or not." The ' De Jure Maris, c. 4 ; Hargrave's case of the Banne is also criticized in Law Tracts, 12. other respects in De Jure Maris, c. 5. ' Ante, § 18. With respect to the right of fishing, it CHAP. III.J EIVEES. 109 haps, be of importance, were it not for tlie fact that, being assoQiated with the name of Lord Hale, the positions here taken have been frequently accepted as a sufficient authoritj-, without inquiring whether the positions themselves had a sound, basis.i The work is posthumous, and there appears to be no evidence that it was revised or intended for publica- tion,^ or at what period of the author's life it was written, while Lord Hale's name has not made it, in all respects, in- controvertible.^ § 50. The early authorities being thus discordant, no cer- tain rule is supplied by the earlier English cases, which relate either to tidal rivers or to fresh rivers which do not appear to be navigable. In Bulstrode v. Hall,* and other cases, which, upon the facts, involved no rights in places above the tide, rivers are said to belong to the king as far as the sea ebbs and flows in them. So in Carter v. Murcot,^ and Rex v. ^ See Phear's Eights of Water, 47, 48. * See Hall on the Seashore, Intro- duction. '■' In the light of modern decisions, the following rules laid down in this treatise are not law : First, That the realm of England extends beyond low-water mark, and includes the ad- .I'acent seas, whether they are within the body of a county or not. De Jure Maris, c. 4; Hargrave's Law Tracts, 10; Contra, Eegina «. Keyn, 2 Ex. D. 63, referred to ante, §§ 13, 14. Second, That "any man may justify the re- moval of a common nuisance, either at land or by water, because every man is concerned in it." De Portibus Maris, c. 7; Hargrave's Law Tracts, 87; Contra, see post, § 128; Third, That alluvion " is de jure communi, by the law of England, the king's, viz. : if by any marks or measures it can be known what is so gained." De .Jure Maris, c. 6; Hargrave's Law Tracts, 28; Contra, Poster v. Wright, 4 C. P. 1). 100; In re Hull & Selby Eailway, 5 M. & W. 327 ; Rex u. Yarborougli, 3 B. & C. 106 ; 2 Bligh, N. S. 147 ; post, u. 5. Fourth, It is now established that the right of towage along the banks of rivers does not exist in the absence of usage, grant, etc., notwithstanding the intimation in this book that tliis is a common-law right. De Portibus Ma- ris, c. 7 ; Hargrave's Law Tracts, 86 ; Ball V. Herbert, 3 T. E. 253 ; Blanch- ard V. Porter, 11 Ohio, 100 ; post, § 150, c. 4. The view that has been expressed in this country that this treatise is of so high authority that there is no ap- peal from it (0 Cowen, 536, note ; Cobb B. Davenport, 3 Vroom, 369, 379) would appear, therefore, to be somewhat exaggerated. < 1 Sid. 148. See, also, Eex r. Trinity House, Id. 86 ; and cases ante, § 18, notes ; Malcomson v. O'Dea, 10 H. L. Cas. 619 ; Warren r. Mathews, 1 Salk. 357 ; 6 Mod. 73 ; Carter c. Mureot, 4 Burr. 2162. * 4 Burr. 2162. In this case the only question was whether the plain- tiff had by prescription a right of several fishery at the place in ques- tion, which was admitted to be a 110 THE LAW OF WATERS. [PAUT Smith,! Lord Mansfield's opinions were to the effect that the distinction is between those rivers in which the sea flows, and those in which it does not ; but the cases related solely to tide waters. Upon the other hand, in Lord Fitzwalter's case,^ before Chief Justice Hale, and in Rex v. 'Whaa'ton,^ before Chief Justice Holt, a case which has been referred to * as bearing upon this question, the rivers m question are not only called private rivers,^ but there is no intimation that they were, in fact, capable of navigation. § 51. The rule thus indicated may be adequate for a country like England, where the rivers are small and rarely navigable in their natural condition above the tide, and where, also, the question has not often arisen.^ In Ireland, navigable river and arm of the sea. Lord Mansfield said : " The rule of law is uniform. In rivers not navi- gable, the proprietors of the land have the right of fishery on their respective sides ; and it generally extends ad Jilum medium aquae. But in navigable rivers, the proprietors of the land on either side have it not ; the fishery is common ; it is prima facie in the king, and is public. If any one claims it ex- clusively, he must show a right. If he can show a right by prescription, he may then exercise an exclusive right, though the presumption is against him, unless he can jjrovc such a pre- scriptive right." ' 2 Dougl. 441. See ante, § 44. ^ 1 Mod. 105. The question here was as to the defendant's right of exclusive fisliery in the river of Wall- fleet, and Hale, C. J., said : " In case of a private river, the lord's having the soil is good evidence to prove that lie hath the right of fishing, and it puts the proof upon them that claim liheram piscariam. But in case of a river that flows and reflows, and is an arm of the sea, there, prima facie, it is common to all." » 12 Mod. 510; s. c. Holt, 499. This case was an indictment for riot, " the cause of the riot being the right of a private river." According to the re- port in 12 Mod., Holt, C. J., said : " If a river run continuously between the land of two persons, each of them is, by common right, owner of that part of the river which is ne.xt Ms land, and may let it to another or to a stranger." See, also, Gibbs v. Wool- liscott, .3 Salk. 291. ■* Hopkins Academy v. Dickinson, 9 Cush. 544, 547. * The word " private " in this con- nection would seem to exclude rivers, wliether fresh or salt, that are capa- ble of navigation. Although in the second chapter of the treatise De Jure Maris the heading is, " Of the right of the prerogative in private or fresh rivers," and the expression, "a fresh or private river," is again used there ; yet in that and the following chapter, the terms " public rivers " and " pub- lic streams " are applied to all rivers tliat are a common passage. ° In Elder ;■. Burrus, 6 Humph. (Tenn.) .360, Turley, J., said: "All laws are, or ought to be, an adapta- tion of principles of action to the state or condition of a. country, anil to its moral and social position. There arc many rules of action recognized CHAP, in.] RIVERS. Ill where the rivers are larger, the question was directly pre- sented, apparently for the first time in the United Kingdom, in Murphy v. Ryan,^ decided by the Irish Court of Common Pleas in 1868. This was an action of trespass for breaking and entering the plaintiff's close covered with water, called the River Barrow, and fishing therein. The issue presented, upon a demurrer to the defendant's plea, was whether, the Barrow being admitted to be from time immemorial a public and navigable river above and beyond the ebb and flow of the sea, and the alleged trespass being above that point, the defendant as one of the public had there the privilege of fishing. The demurrer was allowed, it being considered that no river had " been ever held navigable, so as to vest in the Crown its bed and soil, and in the public the right of fishing, merely because it has been used as a general highway for the purpose of navigation ; and that, beyond the point to which the sea ebbs and flows, even in a river so used for public purposes, the soil is prima facie in the riparian own- ers, and the right of fishing private." § 52. According to recent decisions in England, the title of the riparian owners extends to the centre of all non-tidal streams,^ but the ground of prescription on which the rule now rests is different from that supported by the early in England as suitable, which it would above tide-water ; and accordingly be folly in the extreme, in countries we find that the civil law, which regu- differently located, to recognize as lates and governs those countries, has law ; and, in our opinion, this distinc- adopted a very different rule." tion between rivers 'navigable' and ' Ir. R. 2 C. L. 143. not ' navigable,' causing it to depend ^ Orr Ewing v. Colquhoun, 2 App. upon the ebbing and flowing of the Cas. 839; Bickett o. Morris, L. R. 1 tide, is one of them. The insular H. L, Sc. 47 ; Murphy v. Ryan, Ir. position of Great Britain, the short R. 2 C. L. 143 ; Dwyer v. Rich, Ir. R. courses of her rivers, and the well- 4 C. L. 424; Miller v. Little, 2 L. R. known fact that there are none of Ir. 304 ; Ilargreaves u. Diddams, L. R. them navigable above tide-water but 10 Q. B. 582; Marshall v. Ullcswater for very small craft, well warrants the Nav. Co., 3 B. & S. 742; Bristow v. distinction there drawn by the com- Cormican, 3 App. Cas. 041, 000; Ir. mon law. But very different is the R. 10 C. L. 308, 412, 4.^5 ; Bloomfield situation of the continental powers of v. Johnston, Ir. R. 8 C. L. 03 ; Mus- Europe in this particular. Their sett v. Burch, 35 L. T. n. s. 480 ; Hud- streams are many of them large and son v. McRae, 4 B. & S. 585 ; Grant long and navigable to a great extent v. Oxford, L. R. 4 Q. B, 9, 112 THE LAW OF WATEES. [fart I. authorities, and is inapplicable in this country.i j^ 1838, the question was regarded as not fully settled by Lord Denman, V. J., who, in Williams v. Wilcox,^ said : " It is clear that the channels of public navigable rivers were always highways : up to the point reached by the flow of the tide, the soil was pre- ' Post, § 53. '^ 8 Ad. & El. 314, 333. This im- portant passage of the opinion in Williams v. Wilcox is not noticed by Mr. Houck in his work on Rivers, in which he combats the supposed -rule of the common law, or in Mr. Angell's works on Tide Waters and Water- courses. Although noticed in Hall on the Seashore (2d ed.), 3, note (f), and in Phear's Rights of Water, its meaning seems to have been mis- understood by those writers. Lord Denman's doubt being there referred to as if it related to tidal rivers, and as settled by Lord St. Leonard's opinion in Lord Advocate t'. Hamil- ton, 1 Macq. H. L. 46, in wliicli the language of the court was limited to navigable rivers. A comparison of the two cases, and an examination of tlie passage in De Jure Maris, c. 2, pi. 3, referred to in Williams u. Wilco.x, shows that the two judges were think- ing of different subjects. See Murphy ,.. Ryan, Ir. R. 2 C. L. 143, 153, 154; Ipswich Dock r. Overseers, 7 15. & S. 310, 335. In Bristow v. Cormican, 3 App. Cas. 641, 666 ; Ir. R. 10 C. L. 425, it was held that the crown has no title rfe jure to the soil or fisheries of an inland lake ; and Lord Blackburn, re- ferring to the doubt expressed by Wightman, J., in Marshall r. Ulles- water Navigation Co., 3 B. & S. 742, upon the question whether the soil of lakes, like that of fresh-water rivers, prima facie belonged to the riparian owners ad Jilum aquae, or to the Crown, said: "That learned judge did not think that the law as to land covered by still water was so clearly settled to be the same as the law as to land covered by running water, as to justify him in unnecessarily decid- ing that it was the same. ... I own myself to be unable to see any reason why the law should not be the same, at least where the lake is so small, or the adjoining manor so large, that the whole lake is included in one proji- erty. Whether the rule that each adjoining proprietor, where there arc several, is entitled usque ad Jilum aquae, should apply to a lake, is a different question. It does not seem very convenient that each proprietor of a fpw acres fronting on Lough Neagh sliould have a piece of the soil of the lough many miles in length tacked on to his frontage. But no question arises in this case as to the rights of the riparian proprietors among themselves, for no title is made by either party through any one as riparian owner." In the same case in the lower court, Pallas, C. B. (p. 402), considered that the question whether " navigable " was synonymous with " tidal," so as to limit the pubUc right of fishing to tide waters, would be worthy of grave consideration, if it were unfettered by authority ; and Dowse, B., referring to the American decisions said (p. 412) that it would amount to an absurdity if a man, who owned a strip of land containing per- haps a quarter of an acre on the bank of the Jlississippi, should be entitled to a several fishery extending three- quarters of a mile out to the mid- dle of the river. In the Exchequer Chamber (Ibid. p. 412, 434), White- side, C. J., declared the test afforded by the tide to be " an arbitrary rule, repugnant to reason, convenience, and the common sense of mankind." CHAP III.] EIVEES. 113 sumably in the Crown ; and, above that point, whether the soil at common law was in the Crown or the owners of the adjacent lands (a point perhaps not free from doubt), there was at least a jurisdiction in the Crown, according to Sir Matthew Hale, ' to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges or boats.' ^ In either case, the right of the subject to pass up and down was complete." § 53. In view of the hesitation manifested in this country, especially in the Western States, to apply the English rule to our navigable fresh-water rivers and lakes, it should be remarked that the doctrine of Lord Hale and the early Eng- lish decisions appears to be defective in that, according to the theory which they support, the general right of navigation in fresh waters is inconsistent with the private ownership of the soil beneath. Woolrych says : ® " Waters flowing inland, where the public have been used to exercise a free right of passage from time whereof the memory of man is not to the contrary, or by virtue of legislative enactments, are public' navigable rivers. This is the most unfailing test to apply iru order to ascertain a common right , others have been attempt-- ed, and frequently without success." In England, prescrip- tion appears to be the ground upon which the right of navigation in these waters now depends,^ and in early decisions in this country it was held that fresh rivers, though navigable in fact, are not open to the public unless they have been long used for navigation, or have been declared high- ways by the legislature.* This is contrary to Lord; Hale. ' Citing Hale, De Jure Maris, c. 2. 274, Weston, J., said, in speaking of ^ Woolrych 6n Waters, 31. the public right of navigation in the ' King V. Montague, 4 B. & C. 96; Saco River above the tide: "In the Bristow V. Cormican, 3 App. Cas. 641 ; case of Dunbar v. Vinal, in the Su- Orr Ewing v. Colquhoun, 2 App. Cas. i-reme Court of Massachusetts in 1801, 839 ; Murphy v. Ryan, Ir. R. 2 C. L. it was decided ' that the navigable 143 ; Hargreaves v. Diddams, L. E. 10 waters of the country, were a common Q. B. 582; Coulson & Forbes on privilege for passing: upon, them, and Waters, 92, 93, 441 ; Addison on Torts that the plaintiff, hadi no . right to in- loth Eng. ed,), 561. tercept it by a dani.f" But in the case * In Berry u. Carle, 3 Grcenl. 269, of Spring v. Clia&e ct al, it was, in 114 THE LAW OF WATERS. [part I. who makes no distinction in this respect between tidal and fresh navigable rivers, and says that both are common high- ways and prima facie publici juris, whether they are fresh or salt, whether they flow and reflow or not.' If proof of long-continued exercise of the right to pass over the soil covered by the water were required in newly settled colonies and territories, in which the rivers are often the chief means 1799, decided by the same Court to be otherwise, where the party owns the adjoining land, and no tide ebbs and flows. In that case the plaintiff, being the owner of the adjoining lands, erected ii bridge over Saco Eiver, above, but near, the great falls and above the tide waters. The defen- dants threw down the bridge as a nui- sance, for which they were called upon to answer in trespass. The plaintiff had judgment because, in the opinion of the Court, those were not navigable waters where the bridge was built, although the river was there conve- nient for boats and rafts, and for many miles above. These cases are not re- ported at large, but are briefly stated in 2 Dane's Abridgment, 696. Not- withstanding the Saco, above the tide waters, may not be open to the public ras a highway of common right, yet by (long usage as such, it may acquire this character. In the case before 'US, it is not stated as a fact that the ' Saco River is, at the place where the injury complained of was done, a pub- lic highway. . . . The facts are im- perfectly exhibited if the river has, .in the place in question, by long usage, (the attributes of a public highway, . and the ground taken by the counsel for the plaintiffs in error is therefore insuflScient to entitle them to a rever- sal of the judgment." Evidence of long-continued public use was also held ;to be essential or material in ■ Scott u. Willson, 3 N. H. 321, 325; ' State w.'Gilmanton, 14 N. H. 467, 478 ; ' Browne v. Scofield, 8 Barb. 239 ; Shaw • V. Crawford, 10 Johns. 236 : Palmer v. Mulligan, 3 Caines, 307, 312. And see McManus i . Carmichael, 3 Iowa, 1, 31. In the case of Brown v. Chad- bourne, 31 Maine, 9, 21, the court considered the view expressed in Berry i-. Carle erroneous, Wells, J., saying : " If a stream could be subject to public servitude by long use only, many large rivers in newly settled States, and some in the interior of this State, would be altogether under the control and dominion of the own- ers of their beds, and the community would be deprived of the use of those rivers, which nature has plainly de- clared to be public highways. The true test, therefore, to be applied in such cases, is, whether a stream is in- herently, and in its nature, capable of being used for the purposes of com- merce, for the floating of vessels, boats, rafts, or logs. AVhen a stream possesses such a character, then the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it." See, also. Car- ter V. Thurston, 58 Jf. H. 104, 106; 54 N. H. 545, 549, overruling the dicta in Scott V. Willson, above cited : Tyrrell V. Lockhart, 3 Blackf . 136 ; Brubaker V. Paul, 7 Dana, 428 ; State ;•. Thomp- son, 2 Strob. (S. C.) 12; Hubbard v. Bell, 54 111. 110; Ellis c-. Carey, 30 Ala. 725, Rhodes v. Otis, oO Ala. 578; Peters r. New Orleans Railroad Co., 56 Ala. 528. ' Hale, De Jure Maris, c. 1, 2, 3; Hargrave's Law Tracts, 6, 8, 9 ; Wil- liams 0. Wilcox, 8 Ad. & El. 314, 333, referred to ante, § 52. CHAP. III.] BIVEES. 115 of transportation and. travel, and the riparian owners were permitted, in tlie absejice of such evidence, to obstruct large rivers by dams, bridges, or booms, or to demand compensation from navigators, it would amount to a serious grievance. § 54. Nature is competent, it has been said, to make a navigable river without the aid of the legislature ; ^ and it is now fully established in this countrjr, overruling the earlier decisions, that the public have a right of passage over all fresh-water streams which are by nature susceptible of gen- eral use, and that those rivers are public and navigable in law which are navigable in fact.- This right of navigation is distinct from the public right of fisherj^ which may or may not exist in the same waters.^ § 55. In theory, it would seem that prescription, as sug- gested by Woolrych, is the only ground upon which the right of navigation can be reconciled with the private ownership of the soil. The public right is said to be an easement to which the title of the adjoining owners is subjected, as in the case of a highway on the land,* but the analogy is imperfect. ' Martin !i. Bliss, 5 Blackf. 35. v. Hungerford, G Barb. 2G5; Rowe 'Hale, De Jure Maris, c. 2, 3; v. Titus, 1 Allen (N. B.), 326; Es- Williams v. Wilcox, 8 Ad. & El. 314, son v. McMaster, 1 Kerr (K B.), 501 ; 333 ; Barney v. Keokuk, 94 IT. S. Boissonnault i-. Oliv, Stuart (Low. 342; Pound ^. Turck, 95 U. S. 459; Can.), 565; Moore c. Sanborne, 2 Mich. The Daniel Ball, 10 Wall. 557 ; 519 ; Lorman v. Benson, 8 Mich. 18 ; The Montello^ 20 Wall. 430, 442 ; Kliodos r. Otis, 33 Ala. 578, 596 ; Cox Carter v. Thurston, 58 N. II. 104, c. State, 3 Blackf. 193; Weise i'. Smith, 106; Thompson v. Androscoggin 3 Oreg. 445, 448 ; Healy v. Joliet Rail- Co., 54 N. H. 545 ; 58 N. II. 108 ; road Co., 2 111. App. 435 ; People v. Brown v. Chadbourne, 31 Maine, 9 ; St. Louis, 5 Oilman, 351 ; Godfrey v. Moor V. Veazie, 32 Maine, 343 ; Spring Alton, 12 111. 29 ; Memphis v. Overton, V. Russell, 7 Greenl. 273, 290 ; Wads- 3 Yerger, 389 ; Elder v. Burrus, 6 worth V. Smith, 11 Maine, 278 ; Adams Humph. 358 ; Stuart a. Clark, 2 Swan, V. Pease, 2 Conn. 481 ; Ingraham o. 15 ; Sigler v. State, 7 Baxter, 493 ; Wilkinson, 4 Pick. 268; Common- Yates t,. Judd, 18 Wis. 118; Hickok wealth V. Chapin, 5 Pick. 199, 202 ; v. Hine, 23 Ohio St. 523 ; Selman v. Avery v. Pox, 1 Abb. U. S. 246 ; Pal- Wolfe, 27 Texas, 68. mer v. Mulligan, 3 Caines, 307 ; Peo- ' See Leconfield v. Lonsdale, L. R. pie V. Piatt, 17 Johns. 195, 211 ; Hooker C. P. 665 ; People v. Piatt, 17 Johns, i). Cummings, 20 Johns. 90; Canal 195,211. Commissioners a. People, 5 Wend. ■* Orr Ewing v. Colquhoun, 2 App. 423 ; Morgan v. King, 35 N. Y. 454 ; Cas. 839 ; Ingraham v. Wilkinson, 4 30 Barb. 9 ; 18 Barb. 277 ; Munson Pick. 268 ; Commonwealth v. Chapin, 5 116 THE LAW OF -VYATEES. [I'AET I. In the case of Ball v. Herbert/ BuUer, J., said : " Callis com- pares a navigable river to a highway, but no two cases ca:i be more distinct. In the latter case, if the way be founder- ous and out of repair, the public have a right to go on the adjoining land ; but, if a river should happen to be choaked up with mud, that would not give the public a right to cut another passage through the adjoining lands." A road or highway by land is limited in locality ,2 being confined witlnn specific lines and not extending over tracts of land generally; and the public right to use it arises by statute, or by dedica- tion, prescription, contract, or by survey and plat. If by statute, compensation must be made ; in other cases the consent of the owner is required.^ But, as the right of navigation extends to all waters which have a natural capac- ity for such use, there is a general presumption of an ease- ment,* and the owners of the adjoining lands can neither prevent its acquisition or exercise,^ or obtain compensation for such appropriation of private property to the public use. The anomalous nature of this doctrine is further illustrated Pick. 199; Hooker v. Cummings, 20 Association v. Meninger, 14 Kansas, .Johns. 90; Varick v. Smith, 9 Paige, 312; Olipliant c'. Atchison Co., 18 137, 143; Morgan O.King, .35 N.Y. 454; Kansas, 380, State v. O'Laugiilin, 19 Chenango Bridge Co. i-. I'aige, 23 Alb. Kansas, 504 ; Belleville v. Stookoy, 33 L. Jour. 15 ; Young v. Harrison, 6 111. 441 ; Grubo i\ Xichols, 30 111. 92 ; Ga. 130, 141 ; MoCullough v. Wall, Smith v. Flora, 64 111. 93 ; PUmpton 4 Rich. (S. C.) 68; Ensminger r. The v. Converse, 44 Vt. 1-58; Johnson v. People, 47 111. 384; Braxton ,-. Bress- Stayton, 5 Harr. (Del.) 448; Mclvin ler, 04 111. 488 ; The Magnolia v. Mar- v. Whiting, 13 Pick. 184. shall, 39 Miss. 109 ; Morgan u. Read- * There appears to bo no analogy ing, 3 S. & M. 366. for a general prcsir.nption of an easc- ' Ball V. Herbert, 3 T. R. 253, 263 ; ment. Sir. Phcar says tlicre cannot be Williams v. Wilcox, 8 Ad. El. 314. such a presumption. Phear's Eights ^ See, e. g., Gentleman ,-. Soule, 32 of Water, 15, note. III. 271 ; Plimpton v. Converse, 44 Vt. = An easement cannot be supported 158 ; Hart v. Connor, 25 Conn. 331 ; on the ground of long user, unices it Jones y. Percival, 5 Pick. 485 ; Holmes was capable of prevention, or action- V. Seely, 19 Wend. 507 ; Erice o. able at some time by the owner of Randall, 7 Gill & J. 349. the servient tenement. Sturges 0. ' See, e. (/., as illustrating the text Bridgman, 11 Ch. D. 852; Gilmore v. as to highways, State v. Kansas City Driscoll, 122 Mass. 199, 207 , Mitchell Railway Co., 45 Iowa, 139 ; State v. v. Mayor, 49 Ga. 19 ; Webb v. Bird, Welpton, 34 Iowa, 144 ; State v. Tuck- 13 C. B. n. s. 841 ; Chasemore v. Rich- er, .36 Iowa, 485 ; Detroit ,•. Detroit ards, 7 II. 1.. Cas. 349. Railway Co., 20 Mich. 173; Cemetery CHAP. III.J EITEES. 117 by a decision in Michigan, in which it was hold that the right of navigation in a private fresh river, though nominally an easement, is not, like other easements, an incorporeal heredit- ament or real estate ; and that an action for obstructing this right, though local at common law, was not so under a stat- ute which made actions on the case, for injuries to real estate, local, and other actions transitor3^^ § 56. In this country the doctrine of private ownership has been generally recognized as the rule of the common law; but it has been held to be inapplicable to the condition of many of those States in which the inland rivers are large.^ It is in force in all the New England States,^ where the fresh rivers are comparatively unimportant, although in Rhode Island it does not appear to have been directly passed upon.* ' Barnard v. Hinckley, 10 Mich. 458. ^ Post, §§ 64, 75. ^ In Connecticut, Adams v. Pease, 2 Conn. 481 ; Bissell v. Southworth, 1 Root, 269 ; Warner v. Southworth, 6 Conn. 471, 474 ; Chapman v. Kimball, 9 Conn. 38, 41 ; Enfield Bridge Co. v. Hartford Railroad Co., 17 Conn. 40, 63 ; Mill River Woollen Manuf . Co. ;;. Smith, 34 Conn. 463. In New Hamp- shire, Scott c. AVillson, 3 N. H. 321 ; Rix !). Johnson, 5 N. H. 520 ; State v. Gilmanton, 9 N. H. 461 ; 14 N. H. 467 ; Greenleaf v. Ivilton, UN. H. 530; State ... Canterbury, 28 N. H. 105; Boscawen v. Canterbury, 23 N. H. 189; Nichols V. Suncook Manuf. Co., 34 N. H. 345 ; Kimball v. Schoff, 40 N. H. 190 ; Clement v. Burns, 43 N. H. 609 ; Norway Plains Co. o. Bradley, 52 N. H. 80. (In Nichols v. Suncook Manuf. Co. 34 N. H. 345, it was held that ad- verse possession of land bordering upon a river not navigable, gives title to tlie thread of the stream.) Clare- inont V. Carlton, 2 N. H. 369 ; Thomp- son U.Androscoggin Co., 54 N. H. 548 ; 58 Id. 108 ; Carter o. Thurston, 58 N. II. 104 ; State v. Canterbury, 28 N. H. 195. In Vermont, Fletcher v. Phelps, 28 Vt. 257, 262. In Maine, Berry v. Carle, 3 Maine, 269 ; Morrison v. Keen, 3 Maine, 474 ; Lincoln t'. Wilder, 29 Maine, 169 ; Spring v. Rus- sell, 7 Maine, 273, 290; Spring v. Seavey, 8 Maine, 138 ; Wadsworth t ■ Smith, 11 Maine, 278 ; Bradley v. Rice, 13 Maine, 198, 201 ; Nickerson v. Craw- ford, 16 Maine, 245 ; Brown v. Chad- bourne, 31 Maine, 9 ; Knox v. Chalon- cr, 42 Maine, 150 ; Moor r. Veazie, 32 Maifie, 343 ; 31 Maine, 360 ; 14 How. 100 ; Bradford v. Cressey, 45 Maine, 9 ; Strout V. Millbridge Co., 45 Maine, 76 ; Veazie r. Dwinell, 50 Maine, 479, 484 ; Granger v. Avery, 64 Maine, 292 ; Holden <>. Robinson Manuf. Co., 65 Maine, 215 ; Pejopscot Proprietors V. Cushman, 2 Maine, 94. For the Massachusetts cases, see the next note. * See Hughes v. Providence Rail- road Co., 2 R. I. 508, 512 ; Olney v. Fenner, Id. 211, 214. Sec opinion of Story, J., in Tyler v. Wilkinson, 4 Mason, 397, wliich related to the Paw- tucket River. Storcr v. Freeman, 6 Mass. 435, 438 ; Hatch r. Dwight, 17 Mass. 289, 298 ; Ingraham v. Wilkin- son, 4 Pick. 268; Commonwealth t-. Chapin, 5 Pick. 190; Waterman v. 118 THE LAW OP WATEIIS. [PAET I. In an early case^ in Massacliusetts, Parker, C. J., saicl:^ " TliG common-law right of public property, restricted as it seems to be except for easement or right of way, may be found very inconvenient in its application to many of the magnificent fresh-wnter rivers of the United States, which are navigable for small vessels and boats much above the flux of the tide, especially by the aid of steam power so rapidly getting into use." The rule has been held applicable to the Connecticut River above the tide, in Connecticut,^ Massachusetts,* and New Hampshire,^ and to the Penobscot^ and Saco '' Rivers in Maine. In Vermont, Lake Champlain is public property, and the creeks and streams wliich empty into that lake, so far as they are ordinarily of the same level as the lake, and rise and fall with its waters, are held to be public also ; and private conveyances of lands bounding upon such creeks and streams pass title only to the water's edge, or to the low-water mark, if there is a definite low-water line.^ § 57. In New York, the question has given rise to conflict of decision.^ The later decisions follow the common-law Johnson, 1.3 Pick. 261, 2fi5 ; Hopkins ° State v. Canterbury, 28 N. H. 195. Academy v. Dickinson, 9 Cusli. 544, In this case a town was bounded upon 547 ; Commonwealth v. Alger, 7 Cush. the river. 53, 90, 97 ; McFarlin v. Essex Co., 10 = Veazie v. Dwinel, 50 Maine, 479. Cush. 304, 309 ; Blood v. Nashua Rail- ' Berry <•. Carle, 3 Greenl. 260 ; road Co., 2 Gray, 137, 139 ; Boston v. Spring v. Russell, 7 Greenl. 273, 290. Richardson, 13 Allen, 140, 154 ; 105 » Fletcher v. Phelps, 28 Vt. 2-37, Mass. 351, .355 ; Commonwealth v. 202 ; Jakeway r. Barrett, 38 Vt. 31(', Vincent, 108 Mass. 441, 447 ; 1 Dane's 323 ; Austin v. Rutland Railroad Co , Abr. ii., 692, § 13 ; Knight i-. Wilder, 45 Vt. 215 ; Nevrton i: Eddy, 23 Vt. 2 Cush. 199 ; King v. King, 7 Mass. 319. 496. 9 Palmer <■. Mulligan, 3 Caincs, ' Ingraham v. Wilkinson, 4 Pick. 307; People v. Piatt, 17 Johns. 195; 268. See, however, the opinion of Hooker p. Cummings, 20 Johns. flO; the same judge in Commonwealth v. Canal Appraisers c. People, 5 Wcn'l. Chapin, 5 Pick. 199, 202. 423 ; People r. Canal Appraisers, l-'! = Ibid. 272. AYend. 355 ; 17 Wend. 571 ; People •: 3 Adams r. Pease, 2 Conn. 481, and Seymour, Cowen, 579; Ex parte cases above cited. Jennings, Cowen, 518, and notes ; & ■• Commonwealth v. Chapin, 5 Pick, parte Tibbetts, Cowen, 551 ; 5 Wend. 199 ; Bardwcll y. Ames, 22 Pick. 333 ; 423; People ,-. Seymour, 6 Cowen, Hopkins Academy ,-. Dickinson, 9 518 ; Arthur v. Case, 1 Paige, 44, 7 J, Cush. 544, 547. 447 ; 3 Wend. 632 ; Jackson ^. Hal- CHAP. III.] EIVEKS. 119 rule,^ which has been held applicable to the Hudson,^ the Oswego,^ and the Genesee * Rivers. The Mohawk River seems, however, to form an exception. In the case of The People v. Canal Appraisers,^ Davis, J., delivered an elaborate opinion, iu which he held that this river was public property, upon two grounds : (1) that the word " navigable " denotes merely navigability in fact, and is so employed in the early authorities ,; (2) that the course of the State's legislation had been such as to amount to a reservation for public purposes of the Mohawk and other navigable rivers of the State.'' This decision does not appear to have been expressly over- ruled in its application to the particular river,'^ but the first ground on which the judgment proceeds cannot now be regarded as tenable.^ The Niagara River, which is the national boundary between the United States and Canada, stead, 5 Cowen, 216 ; Varick v. Smith, 5 Paige, 137 ; 9 Id. 547 ; Starr v. Child, 20 Wend. 149; 5 Denio, 599; 4 Hill, .369 ; Jackson o. Halstead, 5 Covveu, 216 ; Jackson v. Louvv, 12 Johns. 252 ; Munson v. Hungerford, 6 Barb. 265 ; Luce v. Carey, 24 Wend. 451 ; Commissioners v. Kempshall, 26 Wend. 404; Gould v. Hudson River Railroad Co., 6 N. Y. 522 ; People v. Tibhetts, 19 N. Y. 523; Browne u. Scofield, 8 Barb. 239 ; Morgan v. King, 35 N. Y. 454 ; 18 Barb. 277 ; 30 Id. 9 ; Mott u. Mott, 68 N. Y. 246; Pierre- pont V. Loveless, 72 N. Y. 211, 216 ; Chenango Bridge Co. v. Paige, 83 N. Y. 178. See also Shaw u. Craw- ford, 10 .Johns. 236 ; Furraan v. New York, 5 Sand. 16 ; Curtis v. Keesler, 14 Barb. 511 ; Lownes c. Dickerson, 34 Barb. 586, 592 ; People v. Allen, 1 Lans. 248 ; Champlain Railroad Co. V. Valentine, 19 Barb. 484, 489. As to the legislation in this State, bear- ing upon the ownership of rivers and restricting the power of the commis- sioners of the land office so that they can convey the soil of navigable rivers and lakes only to the adjacent owners, see Canal Appraisers u. People, 17 Wend. 571, 577: Gould v. Hudson River Railroad Co., 2 Selden, 522 ; 1 Greenl. Laws, 280 ; Laws 1815, e. 199, p. 201 ; 1 Rev. Laws, 293, § 4 ; Laws of 1850, c. 283, p. 621 ; 1 Rev. Stats. 208, § 67; 1 Rev. Stats. (5th ed.), 552, § 82. ' See the cases of Chenango Bridge Co. V. Paige ; Pierrepont v. Lovelace ; Mott V. Mott ; Morgan v. King, above cited. 2 Palmer w. Mulligan, 3 Caines, 307; Ex parte Tibbits, and Ex parte Rogers, 6 Cowen, 551, note ; Harris r. Thomp- son, 9 Barb. 350 ; Walton v. TifEt, 14 Barb. 216, 219. ^ Varick o. Smith, 9 Paige, 547 ; 5 Paige, 137. '' Commissioners v. Kempshall, 26 Wend. 404. ° People w. Canal Appraisers, 33 N. Y. 461 ; Crill v. Rome, 47 How. Pr. 398. <= 33 N. Y. pp.466, 407, 475, 500. ' See Crill v. Rome, 47 How. Pr. 398 ; People v. Gutchess, 48 Barb. 056, 667 ; Canal Appraisers v. People, 17 Wend. 571, 608; Port Plain Bridge Co. V. Smith, 30 N. Y. 44. 8 See ante, £5 -12, 48, notes. 120 THE LAW OP WATERS. [PAET I. also forms another exception, under the decisions in New York, to the application of the common-law rule in that State.i § 58. The English rule is also adopted in New Jersej-,^ Delaware,^ Maryland,* and Georgia.^ In the last named State it is held that, as the western bank of the Chattahoochee River, and not the river itself, is the bomidary between that State and Alabama,^ the title of the riparian owners in Georgia, whose lands border upon this river, extends to the opposite bank, thus including the entire river-bed, and is not limited by tlie thread of the streamJ § 59. In South CaroliT'=i,, the common-law rule was con- sidered inapplicable to the condition of that State in the early case of Gates v. "Wadlington ; ^ but, in the later case of McCuUough V. Wall,^ the court said : " The rivers of our State are not of remarkable magnitude, and whether we ad- here to the common-law definition, or consider as navigable ' Kingman v. Sparrow, 12 Barb. 201 ; Canal Appraisers v. People, 17 "Wend. 571, 597. ^ Arnold v. Mundy, 1 Halst. 1 ; Gough V. Bell, 2 Zab. 441, 490; Bell V. Gough, 3 Zab. 624; Martin u. "Wad- dell, 3 Harr. 495; 16 Peters, 367; Bundle v. Delaware Canal Co., 1 Wall. Jr. 275 ; 14 How. 80 ; Attorney General V. Delaware Railroad Co., 27 N. J. Eq. 1, 8, 631 ; Society v. Low, 2 C. E. Green, 20 ; Cobb v. Davenport, 32 N. J. 369. ' Delaney v. Boston, 2 Harr. (Del.) 489 ; Bickel v. Polk, 5 Id. 325. * Browne u. Kennedy, 5 PI. & J. 196 ; Eidgely v. Johnson, 1 Bland Ch. 316, note; Baltimore v. McKim, 3 Ibid. 453; Binney's Case, 2 Ibid. 99; Casey v. Ingloes, 1 Gill, 430 ; Day v. Day, 22 Md. 530, 537; Goodscll r. Lawson, 42 Md. 348; Chapman v. Iloskins, 2 Md. Ch. 485. 5 Young r. Harrison, 6 Ga. 130, 141; Jones V. Watcrlot Co., 18 Ga. 539; Stanford v. Manjjin, 30 Ga. 355 ; Ilen- drick u. Cook, 4 Ga. 241, Sec, gen- erally, Cobb's Digest of the Laws of Georgia, p. 902 et seq. ^ Howard v. IngersoU, 13 How. (U. S. ) 381 ; Alabama v. Georgia, 23 How. 505. ' Young V. Harrison, Ga. 130 ; Jones V. Waterlot Co., 18 Ga. 539; Moses V. Eagle Mauuf. Co., 62 Ga. 455. « 1 McCord, 580. s McCuUough V. Wall, 4 Bich. 68 ; Boatwright i. Bookman, Eice, 447; Jackson i. Lewis, Cheres, 259; State V. Hickson, 5 Eich. 447 ; Witt u. Jef- coat, 10 Eich. 388 ; Noble v. Cunning- ham, McMullan, 289. In Shands w. Triplet, 5 Eich. Eq. 76, 79, the court say of the passage quoted in the text: "We entirely concur in this doctrine as to rivers altogether within the State, reserving our opinion cs to rivers which may be conterminous between this and other States." See the numer- ous statutes upon the subject of rivers, in the ninth Tokime of the State Stat- utes. CHAP. III.] KIVEES. 121 all rivers that may be navigated by sea vessels, or all that are by nature floatable, we hesitate not to declare that this court, if it should feel itself at liberty, from considera- tions of public convenience, to assume legislative discretion in the matter, is not likely by any decision to extend the rules which by the common law are applicable to navigable rivers, to any stream above those falls which by nature ob- structed the serviceable use of its water for transportation. Above those falls, as below, the right of the public to improve a river, and to use it as a highway, subsists ; to that the proprietary right in the soil is subject ; but so subject, the proprietary right exists in the owners to whom it has been granted, above the falls at any rate, as we may now safely say." § 60. In North Carolina, this rule has frequently been declared by the courts to be inapplicable to the condition of the country.i An early statute of this State provided that where a survey is made upon any navigable waters, the water shall form one side of the survey ; and it recognized islands as distinct from the property in the lands adjoining these waters by prescribing the manner of entering and sur- veying them.^ Under these provisions, all waters, whether fresh or salt, which are capable of navigation by sea-going vessels, are held to be navigable.^ Lands covered by such waters are not subject to entry and grant, under the entry laws of the State ; * but islands and rocks which are above the surface of the water, are vacant property, and subject to those laws.^ "With respect to the right of fishing, it was held in ' Wilson V. Forbes, 2 Der. 30 ; In- 74 N. C. 402, 407 ; State v. Tomlinson, graham v. Threadgill, 3 Dev. 59 ; Col- 77 N. C. 528. lins V. Benbury, 3 Ired. 277 ; 5 Ibid. '^ Ibid. ; Ingraham v. Threadgill, 3 118 ; Smith v. Ingram, 7 Ired. 175 ; Dev. 59. Gilliam t. Bird, 8 Ibid. 280, 284 ; Fa- ^ u,id. gan V. Armistead, 11 Ibid. 433 ; Lewis * Tatura v. Sawyer, 2 Hawks, 226 ; f- Keeling, 1 Jones Law, 299 ; State Smith v. Ingram, 7 Ired. 175. V. Dibble, 4 Ibid. 107 ; Ward v. Willis, ^ Jones v. Jones, 1 Hay. 488 ; Mc- 6 Ibid. 183 ; State v. Glen, 7 Ibid. 321 ; kenzie v. Hulet, N, C. T. R. 181 ; 1 Cornelius v. Glenn, Id. 512 ; Skinner Battle's Dig. 404 ; Ward v. Willis, 6 V. Hettick, 73 N. C. 53 ; State v. Pool, . Jones, 183. 122 THE LAW OF WATERS. [PAET I. an early case ^ in this State that neither the above statutory- provisions, nor the absence of a grant of the fishery from the State, debar the owners of lands adjoining fresh navigable waters from claiming the common-law right of exclusive fishery opposite their lands to the thread of the ^stream. This appears, however, to be overruled by later adjudications in the same State.® In Tennessee, which was formerly in- cluded within the territory of North Carolina, the same rules prevail as to the ownership of the soil of navigable streams. Navigable waters are here considered to be those which, in the ordinary state of the water, are capable of navigation by vessels commonly used in commerce, whether foreign or inland, steam or sailing vessels ; and riparian ownership on such waters is limited to the ordinary low-water mark.3 § 61. In Virginia, early acts of the legislature prohibited grants of the banks, shores, and beds of rivers and creeks,* and patents for land which form part of the bed of a naviga- ble river are held to be void.^ These provisions seem to apply to navigable waters whether fresh or salt. It is held here, as elsewhere, that a convej^ance of land bounded upon an unnavigable stream carries with it the title to the thread of the stream.^ § 62. The earlier cases in Kentucky tend to reject the common-law rule, and are in favor of limiting the title of the riparian owner to low-water mark.'' But in the recent case ' Ingraham u. Threadgill, 3 Dev. * Norfolk City u. Cooke, 27 Gratt. 59. 430 ; Mead i: Ilaynes, 3 Rand. 3.3, 36 ; '^ See the cases cited in the pre- Ilome r. Richards, 4 Call, 441. See, ceding note. also, French v. Bankhead, 11 Gratt. '■> Elder o. Burrus, 6 Humpli. 358 ; 13G ; Richards , . Hoome, 2 Wash. Roberts o. Cunningham, Martin & (Va.) 30; Wroe v. Harris, Id. 126; Yerg. 67 ; Stuart v. Clark, 2 Swan, 1) ; Martin v. Beverley, 5 Call, 444. Sigler V. State, 7 Baxter, 493; Martin « Hayes r. Bowman, 1 Rand. 417 ; V. Nance, 3 Head, 049; Memphis v. Mead i-. Haynes, 3 Rand. 33 ; Crenshaw Overton, 3 Yerger, 387 ; Holbert ^. c. Slate River Co., 6 Rand. 2ir, ; Home Edens, 5 Lea, 204i o. Richards, 4 Call, 441. ■• 1 Rev. Code, pp. 142, 423 ; Code ' Louisville v. United States Bank, of Virginia, tit. 19, c. 02, § 1. 3 B. Mon. 138, 143 ; Thurman v. Mor- CHAP. III.] EIVEES. 123 of Berry v. Snyder,^ it was held that an early grant by the State of Virginia, wMch formerly possessed this territory, of land bordering upon the Ohio River, was to be construed by the laws of Virginia, and included the soil of the river to the centre of the main channel. The decision seems open to the following criticism : First, that by the law of Virginia, which is made the basis of the decision, the bed of a navi- gable river could not be granted;^ second, that, as the juris- diction and boundary line of the State extend to low-water mark on the northern shore,^ it would seem that there is no reason for limiting private titles to the thread of the river, and reserving the more remote portion of its bed for the State, but that, if the common-law rule is adopted, the title of the riparian owner would extend across the river, as has been held in similar cases in Georgia,* which appear not to have been called to the attention of the court in Berry v. Snyder'. § 63. The case of The Magnolia v. Marshall,^ in Missis- sippi, related to the right of soil between high and low- water mark on the Mississippi River, but the title to the rison, 14 B. Mon. 367; Morrison v. laws of nature, and will remain as Thurman, 17 Id. 249 ; Hawkesville v. surely navigable as the sea itself. Lander, 8 Bush, 679. See also Trus- Thoughnot so deep, their surface level tees V. Wagnon, 1 A. K. Marsh. 243 ; is the same ; hence, witliout violence Cockrell v. M'Quinn, 4 Mon. 61 ; Bruce of expression or idea, they are called r. Taylor, 2 J. J. Marsh. 160 ; Hart v. ' arms of the sea.' But it is different Eogers, 9 B. Mon. 418, 422. with all the great rivers of the earth ' 3 Bush, 266, 274. In this case, above tide water. These are dependent Williams, J., suggests tlie following for their supply from the clouds." reasons for a distinction between the In Miller !'. Hepburn, 8 Bush, 326, it title to the beds of fresh and salt was held that Berry ;;. Snyder settled waters ; " So long as the ocean keeps the rule in this State in favor of the its bed, and nature's present frame doctrine of the common law. shall continue to exist, there will al- ^ Ante, § 61. ways be water up to the ocean's level " Post, § 71 ; Handley v. Anthony, in all those channels where the tide 5 Wheat. 379; Conway v. Taylor, 1 ebbs and flows, and this not dependent Black, 603 ; Church c. Chambers, 3 upon the water falling in rain ; there- Dana, 278 ; McPall c. Com., 2 Met. fore, these channels arc filled to ocean's (Ky.) 396; Fleming v. Kenny, 4 J. J. level twice every twenty-four hours, Marsh. 158 ; McFarland v. McKniglit, and are constantly and uniformly nav- 6 B. Mon. 510. '' Ante, § 58. igable. Their navigability does not ^ 39 Miss. 109. See also Morgan depend upon a season more or less l: Reading, 3 S. & M. 300 ; Commis- raiuy, but on the constant, unvarying sioners v. Withers, 29 Miss. 21. 124 THE LAW OF "VTATERS. [PAET I. river-bed was fully considered by the court. Harris, J., after referring to the authorities usually cited upon the question, reasons: First, that the term "navigable," as employed in the common-law authorities, has reference to the right possessed by all nations of navigating the ocean and its arms as com- mon highways of mutual intercourse and commerce, and that inland rivers, though capable of navigation, are not navi- gable for all the world except by permission of the sovereign having jurisdiction over them ; ^ second, that, under the law of nations, while the shores of the sea, rivers, and other waters forraing boundaries between different states or na- tions, and also sounds, straits, and other arms of the sea which lead through the territory of one nation to that of another, or to other seas common to all nations, are subject to the right of innocent passage,^ not as controlled by the nearest nation, but according to the mutual convenience of the parties interested;^ yet rivers and waters, which are not national boundaries and do not constitute channels of inter- national communication, including inland lakes and rivers, ports, harbors, and bays, the entrance of which can be de- fended, are a part of the adjacent nation and whoUy subject to its control;* and that the term "navigable," as used in the common law, was thus borrowed from the law of nations, and has reference to tlie right of free navigation of the ocean and of the greater arms of the sea, not mare dausum, and to the usage of civilized nations extending this right as far as the sea ebbs and flows, restraining grants of land by the sovereign power beyond low-water mark on tide waters and leaving the water and soil, below ordinary high-water mark, subject to the public easement as a common highway for all nations ; third, that in respect to fresh rivers which are intra- ' 39 Miss. p. 117. The reasoning ^ Citing Wlieaton's Int. Law, pp. of tlie court in this case has been ap- 243, 244, §§ 13, 14 ; p. 251, § 18 ; p. 255, proved in Wisconsin. Olson v. Mer- § 19 ; Vattel's Law of Nations, p. 129, rill, 42 Wis. 203, 212; Diedrich p. §§290-292. Northwestern Railway Co., 42 Wis. ■* Citing Wlieaton's Int. Law, p. 266, 248, 263. § 10 ; Vattel's Law of Nations, p. 129, ' Citing Vattel's Law of Nations, §§ 290-292. bk. 2, pp. 180, 181 ; Wlieaton's Int. Law, p. 243, § 12. CHAP. III.] EIVEES. 125 territorial, whether they are capable of navigation or not, "the right of navigation was always wholly dependent on the will of the sovereign having the right of property in the soil; and, by the law of nations, such streams were ' not navi- gable ' for other nations, except by treaty or special permission of the local sovereign. Hence they are called ' not navigable,' in contradistinction to such waters, etc., as were common to all nations." ^ The opinion proceeds : ^ "In the construction of grants of land made to the citizen and bounded on these fresh-water streams, over which the sovereign had exclusive title and jurisdiction, there could be no question of the right of the sovereign to part Avith the title of the soil to the grantee. It became, therefore, a mere question of intention. The courts of common law, applying to these deeds or grants the ordinary rules of construction, in cases of doubt, con- strued the grant most strongly in favor of the grantee ; and, upon the further presumption that the grantor, in parting with his land on both sides of a watercourse, whether capable of navigation or not, could scarcely have intended, without an express clause to that effect, to reserve the watercourse to himself, have held with unvarying uniformity in Eng- land, from the earliest period down to this day, that such grants bounded on or by or at such watercourse conveyed to the respective riparian grantees the right of soil and the use of the water (subject to the jus publicum) usque ad filum aquae." ^ " It is certain that under the deed of cession from ' p. 120. '^ p. 120. centre of the stream, were not of lands ^ Mr. Houck (on Rivers, 59) makes upon streams navigable in fact at the the following criticisms upon this pas- time such a construction was placed sage: (1) That an argument based upon the grants, anithe interest of upon the hypothesis that the title of the public had not attached prior to the sovereign to the bed of a river is the grant from the sovereign. (3) undoubted, while doubtful as to the That grants from the government are seashore, and the inference that the not strongly construed in favor of the sovereign therefore disposed of the grantee. (4) Especially is this so in bed of the river, althougli no express the States carved out of the Territories grant is shown, are entirely ideal, in of the Union, where all lands sold view of the fact that in England the by the government are bounded by sovereign has from time immemorial mathematical lines which limit the granted parts of the seashore to in- purchaser's rights. (5) That the dividuals. (2) That the grants in position that the public could scarcely England construed so as to go to the have intended to reserve the stream 126 THE LAW OP WATERS. [PAKT I. Georgia, as well as the several acts and ordinances in refer- ence to the free navigation of the Mississippi River, as a common highwaj', no grant could have been made here, interfering with this great public right.i There is, therefore, no inconsistency, but, on the contrarj^, as before suggested, perfect harmony between the jus privatum of riparian owner- ship in public fresh-water streams to the middle of the river and the ju,s publicum of free navigation thereof. The soil is granted to the riparian proprietor, subject to this public ease- ment." With reference to the opinion delivered by Tilgli- man, C. J., in the Pennsylvania case of Carson v. Blazer,^ the opinion proceeds:^ "He seems not to apprehend that the great principle lying at the foundation of the rule ('that a grant of land, bounded on the ocean or its arms, or tide Avater, extends only to ordinary high-water mark') is that a sovereign making such grant, by the laws and comity of na- tions, has no power to appropriate to private use what is not only juris publici, or common to the whole world, and there- fore incapable of ownership, but what lies beyond his terri- torial dominion." The learned judge concludes* that the plaintiff derived his title to the property in question under the common law ; and that only under the common-law doc- trine as to fresh-water streams could the deed of cession by Georgia to the United States and the act of Congress organ- izing the Mississippi Territory and the subsequent act ad- mitting that Territory as a State, which acts referred to the Mississippi River as a boundary, be held to pass to Mississippi the right of soil and jurisdiction to the middle of the river ; that the whole legislation of Mississippi in relation to her western boundary was founded upon this rule of the common law, and that its right of jurisdiction and property to the thread of the river had been frequently asserted and acted on. Handy, J., concurred in the conclusion reached, without assenting to all the views expressed in the above opinion. without an express clause, is opposed ' p. 122. to the United States statutes declar- ^ 2 Binney, 475 ; post, § 65. mg navigable rivers public highways ^ 39 Miss. p. 123. and unnavigable streams common to ■• pp. 133-135. the opposite shoreholders. CHAP. III.] ElVBBS. 127 § 64. With respect to the deed of cession from Georgia to the United States, and the acts of Congress referred to in this opinion, it may be remarked that, under tire decisions of the Supreme Court of the United States, Mississippi acquired the jurisdiction and property in its navigable waters ; ^ and it seems equally clear that by the rules both of the law of nations and of the common law applicable to boundary rivers, the line of separation, if not controlled by treaty or the terms of the grant, would be fixed at the middle of the channel, irrespective of the question whether the water was salt or fresh.^ The suggestion, therefore, that Congress adopted the common-law rule in fixing the western boundary of the State does not necessarily affect the ques- tion whether the riparian owner, upon the one hand, or the State, upon the other, owns the river-bed. With respect to the law of nations, the opinion proceeds upon grounds not clearly established, and disregards the distinction between those tide waters which are, and those which are not, within the territory of a nation. The territory of England extends to low-water mark on the external coast,^ and between that 'Martin v. Waddell, 16 Peters, Wood. & M. 5.38; Missouri v. ICen- 367 ; Pollard v. Il.agan, 3 How. (U. tueky, 11 Wall. 395, 401 ; Gilbert i: S.) 212 ; Goodtitle ?■. Kibbe, 9 lb. 471. Moline Water Power Co., 19 Iowa, "These cases," siiy the court, in Bar- 319; State v. Mullen, .35 Iowa, 199; ney v. Keokuk, 94 XT. S. 324, 338, "re- Canal Appraisers v. People, 17 Wend, lated to tide waters, it is true; but 571, 597; Mahler v. New York Trans- they enunciate principles which are portation Co., 35 N. Y. 352 ; People v. equally applicable to all navigable Central Railroad Co., 48 Barb. 478 ; waters." Sec, also, Renwick v. The Tinicum Pishing Co. v. Carter, 01 D. & N. W. R. Co., 49 Iowa, 664, 669. Penn. St. 21, 80; Brown !•. Caraden ^ Lawrence's Whcaton's Int. Law Railroad Co., 83 Penn. St. 316 ; Myers (2ded.), pp. 342, 346-300 ; Wheaton's v. Perry, 1 La. Ann. 372; Phillips v. Law of Nations, 577-583 ; Vattel, bk. People, 55 111. 429 ; Attorney General 1, c. 22, §§ 200, 274 ; Marten, Precis v. Delaware Railroad Co., 27 N. J. Eq. du Droit, bk. 2, c. 1, § 39 ; Bluntschli, 1, 031. If a nation possesses both Int. Law, 298, 299 ; Handly v. Anthony, banks of a river, and grants to another 5 Wheat. 374 ; The Apollon, 9 Wheat, nation the territory on one side only, 362, 369 ; The Fame, 3 Mason, 147 ; it retains the river within its domain, Comfleld v. Coryell, 4 Wash. C. C. and the grantee takes to low-water 384; Bennett v. Boggs, Bald. 60; mark only. Handly v. Anthony, 5 Mississippi Railroad Co. v. Ward, 2 Wheat. 374. Black, 485; An Open Boat, 1 Ware, 26, ^ Regina v. Keyn, 2 Ex. D. 63; 28 ; Spears v. State, 8 Texas App. 407 ; ante, §§ 11, 12. Stillman v. White Rock Manuf. Co., 3 128 THE LAW OF -WATERS. [PAET I. line and the high-water mark the Crown's right of property is subject to the jus publicum of its subjects, but has never been regarded in that country as burdened with an easement in favor of foreign nations.^ Tliere appears, also, to be no authority for the suggestion that the technical use of the word " navigable " is derived from the law of nations ; nor could it have been derived from a system which recognizes none of the peculiar distinctions of the common law^ with respect to the admiralty jurisdiction and the jus privatum^ of the Crown in navigable waters. Under the law of nations, the subjects of foreign powers have no greater rights in tidal rivers which are exclusively within the territory of one nation, and do not flow through distinct jurisdictions, than in large fresh-water rivers similarly situated.* That law does not dis- tinguish between rivers by the absence or presence of the tide ; ^ and it admits of little doubt that every State has full sovereignty, from their source to the sea, over all waters which are wholly within its territory and do not lead to other large waters, as well in places where the water is salt as where it is fresh.^ The reasoning of Harris, J., violates these principles, which are too clearly supported by authority to admit of serious question as to their correctness. § 65. In Pennsylvania the English doctrine has always been rejected." The early case of Carson v. Blazer^ pro- ' See authorities cited ante, §§ 21, Ball v. Slack, 2 Whart. 508; Covert 28. V. O'Connor, 8 Whart. 470 ; Bird !-. ' Ante, §§ 8, 12. Smith, 8 Watts, 4.34 ; Dalrymple v. ' Ante, §§ 17-19. Mead, 1 Grant's Cas. 197 ; Union ■* Lawrence's Wheaton's Int. Law Canal Co. c. Landis, 9 Watts, 223 ; (2d cd.), .342, .346-360; Hall's Interna- Zimmerman ;■. Union Canal Co., 1 tional Law, 113, 114, and authorities Watts & S. 340; Jones v. Janney, 8 above cited in this section, as to Watts & S. 430; Jolms !■. Davidson, boundary rivers between States. 16 Penn. St. 512 ; Bailey v. Milten- ° Ibid. berger, 31 Penn. St. 37 ; Baker r. ^ Ibid. Lewis, 33 Penn, St. 301 ; Barclay ' Carson v. Blazer, 2 Binney, 475 ; Railroad Co. c. Ingham, 36 Penn. St. Commonwealth v. Fisher, 1 Penn. 462 ; 194 ; SoUiday v. Johnson, 38 Penn. St. Cooper V. Smith, 9 S. & R. 26 ; Shrunk 380 ; Flanagan v. Philadelphia, 42 V. Schuylkill Navigation Co., 14 S. & Penn. St. 219 ; Monongahela Bridge R. 71; Hart v. Ilill, 1 Whart. 124; Co. v. Kirk, 46 Penn. St. 112; Mc- 8 2 Einney, 475. CHAP. III.] EIVBES. 129 ceeded upon three grounds : first, that such a rule was inapplicable to the condition of that State ; second, that the title to the river-beds which Penn acquired by grant from the Crown of England either was not alienated in his grants of river lands, but was retained for the public benefit, or it' such property was included in his concessions, which declared that all rivers, etc., shall be freely enjoyed, "and wholly by the purchasers into whose lots they fall," j^et these concessions were to be construed as personal and as confined to the first purchaser ; third, that any exclusive private rights in the rivers of the State were inconsistent with its statutes and usages. In subsequent cases ' stress was laid upon the fact that islands in navigable fresh-water rivers, which, at the common law, would belong to the riparian owners, together with the soil of the river, had been uniformly treated as distinct from the lands adjacent to the banks both under the proprietary and State governments, being sold by special contract and for higher prices than the ordinary river lands. The rule thus founded has been applied to the large fresh rivers of the State, such as the Susquehanna and its principal branches, and the Allegheny, Ohio, and Monongahela Rivers. In these the fishery is a common right, and grants from the State, or between private persons, of lands bordering upon them, when calling for the river as a boundary, do not extend Keen w. Delaware Can.il Co., 49 Pcnn. ard, 10 S. & K. 243; Stover .-.Jack, St. 424 ; Stover v. Jack, GO Penn. St. 60 Penn. St. 339 ; Wainwright v. Mc- 3.39; TinicTim Pishing Co. v. Carter, CuUough, 03 Penn. St. GG ; Poor i. CI Penn. St. 21 ; Wainwriglit v. Mc- McCluro, 77 Penn. St. 214, 220 ; AUe- CuUough, G3 Penn. St. GO; Zug v. gheny City v. Mooreliead, 80 Penn. Commonwealtli, 70 Penn. St. 138; St. 118. With respect to private Poor V. McClure, 77 Penn. St. 214 ; rights to the islands in the rivers of Allegheny City i'. Moorehead, 80 this State, see, also, Moore v. Mun- Pemi. St. 118 ; Philadelphia i-. Scott, dorfiE, 4 Yeatcs, 209; Shepherd v. Com- 81 Penn. St. 80 ; Pisher v. Haldeman, monwealth, 1 S. & R. 1 ; McElear ;;. 20 How. 180 ; 1 Wall. Jr. 79, 297 ; Elliot, 14 S. & R. 242 ; Johns v. David- Simpson ,;. Neill, 89 Penn. St. 183; son, 16 Penn. St. 512 ; Allegheny City Rundle v. Delaware Canal Co., 14 v. Reed, 24 Ihid. 39 ; Allegheny City How. (U. S.) 80 ; Carson c. Blazer, 2 v. Nelson, 25 Ibid. 332 ; Puller v. Mur- Binney, 475. phy, 17 Pitts. L. J. 51 ; Pisher v. Hal- ' Shrunk v. Schuylkill Navigation deman, 20 How. (U. S.) 186; Pisher Co., 14 S. & R. 71 ; Hunter v. How- i,. Carter, 1 V.'all. Jr. CO. 130 THE LAW OF WATERS. [PAET I. the grantee's title beyond the ordinary low-water mark,^ and will not include islands' which are connected with the main land only in times of extraordinary drought.^ So the wrong- ful diversion of a navigable stream-bed does not extinguish the right of the State to the soil or add to that of private persons.3 These rivers are often subject to marked fluctua- tions, and the title of the riparian owners to the shore, or space between high and low-water mark, is but a limited and qualified form of property. The public have the right of passage over it at high water, and the State may use it for purposes connected with the navigation of the stream without compensation to the owners of the adjoining lands, and may protect it from any use by such owners which is not strictly authorized.* But, as the riparian owner's title extends, in the case of a navigable fresh river, to low-water mark, he is entitled to compensation from a railroad company-, the con- struction of whose road causes the loss of a spring situated between high and low-water mark,^ although he could not recover for the loss of a spring similarly situated on the shore of a tidal river.*^ In this State, as elsewhere, grants of land upon small unnavigablo streams, following their courses and distances, pass the right of soil to the centre of the stream.^ ' Hart V. Hill, 1 Whart. 137 ; B.iU Union Canal Co., 1 Watts & S. 346 ; V. Slack, 2 Whart. 508; Cooper v. Bailey v. Miltenberger, 31 Penn. St. Smith, S. & R. 20 ; Naglee ;.. Inger- .37 ; Flanagan v. Philadelphia, 42 Penn. soil, 7 Pcnn. St. 185; Lehigh Valley St. 219; Wainwright v. McCuUough, Railroad Co. ,/. Trone, 28 Penn. St. 03 Penn. St. 66 ; Wood v. Appal, Ihid. 200 ; Jones u. Janney, 8 Watts & S. 210 ; Grant v. Wliite, Ibid. 271 ; Poor 430; Stover v. .Tack, 60 Penn. St. v. McClure, 77 Penn. St. 214, 219; 339, 343 ; Freytag v. Powell, 1 Whart. Hartley v. Crawford, 81 Penn. St. (pt. 530; Hartley v. Crawford, 33 Leg. 2), 478; Philadelphia u. Scott, 81 Int. 24 ; s. c. 23 Pitts. L. J. 127 ; Alle- Penn. St. 80, 80 ; Lacy v. Green, 84 gheny City v. Moorehead, 80 Penn. Penn. St. 514 ; Cooper v. Smith, 9 S. 118. & R. 26; Balliet u. Commonwealth, ''Ibid.; Stover v. Jack, 00 Penn. 17 Penn. St. 206. St. 339. 5 Lehigh Valley Railroad Co. v. 3 Wainwright „. McCullough, 63 Trone, 28 Penn. St. 200. Penn. St. 66 ; Zug v. Commonwealth, ^ Commonwealth v. Fisher, 1 Penn. 70 Pcnn. St. 138. 462. ^Stover i>. Jack, 00 Penn. St. 3.39; ' Coovert <>. O'Conner, 8 Watts, Shrunk v. Schuylkill Navigation Co., 470 ; Ball r. Slack, 2 Whart. 538 ; 14 S. & R. 71 ; Commonwealth ,.. Barcl.ay Railroad Co. u. Ingham, 36 Fisher, 1 Penn. 462 ; Zimmerman v. Penn. St. 190. In Shrunk v. Schuyl- CHAP. III.J EIVEES. 131 § 66. Private rights in the navigable fresli-water rivers of this country, especially those in the Western and Southern States, are materially affected by a series of decisions in tli,e Supreme Court of the United States, with respect to the admiralty jurisdiction. The rule by which the navigability of a river is determined by the ebb and flow of the tide,' appears to have been first used in England to define the jurisdiction of the admiral who, by the king's commission, was charged with the care and protection of the Crown's prerogative rights in the sea.^ The early acts of Parliament,^ which limited the admiralty jurisdiction in civil cases to the "high seas," were usually construed by the common-law courts as meaning that portion of the sea which washes the open coast, and as prohibiting the exercise of this jurisdiction in the navigable arms and creeks of the sea which were within the countries, or inte?' fauces terrae,^ however large or capable of navigation by sea-going vessels such places might be.^ Such was considered to be the law of England when kill Navigation Co., 14 S. & R. 71, 79, Tilghman, C. J., said: "I consider it settled in Pennsylvania, by the deci- sion in Carson v. Blazer, that the owners of land on the banks of the Susque- hanna and other principal rivers, hare not an exclusive right to fish in the river immediately in front of their lands, hut that the exclusive right to fisheries, in these rivers, is vested in the State, and open to all. It is un- necessary to enumerate at this time the rivers which may be called princi- pal, but that name may be safely given to the Ohio, Monongahela, Youghi- ogeny, Allegheny, Susquehanna, and its north and west branches, Juniata, Schuylkill, Lehigh, and Delaware." The effect of the compact of 1783, between the States of Pennsylvania and New Jersey, upon rights of fishery, navigation, and jurisdiction in the Delaware River, is discussed in Attor- ney General v. Delaware Railroad Co., 27 N. J. Eq. 1, 631 ; McKeen v. Dela- ware Division Canal Co., 49 Penn. St. 424 ; Tinicum Fishing Co. vt Carter, 61 Penn. St. 21; Hart v. Hill, 1 Whart. 124 ; Commonwealth u. Fra- zer, 2 Phila. 191 ; 5 Am. L. Reg. 167 ; Cobb p. Bennett, 75 Penn. St. 326; Bennett v. Boggs, Bald. C. C. 60; 4 Am. Law Reg. 582. See Bundle r. Delaware Canal Co., 14 How. 80; 1 Wall. Jr. 275. ' Sir Henry Constable's Case, 5 Co. 106 ; Leigh v. Burley, Owen, 122 ; De Lovio 1-. -Boit, 2 Gall. 398. " Sir Henry Constable's Case, 5 Co. 106 ; 2 Bacon's Abr. tit. Court of Ad- miralty ; 8 Id. tit. Prerogative, B. 3 ; Callis on Sewers, 39; 4 Inst. 124, 134; Bains v. The James and Catherine, Bald. C. C. 544, 547. 3 13 Rich. II. u. 5 ; 15 Rich. II. c. 3; 2 Henry IV. c. 11; Ramsay u. Allegro, 11 Wheat. 611, 616. * Ante, § 5. = See Leigh u. Burley, Owen, 122; The Public Opinion, 2 Hagg. Adm. 398; United States v. Wiltberger, 5 Wheat. 106, note ; De Lovio v. Boit, 2 Gall. 398; Ins. Co. v. Dunham, 11 Wall. 100; Johnson o-. 21 Bales of 132 THE LAW OF WATERS. [PAKT I. the question arose in this country.' But the Judiciary Act of 1789 2 conferred upon the district courts exclusive cogni- zance of all civil causes of admiralty and maritime jurisdic- tion arising upon waters which are navigable from the sea, as well as upon the high seas ; and in repeated decisions,^ the Supreme Court of the United States declined to adopt the English rule as the test for the interpretation of the grant in the Constitution which extended the power of the Federal courts "to all cases of admiralty and maritime jurisdiction." They considered that rule contrary to the general practice and understanding in this country, when the States were colonies, and held that the admiralty had, in this country, concurrent jurisdiction with the common-law courts in navi- gable rivers and arms of the sea, as far as the tide ebbed and flowed in them. In 1845 an act of Congress* was passed Cotton, 2 Paine, 001 ; 2 Bacon Abr. tit. Court of Admiralty; 4 Inst. 137 Bruce's Case, 2 Leacli, C. C. 109.3 2 Brown's Ciy. & Adm. Law, 92 Coombes's Case, 1 Leach, 388 ; 1 East, 367. The rule has since been enlarged by statute in England. - See The Diana, 1 Lush. 539 ; The Courier, Ibid. .541 ; The Griefswald, Swab. Adm. 430. ' Ibid. ; Waring v. Clarke, 5 How. (U. S.) 241; Talbot v. The Comman- ders, 1 Dall. 98; New .Jersey Steam Navigation Co. n. Merchants' Bank, 6 How. 344; Eamsay y. AUegre, 12 Wheat. Oil ; The Huntress, Daveis, 93, note. ''The ninth section of this act (1 Stat, at Large, p. 77) provides that the district courts of the United States " shall also have exclusive jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons' burthen, witliin tlieir respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common-lail' remedy, where the common lav,- ij competent to give it; and shall have exclusive original cognizance of all seizures on land, or other waters than as afore- said, made, and of all suits for penal- ties and forfeitures incurred, under the laws of the United States." ' ' The Thomas Jefferson, 10 Wheat. 428 ; Peroux v. Howard, 7 Peters, o24 , The Orleans u. Phoebus, 11 Peters, 175 ; Waring v. Clarke, 5 How. 441 ; New Jersey Steam Navigation Co. i . Merchants' Bank, 6 How. 344; The ~ Huntress, Daveis, 82 ; Thomas v. Lane, 2 Sumner, 1. See also Eossiter v. Chester, 1 Dougl. (Mich.) 154; Gen- eral Buell V. Long, 18 Ohio St. 521 ; Bullock ('. The Lamar, 1 West. Law, J. 444; Eespublica o. Davison, 4 Yeates, 125. The admiraltj"- jurisdic- tion does not extend Qver the land so as to include a cause of damage orig- inating on the water, like a fire, and destroying storehouses upon a wharf. The Plymouth, 3 Wall. 20 ; ante, § 23. ■• 5 Stats, at Large, 726. This act provided that " the district courts of the United States shall have, possess, and exercise the same jurisdiction in matters of contract and tort arising in, upon, or concerning steamboats and other vessels of twenty tons' bur- CHAP. III.] EIVEKS. 133 extending the jurisdiction of the district courts to certain cases of a maritime nature in different States and Territories upon the lakes and navigable waters connecting the lakes. In the case of the Genesee Chief,^ the question arose whether this act was constitutional, it being urged that it was not within that clause of the Constitution which empowers Con- gress to regulate commerce, and that if the constitutional grant of admiralty powers did not extend to waters above the tide, Congress could not extend it by legislation. The decision in this case overruled the earlier cases which limited the ad- miralty jurisdiction to tide waters, and the reasoning of Taney, C. J., who delivered the opinion of the court, pro- ceeds upon the ground that the admiralty jurisdiction in this country extends to all waters, whether fresh or salt, where navigation aids commerce between different States, or with foreign nations. The learned judge said: "The only objec- tion made to this jurisdiction is that there is no tide in the lakes or the waters connecting them ; and it is said that the admiralty and maritime jurisdiction, as known and under- stood in England and this countr}', at the time the Constitu- tion was adopted, was confined to the ebb and flow of the tide. Now there is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admi- ralty jurisdiction, nor anything in the absence of a tide that renders it unfit. If it is a public navigable water, on which commerce is carried on between different States or nations, the reason for the jurisdiction is precisely the same. And if a distinction is made on that account, it is merely arbitrary, without any foundation in reason, and, indeed, would seem to be inconsistent with it. In England, undoubtedly, the vmters upon the subject, and the decisions in its courts of admiralty, always speak of the jurisdiction as confined to tide then and upwards, enrolled and the said courts in cases of like steam- licensed for the coasting trade, and at boats and other vessels employed in the same time employed in business navigation and commerce upon the of commerce and navigation between high seas or tide waters within the ports and places in different States admiralty and maritime jurisdiction and Territories, upon the lakes and of the United States." navigable waters connecting said lakes, ' 12 How. 443, 454, 457. as is now possessed and exercised by 134 THE LAW OF WATERS. [PAET I. water. And this definition in England was a sound and reasonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide ; nor any place where a port could be established to carry on trade with a foreign nation, and where vessels could enter or depart with cargoes. In Englaiid, therefore, tide water and navigable water are synonymous terms, and tide water, with a few small and unimportant exceptions, meant nothing more than public rivers, as contradistinguished from private ones ; and they took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined the charac- ter of the river. Hence, the established doctrine in England, that the admiralty jurisdiction is confined to the ebb and flow of the tide. In other words, it is confined to public navisrable waters. At the time the Constitution of the United States was adopted, and our courts of admiralty went into operation, the definition which had been adopted in England was equally proper here. In the old thirteen States, the far greater part of the navigable waters are tide waters. And in the States which were at that period in any degree commercial, and where courts of admiralty were called on to exercise their jurisdiction, every public river was tide water to the head of navigation. And, indeed, until the dis- covery of steamboats, there could be nothing like foreign com- merce upon waters with an unchanging current resisting the upward passage. The courts of the United States, therefore, naturally adopted the English mode of defining a public river, and consequently the boundary of admiralty jurisdiction. It measured it by tide water. And that definition, having found its way into our courts, became, after a time, the familiar mode of describing a public river, and was repeated, as cases occurred, without particularly examining whether it was as universally applicable in this country as it was in England. If there were no waters in the United States which are public, as contradistinguished from private, except where there is tide, then unquestionably, here as well as in England, tide water must be the limits of admiralty power. And as the English definition was adopted in our courts, and CHAP. III. j EI VERS. 135 constantly used in judicial proceedings and forms of plead- ing, borrowed from England, the public character of the river was in process of time lost sight of, and the jurisdic- tion of the admiralty treated as if it Avas limited by the tide. The description of a public navigable river was substituted in the place of the thing intended to be described. And under the natural influence of precedents and established forms, a definition, originally correct, was adhered to and acted on, after it had ceased, from a change in circumstances, to be the true description of public waters." If the Consti- tution were construed as measuring the jurisdiction of the admiralty by the tide, "then," continues ,the learned judge, "a line drawn across the River Mississippi would limit the jurisdiction, although there were ports of entry above it, and the water as deep and navigable, and the commerce as rich, and exposed to the same hazards and incidents, as the com- merce below. The distinction would be purely artificial and arbitrary, as well as unjust, and would make the Constitution of the United States subject one part of a public river to the jurisdiction of a court of the United States, and deny it to another part equally public and but a few yards distant." It was accordingly held that- the great lakes and the waters connecting them were originally public waters, and within the grant of admiralty and maritime jurisdiction in the Constitution of the United States. § 67. Such is now the established rule with respect to the admiralty jurisdiction of the United States Courts, a jurisdic- tion which is no longer limited in locality by the English rule, or by the acts of 1789 and of 1845.^ The ebb and flow 'Fretz V. Bull, 12 How. (U. S.) Towboat Co., 23 How. 215 ; The Com- 400 ; Walsh v. Rogers, 13 How. 283 ; merce, 1 Black, J374 ; The St. Law- The New World, 16 How. 469 ; Urc rence, 1 Black, 622 ; The Tashion, 21 v. Coffman, 19 How. 56; New York How. 244; The Plymouth, S Wall. 20, Steamboat Co. v. Calderwood, 19 34 ; Ad. Hine v. Trevor, 4 Wall. 555 ; How. 245 ; Jackson v. The Magnolia, 17 Iowa, 349 ; The Moses Taylor, 4 20 How. 296 ; Allen v. Newbury, 21 Wall. 411 ; The Rock Island Bridge, How. 244; Maguire i-. Card, 21 How. 6 Wall. 213; The Belfast, 7 Wall. 248 ; Nelson v. Leland, 22 How. 48 ; 024 ; The Eagle, 8 Wall. 15 ; The Philadelphia P.ailro:id Co. o. Phil. Daniel Ball, 10 Wall. 557 ; The Cotton 136 THE LAW OF WATERS. [part 1. of the tide does not now constitute tlie test of the naviga- bility of American waters, and those rivers are public and navigable in law which are navigable in fact. If, in their ordinary condition, by themselves, or by uniting with other waters, they form a continued highway, over which com- merce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water, they are " navigable waters of the United States " within the meaning of the acts of Congress in which that phrase is employed.^ This departure from the precedents of the Ejiglish law tends to support the position that the large inland rivers of this country are public iu respect to prop- erty. In Barney v. Keokuk,'-^ in the Supreme Court of the Plant, 10 Vf all. 577 ; Insurance Co. u. Dunham, 11 Wall. 1 ; Ledn o. Garce- ran, Id. 185; Barney o. Keokuk, 94 U. S. .324 ; Ex parte Easton, 95 U. S. 68, 72; Steamboat Co. i.. Chase, 16 Wall. 522; 9 R. I. 419; The Mon- tello, 20 Wall. 4.30; The Lotta- wanna, 21 AVall. 558; United States V. Wilson, 3 Blatch. 435; The Sarah Jane, 1 Lowell, 200; Ray- mond !■. The Ellen Stewart, 5 Mc- Lean, 260; Roberts c. Skolfield, 3 Ware, 184 ; The Avon, 1 Brown Adni. 180 ; The Illinois, Ibid. 497 ; Uevenuc Cutter No. 1, Ibid. 7G; The General Cass, Ibid. 334; Eads v. The II. D. Bacon, ISTewb. Adm. 274 ; Parralee r. The Charles Hears, Ibid. 107; Wil- liams 1-. The Jenny Lind, Ibid. 443 ; McGinnis o. The Pontiac, Ibid. 1.30; The Flora, 1 Biss. 20; The Elmira Shepherd, 8 Batch. 341; The Mary Washington, 1 Abb. (U. S.) 1; Jones r. The Coal Bar,(;es, 3 Wall. Jr. 53 ; The Leonard, 3 Ben. 263 ; The If ate Tre- maine, 5 Ben. CO ; Wolverton v. Lacey, 18 Law Rep. 672 ; Scott v. The Young America, 1 Newb. Adm. 101 ; Tlie Illi- nois, 1 Brown Adm. 497; McCormick V. Ives, Abb. Adm. 418; Dorr u. Waldron, 02 111. 221 ; The Josephine, 39 IT. T. 19 ; 50 Barb. 501 ; Vose v. Cockcroft, 44 K. Y. 415 ; 45 Barb. 58 ; Baird u. Daly, 4 Lans. 420; General Buell V. Long, 18 Ohio St. 521 ; Petrel V. Dumont, 28 Ohio St. 602 ; Walters v. The MoUie Dozier, 24 Iowa, 192 ; Tu^' Boat Dorr v. Waldron, 62 111. 221; Merrick r. Avery, 14 Ark. 370 ; Morse V. Home Ins. Co., 30 Wis. 496. > Ibid. ■^ 94 U. S. 324. The learned judge said: "The confusion of navigable with tide water, found iu tl.c monu- ments of the common law, long pre- vailed in this country-, notwitJistand- ing the broad differencts existing between the extent and topograpiiy of the British island and that of the American continent. It had tlie in- fluence for two generations of exclud- ing the admiraltj' jurisdiction from our great rivers and inland seas ; and under tlie like influence it laid the foundation in many States of doc- trines, with regard to the ownership of the soil in navigable waters above tide water, at variance with sound prin- ciples of public policy. Whether, as rules of i^roperty, it would now be safe to change these doctrines, where they have been applied, is for the several States themselves to deter- mine. If they choose to resign to the riparian proprietor rights which prop- erly belong to them in tlieir sovereign- CHAP. III. J EIVEES. 1.37 United States, Bradley, J., in delivering the opinion of the court, observed that the confusion of navigable with tide waters, found in the monuments of the common law, had not only retarded the development of the admiralty jurisdic- tion, but had laid the foundation in many States of doctrines with regard to the ownership of the soil in navigable waters above the tide which were at variance with sound principles of public policy ; and that, since the decision in the case of the Genesee Chief, there seemed to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. § 68. The ordinance of the Confederate Congress of July 13, 1787, entitled "An ordinance for the government of the territory of the United States north-west of the River Ohio," provided ^ that ^' the navigable waters » leading into the Mis- sissippi and St. Lawrence, and the carrymg places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may he admitted into the Confederacy, without any tax, impost or duty therefor." And by successive acts of Congress the navigable waters in the Western States and Territories have been declared to be public highways.^ A similar provision capacity, it is not for others to be no sound; reason for adhering to raise objections. In our view of the the old rule as to the proprietorship subject, the correct principles were of the beds and shores of such waters, laid down in Martin v. Waddell, 16 It properly belongs to the States by Pet. 367 ; Pollard v. Hagan, 3 How. their inherent sovereignty, and the (U.S.) 212; and Goodtitle c. Kibbe, 9 United States has wisely abstained How. (U. S.) 471. These cases related from extending (if it could extend) to tide water, it is true ; but they its surveys and grants beyond the enunciate principles which are equally limits of high water. The cases in applicable to all navigable waters, which this court has seemed to hold a And since this court, in the case of contrary view, depended, as most cases the Genesee Chief, 12 How. (U. S.) 443, must depend, on the local laws of the has declared that the great lakes and States in which the lands were situ- other navigable waters of the country, ated." ' Art. IV. above, as well as below, the flow of ^ Acts of May 18 and June 1, 1796; the tide, are, in the strictest sense, March 3, 1803 ; March 26, 1804 ; Feb. entitled to the denomination of navi- 20 and March 3, 1811; April 8 and gable waters, and amenable to the June i, 1812; March 1 and May 8, admiralty jurisdiction, there seems to 1817. 138 THE LAW OF WATERS. [PABT I. appears in the constitutions or statutes of the Western States bordering upon the Mississippi River with respect to that river,! and in the acts of Congress admitting them into the Union ; ^ and in the early treaties between Great Britain or the United States upon, the one hand, and France or Spain upon the other, it was provided that the navigation of this river should be free throughout its course. ^ These provisions may now be regarded as declaratory* of the modern rule that all rivers which are capable of navigation hi their natural condition are subject to public use for that purpose, whether in other respects they are held to be private property or not.^ But at the time tlie ordinance of 1787 was enacted, the question whether a river is a public highway was thought to be dependent upon proof of long user by the public.® The ordinance may thus have been intended to prevent the application of so narrow a rule to the great rivers of the West,'' to amount to a reservation of the soil of these waters, and to render the rule of riparian ownerslrip inapplicable to them.^ ' See, for example, Const, of Wis- consin, Art. 9 ; Alabama Code of 1852, p. 267, § 1205, and of 1851, p. 126, § 389 ; Mississippi Code of 1851, p. 177; Tennessee Code (1858), p. 295; Gen. Stats, of Nebraska (1873), pp. 63, 65. '' See, e.g., 2 Stats, at Large, 349, 642, 703, 747, 546; 3 Ibid. 349, 548; 5 Ibid. 428, 431. The same is declared in the act of Congress relating to the sale and disposition of the public lands, 1 U. S. Stat, at Large, 466, 468 ; U. S. Rev. Stats, § 2476. See Hatch I'. Wallamct Iron Bridge Co., 7 Saw- yer, 127. ^ 8 Stats, at Large, 83, 117, 141, 204; Art. 7 of the Treaty of Paris (1763) ; 1 Halleck's Int. Law, 150. " Stuart V. Clark, 2 Swan (Tenn.), 9, 17 ; Gavit v. Chambers, 3 Ohio, 496 ; Hickok V. Hine, 23 Ohio St. 523, 527 ; La Plaisance Bay Harbor Co. !j. Mon- roe, Walk. Ch. 155, 165; Lorman u. Benson, 8 Mich. 18, 26 ; Woodman v. Kilbourn Manuf. Co., 1 Abb. (U. S.) 158, 165; The Montello, 20 Wall. 430, 441 ; Schurmeir v. St. Paul Railroad Co., 10 Minn. 82, 103 ; Castner r. The Dr. Franklin, 1 Minn. 73; Morgan u. Reading, 3 S. & il. 366, 405; Com- missioners V. Withers, 29 Miss. 21, 38. ^ Ante, §§ 51-54 ; post, § 75. " Ante, § 53, note. ' See remarks of Martin, J., in Moore v. Sanborne, 2 Mich. 519, 525. " Post, § 76 ; Railroad Co. v. Schur- meir, 7 Wall. 272 ; Schurmeir ?'. Rail- road Co., 10 Minn. 82 ; McManus v. Carmichael, 3 Iowa, 1 ; Benson n. Morrow, 61 Mo. 345; Ross ;. Faust, 54 Ind. 471 ; Holmes v. Mallett, Mor- ris (Iowa), 82; O'Ferrall v. Simplot, 4 Iowa, 381 ; Reed i. Wright, 2 G. Greene, 15. In Attorney General v. Lake Superior Canal Co., 32 Mich. 233, it was held that the provision in an act of Congress, that a canal should be a, public highway free from toll or charge, for United States vessels, sim- CHAP. III.j BIVERS. 139 § 69. The system of surveys and grants of the public lands, adopted by the general government, is also important in this connection.' In the case of Middleton v. Pritchard, j)ly secured a right of free passage, and did not create a trust for the United States in the possession of the State. 1 By the act of Congress of May 20, 1785, surveyors were directed to divide tlie territory, ceded by indi- vidual States, into townships of six miles square by lines running due north and south, and others crossing these at right angles, "unless where the boundaries of the tracts pur- chased from the Indians rendered the same impracticable." 1 Land Laws, 19; Railroad Co. u. Schurmeir, 7 Wall. 272, 285. This system was preserved in the act of Congress of May 18, 1796, which provided for the sale of the lands of the United States north- west of the Ohio River, the exception being as follows : " Unless where the line of the late Indian purchase, or of tracts of land heretofore surveyed or patented, or the course of navigable rivers may render it impracticable; and then this rule shall be departed from no further than such particular circumstances may require." 1 Stats, at Large, 466, § 2; 2 Ibid. 73, 277, 313. 042, 665 ; 19 Ibid. 348 ; U. S. Rev. Stats. § 2395. The second section of the act of May 18, 1796, further pro- vides : " Every surveyor shall note in his field-book the true situation of all mines, salt licks, salt springs, and mill seats which shall come to his knowledge ; all watercourses over which the line he runs shall pass, and also the quality of the lands. These field-books shall be returned to the Surveyor General, who shall there- from cause a description of the whole lands surveyed to be made out and transmitted to the officers who may superintend the sales. He shall also cause a fair plat to be made of the townships, and fractional parts of townships, contained in the said lands, describing the subdivisions thereof, and the marks of the corners. This plat shall be recorded in books to be kept for that purpose ; a copy there- of shall 'be kept open at the Sur- veyors General's otflce, for public information ; and other copies sent to the places of the sale, and to the Secretary of the Treasury." See also U. S. Rev. Stats. § 2395. The third section of this statute provided that salt springs should be reserved, but that " there shall be no reserva- tions, except for salt springs, in frac- tional townships, where the fraction is less than three-fourths of a town- ship." The act of Congress of May 24, 1824 (4 Stats, at Large, 34 U. S. Rev. Stats. § 2407), empowered the President of the United States to pre- scribe rules and regulations authoriz- ing a departure from the ordinary mode of surveying the public lands on any river, lake, bayou, or water- course, so that the lands so situated might be surveyed in tracts of two acres in width and running back the depth of forty acres, which tracts, so surveyed, should be offered for sale entire. As to islands in the Missis- sippi River, on the side of the Illinois Territory, see § 1 of the act of Feb. 27, 1815 (3 Stats, at Large, 218). The above act of 1796 is the foundation of the surveying system of the United States. The act of Congress of 1803 (2 Stats, at Large, 229) made the provisions of this act applicable to the lands south of the State of Ten- nessee. The act of 1804 (2 Stats, at Large, 277) extended these provisions to all the lands of the United States, to which the Indian titles had been, or should thereafter be extinguished, north of the River Ohio, and east of the Mississippi River. The act of 140 THE LAW OF WATERS. [PAET I. the Supreme Court of Illinois held that where a government grant is made which does not reserve a right or interest that would ordinarily pass by the rules of law, and the govern- ment does no act which indicates an intention to make such reservation, the grant includes all that would pass by it if it were a private grant ; and that as the United States had not imposed any limitation upon its grant of the land in question, which was an island in the Mississippi River, separated from the adjoining land by a slough, the title of the riparian owners extended to the thread of the river and included the island. It Avas not denied that it was within the power of the government to exclude the prima facie right of the riparian owner to claim to the centre of the stream, but the court considered that it had not indicated such intention in the particular case. The island and slough, they say, " are not marked or mapped upon the plat of the government sur- veys. But it appears the surveyor of the government traced the courses and distances along the margin of the slough, next the main land, in order to estimate the quantity of land in the fraction; and which estimate did not include the locus in quo. But the plats in the land office and the Sur- veyor General's office have no line marking these courses and distances as a boundary. They are taken from the field- notes of meandering in the Surveyor General's office." It 1805 (2 Stats, at Large, 329) extended Congress, is part of the public law, of tliem to tlie Territory of Orleans ; and -whicli judicial notice is talien by tlie that of 1811 (2 Stats, at Large, 605), courts in those States carved out of the to the Territory of Louisiana. The public territory. Murphy y. Hendricks, act of 1812 (2 Stats, at Large, 748) 57 Ind. 593; Bannister v. The Grassy extended them to the Missouri Ter- Ford Ditching Association, 52 Ind. ritory, anil tliat of 1816 (3 Stats, at 178; The Jordan Ditching Association Large, 325) required the surveyor i>. AVagoner, 33 Ind. 50 ; Turpin «. The of the Rlissoiu-i and Illinois Territory Eagle Creek Co., 48 Ind. 45; Dicken- to observe these provisions in making son v. Breeden, .30 111. 279 ; Gooding his surveys. The act of 1850 (9 Stats, v. Morgan, 70 111. 275; Prieger o. at Large, 496) made the same pro- Exchange Ins. Co., 6 Wis. 89 ; Atwater visions applicable to the public lands i: Sehenck, 9 Wis. 160 ; Bittle v. in Oregon and Washington Territories; Stuart, 34 Ark. 224. See, generally, and that of 1854 (10 Stats, at Large, as to the land system of the United 308), to those in New Mexico, Kansas, States, Zabriskie's Public Land Laws ; Nebraska, and Utah. The system of Lester's Land Laws ; 2 Am. Law Rev. survey, hy base and meridian lines, 383. thus estiiblished under the acts of CHAP. in. J ElVEKS. 141 was held, that the meandered Imes, which are run for tlic purpose of determining the quantity of land in the fraction, are not boundary lines ; and that islands which have' not heen surveyed, platted, or marked upon the government survevor's map, pass as incident to a grant of the river banks. Wilson, C. J., dissented upon the ground that the agents of the governn:ient, in selling the public lands, could not legally dispose of lands which had not previously been survej^ed and platted ; and that the rule adopted by the majority of the court was contrary to the policy and practice of the gov- ernment in which the purchasers had acquiesced. The de- cision of the majority has since been followed in this State, where the river-beds are the property of the owners of the adjoining lands, where the plats in the United States land office show the river as a boundary, and there is no visible government monument.' A grant from the United States of land upon the Mississippi River extends to the thread of the current.^ The riparian owner has also, by the law of this State, an exclusive right, as against the public, to the river banks to low-water mark.'^ The fee in the streets of cities and towns in this State is vested in the corporation ; and, under this rule, where a bridge over a stream forms part of a street, the fee in the portion of the river beneath the bridge is held to be in the corjDoration, which may devote it, if the navigation is preserved, to such uses as, in the judg- ment of its authorities, will be most advantageous for the public' ' Middleton r. Pritchard, 3 Scam, road Co., 2 111, App. 435 ; Bristol v. 510 ; Canal Trustees v. Haven, 5 Gil- Carroll Co., 95 111. 84 ; Washington man, 548; People v. St. Louis, 5 Gil- Ice Co. v. Shortall, 101 111. 46. man, .351 ; Ensminger <,>. The People, ^ Houck v. Yates, 82 111. 179. 47 111. 384 ; Chicago r. Laflin, 49 111. = Ensminger v. The People, 47 111. 172 ; Chicago v. McGinn, 51 111. 266 ; 384 ; Chicago c. Laflin, 49 111. 172. Hubbard v. Bell, 54 111. 110; Rock- The first of these decisions relates to well i.-. Baldwin, 53 111. 19; Braxton the Ohio Hiver (see pout, § 71); the I. Brcssler, 64 111. 488; Chicago Rail- sepond to the Chicago River, road Co. v. Stein, 75 111, 41 ; McCor- * Chicago <,-. McGinn, 51 111. 266 ; mick i;. Huse, 78 111. 363 ; Houck v. Canal Trustees v. Havens, 11 111. 554 ; Yates, 82 111. 179 ; Cobb v. Lavalle, Hunter v. Middleton, 13 111. 50. 89 111, 331, 334 ; Healy v. Joliet Kail- 142 THE LAAV OF WATERS. [PAIiT I. § 70. In Ohio the owners of lands situated upon the banks of its navigable streams own the river-beds, subject to the public right of navigation.' In Ga vit v. Chambers ^ it was held that the ordinance of 1787 ' reserved to the public only the use of such streams for the purpose of passage ; that the United States had manifested no intention of reserving any interest in the bed, banks, or waters of navigable fresh rivers ; that there was nothing in the trust vested in Congress, or in the manner in which that trust had been executed, to warrant the establishment of any other principle than that afforded by the common law, and that the taking of stones, soil, and fish would lead to innumerable controversies, if this property had been treated by the United States as unappropriated territory. In the recent case of June v. Purcell,* it was held' that the common-law doctrine, having been regarded for many years as a rule of property in this State, should not be rejected, irrespective of the question of its correctness. In computing the number of acres in a survey of lands upon a river, the stream at low-water mark is regarded in Ohio as the boundary for this purpose, and no account is made of the land between low-water mark and the thread of the stream.^ § 71. In Ohio and Illinois a grant of land bordering upon the Ohio River carries title at least to low-water mark.*' The original grant by the State of Virginia only conveyed the territory on the northern bank of the Ohio River to low- water mark. By the compact of 1792 between Virguiia and Kentucky a concurrent jurisdiction over this river is accorded to Ohio and Kentucky.'' In Indiana, it is held that, as the ' Gavit V. Chambers, 3 Ohio, 496; viUe Canal Co., 5 Id. 410; Hopkins Beniier v. Tlattcr, 6 Oliio, 504 ; Lamb u. Kent, Id. 13. V. Rickets, 11 Ohio, 311; Blandiard '■' 3 Ohio, 496. V. Porter, Id. 1.38 ; Walker v. Board of ' Ante, § 08. Public Works, 16 Ohio, 540 ; Hickok * June v. Purcell, 36 Ohio St. 396 ; V. Hine, 23 Ohio St. 623 ; Niehaus <-. State v. Shannon, Id. 423. Shepherd, 26 Ohio St. 40; Sloan t: * Lamb u. Rickets, 11 Ohio, 311. Biemiller, 34 Ohio St. 492, 512 ; .June « Blanchard v. Porter, 11 Ohio, V. Purcell, 36 Ohio St. 396. See, also, 138 ; Bootli v. Hubbard, 8 Ohio St. McCullock V. Aten, 2 Ohio, 307 ; Cow- 243 ; Ensminger v. People, 47 111. 384. per V. Hall, 5 Id. 320 ; Hogg v. Zanes- ' Ibid, p. 142. Sec rcraa)-ks of Wood- CHAP. III.] EIVBES. 143 State of Virginia, when proprietor of the lands on both sides of the Ohio River, ceded to the United States its right to the territory north-west of this river, whereby the ordinary low- water mark on the northern bank became the boundary of the granted territory,^ grants by the United States, or its grantees, of lands in Indiana situated on the river, extend the owner's title only to ordinary low-water mark ; ^ and that the southern counties of Indiana are bounded by the same line, althougli the courts of such counties have concurrent juris- diction with those of Kentucky over the river.^ The owner- ship of the beds of navigable streams in Indiana is not clearly settled.* § 72. In Iowa the opinion of Woodward, J., in McManus V. Carmichael,^ is among the leading American authorities upon this subject. The question in that case Avas whether the plaintiff, being the owner of an island in the Mississippi River under a patent from the United States, could maintain an action of trespass against the defendant for taking sand from a sand-bar at the upper end of the island between high and low-water mark and bej'ond the meanders of the govern- ment survey. It was held, upon a full review of the earlier authorities, that, although the ebb and flow of the tide was the common-law test of navigability, j'et the term " naviga- ble " embraced not only the idea of capacity for navigation but also that of publicity ; that the test of the navigability ward, J., in McManus v. Carmicbael, Carlisle v. State, 32 Ind. 55 ; McFall 3 Iowa, 1, 36, 50, 54. v. Commonwealth, 2 Met. (Ky.) 39i ; ' See Handly v. Anthony, 5 Wlieat. Church v. Chambers, 3 Dana, 279 ; 374 ; Conway n. Taylor, 1 Black, 603 ; Garner's Case, 3 Gratt. 655. Commonwealth u. Garner, 3 Gratt. '' See Ibid. ; Cox v. State, 3 Blackf. 624, 655. 193 ; Madison v. Hildreth, 2 Ind. 274; '' Stinson v. Butler, 4 Blackf. 285 ; Sherlock c. Bainbridge, 41 Ind. 35 ; Cowden v. Kerr, 6 Id. 280 ; Gentile v. Ross v. Faust, 54 Ind. 471 ; Ridgway State, 29 Ind. 409; Martin v. Evans- v. Ludlow, 58 Ind. 248; Edwards v. ville, 32 Ind. 85 ; Sherlock c. Bain- Ogle, 76 Ind. 302 ; Dawson v. James, bridge, 32 Ind. 85 ; 41 Ind. 35, 41 ; 64 Ind. 162. In the last case the Bainbridge v. Sherlock, 29 Ind. 364 ; Wabash River is referred to as " a Commissioners v. Pidge, 5 Ind. 13 ; navigable stream, the bed of which Sherlock v. Ailing, 44 Ind. 184. has neither been surveyed nor sold." '' Sherlock „. Ailing, 44 Ind. 184 ; '3 Iowa, 1. 144 THE LAW OF WATERS. [PAET I. of the Mississippi River is ascertained by use or by public acts or declarations ; that the repeated declarations that this river is a public highway were to be construed in a broad sense as placing the Mississippi upon the same ground with a river navigable at common law ; that by the laws, regulations, and practice of the general land office, the beds of navigable rivera were excepted from the surveys, the rivers were meandered, the lines run, and the monuments set, upon the margin of the bank, the area of the lands was computed and the lands sold with reference to the plats and field-notes of the surveys thus made, and islands were often survej^ed and sold sepa- rately ; and that, as the common law limited the riparian owner's title to the high-water mark in the case of waters technically navigable, all the arguments in favor of an abso- lutely public water and bed to low-water mark applied equally to the space between high and low-water mark. In conclu- sion the learned judge said: "By this review it is perceived that force and effect are to be given to various facts, circum- stances, and considerations which are scarcely alluded to in some of the cases, and which have no place at all in the older and Eastern cases ; such arc the treaties, compacts, ordinances, and constitutions, the laws relative to the survej^ and sale of the public lands, the declaration that these rivers shall for- ever remain highways, free to all citizens, etc. And we find that the fact of the government selling islands separate from, and independent of, the mainland, had its weight at an early stage of the argument, in Pennsylvania, and even in New York. The fact, also, that the Mississippi River is the bomi- dary between numerous independent States is of great impor- tance, as we have found the cases recognizing the idea that, where a river is the boundary'between nations and States, the common-law rule does not apply. All these, and such con- siderations, formed absolutely no part of the older cases, and enter much less into some of the later ones, than they should. . . . The conclusion, therefore, is that the plaintiff has not a title to the land between high and low water, so as to enable him to maintain this action for taking the sand. Tli^s opinion need not preclude the idea that the adjacent owner may have CHAP. III.] RIVERS. I-IS some rights between higli and low water which are peculiar to himself and not common. Nor does it necessarily deter- mine the question of the right to make wharves or struc- tures for the convenience of navigation and commerce, and other questions of a similar nature. Nor are municipal powers affected, nor does it imply an unbounded license, on the other side, for every one to do what he pleases, even to the detriment of the owner, nor for an unlimited occupation of the shore. The maxim, sic utere tuo ut alienum non laedas, still holds; and the powers of an action on the ease, of indictment and injunction still remain." In Iowa the meander lines are not lines of boundary,^ and the title of the riparian proprietors on navigable streams extends only to ordinary high-water mark.^ While such proprietors have the right to erect wharves, piers, and landing places beyond that line, if the navigation is not thereby impaired, this is merelj" an incident to the riparian ownership and not the subject of independent sale.^ The soil of a navigable river below high- water mark is the property of the State, and not of the United States.* § 73. In Missouri the early case of MuUanply v. Daggett °', Avas decided according to the Spanish law, and it was held that the grants from the Spanish government of land upon the Mississippi River conveyed title to the water's edge.. In the recent case of Benson v. Morrow,'^ it was held, following ' Kraut V. Crawford, 18 Iowa, 540 ; Waddell, 10 Peters, 367 ; Pollard r. Musser v. Hershey, 42 Iowa, 356. Hagan, 3 How. 212 ; Dcii r. Jersey " McManus v. Carmichael, 3 Iowa, City, 15 Ibid. 426 ; Barney v. Keokuk, 1 ; Haiglit u. Keokuk, 4 Iowa, 199, 94 U. S. .324 ; Pere Marquette Boom 212 ; Grant v. Davenport, 18 Iowa, Co. v. Adams, 44 Micli. 403. 179, 185; Tomlin v. Dubuque Eail- = 4 Mo. 343. road Co., .'52 Iowa, 100; Musser o. ^ Ql Mo. .345. See, also, Meyers c. Hershey, 42 Iowa, 350 ; Houghton v. St. Louis, 8 Mo. App. 266 ; Primm v. The C. D. & M. R. Co., 47 Iowa, 370; Walker, 38 Mo. 94, 99 ; Smith v. St. Barney v. Keokuk, 94 U. S. 324 ; Ren- Louis, 21 Mo. 38, 41 ; Shclton v. Mau- wick V. The D. & N. W. R. Co., 49 pin, 16 Mo. 124;, Smith v. Public Iowa, 664, 669 ; Moftett i-. Brewer, 2 Schools, 30 Mo. 301 ; Le Beau v. Ga- G. Greene, 348. yen, 37 Mo. 550;, .Tones v. Soulard, ^ Musser !-. Hershey, 42 Iowa, 350. 24 How. (U.S.). 41; The Schools r. * Renwiek ... The b. & N. Vi^ R. Rislcy, 10 V^alL.ri; 40 Mo. 365. Co., 40 Iowa, 064, 009; Jlartin v. 146 THE -LAW OF WATERS. [PAET I. the decision of the Supreme Court of the United States in Railroad Co. v. Schurmeir,^ that, the Missouri River, being treated in the acts of Congress as a navigable stream and public highvsray, the proprietors of lands on its banks, whose titles are derived from the United States, own only to the water's edge; and that islands in the river, which remain vmsold, still belong to the United States. § 74. In Alabama the common-law rule is rejected.^ In Bullock V. Wilson,^ the court, referring to the early acts of Congress,* which declared that all navigable rivers within the territory of the United States south of the State of Tennessee "shall be deemed to be and remain public high- ways," said: "According to the laws and practice of the United States government, relating to the surveys and sale of the public domain, the Coosa, as well as other similar watercourses, is virtually excepted from all private grants. The lines of the survej' stop at the margin of the river, by which means, fractions (as in the case before us) are created ; ;and the purchasers of such are only charged for the true quantity of land, the bed of the river being excluded. In respect to grants of lands bounded by watercourses, where there is no statute regulation on the subject, or express ex- ■ ception in the grant, intricate and highly interesting ques- tions may arise as to the extent of the proprietor's right on the margin. In such cases, the character of the water, whether the sea, a navigable river where the tide ebbs and .flows, a fresh-water navigable stream, or one not navigable, is material to be considered in determining the extent of the grant." " It is very obvious, however, that with us the ques- tion does not depend on the tide, or fresh water; that if the river has been expressly recognized as a public highway by ' 7 Wall. 272 ; post, § 77. Ala. 363 ; Ellis v. Carey, 30 Ala. 725; ^ Bullock V. Wilson, 2 Porter, 436 ; Rhodes v. Otis, 33 Ala. 578 ; Peters v. Hagan !). Campbell, 8 Porter, 9; Lew- New Orleans Railroad Co., 56 Ala. en V. Smith, 7 Porter, 428 ; Mobile v. 528 ; Williams v. Glover, 66 Ala. 189. Eslara, 9 Porter, 577 ; 16 Peters (U. ^ 2 Porter, 43G, 445, 448. S.) 234; Magee v. Hallett, 22 Ala. '2 Stats; at Large, 235; 3 Ibid. 699; Stein u. Ashby, 24 Ala. 521 ; 30 492. CHAP. III.] ^ BIVERS. 147 the Federal and State governments ; or even if it be of suffi- cient width and depth, and suited to the ordinary purposes of navigation, and the government has not expressly granted any part of the bed, or computed it in the quantity granted, which implies an exception, as in the case of navigable water, the stream is thereby constituted a public highway, and no individual can assert any private right of soil in the bed beyond the low-water jnark. His claim could have no better foundation than that in the case of tlie oyster-bed planted in the tide water, both places being alike reserved for public use." The character of the smaller fresh streams, which are capable of passage or of floatage at certain seasons, is held to be a question of fact.i If they have not been declared public highways by the legislature, or excluded from the surveys by the government surveyors, and are not valuable for public transportation and travel, they are not public highways, but exclusively private property.^ § 75. In Michigan it was held in the early case of La Plaisance Bay Harbor Co. v. Monroe,^ that meandered streams were not included in the original survey, and that the beds of navigable streams are public and belong to the State. But the doctrine of the common law is now the rule in that State,* with respect both to platted city lots ^ and other lands bordering on rivers and streams. The same rules prevail in Wisconsin.^ But the title of the riparian " Rhodes v. Otis, 33 Ala. 578. 336 ; Maxwell v. Bay City Bridge Co., = Ellis V. Carey, 30 Ala. 725 ; Rhodes 41 Mich. 453, 466. V. Otis, 33 Ala. 578 ; Peters v. New ^ Watson v. Peters, 26 Mich. 508. Orleans Railroad Co., 56 Ala. 528. « Jones v. Pettibone, 2 Wis. 308 ; ' Walk. Ch. 155, 168. Stevens Point Boom Co. v. Reilly, 44 ■• Lorman v. Benson, 8 Mich. 18 ; Wis. 295 ; 46 Wis. 237 ; Cohn v. Rice V. Ruddiman, 10 Mich. 125; Wausau Boom Co., 47 Wis. 314; Wal- Moore v. Sanhorne, 2 Mich. 519 ; Nor- ker Castello «. Landwehr, 28 Wis. 522 ; V. Jerkins, 5 Id. 290 ; Cobb v. Bennett, Scott w. Chicago, 1 Biss. 510. The 75 Penn. St. 326 ; Moulton v. Libbey, legislature is the only tribunal that is 37 Maine, 472; Flanagan y. Phila- to reconcile these conflicting interests. CHAP. IV.] PUBLIC EIGHT OF KAVIGATION. 165 ilege across the stream, exercised by means of a cable, that a steamboat which has not given warning of its approach, is not required to wait for the cable to be lowered, if any dam^ age to the steamer, or chance of damage, could be reasonably apprehended from delay.i So the right of a gas company to lay its pipes in the bed of a river is subordinate to the right of navigation ; and a vessel which is dragging its anchor as a proper and usual act of navigation under the circumstances in which it is placed, is not responsible, in the absence of negligence or malice, for injury thus caused to the pipes.^ § 89. The public right of passage must also Ije exercised with due regard for the rights of riparian proprietors. A vessel in motion is required to use ordinary care not to injure, by its swell, other vessels, rafts, or property attached to the shore, as well as to avoid striking them.^ If a man Commonwealth v. Breed, 4 Pick. 460 ; Commonwealth v. Essex Co., 13 Gray, 239 ; Middlesex Railroad Co. u. Wake- field, 103 Mass. 261, 265. ' Steamboat Globe v. Kurtz, 4 G. Greene (Iowa), 433 ; Babcock v. Her- bert, 3 Ala. 392. A wire ferry cable across a navigable river is not an un- lawful obstruction to navigation, un- less it actually prevents the naviga- tion or renders it hazardous. The Vancouver, 2 Sawyer, 381. In Steam- boat Globe V. Kurtz, 4 G. Greene, 433, 436, Hall, J., said : " The lawful navi- gation of the river can never be a nuisance to a ferry owner, but a ferry may become a nuisance by obstruct- ing the navigation. While the ferry owner is protected in the enjoyment of his franchise and property pertain- ing to the ferry, against wanton and wilful injury from those who are en- gaged in navigating the river, where he has received the usual courtesies that are extended between man and man, he has no cause of complaipt. His interest is at best but a servient right, and cannot be extended beyond tlie naked object of his license. He is allowed to keep a ferry, not to ob- struct the navigation or place a nuis- ance in the river." A license to keep a ferry upon a navigable stream does not authorize the grantee to place any obstruction across the stream. Babcock v. Herbert, supra. ^ Milwaukee Gas Light Co. v. The Gamecock, 23 Wis. 144. '' Wright V. Brown, 4 Ind. 95 ; The Ehode Island, 8 Ben. 50 ; The C. H. Northam, 13 Blatch. 31 ; 7 Ben. 249 ; The Morrisania, 13 Blatch. 512 ; The Daniel Drew, Id. 523 ; Browne v. Stone, 1 Phila. 241 ; 5 Penn. Law Jour. 75. A vessel which involuntarily causes injury to another vessel lying along- side, in consequence of the swell caused by a passing steamer, is not liable. Kissam v. The Albert, 21 Law Eep. 41. The owners of rafts or ves- sels moored to the banks are required to take reasonable precautions to prevent injuries liable to be caused by the swell of passing steamers. Fawcett v. The Natchez, 3 Woods, 16. 166 THE LAW OF WATERS. [PAET 1, obstinately refuses to remove his ship from opposite a wharf, and it would be as convenient for himself a little one way or the other, this would be an abuse of the common right, and the owner of the wharf may recover for such injury as he thereby sustains.' In a recent case in Michigan,^ a steamboat was run to and fro in the Detroit River so unnecessarily near a boom which an ice company had constructed near the shore, that the ice within the boom was broken up by the agitation of the water, and the company being unable to pro- cure sufficient ice to fill its houses, the steamboat was held responsible for the loss. The court, in its opinion, after referring to the obligation imposed upon those who use a highway to avoid unnecessaiy injury to trees, carriages, and other articles that may be within the limits of the way,^ and to the case of the wanton destruction of a fishing-net by a vessel,^ said : " The right of navigation, while paramount, is not exclusive, and cannot be exercised to the unnecessary or wanton destruction of private rights or property, where both can be freely and fairly enjoyed. But in this case the vessel did not run into the boom, and therefore it may be said the case is not parallel with those we have been considering. The principle, however, is the same, which recognizes the superior right of the vessel, but punishes any abuse of that right. It is also clearly apparent that vessels have not an exclusive right to use the entire channel, which may be nar- rowed or used for purposes, some of which are but remotely, if at all, connected with the subject of navigation. It is well known, as this case proves, that there is a class of vessels navigating our lakes and rivers which cause, when running, very great commotion or swells in the water. It is also well known that on many of the rivers a class of lighters and barges are used for the lighterage or necessary transportation of the agricultural, manufacturing, and mining products of the country. This class of vessels are often loaded to the ' Anon., 1 Camp. 517, note. ^ Citing Clark v. Dasso, 34 Mich. « People's Ice Co. ,.. Steamer Ex- 86 ; Cary v. Daniels, 8 Met. 478. celsior, 44 Mich. 22'J; 22 Alb. Law < Citing Post ... Munn, 1 Soutli. Jour- 342. (X. J.) 01. Sec ante, § 87. CHAP. IV.J PtTBLIC BIGHT OF NAVIGATION. 167 water's edge, and in smooth waters are thus considered per- fectly safe, and yet they could not venture out where the wind or waves could reach them. Would a steamer, approaching such a tow, where it was clearly apparent the swell she created would endanger the lighter or cargo, be justified in recklessly pursuing her course at full speed, in case damage resulted ? Upon some of our rivers and water highways artificial banks have been formed for the benefit of commerce, and to prevent a spread of the waters over the adjoining country. The swell caused by steamers of a cer- tain class would, by washing such banks, and otherwise, weaken and injure them, and thus create danger of public and private damage. Such dangers are frequently guarded against by legislation, or rules of the highway ; but it may be questionable whether such regulations are not merely declaratory of the common-law maxim that a man must en- joy his own property in such a manner as not to injure that of another person. So the right to boom logs is necessary to. their profitable manufacture. The owners must therefore be protected in this right, else it would be of but little value., Vessels would have no right to destroy them, or Avantonly run so close to them as to cause a loss of the propertj' therein. A vessel has no right to wantonly run so close to the sliore^, to a boom, or to a dock, as to cause damage which could easily be avoided by standing farther off." The owner of a vessel is not responsible for injuries caused by inevitable accident,^ but is liable for the resulting consequences, as well as the immediate consequences, of Jiegligenee on the part of those in charge. If a vessel runs aground in consequence of a mistake as to the channel, and another vessel collides with it under the same mistake, the grounding of the first vessel is not the proximate cause of the injury, nor is that vessel bound to signal the approaching vessel as to the course the latter should take, but the owner of the second vessel is ' Ibid. ; Doward v. Lindsay, L. -K. Bradley, 8 Wend. 469. See Mark <■. 5P.C.338; ThifiTliornley, 7 Jar. 659; Hudson Eiver Bridge Co., 56 How. Brown v. Lynn, 31 Penn. St. 510; The Pr. 108 ; TUe Oler, 2 Hughes, 12. Louisiana, 3 Wall. 164; Dygert v. 168 THE LAW OF WATERS. [PAET I. liable for the damage to the first.^ Where a vessel, being disabled by a collision, and left helpless in the track of navi- gation, is afterwards injured by a passing vessel, the vessel at fault is liable for the additional injuries thus caused to the disabled vessel.^ Where, also, a ship became unmanage- able through the negligence of the captain and crew about three-quarters of a mile from a lee-shore, and was then driven by the wind and tide upon a sea-wall, which it damaged, it was held that the negligence was the proximate cause of the injury, and that the owners of the ship were liable therefor.^ In this, and similar cases, the fact that the riparian owner, in the lawful use of his own property, and by his own act, builds out from the shore or river bank, thereby exposing his property to danger of accidental injury from the lawful acts of others, does not deprive him of his remedy for an injury caused by the culpable negligence of such other, persons.'' But the riparian owner will be liable for any act on his part which icauses injury to vessels lawfully navigating the stream. If a vessel or raft, moored without his consent against the front •of his laud, interferes with his right of access thereto, he ma-y unfasten it and set it adrift, and, if it floats away or ;is wrecked, he is not liable to the owner for the loss.® But he is not justified in setting adrift anything that will injure vessels navigating the stream. Where the enjoyment of such ■ owner's property was interfered with by a large log, which landed opposite his premises, and he towed it to another part I of the river and there left it, he was held liable for the loss • of a vessel which struck upon the log and was injured.^ ' Austin V. New Jersey Steamboat * Dutton u. Strong, 1 Black, 23 ; Co., 43 N. Y. 75. Harrington v. Edwards, 17 Wis. 586. " Tlie Oler, 14 Am. L. Reg. 300; 2 « Porter v. Allen, 8 Ind. 1. In Sat- Hughes, 12. terly o. Hallock, 5 Hun, 178, the de- ^ Romney Marsh v. Trinity House, fendant unlawfully removed the plain- L. R. 5 Ex. 204 ; L. R. 7 Ex. 247 ; tiff's vessel from the dock, in which it The George and Richard, L. R. 3 was lying, to a position where it was Adm. & Ecc. 446 ; Austin v. New Jer- injured by settling at low water upon sey Steamboat Co., 43 N. Y. 75 ; Bow- a log which the plaintiff had pre- as V. Tow Line, 2 Sawyer, 21. viously thrown overboard. The plain- •• Cook V. The Champlain Transpor- tiff was held not guilty of contribu- tation Co., 4 Denio, 91 ; Kerwhaker v. tory negligence. The Cleveland Railroad Co., 3 Ohio St. 172, 193. CHAr. IV.j PUBLIC RIGHT OF NAVIGATION. 169 § 90. The public right is only limited in this respect by the requirement that it shall be exercised in a reasonable manner; and the fact that the riparian owner sustains dam- age from this cause does not, in all cases, give him a cause of action. Lands adjoining a river may, without compensation, be legally flowed, to some extent, by persons exercising the right of navigation. Vessels, boats, or logs floating in the water may cause it to rise above its natural level ; and, when numerous, they may thus be the source of appreciable damage to the riparian owners. Damage thus caused to the lands of riparian proprietors would be damnum absque injuria in the case of rivers navigable for vessels and boats, and a boom company, engaged in driving logs down a stream, is not an insurer that the riparian owners shall not suffer dam- age.i If a log or other property is lodged upon the adjoining ' White River Booming Co. v. Nel- son (Mich.), 7 So. L. Rev. 497, and authorities cited, note 2 below ; Grand Rapids Booming Co. v. Jaryis, 30 Mich. 308, 318. In this case, the court said : " In addition to the fact that waters in which ships and other vessels of such burden as would be likely materially to retard the cur- rents, ever become collected or crowded together to such an extent as might, in the shallow and narrow waters, impede the current, are of necessity so much deeper (and gen- erally of much greater width) than rivers like this, whose navigation can be rendered valuable principally for the running of logs, such ships and vessels, by their shape and construc- tion, are so entirely different from saw- logs in respect to the facility afforded for the passage of the current under and around them, that the analogy between the two becomes exceedingly faint, if it does not disappear. But when we consider further, that saw- logs, without any bond of connection, coming down n river, each in its own careless way, and stopped by a boom or other obstruction, collecting into a jam, run over and under each other in a confused mass, pile upon and across each other in every conceivable direction, and flil the stream from the surface to tlie bottom, setting back the water like a dam ; wliile ships and vessels, if they do .occasionally run others down, have not acquired so general a habit of running over, and across, and under one another, several tiers in depth, as to make the danger of the sotting back of a river from this cause, an ordinary or probable incident of navigation. The assumed analogy, therefore, if any can be said to exist, is too faint, shadowy, and uncertain, to serve as the basis of the right here claimed, and would (in the language of Judge Story) betray us into ' an extravagant looseness which would destroy private rights.' The respective rights of the public to use the stream for the purposes of navi- gation and the floating of logs, and of the riparian owner to the use of his land, must bo harmonized, and those running logs down a stream, or col- lecting, dividing, and storing them, can with no more propriety be allowed, for the sake of rendering the business more safe, convenient, or profitable to them, to raise the water over the 170 THE LAW OF -WATERS. [PAET I. lands by a subsiding freshet, without fault chargeable to any person, the owner may reclaim it, and, doing no unnecessary damage, may go upon the land for that purpose, without be- ing liable for such mishaps or for trespass.^ So, if a bridge, which was properly constructed and has been kept in repair, is carried away by an extraordinary flood, and is lodged upon the land of a riparian proprietor, the land-owner or the owner of the bridge may remove it, but the former cannot convert it to his own use, and the latter is neither liable for injuries caused hy the wreck, nor bound to remove it until he is notified so to do, and even then he may abandon the property .2 The property near a water highway is thus held subject to the risks incident to the reasonable exercise of the public right.3 § 91. In England the right of navigation has always been jealously guarded as a great public interest. In Rex v. Clark,* Holt, C. J., said that to hinder the course of a navigable river was against Magna Charta ; and, by numerous acts of Parliament,^ annoyances to this common privilege were pun- lands of others, than the latter can be u. Collins, 53 N. H. 442, 449 ; Eaton allowed, for their convenience and v. B. C. & M. E. Co., 51 N. II. 504, profit, to erect or maintain, in con- 530 ; Carter v. Thurston, 58 N. H. 104. nection with their lands, dams, or ■* 12 Mod. 615. See, also, AVarren other obstructions to the navigation v. Prideaux, 1 Mod. 105 ; Magna which the river, in its natural condi- Charta, c. 23; Oldbury r. Stafford, 1 tion, may afford." Sid. 145 ; Carter i:. Murcot, 4 Burr. ' Chase y. Corcoran, 100 Mass. 286; 2162; Rex f. Smith, 2 Dougl. 441; Proctor V. xVdams, 113 Mass. 376 ; Blundell o. Catterall, 5 B. & Aid. Barker v. Bates, 13 Pick. 255 ; Dun- 91 ; Greenwich Board of Works i . wich V. Sterry, 1 B. & Ad. 831 ; Thomp- Maundslay, L. R. 5 Q. B. 397 ; Bar- son V. Androscoggin Co., 54 N. H. clay Railroad Co. c. Ingham, 30 545, 558 ; Etter v. Edwards, 4 Watts, Penn. St. 194, 201 ; Browne v. Kenne- 65 ; 2 Kent Com. 322, 359, 360 ; 1 dy, 5 Harr. & J. 195, 203. Black. Com. 293, 297. ^ These early statutes are cited ' Livezey v. Philadelphia, 64 Penn. and considered in Hale, De Jure Ma- St. 106 ; Lehigh Bridge Co. v. Lehigh ris, c. 3, 5 ; Hargrave's Law Tracts, Coal Co., 4 Rawle, 94 ; Forster v. 9, 22 ; Woolrych on Waters, 155 ; Juniata Bridge Co., 16 Penn. St. 393 ; Fitz. N. B. 113 ; Callis on Sewers, 255, Sheldon v. Sherman, 42 N. Y. 484; 256; Weld ,-. Hornby, 7 East, 195, 42 Barb. 368 ; post, § 98. 198 ; Robson u. Robinson, 3 Dougl. ' Thompson y. Androscoggin Co., 307 ; Williams v. Wilcox, 8 Ad. & El. 54 N. II. 54-5, 558 ; 58 Id. 108 ; Brown 314 ; Case of Chester Mill, 10 Rep, CHAP. IV.j PUBLIC EIGHT OF NAVIGATION. 171 ished with specific penalties. The intention to preserve the navigation unobstructed in all navigable rivers of England was manifested in the ancient laws relating to sewers,^ the purpose of which was both to prevent inundations and to assist navigation.^ According to Coke and Callis, the king might, even before the making of any statute of sewers, grant commissions for surveying and repairing walls, banks, and rivers, and other defences,^ the decay of which might tend to choke up the navigable channels. The prerogative of the Crown includes, also, the right and duty to protect the realm from the inroads of the sea.* The attorney general may pro- ceed by information, on behalf of the Crown, to prevent a subject from removing a natural barrier against the sea,^ and the injuring of such a barrier appears to be an indictable offence at common law." In England the preservation of harbors, ports, navigable rivers, and docks is now entrusted to corporate bodies of trustees or conservators, and the powers of commissioners of sewers are restricted to such parts of the coast as are not under the regulation of these bodies.^ 138 ; 13 Eep. 38 ; Planagan v. Phila- castle v. Clark, 1 Moore, 666 ; Driver delphia, 42 Penn. St. 219, 229. v. Simpson, Id. 682. ' See Callis on Sewers, passim ; ^ Attorney General v. Tomline, 12 Woolrych on "Waters, 8, 54-63, 68; Ch. D. 214; Hudson v. Tabor, 2 Q. B. Hunt on Boundaries {2d ed.), 33. D. 290; Callis on Sewers, 80; Wool- " The King v. Hide, Styl. 60; Yeaw rych on Waters, 42. V. Holland, 2 Wra. Bk. 717 ; Dore v. * Attorney General c. Tomline, 12 Gray, 2 T. E. 336 ; Callis on Sewers, Ch. D. 214. 80 ; 4 Inst. 276 ; Rex v. Pagbam, 8 « Ball v. Herbert, 3 T. R. 253, 263 ; B. & C. 355 ; Queen v. Baker, L. R. 2 Newcastle v. Clark, 1 Moore, 666 ; Q. B. 621, ' Driver v. Simpson, Id. 682 ; Attorney » Case of The Isle of Ely, 10 Rep. General ;•. Tomline, 12 Ch. D. 214, 143 ; Callis on Sewers, 2, 25, 79 ; Roy- 222 ; Callis on Sewers, 73, 74. al Fishery of the Banne, Sir John ' Woolrych on Sewers, 49 ; Green- Davies, 149, 153 ; Dore v. Gray, 2 T. wich Board of Works v. Maudsley, L. It. 358; Jean v. Holland, 2 T. R. 365 ; R. 5 Q, B. 307. See authorities, post, i Inst. 276; Queen u. Westham, 10 § 115; Coulson & Porbes on Waters, Mod. 159. The Commissioners of 26, 80 ; Cory v. Bristow, 2 App. Cas. Sewers could not maintain trespass 262 ; Watkins v. Milton, L. R. 3 Q. against one who broke down embank- B. 350 ; Forrest v. Greenwich, 8 E. & ments, but the remedy is by indict- B. 890 ; Grant o. Oxford, L. R. 4 Q. mcnt in the name of the king. New- B. 9; Rex c. London, 4 T. R. 21. 172 THE LAW OF -VVATELIS. [PAKT I. § 92. All annoyances and impediments to navigation are prima facie public nuisances, whether created by the riparian owners or by strangers.^ The public may enforce their abatement or removal by indictment, or by an information in equity, and individuals to whom they cause special damage may recover damages at law against those who have created them.® But no indictment will lie for a nuisance in a public river when the injury to navigation is likely to be only slight and of rare occurrence.^ Lord Hale instances* the following nuisances, among others, that maj- be common to all having occasion to frequent ports: (1) silting or choaking up the port, either by the sinking of vessels in the port, or throwing out of filth or trash into the port, whereby it is ehoaked. (2) Decays of the wharfs, keys, and piers, which are for the landing of merchandize and safe-guard of shipping. (3) The leaving of anchors in the port without buoys or marks, whereby ships or vessels may strike against them and be spoiled. (4) The building of new wears or inhancing of old, wherebjr navigation or passage of vessels is obstructed. (.5) The straitening of the port, by building too far into the water, where ships or vessels might have formerly ridden. (6) " The impediment or hindrance of moreiug of'ships in the ground adjacent, if it hath been so anciently used, with- out paying anything for it. Or if it be a new port, yet it seems, the moreing of ships being for the general good of commerce, it must be suffered upon reasonable amends." If unreasonabljr large masses of oysters be planted or depos- ited in the bed of a navigable river, they are a nuisance so far as they obstruct the navigation.^ So logs or rafts, for mere private convenience, and for no purposes connected with the rights of navigation in a channel which is susceptible ' Williams v. Wilcox, 8 Ad. & El. ^ pp^ ,-. Tindall, 6 Ad. & El. 143. 314 ; Brucklesbank v. Smith, 2 Burr. ■• Hale, De Portibus Maris, c. 7 ; 656; Commonwealth v. Caldwell, 1 Hargrave's Law Tracts, 85. It is a Dall. 150 ; Knox v. Chaloner, 42 IMaine, criminal offence in Georgia to throw 150 ; Veazie v. Dwinel, 50 Maine, out ballast in a harbor. Wallace v. 479, 484 ; Gerrish v. Brown, 51 Maine, State, 40 Ga. 199. 256 ; Lancey v. Clifford, 54 Maine, ' Colchester v. Brooke, 7 Q. B. 339, 487 ; Cox v. State, 3 Blackf. 193. 375 ; State v. Taylor, 27 N. J. L. 117. ' Post, §§ 121-128. CHAP. IV.] PUBLIC EIGHT OF NAVIGATION. 173 of use for navigation, deposited for an unreasonable time, constitute a nuisance in judgment of law.^ The diversion of water from a river may so impair its navigable capacity as to amount to a public nuisance,® and a city is liable for the detention of navigators caused by diverting the water for purposes subordinate to the right of navigation, as for use in the arts, for driving or lifting power, the washing of pave- ments, baths, etc., or even for domestic consumption beyond the requirements of necessitj'.^ The owners of lands border- ing upon navigable waters may lawfully throw sewage and other refuse matter into them, provided they do not create a nuisance to others ; * for it is a natural office of the sea and of all running waters to carry off and dissipate, by their per- petual motion and currents, the impurities and offscourings of the land ; ^ but the public right of navigation is not limited at common law by any private or municipal right of sewer- age.^ The filling up by a city, by means of a sewer, of any portion of its harbor, to the injury of the navigation, is an indictable offence ; ^ and if it causes injury to private rights, as by interfering with the access to a wharf or ferry slip, it affords a cause of action to individuals.^ The owners of mills and manufactories are bound to see that filth, trash, and other waste cast from their works into a navigable stream do not obstruct the navigation,® and their negligence in this 'Commonwealth v, Fleming, Lew- 218; Franklin Wliarf v. Portland, 67 is's Crim. Law, 533, 534 ; Common- Maine, 46, 55 ; Boston Rolling Mills wealth V. Strickler, Id. 535; Moore u. Cambridge, 117 Mass. 396; Wash- r. Jackson, 2 Abb. (N. C.) 211 ; Hay- burn & Moen Manuf. Co. v. Worces- ward V. Knapp, 23 Minn. 431. ter, 116 Mass. 458. ^ Stokes y. Upper Appomattax Co., 'Ibid.; Clark v. Peckham, 10 E. 3 Leigh, 318 ; Medway Navigation Co. I. 35 ; 9 R. I. 455. But in such case, V. Romney, 9 C. B. N. s. 575. the obstruction must be against the ^ Philadelphia v. Gilmartin, 71 front of the plaintiff's land. Post, § Penn. St. 140; Philadelphia u. Col- 97. And a municipal corporation may lins, 68 Penn. St. 106; Commonwealth connect its sewers with a natural V. Tewksbury, 11 Met. 55, 57; Yolo water-channel, without liability to keep Co. V. Sacramento, 36 Cal. 193. the channel open to its mouth. Munn * Haskell ;;. New Bedford, 108 Mass. u. Pittsburgh, 40 Penn. St. 364. 208, 214. » Ibid. ; Sleight v. Kingston, 11 Hun, '" Gray, J., in Haskell o. New Bed- 594. ford, 108 Mass. 208, 214. ' Ibid. ; Veazie v. Dwinel, 50 Maine, ^ Brayton o. Fall River, 113 Mass. 479; Dwinel v. Veazie, 50 Maine, 479; 174 THE LAW OP WATERS. [PAET I. respect gives rise to private rights of action.' If a telegraph company, which is authorized by statute to lay its cable in navigable waters in such manner as not to " injuriously inter- rupt the navigation," causes the cable to be so laid or sus- pended that it comes in contact with vessels which would otherwise pass without difficulty or interruption, the cable is a nuisance, and the company is liable for any damage thereby caused to a vessel which is not at fault.^ The facts that other vessels and the vessel injured have passed the obstruc- tion safely, and that a projecting iron on the vessel caused it to catch upon the cable, do not necessarily relieve the company of liability, since, as against a wrong-doer, the owners of a vessel are not bound to keep it in the best possi- ble repair.* The fact that an obstruction is a nuisance does not justify the master of the vessel in destroying or running ' upon it negligently, for one member of the public is not justi- fied in causelessly injuring another's property by the fact that such property is so placed as to interfere with a public right.* If the navigator casts his vessel upon the obstruction unne- cessarily, he is guilty of contributory negligence, and cannot recover for the injuiy he may thereby sustain.^ A vessel which comes to anchor negligently, or is otherwise guilty of negligent navigation, is liable for injuring a telegraph cable, laid at the bottom of the sea, with which its anchor comes in contact.^ The relative rights and duties of persons navi- 44 Maine, 167 ; Gerrish v. Brown, 51 man v. Bluck, 18 Q. B. 870 ; Bridge v. Maine, 256 ; Davis u. Winslow, 51 Grand Junction Railway Co., 3 M. & Maine, 264 ; State u. Bunker, 59 W. 244 ; Davies v. Mann, 10 M. & W. Maine, 366 ; Wasliburn v. Gilman, 64 546 ; Butterfield v. Forrester, 11 East, Maine, 163; Barrett v. Bangor, 70 60; State c. Antoine, 40 Maine, 435; Maine, 335, 338; Brackelsbank i. Cummins u. Presley, 4 Harr. (Del.) Smith, 2 Burr. 656 ; Simpson v. Sea- 315 ; Foster c. Holly, 38 Ala. 76 ; vey, 8 Maine, 138. Steamboat v. McCraw, 26 Ala. 189, ' Haskins v. Haskins, 9 Gray, 390; 203; Inman v. Funk, 7 B. Mon. 538; AVashburn v. Gilman, 64 Maine, 163. Pilcher v. Hart, 1 Humph. 524 ; Cas- = Blanchard v. Western Union Tele- tello v. Landwehr, 28 Wis. 522. graph Co., 60 N. Y. 510 ; 67 Barb. = Ibid. ; Lane v. The A. Denike, 3 228 ; 3 Supr. Ct. 775 ; Stephens Trans- Cliff. 117 ; Knowlton u. Sanford, 32 portation Co. w. Western Union Tele- Maine, 148. graph Co., 8 Ben. 502. ^ 11,;^] e Submarine Telegraph Co. v. Dick- ^ Colchester !•. Brooke, 7 Q. B. .339 ; sou, 15 C. B. n. s. 759; The Clara Dimes v. Petley, 15 Q. B. 270; Bate- Killam, L. E. 3 Adm. & Ecc. 161. CHAP. IV.] PUBLIC KIGHT OF NAVIGATION. 175 gating vessels apply equally whether in ports or rivers, or within the three-mile belt along the coast, or on the higli seas generally.! § 93. The distinction between a purpresture and a public nuisance was stated in a previous chapter.^ Any unauthor- ized invasion of the soil of the seashore between high and low-water mark, or of the shore or alveus of a tidal river, or of the bed of an estuary or arm of the sea, while these remain the property of the Crown, or, in this country, of the State, is a purpresture.^ In strictness, the question whether a wharf or building erected in tide waters is a purpresture depends upon the ownership of the soil which it covers.'' At common law, if the person who makes such a structure establishes his right to the soil by producing a grant or license from the Crown, it is not a purpresture, although it may still be unlawful if it obstructs the navigation. In the latter case, the structure is abateable as a nuisance notwithstanding the king's license, for a common nuisance is not warrantable by the Crown.^ The law upon this subject is thus stated by Lord Hale:" It is not "every building below the high-water mark, nor every building below the low-water mark, is ipso facto in law a nuisance. For that would destroy all the keys that are in all the ports in England. For they are all built below the high-water mark ; for otherwise vessels could ]iot come at them to unlade ; and some are built below the low-water mark. And it would be impossible for the king to license the building of a new wharf or key, whereof there are a thousand instances, if ipso facto it were a common nui- sance, because it straightens the port, for the king cannot license a common nuisance. Nay, in many cases it is an advantage to a port to keep in the sea-water from diffusing at large ; and the water may flow in shallows, where it is 1 See Ibid., per Willes, J., p. 779. Railroad Co. v. Ward, 2 Black, 485 ; " Ante, § 21. Nichols v. Boston, 98 Mass. 39, 41. ' Ante, § 21 ; Blundell v. Catterall, « Hale, De Portibus Maris, c. 7 ; 5 B. & Ad. 268. Hargrave's Law Tracts, 85 ; De Jure ' Ibid. Maris, c. 3, 5, 6 ; Hargrave's Law * Hale, De Portibus Maris, c. 7 ; Tracts, 9, 21, 22, 23, 36. Hargrave's Law Tracts, 85 ; Mississippi 176 THE LAW OF "VVATBES. [PAET I. impossible for vessels to ride. Indeed, where the soil is the king's, the building below the high-water mark is a purpres- ture, an encroachment and intrusion upon the king's soil, which he may either demolish or seize, or arent at his j^leasure ; but it is not ipso facto a common nuisance, unless, indeed, it be a damage to the port and navigation." Whether a wharf or building extended into tide waters is a nuisance is purely a question of fact.-^ § 93 a. The above rules apply also to navigable fresh rivers in those localities where they are held to be public property like the sea. But when the title of the riparian pro- prietors extends usque ad filum aquae, such proprietors are at liberty, as against the public, to erect any structure, or to do anj'' act witli respect to the water, or the portion of the river- bed owned by each, provided they do not interfere with the navigation,^ and the public have no other right than that of free and unmolested passage.^ This right of passage does not include the right to take rocks, gravel, or soil from the bed of non-tidal rivers which are private property, and the owner of the adjoining land may maintain an action of tres- pass for this cause,* or replevy from the wrongdoer the rocks or soil so taken.^ Stone cannot be quarried, without com- pensation, from the bed of a private stream, for the purpose of constructing a public bridge, even at that part of the bed which is beneath the proposed bridge.® In Pennsylvania, 1 Ibid. ; ante, § 21 ; Queen v. Betts, v. Currier, 2 Mich. N. P. 21 ; Delaware 16 Q. B. 1022; Abraham v. Great Canal Co. v. Lawrence, 2 Hun, 163; Northern Railway Co., 16 Q. B. 586, 56 N. Y. 612. 591 ; Dutton v. Strong, 1 Black, 2.3, * Orr Ewing v. Colquhoun, 2 App. 31; Columbus Bridge Co. v. Peoria Cas. 839, 845, 853, 854,870; Walker Bridge Co., 6 McLean, 70 ; Nichols ;;. v. Board of Works, 16 Ohio, 544 ; At- Boston, 98 Mass. 39, 41 ; Burnham v. torney General v. Evart Booming Co., Hotchkiss, 14 Conn. 318 ; Thornton v. 34 Mich. 462. Grant, 10 E. I. 477 ; The Erie v. Can- ^ Ibid. field, 27 Mich. 479 ; Clark v. Lake St. * Braxton v. Bressler, 64 111. 488; Clair Ice Co., 24 Mich. 508 ; Attorney June v. Purcell, 86 Ohio St. 396 ; Eoss General v. Evart Booming Co., 34 v. Faust, 54 Ind. 471 ; Berry v. Snyder, Mich. 462; People ;;. Carpenter, 1 3 Bush, 266, 285. Mich. 273; Howard v. Bobbins, 1 ^ Braxton t>. Bressler, 64 111. 488. Lans. 63 ; Knox v. New York, 55 Barb. ^ Overman v. May, 35 Iowa, 89. 404; 38 How. Pr.67; Van Der Brooks CHAP. IV.j PUBLIC EIGHT OF NAVIGATIOI^. 177 where the large fresh-water rivers belong to the public, paving stones taken from such rivers belong to the taker. i § 94. In Rex v. Russell ^ the defendants were indicted for wrongfully continuing two coal staiths or geers in a navigable river to the public nuisance of the navigation. The geers extended over the space between high and low-water mark, and one or two feet below low-water mark, with spouts pro- jecting therefrom, one of which extended outward thirty-six feet. The opinion of tlae majority of the court ^ was that the defendants should be acquitted if the abridgment of the navigation caused by these structures was for a public pur- pose, and produced a public benefit, by enabling coals to be supplied at a cheaper price and in better condition than before, provided that a reasonable space was left for the pas- sage of vessels upon the river. In subsequent English cases* it was held that, upon an indictment for a public nuisance, the violation of rights which belong to any part of the public cannot be excused or vindicated by offsetting the benefit which may arise to another part of the public elsewhere. In the case of Rex v. Ward,^ in which the decision of Rex v. Russell was reviewed, it was held that a finding by the jury, that an embankment in a water highway is a nuisance, as interfering with the navigation, but that the inconvenience is counterbalanced by the public benefit arising therefrom, amounted to a verdict of guilty. The rule now is that the inquiry for the jury is whether the structure is a nuisance to the navigation, and not whether it is beneficial to the public ; and that counterbalancing benefits which may accrue to the public from that which is found to be a nuisance are immaterial.^ ' Solliday v. Johnson, 38 Penn. St. v. Betts, 16 Q. B. 1022, 1037 ; Reg. u. 380. Randall, 1 Car. & M. 496; Reg. c. 2 6 B. & C. 5m; 9 D. & R. 561. Charlesworth, 10 Q. B. 1012. See, also. Rex v. Grosrenor, 2 Starkie, ° Rex v. Ward, 4 Ad. & EI. 384. 511, 514. 8 Ibid. ; Rex v. Tindall, 6 Ad. & EI. ^Eayley and Holroyd, JJ., Lord 143 ; 3 EI. &B1. 942; Rex k. Morris, IB. Tenterden, C. J., dissenting. & Ad. 441 ; Folkes ,;. Ciiad, 3 Dougl. *Eex V. Ward, 4 Ad..& EI. 384; 340; Reg. v. Betts, 16 Q. B. 1022, Rex V. Morris, 1 B. & Ad. 441 ; Reg. 1037 ; Reg. o. Randall, 1 Car. & M. 178 THE LAW OF WATEKS. [PAET t, § 95. The right of navigation includes the right to anchor as incidental to its beneficial enjoyment ; and a claim by individuals or corporations, founded on royal grant or imme- morial usage, _ for a toll or anchorage on all vessels which anchor in an arm of the sea which is not a port, cannot be maintained.! As against other vessels, but not against the riparian owners,^ it includes the right to moor to wharves and to the shore, and thereby to occupy exclusively, for a reasonable time and in a proper manner, the portion of the channel covered by the vessel.^ Ships may land and remain at the shore during such periods, and at such places as may be reasonably necessary for loading and unloading and await- ing cargoes.* So logs and rafts, floated down a stream, may be moored for a reasonable time to the shore for the purpose .of making up the logs into rafts, or for breaking up the rafts, 'Or to enable the owners to sell them.^ The reasonableness of the time, place, and manner of the mooring under the foregoing rules is a question of fact for the jury,^ and the privilege of stopping upon the water is practically the same 496 ; Attorney General v. Terry, L. R. ^ Gann v. Whitstable Free Fishers, 9 Oh. 423 ; Commonwealth v. Wright, 11 H. L. Cas. 192 ; Foreman o. Whit- 3 Am. Jm-. 186 ; People v. Vanderbilt, stable Free Fishers, L. R. 4 H. L. 26 N. Y. 287, 297 ; Hart v. Albany, 9 266. Wend. 571, 582 ; People v. Horton, 64 '^ Post, § 98. N. Y. 610, 620 ; Respublica v. Cald- ^ Original Hartlepool Co. v. Gibb, well, 1 Dallas, 150; Pennsylvania v. 5 Ch. D. 713; Wyatt v. Thompson, Wheeling Bridge Co., 13 How. 518, 1 Esp. 252; Hayward v. Knapp, 23 577; State v. Kaster, 35 Iowa, 221; Minn. 430; Sherlock y. Bainbridge, 41 Garitee u. Baltimore, 53 Md. 422, Ind. 35; Bainbridge v. Sherlock, 29 430 ; Blanchard v. Moulton, 63 Maine, Ind. 364 ; Baker v. Lewis, 33 Penn. St. • 434 ; People v. St. Louis, 5 Gilman, 301 ; Browne c. Stone, 1 Phila. 241 ; ;351, 372; Works v. Junction Rail- 5 Clark, 75; Gerrish «. Brown, 51 ,road, 5 McLean, 425 ; Thornton i-. Maine, 256, 263 ; Culbertson d. The 'Grant, 10 R. I. 477, 482. But see Southern Belle, 1 Newb. 461; The Mississippi Railroad Co. ^. Ward, 2 Granite State, 3 Wall. 310; Culbert- Black, 485, 494 ; Pilcher v. Hart, 1 son v. Shaw, 18 How. 584. Humph. 524, modified in Gold v. Car- ■* Ibid. :ter, 9 Hurapli. 369 ; Commonwealth v. * Hayward r. Knapp, 23 Minn. 430; Bilderback, 2 Parsons (Pa.), 447; Davis i-. WinsloW, 51 Maine, 264; People V. Horton, 64 N. Y. 610; 5 Weise r. Smith, 3 Oreg. 445; Brown Hun, 516; Delaware Canal Co. v. u. Kentfield, 50 Cal. 129; Dalrymple Lawrence, 2 Hun, 163; 56 N. Y. 612; i-. Mead, 1 Grant Cas. 197. ■ Commonwealth o. May, 3 Am. Jur. ^ Ibid. ; Original Hartlepool Co. v. 190; Commonwealth v. Crowninshield, Gibb, 5 Ch. D. 713, 722. ;2 Dane's Abr. 697. CHAP. IV.] PUBLIC EIGHT OF NAVIGATION. 179 as in the case of a carriage upon a road.^ The owner of floating logs who wishes to direct them into his mill-pond, may use, for that purpose, temporary guide booms which do not unreasonably obstruct the channel ; ^ and, if a booming company encloses part of a floatable stream in a reasonable and prudent manner for its own purposes, the fact that another booming company upon the same stream is thereby inconvenienced, does not make the boom of the first company a public nuisance.^ § 96. All persons have an equal right to the reasonable use of public streams for travel and transportation; and a navigator who, in the proper exercise of this right, tempora- rily obstructs another, does not become guilty of a nuisance or trespass.* The occasional grounding of a vessel or raft is incidental to navigation,^ and if it is driven into a position where it obstructs the channel, other navigators are bound , to submit to a reasonable delay in order that the owner may remove it, before attempting to destroy it as a nuisance.^ The fact that a portion of a vessel in landing at a wharf overlaps in front of an adjoining wharf or clock, thereby rendering access to the latter temporarily inconvenient, does not create any liability if other vessels do not at the time desire to approach the adjoining premises ; and, even if they do, the same rule undoubtedly applies if the first vessel exercises proper skill and despatch, and causes as little in- convenience as possible to others.'' Vessels have also the ' Original Hartlepool Co. v. Gibb, Gerrish v. Brown, 51 Maine, 263 ; 5 Ch. D. 713 ; Sherlock v. Bainbridge, Canfield v. Erie, 27 Mich. 470 ; 1 Mich. 41 Ind. 35 ; Eex v. Cross, 3 Camp. N. P. 105 ; Attorney General v. Erart 224; Cary v. Daniels, 8 Met. 478; Booming Co., 34 Mich. 462. State u. Thompson, 2 Strob. (S. C.) * Colchester i>. Brooke, 7 Q. B. 339 ; 12 ; Sawyer v. Eastern Steamboat Co., The Ellen S. Terry, 7 Ben. 401 ; The 46 Maine, 400 ; People v. Horton, 64 Coleman, 1 Brown Adm. 456 ; The N. Y. 610 ; 5 Hun, 516 ; State v. Hoi- Thomas A. Scott, Id. 503 ; Cummins man, 29 Ark. 58. u. Spruance, 4 Harr. (Del.) 315. ^ Ibid. ; Yeazie v. Dwinel, 50 Maine, " Lallande ' v. The C. D. Jr., Newb. 493. Adm. 501. ' Attorney General v. Evart Boom- ' Original Hartlepool Co. v. Gibb, ing Co., 34 Mich. 462. 5 Ch. D. 713 ; Sherlock v. Bainbridge, * Davis V. "Winslow, 51 Maine, 264 ; 41 Ind. 35 ; Bainbridge, v. Sherlock, Lancey v. Clifford, 54 Maine, 489; 29 Ind. 364; Delaware Eivor Steam- 180 THE LAW OP "WATERS. [PAKT I. right to use a warp in getting in or out of harbor, if they do not interfere with navigation.' They may extend the warp across the entire channel if no otlier vessels are passing; but must take notice of the approach of another vessel, and slacken the warp so as to allow sufficient space for the ap- proaching vessel to pass, and give timely notice of the space so left.- If this notice is disregarded, and injury results, the burden of proof will be upon the latter vessel." Where a collision occurs between a vessel which is stationary or in stays,* and another which is in motion, the presumption of negligence is against the latter.'' This rule of admiralty, which is also applied by the common-law courts,® is a presump- tion of fact which may be rebutted. Want of a proper watch, or neglect to show proper lights or signals at night, especially when lying in a navigable channel, would be sufficient to overcome it,^ if the neglect of such precaution contributed boat Co. V. Burlington Ferry Co., 81 Penn. St. 103. } Potter V. Pettis, 2 R. I. 48,3, 487 ; McCord u. The Tiber, G Biss. 409; Annett v. Foster, 1 Daly, 502; The Maverick, 1 Sprague, 23 ; 5 Law Rep. 100 ; The Hope, 2 W. Rob. 8. ^ Ibid. 3 Ibid. " The Charlotte Roab, 1 Brown Adm. 453. ° The Victoria, 3 W. Rob. 52 ; The Egyptian, 1 Moo. P. C. n. s. 373 ; The Otter, L. R. 4 Adm. 203 ; Cuthbertson 0. Shaw, 18 How. 584 ; Ure v. Coff- man, 19 IIow. 56 ; The Bridgeport, 41 Wall. 116 ; The Granite State, 3 Wall. 310; The Louisiana, 3 Wall. 164; The Bridgeport, 14 Wall. 110; The Clarita, 23 Wall. 1, 14 ; Bill u. Smith, 39 Conn. 206; Baker „•. Lewis, 33 Penn. St. 301 ; Austin v. New Jersey Steamboat Co., 43 N. Y. 75 ; Foster v. Holly, 38 Ala. 76; The Fremont, 3 Sawyer, 571 ; Steamboat United States V. St. Louis, 5 Mo. 230 ; Buzzard v. The Petrel, McLean, 491; The In- diana, Abb. Adm. 330 ; Sterling v. The Jennie Cushman, 3 Clill. C3G ; The Lady Franklin, 2 Lowell, 220; The J. W. Everman, 2 Hugh. 17 ; Hall V. Little, 18 Alb. L. Journal, 151 ; Rep. 577 ; The A. R. Whetmore, 5 Beu. 147 ; The Pennsylvania, 4 Ben. 257 ; Mercer v. The Florida, 3 Hugh. 488 ; The Midas, 6 Ben. 173 ; The Duchess, Id. 48; The Planet, 1 Brown Adm. 124 ; The Masten, Id. 436 ; Jerome v. Floating Dock, Id. 508 ; The MOwau- kee, 2 Biss. 509 ; Amoskeag Manuf. Co. V. The John Adams, 1 Cliff. 404 ; The Bridgeport, 7 Blatch. 361 ; 1 Ben. 05; The Helen R. Cooper, Id. 378; The E. C. Scranton, 2 Ben. 25; The Baltic, Id. 452 ; The Nebraska, Id. 600 ; The Patterson, 3 Ben. 299; The Avid, Id. 434 ; The Leo, Id. 569. When a ship is about to be launched, and the navigation will thereby be obstructed temporarily, reasonable notice must be given to avoid collisions. The Vianna, Swa. Adm. 405. * Bill V. Smith, 30 Conn. 206. ' Sproul !>. Hemingway, 14 Pick. 1 ; Carsley v. White, 21 Pick. 254 ; The Julia, 2 Lush. 231 ; The John Fen- wick, L. R. 3 Ad. & Ec. 500; The Clara, 102 V. S. 200; Arctic Fire Ins. CHAP. IV.] PUBLIC BIGHT OF NAVIGATION. 181 to the injury.!- ^ vessel lying at anchor in a gale, which has the power to avoid a threatened collision, is bound to do so.^ So, the anchoring of a vessel at an unsafe and improper place is a negligent act,^ and if the improper anchorage is the proximate cause of a collision with a vessel in motion, no action, according to the principles of the common law, lies against the latter vessel to recover compensation,* although in admiralty the loss would be divided if both vessels were at fault.^ A vessel which breaks from her moorings, and strikes a seawall or another vessel, is required to show affirm- atively that the drifting was caused by inevitable accident and not by lack of proper precaution." Co. K. Austin, 69 N. Y. 470; White- hall Transportation Co. v. New Jer- sey Steamboat Co., 51 N. Y. 369; Nelson i-. Leland, 22 How. 48 ; Silli- man v. Lewis, 49 N. Y. 379; The Victoria, 3 W. Rob. 52; The City of Baltimore, 5 Ben. 474 ; The Ex- jiress, 1 Blatch. 355 ; Bill v. Smitli, 39 Conn. 206; The City of London, Swa. Adm. 245 ; Browne v. Stone, 1 Phila. 241 ; 5 Clark, 75 ; Baltimore Railroad Co. V. Wheeling Transportation Co., 32 Ohio St. 116; Billings v. Breinig, 45 Mich. 65; The Scioto, Daries, 359; The Saxonia, Lush. Adm. 419; The Industrie, L. R. 3 Adm. & Ec. 308 ; Eathbun c. Payne, 19 Wend. 399; Kennard v. Barton, 25 Maine, 39, 47 ; Union Steamship Co. ;;. Nottinghams, 17 Gratt. 115 ; The Clara, 13 Blatch. 609; The Indiana, Abb. Adm. 330; The Lyon, Sprague, 40 ; Lenox v. Winissimmet Co., Ibid. 160; Cuth- bertson v. Shaw, 18 How. 584 ; Ure v. Coffman, 19 Hjow. 56 ; Sparks v. Sala- din, 6 La. Ann. 764; Beyer v. The Numberg, 3 Hugh. 505. ' Hoffman v. Union Perry Co., 47 N. Y. 176; MeUon v. Smith, 2 E. D. Smith, 462; The Parragut, 10 Wall. 3-34; The Masters, 1 Brown Adm. 342; Meigs v. Steamship Northerner, 1 Wash. Ter. 91. '' The Sapphire, 11 Wall. 164. ' Strout v. Foster, 1 How. 89 ; 17 Pet. 107; The Electra, 6 Ben. 189; The Indiana, Abb. Adm. 330 ; Knowl- ton V. Sanford, 32 Maine, 148. * Vennall v. Garner, 1 Comp. & M. 21 ; Luxford v. Large, 5 Car. & P. 421 ; Dowell V. General Steam Navigation Co., 5 El. & Bk. 195 ; Vanderplank v. Miller, Mood. & M. 169 ; The Marcia Tribon, 2 Sprague, 17 ; The Scioto, 2 Ware, 366 ; Strout v. Foster, 1 How. (U. S.) 89; Atlee u. Packet Co., 21 T/all. 389 ; Lambert v. Staten Island Railrosd Co., 70 N. Y. 104; Arctic Fire Ins. Co. v. Austin, 9 N. Y. 470 ; 3 Hun, 195; The Clarita, 23 Wall. 1, 14 ; Halderman v. Beckwith, 4 Mc- Lean, 296 ; Broadwell v. Swigert, 7 B. Mon. 39 ; Steamboat i;. MoCraw, 26 Ala. 189, 203 ; Adams v. Wiggins Perry Co., 27 Mo. 95. ' Catharine v. Dickinson, 17 How. 170 ; Atlee v. Packet Co., 21 Wall. 389 ; The Morning Light, 2 Wall. 550 ; Union Steamship Co. v. New York Steamship Co., 24 How. 307 ; The Clara, 102 U. S. 200; The Rival, Sprague, 128 ; The Marcia Tribon, 2 Sprague, 17 ; O'Neil v. Sears, Id. 52 ; The Comet, 1 Abb. (U. S.) 451 ; The Nautilus, Ware, 529 ; Vanderplank v. Miller, Mood. & M. 169 ; Simpson v. Hand, 6 Whart. 311; The Atlas, 93 U. S. 302. 8 The Louisiana, 3 Wall. 164 ; The Titan, 8 Ben. 7 ; The Christopher Co- 182 THE LAW OF WATEBS. [PABT I. § 97. The right of moorage cannot be lawfully exercised in such a manner as to create a permanent obstruction to the navigation, even if the obstruction would be in the aid of commerce. A boom which obstructs the use of a river for navigation or floating lumber, or raft of timber moored con- tinually to its shores, is a public nuisance, as limiting the right of navigation ; ^ and, also, a private nuisance, if it causes peculiar injury to a navigator, or deprives the riparian owners of access to their premises.^ Keeping a raft moored for six weeks in one place has been held to be an unreasonable obstruction to the right of passage.' The proprietors of a dock privilege constructed in front of their lots, upon the Hudson River at Albany, a floating storehouse or vessel with a roof and convenient openings for receiving and discharging merchandise. This permanent occupation of a portion of the river was held to be an obstruction to its free and common use, the same as if it were erected in the open channel.'' The same has been held with respect to a disused canal-boat, which, being nearly sunken, was fastened to the shore and rendered the navigation less safe and convenient.^ § 98. The duty of a person, using a navigable river as a highway, to exercise reasonable care and skill to prevent injury to other vessels, continues so long as he retains the management and control of the vessel. If he remains in pos- session, his liability is the ' same whether the vessel is in motion or stationary, floating or aground, under water or lumbus, Ibid. 239; The Petunia, Ibid. Orton v. Harvey, 23 Wis. 99; Hund- 349 ; The Queen of the East, 4 Ben hausen v. Bond, 36 Wis. 29. 103; The Johannes, 10 Blatch. 478; - Harringtoni).Edwards,17Wis.586. The Fremont, 3 Sawyer, 571 ; The " Enos v. Hamilton, 27 Wis. 256; Buckhurst, 30 W. E. 232 ; Love v. 24 Wis. 658. Montgomery, 10 La. Ann. 113. « Hart v. Albany, 9 Wend. 570; ' Moore v. Jaclcson, 2 Abb. (N. C.) 3 Paige, 213; People v. Vauderbilt, 26 211; Lovvber v. Wells, 13 How. Pr. N. Y. 287; 28 N. Y. 396; 38 Barb. 282; 454 ; Commonwealth v. Fleming, Lew- People v. Cunningham, 1 Denio, 524. is's Crim. Law, 534 ; Bigler v. O'Con- But see Pilcher o. Hart, 1 Humph, nor, 32 Leg. Int. 355. So storing 524 ; People v. Horton, 64 N. Y. 610 ; merchandise upon a street or road is 5 Hun, 516. not a lawful use of the public ease- ' McLean t . Mathews, 7 Brad, ment. Coburn v. Ames, 52 Cal. 385; (111.) 509. CHAP, iv.] PUBLIC RIGHT Or NAVIGATION. 183 above it.^ This liability may be transferred with the transfer of the possession and control to another person.^ If an unavoidable accident causes a vessel to sink, the law does not add to the owner's misfortune by requiring him to remove the impediment to navigation which the wreck may create, or to mark its position by a buoy or light.^ If he abandons the vessel, his duty and responsibility cease ; but if he retains the possession and control, he is bound to take proper precautions for the safety of the public* These rules apply also where bridges, dams, or houses, swept away by extraor- dinary floods or by high winds, without negligence on the part of the owners, become obstructions to navigation, or encumber riparian estates.^ In Kentucky, it has been held that the owner of a boat which sinks in a navigable stream between high and low-water mark is liable for any damages thereby caused to the owner of the soil pn which it lies, if he does not remove it within a reasonable time.® Where a rail- • Brown v. Mallett, 5 C. B. 599; White V. Crisp, 10 Excli. 312, 321. '' Ibid. ' Ibid., King v. "Watts, 2 Esp. 675 ; Hancocli: v. York Railway Co., 10 C. B. 348 ; The Swan, 3 Blatch. 285. * Harmond v. Pearson, 1 Camp. 515; White v. Crisp, 10 Exch. 312; Brown v. Mallett, 5 C. B. 599; Boston Steamboat Co. o. Munson, 117 Mass. 34; Taylor v. Atlantic Ins. Co., 37 N. Y. 275 ; 9 Bosw. 369 ; 2 Bosw. 106 ; Sheldon v. Sherman, 42 N. Y. 484; Eads V. Brazelton, 22 Ark. 499 ; Mis- souri River Packet Co. v. Hannibal Railroad Co., 1 McCrary, 281 ; Win- penny i:. Philadelphia, 65 Penn. St. 135 ; Eads v. Brazelton, 22 Ark. 499. ' Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle, 9, 24 ; Forster v. Juni- ata Bridge Co., 16 Penn. St. 393; Livezey v. Philadelphia, 64 Penn. St. 106; Roush i,. Walter, 10 Watts, 86; Winpenny v. Philadelphia, 65 Penn. St. 135 ; Withers v. North Kent Rail- way Co., 3 H. & M. 969. A bridge or way is negligently constructed if built of earth in the channel of a stream. where it may be swept away by floods. Kansas Pacific Railway Co. v. Miller, 2 Col. 442 ; Kansas Pacific Railway Co. V. Lundin, 3 Col. 94. It seems to be doubtful whether at common law it was the duty of cities and towns to keep their ports free from obstruc- tions. See Hale, De Portibus Maris, c. 7 ; 1 Hawk. P. C. c. 32, § 13 ; Col- chester V. Brooke, 7 Q. B. 339 ; Wil- liams V. Wilcox, 8 Ad. & El. 314. In Winpenny v. Philadelphia, 65 Penn. St. 135, 140, Agnew, J., said : " The general understanding in this country is that the clearing out of streams and removing obstructions to navigation belong to the State or the United States, according to the character of the stream, as confined within State limits or as extending beyond, and necessary to inter-state commerce. Yet it is not a duty of perfect obliga- tion, but one of voluntary assumption or imperfect obligation, inasmuch as it cannot be enforced against the will of the State." See ante, § 90. ^ Morrison v. Thurman, 17 B. Mon. 267. 184 THE LAW OF AVATERS. [PAKT I. road company employed a contractor to build a bridge, and for that purpose to drive piles in a river, and, the contract being abandoned, the piles were left in the river in a condi- tion dangerous to vessels, the company was held responsible for injuries to a vessel which struck thereon, although the vessel was prosecuting her voyage on Sunda3^l Where, how- ever, piles were left by the defendants in a navigable river in such condition that a vessel could not be injured by them without gross negligence, and, being then sold and cut off by the buyer even with the bottom of the river, they afterwards protruded above the bed in consequence of a washing away of the soil and injured a vessel, the defendants were held not liable. ^ § 99. The early authorities were to the effect that, under the law of England, as by the civil law prevailing upon the continent of Europe and in Louisiana, the right of naviga- tion includes the right to use the shores or banks of navi- gable waters for the purpose of fastening vessels, and for towing barges, to whomsoever the soil belongs ; and that, if the water of the river impairs the banks, the public have a right of way for the purpose of towing in the nearest part of the fields next adjoining to the river.^ But, in the case of Ball V. Herbert,* it was held that the right of towage de- pends upon usage or statute, and that there was no general right to use the banks of English rivers for this purpose. This decision determined the rule of the common law, by which, as now established, the right of navigation ceases at the high-water mark of tide waters, and at the water's edge ' Pliiladelphia Railroad Co. v. Phil- Callis on Sewers, IZ; CarroUton Eail- adelphia Towboat Co., 23 How. 209. road Co. v. Winthrop, 5 La. Ann. 36 ; 2 Bartlett v. Baker, 3 H. & C. 153. Municipality No. 2 u. Orleans Cotton ^ Young 0. , 1 Ld. Eaym. Press, 18 La. 122 ; Natchitoches u. 725 ; Queen v. Cluworth, 6 Mod. 163; Coe, 3 Martin n. s. 140 ; New Orleans Pierse v. Fauconberg, 1 Burr. 292 ; o. Neiv Orleans Railroad Co., 27 La. Bracton, lib. 1, c. 12, fol. 6 ; Just. Inst. Ann. 414 ; Pulley v. Municipality No. lib. 2, tit. 1, fol. 4 ; Cooper's Justinian, 2, 2 La. 278 ; Hanson i;. Lafayette, lib. 2, tit. 1 ; Civil Code of La. art. 18 La. 295 ; McKeen o. Kurfurt, 10 443, 1446 ; 3 Com. Dig. tit. Chimin, La. Ann. 523. D. 4 ; Hale, De Portibus Maris, c. 7 ; * 3 T. R. 253. Hargrave's Law Tracts, 79, 85, 86; CHAP. IV.] PUBLIC EIGHT OF NAVIGATION. 185 in the case of navigable fresh waters.^ The public liaA'^e, therefore, as against the riparian owners, and as incident to the right of navigation, no common-law right to use the lands adjoining a river above high-water mark for the pur- pose of landing and embarkation, or of mooring.^ Proof of necessity or danger would not apparently free the naviga- tor from liability for appreciable damage thus caused to a riparian proprietor.^ Those who travel upon the banks of streams for the purpose of propelling their logs are liable in trespass to the owner of the banks,* and he may require from navigators such price as he chooses for the use of the shore in loading and unloading vessels, if he gives notice of the charge before his property is so used.^ § 100. It was early laid down that fishermen may go on land adjoining the sea to fish, that being for the common ' Ball V. Herbert, 3 T. R. 253; Wil- liams v. Wilcox, 8 Ad. & El. 314; Blun- clell V. Catterall, 5 B. & Aid. 263 ; Gray ! . Bond, 2 Brod. & Biiig. 667 ; Brown !-. Chadbourne, 31 Maine, 9, 25 ; Treat 1-. Lord, 42 Maine, 552, 564 ; Hooper u. Hobson, 57 Maine, 273, 276; Led- yard v. Ten Eyck, 36 Barb. 102, 127 ; Lorman v. Benson, 8 Mich. 18, 27 ; Eeimold v. Moore, 2 Brown (Mich.) 15; Ensminger v. People, 47 111. 384, and Chicago i.. Laflin, 49 111. 172, (overruling, apparently, the dicta in Middleto^ v. Pritchard, 3 Scam. 510, 521, 522). Chambers v. Furry, 1 Yeates, 167; Bird v. Smith, 8 Watts, 434; Ball V. Slack, 2 Whart. 530 ; Morgan V. Reading, 3 S. & M. 366 ; The Mag- nolia i: Marshall, 39 Miss. 109, 131 ; Bell v. Gough, 23 N. J. L. 624, 677 ; Bainbridge u. Sherlock, 29 Ind. 364; Sherlock v. Bainbridge, 41 Ind. 35; Talbot r. Grace, 30 Ind. 389; Bietel .-. Polk, 5 Harr. (Del.) 325. Geo Greenwich Board of Works v. Maudslay, L. R. 5 Q. B. 397. In O'Fal- lon I'. Daggett, 4 Mo. 342, in which the effect of an early grant from the king of Spain was discussed, the banks of navigable rivers were held to be public highways, upon the au- thority of writers upon the civil law. See, also, Memphis v. Overton, 3 Yer- ger, 387; Benson v. Morrow, 61 Mo. 345; Lewis v. Keeling, 1 Jones (N. C.) 299; Dalrymple v. Mead, 1 Grant's Cas. (Penn.) 197. " Ibid. ; Ensminger ? . People, 47 111. 384; Stewart v. Pitch, 2 Vroom, 17, 20. ^ Hale, De Portibus Maris, c. 3 ; Hargrave's Law Tracts, 51 ; Blundell V. Catterall, 2 B. & Aid. 268 ; Wyatt v. Thompson, 1 Esp. 252 ; Morrison ;;. Thurman, 17 B. Mon. 249, 257 ; 14 Ibid. 367; Morgan v. Reading, 3 S. & M. 366, 407 ; The Magnolia v. Mar- shall, 39 Miss. 109, 132 ; Bell v. Gough, 23 N. J. L. 624, 677 ; Weise v. Smith, 3 Oreg. 445; Bainbridge v. Sherlock, 29 Ind. 364; Sherlock v. Bainbridge, 41 Ind. 35. See Gunning on Tolls, 126. * Hooper v. Hobson, 57 Maine, 273. See Weise v. Smith, 3 Oreg. 445. ^ Steamer Magnolia v. Marshall, 39 Miss. 109; Morgan u. Reading, 3 S. &. M. 366; Commissioners v. With- ers, 29 Miss. 21. 186 THE LAW OF WATEES. [PAET I. good, tliougli they cannot justify digging there for the pur- pose of fixing stakes upon which to dry their nets ; ^ but it is now settled that the, public right , of fishery affords no justi- fication for any act committed upon the dry land, in the absence of a prescriptive right.^ A littoral proprietor has the exclusive right to draw a boat or seine on his own land,^ to erect fishing huts there,^ or to fix stakes in his own flats below the high-water mark of tide waters for the purpose of spreading a seine.^ If the proprietor of land on which a seine reel is placed, without his license, cuts it down and thrusts it toward the water, after notice to remove it, and neglect to do so, he is not liable if the reel floats away, although he might have prevented it.'' The right to draw a seine upon the land of another person is an easement, and when acquired by prescription, its extent is commensurate with, and is determined by the previous user.' § 101. If the public acquire the right to use a river bank as a towing path by grant, user, or dedication, the title to the bank remains prima facie vested in the original owners, subject to the public right to use it as a highway in this par- ticular manner.^ The banks of a navigable stream may be ' Brooke's Abr. tit. Custom, pi. 46 ; 37 Conn. 136 ; Locke v. Motley, 2 Fitz. Barre, 93. Gray, 265. A person who clears out ' Gray i;. Bond, 2 Brod. & Bing. a fishing place in a river acquires 667; Holroyd, J., in Blundell v. Cat- thereby no exclusive right of fishery, terall, 5 B. & Aid. 268 ; Coolidge v. Westfall v. Van Anker, 12 Johns. Williams, 4 Mass. 140 ; Hart ;;. Hill, 425 ; Freary v. Cooke, 14 JIass. 488. 1 Whart. 138 ; Shrunk ;•. Schuylkill See Pitkin v. Olmstead, 1 Koot, 219 ; Nav. Co., 14 Serg. & R. 71 ; Cortelyou Munson v. Baldwin, 7 Conn. 171. But 11. VanBrundt, 2 Johns. 357 ; Jacobson a fishing place maybe granted sepa- V. Fountain, 2 Johns. 170 ; Whittaker rate from the soil. Tinicum Fishing V. Burhaus, 62 Barb. 237 ; Brink o. Co. v. Carter, 61 Penn. St. 21. Ritchmyer, 14 Johns. 255 ; Lay v. * Ibid. King, 5 Day, 72 ; Sheppard's Epitome, " * Locke v. Motley, 2 Gray, 265 ; tit. Custom & Prescription, p. 392 ; Duncap v. Sylvester, 24 Maine, 482 ; Woolrych on Waters, 138 ; Hale, De Whitaker v. Burhaus, 62 Barb. 237 ; Jure Maris, c. 6; Hargrave's Law 65 N. V. 559; 2 Dane Abr. 692. Tracts, p. 86 ; 2 Dane's Abr. 702, 707 ; « Almy r. Grinnel, 12 Met. 53. Duncan v. Sylvester, 24 Maine, 482. ' Hart v. Hill, 1 Whart. 138; Bald. 3 Ibid. ; Skinner !•. Hettrick, 73 N. Ct. Dig, 339, pi. 12, 13. C. 53 ; Hettrick v. Skinner, 82 N. C. » Winch v. Conservators of the ' 05, 68 ; Bradley Fish Co. ,. Dudley, River Thames, L. R. 7 C. P. 471 ; L. CHAP. IV.] PUBLIC EIGHT OF NAVIGATION. 187 appropriated by statute to the use of the public as a towing path.i In such case, also, the riparian proprietors retain the ownership of the soil subject to the public easement, unless the language of the statute shows an intention to take the fee for the purpose of the act ; ^ the rule being that, in the absence of express words, the courts do not infer that a statute of this kind gives to the public, or to a board of con- servators, or navigation companies, acting in the public interest, a greater interest in the soil than is necessary for the purposes of the navigation.^ § 102. The only instance in which the common law recog- nizes the right of the public to enter upon the land of a riparian owner above high-water mark, in connection with the right of navigation, appears to be for the purpose of re- claiming stranded property which may have been washed ashore without fault on the part of its owner.^ In Maine K. 9 C. P. 378 ; Rex v. Seyern Naviga- tion Co., 2 B. & A. G46 ; Hollis v. Gold- finch, 1 B. & C. 205; Lee Conserv- ancy Board v. Button, 12 Ch. D. 383. ' Winch c. Conservators of the Pdver Thames, L. R. 7 C. P. 471 ; Lee Conservancy Board v. Button, 12 Ch. D. 383. ■^ Ibid.; Carpenter v. State, 12 Ohio St. 457 ; Indiana Central Canal Co. v. State, G3.Ind. 575. A canal and its towing paths, which are directed by statute to be kept in repair for the use of the public, are highways. Bos- ley V. Susquehanna Canal, 3 Bland, G3. ^Badger r. South Yorkshire Rail- way Co., 1 El. & El. 346, 359, 368; Keg. V. Archbishop of York, 14 Q. B. 81; Hollis V. Goldfinch, 1 B. & C.205; Bruce v. Willis, 11 A. & E. 463 ; Lee Conservancy Board v. Button, 12 Ch. B. 383; Monmouthshire Canal Co. v. Hill, 4 II. & N. 421 ; Kinlock u. Ne- ville, 6 M. & W. 705; Newcastle v. Clarke, 2 B. Moore, 666 ; Buckeridge !■. Ingram, 2 Ves. Jr. 652 ; Stanley v. ATliite, 14 East, 332 ; New Shoreham Harbor Commissioners l. Lansing, L. E. 5 Q. B. 489; Rex v. Mersey Navigation, 9 B. & C. 95 ; Rex v. Thomas, Ibid. 114 ; Rex v. Aire Navi- gation, Ibid. 820; 3 B. & Ad. 139; Cory „•. Bristow, 2 App. Cas. 262; Simpson v. Staffordshire AVater Co., 4 De G. J. & S. 079 ; Somerset Canal V. Harcourt, 2 Do G. & J. 596 ; Chel- sea Water Co. ;;. Bowley, 17 Q. B. 358; Patrick d. Beaufort, 6 Exch. 498 ; Robins v. Warwick, 2 Bing. (N. C.) 483 ; Harborough v. Shadlow, 7 M. & W. 37 ; Dimes u. Grand Junction Canal, 3 H. L. Cas. 794. A person who, being seized of land, conveys to a canal company "such portion and quantity of his land as may be covered, used, or occupied by the said canal, or the necessary works thereof," and de- scribes the premises conveyed, does not surrender the privilege of using public highways passing through the granted premises. Leopold u. Chesa- peake Canal Co., 1 Gill, 222; Carpen- ter V. State, 12 Ohio- St. 457. ' Carter i.. Thurston, 58 N. H. 104, 107 ; Hoit V. Stratton Mills, 54 N. H. 109, 116; Aldrich r. Wright, 53 N. H. 188 THE LAW OF WATERS. [PAET I. the right to reclaim stranded logs is expressly recognized by a statute which requires payment or tender of compensation for damages.^ The common-law rule is that a person whose property is carried, by flood or inevitable accident, upon another's land, and who elects to reclaim and not abandon it, becomes responsible, immediately upon its removal, for the damage done by the property upon such land ; and the law implies, in such case, a promise of compensation, upon which, in the absence of an express promise, an action may be maintained.^ In case a bridge is carried away and the materials do injury upon another's land, the owner would doubtless be liable if the bridge was negligently constructed.^ § 103. A corporation which is authorized by statute to construct booms upon a river for the purpose of holdiag and storing logs, acquires thereby no right to appropriate and use the banks, except by the consent of the owners, or in the exercise of the power of eminent domain.* This property cannot be taken for a purely private purpose ; and the fact that booming companies and companies for the im- provement of the navigation are quasi public corporations, and hold their franchises for a public use,^ does not give them .398 ; Brown v. Collins, Ibid. 442, 449 ; St. 106. The carrying away, by flood, Thompson v. Androscoggin Co., 54 N. of a bridge not part of the demised '11. 54j3, 558; Eaton v. B. C. & M. premises, whereby their- value is di- Railroad Co., 51 X. H. 504, 530; Brown minished, is no ground for an abate- V. Chadbourno, 31 Maine 9, 24; Treat ment of the rent. Smith w.-Ankrim, V. Lord, 42 Maine, 552 ; Colchester v. 13 S. & R. 391. Brooke, 7 Q. B. 339 ; Rogers v. Judd, , ■* Cohn v. "Wausau Boom Co., 47 5 Vt. 223 ; Porster v. Juniata Bridge Wis. 314 ; Carpenter v. State, 12 Ohio Co., 16 Penn. St. 393. If the logs or St. 457. If a public road, which has timber of different owners, floated into been legally established along the a river, become so mixed that the banks of a river by condemnation of property of each cannot be identified, the land of an individual proprietor, tliey become tenants in common, is washed siv/ay by a flood, there is no Moore i:. Erie Railway Co., 7 Lans. 39. riglit of necessity to use the adjoining 1 Rev. Stats, of Maine (1857), c. 42, land for the highway without a new § 8; Rev. Stats. (1871), c. 42, §§ 7, 8; condemnation and compensation for Hooper u. Hobson, 57* Maine, 276 ; the same. Commonwealth v. Beeson, Brown i>. Chadbourne, 31 Maine, 9; 3 Leigh, 281. They may, however^ Treat ;•. Lord, 42 Maine, 652. use such land temporarily for the pur. ' Ibid. ; Sheldon u. Sherman, 42 N. pose of passage. Ball v. Herbert, 3 Y. 484. T. R. 253, 263 ; ante, § 99. ' Livezey v. Philadelphia, 64 Penn. * Attorney General v. Railroad Co., CHAP. IV.] PUBLIC EIGHT OP NAVIGATION. 189 the privileges of a riparian owner, or enable them, by legisla- tive authority, to devote the river banks to the purposes of their charter, without compensation to the riparian owners.' Compensation is also necessary where the banks are flooded by public improvements, ^ or by dams erected for the collec- tion and storage of logs, or by a collection of logs in great numbers ;^ where the value of the banks for boom purposes is injured by dams erected under legislative authority for supplying a city with water ;* and where a landing and build- ings used in connection with a fishery are destroyed by the construction of a railroad.^ The liberty of a ferry is limited by high-water mark upon either shore ; ^ and it has been held that such a franchise, conferred by the legislature, carries with it no right, without the riparian owner's consent, or the payment of compensation, to use the land adjoining the river above high-water mark as a landing, even though such land is already subject to an easement in favor of the public for the purpose of a highway.''' But if a highway extends to 35 Wis. 425 ; Wisconsin Railroad Co. V. Manson, 43 Wis. 255 ; Delaphine v. Railroad Co., 42 Wis. 214; Stevens Point Boom Co. u. Reilly,46 Wis. 237 ; 44 Wis. 295 ; Denniston r. Unknown Owners, 29 Wis. 351 ; Pound v. Turck, 95 U. S. 459 ; Grand Rapids Booming Co. u. Jarvis, 30 Micli. 308 ; Lawler v. Boom Co., 56 Maine, 443; Perry v. Wilson, 7 Mass. 393; Ten Eyck v. Delaware Canal Co., 18 N. J. Eq. 200, 204; Sinnickson o. Johnson, 2 Har. (N. J.) 129, 152; Brady's Appeal, 26 Md. 290 ; Texas Navigation Co. v. Galveston Co., 45 Texas, 274. ' Ibid, ; Schoff v. Upper Connecticut Uivor Co., 57 N. H. 110 ; Cohn v. Wau- sau Boom Co., 47 Wis. 314 ; Stevens I'oint Boom Co. v. Reilly, 44 Wis. 295 ; 40 Wis. 237; Keimold v. Moore, 2 Brown (Mich.) 15; Hargrave's Law Tracts, 79 ; Bath River Navigation Co. V. Willis, 2 Railway & Canal Cases, 7 ; Clay V. Pennoycr Creek Improvement Co., 34 Mich. 204; Hooker v. New Haven Co., 15 Conn. 321 ; Mononga- hola Navigation Co. v. Coons, 6 Penn. St. 079. A state may authorize a corporation to take the fee of pri- vate property for the purpose of con- structing a boom. Patterson v. Mis- sissippi Boom Co., 3 Dillon, 465. " Harper v. Milwaukee, 30 Wis. 365 ; Arimond v. Green Bay Canal Co., 31 Wis. 316; 35 Wis. 41; Cobb v. Smith, 23 Wis. 261 ; 38 Wis. 21; Sheboygan V. Sheboygan Railroad Co., 2| Wis. 667. ' Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308 ; Thunder Bay River Booming Co. u. Speechly, 31 Mich. 336. If the dam of a naviga- tion company chartered by the State raises the water at a ford so as to render it unfordable, the right to use the ford is merely suspended, and is restored upon the destruction of the dam. Crump v. Mims, 64 N. C. 707 ; Bisher v. Richards, 9 Ohio, 495. * Barrett v. Bangor, 70 Maine, 335. ^ Alexandria Railway Co. i . Fauncc, 31 Gratt. 701. » State V. Wilson, 42 Maine, 9 ; French v. Camp, 18 Maine, 433. ' Prosscr v. Wapello County, 18 190 THE LAW OF WATERS. [part 1. navigable waters, the better doctrine would seem to be that the riparian owner has no exclusive right of landing.^ § 104. The right of towage along the banks of navigable rivers resembles the right of passage upon a highway. It may be acquired by the public by custom or prescription ; 2 and Lord Kenyon suggests that small evidence of usage would be sufficient before a jur}'^ to establish the right by custom, upon grounds of public convenience.^ Analogous to this is the right of Avay to navigable waters from lands lying inward. Tide waters are common property with re- spect to navigation and fishing, but the public have no gen- eral right of access to them over private lands.^ This privi- lege cannot be claimed as a right of necessity,^ but depends, as in the case of highways generally, upon statute, or upon grant, dedication, or prescription.'' It is competent for the legislature to take x^rivate property for public use as a wharf, landing place, or ferry landing;' and to authorize a town to Iowa, 327 ; Prosser v. Bavis, Ibid. 367 ; Cooper V. Smith, 9 Serg. & R. 26; Chambers v. Furry, 1 Yeates, 16 ; Chess V. Manown, 3 Watts, 219 ; Bird V. Smith, 8 Watts, 434; Pipkin u. Wynns, 2 Dev. (N. C.) 402. See Mem- phis V. Overton, 3 Yerger, 387, 390 ; Levisay v. Delp, 9 Baxter, 415. ' Fowler v. Mott, 19 Barb. 204 ; Burrows v. Gallup, 32 Conn. 499; Church V. Meeker, 34 Conn. 429 ; Som- erville v. Wimbisli, 7 Gratt. 205 ; Peter V. Kendal, 3 B. & C. 703 ; Kewton ;•. Cubitt, 12 C. B. N. s. 32; Gant ;•. Drew, 1 Oreg. 35; Mills v. Learn, 2 Id. 215 ; Mills v. Commissioners, 3 Scam. 53 ; Patrick v. Ruffner, 2 Rob. 209; 3 Kent Com. 421; Walker v. Armstrong, 2 Kansas, 198; N. Y. ;■. N. Y. Ferry Co., 40 N. Y. Sup. Ct. 232, 246. " Ball u. Herbert, 3 T. R. 253; Kinlock u. Neville, 6 M. & W. 794 ; Badger v. South Yorkshire Railway Co., 1 El. & El. 347 ; Monmouth Ca- nal Co. u. Hill, 4 H. & N. 427 ; HoUis V. Goldfinch, 1 B. & C. 205 ; 1 Burr. 292 ; Harrington . Mo tt. Stetson, 8 Maine, 365. But a horse 10 Barb. 204 ; Etz „. Daily, 20 Barb. ferry is not of such public interest 32 ; Kelsey v. King, 33 How. Pr. 39 ; as to justify taldng private property 1 N. Y. Trans. App. 133. for its establishment. Day v. Stet- * 30 Ind. 380. son, 8 Maine, 365. ^ 20 Wend. Ill ; 22 Wend. 425. ^ Memphis v. Wright, 6 Yerger, " Kean v. Stetson, 5 Pick. 492 ; 497. Coolidge v. Learned, 8 Pick. 504 ; ' Kean v. Stetson, 5 Pick. 492, 405. Green v. Chelsea, 24 Pick. 80 ; Boston = 20 Wend. Ill; 22 Wend. 425; w. Richardson, 105 Mass. 351, 357. In Pearsall v. Hewlett, 20 Wend. Ill ; North Carolina the use of a landing 22 Wend. 559. See also Cortelyou ;;. by the public for twenty years as of Van Brundt, 2 Johns. 357 ; Hunter v. right affords ground for a presump- Sandy Hill, 6 Hill, 407, 411 ; Cady v. tion of dedication to the public use. Conger, 19 N. Y. 256 ; Blodmtield Gas Askew v. Wynne, 7 Jones, 22. See, Light Co. y. Calkins, 62 N. Y. 386 ; also, Hardy v. Memphis, 10 Heisk. 127 ; Munson ;;. Hungerford, 6 Barb. 265 ; Barney r. Baltimore, 1 Hughes, 118. 192 THE LAW OF WATERS. [part I. recognized in Maine.i But in the latter State a general right to use the river banks as a place of deposit cannot now be acquired by custom ; ^ and a landing, even for the purpose of direct transit, is held to be more than a highway.^ In Minne- sota* and Wisconsin^ the doctrine that land cannot be dedi- cated by parol as a landing has been disapproved ; and in Iowa 6 and Kentucky' it has been held that land dedicated to the public use as a street or common may be used for the purposes of a wharf. In Godfrey v. Alton,® the Supreme Court of Illinois held that a parol dedication of land is not within the Statute of Frauds, and that, if the owner of the land makes a survey and lays it off by plat for public use as a landing, and makes sales in reference thereto, such acts amount to a dedication, although there are no declarations, either oral or on the plat, showing that a dedication was in- ' Sevey's Case, 6 Maine, 118. ' Littlefield v. Maxwell, 31 Maine, 134 ; Bethum v. Turner, 1 Maine, 111; Moor v. Lang, 42 Maine, 29; State V. Wilson, 42 Maine, 9; Hill u. Lord, 48 Maine, 83, 100; Stetson v. Bangor, GO Maine, 313. ' Iljid. ; State v. Wilson, 42 Maine, 9. See Hasty v. Johnson, 3 Maine, 282 ; Thompson v. Androscoggin Bridge, 5 Maine, 62; Kaler t-. Bea- man, 49 Maine, 207. The grant of a saw-mill, " with a convenient privilege to pile logs, boards, and other lumber," conveys only an easement in the land used for piling. Thompson v. Proprie- tors, 5 Maine, 62. " Manicato v. Willard, 13 Minn. 13 ; Brisbine v. St. Paul Railroad Co., 23 Minn. 114. 5 Gardiner v. Tisdale, 2 Wis. 153 ; Connehan u. Ford, 9 Wis. 240. See, also. Bird a. Smith, 8 Watts, 4.34; Chambers v. Furry, 1 Yeates, 167. " Haight V. Keokuk, 4 Iowa, 199, 214 ; Grant i.. Davenport, 18 Iowa, 179 ; Cowles v. Gray, 14 Iowa, 1. See Bingham v. Doane, 9 Ohio, 165 ; State V. Graham, 15 Rich. (S. C.) 310; Sloane v. McConahy, 4 Ohio, 157, and note ; Price t>. Metliodist Episco- pal Church, Id. 516 ; Cincinnati v. 1st Presbyterian Church, 8 Ohio, 298; Cincinnati (•. Hamilton Co., 7 Ohio, 88 ; Commonwealth t. Philadelphia, 16 Penn. St. 79 ; State u. RandaU, 1 Strob. (S. C.) 110. As to the mean- ing of the words " reserved landing " upon a recorded plat, see above cases of Grant v. Davenport and Cowles v. Gray. See, also, Emmons u. Milwau- kee, 32 Wis. 434 ; Dietrich u. North- western Union Railway Co., 42 Wis. 248; Cook v. Burlington, 30 Iowa, 94 ; 36 Ibid. 357 ; Mankato v. Meagher, 17 Minn. 265 ; Arnold v. Elmore, 16 Wis. 509 ; Yates v. Judd, 18 Wis. 118. ' Newport v. Taylor, 16 B. Mon. 699, 804; Rowan r. Portland, 8 B. Mon. 236 ; Louisville v. Bank of the United States, 3 B. Mon. 1-38. 8 Godfrey v. Alton, 12 111. 30; Alton V. Illii)ois Transportation Co., Ibid. 38 ; Field u. Carr, 59 111. 198, 200 ; First Evangelical Church i;. Walsh, 57 111. 363, 369 ; Smith v. Flora, 64 111. 93 ; Mclntire v. Storey, 80 111. 127, 130 ; Warren v. Jacksonville, 15 111. 236 ; Waugh v. Leech, 28 111. 483, 491 ; Rees v. Chicago, 38 111. 322. See Newport v. Taylor, 16 B. Mon. 699, 803 ; Rowan v. Portland, 8 B. Mon. 232. CHAP. IV. j PUBLIC EIGHT OF NAVIGATION. 193 tended. The result of the authorities seems to be that a dedication of land adjoining a river for the purpose of public passage to and from the water, with perhaps the incidental right of temporary deposit,' or a claim of prescriptive user, for the purpose of landing and embarkation, is valid ; but that the right to encumber the land with lumber, merchandise, and the like, to a greater extent or for a longer time than would be permissible in a highway,^ is neither within the purpose of the dedication nor valid as a custom.^ § 106. When a way in a city extends to navigable waters, and is dedicated to the public use as a street, it carries with it, by necessary implication, the right of the city to extend it into the water by the construction of a wharf at the end thereof.* Evidence that land has been used as a landing place by the inhabitants of the town in which it is situated, and, also, by those of other towns, is sufficient to establish a right in all the inhabitants of the State.^ But evidence of user by the individual inhabitants of a town does not tend to show a possession by the town in its corporate capacity." When a ' See Gardiner v. Tisdale, 2 Wis. Dedication may be presumed cvchr 153, 191 ; Knowles v. Dow, 22 Is. H. against the sovereign. Day v. AUen- 387. der, 22 Md. 511. In conveyances * See People r. Cunningham, 1 between individuals, a deed of a mill, Denio, 524; Gerrish c. Brown, 51 dam, and falls, "and a right to the- Maine, 256, 263 ; Graves v. Shattuck, road and landing, to land logs, as has 36 N. H. 257. been customary," conveys only an. ^ See authorities above cited. Also, easement in the road and landing. Penny Pot Landing, 16 Penn. St. 79 ; Hasty v. Johnson, .3 Maine, 282. And : CarroUton Eailroad Co. v. Winthrop, the grant of a saw-mill " with a con- 5 La. Ann. 38. As to the reservation venient privilege to pile logs, boards, and dedication of landings by the gov- and other lumber," conveys only an ernment, or by cities, see Cincinnati i\ easement in the land used for piling. White, 6 Peters, 431 ; Barclay i; Thompson v. Androscoggin Bridge, 5 Howell, Ibid. 498 ; Irwin v. Dixion, 9 Maine, 62. How. 10; New Orleans v. United * McMurray v. Baltimore, 54 Md. States, 10 Peters, 662; Cook ;>. 103 ; Barney r. Keokuk, 94, U. S. 324; Burlington, 30 Iowa, 94 ; 36 lb. 357 ; Haight v. Keokuk, 4 Iowa, 199 ; Bow- Walker V. Columbus, 4 B. Mon. 259, man v. Portland, 8 B. Mon. 253; New- 260 ; Alves v. Henderson, 16 B. Mon. port v. Taylor, 16 B. Mon. 700 ; Bar- 131 ; Burr !>. Dana, 22 Cal. 11 ; Blanc ney v. Baltimore, 1 Hughes, 118. V. Bowman, 22 Cal. 2.3 ; San Francisco * Coolidge v. Learnad, 8 Pick. 504 V. Calderwood, 31 Cal. 385; Scher- « Green r. Clielsea, 24. Pick. 71; merhorn v. New York, 3 Edw. Ch. 119. Hill v. Lord, 48 Maine^ 8-3,, 97. 194 THE LAW OF WATERS. [PART I. public landing place is once established, it maj' be discontinued by the legislature, but not by a town,' or by county commis- sioners.^ Commissioners of highways, having authority to regulate public landings and watering-places, have no power to lay out a new landing place.-' § 107. A stream is a public highway wherever it is suit- able in its natural condition for general use in travel or in the transportation of property. Lord Hale says that the right of navigation extends to rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges, boats, or lighters.* He does not refer to it as extending to streams which are navigable during a part of the year, or to those which, being unnavigable for boats at ordinary Avater, are useful, either at all seasons or in times of freshets, for floating rafts and logs to market. In this country, where this question is more important than in England, notwithstanding the conflict respecting the title to large fresh-water rivers, the authorities agree that streams which in their natural condition are only useful for rafting purposes during the whole or a part of each year, are highways for that purpose, and that the title of the riparian owners ^ to the beds of such streams is subject to this right of passage. § 108. Streams which are not floatable, or cannot, in their natural state, be used for the carriage of boats, rafts, or other property, are absolutely private,^ and if the stream is so small .and shallow that logs cannot be driven in them without trav- ' Commonwealth v. Tucker, 2 Pick, v Chadbourne, 31 Maine, 9 ; Treat v. 44 ; Kean v. Stetson, 5 Pick. 492, 495. Lord, 42 Maine, 552 ; Knox v. Clialo- ^ Bennett v. Clemence, 6 Allen, 10. ner. Ibid. 150 ; Brown v. Black, 43 ^ Commissioners v. Queen's Coun- Maine, 448 ; Dwinel v. Veazie, 44 .ty, 17 Wend. 9. Maine, 167 ; Veazie „. Dwinel, 50 * Hale, De Jure Maris, c. 2, 3 ; Har- Maine, 479 ; Gerrish v. Brown, 51 . grave's Law Tracts, 8, 9. Maine, 256 ; Davis v. Winslow, Ibid. * Post, § 110. 264 ; Lancey v. Clifeord, 54 Maine, « Berry u. Carle, 3 Maine, 269; 487; Holden v. Robinson Co., 65 Spring V. Russell, 7 Maine, 273 ; Wads- Maine, 215 ; Lawler v. Baring Boom worth V. Smith, 11 Maine, 278; Dwi- Co., 56 Maine, 443; Hooper u. Hob- .nel V. Barnard, 28 Maine, 554; Brown son, 57 Maine, 278. CHAP. IV.J PUBLIC EIGHT OF NAVIGATION. 19.5 el lino: npon the banks, it is not open to the public for passage.' It is not necessary that the stream, in order to be a highway, should be capable of floating logs at all seasons of the year, but its public character depends upon its fitness to answer the wants of those whose business requires its use.^ The fact that the banks are commonly used for the purpose of towing or propelling what is floating, is evidence merely of want of capacity for public use.^ The test is the natural capacity of the stream, and the fact that those who drive logs trespass on the adjoining lands, or at times find it neces- sary or convenient to do so, does not deprive the stream of the public character which it may otherwise possess.* Sub- ' Brown o. Chadbourne, 31 Maine, 9; Treat v. Lord, 42 Maine, 552; Hooper v. Hobson, 57 Maine, 273 ; Morrison u. Buclcsport Railroad Co., 67 Maine, 353 ; Olson v. Merrill, 42 "Wis. 203; Morgan v. King, 35 N. Y. 454 ; 18 Barb. 277 ; 30 Barb. 9 ; Mun- son V. Hungerford, 6 Barb. 265 ; Cur- tis V. Keesler, 14 Barb. 511 ; Shaw i/. Crawford, 10 Johns. 236; Varick o. Smith, 9 Paige, 547 ; Browne v. Scho- field, 8 Barb. 239; Palmer v. Mulli- gan, 3 Caines, 307 ; Ex parte Jennings, 6 Cowen, 518 ; Pierrepont v. Loveless, 72 S. Y. 211, 210; Slater v. Fox, 5 Hun, 544; Moore v. Sanborne, 2 Mich. 519; Lorman o. Benson, 8 Mich. 18; Ryan v. Brown, 18 Mich. 196 ; Middle- ton V. Flat River Booming Co., 27 Mich. 533 ; Brig City of Erie v. Can- field, 27 Mich. 479; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308 ; Thunder Bay River Booming Co. u. Speechly, 31 Mich. 336, 345; Attor- ney General v. Evart Booming Co., 34 Mich. 462 ; Wood v. Rice, 24 Mich. 423; Scott v. Willson, 3 N. H. 321; Barron u. Davis, 4 N. H. 338; State V. Gilmanton, 14 N. H. 467, 479; Thompson u. Androscqggin Co., 54 N. H. 545; 58 N. H. 108; Carter v. Thurston, 58 N. H. 104, 107 ; Whis- tler V. Wilkinson, 22 Wis. 572 ; Wis- consin River Co. v. Lyons, 30 Wis. 01, 66; Sellers v. Union Lumbering Co., 39 Wis. 525 ; Olson v. Merrill, 42 Wis. 203; Cohn v. Wausau Boom Co., 47 Wis. 314, 324 ; Stevens Point Boom Co. 0. Reilly, 44 Wis. 295 j 46 Wis. 237; Barclay Railroad Co. r. Ingham, 36 Penn. 194 ; Hickok v. Hine, 23 Ohio St. 523 ; Weise v. Smith, 3 Oregon, 445 ; Felger v. Robinson, 3 Or- egon, 455. See, also, Commonwealth V. Chapin, 5 Pick. 199, 202 ; Blood v. Nashua Railroad Co., 2 Gray, 137 ; Rowe V. Granite Bridge Co., 21 Pick. 344 ; Attorney General v. Woods, 108 Mass. 436 ; Neaderhouser o. State, 28 Ind. 257 ; Esson u. McMaster, 1 Kerr (N. B.) 501 ; Rowe v. Titus, 1 Allen (N. B.) 326; Boissonnault v. OliVa, Stuart (Low. Can.) 564; Hayward w. Knapp, 28 Minn. 430 ; Lamprey ;;. Nelson, 24 Minn. 304; Commonwealth V. Charlestown, 1 Pick. 180 ; Common- wealth V. Chapin, 5 Pick. 199 ; Knight V. Wilder, 2 Cush. 199, 209; Charles- town V, Middlesex Commissioners, 3 Met. 202 ; Attorney General v. Woods, 108 Mass. 436. = Ibid. = Ibid. * Ibid. ; Holden v. Robinson Co., 65 Maine, 215. In Maine it is provided by statute that the banks of a stream may be used for driving logs. R. S. (1857) c. 42, §§ 7, 8; R. S. (1871) c. 42, §§ 7, 8. See Brown v. Chadbourne, 31 Maine, 9 ; Treat v. Lord, 42 Maine, 196 THE LAW OF WATEES. [PAUT 1. ject to these rules the question whether a stream is a high- way is a question of fact for the jury.i A riparian proprietor who, by means of a dam, and by accumulating his own logs above the dam, intentionally prevents the passage of another's logs down the stream, is liable in damages for the delay and injury so caused. The person thus injured may lawfully boom the proprietor's logs, and repair and open his sluices, if such means of effecting a passage is the least injurious to the proprietor ; and in his action he may recover, with his damages, the expenses which he incurs in thus securing a passage.^ Mill-owners whose dams interfere with the reason- able use of floatable streams by the public are liable to a private action by any citizen so injured.^ § 109. If the stream is not always navigable it must be capable of floatage, as the result of natural causes, at periods ordinarily recurring from year to year, and continuing for a sufficient length of time in each year to make it useful as a highway. The mere possibility of occasional iise during brief or extraordinary freshets does not give it a public character.* A similar principle applies in the case of small tidal creeks, in which, although prima facie they are public and navigable, private property may be maintained.^ It is 552 ; Hooper v. Hobson, 57 Maine, see Davis r. Winslow, 51 Maine, 264 ; 273. Lancey c. Clifford, 54 Maine, 487; ' Treat v. Lord, 42 Maine, 552 ; Veazie c. Dwinel, 50 Maine, 479 ; Bryant v. Glidden, 36 Maine, 30. Gerrish v. Brown, 51 Maine, 256, '' Brown v. Chadbourne, 31 Maine, 263. 9 ; Dwinel v. Veazie, 44 Maine, 167 ; ■* Munson i;. Hungerford, 6 Barb. 50 Maine, 479 ; Gerrish l: Brown, 51 265 ; Morgan v. King, 35 N. Y. 45 ; Maine, 256 ; Parks v. Morse, 52 Maine, 18 Barb. 277 ; 30 Barb. 9 ; Curtis v. 260 ; Veazie v. Dwinel, 50 Maine, 479. Keesler, 14 Barb. 511 ; Olson v. Mer- Upon the question what is a reason- rill, 42 Wis. 203 ; Thunder Bay River able use of the stream, see Ibid. ; Booming Co. u. Speechly, 31 Mich. Davis u. Winslow, 51 Maine, 264 ; 336 ; Middleton l\ Flat Kiver Boom- Weise v. Smith, 3 Oregon, 445 ; Sew- ing Co., 27 Mich. 533 ; Hubbard v. all's Eall Bridge v. Fisk, 23 N. II. Boll, 54 111. 110; Gates v. Wadling- 171; Carter v. Berlin Mills Co., 58 N". ton, 1 McCord (S. C.) 580; Brown v. H. 52 ; Brown !•. Kentfield, 50 Cal. Chadbourne, 31 Maine, 9 ; Treat v. 129; Enos v. Hamilton, 27 Wis. 256 ; Lord, 42 Maine, 552. 24 Wis. 658. 6 Commonwealth v. Charlestown, ' Parks V. Morse, 52 Maine, 260, 1 Pick. 180, 186, and authorities in As to what constitutes rea.sonablc use, next note. CHAP. IV.] PUBLIC RIGHT OF NAVIGATION. 197 not every small creek in which a fishing skiff or gunning canoe can be made to float at high tide which is deemed subject to public use ; but in order to have a public charac- ter, it must be navigable for some purpose useful to business or pleasure.' The only decisions tending to limit the above right of floatage appear to be: first, that of Hubbard v. Bell,^ in Illinois, in which it is said that no such necessity exists in that State, as in Maine or Michigan, for requiring private rights to yield to the floating of logs ; but the stream to which this case related seems to have been capable of bearing rafts and logs only in seasons of freshets, and then for a few days or weeks only.^ Second, an early case in California in which it was held that a stream is navigable which has capacity to float rafts of lumber, but that the rule does not extend to streams which can only float logs or planks.* Third, decisions in Alabama in which the duration of previ- ous enjoyment by the public, as well as the extent to whiclr the stream is floatable, are considered material in determin- ing whether it is a public highway, and the question whether it is a highway is held to be a question of law for the court, after the facts are determined by a jury.^ In Stump v. Mc- Nairy,6 it was held that a private unnavigable brook which flows into a public navigable river, and is floatable in times of higli water, becomes a public thoroughfare by being publicly used without objection for twenty years as an inlet for rafts. § 110. The rights of the public are not superior to private rights, in streams which are merely floatable, to the same ex- ' Ibid. ; Commonwealth v. Breed, ' Ibid. p. 114. See Thunder Bay 4 Pick. 460; Rowe v. Granite Bridge Booming Co. v. Speechly, 31 Mich. Co., 21 Pick. 344, 347 ; Charlestowu v. 336, 343. County Commissioners, 3 Met. 202 ; ■• American River Water Co. u. Murdock v. Stickney, 8 Cush. 113, 115 ; Amsden, 6 Cal. 443. West Roxbury ,.. Stoddard, 7 Allen, * Enig „. Carey, 30 Ala. 725 ; 158, 171 ; Attorney General v. Woods, Rhodes v. Otis, 33 Ala. 578 ; Peters v. 108 Mass. 436; The Montello, 20 New Orleans Railroad Co,, 56 Ala. Wall. 442, 443 ; Getty ;;. Hudson River 528 ; Alabama v. Bell, 5 Porter, 379. Railroad Co., 21 Barb. 017. ^ 5 Humph. 363. " Hubbard v. Bell, 54 111. 110. 198 THE LAW OF WATERS. [PAET I. tent as in rivers which are capable of more extended naviga- tion. In the latter the public right extends equally to all navigable portions of the river. But the right of floatage is not paramount to the use of the water for machinery, and the rights of the public and those of the riparian owners are both to be enjoyed with a proper regard to the existence and preservation of the other. If dams are so constructed as to limit the public passage to a small portion of the stream, and sufficient provision is made for the passage of logs, the pubHc cannot complain, while those who exercise the right of float- age are liable to the riparian owners for such exercise of the common right as causes them an injury. ^ In streams which are only floatable, the riparian owner is only bound not to obstruct its reasonable use for that purpose.^ If he obstructs the stream by making a new channel into which its waters are turned, the public are authorized to use it for floating logs and rafts as they had been accustomed to use the old channel ;■' and if the new channel becomes obstructed, they may effect a suitable passage over the former channel, causing no un- necessary damage thereby.'' If a break in a dam is per- mitted to remain without repair, and the water in the mUl- pond is thereby so reduced as to make it difficult or impossible to pass logs through a chute in the dam, the owner of logs floating down the stream to market may pass them through a new channel created by the break, doing no unnecessary damage. ^ In Maine a stream which is only • Erie v. Canfield, 27 Mich. 479 ; v. Clifford, 54 Maine, 487 ; Brown v. Middleton v. Flat River Booming Co., Chadbourne, 31 Maine, 9 ; Knox v. 27 Mich. 533; Grand Rapids Booming Chaloner, 42 Maine, 150, 157; Veazio Co. 0. Jarvis, 30 Mich. 308 ; Thunder v. Dwinel, 50 Maine, 479, 487 ; Davis v. Bay River Booming Co. v. Speechly, Winslow, 51 Maine, 289 ; Parks v. 31 Mich. 330; Attorney General v. Morse, 52 Maine, 260; Wood i-. Evart Booming Co., 34 Mich. 402 Newhold c. Mead, 57 Pemi. St. 487 Enos ;;. Hamilton, 27 AVis. 256 Bassett i. Carleton, 32 Maine, 553, See Barnes o. Heath, 58 N. H. 196 State V. Gilmanton, 14 N. H. 467, 479 Sewall's Pall Bridge v. Fisk, 23 N. H, 171 ; George v. Fisk, 32 N. H. 32, 43 Hustis, 17 Wis. 416 ; Cobb v. Smith, 10 Wis. 661. In Harrington v. Ed- wards, 17 Wis. 580, held that rafts- men cannot establish a custom among themselves which impairs the rights of the riparian proprietors. = Morgan v. King, 18 Barb. 277. ^ Dwincl V. Barnard, 28 Maine, 554. Thompson v. Androscoggin River Co., * Dwincl c. Veazie, 44 Maine, 167. 54 N. H. 545; 58 N. H. 108; Lancey " Whistler f. Wilkinson, 22 Wis. 572. CHAP. IV. j PUBLIC EIGHT OP NAVIGATIOK. 199 capable of floating rafts or logs, is " not navigable " within the meaning of the mill act of 1841, which authorizes the erection and maintenance of water mills and dams upon and across any unnavigable stream.' In Pennsylvania, where the principal fresh-water rivers are held to be public property like tide waters, fresh streams which are merely floatable and have been included in the warrants and surveys of the land office as part of the public lands, belong to the riparian owners usque ad filum aquae, subject to the public right of passage.^ A similar rule prevails in Tennessee. ^ § 111. When a river is capable of navigation in different parts of its course, but, by reason of rocks, sand-bars and other obstructions, does not .admit of continuous navigation,* the public may pass and repass in those parts of the river which are navigable.^ If the natural navigation of the river affords a channel for useful commerce, it continues to be navigable and open to the public, although the natural barriers which render its navigation difficult are afterwards removed by artificial means, such as locks, canals, and dams.® ' Veazie v. Dvvinel, 50 Maine, 479, Bridge Co., 6 McLean, 237 ; Brown v. 483 ; Stetson „•. Bangor, 60 Maine, Chadbourne, 31 Maine, 9, 23, 25 ; Treat 313. See, also. State u. CuUum, 2 v. Lord, 42 Maine, 552; People v. Speers (S. C.) 581 ; State v. Hicksou, Canal Appraisers, 33 N. Y. 461 ; Mon- 5 Eich. (S. C.) 447; Witt v. Jefcoat, gan v. King, 35 N. Y. 459; Flanagan 10 Id. 389 ; Wood c. Hustis, 17 Wis. v. Philadelphia, 42 Penn. St. 219 ; 416 ; Waller v. McConnell, 19 Wis. Monongahela Bridge Co. v. Kirk, 46 417; Crosby v. Smith, Id. 449; Cobb Penn. St. 112; Cox v. State, 3 Blackf. K. Smith, 16 Wis. 661. In proceedings 193; Hogg u. Zanesville Canal Co., under a statute to obtain the right to 5 Ohio, 410 ; Hickok v. Hine, 23 Ohio dam an unnavigable stream, it is pre- St. 527 ; Rowe v. Granite Bridge Co., sumed, on appeal, in the absence of 23 Pick. 346 ; Attorney General v. evidence to the contrary, that it ap- Woods, 108 Mass. 436 ; Illinois River peared to the court below that the Packet Co. u. Peoria Bridge Co., 38 stream was not navigable. Siman v. 111. 467 ; Harrington v. Edwards, 17 Rhodes, 24 Minn. 25. Wis. 586. ^ Coovert v. O'Conner, 8 Watts, ^ Ibid. ; Brown v. Chadbourne, 31 477 ; Barclay Railroad Co. v. Ingham, Maine, 9, 23, 25. An accidental or 36 Penn. St. 194. intentional obstruction, which was not ' Stuart V. Clark, 2 Swan, 9 ; Sigler in the stream in its natural condition, u. State, 7 Baxter, 493. does not take away its character as a * The Montello, 20 Wall. 430 ; 11 highway. Treat v. Lord, 42 Maine, Wall. 411 ; The Daniel Ball, 10 Wall. 552 ; Brown v. Black, 43 Maine, 443. 557; Spooner o. McConnell, 1 Mc- «Ibid.; The Montello, 20 Wall. Lean, 337, 350 ; Jolly v. Terre Haute 430. 200 THE LAW OF WATEllS. [PAKT I. If the navigation of a river which vi^as originally navigable in fact, to a greater or less extent, be improved by the act of the riparian owners in deepening the channel, the public have the right to use it for all purposes to which it is suited in its improved condition.' But if, being originally un- navigable, it is made navigable by the riparian proprietors, the public right does not attach.^ The legislature cannot, by means of dams or otherwise, make an unnavigable stream public and navigable, or deprive the riparian owners of their right to use the water, without affording them compensation ; ^ nor, if the legislature declares a stream to be navigable, does it divest the property previously acquired in its bed under a patent from the State.* But such owners may dedicate to the public use highways by water as well as by land, and if, when dedicated, they are not passable, the public may make them so.^ The mere user by the public of a private stream for floating logs at irregular intervals, neither interrupted nor ac- qidesced in, is not evidence of a dedication to the public.'' A ' The Montello, 20 Wall. 430 ; Holden o. Robinson Co., 05 Maine, 215 ; Toothaker v. Winslow, 61 Maine, 123; Wadsworth v. Smith, 11 Maine, 278; Volk v. Eldred, 2.3 Wis. 410; Gates V. Wadlington, 1 McCord (S. C.) 580. ' Hale, De Jure Maris, o. 3 ; Wads- worth V. Smith, 11 Maine, 278; Cro. Car. 132; Cowper, 47; Holden ..■. Eohinson Co., 65 Maine, 215. ^ Ibid. ; Walker v. Board of Public Works, 16 Ohio, 540 ; Clay v. Pennoy- er Creek Improvement Co., 34 Mich. I 204 ; Thunder Bay River Booming Co. V. Speechly, 31 Mich. 336 ; Moor V. Veazie, 32 Maine, 343 ; 31 Maine, 360; State v. Cullum, 2 Speers (S. C.) 581; Binney's Case, 2 Bland, 158 State V. Pool, 74 N. C. 402, 407 ; Ear- clay Railroad Co. v. Ingham, 36 Penn, St. 194; Morgan o. King, 35 N. Y 454 ; 18 Barb. 277 ; 30 Barb. 9 ; Cates V. Wadlington, 1 McCord (S. C.) 685 Wilson V. Smith, 10 Wend. 324 ; Par- tridge V. Eaton, 3 Hun, 533 ; 5 S. C. 625 ; White Deer Creek Co. v. Sassa- men, 67 Penn. St. 415; State i;. Glen, 7 Jones, 321. Legislative enactments relating to navigable streams extend to those afterwards declared by the legislature to be highways. Walker v. Board of Public Works, 16 Ohio, 540 ; Brown v. Commonwealth, 3 Serg. & E. 273; State v. Cullum, 2 Speers (S. C.) 581; People u. Gutchess, 48 Barb. 656. A statute which declares a stream to be a public highway for the passage of boats and rafts embra- ces logs not fastened together. Ded- drick V. Wood, 15 Penn. St. 9. * Coovert v. O'Connor, 8 Watts, 447 ; Monongahela Navigation Co. V. Coons, 6 W. & S. 101 ; Susquehanna Canal Co. v. Wright, 9 W. & S. 9 ; Barclay Railroad Co. v. Ingham, 36 Penn. St. 194 ; People v. Gutchess, 48 Barb. 656. " Yates V. Judd, 18 Wis. 118, 128 ; Arnold v. Elmore, 16 Wis. 509 ; Mar- iner V. Schulte, 13 Wis. 692. * Curtis V. Keesler, 14 Barb. 511. CHAP. IV.] PUBLIC EIGHT OF KAVIGATION. 201 navigable stream may be useful as a highway when covered with ice. In Maine it is held that the public right of passage is not suspended or changed in winter by the fact that it cannot be used with boats, and that those who cut holes in the ice upon or near a winter road along the shore of a navigable river which has been used for twenty years, are liable to those who, without being themselves at fault, suffer injury or loss thereby. > § 112. By the common-law rule, a river is prima facie navigable only as far as the tide ebbs and flows in it, and, in case ^ of doubt, the burden of proof is upon those who allege navigability above that point.^ But the courts take notice of those characteristics of streams which are matters of general history or common knowledge,^ as that the tide ebbs and flows in such well-known rivers as the the Thames and Mersey.* In Indiana judicial notice is taken of the course of the Ohio River,^ of the position of the falls of the Ohio,^ and of the navigability of streams.^ In Wisconsin the court has taken notice of the fact that the capacity of many of the smaller streams in that State to float logs and lumber to market has been increased by dams.^ And generally a stream is presumably navigable, when it is subject to the commercial power of Congress and that power has been ex- erted over it,5 or when the river remains public property and does not pass to the riparian proprietors.^" So judicial notice has been taken of the fact that no part of a river lies within the corporate limits of a city.^^ If the character 'French v. Camp, 18 Maine, 433; ' Neaderhouser o. State, 28 Ind. State c. Wilson, 42 Maine, 9. See 257 ; Ross v. Faust, 54 Ind. 471 ; Koxbury v. Stoddard, 7 Allen, 158. Mossman v. Forrest, 27 Ind. 233. ^Rhodes v. Otis, 33 Ala. 578 Bowman v. Wathen, 2 McLean, 376 Adams v. Pease, 2 Conn. 483. 'Bittle u. Stuart, 34 Ark. 224 Thompson v. Androscoggin Co., 54 N. II. 545, 548. ' Whitney v. Sauche, 11 La. Ann 432 ; Mcintosh v. Gastenhofer, 2 Eob, * Tewksbury v. Schulenberg, 41 Wis. 584, 593; Siegbert v. Stiles, 39 Wis. 533. ' Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 556, 564; Hodg- man v. St. Paul Railway Co., 23 Minn. 153, 160. •» Wood V. Fowler, 26 Kansas, 682. (La.) 403. " Montgomery v. Montgomery * Hays V. State, 8 Ind. 425. Plankroad Co., 31 Ala. 76. " Cash V. Auditor, 7 Ind. 227. 202 THE LAW OF WATERS. [PAET I. of the stream is not defined in any public statute, or in a private statute introduced in evidence, and it is not of such notoriety as to be generally understood, it cannot be known judicially that it is navigable.^ If streams flovsring through the territory which was under the land system of the United States are not meandered, the presumption is that they are not navigable.^ § 113. The owner of a wharf is bound to exercise due diligence to keep it safe for the uses for which it was made. If he permits persons to come there and to have access to and from vessels over the wharf, he is liable for injuries which they, being in the exercise of due care, sustain by reason of his negligence.^ His duty is the same as that which is im- posed upon the keeper of an inn or store to keep the access to his premises, and the passages, rooms, and floors therein, safe for those who enter under the express or implied invitation of the owner.* The true rule is, perhaps, even more strin- gent, the wharf owner, upon whose vigilance often depends the personal safety of many, being, it has been said, bound to the utmost care.* He is not liable for latent defects, or ' People V. Allen, 42 N. Y. 378, 495 ; Smith v. London Dock Co., L. 381 ; New York Co. v. Brooklyn, 71 R. 3 C. P. 326 ; Sweeney v. Old Colony N.Y. 580; Leighy v. Ashland Lum- Railroad Co., 10 Allen, 368; Elliott n. bering Co., 49 Wis. 165; Geise u. Pray, Ibid. ?78; Knight v. Portland Green, Ibid. .334; Oelrich v. Gilraan, Railway Co., 56 Maine, 234 ; Ackhert 31 Wis. 495; Siman v. Rhodes, 24 v. Lansing, 59 N. Y. 646; Swords v. Minn. 25 ; Waller i,. MoConnell, 19 Edgar, Ibid. 28 ; Trim v. Vallejo St. Wis. 417. Wharf Co., 7 Cal. 253 ; Fennimore v. '' Clute V. Briggs, 22 Wis. 607 ; New Orleans, 20 La. Ann. 124 ; Phila- Jones V. Pettibone, 22 Wis, 308 ; Hub- delphia Railroad Co. o. Irwin, 89 bard v. Bell, 54 111. 110. Penn. St. 71; Buckingham t: Pisher, ' Wendell v. Baxter, 12 Gray, 494 ; 70 111. 121 ; Grand Tower Co. v. Carleton v. Pranconia Iron & Steel Hawkins, 72 111. 386 ; Freer v. Came- Co., 99 Mass. 216; Nickerson ,.. Tir- ron, 4 Rich. (S. C.) 228; Maenner v. rell, 127 Mass. 236; Macauley !,'. New Carroll, 46 Md. 193; Barrett York, 67 N. Y. 602 ; Swords v. Edgar, Black, 50 Maine, 498 ; Pittsburg v, 59 N. Y. 28; Buckbee v. Brown, 21 Grier, 22 Penn. St. 54; Campbell v Wend. 110; Moody v. New York, 43 Portland Sugar Co., 62 Maine, 552 Barb. 282 ; 34 How. Pr. 288 ; Railroad Wendell v. Baxter, 12 Gray, 494 ; Co. 0. Hanning, 15 Wall. 649. Carleton o. Franconia Iron Co., 99 * Chapman v. Rothwell, El. Bk. &, Mass. 210. El. 168; Corby v. Hill, 4 C. B. n. s. '^ Ibid. 556; Collis u. Selden, L. R. 3 C. P. CHAP. IV.J PUBLIC EIGHT OF NAVIGATION. 203 for those which are caused by inevitable accident, such as the excejjtional violence of the sea.^ But in these cases he cannot escape liability if he does not make such examination and inspection as the construction, uses, and exposure of the wharf reasonably require ; ^ and if he has knowledge of a defect which is not apparent to all,^ it is his duty, even before there is opportunity to repair, to close the wharf or to give proper notice of the danger.^ So long as the wharf is kept open, it amounts to a representation that it is safe to enter, and that due diligence has been used both in its con- struction and repair.^ This obligation rests upon the owner, not only in favor of those who compensate him for its use, or of those who contract with him therefor, but of all per- sons who enter rightfully upon the premises for the purposes of lawful business.'' It is not limited to persons who come upon the wharf to transact the business for which it is adapted, but extends to all who come there for legitimate purposes, as a customs officer whose duty is to prevent smug- ' Wendell r. Baxter, 12 Gray, 494 ; Garrison v. New York, 5 Bosw. (N. Y.) 497; Wallace v. New York, 2 Hilt. 440; 18 How. Pr. 169. 'Ibid. In Hill Manuf. Co. v. Providence Steamship Co., 125 Mass. 292, it was held that upon the issue whether piers in New York were properly constructed, evidence that piers are similarly constructed else- where was rightly excluded. ^ See Southcote o. Stanley, 1 H. & N. 247 ; Holmes v. North Eastern Railway Co., L. R. 4 Ex. 254 ; 6 Id. 123, It is contributory negligence to drive upon a pier, knowing that it is out of repair. Clancy v. Byre, 58 Barb. 449; 56 N. Y. 129; Durkin v. Troy, 61 Barb. 437. '' Gibbs ('. Liverpool Docks, 3 H. & N. 104, 176 ; s. c. nom. Mersey Docks V. Gibbs, 11 H. L. Cas. 687 ; L, R. 1 H. L. 93 ; Mersey Docks t. Pcnhallow, 7 H. & N. 329 ; Indemaur V. Dames, L. R. 2 C. P. 311; 1 Ibid., 274 ; Smith v. London Docks Co., L. R. 3 C. P. 326; Thompson c. North Eastern Railway Co., 2 B. & S. 100 ; Parnaby v. Lancaster Canal Co., 11 Ad. & El. 223 ; 3 N. & P. 523 ; 3 P. & D. 102 ; Lyme Regis v. Henley, 3 B, & Ad. 92 ; Railroad Co. v. Hanning, 15 Wall. 649 ; Pittsburgh v. Grier, 22 Penn. St. 54. ' Ibid. « Southcote V. Stanley, 1 H. & N. 247 ; White ;;. France, 2 C. P. D. 308; Holmes v. North Eastern Railway Co., 38 L. J. Ex. 161 ; Balch u. Smith, 7 H. & N. 741 ; CoUett v. London Rail- road, 16 Q. B. 984; Indemaur v Dames, L. R. 2 C. P. 311 ; 1 Ibid. 274; Wendell v. Baxter, 12 Gray, 494; Davis V. Central Congregational So- ciety, 129 Mass. 307, 371; Gilbert v. Nagle, 118 Mass. 278 ; Severy v. Nickerson, 120 Mass. 306 ; Sweeny v. Old Colony Railroad Co., 10 Allen, 368 ; Elliott v. Pray, 10 Allen, 378 ; Zoebisch v. Tarbell, 10 Allen, 385; Baker v. Byrne, 58 Barb. 438 ; Camp- bell f. Portland Sugar Co., 62 Maine, 552. 204 THE LAW OP WATERS. [PAKT I. gling;' the agents of the post-office ;^ the vendors of goods to those upon a vessel lying the dock;^ hack-men who are awaiting passengers;* and those who come to make inquiries.^ The occupant is primarily chargeable with the duty to repair, and is liable by reason of his occupancy, without proof of title.^ The lessor of a wharf who reserves rent is also liable for injuries caused by defects which existed when the tenant entered, although the latter ma}^ have covenanted to repair.' But the lessor is not liable when the premises become defective after they have passed from his control,^ or in consequence of obstructions placed there by third per- sons, of which he has no notice, express or implied.^ Where premises may cause injury to the public from want of repair, the owner's responsibility to keep them in proper condition ^ Low V. Grand Trunk Railway Co., 72 Maine, 313. ' CoUett t>. London & North-western Railway Co., 16 Q. B. 984 ; Wendell V. Baxter, 12 Gray, 404. * Smith V. London & St. Catherine Docks Co., L. It. 3 C. P. 326. '' Tobin V. Portland Railroad Co., 59 Maine, 183. ' Stratton v. Staples, 59 Maine, 95. " Cannavan c'. Conklin, 1 Daly, 509 ; 1 Abb. Pr. n. s. 271. ' Swords o. Edgar, 59 N. Y. 28 ; 44 How. Pr. 139; 1 Sup. Ct. 23; Clancy v. Byre, 56 N. y. 129; 65 Barb. 344; Walsh v. Mead, 8 Hun, 387 ; Thompson v. Mayor, 11 N. Y. 115; Heaney v. Heeney, 2 Denio, 625; Irvine v. Wood, 51 N. Y. 224 ; 4 Rob. 138 ; 5 Rob. 482 ; Moody u. New York, 43 Barb. 282 ; 34 How. Pr. 288 ; Leary V. Woodruff, 4 Hun, 99 ; Bogart o. Haight, 20 Barb. 251 ; Vanderwater V. New York, 2 Sandf . 258 ; Murray V. Sharp, 1 Bosw. 539 ; Stevens v. Rhinelander, 5 Rob. 285 ; Taylor v. New York, 4 E. D. Smith, 559; Shindlebeck v. Moon, 32 Ohio St. 264, 273. See Nash v. Minneapolis Mill Co., 24 Minn. 501 ; House v. Metealf, 27 Conn. 640 ; Owings v. Jones, 9 Md. 108; Leonard i,-. Storer, 115 Mass. 86; Pretty v. Bickmore, L. R. 8 C. P. 401 ; Gwinnell v. Earner, L. R. 10 C. P. 658 ; Rosewell v. Prior, 12 Mod. 635 ; 2 Salk. 459 ; Rex v. Pedly, 1 Ad. & El. 822 ; Todd v. Plight, 9 C. B. s. s. 377 ; White u. Phillips, 12 W. R. 85 ; 15 C. B. N. s. 245. If the lessee of a wharf covenants to make any repairs required by the proper mu- nicipal authorities for the safety or convenience of vessels lying at the wharf, the covenant is not broken by neglect to make repairs ordered by such authorities for the purpose of preventing injury to the river. Myers V. Myrrell, 57 Ga. 516. Proof of a right to unload a vessel at a wharf does not establish title to the wharf, but the easement of unloading is con- sistent with title in another. Kipp v. Den, 24 N. J. L. 854. 8 Ibid. ; Clancy v. Byre, 56 N. Y. 129; 58 Barb. 449; Albany v. Cun- liff, 2 Comst. 165 ; Walsh u. Mead, 8 Hun, 387 ; Radway v. Briggs, 37 N. Y. 256 ; 35 How. Pr. 422 ; Cannavan. V. Conklin, 1 Daly, 509 ; Owings v. Jones, 9 Md. 108. '■' Seaman v. New York, 3 Daly, 147 ; Gritfin u. Mayor, 9 N. Y. 456 ; Barton v. Syracuse, 36 N. Y. 54; Tarry c. Ashton, 1 Q. B. D. 314. CHAP. IV.] PUBLIC EIGHT OF NAVIGATION. 205 is not lessened by the employment of a competent person to repair them, if they are not repaired, and injiiry is caused in consequence. § 114. These rules apply when the owner or occupant of a wharf, dock. Or canal expressly or impliedly invites vessels to enter. In Carleton v. Franconia Iron & Steel Co.,i it appeared that the defendants procured the plaintiffs to bring tlieir vessel to the defendants' wharf for the purpose of dis- charging a cargo of iron, and that, while lying at the wharf, the vessel settled with the ebb of the tide and was injured by a rock, of the existence and position of which the defen- dants had long known, but of which the plaintiffs and their employees had no notice. It did not appear that the defen- dants owned the soil of the dock in which the rock was imbedded, but they had excavated the dock for the purpose of accommodating vessels bringing cargoes to the wharf. The court said : ^ "It is immaterial in this case wliether the danger had been created or increased by the excavation made by the defendants, or had always existed, if they, knowing of its existence, neglected to remove it or to warn those trans- acting business with them against it. Even if the wharf was not public, but private, and the defendants had no title in the dock, and the concealed and dangerous obstacle was not ' 99 Mass. 216 ; citing Sweeny v. v. Phoenix Ciiemical Works, 7 Ben. Old Colony Eailroad Co., 10 Allen, 37 ; Mason v. Ehinelander, 8 Ben. 308; Allen o. Pray, Ibid. 378; Wen- 163; Philadelphia Eailroad Co. v. doll V. Baxter, 12 Gray, 494; Parnaby Philadelphia Steamboat Co., 23 How. c. Lancaster Canal Co., 11 Ad. & El. 209 ; Smith v. Comptroller, 18 Wend. 223; 3 N. & P. 523; 3 P. & D. 102; 659; Seaman „•. New York, 80 N. Y. Gibbs V. Liverpool Docks, 3 H. & N. 239 ; Exchange Fire Ins. Co. v. Dela- 104; s. c. nom. Mersey Docks v.' ware Canal Co., 10 Bosw. 180; Weit- Gibbs, 11 H. L. Cas. 687, and L. E. ner v. Delawarg Caflal Co., 4 Eob. 1 H. L. 93 ; Indemaur v. Dames, L. E. 1 234 ; Johnson ti^'Bclden, 47 N. Y. 130 ; C.P. 274; 2 Ibid. 311; Thompson v. 2 Lans. 433; Pittsburgh v. Grier, 22 North Eastern Eailway Co., 2 B. & S. Penn. St. 54 ; Borden Mining Co. c. 100. See, also. Curling c. Wood, 10 Barry, 17 Md. 419. The master of M. & W. 628 ; White v. Phillips, 15 a canal boat, who attempts to pstss a C.B.N.S.245; Smith w. London Docks lock, and knows that the gates are Co.,L. E.^ C.P. 320 ; Barrett i'. Black, out of repair, is not, because of such 56 Maine, 498 ; Oliver v. Worcester, knowledge, guilty of contributory neg- 102 Mass. 489; Sawyer «. Oakman, 7 ligoncc. Johnson r. Belden, sw/>ra. Blatch. 290; 1 Lowell, 1-34; Nelson ■•' 99 Mass. 219. 206 THE LAW OF WATERS. [PAET I. created by them or bj^ any human agency, they were still responsible for an injury occasioned by it to a vessel which they had induced for their own benefit to come to the wharf, and which, without negligence on the part of its owners or their agents or servants, was put in a place apparently adapted to its reception, but known by the defendants to be unsafe. This case cannot be distinguished in principle from that of the owner of land adjoining a highway, who, knowing that there was a large rock or a deep pit between the trav- elled part of the highway and his own gate, should tell a carrier, bringing goods to his house at night, to drive in, without warning him of the defect, and who would be equally liable for an injury sustained in acting upon his invitation, whether he did or did not own the soil under the highway.'' In Nickerson v. Tirrell,^ the evidence was conflicting as to the condition of the dock, in which other vessels, both larger and smaller than the plaintiffs' had safely discharged, and as to the cause of injury to the plaintiffs' vessel, the bottom of which was broader than many vessels of its size and class. The case was submitted to the jury upon the issue whether the injury was attributable to want of care on the part of the defendant or of the master of the vessel. Morton, J., in delivering the opinion of the court, upon exceptions alleged by the defendant, thus states the rules applicable to this class of cases : " The OM'ner or occupant of a dock is liable in damages to a person who, by his invitation express or implied, makes use of it, for an injury caused by any defect or unsafe corudition of the dock which the occupant negli- gently causes or permits to exist, if such person was himself in the exercise of due care. Such occupant is not an insurer of the safety of his dock, but he is required to use reasonable care to keep his dock in such a state as to be reasonably safe for use by vessels which he invites to enter it, or for which he holds it out as fit and ready. If he fails to use such due care, if there is a defect which is known to him, or which by the use of ordinary care and diligence should be ki;i,own to him, he is guilty of negligence, and liable to the person who, 1 127 Mass. 236. CHAP. IV.J PUBLIC EIGHT OP NAVIGATION. 207 using due care, is injured thereby." In Byrne v. Chicago ^ it was held reasonable to require the owners of a canal to draw off the water periodically for the purpose of inspecting the bed, and such owners were held not liable for injuries to a boat which struck upon a rock in the canal, if it was deposited there by a land-slide, and the owners were not otherwise at fault. A contractor who has agreed to keep a canal free from obstruction to the navigation, is liable for negligently permitting obstructions to continue, and such cause of action is assignable.^ A canal corporation is not liable in a private action for failure to construct its canal according to its charter, except upon the ground of special peculiar dam- ' 80 111. 195 ; Lancaster Canal Co. V. Parnaby, 11 Ad. & El. 223 ; Penn- sylrania Canal Co. v. Burd, 90 Penn. St. 281 ; Exchange Eire Ins. Co. v. Delaware Canal Co., 10 Bosworth, 180; Townsend v. Susquehanna Turn- pike Co., 6 Johns. 90 ; "Wilson v. Sus- quehanna Turnpike Co., 21 Barb, 68 ; Hicks V. Dorn, 42 N. Y. 47 ; 54 Barb. 172 ; 1 Lans. 81 ; Mullen v. St. John, 57 N. Y. 567 ; Lane v. Salter, 4 Robt. 239. In the above case of Pennsyl- vania Canal Co. v. Burd, in which a canal boat was injured by a sunken log, Sterrett, J., said: "An injury resulting from an unknown obstruc- tion, which could not be guarded against, without the exercise of extra- ordinary or unreasonable care, must be considered an accident for which no one is specially to blame, and for which the company is not liable. It would be unreasonable to require a canal company to sound and drag the whole length of its canal continually, to ascertain what obstructions might lie at the bottom, or to keep guards along the banks, to prevent the com- mission of injuries by careless or de- signing persons. But it is bound, annu- ally at least, when the water is out of the canal, to inspect the bed and remove obstructions." When a canal company receiving tolls induces a boat to enter the canal, a promise is im- plied to let it through in a reasonable time. Muir u. Louisville Canal Co., 8 Dana, 161. '' Fulton Eire Ins. Co. o. Baldwin, 37 N. Y. 648 ; Kobinson u. Chamber- lain, 34 N. Y. 389. If one conveys a mill, dam, and slip, reserving the right to slip his own logs, free of toll, it is a personal right and not assignable. Wadsworth c. Smith, 11 Maine, 278. By a \\Titten agreement, the defend- ants were to repair and occupy the plaintiff's canal, to collect and account for the tolls on all merchandize, in- cluding their own, and, "after deduct- ing all costs, expenses, and charges for repairing and running said canal," were to pay the net profits to the owner. The agreement provided in a subsequent clause that the defendants should account for and pay over " the whole of said receipts, after deduct- ing the expenditures in making said repairs.'' The defendants were held entitled to retain from the tolls re- ceived suitable compensation for their supervision of the canal and its repair, though not expressly stipulated in the contract. Dyer v. Pitch, 63 Maine, 170. The defendant, when sued for dock- age and wharfage, may recoup his damages by reason of the wharf being out of repair. Buckbee v. Brown, 21 Wend. 110 ; Albany v. Trowbridge, 7 Hill, 429 ; 5 Hill, 71. 208 THE LAW OF ■WATERS. [part I. ages ; ^ but if such corporation neglects to keep the canal free and clear from obstructions as required by its charter, it is liable to the owner of a raft which is thereby grounded and injured.^ § 115. Corporations and public trustees, empowered to improve the navigation of streams, or to construct canals, docks, wharves, water-works, or bridges, may be liable, inde- pendently of statute, for a neglect of duty which causes injury to individuals from whom toll is demandable.^ In Mersey Docks v. Gibbs,* it appeared that the trustees of the docks in Liverpool were incorporated by act of parliament for the construction and maintenance of docks and warehouses for the public use, with authority to collect tolls therefor, and that these tolls were to be applied exclusively to the maintenance of the docks and warehouses, and to the pay- ^ Quincy Canal v. Newcomb, 7 Met. 276, 284. ' Riddle v. Locks & Canals, 7 Mass. 169. ■' Harrison ;;. Great Northern Rail- way Co., 3 H. & C. 231 ; Manley v. St. Helen's Canal Co., 2 H. & C. 840; Parnaby v. Lancaster Canal Co., 11 Ad. & El. 223 ; John u. Bacon, L. K. 5 C. P. 437 ; Bayley v. Wolverhamp- ton Water Works Co., 6 H. & N. 241 ; Smith V. London Docks Co., L. R. 3 C. P. 326 ; Dunn v. Birmingham Canal Co., L. R. 8 Q. B. 42 ; Rex v. Kent, 13 East, 220; Newark Plank Road Co. V. Elmer, 1 Stock. 755 ; 4 Hal. Ch. 586 ; Gifford v. New Jersey Railroad Co., 2 Id. 177; Attorney General v. New Jersey Railroad Co., 2 Green Ch. 136 ; Allen v. Monmouth Co., 2 Beas. 68 ; Pittsburgh o. Grier, 22 Penn. St. 54; Prescott u. Duquesne, 48 Penn. St. 118; Pennsylvania Railroad Co. c. Patterson, 73 Penn. St. 491 ; Penn- sylvania Canal Co. o. Graham, 63 Penn. St. 290; Hill v. Boston, 122 Mass. ; Yale v. Hampden Turnpike Co., 18 Pick. 357; Heacock o. Sher- man, 14 Wend. 58 ; Albany v. Cunliff, 2 N. Y. 165 ; Radway v. Briggs, 37 N. Y. 256- Stack v. Bangs, 6 Lans. 262 ; Humphreys o. Armstrong, 56 Penn. St. 204, 209 ; Steele v. Western Navigation Co., 2 Johns. 283 ; Schuyl- kill Navigation Co. v. McDonough, 33 Penn. St. 73 ; Frankfort Bridge Co. v. Williams, 9 Dana, 403 ; Adsit v. Brady, 4 Hill (N. Y.) 630; Shepherd .,. Lin- coln, 17 Wend. 250. » 11 H. L. Cas. 687; L. R. 1 H. L. 93 ; 7 H. & N. 329 ; 3 Id. 164 ; 1 Id. 439 ; Parnaby v. Lancaster Canal Co., 11 Ad. & El. 223 ; Mersey Docks v. Cameron, 11 H. L. Cas. 443; Coe ii. Wise, L. R. 1 Q. B. 711 ; 5 B. & S. 440 ; 7 Id. 831 ; JoUifEe v. Wallasey Local Board, L. R. 9 C. P. 62 ; Fore- man V. Canterbury, 40 L. J. (Q. B.) 138 ; Shoebottom v. Egerton, 18 L. T. N. s. 889 ; Walker v. Goe, 4 H. & N. 350 ; Witherly v. Regent's Canal Co., 3 F. & F. 61 ; 12 C. B. u. s. 2 ; Thomp- son V. North-eastern Railway Co., 2 B. & S. 106; Grant r. Sligo Harbour Commissioners, Ir. R. 11 C. L. 190; Itchin i). Southampton, 8 E. & B. 301 ; Ward 1.. Lee, 7 E. & B. 426; Clothier c. Webster, 12 C. B. n. s. 790 ; Ruck V. Williams, 3 H. & N. 308; White- house V. Fellows, 10 C. B. n. s. 705 ; Brownlow v. Metropolitan Board, 13 C. B. N. s. 708 ; 10 Id. 546. CHAP. IV.j PUBLIC EIGHT OF NAVIGATION. 209 ment o£ the indebtedness incurred in their construction ; and it was held by the House of Lords that the trustees were Uable to the owner of a vessel, which was injured in entering one of the docks, by striking upon a bank of mud which their servants and agents had negligently permitted to ac- cumulate at the entrance. In Winch v. Conservators of the Thames,^ the defendants were held liable for the non-repair of g, towing path adjoining the river Thames, the doctrine sustained by the majority of the court of Exchequer Chamber being that the defendants, so long as they kept the towing path open and took toll for its use, were under an obligation to those whom they invited to use it, to take reasonable care that the towing path was in such condition as not to expose those using it to undue danger, and that there was no dis- tinction in this respect between the natural and artificial parts of the towing path. But where the trustees or con- servators of a river, who were not owners of the river or of the navigation therein, but were an unpaid body of trustees,, appointed for public purposes in aid of the common-law right of navigating an ancient highway, were authorized to. remove all obstructions and impediments to the navigation at their discretion, they were held not liable for injuries sus- tained by a vessel which struck upon submerged piles in the bed of the river.^ So, in the absence of negligence, a corpc-- ration empowered by a special act to improve the navigation of a river, and to collect tolls for the purpose of defraying the expense, is not liable at law for injury to the adjoihiiig lands caused by an overflow of the water in consequence of staunches which it has erected in the river in aid of the navigation, combined with the natural growth of weeds and the accumulation of silt against the staunches,^ since the. duties of a navigation company which does not own the soil are confined, in the absence of an express enactment upon ' L. E. 9 C B. 378; L. R. 7 Q. B. See Grote v. Chester Railway Co., 2 458. Exch. 251 ; Hammona ic Vestry of St. ' Forbes v. Lee Conservancy Board, Pancras, L. R.. 9 G. P.- 316. i Ex. D. 116 ; York Railway Co. v. ^ Cracknell. ». . Thetford, L. K. 4 Reg., 1 El. & Bk. 858 ; Great Western C. P. 629. It is .a njatter for compenan- llailway Co. c. Beg. 1 El. £ Bk. 874. iion, and not for.danjflg-os at law. Sec post, § 2-50. 210 THE LAW OF WATEES. [PAKT I. the subject, to matters relating to the navigation.^ The liability, when it exists, depends upon the neglect of duty towards persons who, being within the scope of the benefit intended by the statute, are damaged by such neglect.^ § 116. Quasi corporations, such as counties and municipal corporations, created by the legislature for public purposes, are subject to indictment at common law for the neglect of a public duty imposed upon them, but are not liable to a private action for such neglect, unless such action is given by statute, or the liability arises by prescription, or unless they hold and deal with property for their own emolument, and receive rents or tolls therefrom like a private owner.^ ' Ibid. ; Parrett Navigation Co. v. Robins, 10 M. & W. 598. '' Ibid. ; Parnaby v. Lancaster Canal ■Co., 11 Ad. & El. 213 ; Manley v. St. Helen's Canal, 2 li. & N. 840 ; Mersey ■iDocks u. Gibbs, 11 H. L. Cas. 080; iFofbes V. Lee Conservancy Board, 4 jEx. 116; Eiddle v. Proprietors of .Lodks and Canals, 7 Mass. 109. Corporate (bodies, or individuals, when authorizefl to perform an act for others which will benefit themselves, such as ;the conBtruction of a toll- bridge, are bound to repair, though .the public use the structure. Rex v. West Riding, 2 East, 842; Rex u. Jvent, .13 East, 220; Rex v. Lindsay, ,14 East, 37 ; Rex v. Somerset, 10 East, ;305; Rex ,;. Oxfordshire, 16 East, 223 ; Reg. v. Kerrison, 3 M. & S. 526 ; Manley v. St. Helen's Canal Co., 2 H. & N. 804 ; Reg. v. Brecon, 15 Q. B. 813; Nicholl t). Allen, 1 B. & S. 934; "Wiggins V. Boddington, 3 C & P. 544 ; Reg. V. Ely, 4 New Sess. Cas. 222. See Cutler V. Howard, 9 Wis. 809; County Commissioners v. Duckett, 20 Md. 468 ; Hill V. Boston, 122 Mass. 344 ; Free- dom V. Weed, 40 Maine, 383; Tifft V. Jones, 52 Ga. 588. But if they act solely for the benefit of the pub- lic, or if the particular liability is, by statute, prescription or otherwise, shifted upon the public, they are not liable if they fail to repair. Reg. v. Southampton, 18 Q. B. 841 ; Rex c. Oxfordshire, 16 East, 223 ; Rex i. Derbyshire, 2 Q. B. 745 ; Rex v. Whit- ney, 3 Ad. & El. 69 ; Rex v. Trafford, 1 B. & Ad. 874 ; Rex v. Devonshire, 5 B. & Ad. 883 ; Reg. v. Gloucestershire, 2 C. & M. 506 ; Reg. u. Southampton, 18 Q. B. 841 ; Sampson v. Goochland Just- ices, 5 Gratt. 241; Rex v. Hendon,4B. & Ad. 628 ; Rex v. Oswestry, 6 M. & S. 301 ; Rex v. Ecclesfield, 1 B. & A. 348 ; Rex V. Stratford-on-Avon, 14 East, 348 ; Rex v. Lincoln, 8 Ad. & El. 65 ; Rex V. Surrey, 2 C. & M. 455 ; Beaver V. Manchester, 8 E. & B. 44 ; Reg. *'. Southampton, 18 Q. B. 841 ; Rex v. Oxfordshire, 4 B. & S. 194; Nicholl V. Allen, 1 B. & S. 934 ; Reg. o. Com- missioners, 10 L. T. N. s. 375 ; Rex w. Yorkshire, 5 Burr. 2594 ; 2 Wm. Bk. 685 ; Flynn v. Canton Co., 40 Md. 312 ; Sayre «. North-western Turnpike Road, 10 Leigh, 454 ; Swineford v. Franklin Co., 6 Mo. App. 39; Maximilian v. Mayor, 62 N. Y. 160; Coulson & Forbes on Waters, 519 ; Orcutt v. Kittery Point Bridge Co., 53 Maine, 500. The owner of a toll-bridge is not liable as a commoh carrier, but is only bound to proper diligence in keeping, the bridge in repair. Grigsby v. Chap- pel, 5 Rich. (S. C.) 444. 3 Russell V. Men of Devon, 2 T, E. CHAP IV.] PUBLIC EIGHT OF NAVIGATION. 211 Under the last exception, a city which has possession and exclusive control of a public wharf or dock, and receives toll for its use, is liable to an individual who is injured upon the wharf, or whose vessel is damaged, in consequence of non- repair.^ Upon the ground of prescription, a municipal cor- poration has been held liable to a person who lost his navigation because of its neglect to repair and cleanse a tide-water creek,^ and for the same reason it may be liable to a private action for damages caused by its neglect to re- pair sea-walls.^ A city which, being under no legal obliga- tion to remove obstructions in a navigable river, attempts sO to do, but abandons the work without changing the position of an obstruction which afterwards causes injury to a vessel, is not liable therefor.'* 6G7 ; Hill v. Boston, 122 Mass. 344 Barnes v. District of Columbia, 91 U S. 540, 551 ; Dillon, Mun. Corp. c. 2.3 Gordon v. Taunton, 120 Mass. 349 Eiddle v. Locks & Canals, 7 Mass. 109 Mower v. Leicester, 9 Mass. 247 Pinch V. Board of Education, 30 Ohio St. 37 ; Pray v. Jersey City, 32 N. J. L. 394; Rowe u. Portsmouth, 56 N. II. 291 ; Eastman v. Meredith, 36 N. H. 284; Detroit v. Blackeby,21 Mich. .84; Eapho v. Moore, 68 Penn. St. 404 ; Baltimore v. Marriott, 9 Md. 160, 175 ; Cooper v. Athens, 53 Ga. 638 ; Aldrich v. Tripp, 11 R. I. 145. See Waltham c. Kemper, 55 111. 346; Chicago i;. Joney, 60 111. 383 ; Chica- go V. Dermody, 61 111. 431 ; Richmond V. Long, 17 Gratt. 375; Transporta- tion Co. u. Chicago, 99 U. S. 635 ; 7 Eiss. 45 ; Nugent v. Levee Commis- sioners, 58 Miss. 197. ' Pittsburgh v. Grier, 22 Penn. St. 54; Pittsburg Railway v. Gilleland, 56 Penn. St. 445, 451 ; Winpenny v. Philadelphia, 65 Penn. St. 135, 140 ; Philadelphia v. Gilmartin, 71 Penn. St. 140, 159; Snyder v. Philadelphia, 78 Penn. St. 23 ; Hey v. Philadelphia, 81 Penn. St. 44, 61 ; Maxwell v. The City, 7 Phlla. 137 ; Hill v. Boston, 122 Mass. 344, 376; Oliver i;. Worcester, 102 Mass. 489 ; Aldrich v. Tripp, 11 R. I. 141 ; Radway v. Briggs, 37 N. Y. 256 ; Kennedy v. New York, 73 N. Y. 365 ; Shinkle v. Covington, 1 Bush, 617 ; Memphis v. Kimbrough, 12 Hoisk. 133 ; Petersburg v. Applegarth, 28 Gratt. 321 ; Jeffersonville v. Louis- ville Perry Co., 27 Ind. 100 ; Jeffer- sonville V. The John Shallcross, 35 Ind. 19; Macauley v. New York, 07 N. Y. 602 ; Moody o. New York, 43 Barb. 282 ; Taylor v. New York, 4 E. D. Smith, 559 ; McGuiness v. New York, 52 How. Pr. 450; Seaman o. New York, 3 Daly, 147. An agree- ment by a municipal corporation to let a repairing dock, which it owns, but of wliich it retains the control and possession, is not an agreement as Jo an interest in land, and if the admis- sion of ships into the dock is a matter of frequent ordinary occurrence, the agreement need not be under the cor- porate seal. Wells v. Kingston-upon- Hull, L. R. 10 C. P. 402. '^ Lynn v. Turner, Cowper, 86. ^ Henly v. Lyme, 5 Bing. 91 ; 3 Mo. &P. 278; 3 B. & Ad. 77; 2 CI. & Fill. 331; 8 Bligh, N. E. 690; 1 Bing. N. C. 222; 1 Scott, 29; Hill v. Boston, 122 Mass. 344, 348, 360. * Goodrich v. Chicago, 4 Biss. 18. 212 THE LAW OF WATEES. [PAKT r. ■ § 117. Municipal corporations cannot engage in works of internal improvement, such as the construction of harbors, canals,^ etc., and loan their credit in aid thereof without special authority from the legislature.^ They have been thought not liable for acts which are ultra vires, as by erecting an embankment in excess of their powers which turns a stream upon the plaintiff's lands. ^ They may be empowered by the legislature to pass ordinances for the preservation of their harbors and water channels and the regulation of vessels and Avharves ; ^ to deepen and improve rivers, or to remove and prevent obstructions therein,* or to subscribe for stock in a company organized for the purpose of improving the navigation of a river contiguous to the city or town, even when the improvements extend through sev- eral towns or counties.® Special laws granting such powers and the right to levy taxes therefor are sustained by the courts, it is said, only when it is apparent that the works will be generally beneficial to the members of the corporation.^ ' Hasbrouck !•. Milwaukee, 1^^ Wis. 37 ; Miller v. Milwaukee, 14 Wis. 642 ; Oebricke v. Pittsburg, 5 Penn. L. J. Kep. 485 ; Anthony r. Adams, 1 Met. 284. « Anthony c. Adams, 1 Met. 284 ; Wheeler ;;. Essex Public Road Board, 39N. J. L. 291. But cf . posJ, § 260. ' Ibid. ; Muscatine ;•. Keokuk North- ern Line Packet Co., 45 Iowa, 185 ; Keokuk v. Keokuk Northern Line Packet Co., Id. 106; Culbertson r. The Southern Belle, Ncwb. 461 ; Soens u. Eacine, 10 Wis. 271 ; Has- brouck V. Milwaukee, 1.3 Wis. 37 ; 17 Wi3.'266 ; 21 Wis. 217 ; New York v. Ryan, 2 E. I). Smith, 368 ; People v. Bryan, 46 Barb. 355 ; Ogdensburg !'. Lyon, 7 Lans. 215; Ogdensburg v. Lovejoj', 2 S. C. 83; 10 Alb. L. J. 207; Brown v. Catlettsburg, 11 Bush, 435 ; Grant v. Davenport, 18 Iowa, 179 ; Philadelphia v. Field, 58 Penn. St. 320; New Orleans r. New Or- leans Railroad Co., 27 La. Ann. 414; EUerman v. McMains, 30 I^a. Ann. 190 ; Municipality No. 1 ,. Kirk, 5 La. Ann. .34; Shepherd v. Third Municipality, 6 Rob. (La.) 349 ; Tourne v. Lee, 20 Martin, 549 ; Greg- ory V. Bridgeport, 41 Conn. 76 ; Horn c. People, 26 Mich. 221; Marshall V. Vicksburg, 15 Wall. 146 ; Bacon c. Mulford, 41 N. J. L. 59 ; Geiger r. Filor, 8 Fia. 325 ; Eyansville v. Mar- tin, 41 Ind. 145 ; Jeffersonyille i: Louisville Ferry Co., 27 Ind. 100; Stevens v. Walker, 15 La. Ann. 577 ; Waddingliam v. St. Louis, 14 Mo. 190 ; ' Murphy v. Montgomery, 11 Ala. 586. " Rochester v. Osborn, 5 Lans. 3 ; Winpenny t. Philadelphia, 65 Penn. St. 135. ■' Taylor v. Newbern, 2 Jones Eq. 141. As to the prohibiting the re- moval of sand by city ordinances, see Clason V. Milwaukee, 30 Wis. 316. " Alexander ;•. Milwaukee, 16 Wis. 247 ; Miller u. Milwaukee, 14 Wis. 642 ; Hasbrouck v. Milwaukee, 13 Wis. 37 ; 17 Wis. 266; 21 Wis. 217; State 1-. Hasbrouck, 25 Wis. 122 ; Eeed , . Kne, 79 IVnii. St. 346. CHAP. IV.] PUBLIC EIGHT OF NAVIGATIOjST. 213 § 118. The principle under which special assessments are made by municipal corporations upon city lots, for improve- ments in adjoining streets or highways b}'' land, applies also to improvements in highways by water ;^ and such assess- ments maj' be authorized upon riparian proprietors whose estates are benefited thereby .^ A municipal corporation is under no obligation at common law to keep adjacent waters safe for navigation.^ A city which is invested by its charter with " the general powers possessed by municipal corporations at common law," may build a breakwater for the purpose of protecting its streets and the buildings thereon from inunda- tion, and a contract entered into for that purpose is binding on the city at large.* When such a corporation is authorized by statute to maintain, repair, and regulate docks and wharves for the free use of the public, or of those who pay toll, it is in general a power which cannot be delegated.^ A wharf erected ' Johnson ;;. Milwaukee, 40 Wis. 315. = Hale V. Kenosha, 29 Wis. 599; Bond V. Kenosha, 17 Wis. 284; Buf- falo Union Iron Works v. Buffalo, 13 Abb. Pr. (n. s.) 141 ; Wright k. Chica- go, 20 111. 252; Elston u. Chicago, 40 111. 514; Goddin o. Crump, 8 Leigh, 120 ; Harrison Justices v. Hol- land, 3 Gratt. 236 ; Frederick u. Au- gusta, 5 Ga. 561. " Seaman v. New York, 80 N. Y. 239 ; ante, § 98, N. * Miller v. Milwaukee, 14 Wis. 642; Soens V. Racine, 10 Wis. 271 ; Rpund- tree v. Galveston, 42 Texas, 613. The legislature may authorize a, city to acquire the fee of land necessary for the construction of a breakwater. Sweet ... Buffalo Railway Co., 79 N. Y. 203. '^ Oakland v. Carpentier, 13 Cal. 540; 21 Cal. 642; People v. Broad- way Wharf Co., 31 Cal. 33; Lord u. Oconto, 47 Wis. 386; Matthews v. Alexandria, 68 Mo. 115; Mobile v. Moog, 53 Ala. 561 ; Illinois Canal Co. 0. St. Louis, 2 Dillon, 70 ; Morris Co. V. Central Railroad Co., 16 N. J. Eq. 419. A city possessing the above au- thority may by ordinance prohibit the use of other wharves than those which it establishes. Dubuque r. Stout, 32 Iowa, 40, 47. The term " wharfage " includes a. charge for landing goods at a natural landing as well as at an artificial wharf. Sacra- mento I,'. New World, 4 Cal. 41 ; Sac- ramento V. Confidence, Id. 45. As to what constitutes a wharf, see Ibid.; Keokuk u. Keokuk Northern Line Packet Co., 45 Iowa, 190 ; Pitchburg Railroad Co. v. Boston Railroad Co., 3 Cush. 58 ; Stevens u. Rhinelander, 5 Rob. (N. Y.) 285 ; Decker v. Jaques, 1 E. D. Smith, 80 ; People v. Kelsey, 38 Barb. 269 ; 14 Abb. Pr. 372. Au- thority conferred upon a city to build a free bridge, to be paid for by taxa- tion, does not give it the right to es- tablish a toll bridge. Williams v. Davidson, 43 Texas, 2. But if a city has authority under general laws to erect and maintain toll-bridges, it may change a toll-bridge into a free bridge, and vice vcr.ta. Scott i'. Des Moines, 34 Iowa, 552. 214 THE LAW OF WATERS. [PAET I. by a city is presumably open to the public free of toU.^ If the corporation is expressly authorized by statute or by its char- ter to maintain a public wharf, or a free bridge or ferry, it cannot exact toll ; ^ nor being authorized by law to maintain a toll ferry, can it order the ferry to run without toll.^ When the privilege is granted of erecting a wharf or dock in a highway, it does not include the right to erect a ware- house ;* but a city which is invested vrith power to regulate and control its public wharves may authorize the erection of elevators thereon to facilitate the transshipment of grain.^ § 119. Piers, landing places, docks, and wharves may be private, or they may be in their nature public, although the property may be in an individual owner.® If a vessel is wrongfully moored to a private wharf, and the wharf- • owner necessarily sets it adrift, he incurs no Uability if, in conccquence of his act, the vessel is stranded and lost.^ When wharves beloijging to individuals are legally thrown open to the use of the public, they become affected with a public interest, and the wharfage must be reasonable.^ The keeping of such wharf is likened to the keeping of an inn, and all navigators have an implied license to moor their vessels to these wharves, an application to the owner for permission to do so not being necessary.^ If the owner of a ' Muscatine u. Keokuk Northern ' Dutton v. Strong, 1 Black, 23, 32 ; Line Packet Co., 45 Iowa, 185 ; Rus- Harrington o. Edwards, 17 Wis. 586. sell V. The Empire State, Newb. 541 ; The master of a vessel who wTong- Taylory. Atlantic Ins. Co., 37 N.Y. 275. fully places the vessel behind a sea- '' Mullarky v. Cedar Falls, 19 Iowa, wall, the exclusive right to use which, 21 ; Clark o. Pes Moines, 19 Iowa, as a place of shelter, has been given 198 ; Dively r. Cedar Falls, 27 Iowa, to another, is liable for the loss of the 227 ; Attorney General i-. Boston, 123 latter vessel in a storm, if, upon re Mass. 460. quest, he fails to remove his vessel ^ Attorney General v. Boston, 123 Derry v. Flitner, 118 Mass. 131. Mass. 460. ' s jjajp pe Portibus Maris, c. ' Bingham v. Doane, 9 Ohio, 165. Allnut v. Inglis, 12 East, 527 ; The "i Illinois Canal Co. v. St. Louis, Wharf Case, 3 Bland Ch. .361, 374 2 Dillon, 70. Munn v. Illinois, 94 U. S. 113, 151. " Hale, De Portibus Maris, c. 6 ; ' Heaney v. Heeney, 2 Denio, 625 Hargrave's Law Tracts, 77, 78 ; Munn Swords v. Edgar, 59 N. Y. 28. V. Illinois, 94 U. S. 113, 150 ; Bolt v. Stennctt, 8 T. K. 600. CHAP. IV.] PUBLIC BIGHT OF NAVIGATION. 215 public wharf sets adrift a vessel which is fastened thereto, and of which he has not requested the removal, he is liable for injury to the vessel occasioned thereby.^ The question whether a wharf is public or private depends upon the pur- pose for which it was built, the uses to which it has been applied, the place where located, and the nature and char- acter of the structure.^ When a public highway is laid ;. South Reading, 3 Allen, 601; Bigelow ;■. Hartford Bridge Co., 14 Conn. 565; Fall Vil- lage Co. /.-. Tibbetts, 31 Conn. 169; Erink v. Lawrence, 20 Conn. 120; Norwich Gas Light Co. v. Norwich Gas Co., 25 Conn. 35; O'Brien v. J'orwich Railroad Co., 17 Conn. 372; S.'eley l: Bishop, 19 Conn. 128; Thorn- ton V. Grant, 10 R. I. 477 ; Hamilton V. Whitridge, 11 Md. 128; Fort .-. Groves, 29 Md. 188; New York v. Baumberger, 7 Rob. 219 ; Hudson River Railroad Co. v. Loab, Ibid. 418 ; Knox V. New York, 55 Barb. 404 ; Mohawk Bridge Co. v. Utica Railroad Co., 6 Paige, 554 ; Corning v. Lowerre, 2 Johns. Ch. 4.39; Smith v. Lookwood, 13 Barb. 209 ; Davi^ v. New York, 14 N. Y. 506 ; 3 Duer, 119 ; Harrison j). Newton, 9 N. Y. Leg. Obs. 311, 347 ; Watertown v. Cowen, 4 Paige, 510 ; Savannah Railroad v. Shields, 33 Ga. 601 ; Mechling v. Kittanning Bridge Co., 1 Grant, 416; Ewell v. Greenwood, 26 Iowa, 377; Dela- ware Railroad Co. c. Stump, 8 Gill & J. 479; Jarvis v. Santa Clara Valley Railroad Co., 52 Cal. 438; Stevens i,. Paterson Railroad Co., 5 C. E. Green, 126; Scudder v. Trenton Falls Co., Sax. 694 ; Southard v. Mor- ris Canal Co., Id. 518 ; Denver Rail- way Co. V. Denver City Railway Co., 2 Col. 673 ; Ingram v. The C. D. & M. R. R. Co., 38 Iowa, 669; Prince .. McCoy, 40 Iowa, 533 ; Prosser v. Ottumwa, 42 Iowa, 509 ; Delaware Railroad Co. v. Stump, 8 Gill & J. 479; Roman r. Strauss, 10 Md. 89; Fort u. Groves, 29 Md. 188; Balti- more V. Gill, 31 Md. 375; Heerman v. Beef Slough Manuf. Co., 1 Fed. Rep. 145 ; Dawson v. St. Paul Ins. Co., 15 Minn. 136 ; Walker v. Shopardson, 4 Wis. 486 ; Shed v. Hawthorne, 3 Neb. 179; Middleton v. Franklin, 3 Cal. 238 ; Beveridge v. Lacey, 3 Rand. 63 ; Arnold v. Kleppcr, 24 Mo. 273 ; Coast Line Railroad Co. v. Cohen, 50 Ga. 451 ; Frizzle v. Patrick, 6 Jones Eq. 354. 220 THE LAW OF "WATERS. [PAET I. of equity will act with caution upon such a bill where an erection, such as a bridge or public mill, tends to promote the public convenience.^ The remedy by abatement is, ac- cording to numerous authorities, coextensive and concurrent with that by indictment.? Upon an indictment against a person who has obstructed the navigation, and who relies upon a license from the government to justify the act, he is required to prove compliance with every requirement of the statute, as an exception.^ In such a case, the indictment must aver that the limits of the statute are exceeded, and that the erection is not in pursuance of the authority given by the statute.* An indictment against a bridge corporation for neglect of a provision of its charter that " said bridge shall be so constructed as not to prevent the navigation of said Avaters," mxist directly allege that the bridge prevents navigation.^ By an uninterrupted user for twenty years the public may acquire a prescriptive right of navigation in inland waters which are private property ; ^ but lapse of time will not legalize a public nuisance.^ The continuance of a ' Barnes t . Calhoun, 2 Irefl. Eq. Delaney v. Boston, 2 Harr. (Del.) 199. 489; Burbaker v. Paul, 7 Dana, 429; ^ Post, §128 ; Knox v. Chaloner, Coolidge v. Learned, 8 Pick. 504; 42 Maine, 150; Arundell ;•. McCul- Sliaw u. Crawford, 10 Johns. 236, loch, 10 Mass. 70 ; Coates r. New 240 ; Ingram v. Police Jury, 20 La. York, 7 Cowen, 585; Miles f. Hall, 9 Ann. 226. Individuals acquire by AVend. 315 ; Hart r. Albany, 9 Wend, user no prescriptive right to navi- 571 ; Eenwick !;. Morris, 3 Hill (N.Y.) gate a public river, transversely or 621 ; 7 Ibid. 575 ; Wetraore n. Tracy, otherwise. Bird v. Smith, 8 Watts, 14 Wend. 250. 434. See Pearsall c. Post, 20 Wend. 'Commonwealth v. Church, 1 111 ; 22 Wend. 425; Curtis k. Keesler, Penn. St. 106; Eenwick l: Morris, 3 14 Barb. 511. Hill (X. y.) 621; 7 Ibid. 575; Knox ' Folkes v. Chad, 3 Dougl. 340; V. Chaloner, 42 Maine, 150; State v. King i. Montague, 4 B. & C. 598; Freeport, 43 Maine, 198; State r. Weld c. Hornby, 7 East, 195, 199; Dibble, 4 Jones (N. C.) 107, 115; Rex r. Cross, 3 Camp. 224, 227; Car- State V. Parrott, 71 N. C. 311 ; Healy ter v. Murcot, 4 Burr. 2162; Vooght V. Joliet Railroad Co., 2 Brad. (111.) v. Winch, 2 B. & Aid. 662; People .;. 435 ; Hogg v. Zanesville Canal Co., 5 Cunningliam, 1 Denio, 524 ; Pierson Ohio, 410. ,,. Elgar, 4 Cranch, C. C. 454; Coates * State V. Godfrey, 24 Maine, 232 ; i: New York, 7 Cowen, 558 ; Grill v. Rex V. Liverpool, 3 East, 86. Rome, 47 How. Pr. 398 ; Rochester * State V. Penobscot Railroad Co., v. Erickson, 46 Barb. 921 ; Ogdens- 57 Maine, 402. burg v. Lovejoy, 58 N. Y. 662 ; 2 Sup. ' Wheeler v. Spinola, 54 N. Y. 377; Ct. 83; Campbell c. Seaman, 2 Sup. CHAP. IV.] PUBLIC EIGHT OF NAVIGATION. 221 nuisance for twenty years -will not defeat either a prosecution for obstructing navigation,^ or the remedy by abatement ; ^ nor is it a bar to an action by an individual for special dam- age thereby caused.^ This rule applies to streams which are merely floatable, as well as to those which are navigable in the larger sense.* If specific penalties are imposed by statute, they are merely cumulative and not exclusive of the ordinary remedies, unless the intent to exclude them clearly appears in the act.^ But when an appropriate method of redress is provided by statute for a failure to observe its requirements, it Ct. 231 ; Mills i . Hall, 9 Wend. 315 ; Renwick v. Morris, 7 Hill (N. Y.) 575; 3 Ibid. 621; Kellogg t-. Thomp- son, 66 N. Y. 88 ; St. Vincent Orphan Asylum v. Troy, 76 N. Y. 108, 114 ; Simmons v. Cornell, 1 R. I. 519 ; Knox v. Chaloner, 42 Maine, 150; Davis v. Winslow, 51 Maine, 293; Gerrish v. Brown, Ibid. 256 ; Dyer v. Curtis, 72 Maine, 181 ; Commonwealth v. Howes, 15 Pick. 231, 233 ; Veazie v. Dwinel, 50 Maine, 479; Stoughton v. Baker, 4 Mass. 522 ; Arundel v. McCuUough, 10 Mass. 70 ; Commonwealth v. Tipton, 6 Gray, 473 ; Lewis ,;. Stein, 16 Ala. 214 ; Philadelphia's Appeal, 78 Penn. St. 33 ; Pettis v. Johnson, 56 Ind. 139 ; De Laney v. Blizzard, 7 Hun, 7 ; House t>. Metcalf, 27 Conn. 639 ; Philadelphia Railroad Co. v. State, 20 Md. 157; North Central Railway Co. v. Balti- more, 21 Md. 93 ; Pierson ;;. Elgar, 4 Cranch, C. C. 454 ; Cottrill v. Myrick, 12 Maine, 222; State v. Franklin Falls Co., 49 N. H. 240 ; Bird v. Smith, 8 Watts, 434 ; Commonwealth u. Mc- Donald, 16 S. & R. 390; Common- wealth V. Alburger, 1 Wharton, 469 ; Penny Pot Landing, 10 Penn. St. 79, 94 ; Philadelphia v. Philadelphia Rail- road Co., 58 Penn. St. 253 ; Johnson V. Irwin, 3 S. & R. 292 ; Douglass <■. State, 4 Wis. 387; Hoboken Land Co. !,•. Hoboken, 30 N. J. L. 540 ; In- gram V. Police Jury, 20 La. Ann. 226 ; People V. Pope, 53 Cal. 437 ; Nimmo XI. Commonwealth, 4 H. & M. (Va.) 57 ; Woolrych on Viators, 270. ' Ibid. ^ Ibid. ; Knox v. Chaloner, 42 Maine, 150 ; Renwick v. Morris, 3 Hill (N. Y.) 621; 7 Ibid. 575; Miles v. Hall, 9 Wend. 315; Stafford u. Ingersoll, 3 Hill, 38, 41. 8 Mills V. Hall, 9 Wend. 315; Mor- ton V. Moore, 15 Gray, 573, 576. * Knox V. Chaloner, 42 Maine, 150; Amoskeag Manuf . Co. u. Goodale, 46 N. H. 53. Whether the obstruction is accidental or intentional, it will not deprive the stream of its natural char- acter as a highway. Treat v. Lord, 42 Maine, 552. ' 6 Bacon's Abr. tit. Statute G. ; 2 Inst. 200; 2 Hawk. P. C. 301, 302; Rex V. Robinson, 2 Burr. 799, 803; Dwarris on Statutes, 678; Common- wealth V. Ruggles, 10 Mass. 391 ; Waterford Turnpike Co. u. People, 9 Barb. 161 ; Renwick v. Morris, 3 Hill (N. Y.) 621 ; 7 Ibid. 575 ; Wetmore v. Tracy, 14 Wend. 250, 255; Jackson c. Bradt, 2 Caines, 169 ; Pennington V. Townsend, 7 Wend. 276, 280 ; Crit- tenden V. Wilson, 5 Cowen, 165 ; Staf- ford V. Ingersoll, 3 Hill, 38. A stat- ute, declaring the obstruction of a private watercourse to be a public nuisance and indictable as such, is merely cumulative and does not de- prive the riparian proprietors of the common-law remedy of an action on the case or the right to abate the nui- sance. Welton V. Martin, 7 Mo. 307 ; State V. Moffctt, 1 G. Greene, 247. 222 THE LAW OF WATEES. [PAET I. is excliisive of the common-law remedies, as by abatement.^ If a bridge or road, constructed in a town across navigable waters, is built or laid out under an authority which is ad- judged void, the town is under no obligation to keep it in repair,^ unless it has so far treated the place as a public street, that it is estopped from denying that it is a public highway .3 A tenant cannot controvert his landlord's title, and, if no action is taken on behalf of the public for the removal of a mill erected upon the bed of a navigable stream, the lessee thereof cannot set up in defence to an action by the landlord for the possession, that the possession, if restored, would be an unlawful obstruction of the navigation.* So, in an action on the case for diverting water from the plaintiff's mill, it is no defence that the mill is built in the public domain of tide waters ; ® and the fact that a dam prevents the public passage of lumber does not justify a lower propri- etor in causing the water to flow back upon the dam.^ § 122. The general rule is that individuals are not en- titled to redress against a public nuisance. The private injury is merged in the common nuisance and injury to all citizens, and the right is to be vindicated and the wrong punished by a public prosecution, and not by a multiplicity of separate actions in favor of private persons.' If, however, a ' Criswell v. Clugh, 3 AVatts, .3.30 ; to an undertaking given on suing out Spigelmoycr o. Walter, 3 Watts & S. an injunction tliat the business which 540 ; Brown v. Commonwealth, 3 Serg. the defendant enjoined was a public & R.. 273 ; post, § 250. nuisance. Cunningham w. Breed, i '' Commonwealth v. Charlestown, 1 Cal. 384. Pick. 180; Jones v. Andover, 9 Pick. ^ Simpson i'. Seavey, 8 Maine, 138; ■ 146. Houston Railroad Co. ,;. Parker, 50 " Mayor v. Sheffield, 4 Wall. 189 ; Texas, 330. Houfe V. Fulton, 34 AVis. 608 ; Cod- « Odiorne v. Lyford, 9 N. H. 502 ; ner t'. Bradford, 3 Chand. (Wis.) 291; Lincoln t-. Chadbourne, 56 Maine, Williams o. Cummington, 18 Pick. 200 ; Stiles v. Hooker, 7 Cowen, 266. 312 ; Leavenworth r. Laing, 6 Kan- ' Bigelow, C. J., in Wesson v. sas, 274; McDonough K.Virginia City, Washburn Iron Co., 13 Allen, 95, 6 Nev. 90 ; Bissell v. Railroad Co., 101 ; Stetson v. Faxon, 19 Pick. 147 ; 22 N. Y. 258 ; Fort Plain Bridge Co. Thayer v. Boston, Ibid. 511, 514; Bor- V. Smith, 30 N. Y. 44. den v. Vincent, 24 Pick. 301 ; Quincy ^St. Anthony Falls Co. v. Mor- Canal r. Newcomb, 7 Met. 276,283; rison, 12 Minn. 249. It is no defence Holman v. Townscnd, 13 Met. 207, CHAr. IV.] PUBLIC EIGHT OF NAVIGATION. 223 public nuisance, such as an unlawful obstruction to a common l^assage, causes peculiar damage to an individual, he may- maintain an action therefor. In such case, the declaration or complaint need not negative the lawfulness of the ob- struction, or its continuance for a reasonable length of time, or that it was unavoidable because of inevitable accident, these being matters of defence to be set up by answer.^ But the particular damage is the gist of the action, and must be specifically set forth in the declaration.^ It is not enough that injury is shown, but it must be different in kind from 299 ; Smith v. Boston, 7 Cush. 254 ; Brainard v. Connecticut River Rail- road Co., 7 Cush. 506, 511 ; Blood v. Nashua & Lowell Railroad, 2 Gray, 140 ; Brightman v. Fairhaven, 7 Gray, 271 ; Harvard College v. Stearns, 15 Gray, 1 ; Willard t. Cambridge, 3 Allen, 574; Hartshorn v. South Read- ing, Ibid. 501 ; Fall River Iron Works Co. V. Old Colony Railroad, 5 Alien, 224; Shaubut v. St. Paul Railroad Co., 21 Minn. 502; Grigsby v. Clear Lake Water Co., 40 Cal. 396 ; Gor- don f. Baxter, 74 N. C. 470 ; Tn re Eldred, 46 Wis. 530, 541 ;■ Abbott v. Mills, 3 Vt. 521 ; Hatch v. Vermont Central Railroad Co., 28 Vt. 142 , Low V. Knowlton, 26 Maine, 128 ; Lansing V. Smith, 8 Cowen, 146 ; 4 Wend. 9 ; Lansing i. Wiswall, 5 Denio, 213 ; 5 How. Pr. 77 ; Fort Plain Bridge Co. V. Smith, 30 N. Y. 44 ; Anderson v. Rochester Railroad Co., 9 How. Pr. 653 ; Dougherty v. Bunting, 1 Sand. 1; Purcell c. Potter, Anth. (N. Y.) 310; Osborn v. Union Ferry Co., 53 Barb. 629 ; State v. Thompson, 2 Strob. (S. C.) 12; Gary o: Brooks, 1 Hill {S. C.) 365 ; Commissioners v. Tay- lor, 2 Bailey (S. C.) 282 ; McLaugh- lin V. Charlotte Railroad Co., 5 Rich. (S. C.) 593; Harrison v. Sterrett, 4 H. & McH. 540; Wroe v. State, 8 Md. 416; Baltimore v. Marriott, 9 Md. 160; Flynn c. Canton Co., 40 Md. 312;' Walter v. County Commission- ers, 35 Md. 385 ; South Carolina Rail- road Co. ,-. Moore, 28 Ga. 398 ; Gordon V. Baxter, 74 N. C. 470; Dunn c. Stone, 2 Car. L. Rep. 261 ; Morgan v. Graham, 1 Woods, 124 ; L. T. Co. u. S. & W. R. Co., 41 Cal. 562. ' Enos v. Hamilton, 27 Wis. 256. Erections in navigable waters, which are near the shore, and are not pro- hibited by any positive law or regula- tion, are presumed not to be obstruc- tions to navigation, and he who alleges that they are obstructions must prove it. Dutton f. Strong, 1 Black, 23; Yates !.■. Milwaukee, 10 Wall. 497. ' Baker o. Boston, 12 Pick. 184, 196; Atkins v. Boardman, 2 Met. 457 ; Houck i.. Wachter, 34 Md. 265 ; Baxter v. Winooski Turnpike Co., 22 Vt. 114; Hall i-. Kitson, 4 Chand. (Wis.) 20; Greene v. Nunnemacher, 36 Wis. 50; Carpenter v. Mann, 17 Wis. 155; Powers v. Irish, 23 Mich. 429 ; Dwinel v. "^^eazie, 44 Maine, 167, 175 ; Roseburg v. Abraham, 8 Oregon, 509 ; Farrelly v. Cincinnati, 2 Disney (Ohio) 516; Bristol Manuf. Co. u. Gridley, 28 Conn. 201 ; Taylor v. Mon- roe, 43 Conn. 36 ; Tomlinson v. Derby, Id. 562. See South Carolina v. Geor- gia, 93 U. S. 4, 14 ; Smith y. McCon- athy, 11 Mo. 517 ; Welton v. Martin, 7 Mo. 307; Payne v. McKinley, 54 Cal. 5.32. But it is not indispensable to a recovery that the injury shall be proved precisely as alleged. Mem- phis Railroad Co. i. Hicks, 5 Sneed, 427. And if a declaration in case de- 224 THE LAW OF WATEES. [PAET I. that sustained by the community at large.^ If a bridge is unlawfully constructed across a navigable stream and arm of the sea, the direct injury is to the navigation of the stream, which is a public interest, and the fact that the plaintiff alone navigates the river, and is the owner of the only wharf thereon above the bridge, being merely proof that the conse- quential damage to him is greater in degree than to others, does not establish his right to maintain an action, as other riparian owners and the rest of the public may suffer in the same way whenever they use the stream.^ "The case," says Gray, C. J.,^ " has no analogy to those in which an obstruc- tion in a navigable stream sets back the water upon the plaintiff's land,* or, being against the front of his land, entirely cuts off his access to the stream, and thereby causes a direct and peculiar injury to his estate, or in which the carrying on of an offensive trade creates a nuisance to the plaintiff." Where the plaintiff's predecessor in title dredged out a channel exceeding one thousand feet in length, about one-fourth of whicli was within his own dock, and the rest extended seaward through flats owned by other persons, it was held that the action of a city, in filling up by its sewers feotirely sets out the special damage v. South Beading, 3 Allen, 501 ; Wes- sustained by the plaintiff in conse- son v. AVashburn Iron Co., 13 Allen, quence of the obstruction preventing 95; Bray ton v. Fall Biver, 113 Mass. his passage with boats, the defect is 218 ; Borden v. Vincent, 24 Pick. 301 ; cured by a verdict in his favor, if the Smith v. Boston, 7 Cush. 257 ; Thayer issue joined compels him to prove the v. New Bedford Railroad, 125 Mass. special injury. Hally.Kitson,4Chand. 253; Breed z-. Lynn, 126 Mass. 367. (Wis.) 20; 3 Pin. 296. Damages sus- = 122 Mass. 3. tained by an mdividual after action ■• The defendant would be liable brought are recoverable in such action, for such injury. Turner v. Blodgett, Duncan u. Markley, Harper (S. C.) 5 Met. 240; Cogswell o. Essex Mill 276. Co., 6 Pick. 94; Grigsby v. Clear ' Ibid. : Houck v Wachter, 34 Md. Lake Water Co., 40 Cal. 396; Sinnick- 265 ; Schall v. Nusbaum, 56 Md. 512 ; son v. Johnson, 17 N". J. L. 129 ; Rowan Gilbert „. Morris Canal Co., 8 N. J. v. Johnson, Ibid. 154 ; Delaware Canal Eq. 495. Co. «. Lee, 22 N. J. L. 243 ; Glover v. 2 Blackwell v. Old Colony Railroad Powell, 10 N. J. Eq. 211 ; Carson v. Co., 122 Mass. 1; Blood v. Nashua Coleman, 11 N. J. Eq. 106; Crittenden Railroad Co., 2 Gray, 137 ; Lawrence v. Wilson, 5 Cowen, 165 ; Steele ,-. V. Fairhaven, 5 Gray, 110; Brightman Western Inland Lock Navigation Co., V. Fairhaven, 7 Gray, 271 ; Willard v. 2 Johns. 283. Cambridge, 3 Allen, 574; Hartshorn CHAP. IV.J PUBLIC EIGHT OF NAyiGATION. 225 the portion of the channel which was beyond the limits of the plaintiff's ownership, did not create an injury which differed in kind from that suffered by other persons owning lands upon the liarbor or navigating over the flats, and was not remediable by private action, although access to the plaintiff's wharf was thereby rendered more difficult and ex- pensive, and the wharf itself less valuable.^ If a portion of a lot of flats is taken by a railroad corporation under the right of eminent domain, and the access from navigable water to the remaining portion is thereby cut off, the value of such access may be considered by the jury in estimating the land-owner's injury ; but the possibility that the corpor- ation may construct side-tracks on the flats not taken for the purpose of filling the same more easily, or for business purposes, is not an element to be taken into consideration.^ § 123. If the wrong is actionable, it is none the less so because it is committed in such a way that the defendant may be liable to a public prosecution.^ Where sewers con- structed by a city caused a creek to be filled up directly in front of and adjoining the plaintiffs wharf, so that his vessels could not lie at 'the wharf on account of the dimin- ished depth of the water, the injurj^ to the plaintiff was. held to be different in kind and not merely in degree from that, sustained by the general public, and the plaintiff recovered damages in a private suit for this injury.* The court dis- ' Breed v. Lynn, 126 Mass. 367. ' Brewer v. Boston Railroad Co.,, The defendant in this case did not 113 Mass. 52, 58; Commonwealth v. except to the damages assessed for Vermont Railroad Co., 4 Gray, 22 ; the filling of that part of the cliannel Wesson i-. Washburn Iron Co., 13 which was within the limit of the Allen, 95; Brayton u. Fall River, 113 plaintiff's ownership. See, also, Bar- Mass. 218; Haskell v. New, Bedford, ron V. Baltimore, 2 Am. Jur. 203. 108 Mass. 208. ' Drury v. Midland Railroad, 127 * Brayton v. Fall River, 113 Mass. Mass. 571 ; Commonwealth v. Boston 218. In Haskell v. New Bedford, 108 &MaineRailroad, 3 Cush.25; Boston Mass. 208, which was a similar case, & "Worcester Railroad v. Old Colony the court say that neither, the special Railroad, 12 Cush. 605; Willard v. injury to the plaintiff by the fillinfc Cambridge, 3 Allen, 574 ; Harvard up of his dock, nor that occasioned Colleger. Stearns, 15 Gray, 1 ; Clement by making liis premises offensive and I. Burns, 43 N. H. 609. unhealthy was merged/in the common 226 THE .LAW OF WATERS. [PAET I. tinguished the case from that of Harvard College v. Steams,^ in which it was held that a private action would not lie upon proof merely that the defendant had filled up a naviga- ble creek and thereby rendered the plaintiff's land more difficult of access and less valuable. Whenever the obstruc- tion immediately adjoins or is against the front of the plain- tiffs premises, it is as to him a private nuisance for which an action will lie, or which may be restrained by injunction.^ But when it is at a distance from the plaintiff's land, and the only injury which he sustains consists of inconvenience nuisance. Locks and Canals v. Low- ell, 7 Gray, 223; Emery v. Lowell, 104 Mass. 1.3 ; Nichols v. Boston, 98 Mass. 39 ; Eames v. New England Worsted Co., 11 Met. 570; Child c. Boston, 4 Allen, 41 ; Sherman u. Toboy, 3 Allen, 7 ; Boston Rolling Mills V. Cambridge, 117 Mass. 306; Boston V. Richardson, 19 How. 263; 24 How. 188; Gerrish v. Brown, 51 Maine, 256 ; Franklin Wharf ,,. Port- land, 67 Maine, 46; Frink y. Law- rence, 20 Conn. 117; Clark v. Peck- ham, 9 R.L 455; lOR.L 35; Attorney General v. Birmingham, 4 Kay & Johns. 528. 1 15 Gray, 1. ^ Brayton v. Fall River, 113 Mass. 218; Haskell o. New Bedford, 108 Mass. 208; Blaekwell v. Old Colony Railroad Co., 122 Mass. 1 ; Breed v. Lynn, 126 Mass. 367 ; Barron v. Balti- more, 2 Am. Jur. 203 ; Boston v. Rich- ardson, 24 How. (U. S.) 188; Sim- mons V. Lillystone, 8 Exch. 431 ; Blundell v. Catterall, 5 B. & Aid. 287, 294, 304, 309 ; Somerset o. Fogwell, 5 B. & C. 883; Wilkes o. Hungerford Market Co., 2 Bing. N. R. 281 ; Rose V. Groves, 5 M. & G. 613; 6 Scott, N. R. 645 ; Lyon v. Fishmongers' Co., 1 App. Cas. 662 ; Green v. Kleinhaus, 2 Green (N. J.) 472; Williams v. Tripp, 11 R. I. 453 ; Abbott u. Mills, 3 Vt. 521 ; Cotton v. Mississippi Boom Co., 19 Minn. 497 ; Wilder v. De Cou, 26 Minn. 10; Walker v. Shepardson, .2 Wis. 384; 4 Wis. 486; Potter v. Menasha, 30 Wis. 492; Williams v. Smith, 22 Wis. 594; Hobart v. MU- waukee City Railroad Co., 27 Wis. 194; C. B. Railroad Co. v. Twine, 23 Kansas, 585 ; Frith v. Dubuque Rail- road Co., 45 Iowa, 406 ; Park v. C. & S. W. R. Co., 43 Iowa, 636 ; Cowell v. Martin, 43 Cal. 605; Meyers v. St. Louis, 8 Mo. App. 266; Lackland ;,. North Missouri Railroad Co., 31 Mo. 180; 34 Mo. 259; Price v. Knott, 8 Oregon, 438; Clark v. Peckham, 10 R. I. 35 ; 9 R. 1. 455 ; Venard v. Cross, 8 Kansas, 248; Schulte u. North Pacific Transportation Co., 50 Cal. 52 ; Yolo County ,,'. Sacramento, .369 Cal. 193 ; Blanc v. Klumpke, 29 Cal. 156 ; Courtwright v. B. R. Co., 30 Cal. 585; Aram o. Shallenbergcr, 41 Cal. 449 ; Clement v. Burns, 43 N. H. 609, 617, 619 ; Bowman v. Wathen, 2 Mc- Lean, 376 ; Blancliard v. Porter, 11 Ohio, 138 ; Crawford t . Delaware, 7 Ohio St. 459; Russell i. Bm-lington, 30 Iowa, 262; McMalion i. Council Bluffs, 12 Iowa, 208; Ewell v. Green- wood, 20 Iowa, 377; Cole c. Sprowl, 35 Maine, 161 ; Frink i. Lawrence, 20 Conn. 117 ; Reynolds v. Clarke, 1 Pitts. (Pa.) 9; Harrison i,-. Sterrett, 4 Har. & McH. 540; Strauss's Case, 37 Md. 237; Garitee r. Baltimore, 53 Md. 422; Enos i. Hamilton, 27 Wis. 256. One who has only a lease- hold interest in the premises may maintain the action. Knox ii. New York, 55 Barb. 404; 38 How. Pr. 67; De Laney v. Blizzard, 7 Hun, 7. CHAP. IV.J PUBLIC EIGHT OF NAVIGATION-. 227 or loss of access thereto, without direct and clearly defined damage other than the general depreciation of property com- mon in a greater or less degree to all the riparian owners similarly situated, and preventable by an abatement of the nuisance, the plaintiff cannot maintain an action.^ § 124. The English decisions distinguish between injuries to the riparian right of access and those which accrue to persons exercising the public right of navigation. In Rose v. Groves,^ in which an innkeeper recovered damages against the de- fendant for wrongfully preventing the access of guests to his house upon the river Thames, by placing timbers in the river opposite the inn, Tindall, C. J.,"said : ^ " This is not an action for obstructing the river, but for obstructing the access to the plaintiff's house on the river." In Attorney General v. Conservators of the Thames,* Lord Hatherley said : " I apprehend that the right of the owner of a private wharf, or of a roadside property, to have access thereto, is a totally ' Harvard College v. Stearns, 15 Gray, 1 ; Transportation Co. v. Chi- cago, 99 U. S. 635; Lansing v. Smith, 8 Cowen, 146 ; 4 Wend. 9 ; Manhattan Gaslight Co. u. Barker, 36 How. Pr. 233; Bailey v. Philadelphia Railroad Co., 4Harr. (Del.) 389; McLaughlin D. Charlotte Railroad Co., 5 Rich. (S. C.) 583; Kearns v. Cordwainers' Co., 6 C. B. N. s. 388; Bigelow v. Hartford Bridge Co., 14 Conn. 565; O'Brien r. Norwich Railroad Co., 17 Conn. 372; Clark v. Saybrook, 21 Conn. 222 ; Seeley v. Bishop, 19 Conn. 135 ; Burrows u. Pixley, 1 Root, 363 ; Aram v. Shallenberger, 41 Cal. 449; Cowell V. Martin, 43 Cal. 605 ; Hop- kins V. Western Pacific Railroad Co., 50 Cal. 190; Schulte ,;. North Pacific Transportation Co., 50 Cal. 592; George v. Northern Pacific Railroad Co., 50 Cal. 589 ; Bigley v. Nunan, 53 Cal. 403; Severy v. Central Pacific Railroad Co., 51 Cal. 194; Jarvis v. Santa Clara Valley Railroad Co., 52 Cal. 438 ; Folsom v. Freeborn, 23 Alb. L. Jour. 497 ; Kinealy u. St. Louis Railway Co., 28 Am. Law. Reg. 124 ; Harrison ?;. Sterrett, 4 H. & McH. 540; White V. Flannigan.'l Md. 539. 25 M. & G. 613; 6 Scott, N. R. 645; Wilkes v. Hungerford Market Co., 2 Bing. N. R. 281; Pentley v. Lynn Paving Commissioners, 13 W. R. 983; Stephen v. Costor, 3 Burr. 1408; Wyatt v. Thompson, 1 Esp. 252; Anon., 1 Camp. 517, note; Rex V. Russell, 6 B. & C. 566; Attorney General v. Conservators, 1 H. & M. 1 ; Ifearns v. Cordwainers' Co., 6 C. B. N. s. 388 ; Lyon v. Fishmongers' Co., 1 App. Cas. 662, and L. R. 10 Ch. 679; Moore v. Great Southern Railway Co., Ir. R. 10 C. L. 46 ; Richardson v. Boston, 24 How. 188; Yates v. Mil- waukee, 10 Wall. 497; Haskell u. New Bedford, 108 Mass. 208, 216. » 5 Man. & G. 613; 6 Scott, N. R. 645. ■" 1 H. & M. 1. 228 THE LAW OP "WATERS. [PAET I. different right from the public right of passing and repassing along the highway on the river." And in Lyon v. Fish- mongers' Company,,^ Lord Cairns, L. C, said, referring to Rose V. Groves: "As I understand the judgment in that case, it went, not on the ground of public nuisance, accom- panied by particular damage to the plaintiff, but upon the principle that a private right of the plaintiff has been inter- feiecl with." — "Independently of the authorities, it appears to me quite clear that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. The public have no right to step on to the land of a private proprietor adjoining the road. And though it is easy to suggest metaphysical difficulties, when an attempt is made to define the private as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right." According to these decisions, which do not differ in principle from Brayton v. Fall River and Haskell v. New Bedford, it is the right of access to and from the highway, and not the right of access by means of the highway, which is regarded as a private right.^ An obstruction in front of one's o-\vn premises may prevent his entering upon the highway and thus interfere with a peculiar right. But when he is once upon the highway, he is a traveller like the rest of the public, and though an obstruction at a distance may as effectually prevent ingress and egress as when it is opposite his door, yet the right to pass along the way is one which he shares in common with the general public. Injuries to riparian ' 1 App. Cas. 662; L. K. 10 Ch. C. P. 400; Fitz <.. Hobson, 28 W. K. 679 ; Bell v. Quebec, 5 App. Cas. 84 ; 459, 722. Brown v. Gugy, 2 Moo. P. C. (n. s.) '^ In other words, the distinction is 341 ; Buccleugh v. Metropolitan Board between rights of immediate access of Works, L. R. 5 H. L. 418; Metro- from a man's property to a highway, politan Board of Works v. McCarthy, and the power to complain of a mere L. R. 7 H. L. 24.3 ; Beckett ;•. Mid- obstruction in the highway. See cases land Railway Co., L. R. ?, C. P. 82; above cited ; also, Caledonian Railway Lord V. Commissioners of Sydney, 12 Co. ( . Ogilvy, 2 Macq. Sc. App. 229; Moo. P. C. 47.3; Minor i.. Gihnour, Montreal r. Drummond, 1 App. Cas. Ibid. 131 ; Bcr jamin o: Storr, L. R. 9 384 ; Bell ,-.. Quebec, 5 App. Cas. 84, 97 CHAP. IV.] PUBLIC EIGHT OF NAVIGATION. 229 owners arising from obstructions to the navigation may thus differ from those sustained by members of the public who are simply prevented from exercising the common right of passage upon the water. § 125. A private action also lies, according to numerous decisions, in favor of the owners of vessels which have been wrecked or injured, without negligence on the part of those in charge, in consequence of unlawful obstructions in navigable waters ; and such an action has frequently been maintained by those whose vessels have been thus delayed, or lost their voyage.^ One who suffers no pecuniary damage from an obstruction in a highway, but is merely put to the inconven- ience, common to all who use the way, of removing the obstruction or of taking a more circuitous route, cannot maintain an action.^ In New York any expense or delay, however trifling, incurred by one member of the public in removing an unlawful obstruction in a highway has been held to be ground for an action,^ and damages may be recovered for a peculiar private injury caused thereby, though a like injury is sustained by numerous other persons.* § 126. It has been held that one who is prevented from abating the nuisance can recover the damages which he sus- ' Hogg V. ZanesTille Canal Co., 5 Eliz. 664 ; Hubert v. Groves, 1 Esp. Ohio, 410; Guthrie o. McConnel, 1 148; Carpenter d. Mann, 17 Wis. 155; West. L. M. 593 ; Porter v. Allen, 8 Greene c. Nunnemacher, 36 AVis. 50 ; Ind. 11 ; Columbus Ins. Co. v. Peoria Houck v. Wachter, 34 Md. 265 ; Ship- Bridge Co., 6 McLean, 70; Irwin u. ley v. Caples, 17 Md. 179; Garitee v. Sprigg, 6 Gill, 203 ; Owings v. Jones, Baltimore, 53 Md. 422, 437 ; Fai-relly 9 Ind. 108; Baltimore o. Marriott, v. Cincinnati, 2 Disney (Oliio) 516; Id. 160 ; Flower o. Adam, 2 Taunt. McCowan v. Whitesides, 31 Ind. 235 ; 314; Butterfield v. Forrester, 11 East, Shed v. Hawthorne, 3 Neb. 179; Barr CO; Marriott v. Stanley, 1 M. & G. «. Stevens, 1 Bibb, 292. See Pittsburgh 568; Smith v. Smith, 2 Pick. 621; w. Scott, 1 Penn. St. 309. President y.Dusouehett, 2 Cart. (Ind.) ^ Pierce v. Dart, 7 Cowen, 609; 586; Kennard o. Burton, 25 Maine, Lansing v. Wiswall, 5 Denio , 213; 39; Harlow v. Humiston, 6 Cowen, Lansingi-. Smith, 4 Wend.9; 8 Cowen, 189; Plumer u. Alexander, 12 Penn. 146; Hudson Piver Railroad Co. t. St. 81 ; Irwin v. Sprigg, 2 Bland, 2. Loeb, 7 Rob. 418. ,= Winterbottom o. Derby, L. R. 2 ■> Francis u. Gohoellkopf, 53 N. V. Ex. .316; Wiggin ,.-. Boddington, 3 C. 152; Soltau v. Do Hold, 2 Sim. N. s. & P. 544; Fincaux ,.. Hovcndcn, Cro. 133. 230 THE LAW OF W^TEKS. [part I. tains by the consequent delay or loss of his voyage.^ And, by the apparent weight of authority, at least of the older decisions, one who (being, as it is said, in actual occupation of the navigation, and not merely having it in contempla- tion 2) is forced by the obstruction, not merely to go a longer way, but to carry his cargo overland in order to reach a particular point, or to abandon his voyage, suffers peculiar damage, distinguishable from that inflicted upon the general public and entitling him to recover the additional expenses to which he is unlawfully subjected.^ But the evidence of damage must be direct and positive ; * and if the plaintifp is himself responsible for the obstruction in whole or in part, or if his own want of ordinary caution is the cause of the injury,^ he cannot recover.^ A company, incorporated for the purpose of improving a navigable river which suffers a loss ' Chichester i: Lethbridge, Willes, 71; Hart v. Bassett, T. Jones, 156; Winterbottom v. Derby, L. R. 2 Ex. 316 ; Hughes v. Heiser, 1 Binney, 463. 2 Rose V. Miles, 4 M. & S. 101. ^ Cases above, notes 1, 2 ; Rose v. Miles, 4 M. & S. 101; Blagrave v. Bristol Water Works Co., 1 H. & N. 367 ; Bacon v. Arthur, 4 Watts, 437 ; Williams v. Tripp, 11 R. I. 447 ; Hart V. Bassett, T. Jones, 156 ; Maynell u. Saltmarsh, 1 Keb. 847 ; Wiggins v. Boddlington, 3 Car. & P. 156 ; Iveson t: Moore, Carth. 451 ; 1 Ld. Raym. 486; Salk. 15; Greasly v. Codling, 2 Bing. 263; 9 Moore, 489; Lyme Regis V. Henley, 1 Bing. N. R. 222 ; 3 B. & Ad. 77 ; 2 CI. & Fin. 331 ; AVilkes v. Hungerford Market Co., 2 Bing. N. C. 281 ; Dudley v. Kennedy, 63 Maine, 465 ; Brown v. Watson, 47 Maine, 161 ; Veazie v. Dvvinel, 50 Maine, 490; Gerrish v. Brown, 51 Maine, 256 ; Cole v. Sprowl, 35 Maine, 161 ; Low V. Knowlton, 26 Maine, 128 ; Stetson V. Faxon, 19 Pick. 147; At- kins V. Bordman, 2 Met. 457, 469 ; Har- vard College V. Stearns, 15 Gray, 1, 6 ; Blackwell v. Old Colony Railroad Co., 122 Mass. 1 ; Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237; United States v. New Bedford Bridge, 1 Wood. & M. 401 ; Clark v. Peckham, 10 R. L 35; Enos v. Hamilton, 27 Wis. 250; Hall v. Kitson, 4 Chand. (Wis.) 20; Pittsburgh „. Scott, 1 Penn. St. 309; Bacon v. Arthur, 4 Watts, 437 ; Rhines v. Clark, 51 Penn. St. 96; Philadelphia ;;. Collins, 68 Penn. St. 106; Philadelphia v. Gil- martin, 71 Penn. St. 140 ; Newbold v. Mead, 57 Penn. St. 487; Powers „. Irish, 23 Mich. 429; Martin <.. Bliss, 5 Blackf . 35 ; Memphis Railroad Co. V. Hicks, 5 Sneed, 427; South Caro- lina Railroad Co. u. Moore, 28 Ga. 398; Tyrrell v. Lockhart, 3 Blackf. 136 ; Brown ... Scofield, 8 Barb. 239. Contra, Carey v. Brooks, 1 Hill (S. C.) 365; McLauchlin v. Railroad Co., 5 Rich. (S. C.) 592 ; Houston v. Police Jury, 3 La. Ann. 566. 'Powers V. Irish, 23 Mich. 429; Baxter n. Wlnooski Turnpike Co., 22 Vt. 114 ; Brown v. Watson, 47 Maine, 161 ; Milarkey v. Foster, 6 Oregon, 378. ^ Ante, § 92 ; post, § 128. ^ McGinnis v. Blackman, 39 Mich. Ill; Flynn v. Canton Co., 40 Md. 312. CHAP. IV.] PUBLIC EIGHT OP NAVIGATION. 231 of its tolls in consequence of an unauthorized bridge across the river, may maintain a suit to prevent its completion.^ So the obstruction of a canal, though amounting to a public nuisance, is actionable when it involves the breach of a private warranty.^ The owner of a ferry beyond the limits of a city from which public travel is diverted by the failure of the city to keep a certain street in repair, suffers no injury other than that shared by the general public in being deprived of the right of passage, and is not entitled to maintain an action for such injury.^ § 127. In Enos v. Hamilton,* in Wisconsin, the plaintiff had a tannery in the village of New London on the Wolf Eiver, and procured the bark necessary for carrying on his business at a point upon the Wolf River about sixty miles above New London, which was the only place where the bark required could be obtained. The Wolf River between these points is a navigable stream, and the defendants obstructed that part of the river so that the plaintiff could not obtain the bark, and his business was injured. It was held that peculiar damage to the plaintiff was established, and that the action could be maintained. The opinion refers to earlier decisions in Massachusetts,^ but is not reconcilable with the later decisions in that State.® It has, however, more or less support in the decisions of other States.^ ' Wisconsin River Improvement Cush. 254 ; Brainard u. Boston, Id. Co. V. Lyons, 30 Wis. 61. 506 ; Holmes v. Townsend, 13 Met. ^ Bruning v. New Orleans Canal 297 ; Carpenter v. Mann, 17 Wis. 155. Co., 12 La. Ann. 541. Obstructions " Ante, § 122. to the navigation do not excuse the ' Tinsman v. Belvidere Delaware breach of n, contract to deliver mer- Railroad Co., 26 N. J. L. 148 ; 25 chandise by a certain day. Dodge v. N. J. L. 255 ; Shephard v. Barnett, 52 Van Lear, 5 Cranch, C. C. 278. Texas, 638; Hickok o. Hine, 23 Ohio ^ Prosser v. Ottumwa, 42 Iowa, 509. St. 523. See Maxwell v. Bay City < 27 Wis. 256 ; 24 Wis. 658 ; Barnes Bridge Co., 46 Mich. 278; New V. Racine, 4 Wis. 454; Walker u. York v. Baumberger, 7 Rob. (N. Y.) Shepardson, 2 Wis. 384. 219 ; Hudson River Railroad Co. u. ' Citing Stetson v. Faxon, 19 Pick. Loeb, 7 Rob. 418 ; Manhattan Gas- 147 ; Blood v. Nashua Railroad Co., light Co. v. Barker, 7 Bob. 523 ; 36 2 Gray, 137 ; Smith v. Boston, 7 How. Pr. 233. 232 THE LAW OF WATERS. [part I. § 128. A common nuisance may be abated without com- pensation^ and without notice.^ When a public highway is unlawfully obstructed, any individual who has occasion to use it, and is thereby stopped in his journey, may remove the obstruction in order to effect a passage ;8 and he may enter upon the land of the person erecting or continuing the obstruction, if necessary to remove it.* It has been held that the remedies by abatement and by indictment are in all respects concurrent and co-extensive, and that any person representing the public may abate a common nuisance.* An individual cannot, however, abate a common nuisance, if it would cause a breach of the peace ;^ and, although the public remedy may be pursued whenever the passage is partially obstructed, the master of a vessel would not be justified in running his vessel upon the obstruction unneces- ' Coe V. Schultz, 47 Barb. 64 ; Man- hattan Manufacturing Co. v. Van Keuren, 23 N. J. Eq. 251. '•' Missouri River Packet Co. u. Hannibal Railroad Co., 1 McCrary, 281. ^ Arundel v. McCulloch, 10 Mass. 70; Wales v. Stetson, 2 Mass. 143; Garey v. Ellis, 1 Cush. 307; Brown V. Perkins, 12 Gray, 89; Willis :.-. Sproule, 13 Kansas, 257 ; Beach v. Schoff, 28 Penn, St. 195 ; Owens V. State, 52 Ala. 400 ; Hopkins i,. Crombie, 4 N", H. 520; State v. Anthoine, 40 Maine, 435 ; Lincoln „. Chadbourne, 56 Maine, 197 ; Earp V. Lee, 71 111. 193; Rung u. Shone- berger, 2 Watts, 23 ; Selman v. Wolfe, 27 Texas, 68 ; James v. Hayward, Cro. Car. 184 ; Harrington v. Edwards, 17 Wis. 586; Williams v. Eink, 18 Wis. 265 ; King r. Sanders, 2 Brev. (S. C.) Ill; Dimmett n. Eskridge, 6 Munf. 308. ■• Arundel v. McCulloch, 10 Mass. 70. s Renwick v. Morris, 3 Hill, 621 ; 7 Hill, 575; Coates v. New York, 7 Cowen, 558, 600; Mills v. Hall, Wend. 315 ; Burnham c. Hotchkiss, 14 Conn. 310, 317 ; Gunter v. Geary, 1 Cal. 462 ; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 566 ; Kno.x t,. Chaloner, 42 Maine, 150 ; McLean V. Mathews, 7 Brad. (111.) 599; State v. Parrott, 71 N. C. 311; Gates v. Blincoe, 2 Dana, 158 ; Gray v. Ayres, 7 Dana, 375 ; Brubaker v. Paid, Ibid. 428; Manhattan Manuf. Co. v. Van Keuren, 23 N. J.' Eq. 251 ; Hale, Do Portibus Maris, c. 7 ; Hargrave's Law Tracts, 87, 88 ; Harvey u. Dewoody, 18 Ark. 252 ; 4 Black. Com. 167 ; Bae. Abr. tit. Nuisance, 6; Com. Dig. tit. Action on the Case for Nuisance, D. 4. See Williams v. Blackwell, 32 L. J. E.x. 174 ; Tarrar u. Nunamaker, 5 Rich. (S. C.) 484. In Virginia, a court of equity may restrain the threatened abatement of a mill dam, on the ground of obstructing the navigation, until the right to main- tain the dam is decided. Crenshaw v. Slate River Co., 6 Rand. 245. 6 Earp v. Lee, 71 111. 193 ; Day v. Day, 4 Md, 262 ; Turner v. Holtzman, 54 Jld. 148 ; Mohr o. Gault, 10 Wis. 513 ; Smart v. Commonwealth, S!7 Gratt. 950, 953. Contra, that all neces- sary force may be used to effect a passage when resistance is made, see Brubaker v. Paul, 7 Dana, 428. CHAP. IV.] PXTBLIC EIGHT OF NAVIGATION. 233 sarily or wantonly, thereby injuring property whicli is so placed as to constitute a common nuisance, but which does not interfere with the reasonable prosecution of his voyage.^ So a private individual cannot abate the nuisance to a greater extent than is necessary to effect a passage,^ and is liable for doing an unnecessarj'' injury, and he cannot convert to his own use the materials of which the structure is com- posed.^ " This right and power," says Shaw, C. J.,* "is never ' Colchester v. Brooke, 7 Q. B. 339 ; Dimes v. Petley, 15 Q. B. 276 ; Bate- man V. Bluck, 18 Q. B. 870 ; Davies v. Mann, 10 M. & W. 545; Bridge r. Grand Junction Eailway Co., 3 M. & W. 244 ; Eastern Railway Co. v. Dor- ling, 5 C. B. N. s. 821; Rady v. Lon- don Railway Co., 1 App. Cas. 754 ; L. R. 10 Ex. 100 ; 9 Ibid. 71 ; Roberts V. Rose, L. E. 1 Ex. 82; 3 H. & C. 162; Cobb v. Bennett, 75 Penn. St. 326 ; The C. D. Jr., 1 Newb. Adm. 501 ; Norris v. Litchfield, 35 N. h. 271; Kerwacker v. Cleveland Railroad Co., 3 Ohio St. 172 ; Lovett v. Salem Rail- road Co., . 9 Allen, 557 ; Pileher v. Hart, 1 Humph. 524; Smart v. Com- monwealth, 27 Gratt. 950, 953. ' Ibid. ; Bird v. Holbrook, 4 Bing. 628; Hicks v. Dorn, 42 N. Y. 47, 52 Elyw. Supervisors, 36 N. Y. 297 Blodgett .,. Syracuse, 36 Barb. 529 narrower v. Ritson, 37 Barb. 301 Griffiths. McCuUum, 46 Barb. 561 Dyer v. Dupri, 5 "Whart. 587 ; Gold- smith u. Jones, 43 How. Pr. 415 Korthrop u. Burrows, 10 Abb. Pr 365; Owens v. State, 52 Ala. 400 State V. Moflet, 1 G. Greene, 247 Moffett u. Brewer, 1 G. Greene, 348 Morrison v. Marquardt, 24 Iowa, 35 Brown v. Chadbourne, 31 Maine, 9 Dwinel v. Veazie, 44 Maine, 167 Veazie <,. Dwinel, 50 Maine, 479, 496; Prescott v. Williams, 21 Pick, 241; Gates i-. Blincoe, 2 Dana, 158 Graves v. Shattuck, 35 N. H. 257 Hopkins ^. Crombie, 4 N. H. 520 PhiUber v. Matson, 14 Penn. St. 306 Beach v. Schofe, 28 Penn. St. 195 See Criswell v. Clugh, 3 Watts, 330 ; Dimmett v. Eskridge, 6 Munf. (Va.) 308. ' Larson v. Eurlong, 50 Wis. 681 ; State V. Taylor, 27 N. J. L. 117. * Brown i . Perkins, 12 Gray, 89, 101. A city, charged with the duty of preventing obstructions to naviga- tion, may abate them as nuisances. Hart V. Albany, 9 Wend. 571. But the city must be prepared to show that a nuisance actually exists. Yates V. Milwaukee, 10 Wall. 497; Evansville i. Martin, 41 Ind. 145. A person is not precluded, by abat- ing a nuisance, from bringing an action for the damages which he has previously sustained thereby. Gleason v. Gary, 4 Conn. 420; Pierce v. Dart, 7 Cowen, 609; Lans- ing V. Smith, 4 Wend. 9 ; Hudson River R. Co. v. Loeb, 7 Rob. 418; Call u. Buttrick, 4 Cush. 345. Nor, after an action has once accrued for obstructing a right of way, does an offer by the defendant to remove the obstruction deprive the plaintiff of his right to damages occurring prior to the offer. Green v. Caulk, 16 Md. 556. But the defendant is only liable for damages prior to the suit. Hop- kins V. Western Pacific Railroad Co., 50 Cal. 191. In Crenshaw v. Slate Eiver Co., 6 Rand. ( Va. ) 245, a cor- poration claimed the right to abate a mill-dam as a nuisance to the naviga- tion of a stream; and, it appearing that such abatement would cause great loss to the mill-owner and in- convenience to the public, it was held 234 THE LAW OF WATERS. [PAET I. entrusted to individuals in general, without process of law, by way of vindicating the public right, but solely for the relief of a party whose right is obstructed by such nuisance." The rule supported by the weight of authority appears to be that an individual cannot abate a public nuisance unless he suffers some special damage, not common to the rest of the public, entitling him to maintain an action.^ If the abate- ment is lawful, the intent in making it is immaterial. Thus a person who has a right to pass from a highway to navigable waters may remove, with as little injury as possible, a fence which obstructs his right of passage, although his purpose may be to commit a nuisance by filling up the creek.^ Where a building was unlawfully erected in tide water in front of certain villa lots, it was held that the owner of the lots had no right to abate it, either upon the ground that the building was unsightly and diminished the saleable value of the lots by interfering with the prospect therefrom, or because the access to the lots by water was thereby made less convenient, it not appearing that their owner or any other person had approached or had occasion to approach them from the water, or that the building wholly prevented such access.^ § 129. In Gibbons v. Ogden,* the Supreme Court of the United States decided in 1824 that the word " commerce," that a court of equity had jurisdiction Wetmore v. Tracey, 14 Wend. 250 to prevent the intended abatement Griffith u. McCulIum, 46 Barb. 561 until tlie right to maintain tlie dam Harrower u. Ritson, 37 Barb. 301 was decided. Goldsmith v. Jones, 43 How. Pr. 1 Authorities cited above, notes 415. 1-4. Larson v. Furlong, 50 Wis. 687 ; '^ Harvard College y. Stearns, 15 Barnes v. Racine, 4 Wis. 454 ; Greene Gray, 1. B. Nunnemacher, 36 Wis. 50 ; Brown '■> Bowden v. Lewis, 13 E. 1. 189; 23 V. Perkins, 12 Gray, 89 ; State v. Paul, Alb. L. J. 492. 5 R. I. 185 ; State v Keeran, 5 R. I. ^ 9 Wheat. 1 ; Veazie r. Moore, 14 497; Great Falls Co. v. Worster, 15 How. 568, 573; Brown o. Maryland, N. H. 438; Amoskeag Manuf. Co. 12 Wheat. 419; Lord v. Steamship V. Goodale, 46 N. H. 53 ; Clark v. St. Co., 102 U. S. 541 ; Railroad Co. v. Clair Ice Co., 24 Mich. 508 ; Finley v. Richmond, 19 Wall. 584; New York Hershey, 41 Iowa, 389 ; McGregor v. v. Miln, 11 Peters, 102 ; The License Boyle, 34 Iowa, 268; Fort Plain Cases, 5 How. 504; Cooley <-■. Board Bridge Co. v. Smith, 30 N. Y. 44; of Wardens, 12 How. 299; 1 Kent Rogers v. Rogers, 14 Wend. 131 ; Com. 439. CHAP. IV.] PUBLIC EIGHT OF NAVIGATION. 235 as employed in the Constitution, is not limited to trade or traffic, but includes the navigation of rivers, bays, and harbors of the several States, and the intercourse between nations or citizens connected with such navigation ; that this constitutional power is not limited by the external bounds of a State, but extends to the interior thereof in favor of citi- zens of other States, but not in cases between citizens of the particular State, or between different parts of the same State which are not accessible from other States ; and that the exclusive power to regulate commerce between the States is vested in Congress. In the important case of Pennsylvania V. Wheeling Bridge Co.,^ decided in 1851 by the same court, it appeared that under a statute of the State of Virginia a bridge had been erected across the Ohio River, having but a single span, about 980 feet in length, without draws or open- ings, and that steamboats or sail vessels could not pass under it at all states of the water. Congress had previously regu- lated navigation upon this river by licensing vessels, estab- lishing ports of entry, and imposing duties on masters of vessels, and had approved the compact between the States of Virginia and Kentucky, which provided that the naviga- tion of the river should be free and common to all citizens of the United States. It was held that the Ohio was a navigable stream, subject to the commercial power of Con- gress, and that the action of Congress respecting the river excluded State legislation ; and the bridge was ordered to be removed unless the defendants should open an unobstructed passage for vessels by a day named. It was held that this might be done bj' erecting a bridge which, for the space of 300 feet over the channel of the river, should have an eleva- tion of 111 feet above low-water mark.^ It being subse- quently agreed by the parties that a draw which was deemed of sufficient width by the court might be constructed over the western channel of the river, the bridge, as constructed over the main or eastern channel, v^as permitted to stand,^ and a subsequent act of Congress, declaring the bridge a law- ' 13 How. 518; 18 How. 421. » 13 How. pp. 577, 619, 627. ^ 13 How. p. 578. 236 THE LAW OF WATERS. [PART I. fill structure, was held to be valkl.^ In People v. Kelly ,2 the Court of Appeals of New York held that Congress could authorize the construction of the suspension bridge across the East River, between the cities of New York and Brook- lyn, although it would, to some extent, interfere with the navigation ; that the determination of Congress, as to the extent of the interference which would be permitted, was con- clusive ; that Congress might devolve upon the Secretary of War the power to approve or prescribe the plan for the bridge ; that the Secretary of War could convey the notifica- tion in any way that would be effectual, and that notice of approval, given through one of his subordinates, was suf- ficient. In United States v. Duluth,^ it was held that the action of Congress, in making appropriations for the improve- ment of the navigation between Lake Superior and Superior Bay, was sufficient to preclude State legislation authorizing a canal for the improvement of Duluth harbor, which would seriotisly interfere with the work of the general government, the engineers of the war department, who had the control of the appropriations, being of the opinion that the work authorized by them at the mouth of the St. Louis River was the true mode of improving the entrance to Superior Bay, in which was the harbor of Duluth. The United States may restrain by injunction those who act under State authority from so floating logs, or doing other acts as to seriously injure its improvements of navigation.* But the courts will not interfere in cases where it does not appear that acts done under such authority will prevent the carrying into effect of legislation by Congress for the survey and improvement of a navigable river.^ > 18 How.'421 ; The Clinton Bridge, " 76 N. Y. 475 ; Miller v. New 10 Wall. 454 ; 1 Woolvv, 150 ; South York, 18 Blatch. 212. Carolina v. Georgia, 93 tJ. S. 4; Baird » 1 Dillon, 469; Wisconsin v. Du- iJ. Shore Line Eailroad Co., 6 Blatch. luth, 96 U. S. 379 ; 2 Dillon, 406. 276, 461 ; Northern Pacific Railroad ' U. S. ,-. Rum River Boom Co., Co. V. Barnesville Railroad Co., 2 1 McCrary, 397 ; U. S. v. Mississippi McCrary, 224 ; St. Louis i-. Knapp River Boom Co., Td. 601. Co., Id. 516; Newport Bridge Co. v. 'U. S. v. Beef Slough Manuf. Co., United Stales, 105 U. S. 470. 8 Bias. 421. CHAP. IV.J PUBLIC EIGHT OF NAVIGATION. 237 § 130. State legislation is also upheld which authorizes bridges and similar obstructions upon navigable streams ; and the commercial power vested in Congress extends over tlie commercial waters of a State only as regards intercourse wi1;h foreign nations, or with other States of the Union. ^ In Willson V. Blackbird Creek Marsh Co.,^ decided in 1829, it appeared that the State of Delaware had authorized the building of a dam across the Blackbird Creek, a small stream, in which the tide ebbed and flowed, and that the defendants, being the owners of a sloop regularly enrolled and licensed according to the navigation laws of the United States, tore down the dam for the purpose of effecting a passage. It was held that the State had power to authorize the dam in the absence of any action by Congress in execution of the power to regulate commerce, and that the defendants were tres- passers. The opinion was delivered by Marshall, C. J., who said : " The act of assembly by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsli adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be ejihanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general govern- ment, are undoubtedly within those Avhich are preserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution, or a law of the United States, is an affair between the gov- ernment of Delaware and its citizens, of which this court can take no cognizance. The counsel for the plaintifl's in error insist that it comes in conflict with the power of the United States to 'regulate commerce with foreign nations, and ' Tlie Passenger Cases, 7 How. 266, 275 ; Sears c. Warren Co., 36 Ind, 283 ; Case of the State Freigh*. Tax, 367. 15 Wall. 232 ; The Bright Star, Woolw. - 2 Peters, 245. 238 THE LAW OP WATERS. [PAET I. among the several States.' If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows, and which abound thoughout the lower coun- try of the middle and southern States, we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States ; a power which has not been so exercised as to affect the question." This decision was declared by the court in The Wheeling Bridge Case^ not to be in conflict with the conclusions there reached. Its authority has been maintained upon the ground that it did not appear that the defendants' vessel was bound to a port of entry above the dam, or that there was such a port above the dam ; ^ but it is more frequently regarded as supporting the doctrine that the States are free to legislate with respect to their internal waters so long as the superior power of Congress remains dormant.^ In Gilraan v. Philadelphia,* a bridge thirty feet above the waters of the Schuylkill River, a tidal stream entirely within the State of Pennsylvania, was about to be erected, with no draw or opening, under the authority of ' 13 How. 518, 566. 1 Wood. & M. 407 ; Flanagan u. Phil- 2 Per Hunt, J., in Silliman v. Troy adelphia, 42 Penn. St. 219, 231 ; Craig and West Troy Bridge Co., 11 Blatch. v. Kline, 65 Penn. St. 399 ; Stevens v. 274, 287 ; People v. Rensselaer Rail- Paterson Railroad Co., 34 N. J. L. road Co., 13 Wend. 113, 135. 532, 552; Norris v. Boston, 4 Met. * Pennsylvania v. Wheeling Bridge 282, 296 ; Dunham v. Lamphere, 3 Co., 13 How. 518, 566 ; The Passenger Gray, 268, 273 ; Bailey v. Philadelphia' Cases, 7 How. 397 ; Oilman <.. Phila- Railroad Co., 4 Harr. (Del.) 389, 305; delphia, 3 Wall. 713; Pound (,■. Turck, Cox v. State, 3 Blackf. (Ind.) 183, 95 U. S. 459 ; County of Mobile v. 197 ; Savannah v. Georgia, 4 Ga. 26, Kimhall, 102 U. S. 691, 700 ; Hall v. 41 ; Kellogg v. Union Co., 12 Conn. De Cuir, 95 U. S. 485, 488, 516 ; Peo- 7 ; Ex parte Crandall, 1 Nev. 294, 310; pie V. Rensselaer Railroad Co., 15 Dover y. Portsmouth Bridge, 17 N. II. Wend. 113, 135; Miller u. New York, 200, 226; State v. Dibble, 4 Jones 13 Blatch. 469, 475 ; Baird v. Shore (N. C.) 107, 112. Line Railway Co., 6 Blatch. 276; * 3 Wall. 713. United States v. New Bedford Bridge, CHAP. IV.J PUBLIC EIGHT OF NAVIGATION. 239 the State. There was already a bridge over the stream, about 500 feet lower down, which had stood for many years, and by which all commerce, except that of low coal barges, had been long excluded from the river, but the legality of which was not drawn in question. The plaintiff, who was a citizen of another State, was the owner of valuable dock property on the river above the proposed bridge and not the owner or navigator of a vessel having a coasting license. The majority of the court 1 maintained the legality of the proposed struc- ture, holding, upon the authority of The Blackbird Creek Case, that, as Congress had not acted on the precise subject, the State had concurrent jurisdiction over it, but expressly denying^ that the fact that the Schuylkill River lay within a single State affected the power of Congress over it. In the case of The Passaic Bridges,^ also, it was said that the police power of a State extends to the closing of navigation upon a tidal river lying wholly within its own territory, by means of a bridge or dam. The acts of Congress which authorize vessels to engage in the coasting trade within a State are construed as not indicating an intention bj^ Congress to interfere with the power of the State to obstruct its naviga- ble waters, but only to authorize navigation upon them by coasting vessels while they are navigable.* § 131. In Pound v. Turck,^ the question presented was as to the validity of a statute of Wisconsin which authorized ' In the dissenting opinion of Mr. voe v. Penrose Ferry Bridge Co., 3 Justice Clifford, which was concurred Am. Law Reg. 70 ; 5 Penn. Law Jour, in by Justices Wayne and Davis, it 313 ; United States v. New Bedford was maintained that Congress had Bridge, 1 Wood. & M. 401, 419; Milor regulated navigation on the waters in v. New Jersey Railroad Co., 6 Am. L. question. Reg. 6 ; Pennsylvania Railroad Co. v. '3 Wall. 724, 725; The Daniel New York Railroad Co., 18 Int. Rev. Ball, 10 Wall. 557, 564; The Mon- Rec. 142. See The Passaic Bridges, tello, 20 Wall. 430. 3 Wall. 782, 793;. Kellogg ■;. Union " 3 Wall. 782, 793. Co., 12 Conn. 7, 27 ; Thames Bank .,. * Hatch V. Wallamet Iron Bridge Lovell, 18 Conn. 500 ; Washington Co., 7 Sawyer, 127 ; Pennsylvania Bridge Co. v. State, 18 Conn. 53, 65. V. Wheeling Bridge Co., 13 How. 518, * 95 U. S. 459. See, also. County 565 ; Silliman v. Troy and West Troy of Mohile ;.. Kimball, 102 U. S. 691, Bridge Co., 11 Blatch. 274, 287 ; De- 700. The State may authorize dams 240 THE LAW OF WATEKS. [PAET T, the construction of dams at a given point across the Chip- pewa River, a navigable stream, and also the building of booms with sufficient piers to stop and hold all logs and other things which might float in said river. The statute provided that the dams and booms should be so constructed as not to obstruct the running of lumber rafts in the river. In delivering the opinion of the court, Mr. Justice Miller said: The principle established is "that, in regard to the powers conferred by the commerce clause of the constitution, there are some which by their essential nature are exclusive iu Congress, and which the States can exercise under no circumstances; while there are others which from their nature may be exercised by the State until Congress shall see proper to cover the same ground by such legislation as that body may deem appropriate to the subject. Of this class are pilotage and other port regulations ; ^ bridges across navigable streams ; ^ and as especially applicable to the case before us to erect dams across navigable streams."^ . . . " The present case falls directly within the principle estab- lished by these cases, and aptly illustrates its wisdom. There are, within the State of Wisconsin, and perhaps other States, many small streams navigable for a short distance from their mouths in one of the great rivers of the country, by steam- boats ; but whose greatest value in water-carriage is as outlets to saw-logs, sawed lumber, coal, salt, etc. In order to de- velop their greatest utility in that regard, it is often essential that such structures as dams, booms, piers, etc., should be used, which are substantial obstructions to general naviga- tion, and more or less so to rafts and barges. But to the legislature of the State may be most appropriately confided authority to authorize these structures where their use will do more good than harm, and to impose such regulations and limitations in their construction and use as will best in narigable rivers for other purposes ' Gilman v. Pliiladelphia, 3 Wall, tlian the improvement of the naviga- 713. tion. State u. Eau Claire, 40 Wis. ' Willson v. Blackbird Creek Co., 2 533. Peters, 245; Gilman v. Philadelphia, ' Cooley V. Board of Wardens, 12 3 Wall. 713 ; Crr.ndall „•. Nevada, G How. 299. Wall. 35. CHAP. IV.] PTJBLIC EIGHT OF NAVIGATION. 241 reconcile and accommodate the interest of all concerned in the matter. And since the doctrine we have deduced from the cases recognizes the right of Congress to interfere and con- trol the matter whenever it may deem it necessary to do so, the exercise of this limited power may all the more safely be confided to the local legislatures." § 132. There are three cases in which authority from the legislature is necessary to erect a bridge across a stream : First, where the stream is navigable ; second, where the State owns the bed of the stream ; and third, where the right to take toll is desired.^ Impassable obstructions may be authorized by a State upon either tidal or fresh-water streams within its limits and navigable to coasting vessels, while the power conferred upon Congress to regulate com- merce remains dormant and unexercised by legislation upon the subject;^ and the mere grant of commercial power, anterior to any action of Congress under it, is not, in this re- spect, exclusive of State authority.^ Even when an impassa- ' Fort Plain Bridge Co. u. Smith, to a navigation company. Mononga- 30 N. Y. 44. hela Navigation Company v. Coons, (i ^ Willson V. Blacic Bird Creek Co., Watts. & S. 101 ; Susquelianna Canal 2 Peters, 245 ; Withers v. Buckley, 20 Co. v. Wright, 9 Watts. & S. 9. How. 84; Pound v. Turck, 95 U. S. ^ Ibid.; County of Mobile v. Kim- 459 ; Hall v. De Cuir, 95 U. S. 485, ball, 102 U. S. 691, 699, 700 ; Silliman 488, 510; Wisconsin u. Dulutli, 96 w. Hudson River Bridge Co., 4 Blatch.. U. S. 379; Wisconsin v. Eaa Claire, 74, 395, 409; 1 Black, 582; 2 Wall.. 40 Wis. 583. A grant by the State 403; Henderson v. New Tork, 92. U. of the right to erect a dam in a navi- S. 259, 272 ; Minot v. Philadelphia gable river is subject to the rights of Railroad Co., 2 Abb. (U. S.) 323, 338 ; a prior grantee. Union Canal Co. c. Woodman v. Kilbourn Manuf. Co., 1 Landis, 9 Watts. 228. But the right of Biss. 546 ; United States v. Now Bed- the State to widen the draw of a ford Bridge, 1 Wood. & M., 401 ; In- bridge which it owns is not impaired graham v. Chicago Railroad Co., 34 by a previous grant to a street rail- Iowa, 249 ; Ex parte Crandall, 1 Nev. way corporation to run its cars over 294, 310 ; Western Union Telegraph the bridge, and the fact tliat the cars Co. v. Atlantic Telegraph Co., 5 Nev. will be temporarily interrupted. Mid- 102, 106 ; Dover v. Portsmouth Bridge, dlesex Railroad u. Wakefield, 103 17 N. H. 200 ; Parker v. Cutler Mill- Mass. 261. In Pennsylvania a statu- dam Co., 20 Maine, 353; State r. tory license to the owners of lands Portland Railroad Co., 57 Maine, 402 ; adjoining such a stream to erect dams Lee v. Pembroke IroniCo., 57 Maine, or water-works is subordinate to the 481; Moor r. Veazi'e, .j2 Maine, 343; right of the State to grant the water Brown u, ChadBoumc,.Gr Maine, 0; 242 THE LAW OF WATERS. [PAET I. ble structure like a dam might be removable as obsti-ucting inter-state commerce, a bridge, erected under authority from a State, which, having draws or openings, affords opportunity for vessels to pass, but which limits the navigation, at a point below where the coasting trade is carried on by licensed vessels, to the space occupied by the draw or opening, would not be condemned,! although additional precautions in pass- Rogers V. Kennebec Railroad Co., 35 Maine, 319 ; Knox v. Chaloner, 42 Maine, 150; Treat ,;. Lord, Id. 552 State V. Freeport, 43 Maine, 198 Veazie v. Dwinel, 50 Maine, 479 Piscataqua Bridge Co. v. New Hamp- shire Bridge Co., 7 N. H. 35 ; Flecker I.. Rhodes, 30 Gratt. 795. 1 Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 577, 619, 627; 18 How. 421 ; The Passaic Bridges, 3 Wall. 782 ; Gilman v. Philadelphia, 3 Wall. 713; Mississippi Railroad Co. V. Ward, 2 Black, 485; Atlee u. Packet Co., 21 Wall. 389, 395 ; Cran- dall V. Nevada, 6 Wall. 35 ; Silliman V. Hudson River Bridge Co., 4 Blatch. 74, 395 ; 1 Black, 582 ; 2 Wall. 403 ; SiUiman r. Troy & West Troy Bridge Co., 11 Blatch. 274 ; Mississippi Rail- road Co. ^. Ward, 2 Black, 485 ; Jolly V. Terre Haute Drawbridge Co., 6 McLean, 237; Works v. Junction Railroad, 5 McLean, 425 ; United States V. Railroad Bridge Co., 6 Mc- Lean, 517 ; Columbus Ins. Co. v. Cur- tinius. Ibid. 209; Columbus Ins. Co. (.. Peoria Bridge Co., Ibid. 70; Hood c. Dighton Bridge, 3 Mass. 263 ; Peo- ple V. Rensselaer Railroad Co., 15 Wend. 113, 134 ; Commonwealth v. Breed, 4 Pick. 460; Commonwealth !'. New Bedford Bridge, 2 Gray, 339 ; Commonwealth o. Essex Co., 13 Gray, 239 ; Middlesex Railroad Co. v. Wakefield, 103 Mass. 265; Common- wealth V. Taunton, 7 Allen, 309, 312 ; Talbot County v. Queen Anne's County, 50 Md. 245; Easton v. New York Railroad Co., 30 Leg. Int. 124 ; People V. St. Louis, 5 Gilman, 351, .550; Illinois River Packet Co, v. Peoria Bridge Co., 38 111. 467 ; Chicago V. McGinn, 51 111. 266; Mississippi River Bridge Co. v. Lonergan, 91 111. 508, 516 ; Joliet Railroad Co. v. Healy, 94 111. 416; Hodgman v. St. Paul Railroad Co., 23 Minn. 153 ; 20 Minn. 48 ; Flanagan n. Philadelphia, 42 Penn. St. 219, 232: Monongahela Bridge Co. v. Kirk, 46 Penn. St. 112; Attorney General v. Hudson River Railroad Co., 1 Stock. 526 ; Attorney General v. New York Railroad Co., 24 N. J" Eq. 49 ; Attorney General u. Stevens, Sax. (N. J.) 370 ; Tucker o. Burlington Co., Ibid. 282; Allen v. Monmouth Co., 2 Beas. 68 ; Stevens V. Erie Railway Co., 6 C. E. Green, 259; Attorney General v. Paterson Railroad Co., 9 N. J. Eq. 526; Trenton Water Power Co. ,;. Raif, 36 N. J. 335 ; Stephens Co. v. Central Railroad Co., 34 N. J. L. 280 ; Rogers v. Ken- nebec Railroad Co., 35 Maine, 319; State t. Freeport, 43 Maine, 198; State u. Portland Railroad Co., 57 Maine, 402; Moor y. Veazie, 32 Maine, 343 ; 31 Maine, 360 ; 14 How. 568 ; County Commissioners v. County Commissioners, 50 Md. 245 ; Wiscon- sin Improvement Co. u. Manson, 43 Wis. 255; New Haven Toll Bridge Co. V. Bunnel, 4 Conn. 54 ; Jones u. Pettibone, 2 Wis. 308; Depew v. Wabash &, Erie Canal, 5 Ind. 8; Neaderhauser v. State, 28 Ind. 257; Williams ii. Beardslcy, 2 Ind. 591; Terre Haute Bridge Co. v. Halliday, 4 Ind. 36; Cobb v. Smith, 16 Wis. 661; 3 Am. Law Reg. 1; Hoeft <-■. Seaman, 38 N. Y. S. C. 62; Ex parte ■ Water Commissioners, 3 Edw. Ch. 290; Selman v. Wolfe, 27 Texas, 08; CHAP. IV.] PUBLIC KIGHT OP NAVIGATION. 243 ing it may be required on the part of vessels, or temporary delays may be thereby caused to navigators. A bridge so authorized, having a sufficient opening, or being of sufficient height, at the usual state of the water or of ordinary freshets,^ to permit the passage of any vessel capable of navigating the streain, will not be condemned as interfering with the powers of Congress, even in cases where Congress has regulated navigation upon the river ;2 and the legislature of a State may empower persons or corporations to erect and maintain bridges without draws over its navigable waters, as well as dams, if the statute giving such power does not interfere with the regulations of Congress on the same subject.^ Such authority will be a protection from indictment brought upon Hudson V. Cuero Land Co., 47 Texas, 56; Bailey c. Philadelphia Railroad Co., 4 Harr. (Del.) 389 ; Heerman v. Beef Slough Co., 1 Fed. Rep. 145; 8 Biss. 334; Commissioners r. Withers,29 Miss. 21 ; Eldridge v. Cowell, 4 Cal. 80 ; Dyer v. Tuscaloosa Bridge, 2 Porter, 296 ; Avery v. Fox, 1 Abb. (U. S.) 246. In Parker v. Cutler Mill-dam Co., 20 Maine, 355, a statute authorizing the defendant to maintain a mill-dam on their own land across the head of a harbor, with flood-gates so as to admit the passage of boats at high water, was held to be constitutional. ' See Pennsylvania u. 'Wheeling Bridge Co., 13 How. 518. ^ Georgetown v. Alexandria Canal Co., 12 Peters, 91 ; Mississippi Rail- road Co. V. Ward, 2 Black, 485 ; Mid- dle Bridge Co. v. Marks, 26 Maine, 326 ; President v. Trenton City Bridge Co., 13 N. J. Eq. 46; State Bridge Co. V. Metz, 5 Dutcher, 122 ; 2 Vroom, 378; 3 Id. 199; Dover !-. Portsmouth Bridge, 17 N. H. 200 ; Crosby v. Han- over, 30 N. H. 404 ; Cornish Bridge V. Richardson, 8 N. H. 207; Attorney General v. Delaware Railroad Co., 27 N. J. Eq. 1, 631 ; State v. Mutchler, 42 N. J. L. 461 ; Culbertson v. Wabash Navigation Co., 4 McLean, 544 ; State V. Boston Railroad Co., 25 Vt. 433 ; Ohio Railroad Co. v. Wheeler, 1 Black, 286, 297. A corporation may be legally organized in one State .for the purpose of building a bridge across a river which forms the boundary be- tween that State and another State. Hunt V. Kansas Bridge Co., 11 Kan- sas, 412. Towns are under no duty, and have no power to bridge streams flowing between the State in which they are situated and an adjoining State. Abendroth u. Greenwich, 27 Conn. 363. ^ Commonwealth j. Taunton, 7 Al- len, 309; Commonwealth v. New Bedford Bridge, 2 Gray, 339, 347; Davidson v. Boston Railroad, 3 Cush. 91, 106 ; Thayer v. New Bedford Rail- road, 125 Mass. 255; State v. Pree- port, 48 Maine, 198; Pennsylvania Railroad Co. v. New York Railroad Co., 23 N. J. Eq. 157. See Flanagan V. Philadelphia, 42 Penn. St. 219; Brown v. Commonwealth, 3 Serg. & R. 273 ; Wisconsin t. Eau Claire, 40 Wis. 533; Tewksbury v. Schulenberg, 41 Wis. 584; Wisconsin River Im- provement Co. V. Manson, 43 Wis. 255 ; Attorney General v. Eau Claire, 37 Wis. 400. If, in an action for ob- structing a navigable river, a legisla- tive grant, authorizing the erection of a dam is introduced in defence, this does not raise a question of title. Browne v. Schofield, 8 Barb. 239. 244 THE LAW OF WATERS. [PAET I. the ground that the structure is a public nuisance,^ and is valid, although no indemnity is provided for those who have been accustomed to navigate in the waters which are thereby enclosed.^ And, apart from State legislation, an act of Congress, passed either before or after the erection of the structure, authorizing an obstruction, or even a termination, ot the navigation, renders it not obnoxious to the commerce clause of the Constitution, since the power thereby vested in Congress includes both the right to declare what is and what is not an illegal obstruction in a navigable stream, and the power to order obstructions to be placed in the navigable waters of the United States, either to assist navigation or to change its direction from one channel or part of a liver to another.3 The combined action of Congress and of the State or States interested would legalize impediments to the right of passage over any navigable waters.* In the case of boundary rivers between States, legislation by both States is necessary to authorize obstructions.^ § 133. The effect of that provision of the Ordinance of 1787, which declares the navigable waters leading into the Mississippi and St. Lawrence to be common highways and forever free, has been the subject of much discussion with re- spect to its present operation as a restraint upon the power ' Ibid. ; Stoughton t-. State, 5 Wis. Bridge Co., 18 IIow. 421 ; The Clinton 291; Harris v. Thompson, 9 Barb. Bridge, 10 Wall. 454 ; 1 Woolw. 150; 350 ; People i'. New Yorli Gaslight Soiitli Carolina v. Georgia, 93 U. S. 4 ; Co., 64 Barb. 55 ; 6 Lans. 407 ; Phoe- Georgetown v. Alexandria Canal Co., nix V. Commissioners, 12 How. Pr. 1 ; 12 Peters, 91 ; Jlississippi River 1 Abb. Pr. 460. It is the province of Bridge Co. v. Lonergan, 91 111. 503, the legislature to determine whetlier 517 ; Miller u. New York, 13 Blatch. the benefit to logging interests and to 469 ; Baltimore Railroad Co. v. Wheel- commerce, arising from the erection ing Transportation Co., 32 Ohio St. otdams, piers, and booms, will counter- 110; Richmond f. Dubuque Raih-oad balance the inconvenience they will Co., 33 Iowa, 422. necessarily cause to navigation by ves- * Ibid. ; Miller v. New York, 13 sels. Heerman u. Beef Slough Co., 8 Blatch. 460 ; People v. Kelly, 5 Abb. Biss. 3.34. N. Cas. 383, 440 ; Baltimore Railroad ' Ibid. ; Commonwealth v. Breed, Co. i\ Wheeling Transportation Co., 4 Pick. 460; Commonwealth v. New 32 Ohio St. 110. Bedford Bridge, 2 Gray, 339. ^ Rutz t.. St. Louis, 2 McCrary, ' Gilman v. Philadelphia, 3 Wall. 344 ; Quiney Bridge Co. f. Adams Co., 713, 724 ; Pennsylvania ,-. Wheeling 88 111. G15. CHAP. IV.J PUBLIC RIGHT OP NAVIGATION. 245 of Congress or of the State legislatures to pass laws not assented to by both, which authorize impediments to the free navigation of the rivers within its scope. In Ohio it is held that the ordinance is in the nature of a perpetual com- pact ; ^ but that State laws for the improvement of the rivers for hydraulic purposes, and laws which authorize bridges causing equal inconvenience to citizens of Ohio and of other States, are not within its meaning.^ In Indiana it is held that the ordinance was superseded by the Federal Constitu- tion, but that it has been so far recognized and adopted, with respect to navigable streams, by subsequent acts of Congress, that it has the force of a subsisting law of the United States, and that the total obstruction of these streams by dams or otherwise is illegal.^ In Wisconsin the adoption and ratification of the State Constitution have been held to operate as a repeal of the ordinance, so far as its provisions are in conflict with that Constitution.* In certain cases in the Supreme Court of the United States, it was held ' See Columbus Ins. Co. v. Curti- nius, 6 McLean, 209 ; Jolly v. Terre Haute Drawbridge Co., Id. 237; Co- lumbus Ins. Co. V. Peoria Bridge Co., Id. 70; Spooner v. McConnell, 1 Mc- Lean, 337 ; Palmer v. Cuyahoga County, 3 McLean, 226 ; Lewis v. Baird, Id. 56 ; Astrow v. Hammond, Id. 107; Vaughan v. Williams, Id. 530 ; Jones v. Van Zandt, 2 McLean, 611. ^ Hogg 0. ZanesTille Canal Co., 5 Ohio, 419 ; Hutchinson c. Thompson, 9 Ohio, 52 ; Gavit v. Chambers, 3 Ohio, 496; Hickok v. Hine, 23 Ohio St. 523, 527 ; Symonds v. Cincinnati, 14 Ohio, 147 ; Kramer v. Chicago Railroad Co., 5 Ohio St. 140; Hubbard „•. Toledo, 21 Ohio St. 379; Guthrie v. McCon- nel, 2 McVey's Ohio Dig. 343, pi. 8. ^ Cox V. State, 3 Blackf . 193, 200 ; Depew V. Board of Trustees, 5 Ind. 8, 11 ; Johnson v. Chambers, 12 Ind. 102, Crake v. Crake, 18 Ind. 150 ; Williams V. Beardsley, 2 Ind. 591 ; Tcrre Haute Drawbridge Co. u. Ilalliday, 4 Ind. 8G ; Commissioners i-. Pidgc, 5 Ind. 13; Neaderhauser v. State, 28 Ind. 257, 266; Chandler v. Douglass, 8 Blackf. 10, 12; Tyrrell v. Lockhart, 3 Id. 136. See, also, Illinois River Packet Co. ?;. Peoria Bridge Associ- ation, 38 III. 467; Chicago u. Mc- Ginn, 51 111. 260, 271 ; People v. St. Louis, 5 Oilman, 351, 368 ; Mississippi River Bridge Co. <■. Lonergan, 91 111. 308, 515 ; Phoebe v. Jay, 1 Scam. 207 ; Peters o. New Orleans Railroad Co., 56 Ala. 628, 535. * Connecticut Mutual Ins. Co. v. Cross, 18 Wis. 109. See Newcomb V. Smith, 1 Chand. 71 ; Stoughton v. State, 5 Wis. 291 ; Cobb u. Smith, 16 Wis. 661 ; Enos v. Hamilton, 24 Wis. 658 ; Wisconsin River Improvement Co. u. Lyons, 30 Wis. 01; State c. Eau Claire, 40 Wis. 533; Attorney General v. Eau Claire, 37 Wis. 400 ; Tewksbury v. Sohulcnberg, 41 AVis. 584 ; Wisconsin River Improvement Co. (•. Mansou, 43 Wis. 255 ; Milwau- kee Gaslight Co. r. The Gamecock, 23 Wis. 144. 246 THE LAW OF WATEKS. [PART I. that other provisions of this ordinance were superseded by the adoption of the Federal Constitution, and that its provisions, so far as they have been preserved, ovs^e their validity and authority to that Constitution and to the Con- stitutions and laws of the respective States.^ The ordinance clearly does not deprive the State of power to obstruct bayous and sloughs, not useful for inter-state commerce ; ^ to improve the navigation ;^ or to grant ferry licenses.* If the ordinance is an existing law, it would deprive the new States of such power as the original States possess to terminate nav- igation, and would so limit the powers of Congress that the asseiit of the States interested would be necessary to validate its action. "If," says Miller, J.,^ " the ordinance were obliga- tory in every particular, and not altered by common consent nor superseded by the Constitution of the United States, the States embraced within the north-western territory could not have been admitted into the Union on an equality with the other States, which is a fundamental principle of the Consti- tution, the basis of this Union." § 134. A bridge or dam, erected in navigable waters and not sanctioned by any statute, is indictable as a public nui- sance,® even though the structure is shown to be of pubUc ' See Strader v. Graham, 10 How. Conway v. Taylop, 1 Black, 603, 634; 82 ; Pollard ;,■. Hagan, 3 How. 212 ; Chapin u. Crusen, 31 Wis. 209 ; State Parmoli v. First Municipality, Id. 589 ; v. New Orleans Navigation Co., 11 7 Op. At. Gen. 571 ; Menard «. As- Martin, 309, 323 ; Cliiapelia ti. Brown, pasia, 5 Peters, 505 ; Dred Scott v. 11 La. Ann. 189 ; Marshall v. Grimes, Sandford, 19 How. 393, 400 ; Wood- 41 Miss. 27 ; Wiggins Terry Co. v. man v. Kilbourn Manuf. Co., 1 Abb. East St. Louis, Chicago Legal News (U. S.) 158, 1G2. (1882), p. 228. ^ Ingraham v. Chicago Railroad * Woodman v. Kilbourn Manuf. Co., 34 Iowa, 249. Co., 1 Abb. (U. S.) 158, 162. ^ Wisconsin River Improvement " Reg. v. Belts, 16 Q. B. 1022, 1037 ; Co. 0. Manson, 43 Wis. 255 ; Attorney State v. Freeport, 43 Maine, 198, 201 ; General ;;. Eau Claire, 37 Wis. 400; Wisconsin River Improvement Co. r. Commissioners v. Pidge, 5 Ind. 13 ; Lyons, 30 Wis. 61 ; People v. Vander- Williams u. Beardsley, 2 Ind. 591; bilt, 26 N. Y. 287; 38 Barb. 282; La Plaisance Bay Harbor Co. v. Mon- Blanchard i'. Western Union Tele- roe, Walk. Ch. 155; Lorman i.. Ben- graph Co., 60 N. Y. 510; Woodman son, 8 Mich. 18, 26 ; Commissioners v. r. Kilbourn Manuf. Co., 1 Abb. Withers, 29 Miss. 41. (U. S.) 158, 166; State c. Dibble, 4 ■* Panning j;. Gregoire, 9 How. 534; Jones (N. C.) 107; State v. Parrott, CHAP. IV.] PtTBLIC EIGHT OF NAVIGATION. 247 convenience and utility.^ A State cannot declare that a bridge, constructed without a draw, is not an obstruction to intor-state communication, and the question whether it is a material obstruction can only be determined in the courts of the United States.''' When Congress has exercised its power to regulate navigation, its authority is paramount, and excludes or supersedes State legislation upon the same sub- ject.^ An obstruction to navigation authorized by a State may become a nuisance, and liable to be removed under the subsequent action of Congress.* When authority fi'om the State is adequate to legalize such an obstruction, it is not necessary that compensation be provided,^ but the require- ments of the statute conferring such authority must be fully observed, in order that it may afford the protection. A statute authorizing a partial obstruction of the navigation will not protect an impediment not contemplated by the statute, but any excess or irregularity in the exercise of the power, by which the navigation is impaired, becomes a nui- sance jyro tanto.^ Where a railway company was empowered 71 N. C. 311 ; Barnes v. Racine, 4 Wis. McLean, 518 ; Soutli Carolina o. 454; Walker v. Shepardson, 2 Wis. Georgia, 93 U. S. 4; Wisconsin v. T)u- 384; Yates v. Judd, 18 Wis. 118; luth, 96 U. S. 379, 387. Potter 0. Menasha, 30 Wis. 492 ; * Ibid. ; Gibbons o. Ogden, 9 Newark Plank Road Co. i. Elmer, 1 Wheat. 196; The Passenger Cases, 7 Stock, 754, 788; Yolo Co. v. Sacra- How. 283, 394; People v. Brooks, 4 mento, 36 Cal. 193 ; Works v. June- Denio, 469 ; Sturgis v. Spoiford, 45 tion Railroad, 5 McLean, 425. N. Y. 446; Henderson i,. SpofEord, 59 ' Ante, § 94. N. Y. 131 ; Ex parte McNeil, 13 '' Ibid. ; Columbus Ins. Co. v. Wall. 236 ; Inman Steamship Co. v. Peoria Bridge Co., 6 McLean, 70; Tinker, 94 U. S. 238, 244; Sherlock Miller v. New York, 13 Blatch. 469 ; c. Ailing, 93 IT. S. 99. United States v. Milwaukee Railroad ^ Sugar Refining Co. v. Jersey Co., 5 Eiss. 410, 420. City, 11 C. E. Green, 247 ; Glover v. '^ Ante, § 129; Willson u. Black- Powell, 2 Stock. 211. The legislature bird Creek Marsh Co., 2 Peters, 245 ; may indirectly sanction a bridge over Pennsylvania v. Wheeling Bridge Co., navigable waters ; and where it au- 13 How. 518; 18 How. 421 ; Pound v. thorizes a town to buy a bridge, this Turck, 95 TJ. S. 459 ; Silliman v. Hud- amounts to a declaration that the son River Bridge Co., 4 Blatch. 74, bridge is legal. Saugatuck Bridge 395; 1 Black, 582; 2 Wall. 403; Co. i,-. Westport, 39 Conn. 337. United States v. Duluth, 1 Dillon, « Eenwick v. Morris, 3 Hill (N. Y.) 469; Works v. Junction Railroad Co., 621 ; 7 Ibid. 575 ; Blanchard v. West- 5 McLean, 425; United States v. em Union Telegraph Co., 60 N. Y. Milwaukee Railroad Co., 5 Biss. 410 ; 510 ; State v. Ereeport, 43 Maine, United States v. Railroad Bridge, 6 198; Knox c. Chaloner, 42 Maine, 248 THE LAAT OF atate::s. [paet I. by act of Parliament to construct a swiDg bridge across a navigable stream, and the act provided that it should not be lawful to keep the bridge closed so as to obstruct the navi- gation for a longer time than was sufficient to enable those ready to use the bridge to cross it, and for opening it to admit vessels, it was held that the compan}- was liable in damages to the owner of a vessel detained by reason of a defective construction of the bridge, which prevented it being opened, and that the company was not relieved of the duty to preserve the navigation by the fact that it had em- ployed a contractor to build the bridge in conformity with the provisions of the act.i Where a way was authorized to be located across a tidal creek, by a statute of the State of Maine, which provided that it should be a bridge with a suitable draw, and subject to the approval of the harbor commissioners of Portland, a location which made no men- tion of a bridge or draw and was not approved by the har- bor commissioners, was held to be unauthorized and void.^ § 135. Statutes providing for the erection of drawbridges, or of dams with shutes or locks, over navigable waters, are construed strictly, lilce all public grants, and in favor of the pre-existing right of navigation.^ If the act provides for a 150; state 1!. Dibble, 4 Jones (N. C.) 'Hole v. Sittingbourne Railway 107, 115; State v. Parrott, 71 N. C. Co., 6 H. & N. 488; Wiggins v. Bod- 311; Healy v. Joliet Railroad Co., 2 dington, 3 C. & P. 544; Attorney Brad. (111.) 435 ; Hickok ;,■.- Hine, 23 General o. Mid Kent Railway Co., Ohio St. 523 ; Hogg u. Zanesville L. R. 3 Ch. 100; Attorney General Canal Co., 5 Ohio, 410 ; State v. Bell, v. Purness Railway Co., 38 L. T. n. s. 5 Porter, 3G5 ; Newark Plank Road 555. See Terre Haute Drawbridge Co. V. Elmer, 1 Stock. 790. See Co. o. Halliday, 4 Ind. 36; Patterson White V. King, 5 Leigh, 726; Ottawa v. Proprietors, 40 Maine, 404; Cufi v. V. People, 48 111. 233 ; Korah v. Ot- Newark Railroad Co., 6 Vroom, 17, tawa, 32 111. 121; Harlem v. Emmert, 574; Jones r. Chantry, 1 Hun, 613; 4 41 111. 319 ; Van Wagenen v. Newark Sup. Ct. 63 ; Davis v. Jenkins, 5 Jones Plank Road Co., 1 Stock. 754 ; 4 Hal. (N. C.) 290. Ch. 586 ; Allen v. Monmouth Co., 2 = Cape Elizabeth v. County Com- Beas. 68 ; Attorney General v. New missioncrs, 64 Maine, 456. York Railroad Co., 9 C. E. Green, 59. ^ Commonwealth v. Breed, 4 Pick. If the location of a bridge over a 460, 404 ; State i'. Freeport, 43 Maine, navigable stream be changed without 198 ; Attorney General v. Hudson authority, it becomes a ijublic nui- River Railroad Co., 9 N. J. Eq. 520 ; sancc. Allen v. Monmouth, 2 Beas. 08, Commonwealth v. Church, 1 Penn. St. 73. 105 ; Hickok v. Hine, 23 Ohio St. 523, CHAP. IV.J PUBLIC EIGHT OP NAVIGATIOlsr. 249 draw but does not designate its size, it will not be held that the legislature intended the draw to be insufficient for the convenience of the navigation.^ One who is authorized to erect a bridge over navigable water, Avith a draw not less than fifteen feet wide, is not required to make the draw wider than fifteen feet, although vessels of a greater breadth have been accustomed to sail in such water.^ But under an act of incorporation authorizing the building of a' bridge across a navigable river, "with two suitable draws which shall be at least thirty feet wide," the company is bound not only to make the draws sufficiently wide to accommodate navigation at the time of their construction, but, if rendered necessary by an increase in the size of vessels, or a differ- ence in their mode of construction, or from any other cause, to so enlarge the draws from time to time as to permit the passage of any vessels having occasion to pass the bridge.^ So a provision in an act authorizing a dam across a navigable 531 ; State v. Godfrey, 12 Maine, 361 ; entire river. Stevens Point Boom Co. Mason v. Boom Co., 3 Wall. jr. 252 ; v. Reilly, 46 Wis. 237 ; 44 Wis. 295 ; Newark Plank Road Co. v. Elmer, 9 Plummer i'. Penobscot Lumber Asso- N. J. Eq. 754; Dugan v. Bridge . elation, 67 Maine, .363. Co., 27 Penn. St. 303 ; Selman v. ' Baltimore v. Stoll, 5 Md. 435. Wolfe, 27 Texas, 68 ; Minturn v. ' Commonwealth v. Breed, 4 Pick. Lisle, 4 Cal. 181 ; Barnes v. Racine, 4 460. A corporation empowered by Wis 454 ; United States v. New Bed- the legislature to maintain a mill-dam ford Bridge, 1 Wood. & M. 401 ; Healy " on their own land " across the head V. Joliet Railroad Co., 2 Brad. (111.) of a harbor, with flood-gates thereto 435 ; Nelson v. St. Croix Boom Co., at least fifteen feet wide, so as to 52 Wis 647. Power given to a rail- admit the passage of gondolas and road company to construct the road boats at high water, may erect the " along " a river will not be extended by dam below high-water mark at the implication to authorize its construe- head of the harbor, and across a part tion in or upon the river, or below of the channel where the tide ebbs high-water mark of tide water, and flows ; and the words " on their Stevens v. Erie Railway Co., 21 N. J. own land " merely exclude the infer- Eq. 259 ; Stevens v. Paterson R. Co., ence that the lands of others may be 34 N. J. L. 532. See Abraham v. taken. Parker v. Cutler Mill-dam Co., Great Northern Railway Co., 16 Q. B. 20 Maine, 353. 586 ; Van Wagenen v. Newark Plank ' Commonwealth ,j. New Bedford Koad Co., 4 Hal. Ch. 586; 1 Stock. Bridge, 2 Gray, 339, 352; Dugan ,: 754; Attorney General v. Stevens, Bridge Co., 27 Penn. St. 303. See Sax. 570. So authority to construct New Haven Toll Bridge Co. r. Bun- a boom along the banks or across a nell, 4 Conn. 54 ; Middlesex Railroad branch of a river does not give the Co. v. Wakefield, 103 Mass. 261; Dow right to maintain booms across the u. Wakefield, Id. 267. 250 THE LAW OF "WATERS. [PAKT I. river, which required " a good and sufficient slide, that will admit the passage of all such rafts as may navigate said river," was construed as referring to such rafts as might navi- gate the river after its condition was improved by the dam.^ Where the charter of a railroad company authorized it to bridge a navigable stream, provided that the navigation of the stream should not be thereby obstructed, a temporary obstruction, caused by the necessary framework and scaffold- ing used in erecting the bridge, was held to be an obstruc- tion within the meaning of the proviso, for which the company was liable to any person injured thereby.^ A char- ter granted to a bridge company, requiring a " convenient draw " in the bridge, is violated if the draw cannot be passed without danger or vexatious delay .^ A charter which author- izes the building of a dam across a navigable channel, with the proviso that it be " so constructed as to leave the channel of the river as safe and convenient for the descent of rafts as it now is," has been construed to mean the least obstruction of navigation consistent with the uses of the dam for the pur- pose contemplated by the charter.* Where the draw of a bridge across navigable waters is required to be of a certairb width, the measurement cannot be made along the hne of the bridge if it is built diagonally across the river .^ If a statute author- izes the erection of a bridge with piers, in such manner as not " to injure, stop, or interrupt the navigation," but does not fix the number and location of the piers, the State may com- plain if the piers are so injudiciously located as to obstruct > Volk V. Eldred, 23 Wis. 410. This Toll Bridge Co. v. Bunnell, 4 Conn, was an action for injuries to a raft 58. A city which is required by caused by obstructions at a dam. It statute to maintain a bridge as a pub- was held no defence that the raft lie highway, is not liable for the de- could not have navigated the river at tention of a vessel caused by the all before the dam was built. draw of the bridge not being of the 2 Memphis & Ohio Railroad Co. c. prescribed width, or by the neglect of Hicks, 5 Sneed, 427. So, of repairs, "the superintendent of the bridge, Lister t. Newark Plank Eoad Co., 30 unless such liability is expressly N". J. Eq. 477. created by statute. French v. Boston, 8 Jolly V. Terre Haute Drawbridge 129 Mass. 592. Co., 6 McLean, 237 ; Attorney Gen- i Whitaker c. Delaware Canal Co., oral ^. New York Railroad Co., 9 C. 87 Penn. St. 34. E. Green, 49; Proprietors c. Hoboken ^ Missouri River Packet Co. w. Han- Land Co., 2 Beas. 504 ; New Haven nibal Railroad Co., 1 McCrary, 281. CHAP. IV. J PUBLIC EIGHT OF NAVIGATION. 251 the navigation, but the owner of a vessel which is injured thereby, although entitled to recover damages for a wanton abuse or negligent exercise of the discretion thus confided to the builders of the bridge, cannot maintain an action for a mere error of judgment in locating the piers.^ In general, the erection of a bridge over navigable waters, with or with- out a draw, by authority of the legislatvxre, is a regulation of a public right, and not the deprivation of any private right, which can be a ground for damages to individuals.^ § 136. Corporate charters, so far as they contain unquali- fied grants, are contracts which the State cannot constitu- tionally impair, alter, or repeal ; and it is incompetent for the legislature, having once empowered persons or corpora- tions to maintain a bridge which necessarily causes an ob- struction to the navigation, to amend the act by making such persons or corporations liable for the obstruction.^ Even where a charter reserved to the legislature the right of modification after the corporators should be repaid their expenses in building the bridge, an amendment before such payment, requiring the construction of a draw fifty feet wide, ^ Monongahela Bridge Co. v. Kirk, ^ Hjjd, j Davidson v. Boston Rail- 4ePenn. St. 112; Planagan v. Phila- road, 3 Cusli. 91, 106; Blackwell y. clelphia, 42 Ponn. St. 219; Clarke v. Old Colony Railroad, 122 Mass. 1; Birmingham Bridge Co., 41 Penn. St. Thayer v. New Bedford Railroad, 125 147 ; Dugan v. Monongahela Bridge Mass. 263 ; Ely v. Rochester, 26 Barb. Co., 27 Penn. St. 303 ; 1 Pitts. 404 ; 133 ; Sugar Refining Co. v. Jersey Coon V. Monongahela Navigation Co., City, 26 N. J. Eq. 247 ; Pound ;•. Penn. St. 882 ; Board of Wardens v. Turck, 95 U. S. 459 ; Kearns «. Cord- Philadelphia, 43 Penn. St. 209 ; Bacon wainers' Co., 6 C. B. n. s. 388. V. Arthur, 4 Watts, 437 ; Plummer v. ^ Bailey c. Philadelphia Railroad Alexander, 2 Jones, 81 ; Chestnut Hill Co., 4 Harr. (Del.) 389; Common- Turnpike Co. 0. Rutter, 4 S. & R. 4 ; wealth v. Pennsylvania Canal Co., 66 Henry B. Bridge Co., 8 Watts & S. 27; Penn. St. 41; Angell & Ames on Cor- Delaware Canal Co. v. Torrey, 33 porations, §§ 31, 767; Enfield Toll Penn. St. 150; Stephens Transporta- Bridge Co. t'. "Connecticut River Co., tion Co. B. Central Railroad Co., 34 7 Conn. 48 ; Derby Turnpike Co. u. N. J. L. 280 ; 33 Id. 229 ; Attorney Parks, 10 Conn. 541 ; Hartford Bridge General v. New York Railroad Co., 24 Co. v. East Hartford, 16 Conn. 173 ; N. J. Eq. 49; Attorney General v. Enfield Toll Bridge Co. v. Hartford Hudson River Railroad Co., 1 Stock. Railroad Co., 17 Conn. 55; Bronsonv. 526 ; Sewall's Palls Bridge v. Eisk, 23 Taylor, 33 Conn. 116. N. H. 171; Turnpike Road Co. v, Campbell, 44 Cal. 89. 252 THE LAW OP WATEES. [PABT I. in place of one thirty-two feet wide, was held to be uncon- stitutional and void.i jf j^e legislature authorizes a dam or other obstruction to be erected across a navigable stream situated within the State, the person erecting the structure under such authority is not subject to a prosecution for maintaining a public nuisance, nor can the obstruction be abated as such by reason of the fact that the health of the neighborhood is thereby impaired, or that other injuries, not involving the direct appropriation of property, result to persons residing in the vicinity .^ Nor does the fact that a bridge or dam, which is built with draws or locks in strict compliance with its charter, becomes at a subsequent period impassable to vessels, from causes not attributable to the proprietor, — such as low water, or sand-bars across the channel, or fallen trees or wrecks, — render the proprietor liable, at least before there has been time to repair, for the loss of the navigation or injuries sustained from these causes, in the space to which he has limited the navigation.^ If the legislature authorizes a dam across a navigable river, with the proviso that it shall be so constructed as not to substan- tially obstruct the navigation, an injunction will not be granted by the courts, in advance of the construction of the dam, on the ground that the proposed structure must neces- sarily obstruct the navigation.* As against the riparian owners, a charter which authorizes the erection of a toll- ' Washington Bridge Co. o. State, stagnant and noisome pools on the 18 Conn. 53. adjoining lands. Commonwealth u. - Neaderhauser a. State, 28 Ind. Eeed, 34 Penn. St. 275 ; Delaware 257; Depew v. Board of Trustees, 5 Canal Co. r. Commonwealth, 60 Penn. Ind. 8 ; Butler v. State, 6 Ind. 165 ; St. 367 ; Steele v. Western Inland Stoughton V. State, 5 Wis. 291 ; Barnes Lock Navigation, 2 Johns. 283. V. Racine, 4 Wis. 494 ; Harris v. ' Board of Commissioners v. Pidge, Thompson, 9 Barb. 350 ; People u. 5 Ind. 13,; Pennsylvania v. Wheeling Law, 34 Barb. 514; Williams v. New Bridge Co., 13 How. 625; Roush v. York Central Railroad Co., 18 Barb. Walter, 10 Watts, 86 ; Plumer v. 222 ; Clark «. Syracuse, 13 Barb. 32. Alexander, 12 Penn. St. 81. A public improvement, like a canal, * Wisconsin v. Eau Claire, 40 Wis. erected under .luthority from the 533 ; Attorney General v. Eau Claire, State, is not a public or private nui- 37 Wis. 400 ; Woodman v. Kilbourn sancc, because it renders the neighbor- Manuf. Co., 1 Abb. (XJ. S.) 158; United hood unhealthy, except where the States v. Ruggles, 5 Blatch. 35. w:;tcr is permitted to escape and form CHAP. IV.j PUBLIC EIGHT OF NAVIGATrOir. 258 bridge across a river, does not authorize taking the land of such owners at the side of the bridge for the purpose of a toll-house ; and in the land which is covered by the bridge it creates only an easement.^ An act of the legislature, giv- ing an unqualified authority to construct a bridge or dam across a stream, is a justification only with respect to public interests. It gives, by implication, authority to appropriate, without compensation, such portion as is necessary for the purpose of the lands belonging to the State, under water.^ But it affords no protection for a private injury, such as the overflow of lands belonging to the riparian owners,^ or the building of piers and abutments on lands under water belong- ing to individuals,* without payment "or tender of compensa- tion. If one railroad corporation constructs its road across the track of another railroad corporation, the latter' is en- titled to damages, although its track is laid upon piles over tide water.5 § 137. It is not necessary for the legislature to give a special and direct sanction to the erection or continuance of every bridge across navigable water, but such authority may ^ Thompson u. Androscoggin Bridge, Co., 16 Conn. 103; Crittenden v. Wil- 5 Greenl. 62. son, 5 Cowen, 165 ; Gardner v. New- ^Pennsylrania Eailroad Co. I'. New burgh, 2 Johns. Ch. 162; Baltimore York Eailroad Co., 23 N. J. Eq. 157 ; Railroad Co. o. Reaney, 42 Md. 117 ; Attorney General v Hudson Tunnel Thienw. Voegtlander, 3 Wis. 461. See Co., 27 N. J. Eq. 176, 573; Stevens v. Dodd v. Williams, 8 Mo. App. 278. Paterson Railroad Co., 34 N. J. L. * Morris Canal Co. a. Jersey City, 532. See Commonwealth v. Boston 26 N". J. Eq. 294; Gunter v. Geary, 1 6 Maine Railroad, 3 Cush. 25. Cal. 462 ; State v. Glenn, 7 Jones (N. ' Trenton Water Power Co. !'. Raff, C.) 321; Cornelius v. Glenn, Id. 512. 7 Vroom, 335 ; Delaware Canal Co. v. The owner may maintain trespass Lee, 22 N. J. L. 243 j Siunickson v. qnare clausum for an unlawful inva- Johnson, 17 N. J. L. 129 ; Ten Eyck sion of land covered by water. Ibid. !). Delaware Canal Co., 18 N. J. L. Smith- v. Ingraham, 7 Ircd. (N. C.) 200 ; Brown v. Cayuga Railroad Co., 175 ; Champlain Railroad Co. v. Val- 12 N. Y. 486; Cott v. Lewiston Rail- entine, 19 Barb. 484 ; People v. Mau- road Co., 36 N. Y. 214 ; Turner v. ran, 5 Benio, 389 ; Walker v. Shopard- Blodgett, 5 Met. 210 ; Cogswell v. Es- son, 4 Wis. 486. sex Mill Co., 6 Pick. 94 ; Thatcher u. ^ Grand Junction Railroad Co. i: Dartmouth Bridge, 18 Pick. 501 ; East- Middlesex Commissioners, 14 Gray, man o. Amoskeag Manf . Co., 44 N. H. 553 ; Fitchburg Railroad v. Boston & 143 ; Hooker v. New Haven Co., 14 Maine Railroad, 3 Cush. 58. Coun. 147; Denslow i.. New Haven 254 THE LAW OF WATERS. [PART I. be granted by implication.^ An act, for example, which authorizes a town to purchase and maintain an existing bridge over a navigable stream, is a legislative recognition of the legality of the bridge, and of the right of the town to maintain it.^ If the charter of a railroad corporation contains a general authority to erect bridges and all other works neces- sary for the construction of the road, it includes, by implica- tion, the power to bridge a navigable river on the route of such road.3 The same is true of an unrestricted grant of authority to construct a railroad from one designated point to another, when the road cannot be reasonably constructed without crossing a navigable stream.* § 138. It is competent for the State legislature to establish wharf or harbor lines, and to empower commissioners to license wharves and piers extending to such lines.^ Such statutes do not conflict with the commercial power of Con- gress, so long as the latter remains unexercised;^ they do not impair the right to maintain wharves lawfully erected before their passage,^ nor are they unconstitutional, as appropriating private property to public uses without compensation, even in those States in which the shores of tide waters to low- water mark are the private property of the riparian owners.^ 1 Fall River Iron Works v. Old ' Commonwealth v. Alger, 7 Gush. Colony Railroar], 5 Allen, 221 ; Bos- 53 ; Garey v. Ellis, 1 Gush. 306 ; At- ton Water Power Co. i,. Boston Rail- torney General v. Boston •& Lowell road, 23 Pick. 360. Railroad Co., 118 Mass. 345. See - Castello V. Landwehr, 28 Wis. Yates «. Milwaukee, 10 Wall. 497; 522; Saugatuck Bridge Co. u. West- Martin ,-. Evansville, 32 Ind. 85; port, 30 Conn. 337. Martin v. O'Brien, 34 Miss. 21. 3 Attorney General v. Stevens, Sax. ^ Commonwealth v. Alger, 7 Cush. (N. J.) 370; Union Pacific Railroad 53; Garey v. Ellis, 1 Cush. 306; State Co. V. Hall, 91 U. S. 343, 350 ; People v. Sargent, 45 Conn. 358. But see V. Saratoga Railroad Co., 15 Wend. Walker v. Shepardson, 4 Wis. 486. 130 ; Mohawk Bridge Co. v. Utica A city authorized by the legislature Railroad Co., 6 Paige, 554; Spring- to establish dock and wharf lines in a field V. Connecticut River Railroad river, and to prevent obstructions to Co., 4 Cush. 63 ; Miller v. Prairie du the navigation thereof, cannot by Chien Railway Co., 34 Wis. 533. ordinance declare a private wharf a ^ Fall River Iron Works v. Old nuisance and order its abatement as Colony Railroad, 5 Allen, 221. obstructing the navigation, if in fact ^ State V. Sargent, 45 Conn. 358. it is not a nuisance. Yates «. Mil- 6 Savannah v. State, 4 Ga. 26. waukee, 10 Wall. 497. CHAP. IV.J PUBLIC EIGHT OF NAVIGATION. 255 The mere establishment of a harbor line is not an abandon- ment of the title of the State to the tide waters within the line.^ The statutes of some of the States establishing these lines restrain the littoral proprietors from extending wharves beyond high-water mark -without the authority of the legis- lature, or a license from the harbor commissioners,^ while those of other States expressly grant the privilege to occupy and fill out to the prescribed limits,^ — a privilege which has been held to accrue to the ownership of the upland, however such ownership has been acquired, but not to divest the title of the State to the space within the lines, until it has been actually occupied or filled.* The case of levees located upon the margin of a river, or as near the river as is practicable for the purpose of reclaiming the adjoining lands, is governed 1 Weber v. Harbor Commissioners, 18 Wall. 57 ; Aborn v. Smith, 12 R. I. 370; Engs v. Peckham, 11 E. I. 210; Hardy v. McCullough, 23 Gratt. 251 ; Wetmore v. Brooklyn Gaslight Co., 42 N. Y. 384; Attorney General v. Hudson Tunnel Co., 27 N. J. Eq. 176, 573; Wilson v. lugloes, 11 Gill i J. 351 ; Boston Steamboat Co. v. Mun- son, 117 Mass. 34; Yates v. Judd, 18 Wis. 118 ; People v. Broadway Wharf Co., 31 Cal. 33; Dana v. Jackson Street Wharf Co., 31 Cal. 118; Kis- ling V. Johnson, 13 Cal. 56 ; Guy v. Harmance, 5 Cal. 73; Eldridge u. Cowell, 4 Cal. 80; Stone v. Elkins, 24 Cal. 127 ; HoUaday v. Frisbie, 15 Cal. 630; Knight „. Haight, 51 Cal. 169. ^ Commonwealth ;■. Alger, 7 Cush. 53; Attorney General v. Woods, 108 Mass. 436 ; Attorney General v. Bos- ton & Lowell Railroad Co., 118 Mass. 345; Attorney General v. Cambridge, 119 Mass. 518; Weber ;.. Harbor Commissioners, 18 Wall. 57. If harbor commissioners, in letting a contract for the construction of a wharf, do not comply with the provisions of the statute from which their authority is derived, the contract is void. Cowell i>. Martin, 43 Cal. 665 ; People v. San Erancisco Railroad Co., 35 Cal. 606 People V. Klumpke, 41 Cal. 263. ^ Bailey v. Burges, 11 E. I. 330 Engs V. Peckham, 11 R. I. 210 ; Man Chester u. Hudson, cited 11 E. I. 224 Providence Steam Engine Co. v. Prov- idence Steamship Co., 12 R. I. 348 Aborn v. Smith, 12 E. I. 370 ; 11 E. I. 594; Clark v. Peckham, 9 R. L 455^ 473 ; 10 E. I. 35 ; Simmons v. Mum- ford, 2 E. I. 172. See People v. New York Eerry Co., 68 N. Y. 71 ; In re City of Brooklyn, 73 N. Y. 179 ; Peo- ple V. Vanderbilt, 26 N. Y. 287 ; Hart V. Albany, 9 Wend. 571 ; Hecker v. New York Balance Doclt; Co., 24 Barb. 215; Bay City Gaslight Co. v. Indus- trial Works, 28 Mich. 182, 184 ; Win- penny V. Philadelphia, 65 Penn. St. 135 ; Norfolk City v. Cooke, 29 Gratt. 430. 4 Aborn v. Smith, 12 R. I. 370; Engs V. Peckham, 11 R. I. 210. Un- der the New York statute of 1848, the owners of lands on the East River have not only the right to construct bulkheads and wharves to the water line established in 18-36, but also title to the land under water to that line. Wetmore v. Atlantic White Lead Co., 37 Barb. 70; People v. Kelley, 38 Barb. 269; 14 Abb. Pr. 372. 256 THE liAW or WATERS. _ [PAET I. by similar rules. 'When actually constructed, under authority of the State legislature, such a levee becomes the conven- tional or artificial bank of the river, defining the line of high- water mark in those States in which riparian ownership is held limited by that line, and entitling the riparian proprietors to accretions subsequently added thereto.^ § 139. The legislature alone has the right to determine whether and to what extent the public convenience requires an interruption of the public right of navigation.^ In the absence of direct authority, the subordinate authorities of a State, such as towns, surveyors of highways, or county commissioners, are not invested with power to obstruct navi- gable waters, whether fresh or salt, by constructing highways below high-water mark, or authorizing dams or bridges across them.3 In Massachusetts and other States, it is held that a general statutory authoritj^ to lay out roads and highways does not confer power to construct them across navigable waters or below the high-water mark, upon the ground that, navigable waters being of common right public highways, a general authority to lay out a new highway does not warrant the obstruction of a highway which is already in use by the public.'' In Connecticut such authority is held to authorize 1 Musser v. Hershey, 42 Iowa, 356, Breed, 4 Pick. 460 ; Kean v. Stetson, 363 ; New Orleans v. United States, 5 Pick. 492 ; Wellington, Petitioner, 10 Peters, 711. See Barkley v. Levee 16 Pick. 87 ; Charlestown v. Middle- Commissioners, 98 U. S. 258 ; The sex Commissioners, 3 Jlet. 202 ; Hen- Police Jury o. Britton, 15 Wall. 566 ; shaw v. Hunting, 1 Gray, 203 ; At- Alcorn v. Hamer, 38 Miss. 652 ; Wil- torney General v. Cambridge, 16 Gray, liams V. Cammack, 27 Miss. 209 ; 247 ; Boston v. Richardson, 105 Mass. Daily v. Swope, 47 Miss. 367 ; Yasser 365 ; Commonwealth v. Gloucester, c. George, Ibid. 713; Smith !•. Atlan- 110 Mass. 491; Dunbar v. Vinal, 2 tic Railroad Co., 25 Ohio St. 91 ; Dane Abr. 695 ; State v. Anthoine, 40 Wright V. Thomas, 26 Ibid. 346. Maine, 435 ; State v. Wilson, 42 2 Wales V. Stetson, 2 Mass. 146 ; Maine, 9 ; Attorney General c . Stev- Commonwealth o. Charlestown, 1 ens, Sax. (N.J.) 370; Tucker v. Bur- Pick. 180 ; Commonwealth u. Breed, lington Co., Ibid. 282 ; Allen v. Mon- 4 Pick. 460 ; Cape Elizabeth v. County mouth, 2 Beas. 68. Commissioners, 64 Maine, 456. * Ibid. ; Commonwealth v. Coombs, 3 Commonwealth v. Coombs, 2 2 Mass. 489 ; Arundel v. McCuUoch, Mass. 489; Arundel v. McCulloch, 10 10 Mass. 70 ; Wales v. Stetson, 2 Mass. Mass. 70 ; Commonwealth v. Charles- 143 ; Commonwealth c. Charlestown, town, 1 Pick. 180 ; Commonwealth c. .1 Pick. 180 ; Springfield c. Connecti- CHAP, IV.] PTTBLIO EIGHT OP NAVIGATION. 257 by implication the construction of highways below high-water mark,^ or bridges with draws across navigable streams.^ In Charlestown v. Middlesex Conimissioners,^ in Massachusetts, the legislature authorized a bridge to be built over a navi- gable stream, "either solid or on piles, leaving sufficient passage for the water," as certain commissioners might deem necessary. Under the direction of these commissioners the bridge was made solid for two-thirds of its length, and the other third, being on piles over the channel and deeper parts of the stream, afforded passage for small vessels without masts when loaded or empty. It was held that the stream was still navigable, and that the county commissioners were not authorized to locate a highway over it. In Marblehead V. Essex Commissioners,* the county commissioners were held to have no jurisdiction to laj a highway along a beach form- ing the side of a harbor, which was not covered by the ordinary tides but by spring tides only, it appearing that the probable effect would be to lessen the usefulness of the harbor for the purpose of navigation, and to interfere with pubUc measures for its protection and improvement. A liighway may be located, without special authority from the- legislature, over flats between the original high and low- water mark which have been lawfully reclaimed and filled up ; ^ and upon an indictment for creating a nuisance in a., part of a town-way laid out by the side of navigable waten. cut Eiyer Eailroad Co., 4 Cush. 63; Saugatuck Bridge Co. v. "Westport, 33 ' Commonwealth v. Alger, 7 Cush. 53 ; Conn. 337, 350. Commonwealth v. Eoxbury, 9 Gray, ^ Brown v. Preston, 38 Conn. 219. 451* 493 ; Commissioners v. Holyoke ^ 3 Met. 202. In People v.- Moach, Water Power Co., 104 Mass. 446, 449 ; 14 Abb. Pr. n. s. 429, it was held that Marblehead u. Coiuity Commission- supervisors will not be restrained from ers, 5 Gray, 453 ; Boston & Maine erecting a bridge over a stream in EaUroad Co. v. Boston & Lowell Rail- which the tide ebbs and flows, if it is road Co., 124 Mass. 368, 371 ; United doubtful whether the stream could States V. New Bedford Bridge, 1 Wood, ever be navigated. & M. 407 ; Simmons u. Mumford, 2 <> 5 Gray, 451. E. I. 172, 185. •'■■ Henshaw v. Himting, 1 Gray, 203 ; 1 Groton v. Hurlburt, 22 Conn. 183 ; Clement v. Burns, 43 N: H. 600 ; At- Weathersfield u. Ilumphrcy, 20 Conn, torney General v. ©Id. Colony Eail- 218 ; Clark v. Saybroot, 21 Conn, way, 12 Alien,, 404.. 313; Brown v. Preston, 33 Conn. 210; 258 THE LAW OF WATERS. [PAET and above high-water mark, it is not a defence that another part of the way is below high-water mark.i § 140. Tlie right to build out wharves or piers into public waters, as incident to the ownership of the adjoining land, is a riparian right, and, as such, will be considered in a sub- seqiient chapter.^ All such structures, as well as bridges, dams, and booms, which are not authorized by the legislature, or which are not erected in accordance with the authority conferred,^ are public nuisances so far as they interfere with the passage of vessels, or limit such passage to a portion of the navigable channel.* But it is competent for the legis- lature to authorize their erection even beyond the point of navigability, and the reclamation of land from the water, for the encouragement of navigation and commerce, although 1 Commonwealth v. Weihcr, 3 Met. 445. 2 Post, u. 5. ' Commonwealth (;. New Bedford Bridge, 2 Gray, -SSO; Commonwealth V. Nashua Bailrpad, 2 Gray, 54 ; Com- monwealth c. Gloucester, 110 Mass. 491. ■J Williams c. Wilcox, 8 Ad. & El. .314;; Dimes ,-. Petley, 15 Q. B. 270; Attorney General v. Terry, L. R. 9 ■''Ch. 423; Attorney General i.'. Lons- . dale, L. H. 7 Eq. 377 ; Atlee v. Packet . Co., 21 Wall. 389 ; 2 Dill. 479 ; State .V. Freeport, 43 Maine, 198; Knox ,:. 'Chaloner, 42 Maine, 150; State t. Sturtevant, 21 Maine, 9; State v. Godfrey, 24 Maine, 232 ; People v. St. Louis, 5 Gilman, 351 ; Hogg v. Zanes- villo Mannf. Co., Wright (Ohio) 139; Clark V. Lake, 1 Scam. 229 ; Porter v. Allen, 8 Ind. 1 ; Olson v. Merrill, 42 Wis. 203 ; Attorney General u. Eau Claire, 37 Wis. 400 ; Walker v. Shcp- ardson, 2 Wis. 384; 4 Wis. 486; Barnes v. Eacine, 4 Wis. 454 ; Yates V. Judd, 18 Wis. 118 ; In re Eldred, 40 Wis. 530; Newark Plank Eoad Co. u. Elmer, 1 Stock. 754, 790; Com- monwealth V. Church, 1 Penn. St. 105 ; Hart V. Albany, 9 Wend. 571 ; 3 Paige, 213 ; People v. A^anderbilt, 26 N. Y. 287 ; 28 N. Y. .396 ; 38 Barb. 282 ; Moore v. Commissioners, 32 How. Pr. 184; Attorney General v. Stevens, Sax. (N. J.) 370; Tucker u. Burling- ton Co., Ibid. 282; Allen v. Mon- mouth Co., 2 Beas. C8; Atldnson v. Philadelphia Railroad Co., 14 Ha::. Pa. Reg. 10 \ Diramett v. Eskridgo, G Munf. 308; State v. Dibble, 4 Jones {N. C.) 107; Dana v. Jackson Street Wharf Co., 31 Cal. 118; Rhodes .. Otis, 33 Ala. 578; South Carolina Railroad Co. i.-. Moore, 28 Ga. 398; 24 Ga. 418; Gold v. Carter, 9 Humph. 309; Commonwealth c. ICnowlton, 2 Mass. 530; Borden v. Vincent, '24 Pick. 301; Franklin Wharf Co. v. Portland, 67 Maine, 46; Plankroad Co. !•. Elmer, 9 N. J. Eq. 754 ; People V. Gutchess, 48 Barb. 656 ; Selm.an v. Wolfe, 27 Texas, 63; Sherlock v. Bainbridge, 41 Ind. 35; Morrison v. Thurman, 17 B. Mon. 249; 14 Id. 371 ; Macon Railroad Co. a. Pate, 50 Ga. 156; State o. Merrit, . ; 565 ; Moss v. Gibbs, 10 Heisk. 283 ; AVoodbury v. Sliort, 17 Vt. 387. In Collins f. State, 3 Texas App. 323. tlie last case acquiescence for ten See Kent i\ Atlantic De Laine Co., 8 years was held sufficient. R. I. 305. « Missouri 1. Kentucky, 11 Wall. ^ ilandly r. .Anthony, 5 Wheat. 390 ; Holbrook ,-. Moore, 4 Neb. 4.'!7 ; 380 ; V:UM, lib. 1, u. 22, § 268. CHAP. V.J EIPABIAN BIGHTS AND BOUNDABIBS. 293 strengthen his defences.^ But this rnlS is not applicable in the case of embankments by the side of a river, whether public or private.^ A riparian proprietor is not only entitled to have the water flow to him in its natural state, so far as that is a benefit, as, e.g., to turn his mill or water his cattle, but in times of ordinary flood he is bound to receive the water, so far as it is a nuisance by its tendency to flood his land, and cannot exclude the superabundant water to the injury of other proprietors.^ The owner of land, bounding upon an inland stream, may repair and restore the banks, when broken, but cannot make different ones. So long as his operations tend only to confine the waters within their original channel, they are not responsible for any damage to neighboring proprietors.* If the owner of a dam upon a stream, the course of which is changed by an extraordinary flood, does not elect to restore the banks, he is not liable for injuries to others caused by the altered course of the stream and the continuance of his dam.^ Erections, intended to exclude the water, are illegal, if they cause the diversion of a stream from its accustomed channel, and throw the water upon the land of an opposite or adjoining proprietor ; '' and iRex V. Pagham, 8 B. & C. 355; 874; 8 Bing. 204; Farquharsen r. Rex V. Trafford, 1 B. & Ad. 874 ; 8 Farquharsen, 3 Bligh, n. s. 421 ; Avery Bing. 204 ; Gerrish v. Clough, 48 N. v. Empire Woolen Co., 82 N. Y. 582 ; H. 9, 13 ; Hall on the Seashore (2d Jones t'. Soulard, 24 How. 41 ; Kix u. ■ed.), 167, 168. If A. by banks or Johnson, 5 N. H. 520; Gerrish v. trenches diverts more than the natural Clough, 48 N. H. 9 ; Adams v. Barney, flow of the stream upon the land of 26 Vt. 225 ; Tuthill o. Scott, 43 Vt. B., the latter may remedy it by erect- 525 ; Rood ;;. Johnson, 26 Vt. 64, 72 ; ing banks upon his own land. Mer- Harding v. Whitney, 40 Ind. 379 ; ritt V. Parker, Coxe (N. J.) 460. Merritt v. Parker, Coxe (N. J.) 460 ; ^ Rex y. Trafford, supra ; Menzies Pierce v. Kinney, 59 Barb. 56 ; Slater ». Breadalbane, 3 Wils. & Shaw, 243; v. Pox, 5 Hun, 544 ; Mailhot v. Pugh, 3 Bligh, N. s. 414 ; Gerrish v. Clough, 30 La. Ann. 1359 ; New Orleans v. 48 N. H. 9, 13. Henderson, 5 La. 423. ^ Ibid. ; Mason v. Shrewsbury Rail- ^ Jones v. Turner, 46 Barb. 527. way Co., L. R. 6 Q. B. 578, 582 ; Bur- « Parquharsen's case, cited 3 Wils. well V. Hobson, 12 Gratt. 322. & Shaw, 235 ; Morr. Diet. 12, 787 ; * Menzies v. Breadalbane, 3 Wils. Attorney General v. Lonsdale, L. R. & Shaw, 235 ; 3 Bligh, n. s. 414 ; Rex 7 Eq. 387 ; Bickett v. Morris, 1 H. L. V. Commissioners of Sewers, 2 B. & Sc. 47, afiBrming Aberdeen u. Men- C. 355 ; Rex v. Pagham, 8 B. & C. zies, Morr. Diet. 12, 787 ; Blantyre v. 355; Rex. v Trafford, 1 B. & Ad. Doon, 10 Dunlop, 542; Hamilton t-. 294 THE LAW OF AYATERS. [part I. while "mere apprehension of danger is not sufficient to sup- port an action for this cause, yet any operation extending into the stream itself is prima facie an encroachment upon the common interest of the other riparian proprietors, and the burden is upon the party doing such act to show that it is not injurious.^ If a sea-wall or embankment is erected in tide-waters beyond the limits of the owner's land, it is doubtless illegal at common law as being a purpresture, since it does not appear that littoral proprietors are author- ized, as against the Crown or without its sanction, to erect even defences against the sea below high-water mark.^ In this country, it is doubtless a principle of general application, as has been expressly held in Wisconsin, that, as a right of necessity, when water, navigable or not navigable, is by natural causes wearing away and intruding upon the banks, the riparian owner, whether he owns the soil ad filum aquae or not, may, as against the public, intrude into the slical unnavigable water near the banks so far as may be necessary for the purpose of constructing works essential to the pro- tection of his land against the action of the water.^ Such Eddington, Morr. Diet. 12, 826 ; Burnis II. Brown, Hume's Diet. 504; Gel- latliy's Case, 1 Macpli. 592 ; Men- zies V. Breadalbane, 3 Wils. & Shaw, 235 ; New Albany Railroad Co. u. Higman, 18 Ind. 77 ; Kiles Works v. Cincinnati, 2 Disney (Ohio) 400; Longstreet c. Harkrader, 17 Ohio St. 2B; Cineinnati Railroad Co. o. Ahr, 2 Sup. Ct. (Ohio) 515; Ten Eyek v. Delaware Canal Co., 3 Harr. (N. J.) 200; Tinsman v. Delaware Railroad Co., 2 Duteh. 148. 1 Bickett V. Morris, 1 H. L. Se. 47 ; Attorney General v. Lonsdale, L. R. 7 Eq. 387 ; Attorney General i-. Terry, L. R. 9 Ch. 425; Orr Ewing v. Col- quhoun, 2 App. Cas. 839; Brownlow V. Metropolitan Board of Works, 13 C. B. N. s. 768; 16 Id. 546; Craeknell v. Thetford, L. R. 4 C. P. 629; Wishartw. Wyllie, 1 Maeq. 389 ; Brown v. Gugy, 2 Moo. l^ C. 341 ; Norbury v. Kitchen, 15 L. T. N. s. 601 ; Norway Plains Co. I'. Bradley, 52 N. H. 86. If the bank of a stream is washed away, and its bed widened by a flood, a corporation which has the frauchisc of a toll bridge across the river, and is required by its charter to keep the bridge in repair, is bound to extend the bridge to the new bank. Commonwealth w. Dcarfleld, C Allen, 449. In an action to recovur damages for taking stones from a river, and thereby causing the plaintiff's land to be washed away, evidence that the removal of stones at another part of the river produced the same effect is not admissible, unless it appears affii-matively that the conditions are the same. Hawks v. Charlestown, 110 Mass. 110. 2 Coulson & Forbes on Waters, 33. 2 Diedricli v. Northwestern Rail- way Co., 42 Wis. 248; Dclaphine ■'. Chicago Railway Co., Ibid. 214; Boor- CHAP. V.J EIPARIAN EIGHTS AND BOUNDAEIKS. 295 structures are public nuisances if they interfere with the navigation.! § 161. The owner of the soil of navigable waters is not liable to keep it free from obstructions or to compensate the adjoining owners for damage done by overflow of the water, even when toll is taken for navigating thereon .^ But liability to cleanse a river may arise from prescription.^ So, a littoral proprietor may be bound by prescription to main- tain and repair a sea-wall, even against extraordinary tides or floods ;* but the mere fact that he has always maintained a wall in front of his own land, and that adjoining proprietors have not, because of its existence, found 'it necessary to erect walls against their own frontages, is not sufficient evidence to establish this liability.^ The owner of land, upon which exists a natural barrier against the sea, may also be restrained from destroying or removing it,^ upon proceed- ings on behalf of the Crown or public, if not of individuals man ». Sunnachs, Ibid. 233 ; Olson v. Merrill, Ibid. 203. 1 Bickett r. Morris, 1 II. L. Sc. 47 ; Attorney General v. Lonsdale, L. E. 7 Eq. 377 ; Attorney General o. Terry, L. R. 9 Ch. 425 ; Orr Ewing, o. Colqu- houn, 2 App. Gas. 839 ; Atlee v. Packet Co., 21 Wall. 389; 2 Dillon, 479; Diedrieh y. Northwestern Railway Co., 42 Wis. 248. • 2 Hodgson 11. York, 28 L. T. n. s. 836; Cracknell o. Tlietford, L. R. 4 C. P. 02!) ; Parrett Navigation v. Eob- uis, in M. & W. 593 ; Bridge's Case, 10 Rep. 33 ; Coulson & Forbes on Waters, 84. ^ Lynn v. Turner, Cowper, 86. " Reg V. Leigh, 10 Ad. & El. 398 ; Henley v. Lyme, 2 CI. & Fin. 331; Uex !>. Commissioners of Sewers, 8 T. R. 312; Keighley's Case, 10 Coke, 139 ; Rooke's Case, 5 Coke, 99 ; Case of the Isle of Ely, 10 Coke, 140; Win- gate V. Waite, 6 M. & W. 739 ; Reg. v. Wharton, 2 B. & S. 719 ; Rex v. Com- missioners of Sewers, 1 B. & C. 477; GrifSth's Case, Moore, 02; Nitro- Phosphate Co. v. London Docks, 9 Ch. D. 503, 921 ; River Wear Com- missioners V. Adamson, 2 App. Cas. 750, 780 ; Reg. o. Baker, L. R. 2 Q. B. C21 ; Rex v. Paul, 2 M. & R. 307 ; Mor- land V. Cooke, L. R. 6 Eq. 252 ; Collins I). Middle Level Commissioners, L. E. 4 C. P. 279 ; Callis on Sewers, 107, 151 ; Coulson & Forbes on Waters, 27-32 ; Hunt on Boundaries (2d ed.), 37. 5 Hudson V. Tabor, 2 Q. B. D. 290; Attorney General u. Tomline, 12 Ch. D. 214; Collins v. Macon (Ga.), 27 Alb. L. Journ. 116. It seems that a covenant to repair a sea-wall runs with, the land, and would therefore bind a purchaser even without notice express or implied. Morland u. Cooke, L. R. Eq. 252. ^ Ibid. ; Attorney General u. Tom- line, 12 Ch. D. 214 ; Crompton v. Lee, 31 L. T. K. s. 409; Philadelphia v. Scott, 81 Penn. St. 80, 88 ; Commonwealth v. Alger, 7 Cush. 53, 86; Crowley .;. Copley, 2 La. Ann. 390 ; Watson v. Marshall, 16 La. Ann. 231 ; Leblanc V. Pittman, 26 La Ann. 4B3 ; O'Connor u. Stewart, 19 La. Ann. 127. 296 THE LAW OF WATEKS. [PAET I. liable to sustain peculiar injury. But riparian proprietors are not required to pen in the water by artificial barriers for the benefit of their neighbors.^ There is no duty resting upon the owner of an artificial canal, analogous to that imposed on the owners of a natural watercourse, not to impede the flow of the water; and, if the overflow of a neigh- boring river increases the water of the canal to the injuiy of his premises adjoining, he may pen up the canal, and thus exclude the water from his premises, and will not be liable to a neighbor whose land he thus causes to be flowed.^ § 162, The general rules by which alluvion is apportioned between different riparian owners are analogous to those applied in the division of flats between the proprietors of lands on the sea-shore owning to low-water mark.^ In all cases, when practicable, every proprietor is entitled to a frontage of the same width on the new shore as on the old shore, and at low-water mark as well as high-water mark,* without regard to the side lines of the upland, unless re- ferred to as guides in particular grants,^ or established as boundaries by the agreement or conduct of the contermi- nous proprietors,^ or the acts of public authorities.^ "In 1 Ibid. nisimmet Co. o. Wyman, 11 Allen, 2 Nield V. London Railway Co., L. 432 ; Stone v. Boston Steel & Iron R. 10 Ex. 4. Co., 14 Allen, 230, 234 ; Clark v. Cam- ^Decrfield u. Arms, 17 Pick. 41, pau, 10 Mich. 325; Emerson t-. Tay- 44 ; Wonson u. Wonson, 14 Allen, lor, 9 Maine, 43. 85 ; Thornton e. Grant, 10 R. I. 477, " Ibid. ; Adams v. Boston Wharf 489. Co., 10 Gray, 521 ; Attorney General * Ibid. ; Gray t-. Deluce, 5 Cush. 9, v. Boston Wharf Co., 12 Gray, 5.53, 12 ; Walker u. Boston & Maine Rail- 560 ; Stone o. Boston Steel & Iron road, 3 Cush. 23; Porter v. Sullivan, Co., 14 Allen, 230, 234 ; Sparhawk r. 7 Gray, 443 ; Attorney General !■. Bos- BuUard, 1 Met. 95 ; Breed v. Breed, ton, 12 Gray, 558; Valentino w. Piper, 117 Mass. 593, 596; 110 Mass. 5:32; 22 Pick. 96 ; Wonson u. Wonson, 14 Central Wharf v. India Wharf, 12:) Allen, 71, 79; Stone v. Boston Steel Mass. 561, 567; Jones v. Boston Mill & Iron Co., Id. 2-30 ; Knight v. Wilder, Co., 6 Pick. 148 ; Rider v. Thompson, 2 Cush. 209; Kennebec Ferry Co. v. 23 Maine, 243; Treat v. Chipman, 35 Bradstreet, 28 Maine, 374. Maine, 84 ; Thornton v. Eoss, 26 Maine, 5 Ibid.; Rust v. Boston Mill Cor- 405. poration, 6 Pick, 169; Dawes v. Pren- ' Ibid.; Brimmer v. Long Wharf, tice, 10 Pick. 435, 442; Piper r.. Rich- 5 Pick. 135; Valentine !,-. Piper, 22 ardson 9 Met. 158 ; Curtis ;.'. Francis, Pick. 95 ; Piper v. Richardson, 9 Met. 9 Cush. 427, 438; 9 Gray, 522; Win- 163; AVheeler c. Stone, 1 Cush. 319; CHAP, v.] RIPAEIAN EIGHTS AND BOUNDARIES. 297 general," says Merrick, J.,i " where there are no circum- stances or peculiarities in the formation of the shore or the course of the charmel, the lines of division are to be made to the channel in the most direct course from the lateral boundaries of the several tracts of upland to which the flats are appended." So, also, in the case of unnavigable streams which are the property of the riparian proprietors usque ad filum aquae, the side lines are extended to the centre of the stream from the termini on the bank at right angles with the general course of the river, unless varied by the terms of the conveyance under v^hich the proprietors holcl.^ § 163. When the general course of the shore or river bank approximates to a straight line, alluvial deposits as well a^ flats are divided among the conterminous proprietors by lines perpendicular to the general course of the original bank, or of the original high-water mark of the shore.^ When it curves or bends, two objects are to be kept in view: namely, to give to each proprietor a fair share of the land, and to secure to him convenient access to the water from all parts of liis land by giving him a share of the outward line proportioned to the share of the line of high-water mark or original shore owned by him.* In such case, the general rule is to measure the whole extent of high-water mark or of Commonwealth v. Alger, 7 Cush. 53, lard, 1 Met. 106 ; Knight v. AVilder, 2 73; Drake o. Curtis, 9 Cush. 447; 9 Cush. 209; Porter i'. Sullivan, 7 Gray, Gray, 52.3. 443; Wonson v. Wonson, 14 Allen, =- ^ Attorney General I'. Boston Wharf 71,79; Batchelder !>. Keniston, 51 N. Co.,^553, 558 ; Ashby d. Eastern Rail- H. 496, 498; Delaware Railroad Co. road Co., 5 Met. 368 ; Walker v. Bos- v. Hannon, 37 N. J. L. 276 ; Miller v. ton & Maine Railroad, 3 Cush. 1, 23. Hopburn, 8 Bush, 326 ; Rice v. Ruddi- 2 Knight V. Wilder, 2 Cush. 199; man, 10 Mich. 125; Clark v. Campau, Batchelder v. Keniston, 51 N. H. 496; 19 Mich. 325; Bay City Gaslight Co. Bay City Gaslight Co. v. Industrial v. The Industrial AVorks, 28 Mich. Works, 28 Mich. 182 ; Clark v. Cam- 182 ; Graves v. Fisher, 5 Maine, 69. pau, 19 Mich. 325 ; Miller v. Hepburn, See Crook v. Seaford, L. R. 6 Ch. 551 ; 8 Bush, 326 ; Wood v. Appal, 63 Penn. L. R. 10 Eq. 678 ; Newton v. Eddy, 23 St. 210; Irwin v. Towne, 42 Cal. 326; Vt. 319; Delord v. New Orleans, 11 People !). Schermerhorn, 19 Barb. 540. La. Ann. 699; Michon v. Gravier, See Inliabitants of Ipswich, Petition- Ibid. 596. ers, 13 Pick. 431 ; Au Gres Boom Co. * Deerfleld v. Arms, 17 Pick. 41 , V. Whitney, 26 Mich. 42. 45; Batchelder v. Keniston, 51 N. H. "Note 4 above; Sparhawk u. Bui- 496. 298 THE LAW OF WATERS. [PAET 1. the ancient line along the shore ; to then divide the line of low-water mark, or, in the case of alluvion, the newly formed water line into equal parts, corresponding in number to the feet or rods ascertained by the above measurement; and, after apportioning to eacli proprietor as ma.ny of these parts as he owned feet or rods on the old line, to draw lines from the original termini of the boundaries of the upland to the points of division on the newly formed line, or, in the case of flats, on the line of low-water mark.^ If, for example, the shore line, before the formation of alluvion, was two hundred rods in length, A's share being one hundred and fifty rods and B's fifty, and the new shore line is but one hundred rods in length, then A would take seventy-five rods and B twenty-five rods of that line ; and the division of the land would be completed by running a line .from the bound be- tween the parties on the old line to the points thus determined on the new line.^ If, instead of curving inward towards the land, the course of the shore bends outward, the dividing lines diverge and each proprietor has a correspondingly greater width towards the water than towards the land.^ § 164. In Deerfield v. Arms,* Shaw, C. J., in apportion- ing alluvion by converging lines according to the above rule, remarks that where the shore is elongated by deep indentations or sharp projections, its length should be re- duced by an equitable and just estimate to the general available line of the land upon the water. In Rust v. Br ston Mill Corporation,^ in Massachusetts, flats were to be divided 1 Deerfield v. Arms, 17 Pick. 41; 6 Pick. 158. This rule is approved by Batchelder v. Keniston, 51 N. H. 490; other courts in Johnson ;.■. Jones, 1 Jones u. Johnson, 18 How. 150; Black, 209; O'Donnell r. Kelsey, 10 Johnson r. Jones, 1 Black, 200. N. Y. 412 ; 4 Sand. 202 ; Miller v. - Batchelder !'. Keniston, 51 N. H. Hepburn, 8 Barb. 332; Xott r. Thayer, 490, 498. 2 Bosw. 10 ; Furman v. New York, 10 3 Gray v. Deluce, 5 Cush. 9, 12, 13; N. Y. 537 ; 5 Sand. 10; Thornton .-. Porter v. Sullivan, 7 Gray, 443 ; Em- Grant, 10 R. I. 477, 488 ; Aborn !-. erson u. Taylor, 9 Maine, 40 ; Clark u. Smith, 12 R. I, 370; Batchelder <■. Canipau, 19 Mich. 325. Keniston, 51 N. 11. 496,499. See, also, 1 17 Pick. 41, 46. See Irwin ,^ Deerfield v. Arms, 17 Pick. 45 ; Spar- Tovvne, 42 Cal. 326. hawk r. Bullard, 1 Met. 107; Asliby s Bust V. Boston Mill Corporation, i. Eastern Railroad Co., 5 Met. 309; CHAP. V.J EIPAKIAN EIGHTS AND BOUNDARIES. 299 lying within a deep cove, out of which the tide ebbed at low water, and the mouth of which was so narrow tliat it was impossible to make the division among the several propri- etors by parallel lines ; and it was made by running con- verging divisional lines from high-water mark to points upon ji base line across the mouth 'of the cove, the points being fixed by giving to each proprietor a width upon the base line proportional to the width of his shore line. In Gray v. Deluce,-' the shore of a shallow cove formed a long curve, and the flats were divided, as if the line of the shore had been straight, by drawing parallel lines from the ends of the division lines of the upland to low-water mark in such a manner that they intersected at right angles a base line Piper y. Richardson, 9 Met. 158; Wlieeler v. Stone, 1 Cusli. 315 ; Kniglit 0. WildDr, 2 Cush. 209; Hopkins Academy v. Dickinson, 9 Cush. 544 ; Attorney General v. Boston Wharf Co., 12 Gray, 560 ; Berry ;;. Raddin, 11 Allen, 579; Boston t. Richardson, 13 Allen, 151 ; 105 Mass. 360; Nichols v. Boston, 98 Mass. 41 ; Charlestown ti. Tufts, 111 Mass. 351; Tufts v. Charles- town, 117 Mass. 402. In Walker v. Boston & Maine Railroad, 3 Cush. 1, 25, it was said that there is prohably no reason why, xipon tile principle of giving an equal division, the lines, after passing the mouth of a narrow and shallow cove, should not widen and spread in proportion to low-water mark. In Maine the following rule of apportionment has been adopted; Draw a base line from one corner of each lot to tiie other, at the margin of the upland, and run a line from each of these corners, at right angles with such base line, to low-water mark. If the line of the shore is straight, the side lines of the lots thus drawn to low-water mark will be identical ; but if, by reason of the curvature of the shore, they diverge from or conflict with each other, the land enclosed or excluded by both lines is to be equally divided between the adjoining pro- prietors. Emerson v. Taylor, 9 Maine, 42 ; Kennebec Ferry Co. o. Bradstreet, 28 Maine, 374; Treat c. Chipman, 35 Maine, 34; Call u. Lowell, 40 Maine, 31. This rule, being more diflBcult of application than that adopted in Massachusetts, lias been less favor- ably received in other States. See Thornton v. Grant, 10 R. I. 477, 488, and authorities above cited; Gray v. Deluce, 5 Cush. 9, 13. 1 5 Cush. 9. The fact that in this case it does not appear whether the low-water line, which in this State is the boundary of the lands adjoining tide waters, under the ordinance of 1647 [post, § 169),, was in any part within the base line, is not necessarily material. Stone v. Boston Steel & Iron Co., 14 Allen, 230. See, also. Commonwealth o. Alger, 7 Cush. 53, &'A, 79 ; Adams v. Boston Wharf Co., 10 Gray, 521, 530; Attorney General V. Boston "Wharf Co., 12 Gray, 557 ; Wonson v. Wonson, 14 Allen, 71, 79, 83 ; Boston v. Richardson, 105 Mass. 358 ; Stockham v. Browning, 18 N. J. Eq. 390 ; Delaware Railroad Com- pany u. Hannon, 37 N. J. L. 276; Tharton i-. Grant, 10 R. I. 477 ; Aborn u. Smith, 12 R. I. 370 ; Clark v. Cam- pau, 19 Mich. 325; Miller v. Hepburn, 8 Bush, 326. 300 THE LAW OF WATERS. [PABT I. across the mouth of the cove. If there are adjoining coves, the side lines of which would conflict, if so drawn, the line between them is projected at an equal angle to the base line of each oove.^ These rules may be varied by agreement between the owners of the shore or by long- continued acquiescence in 'other assumed boundary lines.^ Lines, for example, which were established by a partition according to other rules, but affirmed by the court and acquiesced in during thirty-five years by the parties, were held to be the true boundaries.^ If a cove or inlet is so irregular in outline, and so traversed by crooked channels from which the tide does not ebb, that none of the foregoing rules are applicable, the only course is to so divide the flats as to give to each proprietor a fair and equal proportion by as near an approximation to these rules as is practicable.* § 165. In Thornton v. Grant,^ in Rhode Island, the ques- tion was whether the defendants were so constructing a wharf as to encroach upon the plaintiffs' water front. It was not contended that the wharf, if constructed as proposed, would extend across the division line between the plaintiffs' and defendants' lands, if that line were prolonged; but it was claimed that the prolongation of that line was not the projoer limit of the plaintiffs' water front, owing to the con- formation of the shore. Durfee, J., in delivering the opinion of the court, referred to the foregoing rules, and said : " In the case before us we are not called upon to partition allu- vion or flats, but to determine the extent of the plaintiffs' water front. The principle involved, however, is very much the same in the one case as in the other ; and we are there- fore not insensible to the guidance to be derived from the ' Wonson «. Wonsoii 14 Allen, 71. line as to land under water which 2 Attorney General v. Boston Wharf they are about to fill, and one of them Co., 12 Gray, 553 ; Valentine v. Piper, fills to this line, the other.is estopped 22 Pick. 85; I'iper c. Elchardson, to deny that it is the true boundary. Met. 155 ; Sparhawk v. BuUard, 1 Met. Laverty v. Moore, 32 Barb. 347. 105. * Walker v. Boston & Maine Eail- 8 Adams ;). Boston Wharf Co., 10 road Co., 3 Cush. 1. Gray, .521 ; Winnisimmet Co. v. Wy- ^ jq R. I. 477, 489. See Rush v. man, 11 Allen, 432. If opposite ripa- Jackson, 24 Cal. 308; Arden t-. Ker- rian owners agree upon a boundary mit, Anth. N. P. 112. CHAP, v.] EIPAEIAN EIGHTS AND BOUNDARIES. 301 decisions cited. But those decisions do not establish any one invariable rule, and it is quite evident that no one of the several rules which they do suggest could be applied in all cases without sometimes working serious injustice. In the case at bar a solid rock projecting out to the main chan- nel has preserved the shore of the plaintiffs from detrition at that point, but has allowed quite a deep inward curve beyond that point, while the shore of the defendants, having no such protection, has conformed more to the course of the river. The consequence is, that if we draw a front line from head- land to headland, and then draw the division line so as to give to each set of proprietors a length of front line propor- tionate to the length of their original shore, the division line will pass diagonally across what would ordinarily be regarded as the water fi'ont of the defendants' land. This is a result which does not commend itself to us as either reasonable or just. We have decided upon another rule, which to us seems equitable, and which, for our present purposes, in the circumstances of this case, leads to a pretty satisfactory result. The rule is this : Draw a line along the main chan- nel in the direction of the general course of the current in front of the two estates, and from the line so drawn, and at right angles ^with it, draw a line to meet the original division line on the shore. This rule is not unlike the rule adopted in Gray v. Deluce.^ It will give the plaintiffs as large an extent of water front as we are disposed to allow them ; and upon the front so defined we will grant them an injunction to prevent the defendants from encroachments." In Aborn V. Smith,^ in the same State, it was held, in pursuance of the rule laid down in Gray v. Deluce^ and Thornton v. Grant,* that the boundaries of riparian estates, the proprietors of which are entitled to reclaim a curving shore to a harbor ' S Cush. 0; ante, § 104. City Gaslight C'ompimy <■. Industrial = 12 R. I. 370; 11 R. I. 594. As to Works, 28 Mich. 182, it was held that the Jurisdiction of equity in such cases, a dock line which was not parallel SCO Id. 11 R. I. 594 ; 1 Story, Eq. Jur. either -ivith the thread of the stream § 010; Willard o. Ma goon, 30 Mich, or with the shore did not interfere 232 ; Perry v. Pratt, 31 Conn. 433. with the application of the rule ex- ' 5 Cush. ; an. Blencoe Creek N. H. 369; Kimball v. Schoff, 40 N. Turnpike Co., 1 Lea (Tenn.) 704; H. 190, 194 ; Cooper's Just. Ub. 2, t. Pleta, lib. 3, c. 2, §§ 6, 8. As to what 304 THE LAW OP "WATERS. [PAET I. two or more threads. "If," says Schultes,^ "between an island whicla lies nearest and belongs to a neighboring estate, and the contrary bank of a neighbor, which is on the other sidft of the stream, another island shall arise, then the admeasurement of property shall be made from the first island, and not from the estate to which it is apportioned by vicinity." In an action brought to recover possession of an island in the Wabash River in Indiana, claimed by the owner of the adjacent land on the south side of the stream as an accretion caused by the partial filling up of the channel on his side of the river, evidence that the defendants were in continuous adverse possession for more than twenty years prior to the commencement of the suit, and had purchased from the United States in 1857, after a survey ordered in 1849 and made in 1850 ; that, at the time of the plaintifi^'s purchase in 1837, it had been omitted from the survey, except to designate its location, and that he never had possession or exercised acts of ownership over the same, or asserted title thereto before the action, was held sufficient to support a verdict in favor of the defendants.^ § 167. When a wharf or building is extended into the water, two questions arise in determining the legality of tlie structure : First, whether it is a purpresture, which de- pends upon the ownership of the soil which it covers ; ^ second, whether it is a public nuisance, as interfering with boundaries' in particular grants in- monly called and known by the name elude islands, see Ibid. ; Lunt u. of the Green Flats," was held to con- Ilolland, 14 Mass. 151 ; People v. vey the Green Flats, though usu- Canal Appraisers, 13 Wend. 355; ally submerged and not strictly an Walton I). Tifft, 14 Barb. 210 ; Clarke island. Brink t. Eichtmyer, 14 Johns. r. Wagner, 76 N. 0, 4G3 ; Clarcmont 255. A grant of a "river" does not r. Carlton, 2 N. li. .360 ; Kimball ;•. convey either the river bed or islands Sohoff, 40 N. H. 100; Hartley v. formed therefrom. Jackson c. Hal- Crawford, 81 Penn. St. (Pt, 2), 478 ; stead, 5 Cowen, 216; ante, § 31. Johns V. Davidson, 16 Penn. St. 512. i Aquatic Eights, 119; Bract, lib. As between States, see Handly „. 2, c. 2; Fleta, lib. 3, c. 2, §§ 6, 8 ; Anthony, 5 Wheat. 374 ; Howard r. Digest, 41, t. 1, § 56. IngersoU, 18 How. 381 ; Missouri >■. 2 Bonewits v. Wygant, 75 Ind. 41. Iowa, 7 How. 660 ; Missouri v. Ken- 3 Eyan f. Brown, 18 Mich. 196 ; tucky, 11 Wall. .395. A grant which ante, c. 1. purported to convey " an island com- CHAP, v.] RIPAEIAN EIGHTS AND BOUNDARIES. 305 the common rights of navigation and fishery. By the common law, as already stated, any encroachment npon the property of the Crown in tide waters below the high-water mark might be seized by the king as an unauthorized addition to his lands, or it might be abated at his discretion without regard to the question whether it was also a public nuisance.^ By the common law of England there is no general right, as incident to the ownership of the adjoining lands, and in the absence of a grant from the Crown or of prescription, which presupposes a grant, to extend wharves beyond the ordinary high-water mark of tide Avaters ; and there is no authority in England for the p)osition that a simple purpresture is indictable.^ § 168. In this country this rule is subject to reasonable limitations, and the common rights of the people in these waters, both before and since the Revolution, may be saicS generally to be confined to what is of public use ; ^ while the^ owners of lands adjoining navigable waters are permitted to enjoy what remains of the rights and privileges in the soil beyond their strict boundary lines, after giving to the public the full enjoyment of their rights."*^ There is no general jurisdiction vested in the courts of the countrj^ analagous to that exercised by the English Court of Exchequer in equity. ' Hale, De Jure Maris, c.3,6 ; Har- Steamboat Co., 12 R. I. 348 ; Attorney grave's Law Tracts; Attorney Gen- General e. Delaware Railroad Co., 27 eral v. Parmeter, 10 Price, .378 ; Attor- N. J. Eq. 1, 031 ; Aklen v. Pinncy, I'J ney General v. Richards, 2 Anst. 603 ; Fla. 348; People v. St. Louis, 5 Gil- Attorney General v. Johnson, 2 Wils. man, 351. Cli. 87; ante, § 21. * Ibid. Under the civil law one ^ Ibid. ; People v. Davidson, 30 might construct an enclosure by the Cal. 379 ; Dana v. Jackson Street sea, lower than the high-water mark. Wharf Co., 31 Cal. 118; Gougli v. or even than the low-water mark, and Bell, 22 N. J. L. 441, 477. possess the ground within the limiw ^ Burrows c. Gallup, 32 Conn. 493, of the enclosure, because he is able to 500 ; Dutton t . Strong, 1 Black, 23, exercise an exclusive control over it ; 32; Commonwealth i-. Charlestown, 1 but if the water swept away his eu- Pick. 180, 186 ; Commonwealth u. Al- closure, his exclusive control was lost, ger, 7 Gush. 53 ; Clement v. Burns, 43 and with it all his rights of owner- N. II. 618 ; Stevens v. Paterson Rail- ship. Hadley's Int. to Roman Law, road Co., .34 N. J. L. 532 ; Providence 158; Goudsmit's Roman Law, 113, Steam Engine Co. v. Providence note. 306 THE LAW OP WATEES. [rAllT I, The business department of that court being divided between equity and law, included upon the equity side the investi- gation of purprestures in connection with the charge and collection of the public revenues, and the recovery and pro- tection of the Crown lands ;^ while the equity jurisdiction in this country corresponds to that administered by the High Court of Chancery in England, and our courts of equity, being incompetent to ascertain the pleasure of the State whether a naked purpresture should be seized, demolished, or arrented, appear to have rarely attempted the exercise of such power, and it has not, therefore, been always treated as a question of public justice. Upon this groiind, the Supreme Court of California decided,^ that the district courts of that State had not, by virtue of their equity powers, jurisdiction to order the abatement of a naked purpresture, although the State may of its own motion bring ejectment. In New York it is held that purprestures, like public nuisances, may be abated by the courts upon proceedings on behalf of the people,* and that a court of chancery may enjoin any such appropriation of j)ublic property to private uses as will injuriously affect ±he public interest.* The question whether a structure -eEected upon the shore of a harbor or of any salt waters is .a purpresture is thus of less practical importance in this ..countrj^ than in England ; while the question whether such : Structure interferes with the public right of navigation, and .is a nuisance, is equally important in the two countries. ' This change of view results in some States from statute ; in . others, from usages which have acquired the force of law. 1 3:B1. Com. 44; 4 Inst. u. 13; At- 287; 28 N. Y. 396; 38 Bart). 282; torney - General v. Richards, 2 Anst. People u. New York Ferry Co., 68 N. 606; Attorney General v. Parmeter, Y. 71. 10 Prie^-, 378; Attorney General u. * Ibid. ; Attorney General c. Cohoes Burridge, 10 Price, 378; Attorney Co., 6 Paige, 133; Delaware Canal Genc^ral v. Johnson, 2 Wils. Ch. 101. Co. v. Lawrence, 2 Hun, 163; People : - People o. Davidson, 30 Cal. 379, v. Tliird Avenue Railroad Co., 45 392 ; Courtwright v. B. R. Co., 30 Cal. Barb. 63 ; 30 How. Pr. 121 ; People v. ,585. ' People C.V. Vanderbilt, 26 N. Y. St. Louis, 5 Gilman, 351. CHAP, v.] KIPAEIA^N EIGHTS AND BOUNDARIES. 307 § 169. In Massachusetts the colony ordinance of 1647 * provided that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietors of the adjoining lands should have property to the low-water mark, where the sea does not ebb above one hundred rods, and not more wheresoever it ebbs further; provided that such proprietors should not have power to stop or hinder the passage- of boats or other vessels to other men's houses or lands. This ordinance conveyed to the owners of the up- land flats which were within the bounds of towns already established, but not those previously granted to individuals or appropriated to public uses.^ It did not in terms extend to other colonies than that of Massachusetts ; but it was a settled rule of property throughout the province of Massa- chusetts, after the union of the colony of Massachusetts with Plymouth and Maine, and also with Nantucket and Martha's Vineyard.^ It applies to the open seashore as well as to the creeks and arms of the sea,* and to islands as well as the main land.^ It does not apply to fresh waters, except where, being pressed back by the influx of the sea, they rise and fall with the tide.^ It is the law of Maine,'^ 1 Also denominated the ordinance Maine, 238 ; Low v. Knowlton, 26 of 1641 ; 1647 is probably the correct Maine, 128. date. Commonwealth v. Alger, 7 ^ Hill v. Lord, 48 Maine, 83. Cush. 5.3, 67 ; Commonwealth v. Eox- ^ Lapish v. Bangor Bank, 8 MainCj bury, 9 Gray, 451, and note. 85 ; Attorney General u. Woods, 108 2 Boston c. Richardson, 105 Mass. Mass. 430 ; ante, § 44. 351 ; Tappan v. Burnham, 8 Allen, ' Knox u. I'ickering, 7 Greonl. 106 ; 65; Porter v. Sullivan, 7 Gray, 441; Lapish v. Bangor Bank, 8 Greenl. 85; Commonwealth o. Alger, 7 Cush. 70 ; Emerson v. Taj-lor, 9 Greenl. 42 ; Dun- Berry V. Eaddin, 11 Allen, 577. can v. Sylvester, 24 Maine, 482 ; Ger- ^ Storer v. Freeman, 6 Mass. 435 ; rish ii. Union Wharf Co., 26 Maine, Codman v. Winslow, 10 Mass. 146 ; 384 ; Thornton v. Foss, Id. 402 ; Low Parker v. Smith, 17 Mass. 413 ; Barker u. Knowlton, 26 Maine, 128 ; Deering V. Bates, 13 Pick. 255 ; Sale v. Pratt, v. Long Wharf, 25 Maine, 51, 64 ; 19 Pick. 191; Mayhew v. Norton, 17 Partridge c. Luce, 36 Maine, IC; Pick. 3o7 ; Commonwealth o. Alger, Moulton v. Libbey, 37 Maine, 485 , 7 Cush. 53, 76 ; Weston v. Sampson, 8 Clancey u. Houdlette, 39 Maine, 451 ; Cush. 347, 354 ; Commonwealth u. Montgomery v. Eeed, 69 Maine, CIO ; Roxbury, 9 Gray, 451, and note, p. Parker v. Cutler Mill Dam Co., 20 023. Maine, 353 ; Moore u. Griffin, 22 * Sale V. Pratt, 19 Pick. 191 ; Maine, 350 ; Storer v. Freeman, 6 Barker v. Bates, 13 Pick. 255 ; Com- Mass. 435 ; Barrows u. McDermott, iiionwealth v. Alger, 7 Cush. 53, 70 ; 73 Maine, 441 ; Dunlap u. StotsoHj 4 Brackett .;. Persons Unknown, 53 Mason, 349, 306. 308 THE LAW OF "WATEES. [PAET I. and, as a usage, it has been recognized as applicable in New Hampshire.^ It did not create a mere easement, privilege, or license, but was a grant of the soil to low-water mark;^ and the State cannot take the flats of a littoral proprietor above that line, or diminish their value by causing them to bo permanently flooded or laid bare, except in the exercise (,f the right of eminent domain, and by making reasonable com- pensation.^ One of its chief purposes was to aid commerce, and to give the littoral proprietors convenient wliarf privi- leges : and it is therefore held in Massachusetts that the low-water mark referred to in the ordinance is not the lino of ordinary low tide, but that of the lowest ebb, to which it is often necessary to extend wharves in order that they may be enjoyed to the best advantage.* The State still owns the flats beyond that line, and the soil which is permanently submerged ;^ and the public may use unenclosed flats within tliat line for navigation,'^ and may there take fish, as well 1 Clement v. Burns, 43 N. 11. 021. See Nudd v. Hobbs, 17 k. H. 527. 2 Austin u. Carter, 1 Mass. 231; Storer v. Freeman, 6 Mass. 435 ; Cod- man M. Winslow, 10 Mass. 140 ; Com- monwealth u. Alger, 7 Cush. 53, 70- 81 ; Fitcliburg Railroad ii. Boston & Maine Railroad, 3 Cush. 58 ; Walker ;;. Boston & Maine Railroad Co., 3 Cusli. 121 ; Commonwealth v. Boston & Maine Railroad Co., 3 Cush. 43; I'orter i;. Sullivan, 7 Graj', 443; Com- f.'.unwealth u. Ro.xbury, 9 Gray, 451, ■ijO, and note, p. 518 ; Boston v. Le- (T.iw, 1 7 How. 432 ; Rust v. Boston Mill Corp., G rick. 158; Drake c. Curtis, 1 Cush. 395, 412; Gray r. De- luce, 5 Cush. 9; Winsh)w !•. Patten, 34 Maine, 25 ; Tike ,-. Jlunroc, 36 Maine, 309; Parker ,.. Cutler Mill Dam Co., 20 ]\Iainc, 353; Low ;•. lOinwlton, 20 Maine, 128. ^ Ibid. ; Boston and Ro.xbury Mill Corporation x\ Newman, 12 Pick. 467, 482 ; Boston Water Power Co. r. Bos- ton & Worcester Railroad Co., 23 Pick. 360; Ashby v. Eastern Railroad (;ci., 5 Met. 368; Haskell u. New Bedford, 108 Mass. 208; Drury v. Midland Railroad, 127 Mass. 571. See Walker u. Shepardson, 4 Wis. 486. * Sparhawk v. Bullard, 1 Met. 95, 108 ; Storer v. Freeman, 6 Mass. 435, 438 ; Commonwealth u. Charlestown, 1 Pick. 180, 183; Commonwealth v. Boston & Maine Railroad Co., 3 Cusli. 1 ; Walker v. Boston & Maine Rail- road Co., 3 Cush. 24 ; Commonweaitli V. Roxbm-y, 9 Gray, 451,491, and note; Attorney General c. Boston Wharf Co., 12 Gray, 553, 558; Wonson .■. Wonson, 14 Allen, 71, 82; Attorney General v. Wood, 108 Mass. 436, 440. In Maine the limit under this ordi- nance is the ordinary low-water mark, as at common law. Gerrish v. Union Wharf, 26 Maine, 384. »Gray !•. Bartlett, 20 Pick. 186; Boston Mill Co. v. Newman, 12 Pick. 476 ; Sparhawk v. Bullard, 1 Met. 95 ; Garey i-. Ellis, 1 Cush. 300; Common- wealth r. Roxbury, 9 Gray, 451, 499. * Boston Steamboat Co. v. Munson, 117 Mass. 31 ; Henshaw v. Hunting, 1 (>ray,2n3; Commonwealth y.CharlcE- town,' 1 I'ick. 180 ; Drake v. Ciurtis, 1 CHAP. V.J RIPARIAN RIGHTS AND BOUNDARIES. 309 those which are embedded in the soil as those which are moving in the water.i Littoral proprietors may, however, exclude navigation from their own flats by building wharves or other structures to low-water mark, if not prohibited from so doing by the legislature, but have no right to erect structures which materially interfere with the passage of vessels or boats, or cut off the access to the neighboring houses or lands.^ By reclaiming flats, or by fixing stakes upon them, they may also exclude the public from exercising the privileges of fishing and fowling, and of digging for shell- fish in the space so occupied.^ A littoral owner takes the adjoining flats as land and not as an incorporeal right,* and his widow is entitled to dower in his flats which are unim- proved at his decease.^ As land does not pass as appurtenant to land,^ it is established under this ordinance : first, that a writ of entry lies for flats, though unenclosed, when the owner is disseized;^ second, that trespass quaere clausum f regit lies for an injury to the owner's possession of flats ; ^ third, that the owner may convey the flats, or any part of them, without the upland, or the upland without the flats, the question of intention depending upon the terms of the Cush. 395, 413 ; Boston v. Lccraw, 17 Commonwealth v. Charlesto^vn, 1 Pick. How. 426 ; Richardson v. Boston, 19 180 ; Barker c. Bates, 13 Pick. 25&; How. 263 ; 24 How. 188 ; State c. Deering v. Long Wharf, 25 Maine, 51 ; Wilton, 42 Maine, 9 ; Montgomery <■. Davidson ;;. Boston & Maine Railroad, Reed, 69 Maine, 510. In the last case, 3 Cush. 91. it was held that the public right of " Locke v. Motley, 2 Gray, 265 ; navigation over unenclosed flats is Ipswich Proprietors v. Herrick, not an encumbrance within the com- Gray, 529 ; Low v. Knowlton, 26 men covenant against encumbrances. Mauie, 128. See, also, 'Ballard v. Child, 46 Maine, ' Storer c. Freeman, 6 Mass. 435 ; 152. A grant of flats by the State, Commonwealth v. Alger, 7 Cush. 77. although by warrnnfy deed with a ^ Brackett v. Persons Unknown, 53 covenant against incumbrances, to a Maine, 238. person who agrees to fill them within ^ Doane u. Broad Street Associa- a certain time, does not extinguish the tion, 6 Mass. 332 ; Commonwealtli c. public right of navigation until the Alger, 7 Cush. 53, 80 ; Valentine p. flats are filled. Boston Steamboat Co. Piper, 22 Pick. 85 ; Piper u. Richard- is Munson, 117 Mass. 34. son, 9 Met. 155. 1 Proctor V. Wells, 103 Mass. 210; ^ Commonwealth c. Alger, 7 Cush. Lakeman v. Burnham, 7 Gray, 437. 53, 80. ^ Boston V. Richardson, 105 Mass. ' Ibid. ; Austin v. Carter, 1 Mass. 365; Kean .. Stetson, 5 Pick. 495; 231. 310 THE LAW OF WATERS. [PAKT I. conveyance.^ If the grant is expressly bounded by the high-water mark, tlie grantee is not entitled to the benefit of the ordinance.^ But proof of title to the upland is prima facie evidence of title to the flats, and the latter are pre- sumed to pass by a grant of the former if the conveyance does not disclose a contrary intent.^ The public may 23asu over such parts of the shore as are bare and unimproved, without hindrance or liability for damages to the littoral proprietors ; * and the public right of fishery in tide waters includes, ag above stated, the right to take fish upon the shore to high-water mark.^ The State, as representing its citizens, or otherwise, has not such an easement or interest in flats appurtenant to or parcel of the upland, and owned by individuals, as requires a jury, in assessing damages for taking the same for a railroad, to deduct its interest from the ascertained value.*^ It is not settled whether the ordi- nance was a recognition of a previously existing usage. In Massachusetts, a grant upon the sea-shore from the colonial government prior to the ordinance did not extend beyond high-water mark without express words.' In Maine it has been held that private conveyances of flats before the ordi- nance are valid.^ § 170. In Connecticut the privileges of the littoral pro- jjrietors, with respect to the shore, depend upon usage. 1 Lufkin u. Haskell, 3 Pick. 356 Mayliew v. Norton, 17 Pick. 413 Drake o. Curtis, 1 Cush. .095, 413 Porter v. Sullivan, 7 Gray, 447 ; Harts- liorn -u. Wright, Peters C. C. 64 Lapisli u. Bangor Bank, 8 Greenl. 85 Deering v. Long Wharf, 25 Maine, 64 Treat u. Strickland, 23 Maine, 234 Pike u. Munroe, 36 Maine, 309 Erskine c. Moulton, 66 Maine, 270 Stone !■. Augusta, 40 Maine, 137 3 Valentine ,-. Piper, 22 Pick. 85 ; Drake v. Curtis, 1 Cush. 395 ; 2 Dane Abr. 091, 099 ; 9 Gray, 524 ; Charles- town V. Tufts, 111 Mass. 348 ; Mooro (,-. GriflBn, 22 Maine, 350 ; Nickersou V. Crawford, 16 Maine, 245 ; Winslov/ I/. Patten, .34 Maine, 25; Pike v. Mun- roe, 30 Maine, 309. * State !-. Wilson, 42 Maine, 9. '" Moulton (■. Libbey, 37 Maine, 472 ; Weston V. Sampson, 8 Cush. 347 Knox r. Pickering, 7 Maine, 106. " Walker r. Boston & Maine Rail- TJpon a petition for the partition of road, 3 Cush. 1. land, described as bounded on the sea, ' Comnionwealtli r. Eoxbury, the flats as well as the upland are to Gray, 451, and note; Boston v. Rich- bo divided. Partridge r. Luce, 30 ardson, 105 Mass. 351. Maine, 10. 8 nm ,.. i^ord, 48 Maine, 83. ^Lajusli c. Bangor Bank, 8 Grccnl. 85. CHAP. V.j RIPARIAN RIGHTS AKD BOUNDARIES. 311 unaided by ancient statutory provisions. The title of such proprietors extends only to the high-water mark, but they have the exclusive right to construct wharves upon the soil below it, and to reclaim the shore, if they conform to such regulations as the State may impose, and do not obstruct the navigation.^ Thej^ have a right of access to the sea, and the exclusive right of embarkation from their own land, and no other person can lawfully enter upon their lands for this or anj- other purpose without their permission.^ This right of reclamation and wharfage, while unexercised, is a fran- chise alienable by the owner, and, although it originates in and is derived from the ownership of the adjoining upland, it is not so inseparably attached thereto that a grant of the upland necessarily conveys the franchise.^ When the right has been exercised by reclaiming the shore, the reclaimed portions in general become integral parts of the owner's adjoining land.* § 171. Similar privileges are accorded to littoral proprie- tors by the established usages of New Jersey. In this State the legislature may grant any portion of the unenclosed soil of its navigable waters, including the shore, without making compensation to the owners of the adjoining lands.^ The latter may reclaim the shore to low-water mark, when this can be done without interfering with the navigation,^ ^ Mather v. Chapman, 40 Conn. ^ Simons ,;. French, 25 Conn. 346, 382 ; State v. Sargent, 45 Conn. 358 ; 352 ; Lockwood v. New York Railroad Nichols V. Lewis, ^5 Conn. 1-37, 143 ; Co., 37 Conn. 387. Peck f. Lockwood, 5 Day, 22 ; East * Lockwood v. New York Railroad Haven „. Hemingway, 7 Conn. 186; Co., 37 Conn. 387, 391. Chapman v. Kimball, 9 Conn. 38, 41 ; ^ Stevens v. Paterson Railroad Co., Prink v. Lawrence, 20 Conn. 117; 34 N. J. L. 532; 20 N. J. Eq. 126; Groton c: Hurlburt, 22 Conn. 178; State t;. .Jersey City, 25 Ibid. 525. 530; Simons v. French, 25 Conn. 346 ; Bur- New York Railroad Co. u. Yard, 43 rows V. Gallup, 32 Conn. 493; Church N. J. L. 121, 6.32. V. Meeker, 34 Conn. 421 ; Lockwood ' Arnold r. Mundy, 1 Halst. 1, 10, V. New York Railroad Co., 37 Conn. 13 ; Bell v. Gough, 21 N. J. L. 156 ; 22 387 ; Union Wharf v. Starin, 45 Conn. Ibid. 441 ; 23 Ibid. 624, 669; Stevens 585; Seeley v. Brush, 35 Conn. 423. v. Paterson Railroad Co., 34 N. J. L. ■^ Ibid. ; State v. Sargent, 45 Conn. 532. 358, 373. 312 THE LAW OF WATKKS. [PAET I. but this is a mere license which the legislature may revoke at any time before it is executed.^ The littoral proprietors have not a legal title to unimproved flats, and cannot, there- fore, maintain ejectment therefor,^ although they may be protected in equity against an unauthorized encroachment upon them by a stranger, which interferes with their access to the water.3 When the shore is reclaimed, it becomes the property of tlie littoral proprietor, and cannot be taken for public uses, or granted by the State to other person^, without compensation.* If a structure erected by a littoral proprietoi- upon the shores of this State does not interfere with the navigation, it is not abateable as a nuisance or purpresture.^ It seems that the common understanding in this State car- ries the right even below low-water mark, provided there is no obstruction to the navigation.^ The rights of the littoral ^ Stevens v. Paterson Railroad Co., 34 N. J. L. 5.32 ; State u. Brown, 27 Ibid. 13 ; State v. Jersey City, 1 Dutch. 525; Stewart v. Fitcli, .31 Ibid. 17; Keyport Steamboat Co. w. Farm- ers' Transportation Co., 18 N. J. Eq. 13, 511 ; State v. Carragan, 37 N. J. L. 264, 267 ; Pennsylvania Railroad Co. V. New Tork Railroad Co., 23 N. J. Eq. 157 ; Townsend v. Brown, 24 N. J. L. 80 ; State v. Jersey City, 42 N. J. L.349; Cooper i. Bloodgood, 32 N. J. Eq. 209 ; United New Jersey Rail- road Co. V. Standard Oil Co., 33 N. J. Eq. 123. See Rundle v. Delaware Canal Co., 14 How. 80. A privilege conferred by the legislature upon cer- tain associates to build docks, wharves, and piers in the Iludson River, and when so built to appropriate them to their own use, was held not to be assignable in Morris Canal Co. v. Cen- tral Railroad Co., 1 C. E. Green, 419. Adjacency to tide waters, and the en- hanced value given to land by reason of its frontage thereon, are circum- stances which enter into its taxable valuation. New York Railroad Co. v. Yard, 43 N. J. L. 032; State v. Carra- gan, 37 N. J. L. 2-34 ; State .,■. Jersey City, 25 Id. 530. But a separate assessment cannot be made on land below higli-water mark where sucli land and the adjacent upland belong to the same person. State u. Jersey City, 25 N. J. L. 525; State v. Col- lector, 24 N. J. L. 108. 2 Ibid. See Gerrisli v. Union Wharf, 26 Maine, 384 ; Coburn v. Ames, 52 Cal. 385 ; Nichols v. Lewis, 15 Conn. 143; Aborn v. Smith, 11 R. L 594; 12 R. I. 370. ^ Ibid. ; Stockham v. Browning, 18 N. J. Eq. 390 ; State v. Brown, 27 N. J. L. 13, 648; Brown v. Morris Canal Co., Ibid. 648; Hoboken Land Co. v. Ho- boken, 7 Vroom, 540, 550 ; Coburn v. Ames, 52 Cal. 385; Aborn v. Smith, 11 R. I. 594; 12 R. I, 370; Thornton V. Grant, 10 R. I. 477; O'Donneil i. Kelsey, 10 N. Y. 412, 415. * Bell V. Gough, 21 N. J. L. 156; 22 Ibid. 441; 23 Ibid. 024; State o: Jersey City, 25 Ibid. 525; Keyport Steamboat Co. w. Farmers' Transpor- tation Co., 18 N. J. Eq, 511, 13; O'Neall V. Annett, 3 Dutch. 290, 293. '' Attorney General u. Delaware Railroad Co., 27 N. J. Eq. 1, 031. « Elmer, J., in Bell v. Gough, 3 CHAP. V.J EIPAKIAN EIGHTS AND BOUNDARIES. 313 proprietor with respect to the land under water are mere incidents of the ownership of the shore, and, as such, pass with a grant of the upland.^ § 172. In Rhode Island, the right to build wharves in tide waters, not obstructing the channel, appears to have been conceded by an unpublished ordinance passed in 1707.^ Whether it originated in this ordinance or in usage, the right of the littoral proprietor to wharf or embank against his land, without license from the State, provided he does not interfere with the navigation, appears to have been long recognized, and is supported by recent decisions in that State.3 § 173. In Pennsylvania, tidal rivers and the larger fresh streams are alike public property.* In Tinicum Fishing Co. V. Carter,^ the right of the defendant in error to throw but nets in the Delaware River, and to draw them in on the shore, was obstructed by a pier built out by the plaintiffs in error into the river under license from the board of wardens of the port of Philadelphia, who were empowered to grant such licenses in the interests of navigation. Sharswood, J., thus defines the right to extend wharves under the laws of that State : " The title of the riparian owner, derived by Zab. 658. See Townsend v. Brown, 24 R. 0, 13 ; Shrunk v. Schuylkill Navi- N. J. L. 80 ; Associates v^. Jersey City, gation Co., Id. 81 ; Naglee v. Inger- 4 Hal. Ch. 715. See, also, upon this soil, 7 Penn. St. 185; Zugu. Common- point, the early Massachusetts case of wealth, 70 Penn. St. 1.38 ; Philadelphia Commonwealth u. Crowninshield, 2 v. Scott, 81 Penn. St. 80 ; Simpson t. Dane, Abr. 691. Neill, 89 Penn. St. 183 ; CommOn- 1 State V. Brown, 27 N. J. L. 13. wealth i: Fisher, 1 Penn. 462 ; Kling- ^ See Angell on Tide Waters (2d ensmith v. Ground, 5 Watts, 458 ; ed.) 237. Lehigh Valley Railroad Co. v. Trone, 'Providence Steam Engine Co. u. 28 Penn. St. 206; Commonwealth u. Providence Steamboat Co., 12 R. I. Church, 1 Penn. St. 105 ; Chess u. 348, 363 ; Thornton v. Grant, 10 E. I. Mantown, 3 Watts, 219 ; Cooper v. ill ; Clark v. Peckham, 10 R. I. 35, Smith, 9 Serg. & R. 26-; Preytag v. 38. Powell, 1 Whart. 536 ; Jones v. Jan- * Ante, § 65. ney, 8 W. & S. 4.36 ; Frankford v. ^5 61 Penn. St. 21, 30. See, also, Lennig, 7 Phila. 403; Philadelphia Hart V. Hill, 1 Whart. 124, 131, 137; Railroad Co. v. Morris, Id. 286. Commonwealth v. Shaw, 14 Serg. & 314 THE LAW OF WATERS. [PAKT I. grant from the State, extends to low-water mark, not abso- lutely indeed in tidal streams, but subject to the public right of passage when the tide is high.^ He has no right to make any erection between high and low-water mark without express authority from the State ; nor, of course, beyond low-water mark, into the bed and channel. The State can grant authority to make such erection, either to the riparian owner or to others, so long as the riparian owner is not thereby deprived of access to and use of the river as a public highway, which is implied, if not expressed, in the grant to him of land bounded on the stream. Under this first aiid necessary restriction, the right of the Common- wealth to make any erections in the river for the improve- ment of its use as a public highway, or to promote in any way the busuiess and prosperity of the people, is undoubted and unlimited. Those who have shore or fishery rights took originally and still hold subject to this necessary transcen- dental power. Nor does the constitutional provision, that compensation shall be made to the owner of property taken for public use, apply to cases of mere consequential damages.^ As the State,' therefore, might itself have erected or caused to be erected the wharf and pier built by the defendants below, without any responsibility to the plaintiff f r any consequential damages to his easement, or right of drawing his seine on the shore, so neither is the grantee or licensee of the State liable for such damage. As to him it is damnum absque injuria. His right of fishing, just as the right (t'the riparian owner himself to fish on his own land, was subject to the higher right of the Commonwealth for the public good, and if impaired or destroyed by the power i i the sovereign, whether under general or special laws, he has no ground of action. It was an original implied condition of his grant if he or those under whom he claims ever had one, and his title by long use can rise no higher than its presumed source." 1 Citing Ball u. Slack, 2 Whart. Coons, 6 Watts & S. 101 ; Susque- 508. . hanna Canal Co. „. Wright, 9 Watts 2 Monongahela Navigation Co. u. & S. 9. CHAP, v.] EIPAEIAN EIGHTS AND BOUND AEIBS. 315 § 174. In California the riglit to wharf out without license would appear to be conceded, though not directly decided.^ Where, however, no question of riparian rights intervenes, the State may maintain ejectment for a wharf constructed without authority of law in navigable tide waters below low-water mark.^ Land lying below high-water mark and within the ebb and flow of the tide cannot be purchased as swamp and overflowed land; and no right to obstruct navigation passes to the purchaser under the laws for the sale of such land.^ So lands within the flow of ordinary tides, the cost of reclaiming which would greatly exceed their value when reclaimed for any agricultural pui'pose, are not acquir- able under a statute authorizing the sale of reclaimable lands.'' § 176. In New York the general right to build, without authority from the legislature, wharves in tide waters, upon the soil owned by the State, appears not to have been affirmed judiciallj^, and the tendency of the decisions is to limit the rights of littoral proprietors strictly. In this State the owner of land adjoining a navigable river has no right of property in the shore between high and low-water mark, and is not entitled to compensation when a railroad is con- structed along the water front of his premises.^ The courts ^ Coburn v. Ames, 52 Cal. 385 ; street and sewer, and providing that People i:. Davidson, 30 Cal. 379; Dana the deed of the mayor should vest V. Jackson Street Wharf Co., 31 Cal. the title in the purchasers, was held 118 ; People v. Broadway Wharf Co., not to operate as a grant to the city Id. 33 ; San Francisco v. Calderwood, and county. Id. 585 ; Kondell v. Fay, 32 Cal. 354 ; * People v. Cowell, 00 Cal. 400. Gunter v. Geary, 1 Cal. 402 ; Guy v. Hermance, 5 Cal. 73 ; Teschemacher ^ Gould v. Hudson River Railroad V. Thompson, 18 Cal. 11. Co., 6 N. Y. 522 ; 12 Barb. 616 ; Lan- 2 Ibid. sing V. Smith, 8 Cowen, 140 ; 4 Wend. 3 People V. Morrill, 20 Cal. 336 ; 9 ; People v. Tibbetts, 19 N. Y. 523, Taylor v. Underbill, 40 Cal. 471. In 528 ; Brooklyn Park Commissioners San Francisco v. Ellis, 54 Cal. 72, v. Armstrong, 45 N. Y. 234, 245; a State statute authorizing the board Wetmore v. Brooklyn Gaslight Co., of supervisors of the city and county 42 N. Y. 384 ; People c. Now York of San Francisco to sell at public Ferry Co., 68 N. Y. 71, 78; 7 Hmi, auction certain tide lands, the prop- 105 ; People «. Vanderbilt, 20 N. Y. erty of the State, except so much 287 ; Fort Plain Bridge Co. v. Smit'.i, thereof as might be required for a SON. Y. 41; People w. Canal Apprais- 316 THE LAW OF WATERS. [PAET I. of New York have no jurisdiction to restrain the erection of structures extending from the New Jersey shore into the Hudson River or the bay of New York, even though they constitute a common nuisance.-' But the city and county of New York include the whole of the river and harbor adjacent to the city to actual low-water mark on the opposite shores, whether such water mark is formed by natural or artificial means.^ The wharves and docks erected in Brooklyn, and extending beyond the natural low- water mark, are within the jurisdiction of that city ; ^ but the vessels which lie beyond, though fastened to such wharves or docks, are within the jurisdiction of New York.* By acts of the legislature passed in 1848 and 1850, tlae owners of real estate fronting on the water in the city of Brooklyn were given the right to erect bulkheads and wharves in front of their respective lands iis far as the permanent water line established by statute in 1836.^ The corporation of New York, under its ancient charters, which are confirmed by the Constitution of the State, owns in fee the land under the waters of the East and North rivers to the distance of four hundred feet beyond the Hne of low-water mark, as it existed at the date of the charters.^ It may construct piers and wharves at the public ers, 33 N. Y. 461, 467; People i: New Stryker o-. New York, 19 Johns. 179; York, 8 Abb. Pr. 7,12; Manhattan Gas- In re Furman Street, 17 Wend. 649; light Co. V. Barker, 36 How. Pr. 233 ; Orr v. Brooklyn, 36 N. Y. 661 ; Atlan- 7 Rob. 523 ; Hudson River Railroad tic Dock Co. v. Brooklyn, 3 Keyes, Co. u. Loeb, 7 Rob. 418 ; Whetmorc i\ 444 ; 1 Abb. Bee. 24 ; Livingston v. Atlantic White Lead Co., 37 Barb. 70, Ogden, 4 Johns. Ch. 48 ; Ex parte 96; Getty D. Hudson River Railroad Vanderbilt, Ibid. 57; Luke i. Brook- Co., 21 Barb. 617. In Delaware Canal lyn, 43 Barb. 54 ; New York v. Hart, Co. V. Lawrence, 2 Hun, 163 ; 53 N. 16 Hun, 380 ; Purman v. New York, Y. 612, the defendant had title, under 5 Sand. 16 ; People v. Colgate, 9 Hun, patents from the State, to the soil 708 ; 67 N. Y. 512. under water on which the wharf was ^ Ibid, erected, and it was held that the only •" Ibid. question was whether the wharf was a ^ Wetmore ;;. Atlantic White Lead public nuisance because of interfer- Co., 37 Barb. 70; People v. Kelscy, ence with the navigation. 38 Barb. 269 ; 14 Abb. Pr. 372 ; Yv'ot- ' People V. Central Railroad Co., more v. Brooklyn Gaslight Co.. 42 42 N. Y. 283 ; 48 Barb. 478 ; State r, N. Y. 384. Babcock, 30 N. J. L. 29. See The Argo, '' See cases in next note ; also, 7 Ben. 304. Towle v. Palmer, 1 Rob. 437 ; 1 Abb. 2 Udall V. Brooklyn, 19 Johns. 175; Pr. N. s. 81 ; Towle r. Smith, 2 Rob. CHAP, v.] eipaeiAjst eights and boundaries. 317 expense, and take the profits, when it owns the adjoining lots.^ It may lease the public wharves so erected.^ Since the charter of 1730, at least, the city has the right to convey this land, even below low-water marlc, with the privilege of building wharves thereon, and receiving wharfage therefroni,^ subject to the power of the city to impose in the grant or by ordinance such conditions with respect to streets and wharves as are consistent with the la^vs of the State,* and subject, also, to the control of the State in the establishment 489 ; Towle v. Rerasen, 70 N. Y. 303 ; Schermerhorn v. New York, 3 Edw. Ch. 119 ; Verplanck v. New York, 2 Edw. Ch. 220 ; New York v. Scott, 1 Caines, 543; Dickinson v. Codwise, 1 Sand. Ch. 214; Roosevelt v. Frost, I Edw. Ch. 579 ; Furman v. New York, 10 N. Y. 567; 5 Sand. 16; Nott u. Thayer, 2 Bosw. 10 ; Hecker o. New York Balance Dock Co., 24 Barb. 215, 217 ; Vanderbilt v. New York, 2 Sand. 258. 'Ibid.; Marshall ,.-. Ouion, 11 N. Y. 461 (overruling s. c. 4 Denio, 581, and Marshall v. Vultee, 1 E. D. Smith, 294) ; Thompson v. New York, II N. Y. 115 ; 3 Sand. 487 ; Furman v. New York, 10 N. Y. 567 ; Beach v. New York, 45 How. Pr. 357 ; New York V. Whitney, 7 Barb. 485 ; New York V. Scott, 1 Caines, 543 ; Murray V. Sharp, 1 Bosw. 539 ; Mayor v. Whit- ney, 7 Barb. 485 ; Mayor v. Rice, 4 E. D. Smith, 604, Under the charter of 1708, the city of New York acquired tlie vested right to maintain ferries and to take tolls therefrom forever between the city and Long Island. Benson v. New York, 10 Barb. 223; People ... New York, 32 Barb. 102 ; Darlington i;. New York, 31 N. Y. 202. ^ Commissioners v. Clark, 33 N. Y. 251; Swords v. Edgar, r,0 N. Y. 28; Clancy v. Byre, 50 N. Y. 129 ; Radway v. Briggs, 37 N. Y. 250 ; Hartford Steam- boat Co. c.. New York, 78 N. 'Y. 1 ; Mow York V. Price, 5 Sand, 542 ; Taylor <: Atlantic Ins. Co., 37 N. Y. 275 ; 9 Bosw. 369 ; 2 Bosw. 106 ; New York i'. Hill, 13 How. Pr. 280 ; Taylor v. Beebe, 3 Rob. 262 ; Farmers' Loan Co. u. New York, 4 Bosw. 80. As to the powers of the commissioners of pilots, of the de- partment of public docks and the har- bormasters of New York, and formerly of the dock-master, see Commis- sioners V. Vanderbilt, 31 N. Y. 2G5 ; 2 Rob. 367 ; Commissioners v. Clark, 33 N. Y. 251 ; Commissioners v. Eric Railway Co., 41 N. Y. 619 ; 5 Rob, 306 ; New York ,: Tucker, 1 Daly, 107; Adams v. Farmer, 1 E. D. Smith, 588 ; New York v. Rice, 4 E. D. Smith, 604 ; New York <.. Ryan, 2 E. D. Smith, 368; Hoeft v. Seaman, 46 How. Pr. 24 ; 6 J. & Sp. 62 ; Moore v. Commis- sioners, 32 How. Pr. 184 ; People v. Mallory, 2 Sup. Ct. 76 ; 4 Id. 567 ; 46 How. Pr. 281; 2 Hun, 381; Commis- sioners V. Frost, 4 Daly, 353 ; People V. Deming, 1 Hilt. 271 ; 13 How. Pr. 441 ; Langdon v. New York, 6 Abb. N. C. 314 ; Hecker v. New York Bal- ance Dock Co., 24 Barb. 215; 13 How. Pr. 549. " Van Zandt n. New York, 8 Bosw. 375; Commissioners u. Clark, 33 N. Y. 251 ; New York o. Hill, 13 How. Pr. 280; Coddington v. White, 2 Duer, 390 ; Murray i'. Xew York, 1 Bosw. 539 ; Stevens 5 Rob. 285; Borell Sand. 560. * Ross r New York, 3 Wend. 333 Duryea i. New York Sup. Ct. 512 ; Vandowater York, 2 Sand. 258. Rhinelander, New York, 2 Hun, 293 ; 4 Now 318 THE LAW OF WATERS. [PAET I. of harbor lines.^ In People v. Vanderbilt, it was held that a pier or crib erected beyond the water line established by law, under a permission from the authorities of the city, is abateable as a purpresture, even though it produces no injury to public rights.^ § 176. In Maryland, the right of extending improvementa in the harbor of Baltimore was secured to the owners of the la,nds adjacent by the colonial act of 1745 and hy a statute passed in 1784. The act of 1745 did not preclude the State from granting to a person other than the liparian owner the unoccujiied soil of a navigable stream over which such proprietor might otherwise have been entitled, under this act, to make improvements.^ Without such authority a stranger could not improve in front of land belonging to another without the latter's consent.'' In 1862 the legis- lature enacted that the proprietor of land bounding on any navigable waters in the State should be entitled to the exclusive right of making improvements in the water in front of his lands. Under this statute no patent can be ■■ People V. Vanderbilt, 26 N. Y. Hammond v. Ingloes, 4 Md. 138 ; Day 287 ; 28 N. Y. .390 ; 38. Barb. 282 ; 25 v. Day, 22 Md. 530; Patterson v. Gels- How. Pr. 140 ; People u. New York ton, 23 Md. 432 ; The Wharf Case, 3 Ferry Co., 68 N. Y. 71 ; 7 Hun, 105 ; Bland, 361 ; Baltimore r. McKim, Ibid. Hart V. Albany, 3 Paige, 559 ; People 453 ; Browne r. Kennedy, 5 H. &. .J. V. Cunningham, 1 Denio, 524; Wet- 195; George's Creek Coal Co. t. Det- more v. Brooklyn Gaslight Co., 42 mold, 1 Md. 225 ; Young v. Frost, Id. X. Y. 384 ; Walsh c. New York Dry 377 ; Spindler v. Atkinson, 3 Md. 422 ; Dock Co., 77 N. Y. 448. Hoye v. Swan, 5 Md. 248 ; Armstrong " Ibid. Land imder the waters of v. Histeau, 5 Md. 250, 270 ; Mitchell c. the Hudson River, either within or Mitchell, Md. 234 ; Paije c. Balti- without the water-front, may be con- more, 34 Md. 558 ; Williams r. Baker, demncd for the uses of a railroad ter- 41 Md. 523 ; Hazchurst ;■. Balti- minus. In re New York Central Pail- more, 37 Md. 199, 214; Baltimore v. road Co., 77 N. Y. 248. St. Agnes Hospital, 48 Md. 419; How- 3 Casey v. Ingloes, 1 Gill, 430; Wil- ard ;. Moale, 2 H. & J. 249; Cockey son y. Ingloes, 11 Gill &.L 351; C Gill, ;;. Smith, 3 H. & J. 20; Delaware 121, 1.52 ; Baltimore Railroad Co. v. Railroad Co. v. Stump, 8 G. & J. 479; Chase, 43 Md. 23, 30. See, generally, Peterkin !.'. Ingloes, 4 Md. 175; Day Giraud v. Hughes, 1 Gill & J. 249 ; v. Day, Id. 202 ; Raab v. State, 7 Md. Smith ,,. Yates, 2 II. & McHen. 244 ; 483. Dugan V. Baltimore, 5 Gill & .1. 357 ; * Ibid. ; Baltimore v. St. Agnes Harrison v. Sterrett, 4 H. & McHen. Hospital, 43 JId. 419. 540 ; Baltimore v. White, 2 Gill, 444 ; CHAP. V.j EIPAKIAN EIGHTS AMD BOUNDARIES. 319 issued for land covered by navigable waters in front of the property of a riparian proprietor, so as to interfere with its prospective enjoyment by him.^ § 177. In Florida the title of the State to the shores of tide waters is divested by statute in favor of the littoral owners, who have the right to extend wharves to the chan- nel, leaving space for the requirements of commerce.^ Sim- ilar rights are secured to the littoral proprietors by the statutes of Oregon, under which the right to build out a wharf is held to be severable from the ownership of the adjoining land-^ Where the grantor of land bounded by tide water reserved all privileges around the land, he was held to retain the right of wharfing.* § 178. In Virginia it was early provided by statute^ that the limits or bounds of lands lying on the Atlantic Ocean, the Chesapeake Bay, and the rivers and creeks thereof within the State, should extend over the shore, and that the owners of such lands should .possess exclusive rights and privileges to and along the shore to ordinary low-water mark.^ By a later statute, any person owning land upon a ' Chapman -u. Hoskins, 2 Md. Cli. "appurtenance." Eivas d. Solary, 18 485 ; Day v. Day, 22 Md. 530 ; Pat- Fla. 122. terson v. Gelston, 23 Md. 4.32 ; Good- " Parker v. Taylor, 7 Oregon, 435, sell V. Lawson, 42 Md. 348 ; Garitee v. 445. Baltimore, 53 Md. 422; ante, § 175. A * Parker v. Sogers, 8 Oregon, land-office patent conveys no title to 183. tide lands. ChaJ)man ... Hoskins, 2 ^ i Rev. Code of 1819, c. 87, p. 341 ; Md. CIi. 485. • French o. Bankhead, 1 1 Gratt. 130, - Geiger v. Filor, 8 Pla. 325, 339 ; 159. In 1705, when Norfolk was made Aldon V. Pinnoy, 12 Fla. 348. Where a town, it was enacted that those who the title to submerged land from low- huilt out into the water before tlieir water mark to the channel of a river own lots in the town, for the better was given to riparian owners by conveniency of landing and shipping statute, to benefit commerce, a con- off goods, should have the whole veyanco by such an owner by metes benefit of such buildings, and the land and bounds, without reference to the so built upon should be reckoned as river as a boundary, the owner retain- part of their lots. 3 Hen. Stat, at L. ing structures on the submerged land p. 412, c. 42 ; Hardy v. McCuUough, and the grantee understanding that 23 Gratt. 251, 262. he got no title thereto, conveys no " See Garrison v. Hall, 75 Va. title to such submerged land as ' an 150. 320 THE LAW OF WATERS. [PABT I. watercourse may erect a wharf, pier, or bulkhead in such watercourse, if the navigation is not obstructed thereby and the private rights of other persons are not injured.^ Subject to these conditions, a wliarf may, in this State, be extended beyond low-water mark.^ § 179. Riparian owners upon navigable fresh rivers and lakes may construct, in the shoal water in front of their land, wharves, piers, landings, and booms in aid of and not ob- structing the navigation.^ This is a riparian right, being de- pendent upon title to the bank and not upon title to the river bed.* Its exercise may be regulated or prohibited by the State ; but so long as it is not prohibited, it is a private right derived from a passive or implied license by the public.^ As it does not depend upon title to the soil under water, it is equally valid in those States in which the river beds are held to be public property and in those in which they are held to belong to the riparian proprietors usque ad filum aquae? This right is a mere franchise, in those locaUties 1 Code 1873, Sec. 59, c. 52 ; Nor- land Railroad Co., 45 Vt. 215 ; Sloan folk City 0. Cooke, 27 Gratt. 430; v. Biemiller, 34 Ohio St. 492, 513; Alexandria Railway Co. v. Faunce, 31 Blanchard v. Porter, 11 Ohio, 138 ; Gratt. 7G1, 764; United States u. Rippe v. Chicago Railroad Co., 23 Bain, ." Hughes, 693. Minn. 18 ; Brisbine v. St. Paul Eail- 2 Norfolk City r. Cooke, 27 Gratt. road Co., Ibid. 114; Morrill u. St. 430,438. Anthony Falls Co., 26 Minn. 222; 3 Button ,. Strong, 1 Black, 1,23; Ensminger v. People, 47 111. 384; Railroad Co. c. Schurmeir, 7 Wall, Chicago v. Xaflin, 49 111. 172 ; Meyers 272 ; 10 Minn. 82 ; Yates u. Milwau- v. St. Louis, 8 Mo. App. 266 ; Bain- kee, 10 Wall. 497; Atlee v. Packet bridge i;. Sherlock, 29 Ind. 364 ; Sher- Co., 21 Wall. 389; 2 Dillon, 479; lock r. Bainbridge, 41 Ind. 35 ; Laugh- Leigh V. Holt, 5 Biss. 338 ; Wisconsin lin v. Lamasco City, 6 lud. 223 ; Thur- River Improvement Co. v. Lyons, 30 man v. Morrison, 14 B. Mon. 367 ; Wis. 61 ; Delaphine v. Chicago Rail- Morrison u. Thurman, 17 Ibid. 257 ; way Co., 42 Wis. 214 ; Boorman c. Nm-folk city v. Cooke, 27 Gratt. 430, Sunnachs, Ibid. 233; Diedrich i-. 434; Alexandria Railway Co. .. Northwestern Railway Co., Ibid. 248; Faunce, 31 Gratt. 761, 704. Stevens Point Boom Co. v. Rcilly, 40 * Ibid. ; Cohn <-. Wausau Boom Wis. 237; 44 Wis. 295; Cohn d. Wau- Co., 47 Wis, 314, 322; Diedrich v. sau Boom Co., 47 Wis. 314, 322; Northwestern Railway Co., 42 Wis. Walker v. Shepardson, 4 Wis. 486; 248; Stevens Point Boom Co. D.Eeilly, Grant u. Davenport, 18 Iowa, 179; 44 Wis. 295, 304; 46 Wis. 237. Haight V. Keokuk, 4 Iowa, 199 ; Mus- ^ Ibid, scr V. Hershey, 42 Iowa, 356 ; Ryan v. " Ibid. Brown, 18 Mich. 106 ; Austin r. Rut- CHAP. V.J EIPAllIAN RIGHTS AND BOTJNDAKIES. 321 where navigable fresh waters are public property ; and if land is made by a stranger by filling in earth in front of land bound- ing upon such waters, the riparian owner, while entitled to damages for any interference with his access to the water, cannot maintain ejectment for the land so made.-' But the riparian owner may, as against the public, reclaim the marshy land lying in front of his estate, if he does not obstruct the navigation, and conforms to the regulations of the State.^ He may, also, under the same restrictions, intrude upon the water as far as low-water mark, and erect embankments there for the purpose of protecting his land, when by natural causes the water is wearing away the banks.^ But if, with- out authority, he erects structures below low-water in navi- gable waters which belong to the State, he loses all title to the property so placed.* § 180. The exercise of this right to build out into naviga- ble waters, wharves, piers, and docks, tends to aid navigation and commerce. The legislature may authorize the extension of such structures beyond low-water mark;*^ but if not sanctioned by the legislature, they are illegal so far as they interfere with or limit the right of navigation.^ The public- right of fishery, however, is subordinate to the right of navigation, and wharves and buildings upon flats which are- consistent Avith the latter right will not be declared unlaw- ful for want of legislative sanction because they exclude the- public from taking shell-fish or floating fish in the space- covered by the structure. '^ § 181. In determining the distance from the bank to- which a wharf or other similar structure may thus be ex- 1 Austin V. Rutland llailroad Co., way Co., 42 Wis. 248 ; Larson v. Fur- 45 Vt. 215; StocMiam i. Browning, long, 50 "Wis. 681, 691. 18 K. J. Ec[. 390; Coburn v. Ames, ^Ibid.; Gray u. Bartlett, 20 Pick. 52 Cal. 385. But see Nichols v. Lewis, 186. 15 Conn. 137, 143. ^ j^„te, § 140. 2 Eailroad Co. v. Schurmeir, 7 Wall. " Ante, § 134. 272; 10 Minn. 82; Grant v. Daven- ' Moultonu.Libbey, 37 Maine, 472; port, 18 Iowa, 170; Musser u. Her- Clement k. Burns, 43 H':H. 609 ; ante,.' Bhey, 42 Iowa, 356 ; anie, § 161. §§87,109. ' Diedrich i . iN'orthwestcrn Kail- 822 THE LAW or WATKES. [PART I. tended, the rule, as generally stated, is that these structures must not pass the point of navigability.^ This rule is some- wliat indefinite, and, as wharves, piers, booms, and the like, are valuable aids to navigation and commerce, the limits would be so narrow as to m&e these structures practically useless, if the point of navigability is fixed at the line beyond which a boat, raft, or log could not float. In the case of encroachments upon tide waters, the question of nuisance or not nuisance is one of fact.^ With respect to encroach- ments, the correct rule seems to be indicated in the following remarks of Ryan, C. J. : ^ "A pier upon Lake Michigan, to aid navigation, must go into water deep enough to be accessible to vessels navigating the lake. A boom on a logging stream, to aid such navigation, must go into water deep enough to be accessible to floating logs ; must be so constructed as to receive and discharge floating logs. In either case, to reach navigable water reasonably implies reaching it with effect to accomplish the purpose ; the word often signifying some penetration of the thing reached. One is not understood to stop outside the limits of a place when he is said to reach it. He is understood to enter it, as far as may be necessary for his purpose. The right in question necessarily implies some intrusion into navigable water, at peril of obstructing navigation. This intrusion is expressly permitted to aid navigation, and expressly prohibited to obstruct navigation. It is impossible to give a general rule limiting its extent. Tliat will always depend upon the conditions under which the right is exercised ; the extent and uses of the navigable water ; the nature and object of the structure itself. A .structure in aid of navigation, which would be a reasonable intrusion into the waters of Lake Michigan, would probably 1 Button V. Strong, 1 Black, 1, 23 ; s Stevens Point Boom Co. v. Reilly, Atlee V. Packet Co., 2 Dillon, 479, 46 AVis. 237, 244 ; 44 Wis. 295; Atlee 485 ; 21 Wall. 389 ; Diedrieh v. North- ,.. Packet Co., 21 Wall. 389, 393 ; Cohn western Railway Co., 42 Wis. 248; v. Wausau Boom Co., 47 Wis. 314, Rippe V. Chicago Railroad Co., 23 322. See, also, Buszard v. Capel, 4 Minn. 18; Brisbine J). St. Paul Railroad Bing. 137, 140 ; 12 Moore, 339; The . Co., Ibid. 114, 130. Wharf Case, 3 Bland. Ch. 361, 3G9. 2 Ante, § 93. CHAP, v.] KIPAEIAIT EIGHTS AND BOUNDARIBS. 323 be an obstruction of navigation in any navigable river within the State. A logging boom which would be a reasonable intrusion into the waters of the Mississippi, would probably be an obstruction of navigation in most or all the logging streams within the State. The width of a river may justify a liberal exercise of the right of intrusion, or may exclude it altogether, its extent is purely a relative question." It was accordingly held in this case that the erection of booms extending through shoal water only so far as was necessary to reach the navigable part of the river was not within the prohibition of a statute forbidding the obstruction of navi- gable rivers without authority from the legislature. § 182. Riparian proprietors upon fresh-water streams have the exclusive right of fishing in the water opposite their lands, and this right extends to navigable fresh rivers as well as those which are unnavigable, where the soil of the former is held to be private property.^ Riparian proprietors upon all such streams, whose title extends ad filum aquae, can maintain an action of trespass against those who draw a seine between the centre of the stream and the bank of his land.^ This exclusive right exists, also, in the case of private lakes and ponds.^ In those States in which the soil of navigable fresh streams or lakes is held to be public property, the right of fishing in them is a common right, as in the case of tide waters.* 1 Hale, De Jure Maris, c. 1, 5 ; liar- Conn. 481 ; Smith u. Miller, 5 Mason, graTe'sLawTracts,2,56; 3 Kent Com. 191; Cobb o. Davenport, 32 N. J. L. 409, 417; Royal Fishery of the Banne, 309; Browne c. Kennedy, 5 H. & J. Davies, 149 ; Freary c. Cooke, 14 195 ; Beckman v. Kraemer, 43 111. Mass. 488 ; Commonwealth v. Chapin, 447 ; Lewis c. Keelinfj, 1 Jones (N. 5 Piek. 199^ Vinton !■. Welsh, 9 Piek. C.) 299; Ingram v. Threadgill, 3 Dcv. 87; Waters v. Lillcy, 4 Pick. 145; 59. Commonwealth c. Alger, 7 Cush. 53, - Adams v. Pease, 2 Conn. 483 ; 97; MeFarlin o. Essex Co., 10 Cush. ante, § 100. 304 ; Commissioners v. Holyoko Water ^ Ibid. ; Woplrych on Waters, 9G ; Power Co., 104 Mass. 440 ; Common- Cobb v. Davenport, 32 N. J. L. 309 ; wealth V. Vincent, 108 Mass. 441 ; 33 N. J. L. 223 ; ante, §§ 79-85. People V. Piatt, 17 Johns. 195 ; Hooker ^ Carson r. Blazer, 2 Binncy, 475 ; r. Cummings, 20 Johns. 90; Trustees Shrunk v. Schuylldll Navigation Co., V. Strong, 00 N. Y. 50 ; Gould v. James, 14 S. & E. 71 ; Hart c . Hill, 1 Whart. 5 Cowen, 369; Adams v. Pease, 2 124; Tinioum Fishing Co. r. Carter, 3.24 THE LAW OF WATERS. [PAKT I. § 183. The authorities refer to four kinds of fishery: First, a several fishery, where he who hath the exclusive right of fishery is presumably the owner of the soil ;^ second, a free fishery, Avhich is an exclusive franchise existing by grant or prescription in public navigable waters in the hands of a subject who hath a property in the fish, and may bring a possessory action for them without making any title to the soil ; ^ third, a common of fishery, which resembles the case of other common, and is a right or liberty of taking fish in com- mon with certain others in waters flowing through another man's land ; ^ fourth, a common fishery, which may be for all mankind, as in the sea, and not merely in common with certain other persons in a particular' stream.* Much con- fusion exists, however, respecting the distinctions between Gl Penn. St. 21; West Eoxbury v. Stoddard, 7 Allen, 158; State v Franklin Falls Co., 49 N. H. 240 Sloan V. Biemiller, 34 Ohio St. 492 Gates V. Wadlington, 1 MeCord, 580 Collins V. Benbury, 5 Ired. 118 ; 3 Id, 277; Wilson c. Forbes, 2 Dcv. 30 Ingram v. Treadgill, 3 J)ev. 59 ; State V. Glen, 7 Jones, 321 ; Boatwriglit v. Bookman, Eice (N. C.) 447. 1 PoUexfen v. Crispin, 1 Vent. 122 ; Smith V. Kemp, 2 Salk. 637; Holt, 322; Somerset v. Fogwell, 5 B. & C. 875; Co. Litt. 122 a; Marshall y. Ulleswater Steam Navigation Co., 3 B. & S. 732, 744, 747; Anon., Loft. 3G4 ; Partheriche v. Mason, 2 Chitty, G58 ; Holford v. Bailey, 13 Q. B. 425, 444; 8 Q. B. 1000; Eex n. Old Aries- ford, 1 T. R. 358 ; Seymour v. Courte- nay, 5 Burr. 2814 ; Alderman v. Hast- ings, 2 Sid. 8 ; Carlisle v. Graham, L. E. 4 Ex. 361 ; Miller v. Little, L. E. 2 Ir. 304 ; Northumberland v. Houghton, L. E. 5 Ex. 127 ; Queen o. Steer, 3 Salk. 291; Malcomson v. O'Dea, 10 H. L. Cas. 618; Moulton v. Libbcy, 37 Maine, 489; Preble o. Brown, 47 Maine, 284; Caswell v. Johnson, 58 Maine, 164 ; Freary v. Cooke, 14 Mass. 488 ; Stoughton v. Baker, 4 Mass. 522 ; ]^elvin c. Whiting, 5 Pi-U. ,79; 10 Pick. 295 ; 13 Pick. 184 ; McFarlin c. Essex Co., 10 Cush. 304 ; Chalker v. Dickinson, 1 Conn. 510; Munson i,-. Baldwin, 7 Conn. 168; Trustees c. Strong, 60 N. Y. 56 ; Skinner v. Het- trick, 73 N. C. 53. A several fishery does not merge upon its being re- sumed by the crown. Northumber- land v. Houghton, L. E. 5 Ex. 127. User for forty-five years of certain engines for catching salmon, without evidence of previous user, does not raise a conclusive presumption of law that the engines had been used from time immemorial, and were not of recent origin. Holford v. George, L. E. 3 Q. B. 639. The presumption is against the existenc(j of a several fishery in tide waters, and the burden of proof is upon him who claims the exclusive right. Fitzwalter's Case, 1 Mod, 105 ; Crichton v. CoUery, Ir. E. 4 C. L. 508. 2 Smith r. Kemp, 2 Salk. 637 ; 2 Black. Com. 34; 3 Kent Com. 409; Upton V. Dawkin, 3 Mod. 97 ; Child v. Greenhill, Cro. Car. 553; Alderman v. Hasting, 2 Sid. 8 ; 1 Swift's Dig. 110. 3 Smith ;-. Kemp, 2 Salk. 637. 4Benctt r. Costar, 8 Taunt. 183; 2 Moore, 03 ; Lord Fitzwalter's Case, 1 Mod. 105. CHAP. V.J IIIPARIAjST KIGHTS AND BOUNDARIES. 325 these classes. By the apparent weight of authority a several fishery may exist independently of the ownership of the soil beneath the water,^ and it has been held^ that a free fishery is not an exclusive right, but the same as a common of fishery. " The more easy and intelligible arrangement of the subject," says Kent, " would seem to be, to divide the right of fishing into a right common to all, and a right vested exclusively in one or a few individuals." ^ § 184. A right of fishery in another's stream is not a mere easement, or right of user without derogation of the property, but is a profit a prendre, a taking or diminution pro tanto of the property itself. A custom thus to take anything from another's land is not a lawful custom, and, if available at all, 1 Marshall v. XJlleswater Steam Narigation Co., 3 B. & S. 732, 747; Reg. U.Ellis, 1 M. & S. 652; Holford v. Bailey, 8 Q. B. 1000; 13 Q. B. 427 ; Somerset v. Fogwell, 5 B. & C. 875 ; Co. Litt. 4 6, 122 a ; 1 Inst. 46, 56 ; 2 Black. Com. 39 ; Royal Fishery of the Banne, Davies, 149; Partheriche v. Mason, 2 Chitty, 658; Bridges r. High- ton, 11 L. T. N. s. 653 ; Cobb v. Davenport, 32 N. J. L. 369 ; 33 N. J. L. 223; Yard v. Carman, Penn. (N.J.) 936; Rogers v. Jones, 1 Wend. 237; Collins V. Eenbury, 3 Ired. 283; 5 Ired. 118; Skinner v. Hettrick, 73 N. C. 53 ; Hale, De Jure Maris, pp. 18, 19; Woolrych on Waters, 88, 91; Paterson's Fishery Laws, 65 ; Chitty on Fisheries, 295. The devise of a "fishing place " passes no interest in the soil, but merely an easement for the purpose of the fishery. Hart v. Hill, 1 Whart. 124 ; Lakeman v. But- ler, 17 Pick. 436. ^Melvin v. Whiting, 7 Pick. 79; 13 Pick. 184 ; 1 Inst. 122 ; Woolrych on Waters, 92 ; Schultes on Aquatic Rights, 67 ; Carter v. Murcot, 4 Burr. 2162 ; Seymour v. Courtenay, 5 Burr. 2816; Gibbs v. Woolicot, Holt, 323; 3 Salk. 290, 360 ; Kinnerslcy v. Orpe, Dougl. 56; Rex v. Ellis, 1 M. & S. 652; Johnson o. Bloomfleld, I. R. 8 C. L. 68. 8 3 Kent Com. 411. Woolrych (on Waters, 87), says: "A right of any kind means, in strict legal lan- guage, a profit or easement which is enjoyed in the soil of another; and thus, when we speak of a right of fishery, we mean tlie liberty of fishing in the water of another ; and it has been so defined. 4 Com. Dig. 365. When, therefore, we discover that the soil over which the stream runs, and the water itself, belong to the same person, we do not say correctly, that such an individual has a right of fishery, because the land and its profits are so completely identified as his in- heritance that they cannot be separ- ated. If any description be applied to it, it should be that of territorial fishery (Schultes, 87), because the party has the dominion over the ter- ritory or land itself. And hence it follows, that those who maintain tlie opinion that the owner of a several fishery must necessarily have the soil as incident to the enjoyment, will con- sider this territorial possession as the several fishery so frequently men- tioned in our books." 326 THE LAW OF WATERS. [PAET I. must be set up by prescription as belonging to some estate, and is to be pleaded with a que estate.^ " Where," says Huddleson, B.,^ "a river is Jiavigable and tidal, the public have a right to fish ; but where it is navigable and not tidal, not only have the public no right, but they can have no right to fish." The owner of a privilege of fishery is not disseised thereof by the annual temporary use of the privilege by another.^ § 185. A fishery may be leased,* and is so far real estate that it is subject to dower.^ Trespass lies for the disturbance of an exclusive right of fishing attached to the soil,** and apparently an action of ejectment may be mantained for a fisherj',' but it has been held that the action of forcible entry 1 Gatevvood's Case, 6 Co. 60 ; Grim- etead v. Marlow, 4 T. R. 718 ; Bland v. Lipscombe, 4 E. & B. 714, n. ; Lloyd V. Jones, 6 C. B. 81 ; Race v. Ward, Id. 702; 7 Id. 384; Hudson v. Me- Rae, 4 B. & S. 585 ; Ilargreaves u. Diddams, L. R. 10 Q. B. 582 ; Mills v. Colchester, L. E. 2 C. P. 470 ; Mussett V. Burch, 35 L. T. n. s. 480 ; Murphy V. Ryan, Ir. R. 2 C. L. 143 ; Wickham V. Walker, 7 M. & W. 63 ; Waters v. Lilley, 4 Pick. 145 ; McFarlin v. Essex Co., 10 Cush. 304 ; Codman v. Evans, 5 Allen, 308, 310; Cohb v. Daven- port, 32 N. J. L. 369 ; 33 N. J. L. 223 ; Tinicum Fishing Co. v. Carter, 61 Penn. St. 21. See Saltash v. Good- man, 42 L. T. N. s. 872; Johnson v. Barnes, 27 Id. 152 ; Warrick v. Queen's College, 25 Id. 254 ; Northumberland ,-. Houghton, 22 Id. 491 ; Chiltern v. London, 38 Id. 498 ; Abbott of Strada Marcella's Case, 9 Co. Rep. 24 a ; Bryant v. Foot, L. R. 2 Q. B. 161 ; Willingale ^. Maitland, L. R. 3 Eq. 103. '■* Pearce v. Scotcher, 46 L. J. n. s. 342; 9Q. B. D. 162. 2 Nickerson v. Brackett, 10 Mass. 217 ; McFarlin v. Essex Co., 10 Cush. 304. * Ilolford r. Pritchard, 3 Exch. 793 ; Re.x V. Old Alresford, 1 T. R. .358; Cooper V. Phibbs, L. R. 2 H. L. 149 ; State V. Sutton, 2 R. I, 4.S4; State c. Cozzens, 2 R. I. 561; New England Oyster Co. o. McGarvey, 12 R. I. 386 ; Watertown v. White, 13 Mass. 477 ; Eastham v. Anderson, 119 Mass. 526. In the last case it was held tliat a person who has taken a parol lease of a fishery from a town is liable for the stipulated rent, if he has enjoyed the premises, notwithstanding tlie statute of frauds. '' Russell V. Russell, 15 Gray, 159; Bacon's Abr. Dower; Park on Dower, 252. In Greyes' Case, Owen, 20, it was b.cld that fish in a pond pass to the heir and not to the executor. <= Child V. Greenhill, Cro. Car. 553 ; Smith V. Kemp, 2 Salk. 637 ; Holford V. Bailey, 13 Q. B. 426; Russell l. Stocking, 8 Conn. 236 ; Cobb v. Dav- enport, 32 N. J. L. 369, 384 ; 33 N. J. L. 223 ; Hart u. Hill, 1 Whart. 124 ; Collins r. Benbury, 5 Ired. 118; Adams V. Pease, 2 Conn. 483 ; Woolrych on Waters, 92. Overflowing or drawing out of a fishery is a trespass. Court- ney V. Collet, 1 Ld. Raym. 272. ' Molineaux u. Molineaux, Cro. Jac. 146 ; Rex o. Old Alresford, 1 T. R. 358, 361 ; Waddy v. Newton, 8 Mod. 276 ; Woolrych on Waters, 92. CHAP, v.] EIPARIAN EIGHTS AND BOTJNDAEIBS. 327 and detainer will not lie.^ An injunction may be granted, on the ground of irreparable injury, to restrain such pollution of fresh waters^ or such unlawful exclusion of tide waters^ as tends to destroy a private right of fishing. § 186. The privilege of fishing must be so used as not to injure others. As the right of navigation in public waters is of a higher character than a fishery, the latter cannot be exercised in derogation of commerce.* So the nets or traps which may be lawfully used in a private fishery must be such as will not injure the rights of other persons.^ " Upon most occasions," says Woolrych, "a man may use any nets, accord- ing to his pleasure in his several fishery which he appropriates exclusively to himself,^ but if he allow another to participate in his property, he cannot be justified in taking the fish with such engines as would leave none for his grantee ; because the principle is sic utere tuo ut alienum non laedas. Then, with respect to a common of fishery, the user of nets must be regulated according to the custom of the manor. In some manors, the net is employed at certain seasons for the pur- pose of taking fish ; and it would be clearly incompetent for some commoners to drag with instruments of a greater depth than customary, whilst their neighbors were content with the usual manner of obtaining the commonable profit. With respect to the quantity of fish which may be taken, it is clear, that in a several fishery, that is, where the proprietor has an exclusive right, the number must be unrestricted. So it is, where the same person is owner of the fishery and also of the soil, exclusively of any other. And so, again, the owner of a several or territorial fishery may take an unrestrained 1 Van Auken v. Decker, Pen. (N. * Ante, § 87 ; Anon. 1 Camp. 517, n. J.) 108, 110. "" Warren v. Mathews, 1 Salk. 357; ^ Aldred's Case, 9 Eep. 59 a; At- 6 Mod. 73; Commonwealth w. Ruggles, torney General v. Birmingham, 4 K. 10 Mass. 019 ; Commonwealth v. & J. 528 ; Oldaker v. Hunt, 31 Eng. L. Chapin, 5 Pick. 199 ; Boatwright v. & Eq. 503; Seaman v. Lee, 10 Hun, Bookman, Rice (S. C.) 447, 451; 607. Jackson v. Lewis, Chevea (S. C.) 259; 5 Bridges i', Higliton, 11 L. T. n. s. Pitkin v. Olmstcad, 1 Root, 217. C53; Stannard v. Hubbard, .04 Conn. ° Ibid. Sec State ;;. Skolfield, 63 370 ; Brittou o. Hill, 27 N. J. Eq. 389. Maine, 260. 328 THE LAW OF WATERS. [PAET I. profit, although another have a co-extensive right with him- self. But the lord of a manor, it should seem, may not use the water where his tenants have a common of piscary, to so large an extent as to deprive them of their privilege, because such an act would be in derogation of his own original grant. And as a general principle, the proprietor of a fishery can- not so use it as to injure a similar right belonging to another person." § 187. In Weld v. Hornby,^ it was held that the enlarging of an ancient weir, so as to stop the passage of fish up a river to the plaintiff's fishery, was an actionable injury. And in the Irish case of Hamilton v. Donegall,^ the proprietor of a several fishery in the upper part of a river was permitted to maintain an action against the owner of a fishery in the lower part of the same river for maintaining structures which prevented fish from coming to his fishery. In Lecon- field V. Lonsdale,^ it was held that the provisions of Magna Charta and other early English statutes, making weirs public nuisances, applied only to navigable rivers, but that the pre- venting of fish from arriving at a fishery on a stream not navigable was a grievance which gave a right of action, inde- pendent of any question of public nuisance. The mainte- nance of dams without fisli-ways in an unnavigable stream, which is the outlet of a public lake, whereby the passage of migratory fish from the sea to the late is prevented, is held, in New Hampshire, to be an indictable offence at common law,* and the right to maintain such structures cannot be acquired by prescription.^ In Massachusetts, the right to have migratory fish pass up the rivers and streams to their 1 7 East, 195 ; 3 Smith, 244 ; 2 EoU. penalty against those who ohstruct Abr. 142. the passage of fish, is merely cumu- " 3 Ridgeway, 267 ; Woolrych on lative, and does not prevent an action Waters, 189. on tho ease hy the owner of a fishery. 8 L. E. 5 C. P. 657 ; RoUe v. Whyte, Barden v. Crocker, 10 Pick. 383. L. R. 3 Q. B. 286 ; Callis on Sewers, « State v. Franklin Falls Co., 49 N. 258 ; Vin. Abr. Nuisance, 3 ; Hale, De H. 240. Jure Maris, c. 3, 5 ; 2 Inst. 38 ; Case = Ibid. ; CottriU p. Myrick, 12 of Chester Mill, 10 Co. Rep. 138. A Maine, 222. remedy by statute, which provides a CHAP. V.J RTPAEIAN KIGHTS AND BOUNDARIES. 329 headwaters is a public right, and the riparian proprietors liold tlieir right to fish subject to the control of the legisla- ture ; but the subject has been so long regulated by legisla- tion that the only remedy for obstructing the passage of fish is held to be that provided by statute. ^ The rule is the same in Maine ^ and New York.^ A statutory provision, that pas- sage-ways for fish shall be made in all dams upon a river, is not necessarily repealed ■ by a subsequent statute authorizing dams withoat qualification.* In Woolever v. Stewart,^ in Ohio, a statute requiring the owner of a dam constructed across an unnavigable stream, which had been maintained adversely for twentj^-one years, to construct and maintain at his own expense a chute or passage-way for fish over the same, was held to be unconstitutional, but the question was left open whether the act was valid where the adverse use is for a less period than twenty-one years. 1 Stoughton V. Baker, 4 Mass. 522 Randolph o. Braintree, 4 Mass. 315 Buruham u. Webster, 5 Mass. 266 Commonwealth v. McCurdy, 5 Mass. 324 ; Commonwealth v. Buggies, 10 Mass. 391 ; Waters v. Lilley, 4 Pick. 145; Watertown v. Draper, 4 Pick. 166; Commouwealth v. Chapin, 5 Pick. 199 ; Vinton v. Welsh, 9 Pick. 87; Nickerson v. Brackett, 10 Pick. 212; Barden v. Crocker, 10 Pick. 383; Atwood V. Caswell, 19 Pick. 493; Hyde V. Eussell, 2 Cush. 251 ; McFar- lin c. Essex Co., 10 Cush. 309, 310; Commonwealth v. Essex Co., 13 Gray, 239 ; Commissioners v. Holyoke Water Power Co., 104 Mass. 450 ; Common- wealth o. Vincent, 108 Mass. 446; Commonwealth v. Tiffany, 119 Mass. 300; Holyoke Water Power Co. <-. Lyman, 15 WaU. 500. ^ Cottrill V. Myrick, 12 Maine, 222 ; Puller i>. Spear, 14 Maine, 417 ; Lunt V. Hunter, 16 Maine, 9 ; Baker v. Wentworth, 17 Maine, 347; Peables V. Hannaford, 18 Maine, 106; Parker V. Cutler Milldam Co., 20 Maine, 353 ; Moulton V. Libbey, 37 Maine, 472; State V. Skolfield, 63 Maine, 266; Yarmouth v. Skillings, 45 Maine, 133 ; Penobscot Co. v. Treat, 16 Maine, 378 ; Hancock Co. v. Eastern Co., 16 Maine, 303; 20 Maine, 72. See Bristol v. Ousatonic Water Co., 42 Conn. 403. 3 Shaw V. Crawford, 10 Johns. 236 ; People V. Piatt, 17 Johns. 195 ; Hooker V. Cummings, 20 Johns. 90, 96 ; People V. Canal Appraisers, 33 N. Y. 461 ; People I'. Reed, il Barb. 235. See in other States, Hayden v. Noyes, 5 Conn. 397; Hart v. Hill, 1 AVhart. 132; Criswell ,;. Clugh, 3 Watts, .030; Shrunk v. Schuylkill Navigation Co., 14 S. & K. 71 ; Budd ;;. Sip, 13 N. J. L. 348; Eubank v. Pence, 5 Litt. (Ky.) 338. In New Jersey and Ver- mont, the legislature may provide for the protection of fish in unnavigable waters. Weller v. Snover, 42 N. J. L. 341 ; Haney v. Compton, 30 N. J. L. 507. 1 Vinton v. Welsh, 9 Pick. 87. 5 36 Ohio St. 146. 330 THE LAW OF WATEES. [PAKT I. § 188. By the common law, a town has no right of prop- erty in the fisheries witliin its limits ; ^ but the Crown or the State may grant to a town the right of fishery within its borders.^ By the local law of Massachusetts, a town may appropriate the fish in contiguous tide waters, if not appro- priated by the legislature,^ and, in both Massachusetts and Maine, towns have immemorially regulated the right of fish- ing, for the common benefit, even in unnavigable streams.* One who has purchased from a town a privilege of fishing may maintain an action at common law against those who obstruct the passage of the fish, although it is provided by a statute, which prohibits such obstruction, that a certain penalty may be recovered b}^ any one therefor in a qui tarn action.^ In Connecticut, towns may regulate the taking of shell-fish; but a town by-law, prohibiting all persons, except inhabitants of the town, from taking shell-fish in a navigable river in the town, is void, being against common right.^ In other States, it is held that, if the legislature has not regu- lated private rights of fishery, a riparian owner upon an un- navigable stream cannot, under the pretext of regulation, be 1 Randolph v. Braintree, 4 Mass. v. Bearce, 27 Maine, 117 ; 34 Maine, 315 ; Coolidge t\ Williams, 4 Mass. 575 ; Spear v. Robinson, 29 Maine, 140. 531. ^Brookhaven r. Strong, 60 N. Y. s Barden v. Crocker, 10 Pick. 383; 56 ; Robins v. Ackerly, 24 Hun, 449 ; Commonwealth v. Chapin, 5 Pick. 199. Paul I-. Hazleton, 37 N. J. L. lOG ; If two or more take fish unlawfully, A^'oolcy r. Campbell, Id. 103. judgment and satisfaction in debt qui 3 Commonwealth r. Chapin, 5 Pick, tarn against one Is a bar to a like 109; Dill V. Wareham, 7 Met. 438, action against the others. Boutelle 446. ,., Noursc, 4 Mass. 431. *Ibid.; Nickerson v. Br.ickctt, 10 " Hayden v. Noyes, 5 Conn. 391. Mass. 212; Briggs v. Murdock, 13 In Rowe v. Smith, 48 Ct. 444, 447, Pick. .305; Vinton v. Welsh, 9 Pick. Pardee, J., said: -'At the revolution 87; AVatcrs v. Lilly, 4 Pick. 145; the title to the shores of the sea passed Allen V. Marion, 11 Allen, 108 ; East- from the corporate freeman of the ham l: Anderson, 119 Mass. 520; colony to the people of the State, and Watertown i-. White, 13 Mass. 477; in them remains the proprietorship of Taunton c. Caswell, 4 Pick. 275 ; fisheries, shell and floating, in its nari- AVeston u. Sampson, 8 Cush. .347; gable waters. Towns have no owner- Proctor V. Wells, 103 Mass. 216; Rob- ship in or control over them. The inson v. Wareham, 2 Gray, 315 ; Cot- legislature alone can create an indi- trill , . Myrick, 12 M.aine, 222 ; Pcablcs vidual proprietorship in them." ( . Ilannaford, 18 Maine, 106 ; Fossett CHAP. T.J KIPAEIAN EIGHTS AND BOUNDARIES. 331 required without compensation to remove a dam which obstructs the passage of fish.^ § 189. The legislature of a State has power to regulate the time and manner of taking floating or shell-fish in the public navigable waters within its limits,^ or to exclude the citizens of other States from the enjoyment of this privilege,^ and may doubtless grant exclusive rights of fishing at par- ticular places in them.* In those waters, at least, which, Avhether fresh or salt, are not navigable from the sea for any useful purpose, there is no restriction upon the authority of a State to legulate the public rights of fishing, or to make any grants of exclusive rights which do not impair private' rights already vested.^ Laws for the regulation of fishing are public statutes, of which the courts take judicial notice.® 1 Woolever v. Stewart, 36 Ohio St. 146; State r. Glen, 7 Jones (N. C.) 321 ; Cornelius r. Glen, Id. 512 ; Bris- tol V. Water Co., 42 Conn. 403 ; Boat- wright c. Bookman, Rice (S. C.) 447. " Commonwealth ; . Vincent, 108 Mass. 447; Commonwealth r. Bailey, 13 Allen, 541 ; Burnham v. Webster, 5 Mass. 206 ; Nickorson v. Brackett, 10 Mass. 212; Boutelle o. Nourse, 4 Mass. 431; Moulton ,■. Libbey, 37 Maine, 472; Barker v. Cutler Mill- dam Co., 20 Maine, 3o3; Lowndes v. Dickenson, 34 Barb. 580 ; Tinicum Fishing Co. c. Carter, 01 Penn, St. 21 ; Kean v. Rice, 12 S. & R. 203 ; Bickel V. Polk, 5 Harr. (Del.) 325; Skinner );. Hettrick, 73 N. C. 53; Hettrick u. Page, 82 N. C. 65; Gentile ,-. State, 29 Ind. 409 ; State v. Boone, 30 Ind. 225; Stuttsman v. State, 57 Ind. 119; State V. Norton, 45 Vt. ,258 ; State v. Ilockett, Id. 302 ; Budd ... Sip, 16 N. J. L. 348 ; Shoemaker v. State, Spen- cer (N.J.) 153; Yard i/. Carman, Pen. (N. J.) 943; Howell o. Robb, 3 Hal. Ch, 17; Eastham v. Anderson, 119 Mass. 526. ''Ibid.; McCready v. Virginia, 94 U. S. 391 ; Smith r. Maryland, 18 How. 71; Corficld v. Coryell, 4 Wash. 371; Bennett ji. Boggs, Bald. 00 ; Martin v. Waddell, 10 Peters, 307, 410, 423; Dunham v. Lamphere, 3 Gray, 208 ; ante, § 38; ^oulton o. Libbey, 37 Maine, 472 ; Haiiey v. Compton, 30 N. J. L. 507. * Ibid. ; Commonwealth v. Vincent, 108 Mass. 447 ; Burnham «. Webster, 5 Mass. 260 ; Hallock v. Dominy, 7 Hun, 52 ; 69 N. Y. 238 ; Paul v. liazlc- ton, 37 N. J. L. 106, 107; Woolley v. Campbell, Id. 163 ; Gough c . Bell, 21 N. J. L. 157 ; Bell v. Gough, 22 N. J. L. 441 ; Stevens !>. Paterson Railroad Co., 34 N. J. L. 532 ; Power v. Taze- wells, 25 Gratt. 786 ; Gulf Pond Oyster Co. v. Baldwin, 42 Conn. 255; Gallup !'. Tracy, 25 Conn. 10. ^ Commonwealth v. Vincent, 108 Mass. 447 ; Commonwealth v. Wea- therhead, 110 Mass. 175; Nickerson r. Brackett, 10 Mass. 212 ; Cleaveland i-. Norton, 6 Cush. 380 ; Russell v. Rus- sell, 15 Gray, 159 ; Commonwealth v. Tiffany, 119 Mass. 300. " Burnham v. Webster, 5 Mass'. 266; Commonwealth k. McCurdy,'Id. 324. Such laws, though applicable only to the water and not to the land, are not repugnant to a constitutional provision . that no general law shall 332 THE LAW OF WATERS. [part I. A statute is constitutional which provides that waste mate- rials injurious to fish shall not be cast into streams,^ and the legislature may prohibit, with penalties, the taking of fish with nets or seines, or in the spawning season.^ An indi- vidual may plant oysters in navigable waters, and retain such exclusive property therein, if in a clearly defined bed, as to entitle him to maintain a bill for an injunction^ or an action of trespass for their asportation,* and an indictment lies against those who steal oysters so planted.^ Priv^ate persons may, it seems, acquire exclusive rights of fishery in navigable waters by prescription as well as by grant from the State,® embrace any provision of a private, special, or local character. Doughty <•. Conover, 42 N. J. L. 193. 1 Blydenburgh v. Miles, 39 Conn. 484, 497 ; Oberich i: Gilraan, 31 Wis. 495. 2 Commonwealth v. Look, 108 Mass. 452; Smith v. Look, 108 Mass. 139; Commonwealth v. Vincent, 108 Mass. 441 ; Watertown c. Di-aper, 4 Pick. 165; Hyde u. Russell, 2 Cush. 251; Atwood tj. Caswell, 19 Pick. 493; Cleaveland c;. Norton, Cush. 381 ; Locke u. Motley, 2 Gray, 265 ; Hans- comb V. Russell, 15 Gray, 162, 166; Hathaway v. Thomas, 16 Gray, 290. 3 Britton v. Hill, 27 N. J. Eq. 389. * Colchester r. Brooke, 7 Q. B. 339; Fleet V. Hegeman, 14 Wend. 42 ; Deck- er V. Fisher, 4 Barb. 592 ; Lowndes v. Dickerson, 34 Barb. 586; Brincker- hoff V. Starkins, 11 Barb. 248 ; Shep- ard V. Leverson, 1 Penn. (N. J.) 391; State u. Taylor, 27 N. J. L. 117 ; Haney v. Compton, 36 N. J. L. 507; Britton v. Hill, 27 N. J. Eq. 389; Arnold v. Muudy, 1 Hal. 1; Power 1-. Tazewells, 25 Gratt. 780; Phipps V. State, 22 Md. 380 ; McKen- zie V. Hulet, N. C. Term Rep. 181. See, as to the construction of statutes re- lating to oyster fisheries, Bigler v. Morgan, 77 N. Y. 312 ; State v. Mis- ter, 5Md. 11; Willing v. Bozman, 52 Md. 44; Gallup v. Tracy, 25 Conn. 10; Averill v. Hull, 37 Conn. 320. 5 State V. Taylor, 27 N. J. L. 117. 6 Oxford u. Richardson, 4 T. E. 437 ; Carter v. Murcot, 4 Burr. 2164; Ward V. Creswell, Willes, 265; Fitz- walter's Case, 1 Mod. 105 ; Anon., 6 Mod. 73 ; Warren v. Mathews, 1 Salk. 357; Scratton v. Brown, 4 B. & C. 485; Royal Fishery of the Banne, Daries, 149 ; Lowe v. Govett, 3 B. & Ad. 863 ; King v. Montague, 4 B. &C. 598 ; Somerset f. Fogwell, 5 B. & C. 884; Blundell v. Catterall, 5 B. & Aid. 268; Malcomson v. O'Dea, 10 H. L. Cas. 593; Carlisle v. Graham, L. E. 4 Ex. 361 ; Murphy v. Ryan, Ir. R. 2 C. L. 143 ; Rogers v. Allen, 1 Camp. 309 AUen V. Donnelly, 5 Ir. C. L. 132 O'Neill V. Allen, 9 Jr. C. L. 132 Whitstable Free Fishers v. Gann, 19 C. B. N. s. 803, 810; Devonshire v. Hodnett, 1 Hud. & Br. (Ir.) 322; Hayes v. Bridges, 1 Ridg. L. & S. 390 ; Brew V. Haren, Ir. R. 11 C. L. 199 ; Richardson u. Gray, 3 App. Cas. 1 ; Hale, De Jure Maris, c. 5, 6 ; Saltash V. Goodman, 5 C. P. D. 431; Nor- thiunberland v. Houghton, L. E. 5 Ex. 127. Contra in Pennsylvania, Tini- cum Fishing Co. v. Carter, 61 Penn. St. 21. See Rogers v. Jones, 1 Wend. 237 ; Jacobson v. Fountain, 2 Johns. 170; Gould V. James, 6 Cowen, 369 ; Palmer V. Hicks, 6 Johns. 138 ; Brookhaven r. Strong, 60 N. Y. 56 ; Bennett v. Boggs, Bald. 60; Lay v. King, 5 Day, 72; Peck V. Lockwood, 5 Day, 22 ; Chalk- CHAP, v.] EIPAEIAN KIGHTS AND BOUNDARIES. 333 although at common law a grant of such right from the Crown without the assent of Parliament is invalid, if made within the time of memory, or, indeed, according to numer- ous authorities, if made since Magna Charta.^ In Rogers v. AUen,^ which was an action of trespass for breaking and entering the plaintiff's several fishery in the river Burnham by dredging for oysters, the question was as to the extent of a prescriptive right of fishery as appurtenant to a manor, the evidence being that the public had been accustomed to fish in the river for floating fish only. The fishery was held to be divisible. Heath, J., saying: "Part of a fishery may be abandoned and another part of more value may be preserved. The public may be entitled to catch floating fish in the river Burnham, but it by no means follows that they are justified in dredging for oysters, which may still remain private property." § 190. In Fleet v. Hegeman,^ an action of trespass was brought for taking away a quantity of oysters which the plaintiff had gathered two years before, when they were small, and planted in tide water, about fifteen rods from the shore, in a space enclosed by stakes. In reversing a judg- ment for the defendant in the lower court, the Supreme er V. Dickinson, 1 Conn. 382 ; Church Hittinger c. Eames, 121 Mass. 530, V. Meeker, 34 Conn. 421 ; State v. 546 ; Paine v. "Woods, 108 Mass. 109 ; Sutton, 2 R. I. 4.34 ; State v. Medbury, Gough v. Bell, 21 N. J. L. 156 ; Dela- 3 R. I. 138 ; Yard v. Carman, 3 N. J. ware Canal Co. o. Raritan Railroad L, 936; Paul v. Hazleton, 37 N. J. L. Co., 16 N. J. Eq. 321, 366; Collins r. 106; Wooley 0. Camphell, 37 N. J. L. Benbury, 3 Ired. 277; 5 Ired. 118; 1C3 ; Browne v. Kennedy, 5 H. & J. State v. Glen, 7 Jones, 321 ; Jackson 203 ; Day t). Day, 4 Md. 262 ; Delaware v. Lewis, Cheres {S. C.) 259, 262; Railroad Co. v. Stump, 8 Gill & J. Woolrych on Waters, 80. 479; Chapman v. Hoskins, 2 Md. Ch. ' Ibid. 485 ; Parker v. Cutler Milldam Co., 2 i Camp. 309, 313. 20 Maine, 253 ; Moulton v. Libbey, 37 » 14 Wend. 42. In an action of Maine, 472; Prebles i.\ Brown, 47 trespass for taking oysters from the Maine, 284 ; Clement «. Burns, 43 N. plaintiff's oyster-bed, the defendant 11.621; Weston K.Sampson, 8 Cush. cannot, under the general issue, show 347 ; 2 Dane Abr. 690 ; Common- that the locus in quo is a public river wealth ?i. Bailey, 13 Allen, 543 ; Lake- from which the public have a right man v. Burnham, 7 Gray, 440 ; Proc- to take oysters. Shrevcs v. Liveson, tor V. Wells, 103 Mass. 216 ; Common- 1 Pcnn. 247. wealth f. Vincent, 108 Mass. 446; 334 THE LAW OF WATBKS. [PAET I. Court said : " That a qualified property in the oysters was acquired by the plaintiff is admitted. But it is contended that the planting them in the bay where a common right of taking them existed was an abandonment of them to the public vise. If so, it must be by force of law, for the case fully discloses that no such intent in point of fact existed. On the contrary, they were deposited there by the owner to improve, or rather give value to them, and with reference to an ulterior use. As to all inanimate things, an absolute property in possession may be acquired in them, — such as goods, plate, money ; and if the article in question could be considered as falling within that description, there could be no doubt the defense taken would be untenable, unless there was an abandonment in fact. Oysters have not the power of locomotion any more than inanimate things, and when property has once been acquired in them, no good reason is perceived why it should not be governed by the rules of law applicable to inanimate things. But it is contended they fall within the rules of law applicable to animals denominated ferae naturae, the same as deer in the forest, pigeons in the air, or fish in public waters or the ocean. A qualified property is acquired in these by reclaiming and taming them, or by so confining them within the immediate power of the owner as to prevent their escape and the vise of their natural liberty. The right of the plaintiff to the oysters is within the reason of these principles. They have been reclaimed, and are as entirely within his possession and control as his swans or other water fowl that may float habitually in the bay. They were distinctly designated according to usage ; and, besides, the defendants had actual information of the ownership, and they can set up no greater right to take them because found in their native element than tame pigeons in the air or a domesticated deer upon the mountain. If the bed interfered with the exercise of the common right of fishery, or if the oysters were undistin- guished among others belonging to the public waters, the interest of the owners in them would undoubtedly be sub- servient to the enjoyment of the public use. But the CHAP, v.] KIPAEIAK EIGHTS AISID BOUjSTDARIBS. 335 exercise of that right in this case was a mere pretense. No oysters of the natural growth of the bay, fit for use, had been found there for years. The bed interfered with no other sort of fishing for eitlier profit or pleasure. The case presents a deliberate and wanton violation of property acquired by the industry and care of another, under the pretext of exercising a right in common which the de- fendants knew to be fruitless. We certainly would have regretted if the law had given countenance to such depreda- tions, and we are rejoiced to find they are as gross a violation of law as they are of the first principles of justice." § 191. The privilege of gathering ice upon waters which are public property is a common right. It is so held with respect to great ponds in Massachusetts.^ The remedy for an unreasonable or excessive use of the liberty of cutting ice on the great ponds of this State is by indictment;^ and although the owner or lessee of an ice-house and land upon the shore of such a pond has the same right as others to cut and take ice which is the natural product of the pond, he cannot, to the exclusion of other public uses, occupy any part of the pond for the purpose of increasing the thickness of the ice by artificial means, or maintain an action against those who come upon the pond lawfully and there cut holes in the ice in the exercise of the public right of fishery.^ So, the 'owners of lands bordering upon navigable streams, in those States where they are held to be public propertj% have no title to the ice which forms on such streams, as incident to their ownership) of the banks, but the ice belongs to the first appropriator.* An appropriation of the ice upon these streams is made by surveying, marliing, and staking off the 1 Hittinger v. Eames, 121 Mass. Tudor v. Ccimbridgo T7atcr Vi^orks, 1 539 ; Anc. Chart. 148 ; Cummings u. Allen, 101. Barrett, 10 Cush. 180 ; West Roxbury = vyest Roxbury u. Stoddard, 7 V. Stoddard, 7 Allen, 158 ; Paine v. Allen, 158. ■Woods, 108 Mass. 160 ; Common- = Hittinger v. Eames, 121 Mass. wealth V. Vincent, 108 Mass. 441; 530; RowcU u. Doyle, 101 Mass. 474. Pay V. Salem Aqueduct, 111 Mass. 27 ; * "Wood u. Fowler, 20 Kansas, 082 ; Gage V. Steinkrauss, 131 Mass. 222 ; Hickcy v. Hazard, 3 Mo. App. 480. 336 THE LAW OF WATERS. [PAET I. ice, if unappropriated by others, and expending money to preserve it, and by tliese acts a sufficient possession is acquired to support an action of trespass.^ Ice forming on a navigable fresh-water stream, the bed of which belongs to the riparian proprietors, is their property, and a person who appropriates it for his own gain cannot justifj' the trespass on the ground that its removal was advantageous to the public easement of navigation.^ The fact that the business of harvesting ice is an important industry does not justify the erection of a dam, without the authority of the legis- lature, across an arm of the sea which is of small importance for navigation, for the purpose of excluding the salt water and creating a fresh-water pond for the formation of ice, and the right to maintain such a dam cannot be acquired by prescription.^ Ice forming upon private fresh-water streams and ponds belongs exclusively to the riparian proprietors, who may prevent its removal by others or maintain trespass against those who cut it without license.* The owner of an artificial mill-pond, who is entitled to the water of the pond, ig also entitled, as against the riparian owners, to have the ice which forms thereon remain, if its removal will appreciably diminish the hefid of water at his dam ; ^ and a grant of the right to flow land by damming a stream has been held to give to the grantee the exclusive right to gather the ice which forms on the pond so made.'' In Massachusetts, the owner of a mill-dam, by proceedings under the mill act, acquires merely a right to raise the water by his dam, and ^ Ibid. Ham v. Salem, 100 Mass. 350; Paine 2 Washington Ice Co. u. Shortall, v. Woods, 108 Mass. 173. 101 111. 40. 5 Mill River Woollen Manuf. Co. ' Dyer i). Curtis, 72 Maine, 181. v. Smith, 34 Conn. 462; Seeley v. *Mill Eivcr Manuf. Co. u. Smith, Brush, 35 Conn. 419; Cummings i. 34 Conn. 462 ; Edgerton v. Ilufi, 26 Barrett, 10 Cush. 186 ; Paine v. Woods, Ind. 35; State r. Pottmcycr, 30 Ind. 108 Mass. 160, 173 ; Myeru.Whit.aker, 287; 33 Ind. 402; Cates .,. State, 31 55 IIow. Pr. 376; Marshall ,-. Peters, Ind. 72 ; Lormfm u. Benson, 8 Mich. 12 How. Pr. 218. 18. When riparian estates are taken ° Myer i-. Whitaker, 5 Abb. N. C. by right of eminent domain, the value 172. The case was criticized in a of ice privileges connected theremth later decision in New York. Dodge v. may form, an element of tho dam.agos. Berry, 25 Alb. L. Journ. 303. CHAP, v.] KIPARIAN BIGHTS AND BOUKDAEIES. 337 the owner of land thereby flowed may remove the water when formed into ice, for use or sale, provided he does not lessen the water-power.^ When the State appropriates the fee of land for the construction of canals, the former owner has no right to take ice therefrom ; ^ but if the canal is simply a servitude, the owner of the fee is entitled to take the ice when its removal does not interfere with the navigation or the use of the water for hydraulic purposes.^ In Indiana and Illinois, ice forming upon private waters is held to be real estate.* In Michigan it is held that, as the ephemeral character of ice renders it incapable of any permanent or beneficial use as part of the soil, it is unlike crops or em- blements, and that any sale of ice actually formed is a sale of personalty.^ The measure of damages for a wrongful taking of ice from another's waters, like that of an unauthorized taking of coal from another's mine, is the value of the ice when converted into a chattel and ready for removal and sale.^ If wantonly destroyed while in the process of forma- tion, the value of the ice that would probably have been saved for market, less the expense of storing it, is the measure of damages.'^ § 192. By the common law, as stated by Lord Mansfieldl,, and approved by Chancellor Kent,* vessels or goods cast 1 Cummings v. Barrett, 10 Cush. 134,144; Proctor r. Adams, 113 Mass. 186 ; Paine w. Woods, 108 Mass, 173. 376; Wonson v. Sayward, 13 Pick.. 2 Indianapolis Water Works Co. i;. 402 ; The Augusta, 1 Hagg. Adm. 10, Burkhart, 41 Ind. 364; Cromie <. 18, 20; Rex v. Property Derelict, 1 Board of Trustees, 71 Ind. 208. See Hagg. Adm. 383 ; Rex v. 49 Casks of Card V. McCaleb, 69 111. 314. Brandy, 3 Hagg. Adm. 270 ; Rex , . " Edgerton v. Huff, 26 Ind. 35. Two Casks of Tallow, 3 Hagg. Adm. « State V. Pottnieyer, 33 Ind. 402; 294; The Pauline, 2 Rob. Adm. 358; 30 Ind. 287; Wjishington Ice Co. o. Bracton, fol. 120, § 5; Woodward ,. Shortall, 101 111. 46. Fox, 2 Vent. 188 ; Sir Henry Consta- '' Hlggins V. Kustener, 41 Mich, hle's Case, 5 Co. 108 ; Talbot v. Lewis, 318. ■ 6 C. & P. 606 ; Dickens w. Shaw, re- ^ Washington Ice Co. v. Shortall, ported in Hall on the Seashore, App. 101 111. 46; 25 Alb. L. Journ. 106. 45; Alcock v. Cooke, 2 M..& P. 625; ' People's Ice Co. u. The Excelsior, Stackpoole v. Queen, Ir. K. 9 Eq. 119 ; 44 Mich. 229. Clark v. Chamberlain,. 2 M, & W. 78 ; ' Hamilton v. Davis, 2 Burr. 2732 ; Legge v. Boyd, 1 OB: 92 ; Palmer !■. 2 Kent Com. 322, 359; 3 Dane Abr. Bouse, 3 H. & N. 505;. 1 Black. Com. 338 THE LAW OF WATERS. [PAET I. ashore by the sea, and technically known as wreck, became the property of the Crown after the lapse of a year and a day ; and during that period they were placed in the custody of the adiBiralty for the benefit of the owners, who might reclaim them, though no living creature escaped from the shipwrecked vessel. The owner of land on which wreck is cast is under no duty to preserve it for the owner.^ He has no right to it against the owner, but has a title to it, if not reclaimed, sufficient to entitle him to an action against strangers who enter upon his land and take away the wreck.^ If the 23roperty is in danger of being swept away by the sea, any person may enter upon the land without license for the pur- pose of saving it ; ^ and if there is a right to take wreck, there is a right by virtue of necessity to enter on land for that purpose.* The original owner has also the right to enter on the land upon which his property is cast for the purpose of removing it, and if prevented from so doing he may main- tain an action of trover for the conversion of his property .^ In the case of waifs and drift-wood floating down private streams, the riparian proprietors have an exclusive right to such property, when carried upon their lands, against all but the true owner ; but they have no title to it until reduced to possession, and if others seize it before it reaches their land they cannot complain.'^ As against the owner, such pro- 291 ; 2 Id. 14 ; 3 Id. 106 ; 4 Id. 235 ; Trespass, 213 ; Vin. Abr. Trespass, H. Hale, De Jure Maris, c. 7. a. i, pi. 24 ; K. a. pi. 3 ; Hetfield u. 1 Sutton u. Buck, 2 Taunt. 302, Baum, 13 Ired. 394, 399. 312; Proctor u. Adams, 113 Mass. ''Anon., 6 Mod. 149; Hetfield b. 377 ; Porster v. Juniata Bridge Co., Baum, 13 Ired. 394. 16 Penn. St. 393 ; Woodward o. Carl, ^ Ibid. ; Foster v. Juniata Bridge 3 Luz. L. Reg. (Penn.) 227. Co., 16 Penn. St. 393; Etter t'. Ed- ' 2 Dunwich o. Sterry, 1 B. & Ad. wards, 4 Watts, 63. 831; Barker v. Bates, 13 Pick. 255; ^ garrett w. Bangor, 70 Maine, 335. Proctor V. Adams, 113 Mass. 376. In Rogers v. ,Tudd, 5 Vt. 223, a Goods found derelict at sea, and riparian owner was held to haye no brought into port, are not the prop- property in timber floating over his erty of the finders, who are, however, land, but to have an exclusive right entitled to salvage. Whitwell u. to convert to his own use such tim- Wells, 24 Pick. 30 ; EUery «. Cunning- ber moving in an eddy over his land, ham, 1 Met. 112. unless reclaimed by the owner in a ^ Proctor II. Adams, 113 Mass. 377 ; reasonable time. 21 Hen. VII. 27, 28, pi. 5; Bro. Abr. CHAP, v.] EIPAEIAN EIGHTS AND BOUNDAEIES. 339 prietors are entitled to just compensation, in the nature of salvage, for the labor and expense of saving the property ; ' and, if they see fit to remove it from their premises, they are bound to do so vs^ith as little injury as possible.^ If the former owner elects to reclaim his property, he may do so upon payment of such damages as it may have caused to the riparian proprietor, and the necessary expenses of keeping and repairing it ; but if he chooses to abandon it, he is not liable for such damages and expenses.^ The lessee of a farm adjoining a river is entitled to drift-wood which he takes therefrom as against his lessor, unless otherwise provided in the lease.* Where one riparian proprietor planted a row of trees along the line between his land and that of an adjoining proprietor who brought suit against him for thus causing drift-wood to be lodged upon his land during freshets, it was held that no action would lie for such obstruction.^ § 193. The privilege of maintaining a ferry has beeji named among riparian rights.^ But the right to maintain a ferry, which, in its very nature, implies the taking of tolls,'' is a franchise, and a fixed toll cannot be demanded for the transportation of passengers or merchandise by this means without the consent of the legislature.^ It is not essential 1 Tome V. Dubois, 6 Wall. 548 ; v. Boston, 123 Mass. 460, 468, citing Winslow !'. Walker, 1 Hay (N". C.) 193. Hale de Jure Maris, c. 2 ; Hargrave's See Tome v. Four Cribs of Lumber, Law Tracts, 6 ; AVoolrych on Ways, Taney, 533 ; Gentry v. Madden, 3 217 ; North and South Shields Ferry Ark. 127. As to rights under statutes y. Barker, 2 Exch. 130, 149; 2 Dane for saving waifs, see State v. Adams, Abr. 683, 684 ; Fay, petitioner, 15 16 Maine, 07 ; Flanders v. Locke, 53. Pick. 243, 249, 250 ; Newburgh Turn- Cah 21 ; Wilson v. W6ntworth, 25 N. pike c. Miller, 5 Johns. Ch. 101, 112; H. 245 ; Scott u. Willston, 3 N. H. Aiken v. Western Eailroad, 20 N. Y. 321 ; Ethelridge ;■. Jones, 8 Ired. 100 ; 370, 379, 386. CoUard v. Eddy, 17 Mo. 354. « Ante, § 142 ; 1 Black. Com. 37, 38; 2 Berry v. Carle, 3 Maine, 269. Mills u. St. Clair Co., 8 How. 581 ; 8 Sheldon v. Sherman, 42 N. Y. Conway v. Taylor, 1 Black, 603 ; Milk 484; Chaser. Corcoran, 106 Mass. 286. y. Commissioners, 3 Scam. 53; Tnis- * Dyer v. Haley, 29 Maine, 277. tees v. Tatman, 13 111. 27 ; Hudson v. 5 Taylor v. Fickas,, 04 Ind. 107. Cuero Land Co., 47 Texas, 58 ; Wil- " Bowman r. Wathen, 2 McLean, liams v. Davidson, 43 Texas, 1 ; Nash- 370; Bell u. Cough, 23 N. J. L. 024, villo Bridge Co. v. Shelby, 19 Yergcr, 076. 280; McRoberts i. Washburne, 10 ' Gray, C. J., in Attorney General Minn. 23. 340 THE LAW OP WATEES. [part I. to the validity of the franchise that the owner of the ferry sliould have the property in the soil on either side of the river.i Preference is frequently given by statute, in granting this privilege, to the owners of the banks of waters across which the ferry is to be maintained, upon their making appli- cation and complying with the prescribed statutory condi- tions.^ But the legislature may repeal at pleasure the statute giving tliis preference.^ When a ferrj' franchise is granted to one who is not a riparian proprietor, compensa- tion must be provided if the public good requires the taking of the land upon the banks for the purposes of the ferry, as for landings.* A ferry franchise may, however, be acquired by prescription,® and so, it would seem, may the right to use the river banks as a landing.^ ' Peter v. Kendal, 6 B. & C. 703 ; Newton v. Cubitt, 12 C. B. n. s. 32 ; Gant V. Drew, 1 Oregon, 35 ; Mills v. Learn, 2 Id. 215. 2 Mullls o. Cavins, 5 Blackf. 77; Gant V. Drew, 1 Oregon, 3.5 ; Mills v. Learn, 2 Id. 215 ; Knott v. Frush, Id. 2-37 ; Beckley v. Learn, 3 Oregon, -544, 470; Dunlap ;;. Yoakum, 18 Texas, 582; Haynes v. Wells, 26 Ark. 464; Lindsay y. Lindley, 20 Ark. 573 ; Willard v. Forsythe, 2 Mich. N. P. 190. 8 Hudson V. Cuero Land Co., 47 Texas, 58; Bass u. Fontleroy, 11 Texas, 698. 4 Ibid. ; Peter v. Kendal, 6 B. & C. 703; Doty w. Gorham, 5 Pick. 487; Prosser v. Wapello County, 18 Iowa, 327; Averett i>. Brady, 20 Ga. 523; New York v. New York Ferry Co., 40 N. Y. Sup. Ct. 232, 245. ^Supervisors v. McFadden, 57 Miss. 618 ; Williams v. Turner, 7 Ga. 348 ; Laredo v. Martin, 52 Texas, 548 ; Bowman ;;. Wathen, 2 McLean, 370. The limits of the terry, when ascer- tained and tixe McGlaughan, Taylor (N. C.) 196; Spring v. Hews- ton, 52 Cal. 442 ; Lewis v. Lewis, 4 Oregon, 177. 342 THE LAW OF WATERS. [PAET I. a survey.^ A survey which is described as running on the bank of a navigable river, is to be so run that none of the lines shall cross the river, and courses and distances crossing the river will be disregarded so far- as they are interfered with by the river.^ The side lines of land which is bounded bj'^ a river are to be continued "to the stream in a straight line, if not otherwise defined in the deed,^ and the specified length of such lines is to be disregarded.* When a deed, or s.urvey and patent, shows a river to be one of the boundaries of the tract, it is a legal deduction that there is no vacant land left for appropriation between the river and the river boun- dary of such tract,^ and all the riparian rights incident to the ownersliip of the shore or bank pass to the grantee, unless clearly reserved." In case of ambiguity, parol evidence its admissible to determine the identical boundary referred to in a convej^ance. If, for example, land upon a creek is con- veyed and bounded "down the east bank of said creek to the ford below the mill," it would be for the jury to say, if there were two or more banks on the east side of the creek, which was intended as the boundary; but if the vendor has at the time, upon his other land opposite, a mill privilege which is not intended to be conveyed or relinquished, the 1 Shelton v. Maupin, 10 Mo. 124; crossing the river,'' it was held that Doe f. Ilildreth, 2 Ind. 274, 284 ; the line must cross the river, though Singleton v. Whiteside, 5 Yerger, 18 ; the distance terminated before reaoh- Meigs, 207 ; Overton v. Cannon, 2 ing it. Whiteside i-. Singleton, Meigs Humph. 264 ; Simmons o. Baker, (Tenn.) 207. Cooke (Tenn.) 146 ; Verplank v. Hall, ^ County of St. Clair v. Lovingston, 27 Mich. 79 ; Galveston Co. v. Tankers- 23 Wall. 46, 63 ; Churchill v. Grundy, ley, 39 Texas, 051. 5 Dana, 100; Trustees v. Wagnon, 1 2 Phillips !!. Ayres, 45 Texas, 601. A. K. Marsh. 243; Bruce i: Tayloi-, ' Howard v. Moale, 2 H, & Johns. 2 J. J. Marsh. 160 ; Reid v. Langford, 249; Buckley v. Gilmore, 12 Ohio, 3 Id. 420; Walker v. Orr, Hughes 63; Hastings I-. Stevenson, 2 Ohio, 8 ; (Ky.) 38; Smith v. Evans, Id. 169; Patterson v. Trask, 30 Maine, 28; Bradford c. McClelland, Id. 196: Klingensmith r. Ground, 5 AVatts, Cockrell !'. McQuinn, 4 Mon. 62; 458 ; Swisher v. Grumbles, 18 Texas, Bruce o. Morgan, 1 B. Mon. 20 ; 164. French v. Bankhead, 11 Gratt. 130, * Graves v. Fisher, 5 Maine, 69 ; 157 ; Brown ( . Huger, 21 How. 305 ; Pollock V. Harris, 1 Hay. (N. C.) 252 ; Posey v. James, 7 Lea (Tenn.) 98. Carrawayw.Witherington.N. C.Term. <* H,iri . Eichardson v. Prentiss, Rep. 275. Where a grant called for 43 .'lich. 83. a certain number of poles, " to a stake, CHAP, v.] ErPAMAN EIGHTS AND BOUNDAEIES. 343 court may decide, as matter of law, tliat the top of the bank above the ford, and not the low-water line, is the boundary, the intervening space being more appropriate for the use of the mill.i A plan referred to in the conveyance becomes a part thereof, and has the same effect as if its details of courses, distances, and monuments were incorporated in the instrument.^ "Where the shore and a plan referred to in a deed were incompatible, the plan was considered the more certain and controlled.^ But if a grant calls for a natural boundary, like a lake, which is not laid down upon a plat annexed thereto, the plat does not control the calls of the grant.* A description which is so uncertain that it cannot be identified is void. If a boundary line is described in a deed as running from a creek which is several thousand feet in length, without other designation of the starting-point, and the description vnll be satisfied if the line starts from any point on the creek, the deed is indefinite and inoperative.^ Wlien a tract of land extends along a river, the exterior lines are to be run so that every point in them shall be at the given distance from the nearest point on the stream,^ unless particular courses are given for the exterior lines.'' A con- 1 JcnMns v. Cooper, 50 Ala. 419. COl ; Fuller v. "Williams, Busb. Eq. 2 Lincoln v. Wilder, 29 Maine, 109 ; 102 ; Horton v. Cook, 1 Jones Eq. Erskine v. Moxdtou, GO Maine, 270 ; 270 ; McDiarmid v. McMillan, 5 Jones Vfellington v. Murdock, 41 Maine, Eq. 29 ; Hinchey v. Nichols, 72 N. C. 231; T/hitman u. Boston & Maine CO; Speed v. Wilson, Sneed (Ky.) Railroad, 3 Allen, 133 ; Mclver v. 73 ; Donnebaum v. Tinsley, 54 Texas, Walker, 4 Wheat. 444 ; 9 Cranch, 302 ; Shipp v. Miller, 2 Wheat. 316 ; 173; Blauey v. Rice, 20 Pick. 62; Swanton v. Crocker, 52 Maine, 415; Ilagoun V. Lapham, 21 Pick. 135 ; Martin v. Boon, 2 OMo, 238 ; Miles v. S-hufeldt 0. Spaulding, 37 Wis. 662 ; Knott, 12 Gill & J. 442. Greater cer- Loring i'. Norton, 8 Maine, 61 ; Pro- tainty in describing the land is ro- prietors v. Tiffany, 1 Maine, 210 ; quired in a legal process, like a peti- Eaton (.. Knapp, 29 Maine, 20 ; tion for partition, than would suffice TValker v. Boynton, 120 Maine, 349 ; in a conveyance. Miller v. Miller, 16 Eunt V. Holland, 14 Mass. 149 ; Davis Pick. 215. V. Eainsford, 17 Mass. 207; Boston ^ Winthrop w. Curtis, 3 Maine, 110 ; Water Power Co. i: Boston, 127 Mass. Dunn v. Hayes, 21 Maine, 76 ; Jack- 370. son V. Lunt, 2 Caines, 363 ; Van Gor- 3 Eincoln v. Wilder, 29 Maine, 169. don v. Jackson, 5 Johns. 440 ; Wil- * President v. Clark, 9 Ired. 58 ; liams v. Jackson, Id. 489 ; Jackson o. Jamison v. Cornell, 3 Hun, 557 ; 5 N. Joy, 9 Johns. 102. Y. Sup. Ct. 628. 7 Keith v. Reynolds, 3 Maine, 393 ; * Le Eranc v. Richmond, 5 Sawyer, Donaldson r. Lucett, 2 Caines, 363 ; 344 THE LAV/ OF AVATERS. [PAET I. tract for land "lying on both sides of Cold River," to be paid for at the rate of one hundred dollars per acre, does not bind the purchaser to pay for the river bed, although that jDasses by the deed.^ In Holbert v. Edens,^ in Tennessee, it was held that the purchaser, at a stipulated price per acre, of land which is bounded by the ineanders of a liver is only required to pay for the land bounded by a line running with the ordinary low-water mark, and any islands which may bo between that line and the thread of the stream, and not for the river bed. Where land, described as grass land bounded by a drain, and containing about twenty-three acres, "but to be survej^ed," was purchased at a specified price per acre, and measured about twenty-one acres to the edge of the drain, and about twenty-three acres to its centre, the purchaser was required to pay the stipulated price for the land to the middle of the stream.^ § 195. When riparian estates are conveyed, the owner may reserve the land under water, but the general pre- sumption, in all cases, is that the purchaser's title extends as far as the grantor owns.* The legal effect of the convey- ance is determined by the terms employed, and cannot be controlled by parol testimony,^ unless there is a latent am- biguity, or the description itself is rejected as false,^ or the identical boundary referred to in the conveyance is in dispute.'' If land is bounded by Broad River, it may be Nicholl 0. Huntington, 1 Johns. Ch. Corliss, 63 Maine, 287 ; Nickerson c. 166. Crawford, 16 Maine, 247. 1 Daniels v. Cliesliire Railroad Co., ^ White v. Luning, 93 XJ. S. 515 ; 20 N. H. 85. Pride v. Lunt, 19 Maine, 115 ; Hurleys. 2 5 Lea, 204. Morgan, 1 Dev. & Bat. 425 ; Becton v. 3 Re Popple, 25 W. R. 248. See Chestnut, 4 Dev. & Bat. 335 ; Hill c. Higginbotham v. Stoddard, 72 N. Y. Mason, 7 Jones, 551 ; Slade u. Green, 94; Ardery v. Rowles, 71 Penn. St. 2 Hawks, 218 ; Lynch i,-. Allen, 4 Dey. 369 ; Shand c. Triplett, 5 Rich. Eq. & Bat. 62. (S. C.) 76. T Ibid. ; Emery ». Webster, 42 * Boston V. Richardson, 13 Allen, Maine, 204 ; Gerrish ;•. Towne, 3 Gray, 155 ; Ingraham v. Wilkinson, 4 Pick. 82 ; McCuthen v. McCuthen, 9 Porter, 268 ; Pratt u. Lamson, 2 Allen, 275, 650 ; Jenkins v. Cooper, 50 Ala. 419 ; 284. Williams c. Kiyett, 82 N. C. 110; 6 Fletcher u. Phelps, 28 Vt. 262 ; Nourse v. Lloyd, 1 Penn. St. 220 ; Piatt V. Jones, 43 Cal. 219; Bartlett v. Couchman v. Thomas, Hartlin (Ky.) CHAP, v.] EIPAEIAN EIGHTS AND BOUNDAEIBS. 345 shown that Catawba River was intended ; i and where land was bounded in a deed "by the side of the mill-pond," parol evidence was admitted of an intent to limit the grant to the margin of the water, as it overflowed in the spring.^ In the case of tide waters, the ordinary high-water mark is the boundarj" of the adjoining lands at common law;^ but in those States in which the title of the owner of the upland extends to low- water mark, the flats pass as appurtenant to, or parcel of, the upland, when that is conveyed, unless a different intention is manifested by the deed.* In Massachusetts and Maine, a grant of the upland, made since the ordinance of 1647, passes the adjoining shore to the extent of the grantor's title, if not restricted by specific description, but bounded generally by the water I** as "by the sea," "tide water," or "salt water," ^ "by the harbor,"' "bay,"^ "cove,"^ " creek," 1° "river,"" or " the stream " of a tidal river.^^ So, under this ordinance, a boundary by a tidal creek, the bed of which is bare at low 277; Jones v. Burgett, 46 Texas, 285. 1 Middleton v. Perry, 2 Bay, 539. '^ Lowell o. Robinson, 16 Maine, 357. ^ Ante, § 27 ; Commonwealth o. Alger, 7 Cush. 58 ; Rogers v. Jones, 1 Wend. 237 ; Canal Commissioners v. People, 5 Wend. 423, 446; Wheeler V. Spinola, 54 N. Y. 377, 385; State v. Jersey City, 1 Dutch. 525 ; East Haven V. Hemingway, 7 Conn. 186 ; More v. Massini, 37 Cal. 432; Milne v. Giro- deau, 12 La. Ann. 324. See Mayor v. Hart, 16 Hmi, 380. * Ante, § 169. ^ Ante, § 169. A conveyance of " one-half of the land and flats below the house in quantity and quality," creates an estate in common between the parties. Adams v. Frothingham, 3 Mass. 352. ' Boston V. Richardson, 105 Mass. 351, 355; 13 .Allen, 155; Storer v. Freeman, 6 Mass. 435, 439 ; Mayhew V. Norton, 17 Pick. 357 ; Valentine i/. Piper, 22 Pick. 85 ; Green v. Chelsea, 24 Pick. 71 ; Jackson v. Boston & Worcester Railroad Co., 1 Cush. 575, 578; Saltonstall v. Long Wharf, 7 Cush. 195, 200 ; Doane o. Willcutt, 5 Gray, 328, .335, 336. In New York v. Hart, 16 Hun, 380, it was held that a grant to a town, for the benefit of the public, and bounded by a navigable river, extends to low-water mark. ' Boston u. Richardson, 105 Mass. 355; Mayhew v. Norton, 17 Pick. 357. * Ibid. ; Partridge u. Luce, 36 Maine, 16. ^ Hathaway v. Wilson, 123 Mass. 359. 10 Ibid: ; Harlow u. Pisk, 12 Cush. 302. 11 Ibid. ; Trull v. Wheeler, 19 Pick. 240 ; Moore o. Griffin, 22 Maine, 350 ; Pike V. Monroe, 36 Maine, 309 ; Brack- ett u. Persons Unknown, 53 Maine, 238. See Mobile v. Emanuel, 1 How. 95; 17 Peters, 155. 12 Ibid. ; Boston u. Richardson, 13 Allen, 155; Lapish u. Bangor Bank, 8 Maine, 85, 92; Thomas v. Hatch, 3 Sumner, 170; Dunlap v. Stetson, 4 Mason, 366. 346 THE LAW OF "WATERS. [PAET I. water, conveys prima facie to the centre of the creek ; ^ and if a wharf on the shore be granted, it will carry with it, as parcel of the granted premises, the grantor's flats towards the low- water mark, unless limited by special words.^ A grant of "a piece of flats below high-water mark, to set a shop upon, jiot exceeding forty feet in width," conveys flats of that width to low-water mark.^ A creek or natural channel, from which the tide does not ebb, limits the right to the adjoin- ing flats.* § 19G. In the case of non-tidal waters, also, a deed which describes the land as bounded by the water conveys prima facie as far as the grantor owns.^ Thus, the term " river," wlien employed to designate a boundary by land-owners whose title extends usque ad filum aquae, means in law the centre of the stream.^ This rule applies to a grant from the 1 Boston V. Richardson, 13 Allen, 146, 155; Harlow v. Fisk, 12 Cush. .302 ; Chapman v. Edwards, 3 Allen, 512. - Central Wharf ;;. India Wharf, 123 Mass. 561, 566 ; Wood v. Commis- sioners of Bridges, 122 Mass. 394; Doane v. Broad Street Association, 6 Mass. 332 ; Storer i\ Freeman, 6 Mass. 4.35 ; Ashby v. Eastern Railroad Co., 5 Met. 308 ; Wheeler v. Stone, 1 Cush. 313; Ammidown v. Granite Bank, 8 Allen, 285 ; Commonwealth v. Alger, 7 Cush.. 53, 90; .Jackson i>. Boston & Worcester Railroad, 1 Cush. 580; 2 Dane Abr. 690, 700; 9 Gray, 524. See Gerrish o. Gary, 120 Mass. 132; Adams v. Frothingliam, 3 Mass. 352 ; Palmer v. Hicks, 6 Johns. 133; Hodge V. Boothby, 48 Maine, 71 ; Brook- liaven v. Strong, 60 N. Y. 56. 2 Adams u. Frotliingham, 3 Mass. 352. ^ Sparhawk v. BuUard, 1 Met. 95 ; Lufkin V. Haskell, 3 Pick. 355 ; Walker v. Boston & Maine Railroad, 3 Cush. 1 ; Attorney General v. Bos- ton Wharf Co., 12 Gray, 553; Porter V. Sullivan, 7 Gray, 441. 5 Wright V. Howard, 1 Sim. & Stu. 190; Wishart o. Wyllie, 1 Macg. H. L. 389 ; Tyler v. Wilkinson, 4 Mason, 397 ; Thomas u. Hatch, 3 Sumner, 170 ; Jackson u. Hathaway, 15 Johns. 447; Varick v. Smith, 9 Paige, 547; 5 Paige, 138; Walton u. Tifft, 14 Barb. 216 ; Demeyer v. Legg, 18 Barb. 16 ; Hammond v. ilcLachan, 1 Sand. 323 ; Herring v. Fisher, Id. 344 ; Jack- son V. Louw, 12 Johns. 252 ; People v. Law, 34 Barb. 494 ; Wetmore v. Law, Id. 515, 519 ; Grove v. White, 20 Wis. 425; Arnold i'. Elmore, 16 Wis. 509; Nowhall V. Ireson, 8 Cush. 595 ; Water- man 0. Johnson, 13 Pick. 261 ; Buck r. Squires, 22 Vt. 484; Stanford v. Mangin, 30 Ga. 355; Williams u. Buchanan, 1 Ired. 535 ; Rix v. John- son, 5 N. H. 520 ; Hammond v. Ridge- ley, 5 H. & J. 215 ; Kingsland v. Chit- tenden, 6 Lans. 15; Muller (. Landa, 31 Texas, 265. See Union Pacific Railroad Co. v. Hall, 91 IJ. S. 343 ; Thomas i'. Hatch, 3 Sumner, 170; Norris ;•. Hall, 1 Mich. 202 ; Ricliard- son y. Prentiss, 48 Mich. 88. 6 Ibid. CHAP, v.] RIPARIAN RIGHTS AND BOUNDARIES. 347 Crow-n,i a State,^ or the United States,^ and to navigable as well as unnavigable fresh streams where the soil of navigable fresh rivers is held to b^ private property.* In Ne# York it is liekP that legislative grants of islands in navigable fresh rivers are not conclusive against the applioation of the common-law rule to such rivers ; but in Pennsylvania^ and other States,'^ such grants have been regarded as strong evidence in favor of the public character of these streams. The rule extending the grantee's title to the centre of the stream applies also when the granted premises are bounded by a ditch or canal made through the grantor's laud;^ bv a mill-pond, created by damming a fresh-water sti'eam,^ or by an artificial raceway.^" It applies to city lots bounded upon streams. 1^ Even a marsh or swamp may constitute a well- defined boundary of a tract of land, and the thread of the channel or stream flowing through it, if any, may be regarded ^ Lord V. Commissioners of Sidney, 12 Moo. P. C. 473. 2 Boston V. Richardson, 105 Mass. 351, 355; 13 Allen, 156; Lunt r. Hol- land, 14 Mass. 149 ; Cold Spring Iron Works V. Tolland, 9 Cush. 492 ; Clare- mont V. Carltou, 2 N. II. 3B9; Ex parte Jennings, 6 Cowen, 518 ; Arthur i;. Case, 1 Paige, 447 ; Coovert u. O'Conner, 8 Watts, 470; Hayes ,-. Bowman, 1 Rand. 417, 420; Browne V. Kennedy, 5 H. & J. 195 ; Baltimore v. McKim, 3 Bland Ch. 453 ; Ridgeley V. Johnson, 1 Bland Ch. 31(5, n. ; Cam- den V. Creel, 4 W. Va. 365. ^ Middleton u. Pritchard, 3 Scam. 510; Morgan v. Reading, 3 S & M. .366 ; Steamboat Magnolia u. Mar- shall, 39 Miss. 109; Gavit v. Cham- bers, 3 Ohio, 495 ; Hendricks v. John- son, 6 Porter, 472 ; Jones u. Soulard, 24 How. 41. * Ante, c. 3 ; Dwyer v. Rich, Ir. R. 4 0. L. 424. ^ Ex parte Jennings, 6 Cowen, 548, and note; People v. Canal Apprais- ers, 17 Wend. 571; 13 Wend. 355; Commissioners c. Kempshall, 28 Wend. 404. ^Ante, § 65. ' Ante, c. 3. * Boston t. Richardson, 13 Allen, 155; Lawson !'. Mowry, 52 Wis. 219; Warner v. Southworth, 6 Conn. 471 ; Agawam Canal Co. o. Kdwards, 30 Conn. 476 ; Goodyear v. Slianahan, 43 Conn. 204, 210 ; Cansler v. Hender- son, 64 N. C. 469 ; Hoffi v. Tobey, 66 Barb. 347 ; 56 N. Y. 633. 8 Phinney v. Watts, 9 Gray, 269 ; Waterman u. Johnson, 13 Pick. 261 ; Paine v. Woods, 108 Mass. 160; Brad- ley i: Rice, 13 Maine, 198 ; Lowell v. Robinson, 16 Maine, 357 ; Mansur v- Blake, 62 Maine, 38 ; Wood v. Kelley, 34 Maine, 47 ; Nostrand u. Durland, 21 Barb. 478; Bartholomew v. Ed- wards, 1 Houst. (Del.) 17; Mill Rirer Co. V. Smith, 34 Conn. 462; Kings- land V. Chittenden, 6 Lans. 15 ; Primm 0. Raboteau, 56 Mo. 407. 1" Dunklee v. Wilton Railroad Co., 24 N. H. 489 ; Smith v. Tord, 48 Wis. 115, 163; Pettibone v. Hamilton, 40 Wis. 402. 11 Watson V. Peters, 26 Mich. 508. 348 THE LAW OF WATERS. [PAET I. as the boundary line.^ If the land on both sides of a river is owned by tenants in common, and they make partition according to its course, each talses to the thread of the stream.2 The fact that the quantity of riparian land called for in a deed is satisfied by the dry land does not limit the boundary to the bank.^ The presumption that a conveyance to the centre line was intended does not arise when land is bounded by a body of Avater contained in an artificial reservoir constructed for purposes not connected with the premises conveyed, and when such a presumption would be inconsistent with the uses for which the reservoir was created.'* § 197. If the intention to limit the title to the bank does not appear from other terms in the instrument, a description of a riparian estate, by which a line runs to a monument on the bank, and thence "by," "with," "along," or "on" the river, carries title to the thread of the stream, and thence follows the meanders thereof, the monument merely deter- mining the direction of the line towards the river.^ When ^ Brumagim v. Bradshaw, 39 Cal. 92; Robinson v. Wliite, 42 Maine, 34; Felder v. Bonnet, 2 McMulIan 209; Grant v. White, 63 Penn. St. (S. C,)44; Stapleford r. Brinson, 2 271; Smallwood v. Hatton, 4 Md. Ch. Ired. 311 ; Brooks o. Britt, 4 Dev. 95 ; Thomas v. Godfrey, 3 GIU & J. 481; Spruell u. Davenport, 1 Jones, 42; Wood v. Appal, 63 Penn. St. 210; 203; Burnett v. Thompson, 6 Jones, Motley v. Sargent, 119 Mass. 231; 210 ; 7 Id. 407. Dunlap u. Stetson, 4 Mason, 349 ; 2 King V. King, 7 Mass. 496. See Thomas v. Hatch, 3 Sumner, 170 ; Morrill v. Morrill, 5 N. H. 134 ; Han- Hughes v. Providence Railroad Co., 2 son V. Willard, 12 Maine, 142 ; Smith R. I. 508 ; Berridge u. Ward, 10 C. B. V. Smith, 10 Paige, 470 ; Cooper v. n. s. 400 ; Kimball v. Kenosha, 4 Wis. Cedar Water Power Co., 42 Iowa, 398. 321 ; Goodeno v. Hutchinson, 54 N. H. 8 Dwyer u. Rich, Ir. R. 4 C. L. 157 ; Reed's Petition, 13 N. H. 381 ; 424. Rix V. Johnson, 5 N. H. 520 ; Leigh v. * Hoffi V. Tobey, 66 Barb. 347. Jack, 28 Am. L. Reg. 540, and note ; ^ Child V. Starr, 4 Hill, 369, 375 ; Paine «. Woods, 108 Mass. 160, 171 ; 20 Wend. 149 ; Jackson v. Snow, 12 Walker o. Shepardson, 4 Wis. 486 ; Johns. 202; Mott v. Mott, 68 N. Y. Sizer v. Devereux, 16 Barb. 160; 246; Howard v. Ingersoll, 13 How. Coovert v. O'Conner, 8 Watts, 470; 381, 422 ; Johnson v. Pannell, 2 Bishop v. Seeley, 18 Conn. 393 ; Mc- Wheat. 206; Littlepage v. Fowler, 11 Cullough u. Wall, 4 Rich. (S. C.) 84; Wheat. 215 ; Pike v. Moulton, 36 Jackson v. Louw, 12 Johns. 252 ; Maine, 309; Bradford u. Cressey, 45 Jones u. Pettibone,2 Wis. 308; Weak- Maine, 13; Low y. Tibbetts, 72 Maine, ly n. Lcgrand, 1 Tenn. 265; Buck u. CHAP. V.J EIPAEIAN EIGHTS AND BOUNDAEIBS. 349 the line along the river is to run a stated distance, the meanderings of the stream are to be followed until the required distance, reduced to a straight line, is attained. ^ In Luce v. Carley,^ in New York, where the description be- gan at a " tree standing on the east branch of the Onon- daga River," and after giving other courses and distances, proceeded west "to the east bank of the river; then south along the Onondaga River to the first-mentioned bounds," the grant was held to extend to the centre of the stream. In Cold Spring Iron Works v. Tollaiid,^ in Massa- chusetts, the corner was a tree on the bank, but the land was described as bounding on the river, the centre of whicli was held to be the boundary line. In Newton v. Eddy,* in Squiers, 22 Vt. 489 ; Marsh v. Burt, 34 Vt. 289; Morrow v. Willard, -30 Vt. 118; Maynard t. Weeks, 41 Vt. 619 ; Buckley r. Blackwell, 10 Oliio, 508; Massengill y. Boyles, 4 Humph. 205 ; Burns v. Greaves, Cooke (Tenn.) 75 ; Pjlder v. Burrus, 6 Humi")h. 364 ; Martin v. Nance, 3 Head, 649 ; Stuart 1.. Clark, 2 Swan, 9 ; Sandifer v. Fos- ter, 1 Hay. (N. C.) 237; Hartsfleld v. Westbrook, Ibid. 258; McPhaul v. Gilchrist, 7 Ired. 169 ; Cansler v. Hen- derson, 64 N. C. 469 ; Rogers v. Mabe, 4 Dev. (N. C.) 180; Smith v. Aul- dridge, 2 Hay. (N. C.) 382 ; Conder v. Coor, Ibid. 183 ; Slade v. Neal, 2 Dev. (N. C.) 61; Bruce c. Morgan, 1 B. Mon. 26 ; Calk v. Stribbling, 1 Bibb, 122 ; Horton v. Roscoe, 3 Hawks, 21 ; Morgan u. Livingston, (S Martin, 19. See Hoboken Land Co. c. Kerrigan, 31 N. J. L. 16; Higbee ,-. Camden Railroad Co., 20 N. J. L. Eq. 435; J^leming v. Kenny, 4 J. J, Marsh, 158 ; Hills V. Houston, 4 Sawyer, 195; (iranger v. Swart, 1 Woolw. 88 ; Bab- cock V. Utter, 1 Abb. (N. Y. App.) 27 ; 1 Keyes, 110, 397. A grantee of land, who takes a deed bounding by a river, is not estopped tliereby to set up a title afterwards acquired by dis- seisin in land extending beyond .the thread of the stream. Kinsell t. I'aggett, 11 Maine, 309. See Corning r. Troy Iron Factory, 40 N. Y. 191 ; 34 Barb. 629. 1 Hicks o. Coleman, 25 Cal. 142 ,' Sanders <-. Morrison, 2 Mon. (Ky.) 110; Johnson v. Brown, Sneed (Ky.) 50 ; Galveston Co. u. Tankersley, 39 Texas, 651 ; Yoder i'. Swope, 3 Bibb, 205. "When the tract is bounded by a navigable stream, the distance upon the stream will, it is said, be ascer- tained, in the absence of other con- trolling facts, by measuring in a straight line from the opposite boun- daries. People 0. Henderson, 40 Cal. 29, .32. 2 24 Wend. 451 ; Seneca Nation r. Knight, 23 N. Y. 498 ; Halsey v. Mc- Cormick, 3 Kernan, 297; County of St. Clair t. Lovington, 23 Wall. 40, 64 ; Jones v. Soulard, 24 How. 44. See Hughes V. Providence & Worcester Railroad, 2 R. I. 515 ; Stiles i'. Curtis, 4 Day, 328; Peck v. Smith, 1 Conn. 103. ' ii 9 Cash. 492; Knight v. Wilder, 2 Cush. 210; Newhall r. Ireson, 9 Gr.iy, 262; 13 Gray, 263; Beahan v. Staple- ton, 13 Gray, 427 ; Morrison v. Keen, 3 Maine, 474 ; Mayo v. Quimby, 3 Dane Abr. 4 ; Ipswich, petitioners, 13 Pick. 431. 1 23 Vt. 319 ; Morrow v. Willard, 30 Vt. 118. 350 THE LAW OF "WATERS. [PART I. Vermont, the land was described as bounded " easterly on a creek, and down said creek to a small butternut tree, which is the northeast corner of said lot," and the corner was held to be at the centre of the stream opposite the tree. § 198. The thread of a private stream is the line midway between the banks at the ordinary state of the water, without regard to the channel or the lowest and deepest part of the stream,! ajj(| jf ^i-^q la^fj upon one side is gradually and im- perceptibly wearing away, and soil is deposited upon the other, it is the thread of the stream for the time being, and not that which existed when the opposite owners acquired their titles, which forms the boundary between their estates.^ In those States -in which navigable fresh-water streams are held to be common property, like tide waters, no description in a private grant can carry the grantee's title beyond the line of low-water mark.^ And if such a grant is bounded by a great pond or lake, which is public property, it extends to that line.* § 199. If the conveyance does not bound the land by the water, but refers to the shore or the land imder the water as the boundary, it does not pass such shore or land.^ Thus, 1 Hopkins Academy v. Dickinson, Allen, 158, 167 ; Paine v. W^oods, 108 9 Cush. 552 ; Boscawen v. Canterbury, Mass. 160, 170 ; Wood u. Kelley, 30 23 N. H. 188 ; Plymouth ^. Holder- Maine, 47, 55 ; Fletcher v. Phelps, 28 ness, cited 28 N. H. 217. Vt. 257 ; Austin v. Rutland Railroii'l '- Niehaus v. Shepherd, 26 Ohio St. Co., 45 Vt. 215 ; Sloan v. Biemiller, ol 40 ; ante, § 160 ; Primm v. Walker, 38 Ohio St. 492 ; ante, §§ 79-85 ; State r. Mo. 94, 98; Mincke o. Skinner, 44 Gilmanton, 9 N. H. 461; Hathorn u. Mo. 92. Stinson, 10 Maine, 238; Dillingham 3 Martin o. Nance, 3 Head, 649 ; o. Smith, 3 Maine, 370. McManue v. Carmichael, 3 Iowa, 1 ; \ ^ Boston r. Richardson, 13 Allen, ante, c. 3 ; Wood v. Appal, 63 Penn. 154 ; 105 Mass. 351 ; Hatch v. Dwight, St. 210. 17 Mass. 289 ; 9 Gray, 524 ; Jones v. * Canal Commissioners v. People, Soulard, 24 How. 41 ; Bradford r. 5 Wend. 423, 447; Ledyard v. Ten Cressey, 45 Maine, 9 ; Dunlap b. Stet- Eyck, 30 Barb. 102 ; Champlain Rail- son, 4 Mason, 349 ; Nickerson v. Craw- road Co. i!. Valentine, 19 Barb. 484; ford, 16 Maine, 245 ; Clement y. Burns, Wheeler t-. Spinola, 54 N. Y. 377 ; 43 N. H. 616 ; Sanders v. McCracken, Waterman o. Johnson, 13 Pick. 261, Hardin (Ky.) 258. 265; West Roxbury ,.;. Stoddard, 7 CHAP. V.J EIPARIAN BIGHTS AND BOUKDAEIBS. 351 under the above ordinance of 1647, the flats do not pass, in the absence of an expressed or implied intention to the con- trary,^ if the granted premises are bounded by the " beach," ^ "shore," 3 "flats,"* by the high-water mark,'^ by a "cUff,"*' "marsh,"'' or on a "way," or "street," extending along the edge of the water.^ In Doane v. Willcutt,^ the land was bounded "by the sea or beach," and this description, refer- ring both to the water and the land, was held to convey the shore to low-water mark. § 200. Upon the same principle, a deed conveying land adjoining a private fresh-water stream may so refer to the bank or margin of the water as to make that a monument. Thus, in Hatch v. Dwight,!" in Massachusetts, the description was : Beginning at the end of a dam, running up the river two rods, and so round to the bank of the river ; and it was held that the bed of the stream did not pass. In Bradford v. Cressey,-'^ in Maine, where a line was to run to a creek, thence " on the west bank of said creek," the river was held to be 1 Hathaway v. Wilson, 123 Mass. 359 ; Doane v. Willcut, 5 Graj', 328 ; Chapman v. Edmands, 3 Allen, 512 ; Lufkin V. Haskell, 3 Pick. 355. 2 Mies u. Patch, 13 Gray, 254; Tappan t. Burnham, 8 Allen, 65 ; East Hampton v. Kirk, 68 N. Y. 459 ; 6 Hun, 257. ' Storer v. Freeman, 6 Mass. 435 ; Chapman v. Edmands, 3 Allen, 512 ; Montgomery v. Reed, 69 Maine, 510. * Storer ;,■. Freeman, 6 Mass. 439 ; Saltonstall u. Long Wharf, 7 Cush. 195; 9 Gray, 524. ^ Lapish V. Bangor Bank, 8 Maine, 85. « Baker v. Bates, 13 Pick. 256 ; East Hampton v. Kirk, 84 N. Y. 215. ' Rust V. Boston Mill Corporation, 6 Pick. 166. See Brumagim v. Brad- shaw, 39 Cal. 34. ' Codman v. Winslow, 10 Mass. 149; Charlestown v. Tufts, 111 Mass. 348 ; Cook V. Farrington, 10 Gray, 70; Commonwealth v. Alger, 7 Cush. 53, 77. A covenant is implied, in a deed of land bounded by a way or street, that such way or street exists, even when the land is below high-water mark. Parker v. Smith, 17 Mass. 412. ^ 5 Gray, 328 ; Storer v. Freeman, 6 Mass. 439 ; 9 Gray, 525 ; Boston v. Richardson, 105 Mas§. 351. " 17 Mass. 289; Boston v. Richard- son, 13 Allen, 155. II 45 Maine, 9 ; Bradley v. Rice, 13 Maine, 198; Hathorn v. Stinson, 10 Maine, 224; Lincoln f. AVilder, 29 Maine, 169; Stone c. Augusta, 46 Maine, 127 ; Brown v. Chadbourne, 31 Maine, 9; Erskine v. Moulton, 66 Maine, 270 ; Nickerson v. Crawford, 16 Maine, 245 ; Dunlap «. Stetson, 4 Mason, 340; Jackson t. Halson, 5 Cowen, 216; Hayes v. Bowman, 1 Rand. 417; Daniels u. Cheshire Rail- road Co., 20 N. H. 85. See Buck c. Squires, 22 Vt. 484 ; Cole v. Haynes, Id. 589 ; Sanders v. McCracken, Har- din, 258. 352 THE LAW OF WATERS. [PAET I. excluded. So, in Child v. Starr,^ in New York, it was held that a boundary line running " eastwardly to the Genessee River, thence northwardly along the shore of said river," conveyed no part of the bed of the stream beyond low-water mark, the controlling words being " along the shore of said river." In Lamb «'• Rickets,^ in Ohio, the deed called for a corner on the bank of a stream, thence south, thence east, thence north to the bank of the stream, " and with the course of the bank to the place of beginning," and the low-water mark of the stream was held to be the boundary. In Rock- well V. Baldwin,^ in Illinois, boundaries " to the west side of Cedar Creek, thence down the west line of said creek to the north line of said quarter section," were held to be limited to the bank of the creek. In Cook v. McClure,'^ in New York> it was held that a line commencing at " a stake near the high-water mark" of an artificial pond, and running thence " along the high-water mark of said pond to the upper end of said pond," was a fixed boundary, and that the grantee could not claim accretions. If the deed contains a double description "along the river" and "a marked line," the river, being a natural boundary, will control the marked line.^ 1 4 Hill, 369; 5 Denio, 599 (over- the several meanderings thereof," the ruling s. c. 20 Wend. 149) ; Halsey v. low-water mark was treated as the McCorraick, 13 N. Y. 296 ; Yates i\ boundary. See this case explained in Van De Bogert, 56 N. Y. 526 ; Sizer Benner v. Platter, 6 Ohio, 504, 508. )'. Devereux, 16 Barb, 160 ; Seneca In Benner v. Platter, it was held that Kation v. Knight, 23 N. Y. 498 ; Bis- a call in a survey for an unnavigable soil V. New York Central Eailroad stream is a call for the main branch Co., 23 N. Y. 64; Kingslahd u. Chit- of such stream, and the boundary is tenden, 6 Lans. 15 ; Varick v. Smith, the middle of the stream. See, also, 9 Paige, 547 ; Ex parte Jennings, 6 as to boundaries upon streams having Cowen, 536, and note ; Kingman c. different branches or forks, Dod- Sparrow, 12 Barb. 201 ; Hammond v. dridge r. Thompson, 9 Wheat. 469 ; McLachlan, 1 Sand. (N. Y.) 323 ; Graves r. Fisher, 5 Maine, 69 ; Carter Paul V. Carver, 26 Penn. St. 203; Cox ... Oldham, Hughes (Ky.) 345; John- n. Treedley, 33 Penn. St. 12!); Bishop son r. Brown, Sneed (Ky.) 49. ,.. Seeley, 18 Conn. 393. s 53 111. 19. See, also. Murphy v. 2 11 Ohio, 311, 325; Hopkins v. Copeland, 51 Iowa, 515; Grand Eapids Kent, 9 Ohio, 13. In the earlier case Railroad Co. v. Heisel, 38 Mich. 62, of McCulloch V. Aten, 2 Ohio, 309, 72; Smith v. Ford, 48 Wis. 117. 425, where the call was for " a white * 58 N. Y. 437. oak on the south-east bank of G. 5 Lynch v. Allen, 4 Dev. & Bat. 62. creek, thence down said creek; with CHAP, v.] EIPABIAN KIGHTS AJSTD BOUNDARIES. 353 § 201. In Bowman v. Farmer,^ in New Hampshire, the deed described one line as " beginning at the month of Black Brook, on the south side of the brook, and running from thence up said brook due west until it strikes the common land," and it was held that the brook, which was very crooked, was not designated as a boundary with Sufficient certainty to control the point of the compass stated to be due west. In Thinuas v. Godfrey,^ in Maryland, a patent calling for the main falls of a river, and thence " with the main falls by a direct line to the first bound tree," was held not to follow the meanders of the stream. § 202. By the common law, parishes or towns upon tide waters extend, like private estates, only to the high-water mark, unless proved by grant, prescription, or usage to include the shore.® When separated by a fresh-water river, its thread is prima facie the boundary between them,* and the same rules of construction apply as in the case of a grant from one individual to another.^ Between nations, the thread of a boundary river, whether tidal or fresh, is pre- sumably the line of separation, although the use of the whole river for the purpose of navigation, trade, and passage may be common to both nations.^ But when one State, being 1 8 N. H. 402. See, also, Mas- 105 Mass. -358 ; Pratt v. State, 5 Conn, sengill 0. Boyles, 4 Humph. 205 ; 11 390 ; Hayden v. Noyes, Id. .395. Humph. 112. The phrase " up the * Rex v. Landulph, 1 M. & R. 393 ; brook," if not controlled by other State /... Gilmanton, 14 N. H. 4G7; terms in the deed, calls for a line fol- Boscawen v. Canterbury, 23 N. H. lowing the windings of the stream. 188 ; State u. Canterbury, 28 S. H. Jackson v. Louw, 12 .Johns. 252 ; 195 ; Crosby v. Hanover, 36 N. H. Budd j;. Brooke, 3 Gill, 198. 404; Plymouth ,•. Holderness, cited 2 Thomas v. Godfrey, 3 Gill & J. 28 N. H. 217; Ipswich, petitioners, 13 142 ; Smallwood v. Hatton, 4 Md. Ch. Pick. 431 ; Cold Spring Iron Works 95, 99; Hammond .-. Ridgely, 5 II. & v. Tolland, 9 Gush. 492; Boston v. J. 245. In Corsey v. Hammond, 1 II. Richardson, 13 Allen, 146, 157. See & J. 190, it was left to the jury to de- Thomaston (•. St. George, 17 JIairee, cide as to the construction of the deed. 117. 'Hale, De Jure Maris, c. 4; '' Granger ;;. A very, 64 Maine, 292; Hargrave's Law Tracts, 27 ; Reg. v. Perkins v. Oxford, 66 Maine, 545. Musson, 8 El. & Bk. 900 ; Bridgewater " Ante, § 64 ; The Schooner Fame, Trustees v. Bootle, L.-R. 2 Q. B. 4 ; 7 3 Mason, 147; Wheat. Elements Int. B. & S. .348; Boston v. Richardson, Law, 346; Wheat. Law of Nations, 354 THE LAW OF WATERS. [PAET 1. the owner of the territory upon both sides of a river, grants to another State a portion of it bounded by the river, it retains the soil of the river bed, and the grantee takes only to low-water niark.^ This depends, however, upon considera- tions derived from the law of nations, and not from the rules of municipal law governing common assurances of estates.^ § 203. The proprietors of lands upon a natural fresh-water lake or pond, which is public by reason of its size, and the waters of which rise and fall at different seasons of the year, liold to low-water mark, and grants bounded by such waters extend 4:0 that line.^ The great lakes of the North appear to be less subject than streams and smaller lakes to an appreciable rise and fall of the water produced bj- a wet or dry season or by spring freshets.* In the case of Seaman v. Smith,^ in Illinois, it was held that the boundary of land 577. See Missouri v. Iowa, 7 How. 600; 10 How. 1. The eastern bound- ary of Iowa, declared by statute lo be " the middle of the main cliannel of tl>e Mississippi Hiver," and the west- ern boundary of Illinois, declared by another statute to be " the middle of the Mississippi Kiver," arc the Jilum aijnae, the middle of the main stream of the river and not the middle of the deep water used by vessels, liunleith Bridge Co. u. Dubuque County, 55 Iowa, 558. 1 Handly v. Anthony, 5 Wheat. S74 ; Howard r. Ingersoll, 13 How. .^81 ; Alabama v. Georgia, 2.3 How. 5();5 ; Commonwealth v. Garner, 3 Gratt. 055. '' Boston c. Kicliardson, 13 Allen, 146, 157. 3 Canal Commissioners u. People, 5 Wend. 423, 446 : Wheeler v. Spinola, 54 N. Y. 377; Champlain Railroad Co. V. Valentine, 19 Barb. 484; Fletcher v. Phelps, 28 Vt. 257 ; Jake- way o. Barrett, 38 Vt. 316, 323; Austin V. Rutland Railroad Co., 45 Vt. 215; Mariner t-. Sehulte, 13 Wis. 092 ; Wood i'. Kelly, 30 Maine, 47, 5.'') ; Waterman ?■. Johnson, 13 Pick. 201, 265, explained in Paine v. Woods, 108 Mass. 160, 170; West Roxbury a. Stoddard, 7 Allen, 158, 167 ; Fay v. Salem Aqueduct Co., Ill Mass. 27, 28 ; Mill River Woollen Manuf. Co. v. Smith, 33 Conn. 463; State o. Milk, Chicago Legal News (1882), p. 262. * See Seaman v. Smith, 24 111. 521, 523. In Rice ^. Ruddiman, 10 Mich. 125, 138, Christiancy, J., said : "The rise and fall of Lake Michigan, and other great lakes of the same chain, is not a tide occurring at regular in- tervals, like that of the ocean, nor does it arise from the same cause. And though it is probable their waters may be slightly affected by lunar at- traction, and a very minute tide may perhaps be detected by a long and careful course of observation with accurate instruments, yet the court must judicially notice that it must be too slight to be recognized by ordi- nary observation, and to serve any practical purpose in determining the extent of riparian ownership. These facts were judicially noticed in Lor- man r. Benson, 8 Mich. 18." "i 24 111. 521. See, also, Oclaphine r. Chicago Railway Co., 42 AVis. 214, CHAP, v.] RIPAUIAN EIGHTS AJSTD BOUNDAEIES. 355 described in a deed whicli called for Lake Micliigaii as a line was the line of the water as it usually stands when vmaffected by stor'ms or other disturbing causes. If an artificial pond, like a mill-pond, is created by exjjanding a flowing stream by a dam, the title of the riparian owner extends prima facie to the centre of the pond as it did pre- viously in the case of the stream, unless the pond has been so long kept up as to become permanent and to have acquired another well-defined boundary.^ And if what was originally Biemiller, 34 Ohio St. 269; 170; 261; 225; Sloan 492. 1 Phinney v. Watts, 9 Gray, Paine v. Woods, 108 Mass. 160, Waterman v. Johnson, 13 Pick. Wheeler ... Spinola, 54 N. Y. ,377; Kobinson v. White, 42 Maine, 209; Hathorn v. Stinson, 10 Maine, 224, 238; 12 Maine, 183; Bradley v. Rice, 13 Maine, 198, 201 ; Wood v. Kelley, 30 Maine, 47 ; Lowell i,. Robinson, 16 Maine, 357, 361 ; Mansur v. Blake, 62 Maine, 38 ; Primm v. Walker, 38 Mo. 94, 98. In Paine v. Woods, 108 Mass. 160, 170, Gray, J., states and inter- prets the earlier Massachusetts case of Waterman u. Johnson, 13 Pick. 261, as follows : " Waterman (,. John- son, 13 Pick. 261, was the case of a complaint under the mill act for flow- ing land described in the deed under which the complainant claimed title as bounded by ' Jones Eiyer Pond,' a large natural pond, which before the date of the deed had at times been raised to a certain line by means of a dam of permanent materials, adapted in its ordinary use to raise the water to that line. The judge at the trial ruled that the high-water mark of the pond as thus extended would prima facie be considered as the boundary of the complainant's land ; but ad- mitted parol evidence to show, and the jury found, that at the time of the conveyance a certain natural bank or barrier, which was not thus overflowed, and which the natural pond had never overflowed, was intended and agreed upon by the parties as the marginal line of the pond referred to in the deed. The full court, in the judg- ment delivered by Chief Justice Shaw, after stating the general rules of law, that, when the description of a boundary in a deed had a definite legal meaning, parol evidence was in- admissible to control it ; that, by legal operation, a, boundary by the sea or salt water gave a title in the soil to low-water mark ; a boundary upon » river not navigable, to the thread of the stream; upon a large naturat pond, having a definite low-water line,, to that line; and upon .an artificial pond raised by a dam swelling a stream^ over its banks, to the thread of the stream, unless the pond had been so ■ long kept up as to have become per- manent and to have acquired another ■ well-defined boundary; expressed an- opinion that under the peculiar circum- stances of the case, the parol evidence was rightly admitted, and held that there was no ground in point of law, or upon the evidence in the case, upon which the respondents could claim that the grant did not extend, in the direction of the pond, as far as the barrier. Upon that case, it is to be observed ; first, the ruling at the trial, that the boundary was prima facie to be considered as the high- water mark of the pond; as artificially raised, was inconsistent with the opinion of the full court; second, tlic only point necessarily involved in the decision was, that the.grant was not ex- 356 THE LAW OF WATERS. [PAKT I. a natural pond has been for a long time enlarged by artificial means or diminished by the deepening of its outlet, grants of land bounded by the pond extend to the margin of the water as it stands at the time of the conveyance.^ If the margin varies at different seasons of the year, the grant includes the land which is uncovered at low-water ; ^ and if the pond is artificiallj' raised only in winter, aud retains its natural level in summer, the low-water mark in summer is the boundary, though the deed may have been executed in the winter.^ If land is described as bounded "along the high-water mark of the pond," the boundary is fixed and does not follow the changes in the high-water mark.* A change in the water of a lake or pond from fresh to salt, caused by cutting a channel between it and an arm of the sea, and making it subject to the daily rise and fall of the tide, does not affect the boundaries of the riparian owners, who continue to hold to the former low-water mark, not- withstanding the rule which makes the high-water mark the ■boundary of lands upon tide waters.^ It should also be tended too far by carrying its effect to Bowers, 7 Gray, 21 ; Boston u. Eich- 'the natural barrier ; third, that de- ardson, 13 Allen, 146 ; Stark v. Coffin, .oision was equally sustained, whether 105 Mass. 328." ithe parol evidence was admitted, or i Bradley v. Rice, 18 Maine, 198; ?the terms of the grant by their own Wood v. Kelly, 30 Maine, 47, 55; ' force extended so far ; fourth, the ad- Robinson v. White, 42 Maine, 209 ; ■ mission of the parol evidence was Nelson v. Butterfield, 21 Maine, 220, based upon the theory that the bound- 229. See the last case upon the ques- ary on the pond, as applied to the tion when an arm of a pond is en- subject matter, was governed by no closed within the lines of land con- settled, rule of legal construction, but veyed, so as to be included in the created a latent ambiguity ; and the grant. A lease for 500 years of a fac- rules for the construction of similar tory lot and dam lot, "together with all grants were not then as fully estab- the land which may be flowed by rais- lished in this Commonwealth as they ing said dam " to a certain height, have since been by the later decisions conveys all the land under the pond, already referred to. For instance, in and passes the pond of water and the Tyler v. Hammond, 11 Pick. 193, in fish therein, as incidents of the princi- the previous year, the court had held pal grant. Smith v. Miller, 5 Mason, that a boundary by a highway gen- 191. erally extended only to the margin of 2 Wood v. Kelley, 30 Maine, 47. the way — a doctrine wholly repudi- s Paine v. Woods, 108 Mass. 160. . ated by the modern decisions. New- » Cook v. McClure, 58 N. Y. 437. I hall V. Ireson, 8 Cush. 595 ; Phillips u. •- Wheeler v. Spinola, 54 N. T. 377. CHAP, v.] EIPAEIAN EIGHTS AND BOUNDARIES. 357 observed in this comiection that no title is acquired to the bed of a public or a private lake, by the existence of an easement of maintaining a dam for twenty years at its out- let, and flooding back the water over the bed of the lake and the adjacent lands. ^ Such overflowing does not con- stitute an ouster.^ 1 Perrine v Bergen, 2 Green (N. J.) a lake or pond for tvyenty years, and 355 ; Cocheco Co. c . Strafford, 51 N. thereby held back the water, is not H. 455, 461 ; Green «. Harman, 4 Dev. liable fo be taxed for the bed oL the (N. C.) 158 • Everett v. Dockery, 7 lake, or for the lands so flowed on its Jones (N. C. ) 390. The person who borders. 51 N. H. 455. has maintained a dam at the outlet of - ibid. Paet II. PEIYATE WATERS. CHAPTER VI. EIGHTS OP KIPARIAN PROPEIETOES IN THE NATXJEAL FLOW AND CONDITION OF THE STEEAM. SECTION. 204. Rights of different proprietors upon a fresh-water stream to the flow of the water. 205. Right to the ordinary and extraordinary use of the water. 206-209. The right of each proprietor limited by a like right in the other proprietors to use the stream. 210. Evidence and effect of judgments. 211-211 b. Measure of damages for flowage. 211 c. riowing caused by combination of natural and artificial causes. 212. Flowing when a public nuisance. 213-215. Diversion. 216. Diversion caused by alterations in the surface of one's own land. 217. Diversion for irrigation. 218. Obstruction of the natural current. 219-222. Pollution. 223. Remedies for pollution. 234. Eights of non-riparian proprietors. 225. Right of adjoining land-owners in artificial watercourses. CHAP. VI.J RIGHTS OF RIPARIAN PROPRIETORS. 359 § 204. Riparian proprietors upon both navigable and nn- navigable streams are entitled, in the absence of grant, license, or prescription limiting their rights, to have the stream ■which washes their lands flow as it is wont by nature, without material diminution or alteration.^ Each proprietor may, therefore, insist that the stream shall flow to his land in the usual quantity, at its natural place and height, and that it shall flow off his land to his neighbor below in its accustomed place and at its usual level.^ The proprietors have no property in the flowing water, which is indivisible and not the subject of riparian ownership,^ but may use it 1 Shury v. Piggot, 3 Bulst. 3.S9 ; Poph. 166 ; Brown v. Best, 1 "Wilson, 174; Palmer ti. I-Ieblethwaite, Skinner, 65, 175; Rutland v. Bowler, Palmer, 290; Miner v. Gilmour, 12 Moo. P. C. 156 ; Wright v. Howard, 1 Sim. & Sta. 190; Dicldnson v. Grand Junction Canal Co., 7 Excli. 282 ; Rex v. Traf- ford, -1 B. & Ad. 259; Saunders ,-. Newman, 1 B. & Aid. 258; Y^ood ,. Waud, 3 Exch. 748 ; Embrcy v. Owen, 6 Excli. 353; Sampson v. Iloddinott, 1 C. B. N. s. 590 ; Lyon v. Fishmon- gers' Co., 1 App. Cas. 602; Cliase- more v. Ricliards, 5 11. & N. 089 ; 2 II. & N. 181 ; 7 H. L, Cas. 349; Crossloy l: Lightowler, L. R. 3 Eq. 206 ; Frank- um V. Falmouth, 6 C. & P. 5 ; Raws- tron V. Taylor, 11 Exch. 382 ; "Williams V. Morland, 2 B. & C. 510; Bealey ;-. Shaw, 6 East, 203 ; Mason v. Hill, 3 B. & Ad. 304; 5 B. & Ad. 1; Dun- combe V. Randall, Hctlcy, 32 ; At- chison o. Peterson, 20 "Wall. 507; Davis V. Getchell, 50 Maine, 602; Pillsbury v. Moore, 44 Maine, 154 ; Johns V. Stevens, 3 Vt. 308 ; Anthony V. Lapham, 5 Pick. 175; Gary r. Daniels, 8 Met. 466 ; Pratt v. Lamson, 2 Allen, 275; Tourtelot v. Phelps, 4 Gray, 370 ; "Whitney v. Eames, 11 Met. 617 ; Merrificld v. AVorcestcr, 110 Mass. 219; Cowles v. Kidder, 24 N. II. 365; Agawam Canal Co. i-. Edwards, 30 Conn. 476 ; Buddington v. Bradley, 10 Conn. 213 ; Gillett i-. Johnson, 30 Conn. 180; King v. Tiffany, 9 Conn. 162; Hutchinson v. Coleman, 5 Hal. (N. J.) 74; Bowman i'. "Wathen, 2 McLean, 370; Billing v. Murry, Ind. 324; Mitohel V. Parks, 26 Ind. 354 ; Rhodes V. "Whitehead, 27 Texas, 304 ; Shreve V. Voorhees, 2 Green Ch. 25 ; Hill v. Newman, 5 Cal. 445; McDonald i-. Askew, 29 Cal. 207; Hendricks v. Johnston, 6 Porter 472; Moffett r. Brewer, 1 G. Greene, 348 ; Overton i . Sawyer, 1 Jones, 308 ; Haynes v. Gratt, 1 J.IcCord, 543 ; Omelvany c. Jaggers, 2 Hill (S. C) 034; Martin c. Jett, 12 La. 501 ; Davis v. Fuller, 12 Vt. 178 ; Johns o. Stevens, 3 Vt. 308; Adam.s V. Barney, 25 Vt. 225 ; Martin v. Bigu- low, 2 Aik. (Vt.) 24 ; Howe Scale Co. V. Terry, 47 Vt. 100. And see cases cited post, § 214. 2 Ibid. ; Tillotson v. Smith, 82 N. H. 04. 3 Ibid. ; Acton v. Blundcll, 12 M. & W. 324 ; Owen v. Field, 102 Mass. 104 : Baltimore v. Appold, 42 Md. 442; Pixley r. Clark, 35 K. Y. 524 ; Pol- litt V. Long, 56 N. y. 200 ; 58 Barb. 20 ; Corning v. Troy Iron Factory, 40 N. Y. 101; 30 Barb. 311; 34 Barb. 485 ; How. Pr. 89 ; Clinton v. Myers, 40 IT. Y. 511; Townsend c: McDon- ald, 2 Kern. 391 ; Arnold v. Foot, 12 "Wend. 330; Lancoy v. Clifford, 54 I'lrinc, <1G7, 'f^l; Tlimroe v. Gates, 48 360 THE LAW OF WATEKS. [part II. for any purpose to which it can be applied beneficially and without material injury to others' rights,^ or for which the tall of the stream m&j make it available as a motive power.^ They may insist that their right to thus use the water shall be regarded -and protected as property.^ The right to the use of the water in its natural flow is not a mere easement or appurtenance, but is inseparably annexed to the soil itself.* It does not depend upon user, or presumed grant from long acquiescence in the part of other riparian propri- etors above and below, but exists jure naturae as parcel of the land.*^ It is not suspended or destroyed by mere non-user,'- Maine, 403, 460; 42 Maine, 178; Taylor v. Fickas, 04 Ind. 107 ; Plum- leigli V. Dawson, 1 Oilman, 544 ; Bliss ». Kennedy, 43 111. 07 ; Druley v. Adam, 102 III. 177; 2 Black. Cora. 18 ; Callis on Sewers, 268; Canal Trus- tees !■. ILavens, 11 111. 554; Cooper V. Williams, 4 Ohio, 280; 5 Ohio, 391; Frazier v. Brown, 12 Ohio St. 290 ; Tyler i;. Wilkinson, 4 Mason, 397 ; McCord i>. High, 24 Iowa, 330 ; Meyers I.. St. Louis, 8 Mo. App. 203; Merrill V. Parker, Co.xc (X. J.) 400 ; Mayor v. Commissioners, 7 Penn. St. 348; Hart r. Evans, 8 Penn. St. 13; McCoy t. Danley, 20 Penn. St. 85 ; Wheatlcy v. Christman, 24 Penn. St. 298; Beidle- man v. Foulk, 5 Watts. 308 ; Randall r. Silvcrthorn, 4 Penn. St. 173; Eddy o. Simpson, 3 Cal. 249 ; McDonald ;•. Askew, 29 Cal. 200 ; Dalton v. Bowker, 8 Nov. 190 ; Kauffman v. Griesmer, 26 Penn. St. 407 ; Martin v. Kiddle, 27 Penn. St. 415; Howell v. McCoy, 3 Rawle, 250 ; Hoy v. Sterrett, 2 Watts, 327. 1 Ibid. " Ibid. ; Kidd ,-. Laird, 15 Cal. 101. " Ibid. ; Nuttall ?■. Bracewell, L. li. 2 r.x. 1. ; Iladley ;•. Hadlcy Manuf . Co.; 4 Gray, 140; Gould i>. Boston Duck Co., 13 Gray, 142, 450; Ashley r. Pease, 18 Pick. 268 ; Blanchard v. Baker, G Maine, 253 ; Keeney Manuf. Co. !•. Union Manuf. Co., 39 Conn. 582 ; McCr.lnont v. Wliitaker, 3 Rawle, 84 ; Brown v. Bush, 45 Penn. St. 01 ; Beissell v. Scholl, 4 Dallas, 211. Water-power, though an incident to property in the land, is itself the sub- ject of property. Tillotson v. Smith, 32 N. II. 94 ; Brown v. Bush, 45 Penn. St. 01 ; Eddy v. Simpson, 3 Cal. 249 ; Kidd V. Laird, 15 Cal. 161. '' Dickinson l-. Grand Junction Canal Co., 7 Exch. 299; Wright ,. Howard, 1 Sim. & Stu. 190 ; Wood , . Wand, 3 Exch. 748 ; Stokoe v. Singers, 8 El. & Bk. 36 ; Johnson v. Jordan, 2 Met. 239; Crittenden v. Alger, 11 Met. 281 ; Wadsworth v. Tillotson, 15 Conn. 366, 373 ; Marlborough Manuf. Co. !•. Smith, 2 Conn. 590 ; Parker ■■. Griswold, 17 Conn. 299 ; Harding v. Stamford Water Co., 41 Conn. 87, 52 ; Gardner v. Newburgh, 2 Johns. Ch. 100; Holsman u. Boiling Spring Co., 1 McCart. 343; Wheatley i,-. Baugli, 25 Penn. St. 528; Evans a. Merre- weather, 3 Scam. 402; Union Mill Co. v. Ferris, 2 Sawyer, 170; Shani- leffer ;-. Peerless Mill Co., 18 Kansas, 24 ; AVilliamson v. Lock's Creek Canal Co., 78 N. C. 156 ; 76 X. C. 478 ; Pugh r. Wheeler, 2 Dev. & Bat. 50 ; Hill v. Newman, 5 Cal. 445. 5 Ibid. " Sampson (,. Hoddinott, 1 C. B. N. s. 590 ; Johnson v. Jordan, 2 Met. 239; Pillsbury v. Moore, 44 Maine, 154 ; Townsend v. McDonald, 12 N. Y. 381, 391 ; 14 Barb. 400. CHAP. VI.j EIGHTS OF RIPAEIAN PnOPRIETOES. 361 although it may be extinguished by the long-continued, ad- verse enjoyment of others. ^ It is not affected by the use to which the water has been or may be applied.^ Nor is it impaired by unity of possession and title in such land with the land above or below it.^ It is a natural right which arises immediately with every new division or sever- ance of the ownership.* " If," says Shaw, C. J.,^ " tlie owner of a large tract, through which a watercourse passes, should sell parcels above and below his own land retained, each grantee would take his parcel Avith a full right, without special words, to the use of the water flowing on his own land, as parcel, and subject to the right of all other riparian pro- prietors to have the water flow to and from such parcel. There is no occasion, therefore, for the grantor, in such case, to convey the right of water to the grantee, or reserve the right of Avater to himself, in express Avords; because, being inseparable from the land, and parcel of the estate, such right passes Avith that Avhich is conveyed, and remains with that which is retained." § 205. Each riparian proprietor has a right to the ordinary use of the Avater floAving past his land, for the purpose of supplying his natural wants, including the use of the water for his domestic purposes and for his stock.^ For these pur- poses, by the Aveight of authority, he may, if necessary, con- 1 Ibid. ; post, c. 11. Sawyer, 176 ; Union Mill Co. v. Dang- 2 Yo.n Sickle v. Haynes, 7 Wev. 249. berg, Id. 450 ; Slack < . Marsh, 23 ^ Ibid. ; Hazard v. Robinson, 3 Ma- Pitts. L. J. 29 ; Stein u. Burden, 29 son, 272. Ala. 127; 24 Ala. 130; Springfield v. * Cary v. Daniels, 8 Met. 466, 481 ; Harris, 4 Allen, 494 ; Anthony v. Lap- Stockport AVater Works Co. v. Potter, ham, 5 Pick. 175, 177 ; Philadelphia 3 H. & C. 320; Hickok u. Parmelee, v. Collins, 68 Penn. St. 106; Baltimore 21 Conn. 60. v. Appold, 42 Md. 456 ; Evans v. ^ Cary v. Daniels, 8 Met. 466, 480. Merreweather, 3 Scam. 492 ; AVads- ° Miner zi. Gilmour, 12 Moo. P. C. worth v. Tillotson, 15 Conn. 366; 131, 150 ; Norbury v. Kitchin, 3 F. & Arnold v. Foot, 12 AVend. 330 ; Crooker P. 292; 9 Jur. n. s. 132; AVood v. v. Bragg, 10 Wend. 260; Gilm. 544; Waud, 3 Exch. 748; 13 Jur. 472; Fcrrea v. Knipe, 28 Cal. 343; Hazel- Nuttall V. Bracewell, L. R. 2 Exch. 1 ; tine v. Case, 40 Wis. 391 ; Rhodes u. Swindon Water Co. v. Wilts Canal Whitehead, 27 Texas, 304; Tolle c. Co., L, R. 7 H. L. 697; L. R. 9 Ch. Carreth, 31 Texas, 362; Fleming „. 451 ; Union Mill Co. v. Ferris, 2 Davis, 31 Texas, 173. 362 THE LAW OF WATERS. [PAKT 11. sume all the water of the stream. ^ He has also the right to use it for any other puipose, as for irrigation or manufac- tures ; ^ but this right to the extraordinary use of the water is inferior to the right to its ordinary use ; and if the water of the stream is barely sufficient to answer the natural wants of the different proprietors, none of them can use the water for such extraordinary purposes as irrigation or manufactures.^ It was formerly held that the diversion of the water for the purpose of irrigating the land of a riparian proprietor is a natural want, and that an action could not be maintained by a lower proprietor, who is thereby injured for want of irriga- tion;* but, according to more recent decisions, a diversion of water for this purpose is an extraordinary and not an ordinary use, and can only be exercised reasonably and with a proper regard to the right of the other proprietors to apply the water to the same or other purposes.^ The term "do- mestic purposes " extends to culinary and household purposes, and to the cleansing and washing, feeding and supplying the ordinary quantity of cattle.^ It would appear to extend also to brewing,'' and the washing of carriages.^ But railway com- panies, as riparian owners, are not entitled to take water for their engines so as to affect injuriously the navigation of the stream or the rights of other riparian owners, such use not being domestic ; and the fact that they do not require the water for domestic use does not entitle them to it for other purposes of a different character.^ Even when the water is ■■ Ibid. According to some cases Land Titles, 273; Perkins v. Dow, 1 the use of the water for culinary pur- Root, 535 ; Hayward v. Mason, Id. poses and for cattle must not deprive 537 ; Blancliard t. Balier, 8 M^ne, the otlier proprietors of an equal 266. enjoyment of the same right. Chat- "^ Post, § 217 ; Baker i'. Brown, 55 field V. Wilson, 31 Vt. 358 ; 28 Vt. 49; Texas, 377. Blanchard v. Baker, 8 Maine, 253, « Attorney General u. Great East- 266 ; JIcElroy v. Goble, 6 Ohio St. ern Railway, 23 L. T. n. s. 344 ; Union 187 ; Hough v. Doylestown, 4 Brews. Mill Co. v. Ferris, 2 Sawyer, 176. (Pa.) 342. 7 -Wilts Canal i.. Swindon Water 2 Post, § 206. Co., L. 9 Ch. 457 ; Coulson & Forbes ^ Union Mill Co. v. Ferris, 2 Saw- on Waters, 116. yer, 176 ; Crandall u. Woods, 8 Cal. 8 Busby v. Chesterfield Water Co., 136, 141 ; Ellis v. Tone, 58 Cal. 289. El. Bk. & El. 176; Coulson & Forbes ' * Weston 0. Alden, 8 Mass. 136 ; on Waters, 116. Bent u. Wheeler, cited in Sullivan's ' Attorney General v. Great Easl^ CHAP. VI.] KIGHTS OF RIPARIAN PROPRIETORS. , 363 to be used for strictly domestic purposes, it is not lawful for one proprietor, wishing so to iise it, to so erect dams across the stream that the water, being spread out, is in great measure lost- by absorption and evaporation, to the injury of a lower proprietor.^ In Roberts v. Richards,^ a small stream flowed from a spring on A's land to his house, by an artificial channel of immemorial antiquity, through land of B. A had had an almost exclusive use of the water for seventy j^ears, when B intercepted and appropriated nearly all the water of the stream. It was held that B was a ripa- rian proprietor, and as such was entitled to thus take the water for ordinary, but not for extraordinary, purposes. § 206. The right to such extraordinary use of flowing water is common to all the riparian proprietors.^ It is not an absolute and'exclusive right to all the water flowing past their lands, but it is a right to the flow and enjoyment of the stream, subject to a similar right in all the proprietors, their privileges being in all respects equal.* If the reasonable use by one man of this common property does no actual and perceptible damage to the right of the other proprietors to use it, no action lies; but an unreasonable use of it, whereby others are deprived in whole or in part of the com- mon benefit, is an actionable injury,® even though there is em Railway Co., 23 L. T. n. s. 344 ; ?,•. AVilkinson, 4 Mason, 400 ; ante, § Sandwich v. Great Northern Railway, 204. 10 Ch. T>. 707 ; Elliott v. Fitchburg ^ Ibid. ; Gould v. Boston Duck Co., Railroad Co., 10 Cush. 195; Garwood 13 Gray, 442, 450; Ilaskins l,. Uas- II. New York Central Railroad Co., 83 kins, 9 Gray, 390 ; Merrifleld u. Wor- N. Y. 400. cester, 110 Mass. 219; Prentice v. 1 Ferrea v. Knipe, 28 Cal. 340. Geigcr, 74 N. Y. 341 ; Holden v. Lake '' 50 L. J. Ch. 297 ; 44 L. T. 271. Co., 53 N. H. 552 ; Union Mill Co. v. ^ Elliott V. Fitchburg Railroad Co., Dangberg, 2 Sawyer, 450 ; Duraont !•. 10 Cush. 191, 196 ; Merrifleld v. Lorn- Kellogg. 29 Mich. 420 ; Patten v. Mar- bard, 13 Allen, 16 ; Middleton u. Flat den, 14 Wis. 473 ; Rudd v. Williams, River Booming Co., 27 Mich. 533 ; 43 111. 385 ; Rhodes v. Whitehead, 27 Van Sickle v. Haynes, 7 Nev. 249; Texas, 304; Batavia Manuf. Co. v. Coffman v. Robbins, 8 Oregon, 278 ; Newton Wagon Co., 91 111. 230, 245 ; Miner v. Gilmour, 12 Moo. P. C. 131 ; Hendricks i'. Johnson, 6 Porter, 472. Chasemore v. Richards, 7 H. L. Cas. ^ Ibid.; Embrey v. Owen, 6 Exch. 349; 5H. &N. 982; 2 H. & N. 189; 353; Elliottw. Fitchburg Railroad Co., Embrey u. Owen, 6 Exch. 353; Tyler 10 Cush. 196; Davis o. Getchell, 50 3G4 THE LAYf OF "WATERS. [PAET II. no present actual damage/ and without regard to the ques- tion whether the act which causes the injury is wilful or malicious,^ or whether notice was given that the rights of ot^iers are infringed.^ Tlieir interest being common, differ- ent owners in severalty of premises along the stream may join as plaintiffs in a suit in equity to restrain such un- authorized use of the stream as affects them injuriously and in the same way;* and the fact that the sole owner of one mill is also tenant in common of another does not authorize him to so use the water coming to his own mill as to injuriously affect the mill owned in common.^ In view of the varying rights of the different riparian owners on the same stream, injunctions should not be granted to regulate such rights, except in clear cases of intentional violation. A decree by which an upper proprietor is restrained from per- mitting the water to flow over his dam in greater quantities than is needed to run his machinery, and is required to allow it to flow into another mill-pond, according to the natural flow of the stream, discriminates in favor of the lower pro- prietor and is erroneous.^ Riparian owners upon navigable waters cannot lawfully use the water so as to impair the public rights of navigation and fishery ; and, by the common law, the right to have fish pass up private rivers from the sea is a common right in all the proprietors upon the stream.'' In general, as between themselves, the privileges of liparian proprietors include : first, Rights telating to the flow of the water; second, Rights relating to the taking or diver- sion of the water ; third. Rights relating to the purity of the water. Maine, 002 ; Randall v. Silverthorn, 4 Twiss v. Baldwin, 9 Conn. 291 ; Law- Penn. St. 173; authorities ante, § 204, son v. Price, 45 Md. 123; Timm v. note 1 ; Farrell ;,. Richards, 30 N. J, Eq. 511 ; Pliinizy v. Augusta, 47 Ga. 260 ; Robertson v. Miller, 40 Conn. 40. 1 Elliott i: Fitcliburg Railroad Co.. 10 Cush. 196; Amoskeag Manuf. Co V. Goodale, 40 N. H. 53 ; Adams <,• Barney, 25 Vt. 225 ; post, § 214. 2 Honsee v. Hammond, 39 Barb. 89 Heywood u. Miner, 102 Mass. 466; Bear, 29 Wis. 254; post, § 290. ^ Rood c. Johnson, 20 Vt. 64. * Emery ;•. Erskine, 6 Barb. 9 ; Reid V. Gifford, Hopk. Ch. 410 ; Cadi- gan V. Brown, 120 Mass. 493 ; Ballou V. Hopkinson, 4 Gray, 324 ; ante, § 121. 6 May v. Parker, 12 Pick. 34. 6 Hoxsie V. Hoxsie, 38 Mich. 77. ' Ante, § 187. CHAP. VI.] EIGHTS OP EIPARIAN PROPEIETOES. 365 § 207. " It is apparent," says Merrick, J.,i " that the rights of riparian proprietors on opposite banks of the stream do not depend upon, and are not affected by, the locality of the channel or current through or along which the larger, or even the chief and principal, part of the water flows. Wherever this current may be, the central line in the bed of the stream, parallel to and equally distant from each shore, is the boundary of their lands. And as their respec- tive rights to the use of the water do not result from this line of division, but arise by mere operation of law, as inci- dent to their ownership of the bank, the formation of the bed of the stream, its varying depth, and the consequent course and direction of the current must be circumstances wholly immaterial." " The rule, which is a necessary infer- ence from these principles, that parties so situated are each entitled to the use of an equal share and proportion of the running water, is not only simple, direct, and equitable, but seems to be essential as the only practical rule by which their respective rights can be accurately ascertained or effectively protected. For it must be obvious that the diffi- culties would often be very great, if not wholly insurmount- able, to find the exact course and direction of the channel, or to determine on which side of the boundary line the larger portion of the whole volume of the stream actually flows." As each proprietor has simply the usufruct of the water as it passes along, no exclusive title is acquired to one-half or to any definite part, but each proprietor is en- ' titled, per my et per tout, to the use of his proportion of the whole bulk and volume of the stream.^ It follows that, although an exclusive use of the Avater may be acquired by an actual adverse possession and enjoyment,^ yet the mere use by one proprietor of all the water, unaccompanied by any act of exclusion against the other proprietors, or by the assertion of any superior or exclusive claim, is not in its nature adverse and affords no cause of complaint.* 1 Pratt V. Lamson, 2 Allen, 275, - Ibid. 285 ; Tourtellot v. Plielps, 4 Gray, " Post, c. 11. 376 ; Webb v. Portland Manuf . Co., 3 * Pratt u. Lamson, 2 Allen, 288 ; 6 Sumner, 189 ; 3 Law Eep. 374. Allen, 457 ; Pitts v. Lancaster Mills, 366 THE LAW OF WATERS. [part II. § 208. Every riparian proprietor may make a reasonable use of the stream passing by his land for purposes which are not domestic.^ With respect to diminution in quantity, or the retardation or acceleration of the current, or any extra- ordinary use of the water, it is a question of fact for the jury in each case whether the user is reasonable, according to the width and depth of the river, the fall, the volume of water and the state of improvement in manufactures and the useful arts.^ This question cannot be determined by the requirements of the defendant's business,^ or the use which was previously made of the stream in the case of a purchase of a mill privilege from the owner of a lower privilege;* but is to be decided by considering merelj- whether his use of the stream is reasonable and appropriate to the size of the stream and the quantity of water usually flowing therein.^ The mere fact that a portion of the water is lost does not give a cause of action;^ for some of the water is inevitably absorbed, wasted, or evaporated whenever it is spread in a mill-pond, or when ice is taken from the 13 Met. 156; Brace v. Yale, 10 Allen, 444; Pillsbury v. Moore, 44 Maine, 154 ; Howe Scale Co. v. Terry, 47 Vt. 109, 126; Union Mill Co. «. Fer- ris, 2 Sawyer, 176; Stillman e. Wliito Rock Co., 3 Wood. & M. 341. 1 Patten ... Marden, 17 Wis. 473. ^ Holden v. Lake Co., 43 N. II. 552 ; Norway Plains Co. v. Bradley, 52 N. 11. 110 ; Bassett ,: Salisbury Manuf. Co., 48 N. H. 567 ; Amoskeag Manuf. Co. V. Goodale,'46 N. H. 53; Hays V. Waldron, 44 X. H. 584 ; Elliott v. Pitchburg Railroad Co., 10 Cusli. 105 ; Reg. o. Nortli ilidland Railway, 2 Railway Cases, Pt. I. p. 1 ; Union Mill Co. V. Ferris, 2 Sawyer, 170; Mil- ler V. Miller, 9 Penn. St. 74 ; Arnold V. Foot, 12 Wend. 330; Bullard v. Saratoga Manuf. Co., 77 N. Y. 525 Phillips V. Sherman, 64 Maine, 171 Case . Danley, 20 Penn. Close ;;. Samn, 27 Iowa, 50.3 ; Hester St. 85, it was held that, if the contin- V. Broach, 84 N. C. 252 ; Bare v. Hoff- uance of a dam is of great value to man, 79 Penn. St. 71; Cumberland the defendant, and causes but incon- Canal c. Hitchings, 05 Maine, 140 ; siderable injury to the plaintiff, the Savannah Canal Co. ;'. Bourquin, 51 latter is entitled to auch damages as Ga. 378 ; Cobb v. Smith, 38 Wis. 21 ; vrill compel an abatement of the Fowle V. New Haven Co., 107 Mass. nuisance. Battishill w. Reed, IB C. B. 352; 112 Mass. 334. 696. In White v. Moseley, 8 rick. 1 Dick V. Webster, 6 Wis. 681 ; 356, it was held, upon the facts of the McDowell V. Langdon, 3 Gray, 513. case, that two distinct trespasses were 2 Casebeer v. Mowry, 55 Penn. St. committed in removing a dam. 419 ; Plate u. New York Central Rail- < Devery r. Grand Canal Co., Ir. road, 37 N. Y. 472. See BurwcU ... E. 9 C. L. 194. Cannady, 3 Jones (N. C.) 105. 5 ciegg v. Dearden, 12 Q. B. 576. ^ Spilman v. Roanoke Navigation ^ Ibid. 591 ; Schoch v. Foreman, Co., 74 N. C. 675. A recovery for 3 Brewst. (Penn.) 157. IJnder a com- erecting a nuisance bars another ac- plaint in an action to recover dam- tion for the erection, but not other ages for the wrongful obstruction of actions for the continuance of the a watercourse, alleging the tort to CHAP. VI.j EIGHTS OF RIPARIAN PROPEIETOES. 371 recover on this ground when injured by backwater.^ Where the materials of a bridge forming part of a discontinued highway were sold by a town to a riparian proprietor, he was held liable to the land-owners above for damages caused by the setting back of the water in consequence of such materials remaining in the river, and was not permitted to set up in defence that he had removed greater obstructions from the river before the purchase.^ The plaintiff is always entitled to compensation in money, and it is not an answer to an action for illegal flowage that the mill and dam which caused it are beneficial to the plaintiff or to the public.^ § 211. In an action for injury to the plaintiff's land by backwater, the measure of damages is the actual injury to the land by the overflow,* or its fair rental value from the time when the injury commenced to the date of the writ.^ He may show, in aggravation of damages, that the fertility and future value of the overflowed land are impaired,^ and the prospective loss of growing crops or timber when reasonably certain to occur ;^ the expense of draining off the water standing upon or percolating through the soil;^ have been committed on a particular * Pliinizy v. Augusta, 47 Ga. 260. day, evidence of similar torts pre- ^ Baldwin v. Calkins, 10 Wend. 167 ; viously committed is inadmissible. Chicago v. Huenerbein, 85 111. 594. Noah V. Angle, 63 Ind. 425. In such " Hutchinson v. Granger, 13 Vt. case, the opinion of a witness as to the 386; Powell v. Lash, 04 N. C. 456; amount of damages resulting from Marsh i;. TruUinger, 6 Oregon, 356 ; the tort is inadmissible, and the jury Pixley v. Clark, 35 N. Y. 579; Schieble must make the estimate from the facts v. Law, 05 Ind. 332 ; Rooker v. Per- proved. Ibid. kins, 14 Wis. 79 ; Bevier v. Dilling- 1 Treat v. Bates, 27 Mich. 390 ; ham, 18 Wis. 529 ; Brewer v. Merrill, Eassett v. ' Salisbury Manuf. Co., 43 3 Chand. (Wis.) 46 ; Clark v. Nevada N. H. 509; Johnson u. Roan, 3 Jones Land Co., 6 Nev. 203; Standish o. (N. 0.) 523; Bowman;;. New Orleans, Washburn, 21 Pick. 237; Lincoln v. 27 La. Ann. 501. Copper Manuf. Co., 9 Allen, 181, 2 Talbot V. Whipple, 7 Gray, 122. 190 ; Spilman v. Roanoke Navigation 'Engard v. Prazier, 7 Ind. 294; Co., 74 N. C. 075. Gerrish ti.New Market Manuf. Co., 30 ' Polsom v. Apple River Log Driv- N. IL 478 ; Tillotson v. Smith, 32 N. ing Co., 41 Wis. 602 ; Ilayden o. Al- ii. 90 ; Webb v. Portland Manuf. Co., bee, 20 Minn. 159. 3 Sumner, 402 ; Marcy o. Pries, 18 ^ n,;,} . Clark v. Nevada Land Co., Kansas, 353 ; McICellip v. Mcllhenny, 6 Nev. 203 ; Chicago Railroad Co. u. 4 Watts, 317. Carey, CO 111. 514. 372 THE LAW OF WATERS. [PAET 11. the injurious effect of the water upon a spring or well, whether caused by flowing or percolation ; ^ the destruction of a ford ; ^ or the decrease in the productiveness of the neigh- boring upland by the percolation of water from the mill- pond.3 In an action for overflowing land by a city reservoir, the law is the same as in the case of damages from a mill- dam.* § 211 a. Flowing meadow or pasture land and thereby destroying grass, which is a natural product of the soil and not an emblement, is waste at common law.^ If a dam causes the water of a stream to flow back upon the plaintiff's meadow, on which hay or other property is placed, he is bound to use reasonable care and diligence to protect his property,^ and cannot recover from another, who causes his land to be flowed, a greater amount than would have been necessary to protect his property, if reasonable diligence had been used.'' But he is entitled to recover, if not guilty of negligence, the full amount of the injury, although it might have been prevented by the expenditure of a smaller amount.^ The supposed value of crops which might be raised on the land if it had been cultivated, what the land might produce, or what a crop not planted would sell for when produced, are too uncertain and speculative elements to be included in the damages for deprivation of the use of land.* But evi- dence is admissible showing how much the crop of one year, 1 Lehigh "Valley Railroad Co. i . ' Van Pelt v. Davenport, 42 Iowa, Trone, 28 Ponn. St. 206; Common- 308; Simpson v. Keokuk, 34 Iowa, wealth u. rishor, 1 Penn. 402 ; Neal 568 ; Hoehl v. Muscatine, 57 Iowa, ;. Henry, Meigs (Tenn.) 17; Payne 444; Decorah Woolen Mill Co. c. v. Taylor, 3 A. K. Marsh. 328 ; Allen Greer, 49 Iowaj490. ; . McCorkle, 3 Head, 181 ; Harding » Reynolds v. Chandler River Co., (,. Funk, 8 Kansas, 315. 43 Maine, 513. '^ Monson v. Brimficld Manuf. Co., " Chicago i.-. Huenerbein, 85 111. 15 Pick. 544. 594 ; Chicago j'. Rock Island Railroad 5 Trimble v. Gilbert, 3 Blackf. 218. Co., 16 111. 522. Damages for flow- * Brown v. Atlanta, 66 Ga. 71. ing land cannot be pleaded in set-off, * Potts V. Clarke^ Spencer (N. J.) unless liquidated by agreement, and 536, 543. pleaded as on contract. Pitts i . « Chase v. New York Ccntr.nl P.ail- Holmes, 10 Ciish. 02. road Co., 24 Barb. 27^. CHAP. VI.] EIGHTS OF EIPAKIAN PKOPEIETOES. 373 made after the commencement of the action, was less than those of former seasons.^ § 211 h. If a mill above is obstructed by backwater, evidence may be submitted to the jury of the profits of manufacture at the mill as a means of determining the value of the waterpower, if the declaration alleges such loss of profits;^ but the measure of damages is not the loss caused by the stoppage of the mill, but the loss which could not be avoided b}' the use of other appliances.^ A mill-owner, who, having the right to use a reservoir and dam, is bound to maintain the dam, but does not own the land, is entitled to recover from a lower proprietor upon the stream, who sets the water back upon his dam, for the interference with his easement, including the diminished benefit of the reservoir, the increased expense of repairing the dam, or the obstruc- tion of repairs.* And a mortgagee who is in possession of a mill privilege which is rendered useless by the flowing back of the \vater, is entitled, as damages, to interest upon the value of the privilege, if unobstructed, from the time of his taking possession.^ A declaration in case, which alleges that the defendant unlawfully maintained a dam across a stream, whereby the water was set back upon the plaintiffs land, is sustained by proof that backwater was caused by the act of the defendant in keeping the gates or sluices in the dam shut at times when they should haye been open.^ If the owner of land on both sides of a stream erecta ' Garrett v. Commissioners, 74 N. C. 18S2, p. 187. See Burnett i . Kichol- 388 ; Morris Canal Co. v. Ryerson, 27 son, 88 N. C. 90. N. J. L. 457. ^Decorah Woolen Mill Co. c. ^ Plimpton u. Gardiner, 64 Maine, Greer, 49 Iowa, 490 ; Amoskeag 360 ; Simmons v. Brown, 5 R. I. 299 ; Manuf . Co. v. Goodale, 46 N. II. 53 ; Sumner v. Tileston, 7 Pick. 198 ; Hoi- Thompson c. Shattuck, 2 Met. 615. den V. Lake Co., 53 N. H. 552 ; "White See Winne v. Kelley, 34 Iowa, 339. V. Moseley, 8 Pick. 356; Taylor v. ^ Robertson u.'VVoodworth, 42 Conn. Dustin, 43 N. H. 493 ; Lawson v. Price, 163. See Bottomly o. Chism, 102 45 Md. 123 ; Potter v. Froment, 47 Mass. 465. Cal. 165 ; .Tutte ». Hughes, 67 N. Y. 5 Hatch v. Dwight, 17 Mass. 289. 267 ; Ripley v. Great Northern Rail- " Hutchinson i;. Granger, 13 Vt. way Co., L. R. 10 Ch. 435 ; Horton v. 386. Hall (Pa.), Chicago Legal News, Feb. 374 THE LAW OF WATERS. [PAET II. a dam across it, and causes the water to flow back upon a mill-dam above, which is built partly on land belonging to its owner, and partly on land belonging to the lower pro- prietor, without his license, the latter is not liable for thus obstructing the wheels of the higher mill.^ § 211 c. Backwater and other injuries resulting from an interference with the natural flow of the stream may arise from a combination of natural and artificial causes. In an action for flowing land by means of a dam, it is a question of fact for the jury whether the flowage was caused by the dam or by other obstructions;^ and evidence is admissible which tends to show that it was produced by a natural cause.'* Where backwater was caused by the narrowness of the stream below a dam, and that circumstance preponderated largely in producing the injury to the plaintiffs land, it was held that there was no cause of action.* But, in general, the fact that the defendant's dam is not the principal cause of the damage, if it clearly causes some part of the damage, would not defeat the action.^ A lower proprietor is bound to construct his dam so that it will not throw back the water, in times of ordinary freshets, upon th& land of an upper proprietor, and cannot successfully defend upon the ground that his dam causes the flowage only when the stream is swollen.'' Under this r^ile, freshets are regarded 1 Jewell V. Gardiner, 12 Mass. 311. „. Wausau Boom Co., 54 Wis. 107. A ^ Smith V. Kuss, 17 Wis. 227 ; verdict for nominal damages will r.ot Brown v. Bush, 45 Penn. St. Gl ; bo set aside when the jury mijl:t Dickinson v. Boyle, 17 Pick. 78; Chi- infer from the evidence that the flow- dester v. Consolidated People's Ditch age was occasioned in part by the dc- Co., 53 Cal. 50 ; Chicago Railway Co. fondant's acts, although the damage V. Iloag, 00 111. 339. mainly results from other causes. s Grigsby u. Clear Lake Water Co., Phillips c. Phillips, 34 N. J. L. 203; 40 Cal. 300. Janssen v. Lammers, 29 Wis. 83. * Bucker v. Athens Manuf. Co., ^ Ibid. ; Monmouth v. Gardiner, C5 54 Ga. 84; Brown v. Atlanta, 06 Ga. Maine, 247. 71 ; Monongahela Navigation Co. r. ■■ Bristol Hydraulic Co. ;•. Boycr, Coons, 6 Penn. St. 383. So, in case of 07 Ind. 230 ; Dorman v. Ames, 1^ extraordinary floods. China v. South- Minn. 451 ; Pixley v. Clark, 35 K. Y. wick, 12 Maine, 238; Smith v. Aga- 525; Cowles !•. Kidder, 24 N. II. 3G1 ; warn Canal Co., 2 Allen, 358 ; Sprague Davis r. Fuller, 12 Vt. 178; Bell ,-. V. Worcester, 13 Gray, 193 ; Borchardt McClintock, 9 Watts, 119; Eoush u. CHAP. VI.J BIGHTS OP RIPARIAN PROPRIETORS. 375 as ordinary which are well known to occur in the stream occasionally through a period of years, although at no regular intervals.^ In proceedings under the inill acts, which authorize the flowage of others' lands, the jury, in estimat- ing damages, may consider the effect of those ordinary periodical freshets which can be foreseen with reasonable certainty.^ In Massachusetts it is held that if a dam erected by the owner of lands upon both sides of an unnavigable stream docs not ordinarily throw back the water so as to obstruct an ancient mill above, he is not liable if the broken ice formed upon his pond in winter becomes so packed as to press back the water to an unusual extent.^ In New Hamp- shire it is held that the owner of the dam is liable in such a case, if there is no evidence of a sudden and accidental accumulation of ice by extraordinary means, not liable to occur each winter, or of any unusual state of the water.* In Proctor v. Jennings,^ in Nevada, where a dam erected on a stream below the plaintiff's mill was not injurious when built, but afterwards extraordinary quantities of sediment, arising from a new process of mining used on the stream above, in connection with the dam, caused the water to flow back and intefere with the mill, the owner of the dam was held not to be responsible for such unforseen and fortuitous circumstances. So a boom company, incorporated by the legislature of Maine, which erected and maintained its bonm without fault or negligence, was held not liable for the "Walters, 10 Watts, 86 ; Lehigh Bridge ^ Smith v. Agawam Canal Co., 2 Co. V. Lehigh Navigation Co., 4 Rawie, Allen, 355. See Shrewsbury v. Brown, 9; Wallace <>. Headley, 23 Penn. St. 25 Vt. 197. In general, if a natural 106 ; Casebeer v. Mowry, 55 Penn. St. cause contributes to an injury wliich 419; McCoy u. Danley, 20 Penn, St. could not happen without fault on 85; Burbank u. Ditch Co., 13 Nev. the part of the defendant, he is lia- 431 ; Cobb V. Smith, 38 Wis. 21 ; ble. Dickinson v. Boyle, 17 Pick. 78 ; Borchardt u. Wausau Boom Co., 54 Salisbury v. Herchenroder, 100 Mass. Wis. 107; Ames a. Cannon Manuf. 458. Co., 27 Minn. 246 ; Pugh o. Wheeler, * Cowles o. Kidder, 24 N". H. 364 ; 2 Dev. & Bat. 50; Rex v. TrafEord, 1 Hooksett v. Amoskeag Manuf. Co., 44 B. & Ad. 874; 8 Bing. 204. N. H. 105. See Bell u. McClhitock, 1 Gray v.- Harris, 107 Mass. 492 ; 9 Watts, 119. Dorman v. Ames, 12 Minn. 451. '' Nev. 83. 2 Sabine v. Johnson, 35 Wis. 185, 203. 376 THE LAW OF WATEnS. [PAET II. flowage of land, not taken under its charter, caused by its boom in co-operation with an unusual accumulation of logs and a large rise of water.^ Where backwater was caused during a part of each year by a peculiar grass which com- menced growing in the defendant's reservoir, in which dirt had accumulated, the defendant was held not liable, if the grass would have grown in the channel, had there been no dam or deposit, but liable if the accumulation caused the grass to grow.2 And where the proprietors of a canal, in order to prevent the canal bank from bursting under an ex- traordinary rainfall, the effect of which would have been to destroy the plaintiffs' works and cause devastation through a wide area, opened a sluice and discharged the water from the canal into a brook, which overflowed and flooded the plaintiffs' mines, and it appeared that in any event the plain- tiffs' works would have been thus injured, it was held that the injury was damnum absque injuria, and that the plain- tiffs could not recover even under the compensation clauses of the statute under which the canal was constructed.* But the owner of a ditch or canal, who negligently permits it to become obstructed with sand, is liable for injuries to the adjoining lands caused by the sand being deposited thereon by water overflowing the banks during a season of periodical high water.* § 212. If a dam causes the water to be ponded back over a public highway, it is a common nuisance.^ So it has been ' Lawler u. Baring Boom Co., 56 afterwards removed the obstruction Maine, 443 ; China v. Soutliwick, 12 from his own half of the ditch, caus- Maine, 238 ; Plummer v. Penobscot ing the ditch to become so obstructed Lumber Association, 67 Maine, 363. that A's land was overflowed, A was 2 Knoll o. Light, 76 Penn. St. 268. held entitled to maintain an action of ' Thomas v. Birmingham Canal trespass against B. Hogwood v. Ed- Co., 49 L. J. 851 ; 43 L. T. 435. wards, Phill. N. C. 350. * Chidester c. Consolidated Peo- ^ Commonwealth v. Stevens, 10 pie's Ditch Co., 53 Cal. 56. See Pick. 247; Monmouth <,. Gardiner. Harrison v. Great Northern Railway 3o Maine, 347 ; Kellogg c. Thonip- Co., 33 L. J. N. s. (Ex.) 266. Where son, 00 N. Y. 88; State r. Phipps, 4 A, with B;s permission, placed a log Ind. 515. On an information for ob- and rails in a ditch which bounded structing an ancient watercourse to their lands, in order to prevent it the injury of a highway, it must ap- from being choked by silt, and B pear that the public Avas hindered to CHAP. VI.J EIGHTS OF EIPAEIAN PEOPEIETOES. 377 held indictable for a mill-owner to cut his dam during a freshet and thereby to flood a public road, although his pur- pose is merely to save the dam.^ If the owner of a mill and dam permits them to decay, and a highway is afterwards made across the land flowed by the dam, he cannot grant the mill privilege and right to flow so as to authorize his grantee to overflow the highway by a new dam on the site of the old.^ If a mill-owner negligently maintains a dam or cause- way, forming part of a highway which a town is bound to keep in repair, he is liable to the town for such repairs as are made necessary by his negligence.^ When water held by a dam becomes stagnant and so corrupts the atmosphere as to impair the health of the neighborhood,* or when, without causing illness, it makes life and property in the community uncomfortable,^ it is indictable and abatable as a nuisance,® and ground for an action,^ or for relief in equity by injunction,^ make a nuisance ; and that is for the jury. State v. Smith, 54 Vt. 403. 1 State u. Knotts, 2 Spears (S. C.) 694. ^ Commonwealth v, Fisher, 6 Met. 433. 3 Brookfield v. Walker, 100 Mas?. 94; Andover v. Sutton, 12 Met. 182. * State V. Close, 35 Iowa, 570 ; Gherkey «. Haines, 4 Blackf. 159 ; Rhodes v. Whitehead, 27 Texas, 304; State V. Gainer, 3 Humph. 39 ; Kown- slar V. Ward, Gilm. (Va.) 127 ; Mayo o. Turner, 1 Munf. (Va.) 405. '' Ibid. ; Eames v. New England Worsted Co., 11 Met. 570; State „. Kankin, 8 S. C. 438. « Ibid. ; King v. Wharton, 12 Mod. 510; Holt, 499; State ■;. Purse, 4 McCord, 472 ; State v. Close, 35 Iowa, 570; State v. Bush, 29 Ind. 110; Lun- ing V. State, 1 Chand. (Wis.) 178, 186; 2 Pin. 215 ; Douglass v. State, 4 Wis. 387; Munson v. People, 5 Park. C. C. 16; People v. Townsend, 3 Hill, 479; State v. Gainer, 3 Humph. 30; Commonwealth v. Clarke, 1 Marsh. (Ky.) 323. In Virginia, if tlie dam is not near a public higliway, and the health of a particular locality only is impaired, an indictment will not lie. Commonwealth v. Webb, 6 Rand. 726 ; Stephen u. Commonwealth, 2 Leigh, 759 ; Maire v. Gallahue, 9 Gratt. 94 ; Kownslar v. Ward, Gilm. (Va.) 127. ' Ibid. ; Story v. Hammond, 4 Ohio, 376 ; Morris v. McCaney, 9 Ga. 160 ; Central Railroad Co. v. Wood, 51 Ga. 515 ; Hamilton c. Columbus, 52 Ga. 435 ; Ellington o. Bennett, 50 Ga. 158 ; Neal V. Henry, Meigs (Tcnn.) 17. In such action, evidence showing the com- parative healthtulness of the plain- tiff's property, before and after the act complained of, is alone material to the issue. Watson v. Van Meter, 43 Iowa, 76. 8 Carlisle v. Cooper, 21 N. J. Eq. 576 ; 19 Id. 257 ; Holsman v. Boiling Spring Co., 14 N. J. Eq. 385 ; Nelms V. Morgan, 44 Ga. 617; Ogletree t. McQuaggs, 66 Ala. 580; Thomas v. Calhoun, 58 Miss. 80 ; Miller v. True- heart, 4 Leigh, 569; Ramsay v. Chandler, 3 Cal. 90. In such case, the injury must be clearly established. Ibid. ; Lassater v. Garrett, 5 Baxter (Tenn.) 268 ; ante, § 210. 378 THE LAW OF WATEES. [PAET II. on the part of those suffering special injury. If a corpora- tion, which has purcliased a canal, part of the public works constructed by the State, permits water to escape through the bank of the tow-path and form stagnant and noisome pools on the adjoining land not owned by the company, it is indictable for maintaining a nuisance. ^ Length of time does not legalize a public nuisance,^ and if a mill-pond which has existed for seventy years corrupts the air, the owner may be indicted.^ But the nuisance must actually exist, and not merely.be apprehended, in order to justify an abatement.* Taking ice from the pond during one or two winters, and suggesting means and making efforts to render the pond innoxious, do not amount to such acquiescence in the con- tinuance of the nuisance as precludes an action.^ In Massa- chusetts, damages to lands not flowed by the dam, but rendered less valuable as building lots in consequence of noxious and offensive smells proceeding from the flowed land when not covered by water, are not within the scope of the mill acts.® And if navigable waters, subject to the jurisdiction of a State, are obstructed by a dam or similar structure, which is erected in pursuance of legislative author- ity, cause the health of the neighborhood to be impaired, the person making the structure is not thereby made sub- ject to a prosecution for maintaining a public nuisance, nor can it be abated as such;^ but the legislature, upon 1 Delaware Division Canal Co. u. than land, or by any other means than Commonwealth, 60 Penn. St. 367. raising water by a dam for mill pur- 2 Ante, § 121 ; Wright v. Moore, 38 poses. The rule admits all direct Ala. 593. damage by raising water upon a com- 2 Ibid. ; State V.Rankin, 3 S. C. 438. plainant's land, or preventing all * Gates V. Blincoe, 2 Dana, 158. valuable growth, or by saturating it '■ Adams v. Popham, 76 N. Y. 410. so as to render it unfit to produce See Heiskell v. Cobb, 11 Heisk. 638 ; good grass, by separating one part of Mosser v. Seeley, 10 Neb. 460. the complainant's land from another 8 Fuller V. Chicopee Manuf. Co., so as to render bridges or causeways 16 Gray, 46 ; Fames v. New England necessary, or other direct damage." Worsted Co., 11 Met. 570. In the To the same effect, see Rooker t,. above case of Fuller u. Chicopee Perkins, 14 Wis, 79 ; Brower v. Mer- Manuf. Co., Merrick, J., said : "The rill, 3 Chand. (Wis.) 46; 3 Phin, 46. law does not justify an allowance for ' Depew v. Trustees, 5 Ind. 8 ; But- remote, possible, or speculative dam- ler v. State, 6 Ind. 165 ; Neaderhouser ages, or damages to any other subject v. State, 28 Ind. 257, 268; Barnes n. CHAP. VI.J EIGHTS OP EIPAEIAN PEOPEIETOES. 379 providing just compensation, may require the removal of such works on the ground that they are detrimental to the health of the surrounding country .^ If a canal com- pany purchases from the State a canal, part of the public works, as it had been constructed by the State, and water escapes through the bank of the tow-path and forms stagnant and noisome pools on adjoining land not belonging to the canal company, the company is indictable for maintaining a nuisaiice.2 The rule of liability for endangering the public health applies only to artificial waters; and the owner of swampy or overflowed lands is not guilty of a public nui- sance if he neglects to drain them.^ In New Jersey, the right of the legislature to order low lands to be drained at the expense of the owner is upheld, but this depends upon ancient custom and not upon the ordinary powers of legislation.* § 213. A riparian proprietor may divert the water from the stream, as it passes through his own land, without license from the proprietors above him, if he does not obstruct the water from flowing as freely as it was wont, and without license- from the lower proprietors if he restores the water to its natural channel before it enters their land and does not materially diminish its flow.^ The distinction is to be Eacine, 4 Wis. 494; Stoughton v. ern Railway Co., 10 Ch. D. 707; State, 5 Wis. 291 ; Harris v. Thomp- Garwood v. New York Central Rail- son, 9 Barb. 350 ; "Williams v. New road Co., 8.3 N. Y. 400 ; 17 Hun, 356 ; York Central Railroad Co., 18 Barb. Pettibone v. Smith, 37 Mich. 579 ; 222 ; People v. Law, 34 Barb. 514. Billing v. Murray, ti Ind. 324 ; Norton 1 Miller r. Craig, 11 N. J. Eq. 175; v. Volentine, 14 Vt. 239; Ford u. Rogers i: Barker, 31 Barb. 447 ; The Whitlock, 27 Vt. 265 ; Canfield v. Wharf Case, 3 Bland Ch. 442. Andrew, 54 Vt. 1 ; Society o. Morris ^Delaware Canal Co. a. Common- Canal Co., Sax. (N. J.) 157; Webster wealth, 60 Penn, St. 367. v. Fleming, 2 Humph. 518; Hough 3 Woodruff V. Fisher, 17 Barb. 224. v. Doylestown, 4 Brewst. (Pa.) 333 ; * In re Drainage along Pequest Shamleffer i^. Council Grove Peerless River, 41 N. J. L. 175 ; 39 Id. 197, Co., 18 Kansas, 24. As to the meas- 433; 40 Id. 380; 42 Id. 553. In re ure of damages, for diversion, in Drainage, 35 N. J. L. 497. See State special cases, see Hanover Water 0. Clinton, 39 N. J. L. 656. Co. v. Ashland Iron Co., 84 Penn. St. 5 Orr Ewing )). Colquhoun, 2 App. 279; Bare v. Hoffman, 79 Penn. St. Cas. 839; Sandwich v. Great North- 71; Stein c. Bm-dcn, 20 Ala. 127; 24 380 THE LAW OF WATERS. [PAET II. observed between the right to divert or change the course of the stream itself so as to turn it away from a lower pro- prietor, and the right to take water from the stream.^ The first is wholly unlawful ; the second may be exercised to a reasonable extent. There must not be such an abstraction of the water as will materially interfere with the rights of any other proprietor, and it is no answer to such a viola- tion of right by one party that the other has increased the usefulness of the stream by means of a reservoir higher up, since the private right of one man cannot be taken by another upon the substitution of an equivalent benefit.^ Where a lower proprietor, with the consent of proprietors higher up the stream, diverted the water above the plaintiffs land Ij'ing upon one side of the stream into a channel which conducted a considerable portion of the water around the plaintiffs land to his own mill below, it was held that this was not such an incidental obstruction or loss of the water as was necessarily consequent upon the lawful use of the stream by one proprietor, giving no ground for an action,^ and that the license of the upper proprietors afforded the defendant no protection as against the plaintiff.* Where the defendant, being one of two tenants in common of a mill upon one side of a stream, and of the water privilege connected therewith, agreed with the plaintiff, his co-tenant, that each should use the mill alternately for several days at a time, and afterwards diverted a portion of the water from the mill-pond by means of a channel, dug upon his own land opposite, for the purpose of driving machinery on that land, an injunction was granted to restrain the diversion during the plaintiffs turn, but relief was refused against the use of the channel, which was not shown to be injurious to Ala. 130 ; Stein i-. Ashby, Id. 521 ; 2 Wehh v. Portland Manuf . Co., 3 Thayer v. Brooks, 17 Ohio, 489; Plum- Sumner, 189. leigh V. Dawson, 1 Oilman, 544. ^ Wadsworth v. Tillotson, 15 Coun. 1 Elliott V. Eitchturg Kailroad Co., 266 ; Harding v. Stamford Water Co., 10 Gush. 191 ; Dumont v. Kellogg, 29 41 Conn. 87. Mich. 420; Wadsworth v. Tillotson, * Parker c. Griswold, 17 Conn. 288; 15 Conn. 360 ; Hartzall o: Sill, 12 Armstrong v. Potts, 23 N. J. Eq. 92 ; Penn. St. 248 ; Coalter ,,. Hunter, 4 Larsli v. Test, 48 Ind. 130. Rand. 58. CHAP. VI.] EIGHTS OF KIPAEIAN PEOPEIETOES. 381 the common property, or against the diversion of the water through it during the defendant's turn.^ If water is added to a natural stream by artificial means, it becomes a part- of the stream and subject to the same natural rights as the rest of the water .^ A riparian proprietor cannot lawfully dig in the bed of a stream, on his own side of the thread, in such man- ner as to change materially the natural flow of the water ;3 and if A diverts more than the natural flow of the water towards the land of B, thereby causing it to flow thereon, B may remedy it by the erection of any dams or banks on his own land.* A lower riparian proprietor is not entitled to maintain an action against an owner above for a diversion of the water, if he is not entitled to the use of the water so diverted by reason of the rights of an intervening proprietor.^ The ownership of land abutting on a canal which is a public highway, although it carries title to the centre of the canal, does not give to the land-owner the right to draw off the water through his lot for the purpose of creating a water power.'' An upper proprietor is liable in damages at law, or may, in case of irreparable injury, be restrained by injunc- tion," if he so diverts the stream as to cause the water to be discharged upon the land or into the ditches or mines of a neighbor;^ if he so extends a ditch into a marsh upon the border of a lake as to lessen the water power of a river into which the lake empties, and upon which the plaintiffs mills are situated;^ or if he exhausts a spring or marsh which 1 Bliss V. Riee, 17 Pick. 23. mitting another without objection to ^ Wood V. Waud, 3 Exch. 748, 779 ; divert a small stream at great ex- Davis V. Gale, 32 Cal. 26; Druley ?•. pense, will prevent the obtaining u, Adams, 102 111. 177 ; Adams r. Slater, mandatory injunction. Slocumb ;■. 8 Brad. (111.) 72. C. B. & Q. R. Co., 57 Iowa, 675. ' Van Hoesen «. Coventry, 10 Barb. 8 Musgrave v. Smith, 26 W. R. ; 518. Shaw V. Cummiskey, 7 Pick. 76 ; Por- ^Merritti;. Parker, Coxe(N. J.) 460; ten. Dunham, 74 N. C. 767; Chap- ante, § 160. man v. Copeland, 55 Miss. 476 ; Thomp- '' Oluey V. Fenner, 2 R. I. 211. son v. Crocker, 9 Pick. 59; Boynton ^ Lawson v. Mowry, 52 Wis. 219 ; v. Rees, Id. 528. Medway Co. v. Romney, 9 C. B. n. s. ' Bennett v. Murtaugh, 20 Minn 575. 151 ; Curtiss v. Ayrault, 3 Hun, 487 ' Marble v. Adams, 46 Vt. 496 ; 47 N. Y. 73 ; 5 Thomp. & C. 611 ; Bas Cliesapeake Railroad Co. <•. Bobbett, sett v. Salisbury Manuf. Co., 43 N. II 5 W. Va. 138. Standing by, and per- 578. See Bearce v. Perry, 117 Mass. 211 382 THE LAW OF WATERS. [PAET II. is the sovirce of a watercourse, and. thereby stops the stream.! § 214. Although the decisions are not in entire harmon}', yet, by the weight of authority, neither an upper or lower proprietor can maintain an action for the diversion, the rais- ing or detention of the water by a neighbor upon the stream, which, being reasonable in mode and degree, is not the cause of actual perceptible damage.^ Under this rule, as no right of action accrues until injury is inflicted, no prescription begins to run until that time.^ In the recent English case of Sandwich v. Great Northern Railway Co.,* it was held to be within the rights of a railway company, as a riparian owner, to take water from the neighboring stream for the* purpose of supplying its engines and station, and that the quantity taken, which did not aifect the depth of the stream more than one-fifth of an inch, was reasonable. Actual pres- ent damage need not be shown in order to support an action for any extraordinary and unreasonable use of the water by a riparian owner, when the act comj)lained of, if continued, would bar the plaintiff's right,^ and nominal damages may 1 Arnold v. Foot, 12 Wend. 330 Pleming v. Davis, 37 Texas, 173 Wadsworth v. Tillotson, 15 Conn. 360 394; Gould V. Boston Duck Co., 13 Gray, 442; Gilmore v. Driscoll, 122 Mass. 207; Heath v. Williams, 25 Eulrich v. Richter, 41 Wis. 318; 37 Maine, 209: Mitchell v. Mayor, 49 Wis. 226 ; Williamson t). Lock's Creek Ga. 19; Holsman v. Boiling Spring Canal Co., 76 N. C. 478; 78 N. C. 156; Co., 14 N. J. Eq. 345; Crosby r. Bes- Gillett V. Johnson, 30 Conn. 180. sey, 49 Maine, 639 ; Norton v. Volen- 2 Elliott V. Eitchburg Railroad Co., tine, 14 Vt. 239 ; Hurlburt v. Leonard, 10 Cush. 191; Norway Plains Co. u. Bray t. (Vt.) 202; Parker r. Hotchkiss, Bradley, 52 N. H. 108 ; Amoskeag 25 Conn. 321 ; Keeney Manuf. Co. v. Manuf. Co. v. Goodale, 46 N. H. 53 ; Union Manuf. Co., 39 Conn. 576 ; Tyler v. Wilkinson, 4 Mason, 397; Dumont v. Kellogg, 29 Mich. 420; McElroy v. Goble, 6 Ohio St. 187 ; Hoyt v. Sterrett, 2 Watts, 327 ; Piatt Cooper V. Hall, 5 Ohio, 320; Long- v. Johnson, 15 Johns. 213; Richart v. street v. Harkrader, 17 Ohio St. 23 ; Scott, 7 Watts, 462. Garrett v. McKie, 1 Rich. (S. C.) 444; * 10 Ch. D. 707; 27 W. R. 616 Chalk u. McAlily, 11 Rich. (S.C.) 153; Dakin v. Cornish, cited 6 Exch. 360 Merritt v. Brinkerhoff, 17 Johns. 306. Cummings c. Barrett, 10 Cush. 191 3 Murgatroyd v. Robinson, 7 El. & Garwood v. New York Central Rail- Bk. 391 ; Cooper v. Barber, 3 Taunt, road Co., 83 N. Y. 400. 99; Sturges v. Bridgman, 28 Am. L. ''Ibid.; Rochdale Canal Co. v. Reg. 348; Angus v. Brown, 4 Q. B. King, 14 Q. B. 134; 2 Sim. n. s. 78; D. 162 ; Thurbcr .,. Martin, 2 Gr,ay, Harrop v. Hirst, L. R. 4 Ex. 43 ; West CHAP. VI.J RIGHTS OF EIPARIAjST PROPEIETORS. 383 be recovered in order to prevent the acquisition of an adverse title by prescription.^ A riparian proprietor may maintain an action for the diversion of a stream without proof that he has an ancient mill thereon or that he has appropriated the water to any special use,^ and is entitled to have the water run through his land undiminished by any persons who are not themselves riparian owners and do not act under the license of such owners.* bury 0. Powel, cited in Fineaux v Hovenden, Cro. Eliz. 664; Mellor t Spateman, 1 W. Saund. 346 (a), note Bower V. Hill, 1 Bing. 549; 1 Scott, 526; Embrey v. Owen, 6 Exch. 353 Northam v. Hurley, 1 El. & Bk. 665 Chasemore v. Richards, 7 H. L. Cas 349; 2 H. & N. 180; 5 H. & N. 982 Sampson i;. Hoddinott, 1 C. B. n. s. 590; Crossley v. Lightowler, L. R. 3 Eq. 296 ; Chatfield v. Wilson, 27 Vt. 670 ; Woodman v. Tufts, 9 N. H. 88 ; Gerrish v. New Market Manuf. Co., 30 N. H. 478 ; Tillotson. u. Smith, 32 N. H. 90 ; Butman v. Hussey, 12 Maine, 407; Heath v. Williams, 25 Mainei, 209; Munroe v. Stickney, 48 Maine, 462; Blanchard v. Baker, 8 Maine, 253; Appleton u. FuUerton, 1 Gray, 186; Thompson v. Crocker, 9 Pick. 58; Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241 ; Newhall v. Ireson, 8 Cush. 595; Stowell v. Lin- coln, 11 Gray ,-434; Lund d. New Bed- ford, 121 Mass. 286; Cook";'. Hull, 3 Pict. 269; Bliss v. Rice, 17 Pick. 23; Union Co. v. Dangberg, 2 Sawyer, 450 ; Whipple V. Cumberland Manuf. Co., 2 Story, 664 ; Webb v. Portland Manuf. Co., 3 Sumner, 189 ; Bullard v. Saratoga Manuf. Co., 77 N. Y. 525; Crooker v. Bragg, 10 Wend. 260; Baldwin v. Calkins, Id. 167 ; Palmer V. Mulligan, 3 Caines, 307; Piatt v. Johnson, 15 Johns. 213 ; Van Hoesen ». Coventry, 10 Barb. 518 ; Thomas v. Brackney, 17 Barb. 654 ; Wadsworth V. Tillotson, 15 Conn. 366 ; Chapman V. Thames Manufacturing Co., 13 Conn. 269; Parker v. Griswold, 17 Conn. 288 ; Branch v. Doane, 18 Conn. 233; 17 Conn. 402; Seeley v. Brush, 35 Conn. 424; Hulrae v. Shreve, 3 Green, N. J. 116 ; Gladfelter v. Walker, 40 Md. 1 ; Pastorius v. Fisher, 1 Rawle, 27 ; -Alexander v. Kerr, 2 Rawle, 83 ; Howell V. McCoy, 3 Rawle, 256 ; Ripka 0. Sergeant, 7 Watts & S. 9, 11 ; Beis- sell V. ShoU, 4 Dallas, 211 ; Hartzall v. Sill, 12 Penn. St. 248 ; Graver v. Sholl, 42 Penn. St. 58 ; Dumont v. Kellogg, 29 Mich. 422 ; Plumleigh v. Dawson, 1 Gilman, 544 ; Hill v. Ward, 2 Id. 285 ; Stein v. Burden, 24 Ala. 130 ; 29 Ala. 127; Stein u. Ashby, 24 Ala. 521; Close v. Samm, 27 Iowa, 503; Watson V. Van Meter, 43 Iowa, 76 ; Cory V. Silcox, 6 Ind. 39; Little e. Stanback, 63 N. C. 285; Pugh ;;. Wheeler, 3 Dev. & Bat. 50 ; Chapman V. Copeland, 55 Miss. 476; Hendrick f. Cook, 4 Ga. 24 ; Ellington v. Ben- nett, 59 Ga. 286; Green v. Weaver, 63 Ga. 302; Attwood v. Fricot, 17 Cal. 37 ; Creighton u. Evans, 53 Cal. 55; Welton v. Martin, 7 Mo. 307; Smith V. McConathy, 11 Mo. 517; Haas V. Choussard, 17 Texas, 588. And see ante, p. 359, n. 1 ; post, c. 12. 1 Ibid. ; Wilts Canal Co. i!. Swin- don Water Works Co., L. R. 9 Ch. 451 ; L. R. 7 H. L. 697. 2 Rutland v. Bowler, 3 Exch. 290, 774 ; Sands v. Trefuses, Cro. Car, 575 ; Cox V. Matthews, 1 Vent. 237 ; Wright o. Howard, 1 Sim. & Stu. 190 ; Mason V. Hill, 5 B. & Ad. 1 ; 3 B. & Ad. 304 ; Adams o. Barney, 25 Vt. 225; Van Sickle V. Haynes, 7 Nev. 249. 3 Hayden o. Long, 8 Oregon, 244 ; 384: THE LAW OF WATERS. [PAET II. § 215. As each proprietor has no exclusive title to one half or any definite part of the water flowing past his land, he cannot claim the right as against any other proprietor to divert or sever a proportionate part of it.^ He may divert so much of the water as will not unreasonably impair the rights of other proprietors.^ In this respect there appears to be no distinction between the diversion and the detention or other use of the stream. One who wrongfully diverts the water from another's mill so as to diminish its power cannot excuse himself for the injury, to the extent that it is caused by him, by alleging that the plaintiff by his own act, as by alterations in his wheels or machinery, requires more water than previously and has thus caused a loss to himself;^ and the purchaser of an estate upon a stream from which others have unreasonably diverted the water is entitled to recover if such diversion is continued, although he was not informed thereof at the time of his purchase.* Upon the ground of irreparable mischief and to prevent a multiplicity of suits, a court of equity will interfere by injunction to restrain an unlawful diversion of water from a stream.^ § 216. A riparian proprietor may alter the surface of his own land at pleasure, if his operations do not materially affect the usual flow of the stream to another's injury.* If he digs a ditch on his OAvn land through which no water flows when the stream is at its ordinary height, he is not bound to fill the ditch or to maintain embankments to pen in Nuttall V. Bracewell, L. R. 2 Ex. 1, 2 ibij. 7, 11 ; Covington v. Becker, 5 ISIev. 3 Stickney o. Monroe, ii Maine, 281. 195; Buddington !;. Bradley, 10 Oonn. 1 Webb V. Portland Manuf. Co., ?, 213 ; Johnson v. Lewis, 13 Conn. 303; Sumner, 189 ; Corning v. Troy Iron Brooke i'. Winter, 39 Ind. 505. Factory, 40 N. Y. 191 ; Blanchard v. * Atlanta Mills v. Mason, 120 Mass. Baker, 8 Maine, 253 ; Curtis . . Jack- 244 ; Chapman ,.. Copeland, 55 Miss, son, 13 Mass. 507 ; Elliott c. Fitch- 470 ; Shamleffer v. Peerless Mill Co., burg Railroad Co., 10 Cush. 191 ; 18 Kansas, 24. Vanderburgh ii. Vanbergen, 13 Johns. » Marble v. Adams, 40 Vt. 496 ; 212 ; Arthur v. Case, 1 Paige, 447 ; Chesapeake Railroad Co. v. Bobbett, Parker v. Griswold, 17 Conn. 301 , 5 W. Va. 138 ; Wright c. Moore, 38 Runnels v. BuUen, 2 N. H. 532 ; Bare Ala. 593. !•. Hoffman, 79 Penn. St 71 ; Plum- e gtorm v Manchaug Co., 13 Allen, leigh V. Dawson, Oilman, 544. 10 ; Bearse i>. Perry, 117 Mass. 211. CHAP. VI.] RIGHTS OF raPARIAN PROPEIETORS. 885 the water for the benefit of a lower proprietor who attempts to erect a dam without right on his own lancl,i and if after the ditch is. dug such lower proprietor is authorized bj statute to maintain his dam, this imposes no« duty upon the ditch-owner to restore his land to its original condition.^ Where the right of flowage is given by statute without creat- ing any easement in the lands of others which are overflowed,'' as is the case with respect to the mill acts of Massachusetts and Wisconsin, one proprietor is under no obligation to keep his land in good condition for his neighbor's mill-pond ; and if the mill-owner has begun to raise the dam connected with his mill, intending to raise it to a height which, when com- pleted, will overflow the land of others, they may lawfully dig a canal upon their own land before it is flowed, to prevent the flowing beyond the height to which the water was previously raised.* They are not entitled to draw off the water unreasonably after it has been raised by a dam so- authorized, but they may lawfully apply it to any . useful purpose, including that of irrigation, the watering of cattle, and the taking of ice, if they do not, in point of fact, and in a perceptible and substantial manner, impair the right to run the mill.^ § 217. The right of a riparian pfoprietor to divert the water of a stream for the purpose of irrigation is recognized in England,^ and generally in this country.'^ According to 1 Bearsew. Perry, 117 Mass. 211. Hoddinott, 1 C. B. n. s. 590; Greeu- 2 Ibid. slade v. Haliday, 6 Bing. 379 ; Hall v. 3 Murdock v. Stickney, 8 Cush. Swift, 6 Scott, 167 ; Strutt v. Boving- 113; Lowell v. Boston, HI Mass. ton, 5 Esp. 56; Gale & Whatley on 466; Boston Manuf. Co. c. Bnrgin, Easements, 284. 114 Mass. 340. " Baker v. Blanchard, 8 Maine, 253, * Storm V. Manchaug Co., 13 Allen, 266 ; Davis ;•. Getchell, 50 Maine, 604 ; 10. Ne^vhall v. Ireson, 8 Cush. 595 ; Elliott 5 Ibid.; Cook r. Hull, 3 Pick. 209; r. Fitchburg Railroad Co., 10 Cusli. Paine j; Woods, 108 Mass. 160, 173. 104; Colburn ,.. Richards, 13 Mass. " Embrey !>. Owen, 6 Exch. 353 ; 420 ; Anthony v. Lapham, 5 Pick. 175 ; Sandwich v. Great Northern Railway Cook v. Hull, 3 Pick, 269 ; Paine r. Co., 10 Ch. D. 707, 711 ; Chasemore "Woods, 108 Mass. 100, 173 ; Garwood V. Richards, 2 H. & "N. 190 ; 5 H. & N. ;-. New York Central Railroad Co., aB2, 7 H. L. Cas, 349' Sampson c 83 N. Y. 400, 405 ; Farrell c. Riclian!s, 386 THE LAW OF WATERS. [PART II. the later decisions in both countries this is not a natural want, authorizing an exclusive or undue appropriation by one proprietor, but the use of the stream for this purpose must be reasonable and must not materially affect the appli- cation of the water by other riparian proprietors. ^ The ex- tent of each proprietor's right to thus withdraw the water depends upon the circumstances of the case. The owner of a large tract of porous land, abutting on one jjart of the stream, could not lawfully irrigate such land continually by canals and drains, and so cause a serious diminution of the quantity of water, though there may be no other loss to the natural stream than that arising from the necessary absorp- tion and evaporation of the water employed for the purpose.^ If the water used for irrigation is not abstracted on a person's own land, but is withdrawn at a distance above it or re- turned at a distance below it, this would have a material bearing upon tlie question of reasonable use with respect to an opposite or other proprietor affected by such diversion.* So, a riparian jDroprietor who obstructs the stream by a dam for the purpose of overflowing and irrigating his land, or who diverts the water for such purpose excessively, and with- -out returning the surplus into the natural channel, is liable to the owner of a mill below, the operation of which is ;thereby impeded,* or to another proprietor below, who only ;uses the water for irrigation and is deprived of that right to ;an unreasonable extent.^ ■ 30 N. J. Eq. 511 ; Union Mill Co. v. i Ibid. According to earlier au- Ferris, 2 Sawyer, 176 ; Union Mill Co. thorities, irrigation is a natural want. V. Dangberg, Id. 450 ; Ingraham v. Ante, § 205. Hutehinson, 2 Conn. 584 ; Wadsworth 2 Embrey v. Owen, 6 Exch. 333, 371. D.-Tillotson, 15 Conn. 300 ; Gillett t,. s i^id. ; Union Mill Co. v. Ferris, 2 Johnson, 30 Conn. 180 ; Randall v. Sawyer, 170 ; Stein v. Burden, 29 Ala. Silverthorn, 4 Penn. St. 173; Miller 127; 24 Ala. 130; Wadsworth i,. Til- V. Miller, Ponn. St. 74; Tolle ■/. lotson, 15 Conn. 366. Correth, 31 Texas, 362 ; Fleming v. * Cook ;•. Hull, 3 Pick. 269 ; Col- Davis, 37 Texas, 173 ; Stein «. Bur- burn v. Richards, 13 Mass. 420. den, 29 Ala. 127 ; 24 Ala. 130 ; Potier ^ Anthony i: Lapham, 5 Pick. 175 ; V. Burden, 38 Ala. 051 ; Blessing u. Cummings v. Barrett, 10 Cush. 186, Blair, 45 Ind. 546 ; Ferrea v. Knipe, ' 195 ; Bent v. Wlieeler, 3 Dane Abr. 16. 28 Cal. 343. CHAP. VI.] EIGHTS OP BIPARIAIT PEOPEIETOES. 387 § 218. It is not lawful for one proprietor to impede or diminish the ordinary flow of the water so as to materially interfere with the enjoyment of other proprietors ; ^ and if the owner of a mill withholds or lets down the water in ex- cessive quantities, beyond what is incident to the necessary or reasonable use of his mill, he is liable to an action of tort at common law for any appreciable damage thereby caused to a lower proprietor.^ So if a mill-owner increases the natural flow of tlie stream by artificial means, as by turning into his mill-pond the waters of another stream, which do not naturally flow there, he is liable to an action for injury so caused to another proprietor.^ It, is a reasonable use of the stream b}' one proprietor to detain the water for such time as is necessary to fill a mill-pond used in connection with machinery, which the power of the stream, in its ordi- nary stages, is adequate to propel.* In times of drouth, the water may be detained for such length of time as is neces- sary to enable it to be advantageously and profitably used for such machinery.* If a mill-owner, in seasons of drouth, shuts his gates so as to stop the flow of the water until his pond becomes full, it is not an unreasonable exercise of his 'right to let down the water and thereby increase the vol- ume of the stream to any extent that does not exceed the 1 Embrey o. Owen, 6 Exeh. 353 ; Brown, 50 Maine, 604 ; Merritt «- Shears w. Wood, 7 Moore, 534 ; Hinck- Brickerhoff, 17 Johns. 306; Gerris)' ley V. Nickerson, 117 Mass. 215 ; Twiss o. New Market Manuf. Co., 30 B. H- V. Baldwin, 9 Conn. 291 ; Pliillips v. 478. Sherman, 64 Maine, 171; Davis u. » TiUotson v. Smith, 32 N. H. 90; Winslow, 51 Maine, 290; Davis v. Merritt y. Parker, Coxe {N. J.) 460. Getchell, 50 Maine, 602 ; Timm v. Bear, * Pitts v. Lancaster Mills, 13 Met. 29 Wis. 254; Vliet v. Sherwood, 35 156; Chander v. Rowland, 7 Gray, Wis. 229 ; 38 Wis. 159 ; Sackrider u. 350 ; Whaler v. Ahl, 29 Penn. St. 98 ; Beers, 10 Johns. 241; Hendrick v. Merritt r. Brinckerhoff, 17 Johns. 306 ; Cook, 4 Ga. 241 ; Pool r. Lewis, 41 Clinton v. Myers, 46 N. Y. 511 ; Hart- Ga. 102; Hoy v. Sterrett, 2 Watts, zell v. Sill, 12 Penn. St. 245; BuUard 327 ; Hetrick ;,■. Deachler, 6 Penn. St. v. Saratoga Victory Manuf. Co., 13 32 ; Case v. Weber, 2 Ind. 108 ; Noah Hun, 43 ; Mabie v. Matteson, 17 Wis. K. Angle, 63 Ind. 425. 1 ; Timm v. Bear, 29 Wis. 254 ; Pool 2 Clapp V. Herrick, 129 Mass. 292 ; v. Lewis, 41 Ga. 162 ; Oregon Iron Co. Thompson v. Crocker, 9 Pick. , 59 ; v. TruUenger, 8 Oregon, 1. Soule V. Russell, 13 Met. 436 ; O'Brien » itjd. w. St. Paul, 18 Minn. 170; Gerrish w. 388 THE LAW OF WATERS. [PAET 11. usual and natural flow, or overflow the natural banks.^ But he has no right to erect machinery, requiring for its opera- tion more water than the stream supplies in its ordhiary state, and operate such machinery by a full pond, discharging the water upon those below in unusual quantities, so that they are unable to use it.'' The right to reasonably detain the water is n„l limited to extraordinary occasions or to the time neces- sary for repairs, but applies to the ordinary use of the stream.'^ The fact that a mill-owner partially obstructs the flow of the water from his mill does not prevent his maintaining an action against a lower proprietor for an additional obstruc- tion caused by the maintenance of the latter's dam at too great a height, and the doctrine of contributory negligence does not apply to such a case.* The stoppage of a water- course at its springhead, where it has its origin, and first begins to flow in a natural channel, is as unlawful as an ob- struction lower down the stream.^ § 219. Riparian owners have, also, a natural right to have natural streams flow unimpaired in quality as well as quantity; and any use of the stream by one proprietor, which defiles or corrupts it to such a degree as essentially to impair its purity and usefulness for any of the purposes to which running water is usually applied, is an invasion of private right, for which those injured thereby are entitled to a remedy.^ Various sources of pollution have been held by 1 Drake v. Hamilton Woolen Co., botham, 11 Exch. 602 ; Arnold r. Foot, 99 Mass. 574 ; Wood u. Edes, 2 Allen, 12 Wend. 330 ; Howe v. Norman (11. 580 ; Brace K. Yale, 10 Allen, 444 ; 97 I.) 13 Keporter (Feb. 1, 1882), p. Mass. 18; 99 Mas.s. 488; Gould v. 155. Boston Duck Co., 13 Gray, 453 ; Clin- 6 Mason v. Hill, 5 B. & Ad. 1 ; 3 B. ton V. Myers, 46 N. Y. 511. See Kock & Ad. 304 ; 2 Nev. & Man. 747 ; Em- Manuf. Co. i-. Hough, 39 Conn. 190. brey r. Owen, Exch. 153 ; Wood e. 2 Merrltt v. Brinckerhoff, 17 Joluis. Waud, 3 Exch. 748 ; Bealey v. Shaw, 300; Clinton I'. Myers, 46 N. Y. 511; 6 East, 208; Aldred's Case, 9 Co. Brace v. Yale, 10 Allen, 441. 59; Tenant t: Goldwin, 2 Ld. Raym. 3 Davis V. Gctchcll, 50 Maine, 1089; Salk. 21, 360; 6 Mod. 311; 602. Holt, 500 ; Stonehewcr v. Farrar, 6 Q. * Brown c. Dean, 123 Mass. 254. B. 730 ; Lingwood v. Stowmarket Co., 5 Dudden v. Guardians of the Poor, L. R. 1 Kq. 77 ; Ciicclcuch o. Cowan, 1 H. & N. 627; Broadhcnt v. l?ams- 2 App. C:i.«. 31i; Jlcrrificld i-. Lorn- CHAP. VI. J EIGHTS OF EIPAEIAN PEOPEIETOES. 389 tlie courts to be actionable; as to set up cattle-yards or lime- pits for calf and slieep skins so near the water as to pollute it;' discharu;ing blood from a slangbter-bouse into the stream;^ erecting a cesspool, placing manure, or permitting gas to escape so near a well, spring, or stream, as to contaminate it;' the casting, upon one's own land, of dirt and foul water or substances which reach the stream by percolation;* the letting off of water made noxious by precipitation of minerals;* or dye wares, or liquors, or madder, indigo, or potash,^ or sulphuric^ or muriatic^ acid; or vitriol, whereby the boilers and machinery of a lower proprietor are cor- roded;^ discharging heated water into a stream injuriously,^" or sewage ; ^^ or rendering the water unfit for domestic or bard, 13 Allen, 16; Woodward v. Worcester, 121 Mass. 245; Dwight Printing Co. u. Boston, 122 Mass. 58.3 ; McGenness v. Adriatic Mills, 116 Mass. 177 ; Richmond Manuf . Co. v. Atlan- tic De Laine Co., 10 R. 1. 106 ; Lewis V. Stein, 10 Ala. 214; O'Riley v. Mc- Chesney, 3 Lans. 278; 49 N. Y. 672; Gladf elter ii. Walker, 40 Ind. 1 ; Hols- man V. Boiling Spring Bleaching Co., 14 N. J. Eq. 335 ; Potter v. Froraent, 47 Cal. 165 ; Sanderson v. Pennsylva- nia Coal Co., 86 Penn. St. 401. An allegation in an action for polluting a stream that " said river flows partly around and partly through plaintiffs land aforesaid," sufficiently shows that he is a riparian proprietor thereon. Greene v. N. 36 Wis. 50. 1 Year Book, Hen. II. b. 6 ; Moore !'. Webb, 1 C. B. n. s. 673 ; Coulson v. Forbes on Waters, 170; Greene u. Nunnemach'er, 36 Wis. 50; Hazeltine V. Case, 46 Wis. 391 ; Smith v. Mc- Conathy, 11 Mo. 517. '^ Attorney General u. Stewart, 20 N. J. Eq. 415 ; Babcock v. New Jersey Stock Yard Co., Ibid. 296; Woodyear ». Schaefer, 57 Md. 1. 5 Norton v. Scholefield, 9 M. & W. S65; Womesly c. Church, 17 L. T. N. B. 190 ; Hipkins v. Birmingham Gas- light Co., 6 H. & N. 250; 5 II. & N. 74 ; Sherman v. Fall River Iron Works, 5 Allen, 213; 2 Allen, 524; Ball V. Nye, 99 Mass. 582 ; Pottstown Gas Co. V. Murphy, 39 Pemi. St. 257 ; Ottawa Gaslight Co. v. Graham, 35 111. 346 ; Woodward v. Aborn, 35 Maine, 271 ; Carhart v. Auburn Gaslight Co., 22 Barb. 297 ; Tate v. Parrish, 7 Mon. (Ky.) 325. * Hodgkinson r. Ennor, 4 B. & S.^ 229, 240 ; Carhart v. Auburn Gaslight Co., 22 Barb. 297; Ball c. Nye, GO Mass. 582. '' Hodgkinson v. Ennor, 4 B. & S. 229 ; Wright v. Williams, 1 M. & W. 77 ; Lincoln v. Taunton Copper Manuf. Co., 9 Allen, 181. ^ Wood V. Sutcliffe, 16 Jur. n. s. 75. ' Pennington v. Brinsop, 5 Ch. J). 769. 8 Stockport Waterworks Co. «. Potter, 7 H. & N. 160. ^ Merrifield v. Lombard, 13 Allen, 16. 10 Mason u. Hill, 3 B. & Ad. 304; Wood V. Waud, 3 Exch. 748 ; Tipping C-. Eckersley, 2 K. & J. 264. 11 Attorney General v. Cockermouth, L. E. 18 Eq. 172 ; Attorney General V. Colney Hatch, L. R. 4 Ch. 146; Attorney General v. Leeds, L. R. 5 Ch. 533; Attorney General v. Bir- mingham, 4 K. & J. 528 ; Goldsmid «. 390 THE LAW OF WATEKS. [PAET U. culinary purposes,^ or for cattle to drink of,^ or fish to live in,^ or for manufacturing purposes.* If the pollution affects the public, as by urinating in a spring near a highway, from which persons in the vicinity and travellers upon the high- way are accustomed to drink, it is the subject of a public prosecution.^ § 220. Proprietors upon streams may cast sewa e and waste mater al therein, if they do not thei-eby cause material injury to public or private rights.^ The natural right of one proprietor to have the stream descend to him in its pure state must yield in a reasonable degree to the equal right of the upper proprietors, whose fertilization, cultivation or occupation of their own lands, and whose use of the stream for mill and manufacturing purposes, for irrigation, and domestic purposes will tend to make the water more or less impure, especially when the population becomes dense." So, it is of public importance that the proprietors of useful manufactories should be held_ responsible only for appreciable injujy caused by their works and not for slight Tunbridge Wells Commissioners, L. n. s. 778 ; Aldred's Case, 9 Rep. 59 a ; R. 1 Ch. 349 ; Attorney General v. Seaman v. Lee, 10 Hun, 607. Kingston, 13 W. R. 888 ; Spokes v. * Clowes v. Staffordsliire Potteries Banbury Board of Health, L. R. 1 Co., L. E. 8 Ch. 125 ; Crossley i: Eq, 42 ; Attorney General y. Hackney Lightowler, L. E. 2 Ch. 478 ; Ling- Local Board, L. R. 20 Eq. 626 ; Poul- wood v. Stowmarket Co., L. R. 1 Eq. sum u. Thirst, L, R. 2 C. P. 449; 77;Tipping!;. Eckersley, 2K. & J.2C4; Columbus V. Hydraulic Woollen Mills Wood v. Sutcliffe, 2 Sim. N. S. 163. Co., 33 Ind. 435 ; Jacksonville v. ^ State v. Taylor, 29 Ind. 517. Lambert, 62 111. 519. 6 Haskell v. iiew Bedford, 108 1 Goldsmid u. Tunbridge Wells, L. Mass. 208, 214; Hayes v. Waldron, R. 1 Ch. 349; Howell v. McCoy, .3 44 N. H. 580; Smith ^. Barnham, 1 Rawle, 256. Ex. D. 419 ; Prentice ;.. Geiger, 74 N, 2 Attorney General v. Birmingham, Y. 341 ; O'Eiley v. McChesney, 49 N, 4 Kay & J. 528 ; Manchester Railway Y. 672 ; 3 Lans. 278 ; Thomas u. f. Worksop, 23 Beav. 198; Attorney Brackney, 17 Barb. 654; Palmer !- General o. Luton, 2 Jur. n. s. 181; Mulligan, 3 Caines, 307; Honsee Oldaker v. Hunt, 6 De G. M. & G. 376 ; Hammond, 39 Barb. 89. Pvyight Printing Co. v. Boston, 122 ' Merrifleld r. Worcester, 110 Mass. Mass. 583; Moore v. Webb, 1 C. B. 221, 222; Cator v. Lewisham Board N. s. 673 ; Sanderson v. Pennsylvania of Works, 5 B. & S. 143 ; Sanderson Coal Co., 86 Penn. St. 401. v. Pennsylvania Coal Co., 86 Penn. St. 2 Ibid. ; Bidder i: Croydon, 6 L. T. 401. CHAP. VI.] EIGHTS OF MPABIAl^' PEOPRIETOKS. 391 inconYeniences or occasional annoyances.' When an injunc- tion is sought to stop large and expensive works which cause a stream to be polluted, it must clearly appear that the le- gal remedy is inadequate, and that the plaintiff will suffer irreparable injury from the continuance of the pollution. An injunction will be refused if the plaintiffs premises are several miles below those of the defendant, and the water of the stream in the plaintiff's vicinity is not materially affected.2 " In regard to many uses of the water in streams," says Redfield, C. J.,^ "it has been so long settled by common consent, or is so obvious in itself, that it is determinable as matter of law. Such are the uses for irrigation, for propel- ling machinery, and for watering cattle, and some others. And in regard to some debris or waste deposits in such streams, there would seem to be no question. The uniform practice, the convenience, and in some instances the indis- pensable necessity, would seem sufficiently to decide such cases. Among these may be named the infusion of soap dyes, and other materials iised in manufacturing, into the streams by which the machinery is propelled. The deposit of saw-dust, to some extent, is nearty indispensable in the running of saw-mills, and most other machinery used "ui the manufacture of wood and propelled by water power. The reasonableness of such use must determine the right, and this must depend upon the extent of detriment to the riparian proprietors below. If it essentially impairs the use below, then it is unreasonable and unlawful, unless it is a thing altogether indispensable to anj'' beneficial use at every point of the stream. An extent of deposit which might be of no account in some streams might seriously affect the usefulness of others. So, too, a kind of deposit which would affect one stream seriously, would be of little importance in another. There is no doubt one must be ' Sanderson v. Pennsylvania Coal ' Snow v. Parsons, 28 Vt. 459, 461 ; Co., 86 Penn. St. 401. Jacobs v. Allard, 42 Vt. 403 ; Canfield - New Boston Coal Co. o. Pottsville v. Andrew, 54 Vt. 1 ; Prentice v. Geiger, Water Co., 54 Penn. St. 164; Rich- 74 N. Y. 341. ard's Appeal, 57 Penn. St. 105. 392 I'HE LAW OF AVATEIIS. [PAKT IT. allowecl to use a stream in such a manner as to make it useful to himself even if it do produce slight inconvenience to those below." A riparian owner is liable when he permits the drift-stuff from his mill to be carried, by the ordinary force of the current, or by freshets which are likely to occur in the stream, upon the land of a lower proprietor to his injury;^ when he injures another by an overflow of the water caused by his allowing dirt to accumulate in the chan- nel of the stream,^ or in the pool of his dam;^ or when his operations cause refuse o]j mud to accumulate to an unreason- able amount in a lower dam* or mill-race,® or to obstruct the plaintiff's irrigating ditches.^ When the property of others is thus encumbered, the measuije of damages is the cost of removing the deposit from the premises, if less than the depreciation in value of the property, and, if greater, then the difference in the value of the property.' The plaintiff cannot recover for such consequential injuries as might have been avoided by timely and reasonable action on his own part ; ^ but the right to damages is not affected by the fact ^ Crosley v. Bessey, 49 Maine, 539; Elgin Hydraulic Co. r. Elgin, 74 III. Yeazie v. Dwinel, 50 Maine, 479 ; 433 ; Easterbrook v. Erie Railroad Co., Gerrish v. Brown, 51 Maine, 250 ; 51 Barb. 94. Washburn v. Oilman, 64 Maine, 1G3 ; * Lawson v. Price, 45 Md. 123. If Winchester v. Osborne, 61 N. Y. 555 ; land is bought on a stream with the 62 Barb. 337 ; Bushnell v. Proprietors, sole purpose of compelling its pnr- 31 Conn. 150 ; Robinson v. Black chase by the owner of an expensive Diamond Coal Co., 50 Cal. 460. quartz mill above, the operations of 2 Carlyon u. Lovering, 1 H. & N. which necessarily deposit large quan- 784. titles of sand upon this land, the ' Schuylkill Navigation Co. u. Mc- plaintiff's motive may be inquired Donough, 33 Penn. St. 73 ; Eehr v. into upon a bill for an injunction, Schuylkill Navigation Co., 69 Penn. and he may be left to his remedy at St. 101. law. Edwards v. Allenez Mining Co., * Murgatroyd v. Robinson, 7 El. & 38 Mich. 46 ; Jenkins v. Cooper, 50 Bk. 301 ; Brooke ... Winter, 39 Md. Ala. 419 ; Bassett v. Salisbury Manuf. 505. A reversioner has a right of Co., 47 N. H. 426. A corporation action for this cause. Beavers v. formed for specific purposes cannot Trimmer, 25 N. J. L. 97. ptirchase or lease land overflowed, *■ Panton v. Norton, 18 111. 490 ; which is not required for its legiti- Jones V. Crow, 32 Penn. St. 398 ; Law- mate business, for the sole purpose son V. Price, 45 Md. 123. of instituting a suit for the flooding. Bell V. Shultz, 18 Cal. 449 ; Cecum Co. v. Sprague Manuf. Co., 34 Xevaroni v. Miller, 34 Cal. 231. Conn. 529, 541. But, in general, the ' Seely v. Alden, 01 Penn. St. 302 ; defendant, in an action for a trespass CHAP. Vr.] EIGHTS OF EIPAEIAN PEOPEIETOKS. 393 that it is more economical and convenient for the defendant to cast rubbish into the stream than to dispose of it other- wise,^ or. that the defendant's act is supported by usage upon the same or other similar streams.^ The vendor of a riparian estate cannot, in derogation of his own grant, continue to pollute the stream in front of the land sold : ^ and a person who is in actual occupation and possession of land on a stream, under an executory contract of purchase, has the same right as a riparian proprietor to maintain an action for injuries to his interest caused by fouling.* Where the de- fendant, in working a coal mine, caused a dejDOsit of coal dust, ashes, sand, and other debris to be carried down by the water of a natural stream and deposited upon the plain- tiffs land, he was helci liable for the damage so caused, although the stream overflowed the plaintiff's land in its natural course.* § 221. In Pennington v. Brinsop Hall Coal Co.^ the plain- tiffs claimed both as riparian proprietors and as having a prescriptive right to use the water of the stream for the purposes of their mill, and their bill for an injunction to restrain the pollution of the stream by the defendants was maintained without proof of actual damage. It was held that rights to running water and to light and air are not analogous, and that damages should not be awarded in lieu of the remedy sought. "The rights of the plaintiffs as riparian owners," said Fry, J., "are not limited to their present modes of enjoyment." " It is impossible to foresee what mode of enjoyment the plaintiffs, or their successors in title, may resort to, or the extent of damages which would or nuisance, has no right to inquire Parsons, 28 Vt. 459 ; Gould v. Boston into the good faith of the plaintiff's Duck Co., 13 Gray, 442. possession. Eberliard c. Tuolumne ^ Crossley v. Lightowler, L. R. 3 Water Co., 4 Cal. 308. Eq. 279 ; L. E. 2 Ch. 478. 1 Ante, §§ 209, 211 ; Canfield a. * Honsee o. Hammond, 39 Barb. Andrew, 54 Vt. 1. 89. ^ Ibid. ; Pennsylvania Coal Co. u. * Eobinson v. Black Diamond Coal Sanderson, 94 Penn. St. 302 ; Hayes v. Co., 57 Cal. 412. Waldron, 44 N. H. 580. But see Pren- ^ 5 Ch. D. 700 ; 40 L. J. Ch. 773 ; tice r. Geiger, 74 N. Y. 346 ; Snow v. Elmhirst v. Spencer, 2 Mac. & G. 45. 394 THE LAW OF WATERS. [PAET II. be a compensation for the injury which the continued polhi- tion might cause to s^ch new modes of enjoyment." Respect- ing tlie difference between injury and damage, the learned judge further said : " The pollution of a clear stream is to a riparian proprietor below both injury and damage, whilst the pollution of a stream already made foul and useless by other pollutions is an injury without damage, which would, however, at once become both injury and damage on the cessation of the other pollutions." § 222. If one of two tenants in common of a mill, the rubbish from which obstructs the mills below, does not participate in the wrong, he is not liable for the act of his co-tenant.^ In general, where two or more persons act independently in producing an injury, they are not jointly liable for the combined results of their acts.^ Where suit was brought for damages to a dam filled by deposits of coal dirt from different mines on the stream, some of which were worked by the defendants and their tenants and some by persons not connected Avith the defendants, the latter were held not liable for the whole damage caused by the deposits, or for the acts of their tenants so far as these were done without their sanction.^ So, where the plaintiff's br:arders left his boarding house in consequence of the corru].t and offensive condition of the adjoining stream, caused by the sewage discharged into . it from a large number of hotels and other boarding houses before it reached the plaintiff's premises, it was held that each proprietor causing the pollu- tion was liable only to the extent of the wrong committed by him.'' Miller, J., said : " The injury was not caused by 1 Sirtipson V. Seavey, 8 Maine, 138. v. Alden, 61 Perni. St. 302 ; Little 2 Little Schuylkill Navigation Co. Schuylkill Navigation Co. v. French, a. Eichards, 57 Penn. St. 142; Wheel- 81 Penn. St. (Pt. 2) 366; Sanderson cr V. Worcester, 10 Allen, 591 ; Blais- v. Pennsylvania Coal Co., 86 Penn. St. dell V. Stephens, 14 Nev. 17; South- 401, 408; Bard ,. Yohn, 2lj Penn. St. western Railroad Co. v. Lee, 47 Ga. 482 ; O'Riley v. McChesney, 3 Lans. 380; Long v. Swindell, 77 N. C. 170; 278; 49 N. Y. 672. Richardson v. Emerson, 3 Wis. 319. * Cliipman v. Palmer, 77 N. Y. 51 ; 3 Little Schuylkill Navigation Co. Sellick v. Hall, 47 Conn. 260. u. Richards, 57 Penn. St. 142 ; Seely CHAP. VI.] EIGHTS OF EIPAEIAN PEOPEIETOES. 395 the act of the defendant alone, or by that of others who were acting jointly or in concert with the defendant. It was occasioned by the discharge of sewage from the premises of the defendant and other owners of lots into the creek separately and independently of each other. The right of action arises from the discharge into the stream, and the nuisance is only a consequence of the act. The liability commences with the act of the defendant upon his own premises, and this act was separate and independent of and without any regard to the act of others. The defendant's act, being several when it was committed, cannot be made joint because of the conseqiiences which followed in con- nection with others who had done the same or a similar act. It is true that it is difficult to separate the injury ; but that furnishes no reason why one tort-feasor should be liable for the act of others who have no association and do not act in ' concert with him. If the law were otherwise, the one who did the least might be made liable for the damages of others far exceeding the amount for which he really was chargeable, without any means to enforce contribution or to adjust the amount among the different parties. So, also, proof of an act committed by one jDerson woiild entitle the plaintiff to recover for all the damages sustained by the acts of others, who severally and independently may have contributed to the injury. Such a rule cannot be upheld upon any sound principle of law." The fact, however, that the stream is fouled by others, even by a large number of persons, is not a defence to a suit to restrain the fouling by one,^ and if at the time when the defendant began to pollute, the stream was already so much fouled by others as to be unfit for the plaintiff's use,' the action would still be maintainable.^ These rules are equally applicable when land is flowed by the acts of several parties contributing together, though not in com- ■' Crossley v. Lightowler, L. R. 2 So of fouling a well. Sherman v. Fall Ch. 482 ; L. R. 3 Eq. 279 ; Attorney River Iron Works, 5 Allen, 213. General v. Leeds Corporation, L. R. ^ ibid. ; Tipping v. St. Helen's Smelt- 5 Ch. 583; Woodyear u. Schaefer, 57 ing Co., 11 H. L. Cas. 642; L. R. 1 Ind. 1; Hill V. Smith, 32 Cal. 166. Ch. 66; 4 B. & S. 608. 396 THE LAW OP WATEKS. [PAET 11. biiiation or concert. It is not a defence to an action against one of them that all are not joined as defendants, and the fact that the independent trespasses of others also produced injury to the plaintiff can be considered only upon the question of damages.^ An action for causing the waters of a lake to overflow the plaintiffs land by the maintenance of a dam across one branch of the outlet of the lake lies, although another and higher dam was subsequently erected across the other branch of the outlet by a third person acting separately, and neither dam of itself would cause the flowage.^ In Lull v. Fox Improvement Co.,^ in Wis- consin, it was held that each of the owners of different dams is liable for the injury occasioned by his own dam, and that the several causes of action cannot be joined in the same suit. The rule which prevents a recovery by one tort-feasor against another, where the negligence or legal fault of both contributes to the injury, does not apply to the obstruction of a stream, and the fact that a mill-owner obstructs the flow of water to his own mill does not prevent his recovering damages from those who cause an additional obstruction.* § 223. An action for damages may be maintained by a riparian proprietor for pollution of a stream ; and a perpetual injunction may be granted to restrain the nuisance, if it is of a continuous nature, even when the plaintiff could only recover nominal damages at law, because of the in- ' Pumpelly i'. Green Bay Co., 13 which overflows the plaintiff's land, Wall. 166; Arimond v. Green Bay brought against the person who con- Canal Co., .35 Wis. 41 ; Jones v. United structed it, the grantees of the right States, 48 Wis. 385 ; !Folsom v. Apple to use the water are not necessary de- River Co., 41 Wis. 602; Richardson fendants. Xewell v. Smith, 26 Wis. V. Kier, 34 Cal. 63 ; Hooksett v. Amos- 582. The owner of a dam exposes keag Manuf. Cp., 44 N. H. 105. himself to as many suits as there 2 Arimond v. Green Bay Canal Co., are parties whose rights are inju- 35 Wis. 41 ; 31 Wis. 316. riously affected by his wrongful acts. 3 19 Wis. 100. See Wheeler u. Toothaker v. Winslow, 61 Maine, 123, Worcester, 10 Allen, 591 ; Wright o. 133. Cooper, 1 Tyler (Vt.) 425; 2 Thomp- * Clarke v. French, 122 Mass. 419; son on Negligence, 1088. In an ac- Brown i.. Dean, 123 Mass. 254; Wil- tion to abate, as a nuisance, a, dam liamson v. Tingling, 80 Ind. 379. CHAP. VI.] EIGHTS OP RIPARIAN PROPRIETORS. 397 convenience of repeated and successive actions, and of the acquisition of an adverse right to pollute by the con- tinuance of the act for twenty years.^ The court will not, in general, award damages in lieu of an injunction,^ and if it is established that the mischief complained of is a special injury to a private right, even though it may also amount to a public nuisance,^ the plaintiff is entitled to an injunction at once, whatever inconvenience or expense it may cause to the defendant.* Where, however, the difficulty of remov- ing the nuisance is great, the court will suspend the injunc- tion for a time to render its removal possible.^ In granting an injunction to restrain pollution by sewage matter, it is the practice in England to grant an immediate injunction restraining any new communications with the stream, and to suspend the operation of the order for a time to enable the defendants to comply with the order by altering their works." If the injury is caused by the acts of a city in discharging its sewage unlawfully, due regard will be had to the public ' Clowes V. Staffordshire Water Co., i. E. 8 Ch. 125, 143 ; Pennington v. Brin- sop Hall Coal Co., 5 Ch. D. 769 ; Swin- don Water Co. v. Wilts Canal, L. R. 7 H. L. 705 ; Goldsmith v. Tunbridge Wells, L. R. 1 Ch. 349; L. R. 1 Eq. 161 ; Crossley v. Lightowler, L. E. 2 Ch. 478 ; L. E 3 Eq. 279 ; Harrop «. Hirst, L. R. 4 Ex. 43 ; Attorney Gen- eral 0. Birmingham, 4 Kay & J. 528 ; Nuneaton Local Board v. General Sewage Co., L. R. 20 Eq. 127; At- torney General v. Gee, L. R. 10 Eq. 13] ; Coulson & Forbes on Waters, 157 ; Merrifield v. Lombard, 13 Allen, 18 ; Holsman v. Boiling Sjjring Bleach- ing Co., 14 N. J. Eq. 335 ; Lewis c. Stein, 16 Ala. 214; New Boston Coal Co. V. PottsTille Water Co., 54 Penn. St. 164. ^ Clowes V. Staffordshire Potteries Waterworks Co., L. R. 8 Ch. 125: Pennington v. Brinsop Hall Coal Co., 5 Ch. D. 769; Wood v. Sutcliffe, 2 Shn. N. S. 163 ; Imperial Gas Co. v. Broadbent, 7 II. L. 612 ; Kerr on In- junctions (4th ed.), 44; Aynsley v. Glover, L. R. 18 Eq. 544 ; L. R. 10 Ch. 283 ; Dent v. Auction Mart, L. R. 2 Eq. 283 ; Leech ... Schweder, L. R. 9 Ch. 463. 3 Haskell v. New Bedford, 108 Mass. 216 ; Reg. v. Bradford Navigation Co., 34 L. J. N. s. (Q. B.) 191. * Attorney General v. Birmingham, 4 Kay & J. 520 ; Attorney General v. Kingston on Thames, 34 L. J. Ch. (N. S.) 481. ^ Ibid. ; Spiker ». Banbury, L. R. 1 Eq. 42 ; Attorney General v. Shef- field, 3 De Gex, M. & G. 304 ; Attor- ney General v. Leeds Corporation, L. R. 5 Ch. 583; Attorney General r. Hackney, L. R. 20 Eq. 031. , ^ Ibid. ; Attorney General v. Colney Hatch, L. R. 4 Ch. 140 ; Pennington 0. Brinsop Hall Coal Co., 5 Ch. 76!) ; Attorney General r. Halifax, 29 L. . Brown, Co., 16 Pick, 241 ; Williams v. ISTelson, 35 Mich. 333 ; Timm I'. Bear, 29 Wis. 23 Pick. 141; Elliott v. Fitchburg 254 ; Stout r. McAdams, 2 Scam. 67 ; Bailroad Co., 10 Cush. 191. AVilco.xon t,. SIcGee, 12 111.381; Bliss » Smith v. Agawam Canal Co., 2 !■■ Kennedy, 43 111. 67; Rudd i: Wil- Allen, 355, 357 ; Dean r. Colt, 99 Mass. liams, 43 111. 385; Ilendrick v. Cook, 480; Gleason v. Assabet Manuf. Co., 4 Ga. 241 ; Pool v. Lewis, 41 Ga. 162 ; 101 Mass. 72 ; Thurber i: Martin, 2 Beavers <,. Trimmer, 25 N. J. L. 97 ; Gray, 394. CHAP. VII.J APPEOPEIATION AND PEIOKITY. 407 miners upon the public lands ; and the right to running water exists without private ownership of the soil, upon the ground of prior location upon the land or prior appropriation of the water. When there is no private ownership of the soil, the rights acquired by such priority are as perfect and absolute as if acquired by prescription or by an express grant from riparian proprietors. ^ " The reasons," says Sanderson, C. J.,^ " which constitute the groundwork of the common law upon this subject remain undisturbed. The conditions to which we are called to apply them are changed, and not the rules themselves. The maxim, sic utere tuo ut alienum non laedas, upon which they are grounded, has lost none of its governing force ; on the contrary, it remains now, and in the mining regions of this State, as operative a test of the lawful use of water as at any time in the past, or in any other country. When the law declares that a riparian proprietor is entitled to have the water of a stream flow in its natural channel — ubi currere solebat — without diminution or alteration, it does so because its flow imparts fertility to his land, and because water in its pure state is indispensable for domestic uses. But this rule is not applicable to miners and ditch owners, 1 Kidd V. Laird, 15 Cal. 161 ; Butte silent acquiescence, assented to the T. M. Co. V, Morgan, 19 Cal. 609. general occupation of the public lands 2 Hill f. Smith, 27 Cal. 476, 482. for mining, and, to encourage their In Atchison v. Peterson, 20 Wall. 507, free and unlimited use for that pur- 512, Keld, J., after referring to the pose, reserved such lands as were common-law rule by which the differ- mineral from sale, and the acquisi- ent riparian proprietors have an equal tion of title by settlement. And right to use the water of tlie stream, he who first connects his own labor said : " This equality of right among with property thus situated and open all the proprietors on the same stream to general exploration, does, in natu- would have been incompatible with ral justice, acquire a better right to any extended diversion of the water its use and enjoyment than others by one proprietor, and its conveyance who have not given such labor. So for mining purposes to points from the miners on the public lands through- which it could not be restored to the out the Pacific States and Territories stream. But the government being by their customs, usages, and regula- the sole proprietor of all the public tions everywhere recognized the in- lands, whether bordering on streams or herent justice of this principle; and otherwise, there was no occasion for the principle itself was at an early the application of the common-law period recognized by legislation and doctrine of riparian proprietorship enforced by the courts in those States with respect to the waters of those and Territories." streams. The government, by its 408 THE LAW OF ^VATEKS. [PAET II. simply becaiise the conditions upon which it is founded do not exist in their case. They seek the water for a particular pur- pose, which is not only compatible with its diversion from its natural channel, but more frequently necessitates such diversion, and moreover does not require the water in a pure state in order to insure its reasonable and beneficial use. Yet the maxim above mentioned, upon which the rule is founded, is equally as applicable to the ditch owner and to the miner as to the ripaiian proprietor, and neither can so use the water as to injure or prejudice the prior rights to a like use by the other. Ttiis maxim is one which every riparian proprietor is bound to respect, and it is no less obligatory upon those who use and divert water for mining purposes." The remainder of this chapter is devoted to the rules which are applicable ui the States above referred to, and are peculiar to them. § 229. As between persons who claim the water of a stream flowing through the public land, merely by the prior appropriation of the water itself, or by a prior location upon the land, he has the best right who is first in time.^ The first appropriator is entitled to use and enjoy the water to the full extent of his original appropriation, even when this includes all the water of the stream, to have its quality unimpaired so as not to defeat the purpose of such appropriation, and to remove obstructions from the natural channel.^ He may apply it to any beneficial purpose, without any obligation to 1 Butte Canal Co. v. Vaughan, 11 Ophir Silver Mining Co. i . Carpenter, Cal. 143 ; Ortman v. Dixon, 13 Cal. 38; 4 Ner. 534 ; James v. Goodenough, 7 McDonald v. Bear Kiver Mining Co., Nev. 824 ; Dalton v. Bowker, 8 Nev. 15 Cal. 145 ; 13 Cal. 220 ; Hoffman v. 190 ; Schilling u. Eominger, 4 Col. Stone, 7 Cal. 49 ; Irwin v. Phillips, 5 100 ; Tliorp v. Woolman, 1 Men. Cal. 140; Sims ^. Smith, 7 Cal. 148; 168. Marius v. Bicknell, 10 Cal. 217 ; Hill ^ n^d. ; Lobdell r. Simpson, 2 Ner. ).. Newman, 5 Cal. 445 ; Leigh Co. u. 274 ; Ophir Silver Mining Co. r. Car- Independent Co., 8 Cal. 323 ; Sullivan penter, 4 Nev. 543 ; Barnes v. Sabron, V. Beardsley, 55 Cal. 608 ; Atchison v. 10 Nev. 217 ; Nevada "Water Co. v. Peterson, 20 Wall. 507 ; 1 Mon. 561; Powell, 34 Cal. 109; Gale v. Tuo- Basey v. Gallagher, Id. 670; 1 Mon. lumne Water Co., 14 Cal. 25; Sims v. 455 ; Stafford v. Hornbuckle, 3 Mon. Smith, 7 Cal. 148. 485 ; Lobdell v. Simpson, 2 Nev. 274 ; CHAP. Vn.] APPROPEIATION AND PEIOEITY. 409 return it to the stream from- which it was taken, or to pre- serve its purity or quantity.^ He is equally entitled to have his right unimpaired by subsequent locators above as well as below him,2 and may peacefully abate an obstruction in the stream which interferes with his superior claim, even when by statute an abatement is authorized by legal remedies.^ Percolating water cannot be permanently appropriated, and the owner of land on which a spring is situated may so use his land as to cut off the water from an irrigating ditch which is supplied from the spring.* Subsequent appropria- tors do not acquire any right to the waters of springs which have been previously appropriated, and which constitute the the source of a creek, from the fact that the means by which the waters reach the creek are subterranean and not well un- derstood.^ § 230. The right to thus appropriate water exists without private ownership in the soil as against all persons but the government or its grantees.^ Possession of public land which has not been surveyed or patented gives rise to no riparian rights in i the streams which flow through it." If the Avater of a stream on the public land is appropriated and the land is afterwards patented, the patentee succeeds, in the absence of statute,^ to the right of the government, unen- cumbered by the previous appropriation, and as no prescrip- tion runs against the government, it is immaterial how long the water may have been appropriated and used in a particu- lar manner prior to the issue of the patent.^ The first appro- priator is only required to prove his priority in an action ^ tJnion Mill Co. v. Ferris, 2 Saw- sickle v. Haines, 7 Ney. 249 ; Parks v. yor, 184; Hill v. Smith, 32 Cal. 166; Barkley, 1 Mon. 514. Bear Eirer Co. v. York Mining Co., ' Ibid. ; Lake v. ToUes, 8 Nev. 285 ; 8 Cal. 327; Mokelumne Hill Co. v. Eobinson v. Imperial Silver Mining Woodbury, 10 Cal. 185. Co., 5 Nev. 44. But see Crandall v. 2 Hill V. King, 8 Cal. 336. Woode, 8 Cal. 136. 8 Stiles V. Davis, 5 Cal. 120 ; Butts « See post, § 240. T. M. Co. u. Morgan, 19 Cal. 609. ^ Ibid.; Union Mill Co. v. Ferris, * Hanson K. McCue, 42 Cal. 304. 2 Sawyer, 176; Vansickle v. Haines, ^ Strait V. Brown, 16 Nev. 317. 7 Nev. 249 ; I'ope v. Kinman, 54 « Hill V. Newman, 5 Cal. 445 ; Van- Cal. 3. 410 THE LAW OF WATERS. [PART II. against one who simply denies that he is first in time.^ The defendant, if he has no patent, cannot defeat the action by proof of tlie paramount title of the government ; ^ . and if a prior claim to the water exists in a third person, this fact, to be available in defence, must be pleaded specially.^ § 231. The right of the first appropriator is fixed by his appropriation, and when others locate upon the stream or appropriate the water, he cannot enlarge his original appro- priation or make any change in the channel to their injury.* Each subsequent locator or appropriator is entitled to have the water flow in the same manner as when he located, and may insist that the prior appropriators shall be confined to what was actually appropriated or necessary for the purposes for which they intended to use the water.^ If a portion of the water is ajjpropriated only for certain days, others may 2iot only appropriate the surplus in whole or in part, but may use the quantity of water first appropriated, at such times as it is not used or needed by the first approjDriator.^ 1 Coryell V. Cain, 10 Cal. 567. owner. Crary „. Campbell, 24 Cal. ^ Ibid. 634. The water flowing in a ditch ^ Humphreys v. McCall, 9 Cal. 59 ; owned by tenants in common cannot Bird V. Lisbros, Id. 1. be partitioned, but, in case of dispute ^ Lobdell V. Simpson, 2 Nev. 274 ; as to their respective rights, a sale Proctor V. Jennings, Nev. 8-3 ; Barnes and distribution of the proceeds may o: Sabron, 10 Nev. 217 ; American Co. be ordered by the court. SIcGillivray V. Bradford, 27 Cal. 360 ; Nevada v. Evans, 27 Cal. 92. Where a ditch Water Power Co. ti. Powell, 34 Cal. for mining purposes is owned by 109 ; Iliggins v. Barker, 42 Cal. 233. several proprietors, and their relation '' Ibid. See jjost, § 286. is not otherwise defined, they are to '' McKinney v. Smith, 21 Cal. 374 ; be regarded as tenants in common of Smith V. O'llara, 43 Cal. 371 ; Barnes real estate, and their rights are deter- V. Sabron, 10 Nev. 217. Where one mined by the rules of law applicable tenant in common receives all the to such tenants. Bradley t: Ilark- rents and profits from the business of ness, 26 Cal. 69 ; Jones i\ Parsons, 25 a ditch or mine, his co-tenant may Cal. 100 ; Reed v. Spicer, 27 Cal. 63 ; maintain an action at law against him Parke t. Kilham, 8 Cal. 77. Their to recover his share. Abel u. Love, relation has some of the incidents of 17 Cal. 2.33. If one joint owner of a a partnership. Goodenow r. Ewer, 10 flume used for mining purposes con- Cal. 461 ; Jones w. Parsons, 25 Cal. 100; sents to the opening of a ditch above, Duryea v. Burt, 28 Cal. 569 ; Dougher- the water from which injures the ty v. Creary, 30 Cal. 290; Chase r. flume, damages cannot be recovered Steell, 9 Cal. 66; Bradley c. Ilark- for such injury by_ the other joint ness, 26 Cal. 69. When necessary, a CHAP. VII.J APPEOPEIATION AND PRIORITY. 411 The right of the first appropriator is not determined by a comparison of the value of the \tater to him and to subse- quent locators;^ but if he is entitled to all the water of the stream at the point where his ditch starts, others cannot complain if it is enlarged.^ When the prior appropriation is for a particular purpose, as for running a mill, it does not include all the water at that point, when there is more than is sufficient for that purpose, but only so much as is actually needed ; and the appropriator cannot afterwards extend his appropriation to include more water to the detriment of those who have meanwhile appropriated the surplus,^ or maintain an action against subsequent claimants whose acts do not impair his use and enjoyment of the water for the original purpose intended.* Even when physical and unan- ticipated changes occur in the stream, whether from natural or artificial causes, one who, by means of a dam and ditch, has first diverted a portion of the water of a stream sufficient for his purpose according to the condition of the stream at the time, is not entitled to raise the height of his dam in order to continue the diversion through the ditch and thereby in- terfere with the rights of subsequent locators whose acts have not caused the change.^ The extent of the original appropria- tion, and the extent to which subsequent acts of appropria- tion are subordinate to it, are questions of fact for the jury ; ^ but if there is no evidence of a more extended right, and the quantity originally appropriated was sufficient for the pur- pose designed, the use made of the water for a term of years affords a proper test.^ A temporary or trivial impairment majority of them may determine the ^ James v. Williams, 31 Cal. 211. modes of carrying on the business. ^ Ortman u. Dixon, 13 Cal. 33 Dougherty v. Creary, 30 Cal. 290. McKinney v. Smithi 21 Cal. 374 But no authority is conferred upon Atchison v. Peterson, 20 Wall. 507 one member to bind the company by Basey v. Gallagher, Id. 607 ; Kelly v. his contract. McConnell u. Denver, Natoma Co., 6 Cal. 105. 35 Cal. 365. One partner does not * Hill v. Smith, 27 Cal. 476. forfeit his rights in the common prop- ^ Nevada Water Co, v. Powell, 34 erty by failing to pay his proportion Cal. 109. of the expenses. Kimball v. Gear- '' Ibid. hart, 12 Cal, 27. ' Ibid. ; Ortman ;;. Dixon, 13 Cal. 1 Weaver v. Eureka Lake Co., 15 33. Cal. 271 ; Fabian e. Collins, 2 Mon, 510. 412 THE LAW OF WATERS. [PAET II. of the regularity of the flow of the stream, or of the purity of the water, which does not cause actual injury to the prior claimant, does not give him a cause of action.^ § 232. Wlien water is conducted through an artificial ditch over another's land, the ditch ovmer is bound to keep it in repair, so that the water will not pass the banks and injure the lands of others by washing away the soil or cover- ing it with sand;^ and it is not material who had the prior right or title.^ If he uses a ravine or natural watercourse as part of his ditch, he is not responsible for injuries done by the natural waters thereof, but only for such overflow as is caused by his use of the watercourse as part of his ditch.* The owner of a ditch or flume who erects a dam above mining claims, which are afterwards damaged by the break- ing of the dam, is not liable for the injury, if the dam was constructed with reasonable skill, and no negligence is shown in its repair or management,^ or if it is wholly in charge of a contractor.® So if a ditch is injured without fault on the owner's part, as by burrowing animals or falling trees, he is not liable to subsequent appropriators or loca- tors of adjoining claims which are injured by the breaking of the ditch.'^ If an artificial ditch is constructed across a natural watercourse, which it clams up, and which in a time of flood renders it necessary to cut the embankment of the ditch to preserve it from injury, the owner of the ditch iis guilty of negligence if he cuts the embankment at a point 1 Phoenix Water Co. i\ Fletcher, was present and could have prevented 23 Cal. 481; Natoma Water Co. v. the mjury by committhig a trespass. McCoy, Id. 490 ; Bear River Co. f. New Wolfe c. St. Louis, 16 Cal. 319 ; 10 Cal. York Mining Co., 8 Cal. 327 ; Weaver S41. V. Eureka Lake Co., 15 Cal. 271. " Ibid. 2 Richardson ;■. Kier, 34 Cal. GO ; " Everett v. Hydraulic Co., 23 Cal. 37 Cal. 203 ; Wolf v. St. Loixis Water 225 ; Eralen-. Sears Union Water Co., Co., 10 Cal. 541 ; Robinson y. Black 12 Cal. 555; Tuolumne County Co. v. Diamond Coal Co., 50 Cal. 460 ; Darst Columbia Water Co., 10 Cal. 194 ; V. Rush, 14 Cal. 81 ; Campbell v. Bear Todd i. Cochell, 17 Cal. 97. River Co., 35 Cal. 679 ; Mathews i,. « Boswell v. Laird, 8 Cal. 469. Kinsell, 41 Cal. 512. ' Tenney v. Miners' Ditch Co., 7 ^ Ibid. The plaintiff's right to dam- Cal. 335. ages is not affected by the fact that he CHAP. Vn.] APPROPRIATION AJSD PRIORITY. 413 where there is no natural watercourse, thereby turning the water upon cultivated lands, and cannot claim that the injury results from the act of God.^ § 233. Whether the appropriation is for mining, for mill purposes, or for irrigation, the rights thereby acquired stand upon the same footing, and an appropriation or use of the water for one of these purposes is not justifiable when it inteferes with a prior appropriation or location for another purpose.^ The prior possessory rights of settlers on the public lands for agricultural and grazing purposes yield to the rights of miners to enter and extract the precious metals, but this does not authorize the miner to dig ditches and conduct or flow water over the land of the agriculturalist without his consent.^ The prior owner of the right of way for a ditch cannot be lawfully deprived thereof by the decree of a court of equity authorizing the ditch to be washed away by miners upon condition that a suitable aqueduct be built in its place.* If the appropriation is for mining purposes and there are orchards or gardens below on the stream, the appropriated water must be so used as not to 1 Turner v. Tuolumne "Water Co., Cal. 220 ; 15 Cal. 145 ; Tarter v. Spring 25Cal. 397. The doctrine of lateral Creek Co., 5 Cal. 395; Ramsay v. support does not apply to "deep dig- Chandler, 3 Cal. 90; Leigh u. Inde- gings " worked by the hydraulic pro- pendent Ditch Co., 8 Cal. 328 ; Hill i . cess, where the very purpose of lo- Smith, 27 Cal. 476 ; Ortman v. Dixon, eating the ground is to tear down 13 Cal. 34; Gipson r. Puchta, 33 Cal. and wash away the gravel of the lo- 310 ; Basey v. Gallagher, 20 Wall. 682 ; cated claims. Hendricks u. Spring Val- Jennison v. Kirk, 98 U. S. 453. ley Mining Co., 58 Cal. 190. Where 3 Stokes v. Barrett, 5 Cal. 36 ; Tar- a lease contained a covenant to keep ter v. Spring Creek Co., 5 Cal. 395 ; the demised premises in repair, " dam- Burdge v. Underwood, 6 Cal. 45 ; Con- ages by the elements or acts of Provi- ger v. Weaver, 6 Cal. 548 ; Weimer v. dcnce excepted," and near by was a Lowery, 11 Cal. 104 ; Boggs v. Merced reservoir sufficiently protected by an Mining Co., 14 Cal. 370 ; Henshaw r. embankment, which was so injured by Clark, Id. 480 ; Gold Hill Mining Co. strangers that it gave way and the v. Ish, 5 Oregon, 104 ; Gillan v. Hutch- water rushed upon the demised pre- inson, 16 Cal. 153; Rogers ;•. Soogs, raises, the injury was held not to be 22 Cal. 444 ; Esminge i/. Mclntire, 23 within the exception. Polask u. Pioche, Cal. 593; Courtwright t. Bear River 35 Cal. 416. Co., 30 Cal. 573. = McDonald v. Bear River Co., 13 « Gregory v. Nelson, 41 Cal. 278. 414 THE LAW OF WATERS. [PAKT H. injure the trees or gardens;^ and if a reservoir is constructed across a stream or ravine for the purpose of irrigating a garden, the water cannot be lawfully diverted therefrom, or the reservoir iilled with mud and washings, bj'- persons who afterwards enter for mining purposes.^ So, upon the other hand, the prior right of a person who has diverted the water in a ditch for mining purposes cannot be lawfully impaired by the discharge of refuse from a mill subsequently located on the stream.^ The first locator of a mining claim in the bed of a stream is not entitled to use the channel below as an outlet for tailings to the material injury of other mining claims subsequently located there, but each person mining in the stream is entitled to use, in a proper and reasonable manner, both the channel and water of the stream, and an injury to stibsequent locators is damnum absque injuria, if caused by works which are conducted with reasonable care.* So, if the construction of dams for the purpose of working mining claims in the bed of a canyon is authorized by local customs, damage occasioned by such structures, by flooding the mining claim' of a subsequent locator on the banks of the canyon, is dam,nuin absque injuria.^ The rights of ditch owners against those who work subterranean mines, which cause the bed of the ditch to settle and crack or drain off the water, are governed by the maxim sic utere tuo ut alienum non laedas rather than by any consideration of priority.^ § 234. The right to water acquired by priority is the subject of property, and maj^ be sold and conveyed; but the transfer of a water claim does not pass a right of action for damages for a previous illegal use of the water.'' If the 1 Wixon u. B. Water Co., 24 Cal. v. Harris, 43 Cal. 38 ; Nelson v. O'Neal, 367 ; Robinson v. Black Diamond Coal 1 Mon. 284 ; Lincoln < . Rogers, Id. Co., 50 Cal. 460. 217. 5 Stone V. Bumpiis, 46 Cal. 218; 40 Cal. 428. 8 Clark V. Willet, 35 Cal. 534 ; Cole Silver Mining Co. v. Virginia Water Co., 1 Sawyer, 470. ■^ Kimball v. Gearhart, 12 Cal. 27. 2 Rupley V. Welch, 23 Cal. 452 Leraroni v. Miller, 34 Cal. 231. ^ Phoenix Water Co. v. Fletcher, 28 Cal. 481; Natoma Water Co. i McCoy, Id. 490. * Esmond .-. Chew, 15 Cal. 137 Logan V. DriscoU, 19 Cal. 623 ; Gregory CHAP. VII.] APPROPEIATIOlSr AND miOEITY. 415 ■water is appropriated for a mill, aud this is sold together with the possessory right of land on the stream, the vendee becomes the owner of the water right.^ A person who sells his interest in the water of a stream, to be used in a ditch above him, does not lose his prior right over a subsequent appropriator below to any flow remaining.^ If a ditch or flume in process of construction be mortgaged, the mort- gage will, if such appears to be the intent, include the whole work when completed, and improvements afterwards put thereon, like a mortgage of real estate.^ The ditch when completed is not a mere easement or appurtenance.* One ditch cannot be appurtenant to another ditch and pass by grant as an incident, although it may pass as part and parcel of the subject matter.^ It can only be sold by deed.^ If possession is taken by the vendee under a verbal sale, his right to the water dates from the time of his entry into possession, and not from that of the vendor's appro- priation.'^ The A'"endor's attempt to convey by an imperfect deed operates as an abandonment of his prior appropriation.** General words granting a ditch convey the channel, the right to the water by which it is supplied, and the ditches which convey the water to it.^ In Colorado, the right of way over others' lands in order to obtain water for irrigation appears to result from necessity and the peculiarity of the climate, and to exist independently of statute^" 1 McDonald v. Bear River Co., 13 several railes is constructed oy one Cal. 220 ; 15 Cal. 145. person and sold in sections, the pur- 2 McDonald v. Askew, 29 Cal. 200. chaser of a lower section does not ^ Union Water Co. v. Murphj^'s for all purposes have a legal interest Flat Pluming Co., 22 Cal. 620. in the water flowing into the ditch at * Keed v. Spicer, 27 Cal. 57 ; Clark its head. South Ford Canal Co. v. t). Willctt, 35Cal. 534; Hart y. Plum, Gordon, 6 Wall. 501; Reynolds u. 14 Cal. 148; Merritt K. Judd, 14 Cal. Hosmer, 51 Cal. 205. An Indian may, 59. it seems, maintain an action for the ^ Donnell o. Humphreys, 1 Mon. the diversion of water which he appro- 618 ; Quirk v. Falk, 47 Cal. 453. See priated, and others may succeed to Hungarian Hill Mining Co. o. Moses, his rights. Lobdell Kidd, White ,.. Todd's Valley Co., 8 Cal. 37 Cal. 282 ; Harvey k. Clijltoii, 11 Cal. 443. 114 ; Union Water Co. u. Crary, 25 Cal. - Ophir Silver Mining Co. v. Car- 504. penter, 6 Nev. 393 ; Barnes o Sabron, « AVeaver v. Conger, 10 Cal. 233 ; 6 10 Nev. 217, Caruthers w. Pemberton, Cal., 548. 1 Mon. 111. 9 Tuolumne Water Co. v. Chap- ^ White V. Todd's Water Co., 8 Cal. man, 8 Cal. 392 ; Bensley v. Mountain 443 ; Dougherty v. Haggin, 56 Cal. Lake AVater Co., 13 Cal. 300 ; Stein 522. Canal Co. u. Kern Island Irrigating ^ Kidd V. Laird, 15 Cal. 161. Canal Co., 53 Cal. 563 ; Harris v. s Heyneman i'. Blake, 19 Cal. 579 ; Shoutz, 1 Mon. 212 ; Fabian ;•. Col- Parks Canal Co. v. Hoyt, 57 Cal. 44 lins, 3 Men. 215. « Bear River Co. o. Boles, 24 Cal. " Ibid. 359 ; Brown v. Smith, 10 Cal. 508. CHAP. VII.J APPROPRIATION AND PRIORITY. 419 threatened or likely to continue,^ is in a court of law only. Every continuance of a wrongful diversion gives a new cause of action,^ and a recovery in one action, in which the plain- tiff alleges that he is entitled to a certain quantity of water, is not res adjudicata upon the question of quantity.^ The gravamen of the action is the diversion of the water, and different counts are not necessaiy when the diversion iis accomplished by different means.* § 237. When water has been lawfully appropriated, the priority thereby acquired is not lost by changing the use to which it was first applied or the place at which it was first employed.^ If the original appropriation was for a saw-mill, the water may be used for a grist-mill subsequently erected.*" If the water was appropriated for a mining claim, which is worked out and abandoned, the owner may extend his ditch and use the same quantity of water at other points or for a different purpose,'' or, ceasing to use it, he may hold it for sale.^ The miner may extend his flume on his own claim for the express purpose of preventing a subsequent appro- priator below from constructiiig a ditch on that claim, even though the extension may not be for a useful purpose.^ But the mode of the appropriation or the point of diversion can- not be changed by the first appropriator so as to interfere with the rights acquired by subsequent appropriators.^" § 238. The prior right to the use of the water may be lost by abandonment,^^ or by an adverse possession continued un- 1 Coker v. Simpson, 7 Cal. ,340 ; « McDonald v. Boar River Co., 1.3 ' Tuolumne Co. v. Chapman, 8 Cal. 392. Cal. 220. ^ 2 Toombs ... Hornbuckle, 3 Mon. ' Davis v. Gale, 32 Cal. 26 ; Wool- 193. man w. Garringer, 1 Mon. 535. » McDonald v. Bear River Co., 13 » Fabian v. Collins, 2 Mon. 510. Cal. 220 ; 15 Cal. 145. » Correa c. Frietas, 42 Cal. 339 ; ■> Gale V. Tuolumne Water Co., 14 McKinney v. Smith, 21 Cal. 374. Cal. 25 ; Priest v. Union Canal Co., 6 i' Columbia Mining Co. v. Holter, Cal. 170. 1 Mon. 296; Butte Mining Co. u. = Maeris v. Bicknell, 7 Cal. 261 ; Morgan, 19 Cal. 600 ; ante, § 231. Hill u. Smith, 27 Cal. 470; Davis v. " Davis v. Gale, 32 Cal. 20; Dodge Gale, 32 Cal. 23 ; Kidd v. Laird, 15 v. Marden, 7 Oregon, 456. Cal. IGl. 420 THE LAW or AYATBRS. [PAET II. interruptedly for the statutory period.^ If by abandonment, the prior right is not revived in the grantee's favor by a sale of the same, though made in good faith ; ^ if by adverse pos- session, the statute is not prevented from running against the prior appropriator by the fact that the possessor permits a portion of the water to flovs^ down the stream for the accommodation of those using the water below.^ Appropri- ation of water does not give a right to the exclusive use of the bed of the stream ; and if the stream is a mere torrent, dry at certain seasons of the year, it may be used when-dry as part of a ditch to conduct artificial waters, and such use does not work an abandonment of the waters so conducted, although it gives no right to divert or use the natural water of the stream as against a prior locator.* It is not an aban- donment of artificial waters to mingle them with the water of a natural watercourse for the purpose of conducting them to the point where they are to be used, but they may be afterwards diverted, if in so doing the prior rights of others to the natural water of the stream are not impaired.^ § 239. An appropriator of water who dnlj posts his notice, and, while prosecuting the work with diligence, afterwards posts a second notice of the appropriation of the same water, does not abandon his first claim.^ If water from a ditch supplied from one stream is emptied into another stream, and the owner does not intend to retake it, or if water lawfully diverted flows into the second stream by natural channels from the works of the appropriator, it becomcu puhlici juris, and the appropriators of the waters of the ' Davis V. Gale, 32 Cal. 26; Par- repaired, aiifl controlled at private tridgc V. McKiimey, 10 Oal. 181 ; expense, and that their respective Crandall u. Woods, 8 Cal. 136 ; Amor- rights are not clearly defined, does ican Co. v. Bradford, 27 Cal, 360; not show a dedication to the puhlic. Union Water Co. i: Crary, 25 Cal. Cate i: .Sanford, 5i Cal. 24. r.04 ; Campbell v. West, 44 Cal. 646 ; « Hoffman v. Stone, 7 Cal. 46 ; Bur- Dick v. Bird, 14 N"ev. 161, nett v. Whitesidcs, 15 Cal. 35, 2 Davis V. Gale, 32 Cal, 26. ^ B„tte Canal Co. <.. Vaughn, 11 ■■' Davis V. Gale, 32 Cal. 26 ; Yankee Cal. 143. Jim's Water Co. w. Crary, 25 Cal, '^ Osgood t, Eldorado Water Co,, 504, The fact that numerous persons -56 Cal. 571. use an irrigating ditch, constructed. CHAP. VII.J APPROPEIATION AND PRIORITY. 421 stream whicli receives it are entitled to the increase accord- ing to priority .1 The same is true when water is discharged into a stream as matter of convenience and without inten- tion to reserve it.^ In controversies of this character, the person who mingles the water belonging to him with that ap- propriated by others has the burden of proof to establish his right and the absence of intent to abandon.^ When the water and tailings passing awaj' from a mining claim are aban- doned, others may appropriate them, but cannot insist that the abandonment shall be continued for their benefit on the ground that they have incurred expense to secure the same.* Tailings which are permitted to flow upon another's land belong to him, but a stranger is not entitled to take tailings merely because they flow in a mixed mass from different mining grounds.^ § 240. Riparian proprietors who own the soil have the rights which attach to riparian ownership at common law, and each is entitled, as against his neighbors upon the stream, to the use of the water for the supply of natural wants, and to its reasonable enjoyment for manufacturing and other purposes.^ The United States, as proprietor of the public lands, has the same rights and property in the streams flowing through such lauds that would be possessed by any riparian proprietor ; " and, in the absence of legislation by Congress limiting the effect of the grant, patents for public lands from the general government pass, together with the fee of the soil, and, as incident thereto, the benefit of all natural streams which flow through them.^ The patentee of land cannot acquire a prescriptive right to flow land > Davis V. Gale, 32 Cal. 26 ; Eddy Cooney, 7 Nev. 213. See Wood «. ■•. Simpson, 3 Cal. 249. Richardson, 35 Cal. 149. 2 McKinney v. Smith, 21 Cal. 374. '^ Jones v. Jackson, 9 Cal. 237. ^ Butte Canal Co. v. Vaughn, 11 '■Union Mill Co. f. Ferris, 2 Saw- Gal. 143. yer, 176 ; Los Angelos r. Baldwin, 53 * Dougherty v. Creary, 30 Cal. 290 ; Cal. 469 ; Pope v. Kinman, 54 Cal. 3 ; Woolman v. Garringer, 1 Mon. 535. Ferrea t'.Knipe, 28Cal. 340; a?i(e, c. 0. A possessory title to land may be ac- ' Ibid. ; Vansickle v. Haines, 7 Nev. quired for the purpose of taking tail- 249. ings deposited thereon. Rogers v. ^ Ibid. 422 THE LAW OF WATERS. [PAKT II. above belonging to the United States, and the purchaser of the flooded land may sue for the injury at any time within the statutory period after the conveyance from the United States without regard to the length of time that the flovvage may have continued while the land was owned by the gov- ernment.i The priority secured by the ninth section of the important Act of Congress of July 26, 1866,^ exists, although the three conditions named therein may not all be present in the particular case.^ A statute upon this subject, like others, is of higher authority than a custom, and prevails over it in case of conflict.'* Congress alone can control and dispose of the public lands in a Territory, but under the above act of Congress, and the amendatory acts of 18706 and of 1872,6 the legislative assembly of a Ter- ritory, or miners, may establish laws or rules defining the extent of mining claims, and regulate the modes of develop- ing and working them.'' The local customs mentioned ' Mattliews r. Ferrea, 45 Cal. 51 ; Ogburn v. Connor, 40 Cal. ;147 ; Wil- kins c. McCluc, 46 Cal. 650. Lands claimed are public lands of the United States until the claimant proves up his claim and pays for the land. Farley v. Spring Valley Mining Co., 58 Cal. 142. 2 This section provides that " when- ever, by priority of possession, rights to the use of water for mining, agri- cultural, manufacturing, or other pur- poses, have vested and accrued, and the same arc recognized and acknowl- edged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same ; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby ac- knowledged and confirmed : ProBided, however, That ^vhenever, after the pas- sage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the posses- sion of any settler on the public do- main, the party committing such in- jury or damage shall be liable to the party injured for such injury or dam- age." 14 Stat, at Large, 253 ; U. S. Rev. Stats. § 2339 ; Basey v. Gallagher, 20 Wall. 670 ; Atchison v. Peterson, Id. 507 ; Jennison v. Kirk, 98 U. S. 453 ; IVIining Co. v. Tarbet, Id. 463 ; Thorp V. Freed, 1 Mon. 651 ; Gold Hill Min- ing Co. 1-. Ish, 5 Oregon, 104. See Acts of Congress of July 9, 1870 (16 Stat, at Large, 217) and of May 10, 1872 (17 Stats, at Large, 91). This section is a voluntary recognition of a pre-existing right of possession, con- stituting a valid claim to its continueil use, rather than the establishment of a new one. Jliller, J., in Broder v. Water Co., 101 U. S. 276; 50 Cal. 621 ; Sparrow <•. Strong, 3 Wall. 97, 777. ^ Basey v. Gallagher, 20 Wall. 670 ; Barnes v. Sabron, 10 Nev. 217. « Ibid. 5 10 Stats, at Large, 217. " 17 Stats, at Large, 91. ' Territory v. Lee, 2 Mon. 124 ; Orr V. Haskell, Id. 225; English i'. Johnson, 17 Cal. 107. CHAP. TII.J APPEOPEIATION AND PEIOEITY. 423 in the above act are not- judicially noticed by the courts, so far as they create rights differing from those possessed by riparian proprietors at common law, but it is incumbent upon the party relying upon such a custom to allege and prove it.^ Prior to the statute, rights acquired by appropriation, and supported by the customs, laws, or decisions of the State in which the land was situated, were enforced between oc- cupants of the public land having no title to the soil,^ and the effect of the stattite is to preserve this priority against those who have received patents to the land since its enact- ment.^ The statute is prospective in its operation, and does not' affect a patent issued before its passage,* or a patent subsequently issued to a person whoi had paid for the land prior to the act, entered thereon and received a cer- tificate of purchase, since the patent when issued relates to the date of the entry .^ It does not give rights of way not recognized by the customary law of the State or Territory, and the proviso to the ninth section conferred no additional rights upon the owners of ditches subsequently constructed, but simply rendered them liable to j)ersons on the public domain whose possessions might be injured by such con- struction.^ The water rights sustained by this statute are rights belonging to real estate, and are not lost by a non- user, which does not amount to an abandonment and is short of the statutory period for the recovery of real jjroperty.''' 1 Lewis V. MeClure, 8 Oregon, 273 ; Ilobart v. Wicks, 15 Nev. 418 ; Broder' Esmond u. Chew, 15 Cal. 137, 143. v. Natoma Water Co., 50 Cal. 621; The statute of California, enacted 101 U. S. 274; Titcomb v. Kirk, 51 April 1, 1870, providing for the con- Cal. 288; Cave v. Crafts, 63 Cal. 135; demnation of a right of vi'ay over or Osgood v. Eldorado Water Co., 56 Cal. through a mining claim for the ditches, 571. tunnels, etc., of another mining claim, * Union Mill Co. c. Ferris, 2 Saw- is cumulative, and does not prevent yer, 176. the construction of ditches, etc., au- 5 ji^jd. ; Union Mill Co. Wend. 423 ; Com- Winn w. Rutland, 52 Vt. 481 ; Jones r. missioners c. Kempshall, 26 Wend. United States, 48 Wis. 404; Cumber- 404; Harding r. Stamford Water Co., land V. Willison, 50 Md. 138 ; Glover 41 Conn. 87 ; Walker i: Board of Pub- .-Powell, ION. J. Eq. 211; Ten Eyck lie Works, 10 Ohio, 540; Avery ,. ('.Delaware Canal Co., 18 N.J. 200; Fox, 1 Abb. U. S. 240; Ferrand i. Morris Canal Co. <-. Seward, 23 N. J. Bradford, 21 Beav. 412 ; Adams , . L. 219; Grand Rapids Booming Co. Slater, 8 Brad. (111.) 72. V. Jarvis, 30 Mieh. 321 ; Lee r. Pern- * Crittenden u. Wilson, 5 Cowen, broke Iron Co., 57 Maine, 481; Wa- 105; Eastman v. Amoskeag Manuf. bash Canal v. Spears, 16 Ind. 441; Co., 44 N. H. 143; Amoskeag Manuf. Mabiro «. Canal Bank, 11 La. Ann. 83 ; Co. r. Goodale, 40 N. H. 53; Lee v. Weaver v. Mississippi Boom Co., 28 Pembroke Iron Co., 57 Maine, 481 ; Minn. 534. Trenton Water Power Co. u. Raff, " Gardner t>.Newburgh, 2 Johns. Ch. 33 N. J. L. 335. 162 ; Sinnlekson v. Johnson, 2 Ilarr. ^ Perry v. Wilson, 7 Mass. 393. (N.J.) 120; Pumpelly ,:. Green Bay 430 THE LAW OF WATERS. [PAET II. of a riparian proprietor which is covered by water can no more be appropriated to public use, without just compensa- tion, than a,nj otlier property, and if the legislature authorizes a dock line to be established which prevents a riparian owner from constructing a dock beyond such line, which would not interfere with the public right of navigation, he is entitled to be compensated for the right of wliich he is thwj deprived.^ The fact that la.nd covered by water is held subject to the public right of navigation does not justify a condemnation without compensation, or deprive the owner of the protection of the courts, if compensation is not made.^ In those States in which the mortgagor of an estate is held at law to be the owner thereof as to all the world, except the mortgagee, the mortgagor is the jierson entitled to com- pensation when land previously mortgaged is taken for a pub- lic uae.^ § 244. In exercising the right of eminent domain the government does not enter into a contract, and is not, there- fore, bound to complete a contemplated appropriation.* But private property cannot be taken for public use without just compensation, and tliis must be made in money .^ It is competent for the legislature to impose the expense of a public improvement, such as the widening or deepening of a navigable channel, or the construction of a canal, upon property- peculiarly benefitted thereby, by way of taxation, and the excess of such expense over the measure of particular 1 Walker v. Shepardson, 4 Wis. Leisse v. St. Louis Railroad Co., 72 486 ; Yates u. Milwaukee, 10 Wall. Mo. 561. 407. 6 Yan Home v. Dorrance, 2 Dallas, = Morris Canal Co. v. Jersey City, 313 ; Carson .;. Coleman, 11 N. J. Eq. 20 N. J. Eq. 294. 106 ; Commonwealth v. Peters, 2 Mass. 2 Isele V. Schwamb, 131 Mass. 337. 125 ; Cobb v. Smith, 16 Wis. 661 ; *Lamb u. Schottler, 54 Cal. 319. Livermore v. Jamaica, 23 Vt. 301; If the compensation is payable by Butler v. Sewer Commissioners, 39 N. monthly damages, there is no obliga- ,L 665; Hyslop v. Finch (99 111.) 24 tion to continue the payments after Alb. L. J. 156; Jacob v. Louisville, 9 the public use has ceased. State j.. Dana, 114. See McMaster v. Cora- Administrator of Public Accounts, 26 monwealth, 3 Watts, 296 ; Satterlee La. Ann. 336. But damages caused v. Mathewson, 10 S. & R. 179 ; ante, before the abandonment must be paid. § 210. CHAP. VIII.] EMINENT DOMAIN. 431 advantage, must be paid by the public at large ; ^ but it cannot appoint commissioners directly to assess damages without notice to the owner,^ and the appraisement must be by a jury or impartial tribunal.^ Those whom it authorizes to condemn lands cannot be empowered to assess damages or benefits.* In the absence of express Avords to that effect in the Constitution, it is not necessary that the compensation should be actually paid before the appropriation is made, but it is sufficient if an adequate remedy is provided by which the owner is sure to obtain compensation without unreasonable delay i*^ or danger of litigation;'' and if compen- sation is not first made, it must be secured by some definite fund.'^ An act which authorizes the flowage of land, and 1 Philadelphia v. Scott, 81 Penn. St. 80 ; 9 Phila. 171 ; Reed v. Erie, 79 Penn. St. 346 ; Schuffletown Fence Co. V. McAllister, 12 Bush, 312 ; Hatch ;;. Pottawattamie Co., 43 Iowa, 442 ; James River Co. v. Turner, 9 Leigh, 313; Symonds v. Cincinnati, 14 Ohio, 147 ; Coster v. Tide "Water Co., 18 N. J. Eq. 54, 518 ; State v. Newark, 34 N. J. L. 236 ; Reclamation District v. Hagar, 6 Sawyer, 567 ; Rexford o. Knight, 15 Barb. 627 ; Livingston v. New York, 8 Wend. 85; Helton o. Milwaukee, 31 Wis. 27; Mclntire v. State, 5 Blackf . 384 ; Murphy v. Wil- mington, 22 Alb. L. Journ. 387. Speculative advantages cannot be set off against the damages. Palmer Co. V. Ferrill, 17 Pick. 58. See petition of Mount Washington Railroad Co., 35 N. H. 134 ; Ilartwell v Armstrong, 19 Barb. 166 ; Frederick v. Shane, 32 Iowa, 254; Jacob v. Louisville, 9 Dana, 114. ^ Langford v. Commissioners, 16 Minn. 375; Heyneman o. Blake, 19 Cal. 579. 8 People V. Nearing, 27 N. Y. 306. In re Kyers; 72 N. Y. 1. Commission- ers who make void assessments are fimcti officio, in the absence of further legislative authority ; but it is not necessary that they should be newly commissioned, if the legislature clothes them with all the authority they could derive from a new ap- pointment. Miller v. Craig, 11 N. .J. Eq. 175. * Hessler v. Drainage Commission- ers, 53 111. 105. The amount of prop- erty required for a public wharf to be constructed by a municipal corpora- tion may, it seems, be left to the dis- cretion of the corporation. Iron Railroad Co. u. Ironton, 19 Ohio St. 299. ^ Pittsburgh 061; Co. K. Head, 56 N. H. 386 ; Olmstead Eason v. Perkins, 2 Dcv. Eq. 38; V. Camp, 33 Conn. 532, 551 ; Todd v. .Daughtry v. Warren, 85 N. C. 136. Austin, 34 Conn. 78 ; Tyler v. Beacher, ^ Burnham v. Thompson, 35 Iowa, 44 Vt. 648; Beekman v. Saratoga 421; Fisher v. Horicon Iron Co., 10 Railroad Co., 3 Paige, 45, 73 ; Scudder Wis. 351. V. Trenton Falls Co., 1 N. J. Eq. 694; ^ Lowell v. Boston, 111 Mass. 454, Venard v. Cross, 8 Kansas, 248 ; Hard- 464 ; Olmstead v. Camp, 33 Conn, ing V. Funk, Id. 315; Harding v. 552. Goodlett, 3 Yerger, 41 ; Newcomb v. ■> 12 Pick. 467 ; Boston Water Smith, 1 Chand. 71; 2 Phin. 131; Power Co. r. Boston and Worcester Thien v. Voegtlander, 3 Wis. 461; Railroad, 23 Pick. 360. 448 THE LAW OF WATERS. [PAET 11. poration to erect and maintain a dam or dams for the purpose of obtaining a head and fall of the waters of a navi- gable arm of the sea, whereby to work grist mills, iron manufactories, and mills for other useful purposes, and also to make an avenue over the dams for the accommodation of all persons at a fixed rate of toll. This was held to be so far an enterprise of a public nature as to authorize the legislature to appropriate the property of an individual to carry it into effect. According to the view adjspted in the case from which the above language is quoted, statutes which author- ize the maintenance of a dam to raise a head of water and thereby to overflow the land of another proprietor, do not confer any right upon the mill-owner in the overflowed land by creating an easement, or take any right from the land- owner, but are merely provisions of law for the regulation of the rights of the different riparian proprietors upon the same stream, both in respect to the stream itself, from its rise to its outlet, and their adjacent lands liable to be affected by its use, in a manner best calculated to promote and secure their common rights as such proprietors. ^ This is not a taking of the property of an owner of the land flowed, nor is any compensation awarded by the public.^ Upon a similar principle, the privilege of fishing in streams and ponds* not navigable is a private right which is constantly controlled or partially taken away by statutory regulations intended for the benefit of all those whose lands adjoin the stream or pond.^ In Michigan,* Alabama,? Georgia,^ and New 1 Fiske V. Framingham Manuf. Co., 249. Compensation for an injury to 12 Pick. 68 ; Williams v. Nelson, 23 a private right of fishery does not re- Pick. 141 ; Andover v. Sutton, 12 lieve the owner of a dam authorized Met. 182 ; Bates i\ Weymouth Iron by the legislature from the duty to Co., 8 Cush. 553; Murdock v. Stick- provide fish-ways. Commissioners ney, 8 Cush. 113 ; Hazen v. Essex Co., v. Holyoke Water Power Co., 104 12 Cush. 475; Storm o. Manchaug Mass. 446; Holyoke Co. v. Lyman, Co., 13 Allen, 10 ; Lowell v. Boston, 15 Wall. 500. Ill Mass. 466; Hunt y. Whitney, 4 ' ^ Kyerson r. Brown, 35 Mich. 333 ; Met. 603 ; Talbot v. Hudson, 16 Gray, See Hardwell, Petitioner, 2 Mich. N. 417 ; Commissioners v. Holyoke Water P. 97 ; McCIary v- Hartwell, 25 Mich. Power Co., 104 Mass. 450. 139. 2 Shaw, C. J., in Murdock c. Stick- = Sadler v. Langham, 34 Ala. 311 ; ney, 8 Cush. 113. Bottoms v. Brewer, 54 Ala. 288. 3 Cottrill V. Myrick, 12 Maine, 222 ; Ex parte Manhattan Co., 22 Ohio St. 92 ; Gordon i,. Pennsylvania Wend. 653 ; Bradshaw o. Rogers, 20 Kailroid, 6 Rep. 727. Johns. 103, 735; Springfield <;. Con- " Little Miami Railroad Co. v. necticut Railroad Co., 4 Cush. 63. Dayton, 23 Ohio St. 510; Hickock v. '^ Commonwealth v. Stevens, 10 Hine, Id. 522 ; Bridgeport v. New Pick. 247 ; Venard v. Cross, 8 Kansas, York Railroad, 36 Conn. 255; Me 248. Buffalo, 68 N. Y. 167 ; Locks and i^ Hooksett v. Amoskeag Manuf . Canals v. Lowell, 7 Gray, 223. 44 N. H. 105. ' State V. Cincinnati Central Rail- ^^ United States u. Ames, 1 Wood. & M. 76. 452 THE LAW OF WATEnO. [PAET II. corporation, which is authorized by its charter to construct a canal, sluice, or raceway, and which cuts or digs it across an existing highway, is bound to provide a bridge for the public passage along the highway, without an express provision in its charter to that effect ; ^ but if, after the construction of the canal, a highway is laid out across it, its owner is not bound to erect or maintain a bridge.^ While a corporation, under a general power of eminent domain, cannot, without special aXithority, deprive another corporation with a like power of lands held by it for a public use, yet an easement may be acquired, in invitum, by legislative a,uthority, in lands so held and occupied for a public use when such easement may be enjoyed without detriment to the public or interfering with the use to which the lands are devoted.^ When a ferry franchise is held by a municipal corporation, it does not lose its character of private property, and cannot be resumed by the public without making just compensation.^ But if the legislature authorizes a bridge to be built at a point where there was an ancient ferry, and provides for com- pensation to the owner of the ferry, which is accepted, the ferry is abolished, and such taking for public use does not transfer the ferry franchise to the proprietors of the bridge.^ The fact that property is held under a covenant of quiet enjoyment from a city does not prevent its board of alder- men, if authorized by statute, from taking such property in laying out a street over tide-waters.® ' Re Trenton Water Power Co., * Benson v. New York, 10 Barb. Spencer (N. J.) 659. 223. So the property rights of a '■^Morris Canal Co., v. State, 24 N. county, though acquired by donatiou J. L. 62. from the State, are protected by the 3 New York Central Railroad Co. constitutional guarantees which pro- V. Metropolitan Gaslight Co., 63 N. Y. teet the property of individual cit- 326 ; Matter of Rochester Water Com- izens. Milam County v. Bateman, 54 mis3ioners,60N. Y. 413; /Je New York Texas, 153. Central Railroad Co., 77 N. Y. 248; ^ Charles River Bridge o. Warren Boston Water Co. v. Boston & Wor- Bridge, 7 Pick. 344, 352. cester Railroad, 23 Pick. 360, 397 ; ^ Brimmer ^. Boston, 102 Mass. Matter of Main and Hamburgh Street 19. Canal, 50 How. Pr. 70 ; James River Co. V. Anderson, 12 Leigh, 278. CHAP. VIU.] EMINENT DOMAIN. 453 § 256. When individuals or corporations construct and maintain roads or bridges across streams under authority conferred by the legislature, they are bound to provide suitable passage ways for the water,i and to keep them unobstructed by drift or mud,^ and are liable to the owners of private lands adjoining, which are injured in consequence of their insufficiency. Thus, a railroad company which neglects to construct sluices or culverts over streams crossed by its road, or which constructs them so imperfectly as to flood the adjoining lands, is liable to an action for the injury whether any portion of such lands is taken for the purposes of the road or not.^ Such injury is not one that is taken into account in measuring the compensation to the owner of land through which the road is located, but the company is answerable in damages hj a repetition of suits, or if the flooding is permanent and unnecessary, the obstruction may be abated by a court of equity.* So, if a railroad company, ^ New Castle Railroad Co. v. Mc- Chesney, 85 Penn. St. 522 ; Oregon Railroad Co. v. Barlow, 3 Oregon, 311 ; Whitehouse v. Birmingha-m Canal Co., 6 H, & N. 928 ; Perley v. Chandler, 6 Mass. 454 ; Rowe o. Granite Bridge, 21 Pick. 344 ; Blood v. Nashua Rail- road, 2 Gray, 137 ; Mellen v. Western Railroad, 4 Gray, 301 ; .Tones v. West Vermont Railroad Co., 27 Vt. 399; Addison v. Rowe, 34 N. H. 396 ; Man- ser V. Northern Counties Railway Co., 2 Rail. Cas. 380. 2 West V. Louisville Railroad Co., 8 Bush, 404 ; Chicago Railroad Co. v. Moffitt, 75 111. 524. ^ Bagnall v. London Railway Co., 1 H. & C. 544 ; 7 H. & N. 723; Law- rence M. Great Northern Railway Co., 10 Q. B. 643 ; Hatch v. Vermont Cen- tral Railroad Co., 25 Vt. 49, 68 ; Norris V. Vermont Central Railroad Co., 28 Vt. 102 ; King v. Iowa Midland Rail- road Co., 34 Iowa, 458; Mississippi Central Railroad o. Caruth, 51 Miss. 77; Mississippi Central Railroad Co. V. Mason, Id. 234 ; Baughton v. Carter, 18 Johns. 405 ; Cott v. Lewiston Rail- road, 36 N. Y. 214 , Brown v. Cayuga Railroad Co., 12 N. Y. 486 ; Robinson V. New York Railroad Co., 27 Barb. 512 ; Beaty v. Baltimore Railroad Co., 6 W. Va. 388; Houston Railroad Co. V. Knapp, 51 Texas, 592; Young v. Chicago Railway Co., 28 Wis. 171; Chicago Railroad Co. v. Carey, 90 111. 514; Locks and Canals v. Nashua Railroad Co., 10 Cush. 385; Esta- brooks V. Peterborough Railroad, 12 Cush. 224; March v. Portsmouth Railroad Co., 19 N. H. 372 ; Hooker V. New Haven Railroad Co., 14 Conn. 146 ; 15 Conn. 313 ; Nicholson v. New York Railroad Co., 22 Conn. 74 ; Sel- ma Railroad Co. v. Keith, 53 Ga. 178; Toledo Railway Co. v. Hunter, 50 111. 325; Alton Railroad Co. v. Deitz, 50 111. 210; Louisville Railroad Co. v. Hodge, 6 Bush, 141 ; Louisville Rail- road Co. c. McAfee, 30 Ind. 291; Union Trust Co. v. Kuppy, 26 Kansas, 754 ; Van Orsdol v. B. R. Co., 56 Iowa, 470. ^ Raleigh Air Line Railroad Co. v. Wicker, 74 N. C. 220 ; Brown v. Caro- lina Central Railroad Co., 83 N. C. 454 THE LAW OF WATERS. [PAET 11. in building its road, finds it necessary to divert a stream, and for that purpose to construct a new channel, it is bound to keep the new channel in a suitable, condition so as to pre- serve the usefulness of the stream for those entitled to it.^ Except in cases of strict necessity, a railroad company has no right to divert a stream of water from its natural channel to the injury of the land-owner,^ and if the diversion is merely convenient and not necessary, it may be restrained by injunction.^ By voluntarily granting a right of way for a railroad, the grantor does not license the building of the road so as to overflow his other land not on the right of way,* and his damages for the flowage of such other land will not be diminished because of the enhanced value given by the road to his land, in common with others in the vicinity.^ But by virtue of such a grant the corporation would be authorized to extend ditches from its culverts in the grantor's land, and beyond the limits of the location, or to deepen and widen the channel of a watercourse beyond such limits, when these acts are necessary to prevent the flooding and washing away of the land and to preserve the road from damage.^ A railroad being a public highway, the doctrine of dedication or of estoppel in pais applies to the right of way therefor. Where a land-owner verbally gave to a railroad company the right of way over his premises, 128 ; Easterbrook o. Erie Railway 514 ; Jacksonville Railroad Co. u. Co., 51 Barb. 94 ; Selma Railroad Cox, 91 111. 500. See Hutchinson v. Co. V. Keith, 53 Ga. 178. Chicago Railway Co., 37 Wis. 582 ; ' Cott u. Lewiston Railroad Co., Lawrence v. Great Northern Eail- 36 N. Y. 214; Hatch v. Vermont way Co., 20 L. J. n. s. (Q. B.) 293. Central Railroad Co., 25 Vt. 49. See ^ Ibid. A purchaser of a mill can- Denslow v. New Haveu Co., 16 Conn, not sue on a covenant made by a rail- 98. road company -with its former owner to 2 Stodghill V. C. B. & Q. R. Co., dig a new channel for the mill stream, 43 Iowa, 26 ; Young v. Chicago Rail- if the covenant was already broken wayCo., 28 Wis. 171 ; Baltimore Rail- at the time of the purchase. June- road Co. V. Magruder, 34 Md. T9. tion Railroad Co. „. Sayers, 28 Ind. 3 Pugh V. Golden Valley Railway 318. Co., 12 Ch. I). 274 ; 15 Ch. D. 330. <> Babcock v. Western Railroad, 9 ■* Norris ;;. Vermont Central Rail- Met. 553. Contra, under condemna- road Co., 28 Vt. 99 ; St. Louis Rail- tion proceedings as to the riglit to way Co. !>. Morris, 35 Ark. 622 ; Chi- dig ditches. State v. Armell, 8 Kan- cago Railroad Co. v. Carey, 90 111. sas, 288. CHAP. VIII.] EMINENT DOMAIN. 455 free of charge, if it would construct ditches to carry off water, and the road was constructed and the ditches dug, it was held that, after the lapse of seventeen years, the lund- owner was to be regarded as having dedicated the right of way to the public use, and that the company had acquired a vested right thereto, which was not divested by its failure to maintain sufficient ditches.^ § 257. A railroad company is liable in damages if an excavation made for its road drains a well or spring on land adjacent to but not crossed by its line ; ^ if the road injuri- ously affects a right of flowage,^ or a landing,* or causes injury to crops ; ^ if it is constructed through a mill-pond which the legislature has authorized to be raised in a navigable river, although the conditions of the statute giv- ing such authority have not been complied with ; *■ or if it removes a natural barrier which is not on the land taken, but which protects it from floods in a neighboring river, even after the land-owner has released all damages on account of the construction of the road through his land.' If a canal company, under the power granted to take land by paying ^ Texas Railway Co. v. Sutor, 66 23, 1803, to construct a mill-dam in a Texas, 496. navigable stream, is a revocable li- 2 Parker v. Boston & Maine Kail- cense, and the mill-owner cannot re- road, 3 Cush. 107 ; Aldrich v. Cheshire cover for a subsequent interference Railroad Co., 21 N. H. 359 ; Peoria with this right by the construction Itailroad v. Bryant, 57 111. 473. As of a railroad under legislative au- to the right of a railway company thority. Susquehanna Canal Co. v. to appropriate a spring of water, Wright, 9 W. & S. 9 ; Monongahela which is private property, to sup- Navigation Co. o. Coons, 6 W. & S. ply a tank, see Strohecker v. Ala- 101 ; ' Bigler v. Antes, 21 Pemn. St. bama Kailroad Co., 42 Ga. 509. ,288 ; New York Railroad Co. v. 'Davidson «. Boston & Maine Young, 33 Penn. St. 175; West Railroad, 3 Cush. 91; Hot Spring Branch Canal Co. v. Mulliner, 68 Railway Co. c. Tyler, 36 Ark. 205. Penn. St. 357. * Railroad Co. v. Schurmeir, 7 Wall. ' Eaton v. B. C. & M. R. Co., 51 N. 272 ; ante, § 255. H. 504 ; Delaware Canal Co. c. Lee, ^ Chicago Railroad Co. u. Carey, 22 N. J. 243. Contra, Alexander v. 90 111. 514 ; Houston Railroad Co. u. Milwaukee, 16 Wis. 247, which ap- Knapp, 51 Texas, 592. pears to he now overruled. See ^ White V. South Shore Railroad Arimond v. Green Bay Co., 31 Wis. Co., 6 Cush. 412. In Pennsylvania, 316 ; Pumpelly v. Green Bay Co., the right given by the act of March 13 Wall. 166. 466 THE LAW OF WATEES. [PAKT 11. the value thereof, pays for a definite quantity to be over- flowed by a dam and works to be erected by them, and the works when erected cause more land to be overflowed than was paid for, the land-owner may maintain an action there- for, even though he fails to prove satisfactorily any raising of the dam.^ And if such a company enters upon land "be- fore acquiring title thereto, either under their charter or by the assent of the land-owner, and erects dams and works necessary for its own purposes, and the land, with the works so constructed, is afterwards conveyed by the owner to the company, the latter is not thereby exempted from liability to an action for damages to other land of the same owner from the want of projjer care and skill in the construction or repair of the works.^ A railroad corporation which is authorized to construct its road across the pond of a mill corporation, formed by damming a natural stream, is bound to so construct the road as to permit the passage of the waters both of the stream and the pond ; and a joint action of tort for the entire injury may be maintained against both corporations, if the negligence of both combined to produce the injury.* § 258. A railroad company, or other corporation acting in pursuance of legislative authority, is only required to exercise reasonable diligence and precaution in constructing passage-ways for the water through its bridges and embank- ments.* It is not liable to an action for damages if it fails to construct a culvert or bridge so as to pass extraordinary floods;* if without negligence an accumulation of water is ' Morris Canal Co. v. Seward, 23 ^ Bryant v. Bigelow Carpet Co., N. J. 210 ; Den v. Morris Canal Co., 131 Mass. 491. 24 N. J. 588 ; Plum u. Morris Canal * Bellinger v. New York Central Co., 2 Stock. 257. Railroad Co., 23 N. Y. 42. 2 Morris Canal Co. , . Ryerson, 27 ^ Pittsburgli Railway v. Gilleland, N. J. L. 4-57 ; 28 Id. 97 ; Trenton 56 Penn. St. 445 ; Bellinger v. New Water Power v. Raff, 36 N. J. L. 335 ; York Central Railroad Co., 23 N. Y. Lehigh Valley Railroad v. McFarlan, 42 ; Houston Railroad Co. v. Parker, 50 43 N. J. L. 615 ; Valentine v. Central Texas, 330. So of a bridge, drain, or Railroad Co., 29 N. J. L. 60, 561. gutter maintained by a city. Sprague CHAP. VIII.j EMINENT DOMAIN. 457 set free by the breaking of a culvert in an embankment and the land below is flooded ; ' if it has taken reasonable pre- cautions in constructing a bridge across a stream to prevent unnecessary damage to the adjacent lands by flooding those which are above,^ or washing away the banks of those below ; ^ if tjie road is constructed without a culvert across a cran- berry marsh, one side of which afterwards becomes dry;* if, in a case of strict necessity, it closes a watercourse and floods other portions of the land than the part which it has taken ; ^ if it causes lands to be flowed by the necessary and proper elevation of its road-bed on its own land and not in the channel of the stream ; ® nor is it liable for interest on the damages annually sustained by the plaintiff.''' § 259. If a railroad embankment is so constructed as to divert the water of a stream from its natural channel, the injury to a riparian proprietor below is a permanent one, and if he recovers judgment, it is a bar to future actions for the same cause, although the jur^^ were erroneously instructed in that action not to consider future injuries by reason of the maintenance of the embankment.^ So, a recovery of prospective damages, in an action for so constructing the road as to unnecessarily wash away the plaintiff's land by turning the current of the stream against it, is a bar to an action for subsequent damage, though caused by an unusual freshet.® If a railroad company commits a trespass bj^ digging a ditch on another's land, it does not acquire the right to re-enter and flU up the ditch. The continued exist- V. Worcester, 13 Gray, 19.3 ; Allen v. 35 N. H. 569 ; Mason v. Kennebec Chippewa Falls, 52 Wis. 430 ; Illinois Railroad, 31 Maine, 217. Central Railroad Co. v. Bethel, 11 " Moyer v. New York Central Bail- Brad. (111.) 17. road Co., 88 N. Y. 351. ' Mills V. Greenville Railroad Co., ' Lamar v. Charlotte Railroad Co., 13S.C. 97. lOS. C. 476. 2 Mellen „. Western Railroad, 4 » Stodghill «. C. B. & Q. R. Co., 53 Gray, 301. Iowa, 841 ; Powers v. Council Bluffs, ' Ante, § 248 a. 45 Iowa, 652. See Great Laxey Mine * Lyon V. Green Bay Railway Co., Co. v. Clague, 4 App. Cas. 115. 42 Wis. 5.38 ; Old Colony Railroad Co. 9 Powle v. Now Haven Co., 112 ./• Miller, 125 Mass. 1. Mass. 334 ; 107 Mass. 352 ; ante., § 210. ' Johnson v. Atlantic Railroad Co., 458 THE LAW OF WATERS. [PAET II. ence of the ditch is not a continuing trespass, and if, after the recovery of a judgment for the injury, new and unfore- seen damage results, this does not give a new cause of action.! If a railway embankment ponds back the water on the plaintiff's land, doing injury to a certain amount, and the water would have reached the plaintiff's land in another way had the embankment not been constructed, but would have done damage to a less amount, the plaintiff is entitled to recover only the difference between the two amounts.^ A railroad corporation is required to pay for injured works as it finds them, and not for increased works, but if the road causes injury to an unused surplus water power it is liable therefor at the market value of the water power for any useful purpose.^ § 260. A city or town which constructs a street across a watercourse witjiout proper culverts or drains,^ or which negligently constructs or maintains the bridges or culverts in a highway across a natural stream, so as to cause the water to flow back upon and injure the land of another, is liable to an action of tort to the same extent that any corporation or individual would be liable for doing similar acts.^' So, if a municipal corporation changes the grade of a street and thereby diverts a natural stream,^ or causes the drainage to flow into a mill-race and corrupt the water," it is liable to an action unless a mode of assessing the damages is provided by statute. It is important to distinguish between natural 1 Kansas Pacific Railway v. MiM- 285 ; Lawrence v. Fairhaven, 5 Gray, man, 17 Kansas, 224. See Cumber- 110; Terry w. Worcester, 6 Gray, 544; land CanaU'. Ilitchins, 05 Maine, 140. Parker u. Lowell, 11 Gray, 353; 2 Workman v. Great Northern Rail- Sprague t>. Worcester, 13 Gray, 193 ; way Co., 32 L. J. n. s. (Q. B.) 279. Wheeler v. Worcester, 10 Allen, 591 ; 8 Dorian v. East Brandywine Rail- Hill ^. Boston, 122 Mass. 358 ; Drew road Co., 40 Penn. St. 520 ; Haslam v. v. Westfield, 124 Mass. 461 ; Barns v. Galena Railroad, 64 111.353; Young Hannibal, 71 Mo. 449; Mootry v. V. Harrison, 17 Ga. 30; 9 Ga. 359; Danbury, 45 Conn. 550; Haynes u. Patterson u. Boom Co., 3 Dillon, 465; Burlington, 38 Vt. 350; Stone v. Willamett Palls Co. v. Kelly, 3 Ore- Augusta, 46 Maine, 127". gon, 99. 6 Helena v. Thompson, 29 Ark. 569. * Spelman v. Portage, 41 Wis. 144. ' Columbus v. Hydraulic Woollen 6 Anthony ^, Adams, 1 Met. 284, Mills Co., 33 Ind. 435. CHAP. VIII.] EMINENT DOMAIN. 459 streams, flowing within defined banks, and surface water, for the powers of a municipality are much greater with respect to the latter than the former.^ It is liable when, without express legislative powers, changing what would otherwise be the legal rights of the parties, it deprives others of their rights in a natural watercourse, or floods their lands by insufficient passage ways, although the watercoursg may not form a natural stream.^ But it would not necessarily be liable for similar injuries caused by siirface water.^ If the land-owner opens an artificial watercourse across a highway already established through his land, he is bound to main- tain a way for the use of the public over the watercourse, but the public in locating a highway, cannot shut up a watercourse, whether artificial or natural, but may make a way over it by means of bridges.^ A town is not responsible for backwater caused by an obstruction placed in a culvert by a mere wrongdoer.^ § 261. When the legislature confers upon a municipal corporation authority to lay out and construct common sewers and drains, and provision is made by statute for the assessment, under special proceedings, of damages to persons whose estates are thereby injured, an action at law or bill in equity may be maintained by an individual suffering special damage from the nuisance, if caused by an excess of the powers granted, or by negligence in the mode of carrying out the system legally adopted, or omission to take due 1 Helena v. Thompson, 29 Ark. 569, 18 ; Woodruff v. Neal, 28 Conn. 165 ; 574. Moran v. McClearns, 63 Barb. 185; 2 Kose V. St. Charles, 49 Mo. .509 ; Woodring v. Fords Township, 28 Penn. Burton v. Chattanooga, 7 Lea (Tenn.) St. 355; Fleming's Appeal, 65 Penn. 739 ; Allentown v. Kramer, 73 Penn. St. 444 ; Merrill o. Kalamazoo, 35 St. 406. A city which attempts to Mich. 211 ; Nobles v. Langly, 66 N. change the channel of a stream, must C. 287 ; Boiling o. Mayor, 3 Eand. substantially comply witli the require- 563 ; Eyber v. County Commissioners, raents of its charter. McKcrnan u. 49 Md. 257. Indianapolis, .38 Ind. 223. 5 Peck „, Ellsworth, 36 Maine, 393 ; 3 Ibid. ; Pflegar v. Hastings Rail- Steele v. South Eastern Railway Co., way Co., 28 Minn. 510. 16 Q. B. 550 ; Hoagland v. Sacra- * Perley v. Chandler, 6 Mass. 454 ; mento, 52 Cal. 142. Lowell V. Locks & Canals, 104 Mass. 460 THE LAW OF AVATEKS. [PAET II. precautions to guard against the consequences of its opera- tion ; 1 but not for injuries whicli are caused by a defect or insufSciency in the plan or system of drainage adopted under the authority conferred by the legislature, or which are the necessary result of the exercise of the authority so conferred.^ The corporation is liable in an action of tort, if, without authority of law, it collects surface or other waters in a public sewer, and empties them upon the land of an individual to his injury,^ either immediately or by the force of gravitation;* if it drains water through sewers and drains into a canal owned by a private corporation and thereby causes injury to the canal ;^ if, in like manner, it obstructs a mill-race ;^ if it discharges mud and filth into a private dock so as to interfere with the access thereto and the right to lay vessels thereat ; " if it constructs the sewer 1 Child V. Boston, 4 Allen, 41 ; Emery v. Lowell, 104 Mass. 13 ; 109 Mass. 197 ; Washburn & Moen Manuf . Co. V. Worcester, 116 Mass. 458; Hill V. Boston, 122 Mass. 358 ; Ashley u. Port Huron, 35 Mich. 296; Mills v. Brooklyn, 32 N. Y. 489. 2 Ibid. ^ Cator V. Board of Works, 34 L. J. (Q. B.) 74; Winn v. Rutland, 52 Vt. 481; Ashley ». Port Huron, 35 Mich. 296 ; Rowe i>. Portsmouth, 56 N. H. 291 ; Rochester u. White Lead Co., 3 N. Y. 463 ; Mayor v. Bailey, 2 Denio, 433; Lewenthal v. Mayor, 61 Barb. 511 ; Bradt u. Albany, 5 Hun, 591; Nevins v. Peoria, 41 111. 502; Aurora v. Gillett, 56 111, 132 ; Jack- sonville u. Lambert, 62 111. 519; Ilil- dreth v. Lowell, 11 Gray, 345 ; Manning V. Lowell, 130 Mass. 21 ; Lewenthal ti. New York,' 5 Lans. 532 ; Pettigrew v. Evansville, 25 Wis. 223 ; Alexander V. Milwaukee, 16 Wis. 248 ; Smith v. Milwaukee, 18 Wis. 63 ; Vincennes o. Richards, 23 Ind. 381; Weis u. Madi- son, 75 Ind. 241; Niles' Works v. Cincinnati, 2 Disney, 400 ; Cotes v. Davenport, 9 Iowa, 227 ; Kohs v. Min- neapolis, 22 Minn. 159; Simmer v. St. Paul, 23 Minn. 408; Phinizy v. Au- gusta, 47 Ga. 260 ; Troy v. Coleman, 58 Ala. 570 ; Union Springs v. Jones, 58 Ala. 654. In such cases, the cause of action is not neglect in the per- formance of a corporate duty, render- ing a public work unfit for the purposes for which it was intended, but it is the doing of a wrongful act, causing a direct injury to the property of another outside the limits of the public work. Hill v. Boston, 122 Mass. 358. * Woodward v. Worcester, 121 Mass. 245. ^ Locks and Canals f. Lowell, 7 Gray, 223. Si Columbus V. Woollen Mills, 33 Ind. 435; Elgin Hydraulic Co. t. Elgin, 74 111. 433. ' Haskell v. New Bedford, 108 Mass. 208 ; Clark u. Peckham, 9 R. I. 455 ; Richardson v. Boston, 19 How. 263. A city is also liable for divert- ing a natural stream which deposits sand and earth in front of the plain- tiff's wharf and impairs its value. Barron v. Baltimore, 4 Am. Jur. 203 ; a7ite, § 123. CHAP. VIII.] EMISTBNT DOMAIN. 461 im skillfully,^ or negligently suffers it to be out of repair,^ or makes a change in the structure, or has notice that such change is made by others, by means of which the passage of the water or sewage is obstructed.^ If the authorities of a city change the channel of a drain so as to throw the water flowing therein upon the land of A, A cannot obstruct the channel so as to cause the water to flow back upon the land of B lying above his own.* The rule that a municipal corpora- tion is not required to supply means of escape for drainage or sewage does not apply when the necessity for the drainage is caused by the act of the corporation itself.^ It is com- jaetent for the legislature to authorize a city to turn a natural stream into a sewer,'' and the plaintiff must show special in- jury to entitle liim to relief beyond the statute.''' § 262. Cities have been lield not liable for injury to others caused by the overflow of their sewers in the following cases : where the sewer became choked with sand and mud from the streets, and it did not appear that it was liable to become obstructed under ordinary circumstances, or that the city had knowledge of the obstruction, or that there was any fault in the construction of the sewer ; ^ where the city omits tu construct a sewer, or fails to make it of sufficient size, the 1 Winon v. Rutland, 52 Vt. 481 ; Vestry of St. Pancras, L. R. 9 C. P. Thurston v. St. Joseph, 51 Mo. 510 ; .316 ; Fleming v. Manchester, 44 L. T. Indianapolis c. Huffer, 30 Ind. 235; x. s. 517; Simmer c. St. Paul, 23 Child V. Boston, 4 Allen, 41 ; Emery Minn. 408. V. Lowell, 104 Mass. 13 ; Merrifield v. s Nims v. Mayor, 59 N. Y. 500 ; Worcester, 110 Mass. 216 ; Lewenthal Donohue r. New York, 3 Daly, 65; V. N'ew York, 5 Lans. 532 ; 61 Barb. Niles' Works v. Cincinnati, 2 Disney 511 ; Fleming v. Manchester, 44 L. T. (Ohio) 400. 517 ; Jacksonville v. Lambert, 62 111. * Amick v. Tharp, 13 Gratt, 564. 519. 5 Byrnes v. Cohoes, 67 X. Y. S04. ''Ibid.; McCarthy v. Syracuse, 46 "Butler u. Worcester, 112 Mass. N. Y. 194; Barton v. Syracuse, 36 N. 541. Y. 54; 37 Barb. 292; New York i,. ' Washburn & Moen Co. v. Wor- Furze, 3 Hill, 612 ; Oilman w. Laconia, cester, 116 Mass. 458; AVorkman i.. 55 N. H. 130; Lloyd v. New York, 5 Worcester, 118 Mass. 168. N. Y. 369 ; Hudson v. New York, 9 N. 8 Smith v. Mayor, 66 N. Y. 295 ; 4 Y. 163 ; 5 Sand. 289 ; Wilson v. New Hun, 637 ; Wheeler v. Worcester, 10 York, 1 Denio, 595 ; South Bend i. Allen, 591. Paxton, 67 Ind. 228; Hammond v. 462 THE LAW OF WxVTEES. [part II. duty of determining the location and dimensions of sewers being in its nature judicial;^ where the injury is caused by an error of judgment, as to the required capacity of the sewer, on the part of a competent engineer employed by the city; 2 where extraordinary and exceptional floods cause the overflow, and the structure is of sufficient capacity for all ordinary purposes and for such floods as have previously occurred;^ where a public sewer overflows by the negligence of the city, but discharges through a private drain of the plaintiff which he has connected with the sewer without the permit required by an ordinance,* or when surface water flows into a cellar which is not connected by a drain mth the pub- lic sewer.** 1 Mills V. Brooklyn, 32 N. Y. 489 ; Flagg c. Worcester, 13 Gray, 601; Carr v. Northern Liberties, 35 Penn. St. 324; Little Rock v. Willis, 27 Ark. 572; Pair v. Philadelphia, 88 Penn. St. 309 ; Collins v. Philadelphia, 93 Penn. St. 272 ; Harper v. Milwau- kee, 30 Wis. 865. This rule is not applicable where the necessity for the drainage or outlet is caused by the act of the corporation itself, as by diverting water and throwing it upon the plaintiff's premises without pro- viding an outlet. Byrnes v. Cohoes, 67 N. Y. 204. 2 Van Pelt v. Davenport, 42 Iowa, 308. But see Helena v. Thompson, 29 Ark. 569; Atchison v. Challis, 9 Kans. 612; Detroit «. Corey, 9 Mich. 165 ; Philadelphia Railroad Co. v. Anderson, 94 Penn. St. 351. In Van Pelt t'. Davenport, just cited, held also that the city is not released by the fact that the money for the con- struction of the culvert was appro- priated by the board of supervisors of the county. 2 Madison v. Ross, 3 Ind. 236 ; Cold- water V. Tucker, 36 Mich. 474 ; Powers o. Council Blufes, 50 Iowa, 197. * Ranlett v. Lowell, 126 Mass. 431. See Terry v. New York, 8 Bosw. 504. ^ Barry v. Lowell, 8 Allen, 127. CHAPTER IX. SURFACE AND STJBTBREANBAN WATERS. MINES. SECTION. 263, 264. Surface water defined. 205. The common law as to such water. 206. The rule of the civil law. 267. Kights in surface water not analogous to rights in watercourses. 268. Shutting out surface water. 269. llights and duties of municipal corporations as to flow of surface water in streets. 270. Ibid. — Duty as to sewers and gutters. 2YI. Surface water cannot be lawfully collected and discharged through artificial channels. 272, 273. Municipal and railroad corporations have no greater rights than individuals at common law. 274. Land-owner may drain into a watercourse by artificial channels. 275. He may, at common law, shut out mere surface water by embanking. 276. But he cannot do tliis where the rule of the civil law is adopted. 277. The right to exclude surface water flowing in highways. 278. Liability for discharge of polluted surface water. 279. No prescriptive rights acquirable in the flow of surface waters not collected in artificial channels. 280. Percolating waters belong to the owner of the land in which they are. 281. Underground water currents, having » defined channel and course, are subject to the law of surface watercourses. 282. Acton v. Blundell. 283, 284. Later English decisions. 285. Wheatley v. Baugh. 286. Effect of private agreements on the rights of the parties thereto. 287. Harwood v. Benton. — Cole Silver Mining Co. v. Virginia Water Co. 288. Pollution of wells and percolating waters actionable, 289. The sinking of land, caused by the withdrawal of subterranean waters, apparently not actionable. 464 THE LAW OF WATERS. [PAET II. SECTION. 290. Malicious motive, in draining a neighbor's well or percolating waters, may afford a cause of action. 291. Property in petroleum oil beneath the surface. 292,293. Eaves-drip. 294. Mines. — Flow of subterranean waters as affected by the acts of adjoining mine-owners. 295. Increasing the flow of such waters artificially is actionable. 296. Fletcher v. Rylands. 297, 298. Proximate and remote cause. § 263. Water spread over the surface of land, or percolat- ing the soil beneath the stirface, if flowing in no definite chan- nel, does not constitute a Avatercourse, and is not subject to tlie principles of law regulating the rights of riparian own- ers. Mere surface water may be said to form a watercourse at the point where it begins to have a reasonably well-defined channel with bed and banks or sides, although the stream itself may be very small, and the water may not flow continu- ously ; ^ and surface water ceases to be such after entering within the banks of a watercourse.^ By the common law, no rights can be claimed jure naturae in the flow of surface water, and its detention, expulsion, or diversion is not an actionable injury, even when injury results to others. If the gist of a cause of action is the diversion of the water of a brook or watercourse, this is an essential and material aver- ment which the plaintiff must prove in order to maintain his 1 Swett V. Cutts, 50 N". I-I. 439 ; 278 ; Gibbs 7-. Williams, 25 Kansas Morrison r. Railroad Co., 07 Maine, 214; Palmer ,■. Waddell, 22 Kan S53 ; Wagner v. Long Island Railroad 352 ; Schlichler c. Phillipy, 67 Ind. Co., 5 Thomp. & C. (N. Y.) 163; 2 201; Hoyt r. Hudson, 27 Wis. 656 Hun, 633; Earle v. De Hart, 12 N. J. Fryer i-. AVarne, 29 Wis. 511 ; Eulrich Eq. 280; Shields v. Arndt, 3 Green v. Ricliter, 37 Wis. 226; 41 Wis. 318 Ch. 234 ; Carlisle v. Cooper, 21 N. J. Luther u. Winnisimmet Co., 9 Cush, Eq. 576, 581 ; 19 Id. 256 ; Curtis , . 171 ; Barnes „. Sabron, 10 Nev. 217 Ayrault, 47 N. Y. 73 ; Livingston v. ante, § 41 ; MclCinley v. Union Co., 42 McDonald, 21 Iowa, 160 ; Boynton r. AVis. 203 ; 47 Wis. 324. Gilman, 53 Vt. 17 ; Thunder Bay ^ i(j _. jongg j,. Hannovan, 55 Mo. Booming Co. v. Speechley, 31 Mich. 462. 336 ; Wadsworth v. Smith, 11 Maine, CHAP. IX.J STJEFACE AND SUBTERRANEAN WATERS. 465 action ; and it is a variance to show that the defendant's act drained mere surface water, or water from a swamp, without any proof to sustain the allegation of a diversion of water from a brook. ^ § 264. A stream does not cease to be a watercourse and become mere surface water because at a certain point it spreads over a level meadow several rods in width, and flows for a distance without defined banks before flowing again in a definite channel.^ In broken regions of country, intersected by long, deep ravines, or surrounded by high, steep hills or blufPs, down which large quantities of water from rain or melting snow rush rapidly, often attaining the volume of a small river, and usually following a well-defined channel, the common-law rules applicable to ordinary surface water do not necessarily apply. In many respects sucli waters partake more of the nature of natural streams than of ordinary surface water, and, to a certain extent, are gov- erned by the same rules ; and no one has a right to obstruct or divert such waters so as to cast them upon the propel-ty of others to their injury.^ But in general, in order to consti- tute a watercourse, the channel and banks formed by the flowing of the water must present to the eye, on a casual glance, the unmistakable evidences of the frequent action of running water.* § 265. According to the rule of the common law, which is- accepted in England, Massachusetts, Maine, Vermont, New 1 Griffith V. .Tonkins, 2 Allen, 589 ; Gibbs u. Williams, 25 Kans. 214 ; Munkers v. Kansas City Railroad Co., Drewett c. Sheard, 7 C. & P. 405 ; 60 Mo. 334. Dudden !-. Guardians of the Poor, 11 - Macomber v. Godfrey, 108 Mass. Exch. 627 ; Rex v. Trafford, 8 Ring. 219; Gillett !). Johnson, 30 Conii. 180; 204; Staffordshire Canal v. Birming- Briscoe v. Drought, 11 Ir. C. L. 250; ham Canal, L. R. 1 H. L. 254, 272; Munkres ;•. Kansas City Railroad Co., Rochdale Canal v. Radcliffe, 18 Q. B. 72 Mo. 514. 287 ; Reynolds v. McArthur, 2 Peters, 8 Grand Junction Canal Co. v. Shu- 417, 488 ; Bangor v. Lansil, 51 Maine, gar, L. R. 6 Ch. 483; Bowlsley v. 521; Arnold v. Foot, 12 Wend. 330; Speer, 31 N. J. L. 351 ; McClure o. Earle v. De Hart, 12 N. J. Eq. 283 ; City of Red Wing, 28 Minn. 186. KaufCman v. Griesemcr, 26 Pcnn. St,. * Palmer v. Waddell, 22 Kans. 352 ; 407. 466 THE LAW OT? WATKRS. [PAET 11. York, New Hampshire, Rhode Island, New Jersey, and Wis- consin, a land owner may appropriate to liis own use or expel from his land all mere surface water or superficially percolat- ing waters, in draining his soil for agriculture,^ in collect- ing it for domestic purposes,^ or for the sole jiurpose of depriving an adjoining owner of it,^ and any person, from whose land it is withheld or whose water supply is depleted, will, in the absence of an express grant,* have no right of action for such diversion or obstruction.^ In New Hamp- shire, a land-owner may disturb the natural drainage only to the degree necessary in the reasonable use of his own land, and what is such reasonable use is ordinarily for the jury to determine under appropriate instructions.'' § 266. By the civil law, the lower of two adjacent estates owes a servitude to the upper to receive all the natural drain- age ; and the lower owner cannot reject nor can the upper withhold the supply, although either, for the sake of improv- ing his land, according to the ordinary modes of good hus- bandry, may somewhat interfere with the natural flow of the water.^ Interference with the natural flow of surface water ' Greatrex v. ITayward, 3 Exch. 291 ; 656, and Hurdman v. North Eastern Wood r. Waud, 3 Excli. 748 ; Broad- Railway, 3 C. P. D. 168, 173, as to bent V. Ramsbotliam, 11 Exch. 602 ; reasonable use. See also Williamson Rawstron v. Taylor, 11 Exch. 309; v. Lock's Creek Canal Co., 76 N. C. Buffum V. Harris, 5 R. I. 243 ; Bethall 478. V. Scifert, 77 Ind. 302 ; Cairo Railroad ' Martin v. Jett, 12 La. 561 ; Lat- Co. V. Iloury, Id. 3(14. timore v. Davis, 14 La. 161 ; Hays v. = Rawstron ,'. Taylor, 11 Exch. 369. Hays, 19 La. 351; Adams v. Harri- " Chatfield r. Wilson, 28 Vt. 49. son, 4 La. Ann. 165 ; Delahoussaye i'. " Rawstron i-. Taylor, 11 Exch. 369. Judice, 13 La. Ann. 587; Hooper v. ^ Greatrex i . Hayward, 3 Exch. AA'ilkinson, 15 La. Ann. 497 ; Barrow 291 ; AVood c. Waud, 3 Exch. 748 ; v. Laudry, 15 La. Ann. 681 ; Minor v. Broadbcnt v. Ramsbotliam, 11 Exch. Wright, 16 La. Ann. 151 ; Gillis v. 002; Rawstron v. Taylor, 11 Exch. Nelson^Id. 275 ; Bowman y. New Or- 369 ; Barkley v. Wilcox, 86 N. Y. 140 ; leans, 27 La. Ann. 502 ; Kauffman v. Buffum V. Harris, 5 R. I. 243 ; Chat- Griesemer, 26 Penn. St. 407 ; Martin field V. Wilson, 28 Vt. 49. SeeEnnor ^. Riddle, 26 Penn. St. 415 n; Miller V. Barwell, 2 Giff. 410, 420 et serj.; u. Laubach, 47 Penn. St. 147; Hayes ■Curtis y. Ayrault, 47 N. Y. 73. v. Hickleman, 68 Penn. St. 324; 8 Bassett v. Salisbury Manuf . Co., Watts & S. 40 ; Butler c. Peck, 16 43 N. H. 509; Swett v. Cutts, 50 N. Ohio St. 334; Tootle v. Clifton, 22 H. 459. See Hoyt i: Hudson, 27 Wis. Ohio St. 247 ; Gillham v. Madison CHAP. IX.] STJKFACE AND STJBTEEBANEAN WATERS. 4G7 is regarded as a nuisance, for which nominal damages may be recovered without proof of actual damage. ^ The courts of Pennsylvania, Illinois, North Carolina, California, and Lou- isiana have adopted this rule, and it has been referred to with approval by the courts of Ohio and Missouri.^ § 267. A land-owner may change the grade of its surface, and if, in the absence of grant, prescription, or mutual stipu- lation,^ mere surface water or the natural drainage is dis- placed, obstructed, or caused to accumulate upon adjoining land,* or upon a street or highway,^ ]io right of action arises.*' In Adams v. Walker,'' the Supieme Court 6f Connecticut decided that a person cannot grade his lot and thereby turn surface water upon another's land to prevent it from floAving into his well, or for any other la^vful purpose. But the gen- eral common-law rule ^ is that " the right of an owner of land to occupy and improve it in such manner and for such pur- poses as he may see fit, either by changing the surface, or the erection of buildings or other structures thereon, is not re- stricted or modified by the fact that his own land is so situated with reference to that of adjoining owners, that an alteration in the mode of its improvement or occupation in any portion, of it will cause water, which may accumulate thereon by rains and snows falling on its surface, or flowing on to it over the County Eailroad Co., 49 111. 484; Allen, 19; Rawstron v. Taylor, 11 Gormley v. Sanford, 52 111. 158 ; Hiqks Exch. 369; Bigelow, C. J., in Gannon V. Silliman, 93 III. 255 ; Overton u. v. Hargadon, 10 Allen, 100. Sawyer, 1 Jones (Law) 308 ; Porter i'. ''Luther v. Winnisimmet Co., !) Durham, 74 N.' C. 767 ; Laumier u. Cush. 171 ; Goodale <.: Tuttle, 29 X. Francis, 23 Mo. 181 ; Jones i: Han- Y. 451. novan, 55 Mo. 462; Livingston v. Mc- ^ Bangor v. Lansil, 51 Maine, 521. Donald, 21 Iowa, 160 ; Ogburn ;;. " Luther v. Winnisimmet Co., 9 Connor, 46 Cal. 346; Brown ^•. Mc- Cush. 171; Morrill v. Hurley, 120 Allister, 39 Cal. 573; Goldsmith u. Mass. 99; Parks u. Newburyport, 10 Elsas, 53 Ga. 186; McCormick B.Kan- Gray, 28; Flagg v. Worcester, 13 sas City Railroad Co., 70 Mo. 359. Gray, 601 ; Dickinson v. Worcester, 7 1 Ibid. ; Tootle u. Clifton, 22 Ohio Allen, 19 ; Bangor v. Lansil, 51 Maine, St. 247. 521 ; Goodale v. Tuttle, 20 X. Y. 451. 2 Ibid. ; Barkley v. Wilcox, 86 N. Y. ' 34 Conn. 466. 140, 145. 8 Gannon v. Hargadon, 10 Allen, ^ Luther v. Winnisimmet Co., 9 106, 109 ; ante, § 265. Cush. 171 ; Dickinson v. Worcester, 7 468 THE LAW OF WATERS. [PAET If. surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were ac- customed to flow." In Hurdman v. North Eastern Railway,^ it was held that a claim that rain-water, by reason of the de- fendant raising the surface of its land by earth deposits, made its way through the defendant's wall into the adjoining house of the plaintiff and caused substantial damage, disclosed a good cause of action. Cotton, L. J., in delivering the judg- ment of the court of appeal, distinguished Wilson v. Wad- dell^ as applying to damage resulting from surface water in the natural user of land, and said'" that "if any one, by arti- ficial erection on his own land, causes water, even though arising from natural rainfall only, to pass into his neighbor's land, and thus substantially to uiterfere with his enjoyment, he will be liable to an action at the suit of him who is so injured." It is a question of negligence Avhether one who opens a covered drain in his land is liable for injury to his neighbor, caused by the sudden overflow of the drain after he had reclosed it.^ § 268. According to the rule established in Massachusetts and New Jersey, an owner of land may erect structures upon it of any size, height, or depth, irrespective of then- effect upon mere surface water or the natural drainage.* In states where the rule of the civil law prevails, it appears that the owner of city property may be held to a stricter liability respecting surface water than the owner of an estate in an agricultural district.^ Bentz v. Armstrong,*' in Pennsylvania, 1 3 C. P. D. 168. See Broder v. from the roof of whicli rain water Saillard, 2 Ch. D. 692, 700. fell through a broken gutter upon his " 2 App. Cas. 95. own land, and injured the foundations 3 Rockwood V. Wilson, 11 Cush. of an adjoining house, was liable. 221. ^ Bentz v. Armstrong, 8 W. & S. * Parks V. Newburyport, 10 Gray, 40 ; Young v. Leedom, 67 Penn. St. 28; Bates u. Smith, 100 Mass. 181; 351; Van derwiele i\ Taylor, 05 N. Y. Bowlsby V. Speer, 2 Vroom, 351 ; 341 ; Livingston v. McDonald, 21 Gannon «. Hargadon, 10 Allen, 106 ; Iowa, 160 ; Cincinnati Railroad Co. i-. Bellows .;. Sackett, 15 Barb. 96, de- Ahr, 2 Cincin. 504; Whitney i-. San- cidcd that an owner of a house, dcrs, 3 Pittsburgh, 226 ; Phinizy i . CHAP. IX.] SURFACE AND SUBTERKANBAN WATERS. 469 decided that the owner of a city lot must so improve it as to prevent its surface water from annoying an adjoining owner. It is lield in Illinois, that the owner of an inferior estate in the country is not bound to receive the surface water com- ing to his land in larger quantities or at different times than it would come but for the voluntary act of his neighbor, and that the collecting and discharging of surface water upon such estate in streams is a continuing trespass, for which successive actions will lie.-^ An owner of vacant and unimproved city lots is not liable to an action for his failure to prevent mere surface water, accumulating thereon from natural causes, from passing thence upon the land of an adjoining proprietor to his injury,^ although the washings of streets and deposits of gar- bage by third persons may have caused the land to slope in that direction.* If the owner of a city lot builds a house on it, damming up surface water on an adjacent lot so as to cause injury to the house, he cannot recover.* Such an owner may be obliged, by reason of changes and improve- ments in the surrounding lots, to care for accumulations of surface water thereby caused on his lot.^ An owner of a city lot, on which surface water accumulates by the raising of a street and the adjacent land and became stagnant, is not liable for the nuisance.® § 269. Cities and towns have the same control over streets, highways, and public places, in re&pect to surface water, as private owners of land. If a city or town so constructs or changes the grade of a street or highway as to cause the sur- face water, naturally collecting thereon in rain and snow, to flow upon the lands of adjoining owners, no liability arises.^ Augusta, 47 Ga. 260 ; Freudenstein v. ^ Morrill v. Hurley, 120 Mass. 99 ; Heine, 6 Mo. App. 287 ; Gormley v. Vanderwiele v. Taylor, 65 N. Y. 341. Sanford, 50 III. 158; Whitney v. 3 ibid. Sanders, 3 Pittsburgh, 226. * Doerbaum v. Fischer, 1 Mo. App. iMellor V. Pilgrim, 3 Brad. (111.) 149. 476; 7 Id. 306; Hicks ,.. Silliman, 93 5 Thomas v. Kenyon, 1 Daly, 132. III. 255. See Templeton v. Voshloe, " Barry v. Commonwealth, 2 Duv. 72 Ind. 134; Cairo Railroad Co. v. (Ky.) 95. Stevens, 73 Ind. 278. ^ yi^g „. Worcester, 13 Gray, 601 ; Turner v. Dartmouth, 13 Allen, 291 ; 470 THE LAW OF WATERS. [PAET II. But the land-owner may, by any act or structure on his own land, prevent the water coming upon his land from a highway through a drain or culvert.^ It has been held that a city, in changing the grade of a street, and thereby causing the water accirmulating thereon to flow upon adjacent private property, will not be liable for damages thereby caused, unless the work was done in an unskilful and negligent manner,^ or the adja- cent owner could not have prevented the injury at moderate expense or by ordinary efforts.^ § 270. If a city or town makes provision for carrying off the surface water of its streets and highways, which proves insufficient, and such water flows over upon the land of an adjoining proprietor to his injury, he will have no right of action.* A city or town in constructing or raising the grade of a street or highway is not 'bound to provide means of escape for accumulations of mere surface water thereby caused on adjacent land, nor is it liable for such obstruction.^ It is not liable ■ for the obstruction of surface water by a street horse-railroad track, properly authorized, constructed, and operated.^ A city, which, in the construction of a street. Gray, J., in Emery v. Lowell, 104 v. Northern Liberties, 35 Penn. St. Mass. 13, 16; Hubbard v. Webster, 324; Alden v. Minneapolis, 24 Minn. 118 Mass. 590; Wakefleld v. Newell, 254; Atchison v. Challis, 9 Kan. 603. 12 E. I. 75 ; Lynch v. New York, 76 So, if such water results from extra- N. Y. 60; Imler u. Springfield, 55 ordinary storm. Allen v. Chippewa Mo. 119; Alden t,-. Minneapolis, 24 Falls, 52 Wis. 430. See Leavenworth Minn. 254; Clark v. Wilmington, 5 r. Casey, McCahon (Kan.) 125, 132; Harr. (Del.) 243; Roll u. Augusta, Logansport c. Wright, 25 Ind. 513; 34 Ga. 326. Indianapolis v. Huffer, 30 Ind. 235; 1 Franklin y.,Fisk, 13 Allen, 211. St. Louis v. Gurno, 12 Mo. 414. 2 Muscatine v. Wallace, 4 G. Greene ^ Dickinson !■. Worcester, 7 Allen, (Iowa) 373; Ellis ^. Iowa City, 29 19; Hoyt ;;. Hudson, 27 Wis. 656; Iowa, 229 ; Russell u. Burlington, 30 Clark v. Wilmington, 5 Harr. (Del.) Iowa, 262 ; Damon u. Lyons City, 44 243 ; AVilson i.. New York, 1 Denio, Iowa, 276. 595 ; Goijld ,-. Booth, 66 N. Y. 62 ; 3 Simpson z). Keokuk, 34 Iowa, 568 ; Lynch v. Mayor, 76 N. Y. 60. Sec Bartle v. Des Moines, 38 Iowa, 414. Carr v. Northern Liberties, 35 Penn. * Barry v. Lowell, 8 Allen, 127 ; St. 324. Wilson V. New York, 1 Denio, 595 ; o Swenson v. Lexington, 69 Mo. Mills r. Brooklyn, 32 N. Y. 489; Kava- 157. See Damour v. Lyons City, 44 nagli I'. Brooklyn, 38 Barb. 5(i; Fair v. Iowa, 27G, contra. Philadelphia, 03 Penn. St. 309 ; Carr CHAP. IX.J SURFACE AND SUBTERRANEAN WATERS. 471 made a fill across a natural drain for surface water, and flooded an adjoining owner's property, was held liable in Kentuclcy.^ A municipal corporation is not liable for the non-exercise of its powers to construct gutters or other moans of draining surface water ; 2 and it may abandon a sewer or drain, constructed for the purpose of carrying off surface water, if it does not leave the adjoining owners in a worse position than they would be if the sewer or drain had never been made.^ In Illinois, a city is liable for insufficiency of a gutter causing surface water to overflow upon an adjacent lot,* but not for the entire damage, if the owner contrib- uted thereto by stopping up a drain.^ In Iowa, a city is liable for the failure to provide, when practicable, temporary means for the escape of surface water while raising the grade of a street, causing its escape upon adjoining premises.^ § 271. An owner of land has no right to rid his land of surt'uce water, or superficially percolating water, by collect- ing it in artificial channels and discharging it throngh or upon the land of an adjoining proprietor.' This is alike the rule of the common and civil law;^ and a municipal corpora- tion has no greater right in this respect than a private land- owner.^ But a riparian proprietor may collect, in an artificial ^ Kemper o. Louisville, 14 Bush, v. McDonald, 21 Iowa, 160 , Davis v. (Ky.) 87. Londgreen, 8 Neb. 43, Porter v. Dur- 2 Lynch v. Mayor, 76 N. Y. 60; ham, 74 N. C. 767. See Goldsmth v. Mills V. Brooklyn, .32N. Y. 489 ; Flagg Elsas, 5.3 Ga. 186 ; Gillis t>. Nelson, 16 V. Worcester, 1,3 Gray, 601 ; Roll v. La. Ann. 275 ; Sowers v. Schiil, 15 La. Augusta, 34 Ga. 326 ; Fair «. Phila- Ann. 300. Jutte v. Hughes, 67 N. Y. delphia, 88 Penn. St. 309. 267, decided that a land-owner, who ^ Atchison v. Challiss, 9 Kans. 603. conducted from the roofs of his houses, * Dixon V. Baker, 65 111. 518. in leaders and drains to the privies, ^ Paris V. Cracraft, 85 111. 294, water beyond their capacity, whereby * Cotes V. Davenport, 9 Iowa, 227 ; it overflowed to the injury of an ad- Ross 0. Clinton, 46 Iowa, 606. joining owner, was liable for his fail- ' White y.-Chapin, 12 Allen, 516; ure to prevent the overflow. Foot V. Bronson, 4 Lans. 47 ; Hicks v. « Barkley v. Wilcox, 86 N. Y. 148. Silliraan, 93 111. 255 ; Kauffman v. » Weis v. Madison, 75 Ind. 241 ; Griesemer, 26 Penn. St. 415 ; Martin O'Brien v. St. Paul, 25 Minn. 331. See V. Riddle, 26 Penn. St. 415 n. ; Miller Noonan v. Albany, 79 N. Y. 470 ; ... Laubach, 47 Penn. St. 154 ; Butler Cumberland v. Willison, 50 Md. 138. It. Peck, 16 Ohio St. 334 ; Livingston 472 THE I/AW OF WATERS. [part II. channel, surface water which naturally flows from his estate into a watercourse running through or by such estate, and thereby to discharge such water into the natural stream, although the latter is thereby increased in volume.^ This right exists only with respect to waters of which the water- course is the natural outlet.^ § 272. Cities and towns have no greater rights than indi- viduals to collect in artificial channels upon their streets and highways mere surface water, distributed in rain and snow over large districts, and precipitate it upon the premises of private owners.^ So, a municipal corporation is liable for throwing water, collected in large quantities in a street or in the gutter of a street, upon the land of a private owner,* unless it appears that the plaintiff could have prevented the injury by ordinary efforts or at moderate expense.* In Judge V. Meriden,^ a divided court held a city not liable for the act of its street commissioner in diverting an accumulation of surface water from a street through a sidewalk upon 1 Ibid. ; Waffle u. New York Cen- tral Railroad Co., 53 N. Y. 11 ; Mc- Cormiek v. Horan, 81 N. Y. 86 ; Gan- non V. Hargadon, 10 Allen, 106 ; Miller t: Laubach, 47 Penn. St. 154. 2 Ibid. ; Tillotson v. Smith, 32 N. H. 90 ; Baltimore v. Appold, 42 Md. 442. 3 Plummer v. Sturterant, 32 Maine, 325; Inman v. Tripp, 11 R. I. 520; Byrnes v. Cohoes, 67 N. Y. 204; 5 Hun, 602 ; Noonan v. Albany, 79 N. Y. 470; Bastable «. Syracuse, 8 Hun, 587 ; Moran u. MoClearns, 63 Barb. 185; 44 How. Pr. 30; Sleight V. Kingston, 11 Hun, 594; Petti- grew V. Evansville, 25 Wis. 223 ; Pon- tiac u. Carter, 32 Mich. 164; Ash- ley V. Port Huron, 35 Mich. 296 Smith u. Milwaukee, 18 Wis. 63 Union v. Durkes, 38 N. J. L. 21 Smith u. Alexandria, 33 Gratt. 208 Gillison r. Charleston, 16 W. Va. 282 Russell u. Burlington, 30 Iowa, 262 Weyman v. Jefferson, 61 Mo. 55 Indianapolis v. Lawyer, 38 Ind. 348; Nevins v. Peoria, 41 111. 502 ; Aurora p. Gillett, 56 111. 132; Aurora v. Reed, 57 111. 29 ; Bloomington r. Brokaw, 77 111. 194 ; Shawneetown v. Mason, 82 111. 337 ; Stack v. East St. Louis, 85 HI. 377 ; Elgin r. Kimball, 90 111. 356 ; Aurora v. Love, 93 111. 521 ; O'Brien V. St. Paul, 25 Minn. 331 ; Phinizy v. Augusta, 47 Ga. 260; Lee <. Minne- apolis, 22 iVIinn. 13. So, if such water escapes through a break in a gutter. Alton V. Hope, 68 111. 167. A fortiori, if a city thus discharges foul sewage with surface water. Winn v. Rutland, 52 Vt. 481 ; Jacksonville v. Lambert, 62 111. 519. * Byrnes v. Cohoes, 67 N. Y. 204 ; Mairs i. Manhattan Real Estate As- sociation, 89 N. Y. 498 ; Indianapolis V. Lawyer, 38 Ind. 348 ; Damour v. Lyons City, 44 Iowa, 276. ^ Simpson v. Keokuk, 34 Iowa, 568. 6 38 Conn. 90. CHAP. IX.j SUEFACE AND SUBTERRANEAN WATERS. 473 adjacent private premises. A city is liable if the embankment of a street horse railroad, properly authorized, caused the surface water of a large district to flow upon adjoining premises.^ A city cannot put in a culvert across a street, and discharge a pond of stagnant water upon adjoining premises.^ In Massachusetts, one whose premises have been flooded by great quantities of surface water passing through an artificial channel, must seek his remedy under the statute.^ In Inman V. Tripp,* in Rhode Island, the city of Providence was held liable for damages occasioned to the plaintiff's property, in exercising its power to grade its streets, by causing surface water, some of which had flowed in other streets, and some of which had collected in a pond at a distance, to be turned into the street in front of and above the plaintiff's estate, whence it ran into his cellar and well. A city is liable for an injury resultmg from a defect in a street, though caused by surface water.^ § 273. A raUroad corporation duly authorized by law has no other or different rights regarding surface water or super- ficially percolating waters, and if its road-bed obstructs or diverts the natural flow of such waters, no right of action, by the common law, arises to adjoining owners of land,^ the 1 Damour v. Lyons City, 44 Iowa, Fond du Lac Railroad Co., 52 Wis. 276. See Swenson v. Lexington, 09 526; Louisville Railroad Co. v. Me- Mo. 157. Afee, 30 Ind. 291 ; Clark v. Hannibal 2 Kobs 0. Minneapolis, 22 Minn. Railroad Co., 36 Mo. 202 ; Hosher i. 159. Kansas City Railroad Co., 00 Mo. ' riagg !;. Worcester, 13 Gray, 601 ; 329; Muukers v. Kansas City Rail- Turner V. Dartmouth, 13 Allen, 291. road C6., 60 Mo. 334; Atchison Rail- * 11 R. I. 520. road Co. v. Hammer, 22 Kansas, 763. * Murphy v. Indianapolis, 83 Ind. See AVaterman v. Connecticut Rail- 76. road Co., 30 Vt. 510; Bagnall v. Lon- ° Greeley !;. Maine Railroad Co., 53 don Railroad Co., 31 L. J. (Exch.) Maine, 200; Morrison v. Bucksport 480. Contra, under the civil law, Gill- Railroad Co., 67 Maine, 353 ; Walker ham v. Madison Railroad Co., 49 111. V. Old Colony Railroad Co., 103 484 ; Alton Railroad Co. u. Deitz, 50 Mass. 10, 16 ; Wagner v. Long Island 111. 210 ; Toledo Railway Co. u. Railroad Co., 2 Hun, 633 ; 5 Thomp. Hunter, 50 111. 325 ; Shane i'. Kansas & C. 163 ; Conhocton Co. v. Buffalo Railroad Co., 71 Mo. 237 (a divided Railroad Co., 3 Hun, 523; 5 Thomp. court); Cincinnati Railroad Co. v. & C. 651 ; Raleigh Railroad Co. v. Ahr, 2 Cincin. 504 ; Indianapolis Rail- Wicker, 74 N. C. 220 ; O'Connor ^. road Co. o. Smith, 52 Ind. 428 ; Car- 474 , THE LAW OF WATERS. [PAET II. presumption being that the damages to which they are entitled were included in the compensation assessed.^ The same is true where the road-bed obstructs an artificial ditch tlrrough which the natural surface water on the plaintiff's land is conducted to a riYcr.^ Under the' civil-law rule, a railroad corporation is liable for causing surface water to accumulate on adjoining lands by embankments or any arti- ficial means.^ And if a railroad, built without due legal proceedings, obstructs the passage of surface water, it will be liable to an action at the suit of the owner of the premises flooded.* Damages caused by the displacement or obstruc- tion of surface water may be included in the assessment of damages under the statute caused by the original construction of the railroad.^ A railroad corporation has no right by the erection of embankments, the construction of culverts, or the digging of ditches to collect and discharge unusual quantities of surface water upon adjoining lands.^ § 274. The owner of land has a right to discharge the natural drainage of his land, and the surface water accumu- lating thereon, into a watercourse, and in so doing he may change or concentrate its flow in artificial channels, thus accelerating the flow and increasing the volume of water in riger v. East Tennessee Railroad Co., ° Walker o. Old Colony Eailroad 7 Lea, 388; Cornish i;. Chicago Rail- Co., 10.3 Mass. 1, 16 ; Morrison ii. Buck- road Co., 49 Iowa, 378. In Alton Rail- sport Railroad Co., 67 Maine, 353; road Co. o.'Datz, 50 111. 210, held that Grand Rapids Railroad Co. u. Horn, a horse railroad, which laid its track 41 Ind. 479 ; Rockford Railroad Co. v. across a street gutter, is liable /or the McKinley, 64 111. 338. See Proprietors obstruction of surface water. See of Locks, &c. v. Nashua Railroad Co., Indianapolis Railway Co. v. Smith, 52 10 Cush. 385 ; Hatch v. Vermont Rail- Ind. 428. road Co., 25 Vt. 49. 1 Clark V. Hannibal Railroad Co., '' Curtis v. Eastern Railroad Co., 36 Mo. 202; Raleigh Railroad Co. v. 98 Mass. 428; Toledo Railroad Co. ;;. Wicker, 74 N. C. 220 ; Walker v. Old Morrison, 71 111. 616 ; St. Louis Kail- Colony Railway Co., 103 Mass. 10. road Co. v. Capps, 72 111. 188; Jack- 2 O'Connor v. Fond du Lac Rail- sonville Railroad Co. v. Cox, 91 111. way Co., 52 Wis. 526; Pettigrew u. 500; McCormick u. Kansas City Rail- Evansville, 25 Wis. 223. road Co., 57 Mo. 433; 70 Mo. 359; 5 Toledo Railway Co. u. Morrison, Raleigh Railroad v. Wicker, 74 N. C. 71 111. 616. 220. * Adams v. Hastings Railroad Co., 18 Minn. 260. CHAP. IX.J SURFACE AND SUBTERRANEAN WATERS. 475 the stream, provided its natural capacity is not exceeded,^ and those whose supplj^ is rendered more variable cannot complain.^ The land-owner may, for his own convenience, cleanse and wall up a natural spring on his land if the nat- ural flow of water therefrom in the usual channel is not so increased as to materially injure his neighbor upon whose land the water passes.^ § 275. The owner of land may erect barriers upon it to prevent the influx of surface water, whether collected in artificial channels or not, and if such water is set back or turned aside upon the land of another, to his injury, it affords no cause of action.* One cannot enter upon another's land to erect a barrier.^ In hilly regions, where in times of excessive rains or the melting of heavy snows large quantities of water are forced to seek an outlet through gorges or narrow valleys, the above rule should probably be modified, such waters having some of the characteristics of watercourses.^ Martin V. Riddle," in Pennsylvania, decided that a person could not obstruct an artificial flow of surface water and turn it upon a third person who is not responsible for the flow. § 276. In those States where the influence of the civil law is felt, an owner of land cannot obstruct or alter the natural flow of surface water which his estate owes a servitude to receive.^ If the owner of the dominant estate drains his land 1 Wheeler ;'. Worcester, 10 Allen, Maine, 521 ; Eulrich u. Ricliter, 37 591 ; McCormick v. Horan, 81 N. Y. Wis. 226 ; Schlioliter v: Phillipy, 67 86 ; Williams v. Gale, 3 H. & John. Ind. 201. A fortiori, to shut out foul 231 ; Miller v. Laubach, 47 Penn, St. water. Beard v. Murpliy, 37 Vt. 99. 164; Foot V. Bronson, 4 Lans. 47; Even if drift-wood carried along by Treat u. Bates, 27 Mich. 390. See floods be deposited on another's land. Jones V. Hannovan, 55 Mo. 462; Taylor z). Fickas, 64 Ind. 167. Noonan ;;. Albany, 79 N. Y. 470. '' Grant v. Allen, 41 Conn. 156. 2 Waffle V. New York Railroad Co., •> Palmer v. Waddell, 22 Ivans. 352. 58 Barb. 413; 53 N. Y. 11; Waffle See Bowlsby y. Spcor, 2 Vroom, .35; V. Barber, 61 Barb. 130. Hoyt v. Hudson, 27 Wis. 656. 3 Ibid. 7 26 Penn. St. 415 n. * Ashley v. Wolcott, 11 Cush. 192 ; 8 Overton ?;. Sawyer, 1 Jones (Law) Bigelow, C. J., in Dickinson v. Worces- 308 ; Porter i<. Durham, 74 N. C. 767 ; ter, 7 Allen, 19; Gannon of the term. A spring gutter on the surface is none the less . a watercourse, although it is not equal in volume to a river. 'Small as it may be, if it have a clear and well-defined .channel, and a regular flow in that channel, it cannot be diverted to the injury of the proprietors below.^ " So a sub- .terranean stream which supplies a spring with water cannot be diverted by the proprietor above for the mere purpose of appropriating the water to his own use."^ As the owner of the land below is bound to permit the stream to flow in its accustomed channel, and cannot erect obstructions so as to 1 25 Penn. St. 628, 531, 533. Wend. 330 ; Whetstone v. Bowser, 2 Broadbent v. Ramsbotham, 11 29 Penn. St. 59. Exch. 602 ; Dudden v. Guardians, 1 » Smith v. Adams, 6 Paige, 435. H. & N. 627: Arnold v. Foot, 12 CHAP. IX.J STJEFACE AND SUBTERRANEAN WATERS. 483 throw the water back on liis neighbor above, so the latter Is bound, as a correlative obligation, to permit it to flow to his 'neighbor below." " Thd owner of land, on which a spring issues from the earth, has a perfect right to it against all the world, except those through whose land it comes. He has even a right to it, as against them, until it comes in conflict with the enjoyment of their own property. Strangers cannot destroy it, even though it be derived from lands which do not belong to the owner of the spring. Even a railroad cor- poration, armed by law with the eminent domain, and having power to take private property for the construction of its road, is answerable to the owner of a spring for destroying it, although its destruction be caused by excavations on the land of an adjacent proprietor.^ But while the court in that case held that the corporation was liable, on the ground that the destruction of the spring was not required for the pur- poses of the owner of the land through which the excavation was made, the principle was fully recognized that each pro- prietor has a right to make a proper use of his own land, and that sinking a well upon it is such proper use ; and if the water, by its natural current, flows from one to the other, and a loss arises, it is damnum absque injuria." § 286. In Ballacorkish Co. v. Harrison,^ the Privy Coun- cil held that a grantor of the surface of land, who reserves the mines beneath, is not responsible for draining the water from the surface by working the mines in the absence of an express agreement. In Brain v. Marfell,^ the sale of a well and of the right to convey Avater through the defendant's land was held by the Court of Appeal to give merely the right to the water after it had risen in the well, and that the interception of percolating water before it reached the well afforded no cause of action. When rights of water are created by deed, the nature and extent of the parties' interest 1 Citing Parker v. Boston & Maine 2 l. u. g p. c. 49. Railroad Co., 3 Cnsh. 107. See New ^ 41 L. T. n. s. 455. See Huston v. Albany Railroad v. Peterson, 14 Ind. Leach, 53 Cal. 262. 112. 484 THE JjAW of waters. [part 11. are determined by the deed, and not by the rights which the parties would possess as riparian proprietors or otherwise. If a grant is made of all streams of water that may be found in certain land, in which there is a single stream and several wells, the grantor, or those who claim through him, cannot drain off the subterranean water from the land.i A grant of the privilege of taking water from springs in a certain locality gives the right to take it only where it usually issues from the ground by natural forces, and not from wells or orifices in the ground where the water does not flow to the surface.^ A grant of a well passes a fee in the land occupied by the well,^ and the Avell includes, ex vi termini, not only the orifice which reaches down to the water, but the whole opening in the earth before it is stoned and the stone laid into the wall and the water therein.* Where a spring was set out and separated from other lands by the owner so as to extend three rods each way from the central portion covered by the water, the word "spring" in a deed was held to pass the land so set out and separated to be used with the spring.^ § 287. In Harwood v. Benton,^ in Vermont, it was held that the owner of a mill-pond, who raises the height of water upon his own land, and thereby causes subterranean streams to set back and flow another's land, is not liable for the injury. This is, however, in conflict with the decision of the Supreme Court of New Hampshire in Bassett v. Salis- bury Manuf. CoJ In Cole Silver Mining Co. v. Virginia Water Co.,^ in the Circuit Court of the United States, it was held that, in the West, where rights in water are acquired by prior appropriation,^ one who in worldng a mining claim excavates a tunnel opening a subterranean flow of water > Whitehead o. Parks, 2 H. & N. 5 Woodcock v. Estey, 43 Vt. 515. 870 ; Northam c. Hurley, 1 El. &, Bl. 6 32 Vt. 724. 665. ' 43 N. H. 509. 2 Magoon v. Harris, 46 Vt. 204, 271. « 1 Sawyer, 470. ^ Johnson v. Ilayner, 6 Gray, 107. ^ Ante, c. 7. * Mixer v. Eeed, 25 Vt. 254 ; Clark V. Conroe, 38 Vt. 4G0, 474. CHAP. IX.] SURFACE AND SUBTEEEANEAN WATEES. 485 which is appropriated and enjoyed for several years, is entitled to an injunction against one who constructs a tunnel beneath his own and thereby intercepts and diverts the flow of the water. § 288. The foregoing rules do not apply to cases where a person poisons or corrupts the water which percolates from his land to that of his neighbor.^ " To suffer filthy water," says Foster, J., in Ball v. Nye,^ "to percolate or filter through the soil into the land of a contiguous proprietor, to the injury of his well and cellar, where it is done habitually and within the knowledge of the party who maintains the vault, whether it passes above ground or below, is of itself an actionable tort. Under such circumstances the reasonable precaution which the law requires is, effectually to exclude the filth from the neighbor's land ; and not to do so is of itself negligence. In the present instance, there was no pretence of a sudden and unavoidable accident which could not have been foreseen or guarded against by due care. The percolations appear to have been constant and their existence to have been known to the defendant." In the absence of negligence or knowledge, the same rule of liability would, it seems, apply, he whose filth it is being required to keep it on his premises at his peril.^ But in a recent case,'' Cooley, J., pointedly observes: "If withdrawing the water from one's well by an excavation on adjoining lands will give no right of action, it is difficult to understand how corrupting 1 Wood V. Waud, 3 Exch. 748 ; Church, 17 L. T. n. s. 190 ; Rylands Hodgkinson v. Ennor, 4 B. & S. 229 ; v. Fletcher, L. E. 3 H. L. 330 ; Jacobs 9 Jur. N. S. 1152; Baird o. William- v. Worrell, 15 Leg. Int. 139; Ottawa son, 15 C. B. N. s. 376 ; Smith v. Ken- Gaslight Co. v. Graham, 35 111. 346 ; drick, 7 C. B. 515; Embrey ». Owen, 28 111. 73; Wahle w. Reinbach, 76 Exch. 353; Tenant v. Goldwin, 6 111. 322; Decatur Gaslight Co. u. Mod. 311 ; 2 Ld. Eaym. 1089 ; 1 Salk. Howell, 92 111. 19 ; Pottstown Gas 21 ; Frazier v. Brown, 12 Ohio St. 312 ; Co. v. Murphy, 39 Penn. St. 257 ; Pixley V. Clark, 35 N. Y. 520. Shuter v. City, 3 Pliila. 228. 2 99 Mass. 582, 584 ; Goodrich v. * Upjohn ;.■. Eichland Township, Burbank, 97 Mass. 22 ; Wilson „. 46 Mich. 542, 549. See, also. Brown New Bedford, 108 Mass. 261. v. Ulius, 27 Conn. 84 ; 25 Conn. 583 ; ' Tenant v. Goldwin, 2 Ld. Eaym. Greencastle v. Hazelett, 23 Ind. 186. 1089; 6 Mod. 311; Wormersley u. 486 THE LAW OF WATEllS. [PAKT H. its waters by a proper use of the adjoining premises can be actionable, when there is no actual intent to injure and no negligence. The one act destroys the well, and the other does no more ; the injury is the same in kind and degree in the two cases." Fouling an underground stream, which flows into the plaintiff's mill stream or colliery, is an action- able injury.^ When it is clearly proved that a place of sepulture or such a structure as a gas reservoir will corrupt wells or springs, a court of equity may grant relief by way of injunction.^ If the water of a well is rendered impure by an escape of gas therein, the fact that other causes con- tributed to make it unfit for use is not a bar to an action, but may be shown to affect the amount of damages.^ § 289. A man has no right to withdraw from his neighbor the support of adjacent soil, but there is nothing at common law to prevent his draining that soil when for any reason it becomes necessary or convenient for him to do so, even though the effect may be to cause a subsidence of the surface.* In Smith v. Thackerah,^ the defendants dug a well near the plaintiff's land, which sank in consequence, and •a building erected thereon within twenty j^ears fell. It appearing that if the building had not been on the land, the land would still have sunk, but the damage to the plaintiff would have been inappreciable, it was held that there was no cause of action. § 290. In Greenleaf v. Francis,^ it was held that, in the absence of any agreement subjecting his estate to another, or of rights acquired by adverse enjoyment, the owner may consult his own convenience in his operations above or below the surface of his land; that eacli owner of adjoining 1 Hodgkinson v. Ennor, 4 B. & S. Q. B. 739; Partridge v. Scott, 3 M. & 229 ; Turner ;.. Mirfield, 34 Beav. 390. W. 230 ; Elliot v. North Eastern Rail- 2 Ibid. ; Clark v. Lawrence, Jones way Co., 10 H. L. Cas. 333 ; 1 H. & J. Eq. 83. 145; Wilson v. Waddell, 2 App. Cas. ^ Sherman 17. Fall River Iron Works 95. Co., 5 Allen, 213. 6 l. r. x C. P. 564. * Popplewell V. Hodkinson, L. R. 4 « 18 Pick. 117, 122. Ex. 248 ; Humphries k. Brogden, 12 CHAP. IX.] STJKPACE AND STJBTEERANEAN WATERS. 487 estates has the absolute dominion of the soil, extending upwards and below the surface as far as each pleases, each, however, being bound so to operate below the surface as not to cause the soil to fall in from the adjoining estate. " These rights," it was said, "should not be exercised from mere malice." ^ In a later case before the same court,^ Wells, J., referring to Greenleaf v. Franc^, said: "It is intimated, in this, case, that such acts might be actionable if done maliciously. But the rights of the owner of land being absolute therein, and the adjoining proprietor having no legal right to such a supply of water from lands of another, the superior right must prevail. Accordingly it is generally held that no action will lie against one for acts done upon his own land in the exercise of his rights of ownership, whatever the motive, if they merely deprive another of 1 See, also, Wheatley t'. Baugh, 25 Penn. St. 528; Haldeman v. Bruck- hart, 45 Penn. St. 514; Hoy v. Ster- rett, 2 "Watts, 327 ; Roath v. DriscoU, 20 Conn. 533; Radcliff o. Brooklyn, 4 ST. Y. 195; Panton v. Holland, 17 Johns. 92 ; Chatfield v. Wilson, 28 Vt. 49; 31 Vt. 358; Harwood ■;. Benton, 32 Vt. 724, 737 ; Radclifi v. Mayor, 4 Comst. 195; Bellows v. Sackett, 15 Barb. 96 ; Ellis v. Duncan, 21 Barb. 230. ^ Walker v. Cronin, 107 Mass. 555, 564. In the recent case of Chesley V. King, in Maine {74 Maine, 164, 175, 177) Barrows, J., said: "The gen- eral doctrine of Walker v. Cronin, 107 Mass. 555, is not what counsel claim, but rather that, while a man has no right to protection against competi- tion, he 'has a right to be free from malicious and wanton interference, disturbance, and annoyance.' The dictum in Walker v. Cronin, adverse to this same doctrine as it was shad- owed forth in Greenleaf v. Francis, 18 Pick. 117, seems to be based upon what we conceire to be the erroneous assumption that the owner of a spring has no rights whatever in water per- colating through the soil of adjacent proprietors, because his rights therein are assuredly subject to the para- mount claims of the owner of the soil, operating in good faith in his own land, 'for a justifiable cause.' . . . Upon the whole, we are better satisfied with the view of the law on tills point which we get from Acton ;;. Blundell, Roath v. DriscoU, Wheat- ley V. Baugh, hereinbefore cited, and from Panton v. Holland, 17 Johns. 92, 98, and from the instructions ap- proved in Greenleaf v. Francis, 18 Pick. 119, than with that given in Chatfield u. Wilson. We think this plaintiff had rights in that spring, which, while they were completely subject to the defendant's right to consult his own convenience and ad- vantage in the digging of a well in his own land for the better supply of his own premises with water, should not be ignored if it were true that defendant did it 'for the mere sole and malicious purpose ' of cutting off the sources of the spring and injuring the plaintiff, and not for the improve- ment of his own estate." 488 THE LAW OF -WATEKa. [PAET 11. advantages, or cause a loss to Iiim, without Yiolating any legal right ; that is, the motive in such cases is immaterial." ^ A similar decision was made m Wheatley v. Baugh ;^ but the suggestion in Greenleaf v. Francis was approved so far as this, namely, that malicious acts without the justification of any right, that is, acts of a stranger, resulting in like loss cr damage, might be actionable ; and the case of Parker v. Boston & Maine Railroad,^ was referred to as showing that such loss of advantages previously enjoyed, although not of vested legal right, might be a ground of damages recoverable against one who caused the loss without superior right or justifiable cause." In Phelps v. Nowlen,* in New York, the defendant dug a ditch through an embankment which surrounded a spring upon his own land, not for his own benefit, but with the intent to divert the water from the plaintiff's well, whereby the water in the well was lowered and the plaintiff injured. There was held to be no cause of action, irrespec- tive of the intent. § 291. Petroleum oil, like subterranean water, is included in the comprehensive idea which the law attaches to the word land, and is a part of the soU in which it is found.^ Like water, it is not the subject of property except whUe in actual occupancy, and a grant of either water or oil is not a grant of the soil or of anytliing for which ejectment wUl lie.^ A lease 1 Citing Frazier v. Brown, 12 Ohio « 25 Penn. St. 528. St. 294 ; Chatfield u. Wilson, 28 Vt. 3 Cush. 107. 49; Mahan u. Brown, 13 AVend. 261; * 72 N. Y. 39; Kiff v. Youmans, 8G Delhi V. Youmans, 50 Barb. 316. See, N. Y. 324. also. South Royalton Bank v. Suffolk ^ Kier v. Peterson, 41 Penn. St. Bank, 27 Yt. 505 ; Harwood v. Ben- 357, 362 ; 2 Pitts. 101 ; Chicago Oil ton, 32 Vt. 737 ; Mahon v. Brown, 13 Co. v. United States Petroleum Co., 57 Wend. 261; Rawstron i>. Taylor, 11 Penn. St. 83; Stonghton's Appeal, 88 Exoh. 369; MeCune v. Norwich City Penn. St. 198; Hail v. Reed, 15 E. Gas Co., 30 Conn. 521, 524. The acts Mon. 479. A description of premises of public officers in diverting a stream in a conveyance which is sufficiently are to be judged according to the law- broad to include everything within fulness of the acts and not by their the meaning of the word "land," in- motives. Moran v. McClearns, 60 eludes a spring of water thereon. Barb. 888 ; Benjamin v. AVheeler, 8 Clark v. Conroe, 38 Vt. 469. Gray, 409 ; Morrison v. Howe, 120 '= Dark v. Johnston, 55 Penn. St. Mass. 505. 164 ; Rynd v. Rynd Farm Oil Co., 03 CHAP. IX.] SUIiFACE AND STJBTBKEANEAN WATERS. 489 of land for the purpose of mining oil, coal, rock, or carbon oil passes a corporeal interest which is the proper subject of an action of ejectment,^ and the sale of a proportionate part of the oil to be produced by an oil well is an interest in land, a parol sale of which is void under the statute of frauds.^ § 292. The owner of a building who extends the eaves over the adjoining land of another person, so as to cast water thereon from his roof, is liable therefor in an action on the case.^ If the water so falling penetrates his neighber's wall, he is not relieved of responsibility by the fact that the water would not have entered if the wall had been well built ; * and, if a license or agreement is relied upon to justify the dripping, it is void under the statute of frauds, if not in writing.^ § 293. The owner of a house is not liable to his neighbor for eaves-drip, unless - there is some neglect of duty on his part ; ^ and the privilege of having rain-water fall from one's eaves upon a neighbor's land may be acquired by twenty years' acquiescence on the part of the latter.^ The right to have rain-water drop on land, when once acquired by user, is not lost by increasing the height of the building unless the burden upon the servient tenement is made more onerous.^ Penn. St. 397 ; Karns v. Tanner, 66 Garraty v. Duffy, 7 R. I. 476 ; TJnder- Penn. St. 297 ; Union Petroleum Co. wood v. Waldron, 33 Mich. 232 ; V. Bliven Petroleum Co., 72 Penn. St. Simonds ... Pollard, 53 Vt. 343 ; 173. Martin v. Simpson, 6 Allen, 102; 1 Baker v. Dale, 3 Pitts. 190 ; Union Bellows ;■. Sackett, 15 Barb. 90. Petroleum Co. v. Bliven Petroleum * Gould c. McKenna, 86 Penn. St. Co., 72 Penn. St. 173; Punk v. Halde- 297 ; Crommelin v. Coxe, SO Ala. 318. man, 53 Penn. St. 229. '' Tanner v. Volentine, 75 III. 624. 2 Henry v. Colby, 3 Brewst. 171. "^ Underwood v. Waldron, 33 Mich. The rule that the possession of the 239 ; McHugh v. Curtis, 48 Mich. 263. land is not necessary to enable the ' Lady Browne's Case, Palmer, 440, owner of an incorporeal hereditament cited in Sury v. Pigott, Popham, 166 ; to maintain an action on the case for Baten's Case, 9 Hep. 536 ; Jones v. its disturbance, applies in such action Peskett, 1 M. & S. 234; Battishill v. by lessees against lessors of a right Reed, 18 C. B. 096 ; Cherry v. Stein, to bore for, oil, and ejectment would 11 Md. 1 ; Carbrey v. Willis, 7 Allen, not be the proper remedy. Union 364. Petroleum Co. v. Bliven Petroleum ^ Thomas v. Thomas, 2 C. M. & R. Co., 72 Penn. St. 173. 34 ; Harvey v. Walters, L. E. 8 C. P. 8 Pay u. Prentice, 1 C. B. 828; 162. Tucker v. Newman, 11 Ad. & El. 40; 490 THE LAW OF WATBES. [PAET 11. The right to have water fall from the eaves of a house into a neighbor's enclosure does not justify casting the water into the same enclosure in a larger body by means of a spout.^ And a private land-owner who paves his yard, thus rendering it less penetrable by water, and conducts the water in leaders from the roofs of his houses to his yard in quantities beyond the capacity of the drains to carry away, thereby flowing his neighbor's premises, is bound to prevent the water thus accu- mulating on his own premises from causing injury to his neighbor's, and it is error to submit to the jury the question whether he has done everything practicable in the way of drainage to carry off the water.^ It being settled that no one has a right, by an artificial structure of any kind erected upon his own land, to cause the water which collects thereon or therein to be discharged upon his neighbor's land, either in a torrent or stream or in drops, it can make no difference whether the discharge is in the form of snow, or upon land, or the person of a neighbor or of a traveller upon a highway.^ § 294. In the case of subterranean mines, if one OAvner removes barriers by a trespass, as by extending his works into his neighbor's mine, he is bound to protect such mine from inundation.* But when a recovery has been had against him for the trespass, he is not liable in damages for the con- sequential and continued flow of the water, since he cannot enter upon another's land for the purpose of remedying his tortious act.^ It is the natural right of each of the owners of two adjoining mines, where neither is subject to. any servitude 1 Reynolds v. Clarke, 2 Ld. Eaym. * Pirmstone v. Wheeley, 13 L. J. 1399 ; 8 Mod. 172. (N. s.) Exoh. 361 ; 2 Dowl. & L. 203; - Jutte V. Hughes, 67 X. Y. 267. Westminster Brymbo Coal Co. o. 3 Shipley v. Fifty Associates, 106 Clayton, 36 L. J. Ch. 476 ; Haward Mass. 194; 101 Mass. 251; Milford w. v. Bankes, 2 Burr. 1113; Douty v. Holbrook, 9 Allen, 17, 23; Brooks v. Bird, 60 Penn. St. 48. As to erecting Curtis, 4 Lans. 283 ; Walsh ;.. Mead, barriers against water in mines, see 8 Hun, 387. See Garland !>. Towne, 55 McKnight o. EatclifE, 44 Tenn. St. N. H. 55, wliere the question of negli- 156. gence in such a case was treated as ^ Clegg v. Dearden, 12 Q. B. 561 ; one of fact for the jury. The occu- Taylor v. Stendall, 7 Q. B. 634. pier is prima facie liable. Leonard v. Storer, 115 Mass. 86. CHAP. IX.] SUEFACE AiSTD SUBTERRANEAN WATERS. 491 to the other, to work his own in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine, at least if it does not arise from the negligent or malicious conduct of the party .1 One mine-owner may thus permit water naturally flowing in his own mine to pass off by gravitation into an adjoining or lower mine, so long as his operations are carried on properly and in the usual man- ner, and is not bound to give notice of his intention to remove the barriers.^ § 295. When the flow of the water is increased artificially or is greater than would result from gravitation alone, the mine-owner who causes it is liable for the increased injury to another mine.^ This is termed a " non-natural " use of the land, and the principle applies wherever anything which causes injury to another's close was not in or upon the land in its natural condition, but was introduced in quantities and in a manner not the result of any operation on or under the land ; and the injury is caused either by this being done, or by any imperfection in the mode of doing it.* If a miner collects and appropriates the water for his own benefit, he is responsible for its future course, even when it comes to an- other's land through natural channels.^ Where the defendant 1 Smith V. Kendrick, 7 C. B. 505 ; Kenyon, 11 Ch. D. 782 ; 6 Ch. D. Tenant y. Goldwin, 1 Salk. 21 ; 6 Mod. 773; Musgrove v. Smith, 37 L. T. 311; 2 Ld. Eaym. 1089; Fletclier v. 367. In West Cumberland Iron Co. Rylands, L. R. 3 H. L. 330, 338 ; Bag- v. Kenyon, the defendants sunk a nail II. London Railway Co., 7 H. & N. shaft in their mining property, which 423 ; 1 H. & C. 544 ; ante, § 290. See tapped water formerly finding its way Jegou V. Vivian, L. R. 6 Ch. 742. into old workings in their ground, and 2 Trower v. Chadwick, 6 Bing. N. thence percolating into the plaintiff's C.l ; 8 Scott, 1 ; Bainbridge on Mines mines. The defendants then made a (4th ed.), 297; Hurdman v. North borehole at the bottom of the shaft, Eastern Railway Co., 3 C. P. D. 168. admitted to be not in due course of ^ Baird v. Williamson, 15 C. B. n. s. mining, but to get rid of the water, — 376 ; 12 W. R. 150 ; Whitehouse o. the effect of which was to let off the Pellowes, 30 L. J. C. P. 305 ; Fletcher water into the above' old workings, V. Rylands, 3 H. L. 3.30, 339. See El- whence it percolated into the plain- well V. Crowther, 31 Beav. 163. tiff's mines precisely as if the shaft * Ibid. and borehole had never been made. 5 West Cumberland Iron Co. v. Mr. Justice Pry (in 6 Ch. D. 773) de- 492 THE LAW OF WATERS. [part II. by his coal works disturbed the soil above, which was natu- rally impervious to water, and caused fissures by the subsi- dence of the soil through which the natural rainfall on the surface passed into the defendant's workings, and thence by gravitation into the plaintiff's, it was held that there was no servitude on the owner of the upper mines, for the benefit of the owner of the mines on the dip, to preserve either the surface or the subjacent minerals as watertight as the undis- turbed state of the strata : ^ or to prevent the withdrawal by percolation of water from the wells and springs of the super- jacent land.^ The owner of two adjoining mines, who in working the lower stops up an opening from the higher, wherein the accumulated water rises until it flows over into the plaintiff's mine, is not liable for the consequent injury, especially if the opening from the higher mine into the plain- tiffs was caused by a trespass of the plaintiff's predecessor.'^ An injunction will issue where the damage will be inevitable, or the workings are clearly improper,* if applied for within a cided that the defendants, by making the shaft, appropriated the water and made themselves masters of it, and became bound to prevent its flowing into the plaintiff's works. On appeal (11 Ch. P. 782) it was held, revers- ing his decision, that the defendants' act was not an appropriation, the ef- fect of making the shaft and borehole being merely to alter the course of the water, and not to add to the amount of water thrown upon the plaintiff, or vary the time of its get- ting there. 1 Wilson V. Waddell, 2 App. Cas. 95. In Pennsylvania, a mine-owner is bound to leave sufficient support for the surface ; and if he with- draws such support, whereby the surface sinks and cracks, allowing surface water to flow into his mine, and thence into the mine of an ad- joining owner, he is liable for the resulting damage. Homer v. Watson, 79 Pcnn. St, 242. 2 Ballacorkish Mining Co. v. Har- rison, L. R. 5 P. C. 49 ; 29 L. T. n. s. 658 ; Wheatley v. Baugh, 25 Penn. St. 525 ; Coleman v. Chadwick, 80 Penn. St. 81 ; Trout v. McDonald, 83 Penn. St. 144. A lessor, who, in quar- rying, caused water to percolate into, and to flood his lessee's mine, was held liable on his covenant for quiet enjoy- ment in Shaw v. Stenton, 2 H. & N. 858. 3 Lomax v. Stott, 39 L. J. Ch. 834. In Locust Mountain Coal and Iron Co. u. Gowell, Agnew, J., held at nisi prills, that a mine-owner, who, in ex- tending a gangway, struck an opening that liad been wrongfully made by a trespasser up the dip of his coal-vein, is not justified in turning the water flowing down the gutter of the gang- way into such opening, whence it will run into a lower mine, if he can easily carry the water across the opening, as by means of a wooden trunk into a drain leading into his own pit. * Crompton v. Lee, L. R. 19 Eq. 115 ; Robinson !'. Byron, 18 Ves. 517 ; Beaufort v. Morris, 6 Hare, 340 ; M ex- borough V. Bower, 7 Beav. 127 ; Stral- ley, I'. Pearson, 28 W. R. 752. CHAP. IX.] STJEPACE AND SUBTEEEAKBAN WATEES. 493 reasonable time after the commencement of the workings,^ or after the right to damages has been established by action at law.*^ § 296. In Fletcher v. Rylands,^ the owners of a mill con- structed a reservoir for the purpose of accumulating water from their own and adjoining lands, and employed an engi- neer and a contractor to choose the site and direct the work. The contractor failed to provide sufficient support to resist the pressure of the water in certain old shafts which commu- nicated Avith ancient coal workings, the existence of whicli was then unknown to the defendants or to any of the persons employed by them. The reservoir burst, and the water therein penetrated through intervening coal workings into the plaintiff's colliery, which was flooded. In the Court of Exchequer it was held that the defendants were not liable for the injury in the absence of negligence on their part, or of knowledge that unusual caution was necessary. But in the Exchequer Chamber, and afterwards in the House of Lords, the views of Bramwell, B., in a dissenting opinion, were sustained, and the defendants were held liable upon the ground that " foreign " water had been sent down upon the plaintiffs, and that the defendants' lack of knowledge thus became immaterial. The principle established is thus stated and illustrated by Mr. Justice Blackburn in the Court of Exchequer Chamber : " We think that the true rule of law is, that the person who, for liis own purposes, brings on his 1 Ibid. ; Birmingham Canal Co. v. Cases (4th series) 461 ; Nugent v. Lloyd, 18 Ves. 515. Smith, 1 C. P. D. 423 ; Box ;;. Judd, 2 Ibid. 1 C. P. 423; Cahill v. Eastman, 18 3 L. R. 3 H. L. 330 ; L. R. 1 Ex. Minn. 324 ; Knapheidc v. Eastman, 20 (Ex. Ch.) 265 ; 4 H. & C. 263 ; 3 II. & Minn. 478 ; Gilham v. Madison County C. 774 ; Smith v. Eletcher, 2 App. Cas. Railroad Co., 49 111. 484 ; The Nitro- 781; L. R. 7 Ex. 305; Wilson v. New- Glycerine Case, 15 Wall. 524; Parrot berry, L. R. 7 Q. B. 31 ; Musgravc v. v. Barney, 1 Sawyer, 423 ; 1 Deady, Smith, 47 L. J. 4; 37 L. T. 367 ; Dunn 405; Gorham v. Goss, 125 Mass. 232. V. Birmingham Canal Navigation, L. See Wilson v. Newberry, L. R. 7 Q. B. R. 7 Q. B. 244 ; L. R. 8 Q. B. 42 ; 31 ; Hurdman v. North-Eastern Rail- Humphreys u. Cousins, 2 C. P. D. way Co., 3 C. P. D. 168; Cattle v. 230; Crowhurt v. Amersham Burial Stockton AVater AVorks, L. R. 10 Q.. Board, 4 Ex. D. 5; 27 Am. L. Reg. B. 453. 343; Chalmers v. Dixon, 3 Sessions 494 THE LAW OP WATERS. [PAET II. lancis and collects and keeps there anything likely to do mis- chief if it escapes, must keep it in at his peril, and if he does not do so, IS, prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse him- self by showing that the escape was owing to the plaintiff's default ; or, perhaps, that the escape was the consequence of vis major, or the act of God ; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems, on prin- ciple, just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the lilth of his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his 'neighbor's alkali works, is damnified without any fault of his own ; and it seems but reasonable and just that the neighbor who has brought sometlring on his own property wliich was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued ; and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequences. And, upon authority, this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches." The principle thus established has since been applied to injuries resulting to adjoining land from the percolation of the waters of an artificial reservoir through the soil ; ^ to dampness caused in the plaintiffs house by an artificial deposit near by of spongy soil and clay ; ^ to damage caused by the neglect of ' Wilson V. New Bedford, 108 Mass. works company, imposing similar 261;„Gray u. Harris, 107 Mass. 492; liability. Fuller V. Cliicopee Manuf. Co., 16 2 Hurdman ;;. North Eastern-Rail- Gray, 46 ; Pixley v. Clark, 35 N. Y. way Co., 26 W. R. 489 ; 3 C. P. D. 168. 520. See Rothes v. Kircaldy, L. R. 7 Sec Broder v. Saillard, 2 Ch. D. 700. H. L. P. C. 694, the case of a water- CHAP. IX.] SUEFACE AND SUBTEEEANBAN WATEES. 495 the occupier of a house to adjoining premises from the escape of sewage from defective drains under the first house.^ In, New York,^ New Hampshire,^ and New Jersey,* the doctrine of Fletcher v. Rylands is qualified, and it is held to be a question of fact for the jury whether the defendant was guiltjr of negligence. If an artificial accumulation of water is for the benefit of both plaintiff and defendant, as where they are respectively tenants of the upper and lower stories in the same house, the principle of Fletcher v. Rylands does not apply, and the defendant is liable only for ordinary negligence.^ Nor does such extraordinary liability arise when the water is accumulated for public purposes under the express authority of a statute, and negligence is not proved.^ § 297. Where it appeared that large quantities of water accumulated in artificial pools on the defendant's land, which were formed by damming up, with artificial embankments, a natural stream flowing through the defendant's land, an extraordinary and excessive rainfall, which amounted to vis 1 Humphreys v. Cousins, 2 C. P. D. L. R. 7 Q. B. 244 ; L. R. 8 Q. B. (Ex. 239 ; Hodgkinson o. Ennor, 4 B. & S. Ch.) 42 ; Dudley Canal Navigation 241. Co. V. Grazebrook, 1 B. & Ad. 59; ^ Losee v. Buchanan, 51 N. Y. 476. Blyth v. Birmingham Water Works, See Seldon v. Delaware Canal Co., 23 25 L. J. Ex. 212 ; Eaton v. B. C. & M. -Barb. ,362; Bellinger v. New York R. Co., 5 N. H. 504. A horse-railroad Central Railroad Co., 23 N. Y. 47 ; company may lawfully throw snow Hay V. Cohbes Co., 2 Comst. 159. from the track upon a street, but may * Garland v. Towne, 55 N. H. 55. be held liable by a jury, if it casts the See Brown u. Collins, 53 N. H. 443 ; snow into the gutter and thereby so Swett V. Cutts, 50 N. H. 439. obstructs the flow of water as to flood * Marshall v. Welwood, 38 N. J. L. the plaintiff's premises. Short v. 339. See, also, Hoyt v, Hudson, 27 Baltimore City Passenger Railway Wis. 656 ; Pettigrew ;■. EvansvUle, 25 Co., 50 Md. 73. The doctrine of Wis. 223; Proctor v. Jennings, 6 Nev. Fletcher v. Rylands has been held by 83; Simonton v. Loring, 68 Maine, the privy council not to apply in 164. India where water was stored from '' Carstairs v. Taylor, L. R. 6 Ex. time immemorial in tanks for the pur- 217 ; Ross y. Fedden, L. R. 7 Q. B. poses of irrigation and the public 661 ; Bell v. Twentyman, 1 Q. B. 766. benefit, and these were protected by See Marshall jj. Cohen, 44 Ga. 489; the local law. Madras Railway Co. w. Cattle V. Stockton Waterworks Co., The Zemindar, 30 L, T. n. s. 22 W. K. L. R. 10 Q. B. 453. 865. * Dunn !).' Birmingham Canal Co., 496 THE LAW OF WATEES. [PAET II. major, and caused the embankments to be carried away and the accumulated waters to rush down the stream and injure the plaintiff's property, was held to be the sole proximate cause of the escape of the water and not to give the plaintiff a cause of action.^ So, where the defendants' reservoir, constructed with sluices, connected with a main drain or watercourse, from which the reservoir was supplied, and with sluices by which the surplus water was returned into the drain at a lower level, and the combined effect of the emptying of a reservoir belonging to a third person above the defendants' premises, and of an obstruction in the drain below them, was to force water through the sluices into the defendants' reservoir and cause an overflow thence upon the plaintiff's land, the defendants were held not liable, it appearing that they had no control over the main drain, or the other reservoir, or knowledge of the cause of the injury, and that the sluices prevented overflow under ordinary circumstances.^ § 298. A person may lawfully coUect water by means of a dam, or in ditches, canals, or pipes, and is not liable in such a case for injuries caiised by the escape of the water, in the absence of negligence on his own part,^ or when the work is 1 Nichols V. Marsland, 2 Exch. Div. 2 Bqx v. Judd, 4 Exch. T>. 76. 1 ; L. II. 10 Exch. 255 ; Fletcher v. ^ Livingston v. Adams, 8 Cowen, Smith, 2 App. Cas. 781 ; L. R. 9 Ex. 175 ; Shrewsbury v. Smith, 12 Cush. 64 ; L. II. 7 Ex. 305 ; Rirer Wear 177 ; Blyth v. Birmingham Water Co., Commissioners, 26 W. R. 217. Mel- 11 Exch. 781 ; Noyes v. Shepherd, 30 lish, L. J., liere said : " If, indeed, the Maine, 173 ; China r. Southwick, 12 maliing of tlie reservoir was a wrong- Maine, 238 ; Lehigh Bridge Co. v. ful act in itself, it might he right to Lehigh Coal Co., 9 Rawle, 9 ; Bell hold the defendant liable for the con- v. McClintock, 9 Watts, 120 ; PoUet sequences of his own wrongful act, v. Long, 56 N. Y. 200 ; New York v. oven although occasioned by the act Bailey, 3 Denio, 433 ; Lapham v. Cur- of God, just as ho would be liable tis, 5 Vt. 371 ; Hoffman v. Tuolumne in the case of an absolute contract. Water Co., 10 Cal. 413 ; Campbell r. But the making of a reservoir is not Bear River Mining Co., 35 Cal. 683 ; itself a wrongful act, unless as in Tenney v. Miners' Ditch Co., 7 Cal. Fletcher v. Rylands, it is on land the 33o ; Wolf v. St. Louis Water Co., 10 peculiar character of which allows Cal. 541 ; Everett t'. Hydraulic Flume the water to escape and do damage." Tunnel Co., 23 Cal. 225 ; Frye c. See Mahoney y. Libbey, 123 Mass.20; Moore, 53 Maine, 583; Fraler 6-. Gorham v. Goss, 125 Mass. 232. Sears Water Co., 12 Cal. 555 ; CHAP. IX.] STJBFACE AND STJBTEEEANEAN WATERS. 497 done by competent and independent contractors.^ There is, therefore, no liability where a dam, which is properly con- structed and kept in repair, breaks and causes injury to lands below because of an extraordinary flood or other act of God,^ or when, in consequence of great and exceptional floods, it injures a land-owner above.^ The owner of the dam is held responsible only for that degree of care, skill, and diligence in its construction and maintenance which men of ordinary prudence are accustomed, in similar cases, to employ.* But if the injury is caused by hazardous ex- periments, by the imperfect construction of a dam or canal embankment or negligence in maintaining it, the owner is liable.^ And if a stream is subject to extraordinary freshets once in several years, although at no regular intervals, a person who builds a dam across the stream is bound to so construct it as to resist such freshets.^ Wright , . Holbrook, 52 N. H. 120 ; * Ibid. ; Todd u. Cochell, 17 Cal. Washburn v. Gilman, 64 Maine, 163, 97. 168; McArthur u. Green Bay Canal ^ Cahill v. Eastman, 18 Minn. 324; Co., 34 Wis. 139. Knapheide v. Eastman, 20 Minn. 478 ; 1 Boswell V. Laird, 8 Cal. 469. St. Anthony Falls Water Power Co. 2 Ibid. Eastman, 20 Minn. 277 ; Porter v. Pe- 2 Ibid. ; Young w. Leedom, 67 Penn. quonnoc Manuf. Co., 17 Conn. 249; St. 351 ; McCoy v. Danley, 20 Penn. Tuolumne Water Co. u. Columbia St. 89 ; Monongahela Navigation Co. Water Co., 10 Cal. 193. i,. Coon, 6 Barr, 379 ; Smith v. Aga- ^ Q^ay „. Harris, 107 Mass. 492 ; warn Canal Co., 2 Allen, 358. New York v. Bailey, 2 Denio, 133. CHAPTER X. CONTRACTS AND COVENANTS. SECTION. 299. Easements in general. 300. Creatable by deed only. 301. Easements in gross and appm'tenant. 302. Covenants personal and real. 303. Easements as encumbrances against warranty. 304. Water easements as to quantity and power. 304a. Under what words and phrases not only the water privilege but the soil itself passes. 305. Appurtenances. 306-309. Secondary easements. 310. Eeservations and exceptions. 311. Construction of, must be certain. 312. Must be inclusive and unambiguous. 313. Extinguished by unity of possession. 314. Not so of necessary or continuous easements. 315. Partition. 316. Easements follow parted estates. — Mining ditches indivisible. 317. Pipes and aqueducts. 318. Construction of water easements. 319. Should regard preliminaries, circumstances, and intention. 320. Does not restrict use, in grant of quantity. 321. Statute of Frauds. 322. License granted verbally. 323. When revocable. 324. Unexecuted license always revocable. 325. Misrepresentations as to water easements actionable. 326. Promissory representations non-actionable. 327. Damages. 328. Kepairs. CHAP. X.] CONTRACTS AND COVENANTS. 499 § 299. In addition to the rights which riparian proprietors possess ex jure naturae, other rights may be acquired in watercourses known as easements. An easement is a privi- lege without profit which the owner of one tenement has in an adjoining tenement, -by which tlie servient owner is obliged to suffer or not to do something on his own land for the advantage of the dominant estate. ^ Easements in water- courses are exclusively affirmative, that is, the exercise of the easement obliges the servient owner to suffer something on his own land, which would be a cause of action if the right did not exist. Such rights may be acquired by a contract, express or implied, or by prescription, which pre- supposes a contract or grant from the long-continued exercise of the right. The grantor of land through which a stream of water flows may reserve the water privilege, or he may convey the use of the water in whole or in part, leaving the fee of the land vested in the grantor.^ If a miller purchases the water privilege adjoining his mill, the right of soil remaining in the original proprietor, he gains an incorporeal hereditament ; but if he buys the land itself over which the water flows, he has a corporeal tenement, and the right which he possesses in respect to the watercourse is real.^ In the former case the right acquired is an easement and not a profit a prendre, since running water, whether above or below the surface of the earth, is not a product of soil and does not remain ui any one place.* The right to enter upon another's close and there take water for domestic purposes from a natural fountain, as a pond or a running spring, is an easement onlj^, sustainable by proof of custom by the inhabitants.^ So the privilege of laying pipes in 1 Termes de la Ley, tit. Easement ; 181, 184 ; Smith y. Ford, 48 Wis. Monsey v. Ismay, 3 li. & C. 497. 166. 2 Rood V. Johnson, 26 Vt. 64 ; Mil- * Race v. Ward, 4 El. & Bl. 702 ; ler V. Lapham, 44 Vt. 416 ; Soule v. Mounsey u. Israay, 3 H. & C. 486 ; Russell, 13 Met. 436. Shuttleworth v. Le Feming, 19 C. B. ' Ibid. ; Woolrych on Waters, n. s. 687 ; Manning v. Wasdale, 5 A. 146 ; Sterling Hydraulic Co. v. Wil- & E. 758 ; Owen i,. Field, 102 Mass. liams, 66 111. 393 ; Seymour v. Lewis, 90 ; Hill v. Lord, 48 Maine, 83, 99 ; 13 N. J. Eq. 439 ; Morgan v. Mason, 3 Kent Com. 427. 20 Ohio, 401 ; Wall y. Cloud, 3 Humph. e ibid. 500 THE LAW OF WATEES. [PART 11. another's land for the purpose of taking water, and of enter- ing upon the land to lay, rejjair, or renew such pipes, is an interest in the realty which is assignable, descendible, and devisable.' The right to water in wells or cisterns is an interest in land, although not a profit- a prendre, and may be claimed by custom.^ § 300. An easement in a watercourse can only be created by deed ; ^ and when so created, the grantor cannot derogate from the deed, and the nature and extent of the rights of the parties can only be determined thereby.* A grantee of a water privilege whose deed contains no covenant as to the height of the dam or his rightful extent of flowage, is without remedy at law or in equity, if he is subjected to damages by rea- son of his maintenance of a dam at an improper height.'' The above rule applies equally whether the water flows in a na1> ural or artificial channel, or is mere surface or percolating water ; ^ and whether all the interest in the soil beneath the water is conveyed, or only so much as is necessary for a due en- joyment of the water, yet the interest is of such a character that 1 Goodrich v. Burbank, 12 Allen, Scott, 9 Cowen, 279; Wiseman v. 459 ; 97 Mass. 22 ; Amidon v. Harris, Lucksinger, 84 N. Y. 31 ; v. De- 113 Mass. G8; Hankey i-. Clark, 110 berry 1 Hay w. (K C. ) 248 ; Watrous w. Mass. 202 ; French v. Morris, 101 Watrous, 3 Conn. 373 ; Moore v. Sinks, Mass. 68 ; Lonsdale Co. v. Moies, 21 2 Ind. 257 ; Foot v. New Haven Co., Law Rpp. 004. See McMullin v. 23 Conn. 214. Under the statutes of Wooley, 2 Lan. 394. Ohio, an unsealed written license to 2 Ibid. ; Hill ;;. Lord, 48 Maine, enter upon and imbed water pipes 100 ; Goodrich u. Burbank, 12 Allen, in another's land, with privilege to 459, 461. enter and repair them, creates no in- 8 Co. Litt. 9 a. ; Hewlins u. Ship- cumbrance upon the land as against pam, 5 B. & C. 221, 229; Cocker v. a subsequent purchaser. Wilkins o. Cowper, 1 C. M. & R. 418 ; Cook c. Irvine, 33 Ohio St. 138. Stearns, 11 Mass. 533 ; Fuller v. Ply- 4 Northam v. Hurley, 1 E. & B. 665 ; mouth, 15 Pick. 81 ; Short v. Wood- Whitehead ■;. Parks, 2 H. & N. 878 ; ward, 13 Gray, 86 ; Stevens v. Stevens, Sliarp u. Waterhouse, 7 E. & B. 816 ; 11 Met. 251 ; Banghart u. Flummer- Tipping v. Eckersley, 2 K. & J. 273. felt, 43 N. ,J. L. 28 ; Carlton v. Reding- '•> Hopper v. Lutkins, 3 Green Ch. ton, 21 N. H. 291 ; Stevens u. Dennett, 149. 51 N. H. 324; Fuhr u. Dean, 29 Mo. » Rawstron i-. Taylor, 11 Excli. 369; 110 ; Miller ,.. Auburn & Syracuse Whitehead ;■. Parks, 27 L. J. Exch. Railroad Co., 6 Hill, 61; Brown o. 169. Woodv.'orth, 5 Barb. 550 ; Russell v. CHAP. X.] CONTEACTS AND COVENANTS. 501 it cannot pass by parol.^ No water easement, however, will arise under a deed, giving a mere right of election to the grantee, unless the grantee exercises his election during his lifetime.^ A covenant which is annexed to the realty be- comes, upon a total breach, a mere personal right which remains with the covenantee or his personal representatives and does not pass with the land.^ Where a railroad com- pany, having a license to change the course of a stream, agreed with the owner of a mill fed by the stream to dig a new channel and erect levees, it was held that, after the mill was conveyed to another, the purchaser could not maintain an action against the company for failure to fulfil the above provision in the manner agreed upon.* A personal covenant made in general terms is to be construed, in determining whether there has been a breach, with such implied excep- tions and qualiiications as necessarily grow out' of the, subject-matter. If the stipulation be to supply an adjoining land-owner with water-power during regular working hours without exception, an occasional brief interruption, caused, by ice or freshets, would not constitute a breach.^ § 301. An easement is not presumed to be a mere personal right, or in gross, when it may fairly be regarded as ap- purtenant to some other estate;^ but if there is nothing connecting the privilege with such other estate, it does not' pass with the land to an assignee.^ Where an upper tract' 1 Bullen V. Runnels, 2 N. H. 255 ; ^ Mill-dam Foundry o. Hovey, 21 Hall D. Chaffee, 13 Vt. 170; Tanner Pick. 417, 442; Green u. Kelley, 3 V. Volentine, 75 111. 624; Wood ^. Harr. (N.J.) 246; Spencer, 544. A Edes, 2 Allen, 580 ; Seidensparger v. covenant by a landed proprietor, not Spear, 17 Maine, 123; Clement v. Dur- to permit the owner of an adjoining gin, 5 Greenl. 9; Brand u. Doane, 17 tract of land to cut a ditch through Conn. 402; Fitch y. Seymour, 9 Met. the grantor's premises, is not against 462; Smith y. Goulding, 6 Cush. 154; public policy. Jacobs v. Daris, 34 Seymour v. Carter, 2 Met. 250 ; Cobb Md. 204. V. Fisher, 121 Mass. 170. « Spensley v. Valentine, 34 "Wis. ^ Vandenburgh i,. Van Bergen, 13 154 ; Dennis v. Wilson, 107 Mass. 592 ; John, 212. See Jackson v. Van Bu- Bank of North America u. Miller, 24 ren, 13 Id. 525. Alb. Law Journ. 35. 3 Spencer's Case, 1 Smith's Lead. ' Ackroyd v. Smith, 10 C. B. 164; Cas. 165. Linthicum 7). Ray, 9 Wall. 241 ; Spen- * Junction Railroad Co. v, Sayers, oer v. Spencer, 2 Ired. 96 ; Moline 28 Ind. 318. Water Power Co. v. Waters, 10 Brad. 502 THE LAW OF WATERS. [PART II. of land was drained, by ditches running through a lower tract, and the owner of both tracts conveyed the lower to J., excepting "a privilege of two leading ditches to T." and the following day conveyed to T. the upper tract without mentioning this privilege, it was held not to be annexed to the upper tract so as to pass with it to an assignee.^ So, a covenant to repair a canal, dug for the purpose of draining the lands of the parties to the covenant, runs with such lands and binds a subsequent purchaser in fee.^ A deed-poll which conveys to a railroad company for its road-bed the fee of a strip of land, and contains the condition subsequent "that the system of drainage shall remain the same as now, and ditches to remain of such a depth as to allow, as hereto- fore, the drainage of the land to the depth of five feet," does not create a covenant running with the land, and a new company, which purchases the road after the condition is violated, is not liable in damages to the grantor, in the absence of a personal covenant, for its mere faihu'e to remove obstructions placed in the ditches by the first company .^ § 302. Rights in watercourses created by deed may arise from real or from personal covenants. All covenants which relate to land and are for its benefit run with it and may be enforced by the heir to whom the land descends, or by each successive assignee into whose hands it may be come by con- veyance or assignment.* Thus a covenant by a lessor, or by one of the owners of tAvo adjacent premises to supply the lessee or other owner with water, to raise a dam to a certain height, or to keep a dam and flume in good repair, passes to a subsequent assignee, who may sue thereon in his own name.^ (111.) 159, 178; Haithcock v. Swift Co. w. Newton Wagon Co., 91 111. 230 ; Island Manuf. Co., 72 N. C. 410. Norman v. Wells, 17 Wend, 136. 1 Spencer v. Spencer, 2 Ired. 96. ^ Jourdain u. Wilson, 4 B. & Aid. ■■iNorfleetv. Cromwell, 74 N.C. 1. 266; Holmes v. Buckley, Prec. in 8 Hammond v. Port Royal Rail- Chan. 39 ; 1 Eq. Cas. Ab. 27 ; Ster- way Co., 16 S. C. 507. ling Hydraulic Co. v. Williams, 66 4 Sharp o. Waterhouse, 7 E. & B. 111. 393 ; Noonan v. Orton, 27 Wis. 816; Howard Manuf. Co. y. Water 272, 300; 4 Wis. 335; 22 Wis. 84; Lot Co., 53 Ga. 689 ; Batavia Manuf. Thompson v. Shattuck, 2 Met. 615 ; Hurd V. Curtis, 7 Met. 94. CHAP. X.] CONTRACTS AND COVENANTS. 503 So, a covenant, in a grant of a watercourse, to clear it and keep it in repair, is a covenant running with the land of the grantor through which the watercourse passes.^ A covenant, in a deed of a mill lot and a certain amount of water-power, by which the grantees were to pay their ratable share of the expenses of keeping the dam and raceway in repairs " in pro- portion to the number of square inches of water by them owned or Used," and upon a failure to make such payments, the grantor should have the right to enter upon said lot to shut off the water until such payment should be made, runs with the land and binds all persons claiming under the deed.^ The same is true of a covenant by which the prO' prietors upon opposite sides of a stream agree for themselves, their heirs, and assigns to rebuild a dam.^ Upon the other hand, in a lease of land, with liberty to make a watercourse and erect a mill, a covenant by the lessee,' for himself, his executors, and assigns, not to hire persons settled in other parishes to work in the mill without a parish certificate, does }iot run with the land or bind the assignee of the lessee.* A real covenant cannot pass independent of the land. It is not sufficient that it concerns the land, but in order to make it run therewith, there must be a privity of estate between the contracting parties.^ Where the owners of a mill-site and water privilege conveyed a portion thereof, and a few days afterwards entered into a contract with the grantees to erect and keep in repair at their joint expense a dam and flume for conducting water to their respective mills, it was held that, as the grantors had no estate in the land when the agreement was made, the contract was not a covenant which ' Holmes v. Buckley, Prec. in Chan. St. 93 ; Jamison v. McCredy, 5 Watts 39; 1 Eq. Cas. Ab. 27 ; Morse v. Aid- & S. 129. rich, 19 Pick. 449; Bronson u. Cof- * Congleton v. Pattison, 10 East, fin, 108 Mass. 175, 184; Van Rens- 130. selaer v. Read, 26 N. Y. 558, 574 ; ^ Spencer's Case, 3 Co. 16 ; 1 Woodruff V. Trenton Water Power Smith's Lead. Cas. (7th Am. Ed.) 137 ; Co., 10 N. J. Eq. 489 ; Carr v. Lowry, Webb v. Russell, 3 T. R. 393 ; Hurd v. 27 Penn. St. 257. Curtis, 19 Pick. 459; Plymouth v. - Wooliscroft u. Norton, 15 Wis. Carver, 16 Pick. 183 ; Wheelock , . 198. Thayer, 16 Pick. 68 ; Lynn v. Mount ^Lindeman u. Lindsey, 69 Penn. Savage Iron Co., 31 Md. 603. 504 THE LAW OF WATERS. [PAET 11. ran with the mill-site.^ So, where the defendant was bound by his joint and several bond to the owners of certain mills, dam and water power, and to the grantees of either or all the obligees in the bond, to complete the dam and keep it in repair for twenty years, it was held that the defendant's cov enant was personal, he being a stranger to the title, and that, as the plaintiff, who. was grantee of some of the owners, and brought suit for non-performance of the defendant's covenant, was not originally a party to the bond, there was neither privity of contract nor of estate, and that the action could not be maintained.^ A reservation of the right to use water in a particular manner, for the accommodation of land which remains vested in the grantor, is an assignable interest, although the right is reserved to him without words of inheritance, and without naming his assigns.^ Covenants are as capable of running with incorporeal hereditaments as with those which are corporeal.* An unsealed writing, signed by a former owner of the land, which purports to convey the right ■of flowing the same and to release all claim for damages therefor, does not bind the land, or estop subsequent grantees of the land to recover damages for the flowing thereof in future.^ So, a verbal license to enter and connect with a .public drain does not run with the land.^ ^ 303. "When land is conveyed by deed, with covenants •of warranty, the existence of outstanding easements which prevent the grantee having a clear title to the land conveyed ■is a breach of these covenants. Where the defendant con- veyed to the plaintiff, with covenants of warranty and seisin, a tract of land having a spring thereon, and had previously granted to another the right to the water to the spring, and of drawing it away by an aqueduct to his premises, there 1 Wheeler v. Schad, 7 Nev. 204 ; Vern. 421 ; 1 Bro. P. C. 30 ; Merri- Turget V. Lloyd, 2 Vent. 277 ; Mitchell man v. Eussell, 2 Jones Eq. 470. B. Warner, 5 Conn. 497. 4 Baldy o. Wells, 3 Wils. .26; 2 Lyon V. Parker, 45 Maine, 474. Sterling Hydraulic Co. ^. Williams, 3 Kennedy v. Scovil, 12 Conn. .317, 06 HI. 393. . 326 ; 14 Conn. G2 ; Morse v. Aldrich, ^ Cobb v. Fisher, 121 Mass. 169. 19 Pick. 449 ; London v. Richmond, 2 » Estes v. China, 50 Maine, 407. CHAP. X.] CONTRACTS AND COVENANTS. 605 was held to be a breach of the covenants in the plaintiff's deed.i If a man buys land which is covered with water, the water is not necessarily an incumbrance in the legal sense of the word, and it is not a breach of a general covenant against incumbrances that, prior to the conveyance, the grantor had lawfully erected a dam and thereby caused water to flow upon the granted premises ; ^ or that a third person has, by means of a dam erected on land not belonging to the grantor, openly and notoriously flowed a portion of the land for a sufficient period to create a prescriptive right.^ The exis- tence of a right in the mill-owner to cleanse the natural chan- nel of the stream, and to remove obstructions to the free flow of the water from the mill, is not an incumbrance within the meaning of a covenant in a deed describing the grant as land " through which the water to a mill passes." * If a mill and water privilege are excepted in a grant of land bounding upon a stream, the exception includes the right to flow the land so far as may be necessary or has been customary, and the exis- tence of this easement is not a breach of a covenant against incumbrances.^ If mill property is granted with the privilege of raising the waters of a creek to a specified height to furnish power for the mill, and the raising of the water to that height will render the grantee liable in damages for flowage, the measure of damages for breach of the covenant of seisin in the deed is the difference between the value, at the time of the purchase, of the privilege of maintaining the water at the height specified, and the value of the right to maintain the water to the height at which the grantee can rightfully keep it.'' Upon the conveyance of a piece of land by metes and bounds wliich was described as " containing two acres, more or less, and embraces all the mill privilege on the Rochester side of said falls," it was held that the word " embraces " was not a term of grant, and that there was not a covenant that a mill 1 Clark V. Conroe, 38 Vt. 469 ; < Prescott v. Williams, 5 Met. 429. Lamb v. Danforth, 59 Maine, 322. ' ^ Pettee v. Hawes, 13 Pick. 323 ; 2 Kidder v. George, 18 N. H. 511. Davis v. Wilson, 6 Cush. 206. 3 Kurtz V. McCune, 22 Wis. 628 ; ^ Hall v. Gale, 20 Wis. 292. Alexander v. Kerr, 2 Eawle, 83; linapp V. Wliite, 23 Conn. 529. 506 THE LAW OF WATERS. [PAET II. privilege existed within the boundaries of the land.^ A State grant of a mill-site with no mill or dam in existence confers no right, unless expressly granted, to flow adjoining State lands as against subsequent purchasers, although such pur- chasers acquire title after the erection of the dam, under patents referring to a map which represents their lands as flowed to the extent claimed.^ § 304. Grants relating to water may include a certain quantity of the water itself, having reference to its bulk or weight, or to the quantity which will pass through an aper- ture of known dimensions in a certain time,^ or it may be of such water-power as is necessary to propel certain machinery. In the latter case, no property is acquired by virtue of the grant in the corpus of the water; others are not deprived of the right to use it in such manner as does not impair the power ; * nor is it necessary that it should be annexed to a mill or limited in location.'' Rights of water thus conveyed are distinct and substantive subjects of grant, and, although in their nature appertaining to land, they may exist without any restriction as to their use in connection with the land granted, or any other designated parcel, and stand precisely as if granted by deeds containing no conveyance of land.^ If the right is granted in a single deed to build a dam on the grantor's land, to enter for repairs, and to flow the grantor's land to a specified point, the privilege of flowing may be exercised independently by a dam erected on land other than the grantor's.'' If land is granted with the right, should it become necessary, to erect a dam on the land of the grantor, in order that the grantee may have " the best possible use of the water of a stream for running machinery," the dam need not be maintained at the place where it is first erected, but 1 Pray r. Great Falls Manuf . Co., 681 ; Society v. Holsman, 1 Halst. Ch. 38 N. H. 442. 126. 2 Colvin V. Burnet, 2 Hill, 620. ^ Hurd v. Curtis, 7 Met. 94, 114. 3 Canal Co. „•. Hill, 15 Wall. 94 ; ■ 6 De Witt v. Harvey, 4 Gray, 486 ; Bardwell v. Ames, 22 Pick. 333. Pratt v. Lamson, 2 Allen, 275 ; Schuyl- * Mayor v. Commissioners, 7 Penn. kill Navigation Co. i^. Moore, 2 Whart. St. 348 ; Schuylkill Navigation Co. v. ill. Moore, 2 Wharton, 477 ; 'W'rmont ' Kilgore i-. Hascall, 21 Mich. 502. Central Kailroad Co. i. Hills, 23 Vt. CHAP. X.j CONTEACTS AND COVENANTS. 507 tlie grantee is at liberty to erect and maintain the dam upon his own land.^ A conveyance of all the water of a river between certain points " for the purposes and use of machinery or ditches, or for any other uses," does not convey the land of a mill-site on the stream .^ § 304 a. " A grant of a watercourse in law," says Jessel, M. R.,^ " especially when coupled with other words, may mean any one of three things. It may mean the easement or the right to the running of water, it may mean the channel-pipe or drain which contains the water, and it may mean the land over which the water flows. What it does mean must be shown by the context, and if there is no con- text, I apprehend that it would not mean anything but the easement, a right to the flow of the water." A grant of a "pool," or "gulf," or of a "pond" passes the land which is covered with water.* So a grant of a "well," or "spring," or " wharf " is effectual to pass the soil as well as the water.^ Upon the sale of a division of a canal belonging to the State of Indiana, " including its banks, margins, tow- paths, side-cuts, feeders, basins, riglit of way, dams, water- power, structures, and all the appurtenances thereunto be- longing," certain adjoining parcels of land belonging to the grantor, which were necessary to the use of the canal and water-power, and were used with it at the time, but were not clearly described by the above terms, was held to pass by the conveyance.^ A lease of a riparian lot " with all the improvements thereon made " will cover an addition by filling and natural accretion, which the lessor might, by statute, have lawfully made at the date of the lease.'' ^ Barber v. 'Nye, 65 N. Y. 211. " wharf," carries the right of wharf- ^ Eobinson v. Imperial Silver Min- age. Wisvvall v. Hall, 3 Paige, 313 ; ing Co., 5 Nev. 44. Smith v. New York, 68 N. Y. 552. * Taylor v. St. Helens, 6 Ch. D. " Wharf " will include adjacent flats. 264, 271. See Jackson v. Halstead, 5 Ashby v. Eastern Railroad Co., 6 Met. Cowen, 216 ; Egremont v. "Williams, 368. See Buszard v. Capel, 8 B. & C. U Q. B. 707. 141 ; Owen v. field, 102 Mass. 90 ; *Co. Lit. 5; Goodrich u. Eastern Mixer ■;. Reed, 25 Vt. 254; Wood- Kailroad, 37 N. H. 149, 164. cock v. Estey, 43 Vt. 515. '^ Johnson ti. Rayner, 6 Gray, 107 ; » Sheets c. Selden, 2 Wall. 177. Jamaica Pond Aqueduct v. Chandler, ' Williams v. Baker, 41 Md. 523. i* Allen, 159. A sale of a " pier," or 508 THE LAW OF WATBKS. [PAET II, § 305. If a " mill " be granted, reserved, or devised,^ either with or without the word " appurtenances," it includes not.- only the mill itself, but the land under it and so much of the land adjacent to it as is necessary to its use or commonly used in connection with it;^ also, the fixtures used in operating the mill, including its machinery, with the bars and chains, in use or in their appropriate position at the time of the conveyance,^ and the water privileges appurte- nant to the mill as corporeal hereditaments.* But this right to continue the flooding of the grantor's lands to the same extent as when the grant was made, does not apply to grants of land from the government.^ A grant of land, on which a mill stands, passes a raceway which is necessary for the convenient working of the mill,^ but not the right to dig a new trough on the grantor's adjoining dry land for the purpose of conducting water to the mill, although the deed purports to convey "the right of digging, damming, and flowing for the accommodation of said mill." '^ So the con- ^ Bacon o. Bowdoin, 22 Pick. 401 ; Webster v. Potter, 105 Mass. 414; Blaine v. Chambers, 1 Serg. & R. 169. See Harlan v. Moore, 9 Watts, 360. 2 Furbush v. Lombard, 13 Met. 109 ; Farrar v. Cooper, 34 Maine, 394 ; Esty V. Baker, 48 Maine, 495 ; Crosby ,;. Bradbury, 20 Maine, 61 ; Whitney v. Olney, 3 Mason, 280; Auburn Con- gregational Church V. Walker, 124 Mass. 71 ; Leonard v. White, 7 Mass. 6 ; Van Horn u. Richardson, 24 Wis. 245 ; Lanoue v. McKinnon, 19 Kansas, 408. 1'he same rule applies to excep- tions in a grant. Moulton v. Trafton, 64 Maine, 222. 2 Parrar u. Stackpole, 6 Greenl. 154; Lampman v. Milks, 21 N. Y. 510; Ottumwa Woolen Mill Co. u. Hawley, 44 Iowa, 57. * Blake v. Clark, 6 Greenl. 436 ; Maddox i:. Goddard, 15 Maine, 218; Baker v. Bessey, 73 Maine, 472, 478 ; Seavey v. Jones, 43 N. H. 441 ; Miller V. Miller, 15 Pick. 57; Pettee c. Hawes, 13 Pick. 323; Prcscott v. White, 21 Pick. 341; Crittenden v. Field, 8 Gray, 621 ; Hapgood v. Brown, 102 Mass. 453 ; Richardson v. Bige- low, 15 Gray, 146 ; Frink v. Branch, 16 Conn. 260, 273; Smith v. Moodus Water Power Co., 35 Conn. 392; Brugger v. Butler, 6 Oregon, 459; Bank%. Miller, 7 Sawyer, 163, 170; Gibson v. Brockway, 8 N. H. 465; Wickersham v. Bills, 8 Ind. 387; Hadden v. Shoutz, 15 111. 581; Leg- gett u. Kerton, 2 Rich. (S. C.) 156; Page r. Esty, 54 Maine, 319 ; Wall v. Cloud, 3 Humph. 181 ; Keaderliouser V. State, 28 Ind. 257; Simmons v. Cloonan, 81 N. Y. 557 ; Hill ;.. Nalional Bank, 97 U. S. 450. See Swasey v. Brooks, 30 Vt. 692; 34 Vt. 451; Spaulding v. Abbott, 55 N. H. 423. 5 Wilcoxon V. McGehee, 12 111. 381. ^ New Ipswich Factory v. Bachel- der, 3 N, H. 190 ; Babcock v. Utter, 1 Abb. Dec. 27 ; 1 Keyes, 115,397 ; Han- num V. Westchester, 70 Penn. St. 367 ; Jackson ;;. Louw, 9 Johns. 298 ; Eschelman v. Snyder, 82 Ind. 498. ■? Miller v. Bristol, 12 Pick. 550. CHAP. X.] CONTRACTS AND COVENANTS. 509 veyance of "ferry ways," which are permanent structures, inchides the land under them and used with them ; ^ and the grant of a "water ditch" will include another water ditch by which it is fed and without which it would be useless.^ The term "mill-site " is sufficient to pass the mill, the water- power immediately connected therewith, and the right to use it by the erection of a dam ; ^ but the grant of the " liberty " or " privilege " of using the waters of a stream,* or the conveyance of a right of way over land for a mill-race,^ is the grant of an easement only, and not of a fee. , The grant of a "dam" includes an easement in the mill-pond.^ While a conveyance of land transfers whatever is properly and lawfully appurtenant to the subject of the grant, it does not convej'' an easement, such as the flowage of a stranger's land, which has no valid existence as such, although it may appear, as matter of fact, to be attached to the land ; and what the deed does not purport to convey, the ordinary covenants of warranty do not warrant.'' Where certain land was conveyed by metes and bounds, without mention of a mill, dam, or water privilege of any kind, and the grantee had previously constructed a mill and dam upon the land, which flowed other land of the grantor, it was held that the 1 Gerrish v. Gary, 120 Mass. 132. who injures it liable under a statute ^ Donnell u. Humphreys, 1 Mon. ^frliich provides a penalty against those 518. who injure dams, unless such injury ' Stackpole v. Curtis, 32 , Maine, draws off the water of a mill-pond. 383; Curtis v. Smith, 35 Conn. 158; People u. Gage, 23 Mich. 93. See Wood V. Sawin, 4 Gray, 322 ; Le Roy Burnham o. Kempton, 44 N. H. 78 ; V. Bradley, 4 Paige, 77 ; Tabor u. Colwell u. May's Landing Co., 4 C. Bradley, 18' N. Y. 113. But not a E. Green, 245. reservoir dam above, belonging to the * Hadley v. Iladley Manuf . Co., 4 grantor, but not within the boundaries Gray, 140 ; Jamaica Pond Aqueduct named in the deed. Brace v. Yale, 4 Corporation v. Chandler, 9 Allen, 159. Allen, 393. See, however, Elliott v. ^ Miller v. Vaughn, 8 Oregon, 333. Shepherd, 25 Maine, 371. The term " Maddox u. Goddard, 15 Maine, "mill-dam" does not include a dam 218; Sabine «. Johnson, 35 Wis. 185; built at the outlet of a lake to raise Hutchinson v. Chicago Railway Co., the waters for purposes of navigation, 37 Wis. 582, 604. although used to propel mills. Ari- ' Green u. Collins, 86 N. Y. 246 ; mond V. Green Bay Canal Co., 35 Wis. Adams o. Conover, 87 N. Y. 422 ; 41. A river bank, or a structure Brace v. Yale, 4 Allen, 393 ; Illinois built to support a break in such bank, Central Railroad Co. u. Wren, 43 HI. is not a dam so as to render a person 77. 510 THE LAW OF WATERS. [PART II. grantee did not acquire tlie right of flooding the grantor's land, it not appearing that the grantor knew of the existence of the mill or dam when the deed was executed.^ § 306. The grant of water easements carries with them by implication, as secondary or subsidiary easements, everj-- thing that is beneficially necessary or incident to the grant, whether mentioned or not as "privileges," "appurtenances," or the like.^ A distinction has been made between an easement reserved in land granted for the benefit of the land retained, and an easement granted in other land of the grantor for the benefit of that conveyed, it being intimated that there might be implied a grant of an easement under circumstances where there would be held to be none of a reserved easement.^ But there must be a reasonable neces- sity for such an implication,* mere convenience not being enough,^ and the use must be seasonable.® What will pass as impliedly appurtenant to the easement granted is a question for the jury.''' Of two constructions that will be selected which gives to such appurtenant privileges the more convenient and reasonable mode of enjoj'ment.^ The grantor will have a right to elect, where there are several modes of use or enjoyment, in default of which the grantee may choose.^ The use of such an appurtenant right will 1 Tabor v. Bradley, 18 N. Y. 109. Swartz v. Swartz, i Penn. St. 353. 2 Pomfretji.Eicroft, 1 Wms. Saund. That a grant of land includes rents 321, 323, and note 6 ; Hodgson v. Field, for an easement to flow the granted 7 East, 013, 022 ; Hunchliffe v. Earl of premises, see Pollock v. Cronise, 12 Kinnoul, 5 Bing. N. C. 1 ; Osborn v. How. Pr. 303. Wise, 7 C. & P. 701 ; Dodd v. Burchell, 3 Johnson v. Jordan, 2 Met. 234. 1 H. & C. 118 ; United States v. Apple- " Brigham o. Smith, 4 Gray, 297 ; ton, 1 Sumner, 491, 501 ; Grant v. Leonard v. Leonard, 2 Allen, 543 ; Chase, 17 Mass. 443, 448 ; Hazard v. Pettingill v. Porter, 8 Allen, 1 ; Parker Robinson, 3 Mason, 272, 270; Whit- v. Bennett, 11 Allen, 388; Oliver v. ney v. Olnoy, 3 Mason, 280 ; Kent v. Pitman, 98 Mass. 46. Waite, 10 Pick. 138 ; OliTer r. Wckin- ^ Nichols v. Luce, 24 Pick. 102; son, 100 Mass. 114, 117; Hollenbeck White u. Leeson, 5 H. & ^\ 53; post, McDonald, 112 Mass. 247, 250 Rackley v. Spraguo, 17 Maine, 281 Maddox v. Goddard, 15 Maine, 218 Wyman f.Farrar, 35 Maine, 04; Ham- mond V, Woodman, 41 Maine, 177 Pickering v. Stapler, 5 Serg. & R. 107 § 362. « Tomlin v. Puller, 1 Ventr. 48. ' Hall V. Benner, 1 Penn. 402. 8 Morris v. Edginton, 3 Taunt. 24; Dand v. Kingscote, M. & AV. 174. ^ Holmes v. Seely, 19 Wend. 607. CHAP. X.J CONTEACTS AND COVENANTS. 511 vary as the necessity varies,^ and when the necessity for such an implied easement ceases, the right to its enjoyment will also end.2 § 307. The grant of a "mill privilege" or "privileo'e of a mill" will include the land on which the mill and its append- ages stand, and the land and water actually and commonly used therewith and necessary to its enjoyment,^ including, as well the water in the raceway,* as a right to receive or dis- charge the water from the mill by an existing raceway through other land of the grantor.^ Mere distance between the principal thing and the incident to be enjoyed is imma- terial ; and the continued existence of a dam has been deemed essential to the beneficial enjoyment of a mill, although at a distance of three-quarters of a mile.^ A conveyance of a water right includes the necessary use of land for the founda- tion of a " dam " ;'' if of a " dam " in a grant of land with a stream through it, together with a dam, a flume, and a con- ductor upon it, it will be construed to cover, or as being equivalent to " flume " ; ^ and if of " mills and dam," it will in- clude the flowage of the grantor's land as then flowed,^ or as it must inevitably be flowed by their fair and proper use,^" as by a tightening or necessary raising of the dam to secure a sufficient head.^^ A grant " of all the land which the dam flows " conveys the land flowed when the dam is in use, 'and not when the water runs to waste as if no dam existed.^ Where a " saw-mill," without further description, 1 Seeley v. Bishop, 19 Conn. 128. Mason, 20 Ohio, 401 ; Elliott v. Sallee, 2 Holmes v. Goring, 2 Bing. 76; 14 Ohio St. 10; Ely u. Stewart, 11 Viall V. Carpenter, 14 Gray, 126 ; Md. 408. Collins V. Prentice, 15 Conn. 39, 423 ; « Pcrrin v. Garfield, 37 Vt. 304. Pierce v. Selleck, 18 Conn. 321. ' Conwell v. Brookhart, 4 B. Mon. 8 Moore v. Fletcher, 16 Maine, 63. 580, 584. * Wetmore v. White, 2 Caines' Cas. * Kennedy v. Scovil, 12 Conn. 317. 87; Strickler v. Todd, 10 Serg. & R. " Preble v. Reed, 17 Maine, 169; 63; Morgan v. Mason, 20 Ohio, 401, Hills v. Dey, 14 Wend. 204; Kestler a case of a judgment sale. That an in- v. Verble, 7 Jones (N. C.) 185. jury to a raceway is an injury to the ^° Butler v. Huse, 63 Maine, 447 ; mill, see Butz v. Ihrie, 1 Rawle, 218. Albee v. Hayden, 25 Minn. 267. ^ New Ipswich Woolen Factory v. ^^ Brugger v. Butler, 6 Oregon, 459. Batchelder, 3 N. H. 190; Morgan v. i^ Morse v. Marshall, 11 Allen, 229. 612 THE LAW 01' ■WATEES. [PAUT II. was assigned to one of several heirs as his portion of an estate, it was decided that he was entitled to the use of the head of water, and of any further easement theretofore used with it or necessary to its enjoyment,^ and the same was held in a State where a strict division of an estate, under the statute of descents, gave the land upon which a mill stood to one heir, while the dam used in connection with it covered a portion of a part allotted to another.^ § 308. If a "saw-mill" is conveyed "with a convenient privilege to pile logs, boards, or other lumber," an easement results in the land used for the purpose of piling the product of the mill,^ and a right to the use of a mill-pond carries the privilege to float logs in it for mill use.* The grant of a privilege in a ditch or watercourse has been held, under the circumstances, to include a right to cut a trench through the land of another, if in that way only it could be beneficially used.^ Where a lease of a mill was granted to one who was described as a " bleacher " and the premises were described as " late in the occupation of P.," who was a bleacher, and had been wont to pollute the stream by discharging the refuse of his mill therein, it was held that the lessee could discharge refuse from his works into the stream in the same manner that P. had formerly done, as against a subsequent vendee of the lessor of this and another mill, in the latter of which such vendee carried on the business of paper maker .^ § 300. A grant of a right to use water as "accustomed to do " will include all of that so used, whether such customary use had ripened into a strict right or not,'' but a custom of the ^wner of a lot to vary the course of a stream upon it to meet the emergencies of his business of brick-making, but without at any time preventing its traversing the whole lot, 1 Blake v. Clark, 6 Greenl. 430. * Beals v. Stewart, 6 Laus. 408. 2 Kilgour V. Ashcom, 5 H. & John. ""' Dyer v. Depui, 5 Wliarton, 584. 82. , 6 Hall V. Lund, 1 H. & C. 676. ^Thompson v. Androseoggin ' Avon Manuf. Co. t'. Andrews, 30 Bridge, 5 Greenl. G2 ; Thompson v. Conn. 476. Banks, 43 N. H. C40. CHAP. X.] CONTRACTS AND COVENANTS. 513 creates no easement in one portion against another, so as to give one of his heirs, to whom in a division of the lot the upper portion came, a right to wliolly divert it from flow- ing througli the lower portion of the lot.^ A conveyance of one of two ancient mills, eo nomine^ which comprise the en- tire mill privileges of a stream, carries with it such a propor- tion of the whole right in the stream as the water used to drive the mill conveyed bears to that used by the other mill; while a modern grant of such a mill, situated on a stream where there were several mills of different kinds, all drawing from the same level, and where there was only sufficient water to supply the power necessary to drive each mill, passes nothing but the mill itself, and the water actually necessary to drive it.^ § 310. A grantor may withhold easement privileges in water, either by way of reservation or exception,^ which be- come binding upon the grantee upon his acceptance of the ileed,* cover* what is excluded from the grant,^ and, in the case of an exception, enure to the benefit of his heirs and assigns without words of inheritance,^ unless it is plain that an exception in favor of the grantor only is intended." While an exception is defined to be some existing part taken out of the premises conveyed, and a reservation as some new thing carved out of the granted premises by the con- veyance,^ the words are often used indiscriminately, and ' Macomber v. Godfrey, 108 Mass. ^ Winthrop v. Fairbanks, 41 Maine,^ 219. ' 307; Emerson „. Mooney, 50 N. H.. 2 Crittenden ...Field, 8 Gray, 621, 315; Keeler o. Wood, .30 Vt. 242;, C27. Wheeler o. Brown, 46 Penn. St. Wl. 5 Wade w. Howard, 6 Pick. 492 ; See Meni])his & St. Louis Packet Co. Knox V. Silloway, 10 Maine, 201 ; , . Grey, 9 Bush, 137. Cocheco Manuf. Co. w. Whittier, 10 ' Jamaica Pond Aqueduct Co. v. N. H. 305; Bowen «. Conner, 6 Cush. Chandler, 9 Allen, 159, 170, citing 132, 130 ; Barnes t'. Lloyd, 112 Mass. Shep. Touchstone, 100; Curtis l. 224, 232; Peck v. Conway, 119 Mass. Gardner, 1.3 Met. 461. See Buffum v. 546, 549. Hutchinson, 1 Allen, 58. * Newell V. Hill, 2 Met. 180 ; Vick- » Case u. Haight, 3 Wend. 632 ; erie v. Buswell, 13 Maine, 289 ; Emer- Winthrop v. Fairbanks, 41 Maine, son V. Mooney, 50 N. H. 315. 307 ; Garland u. Hodsdon, 46 Maine,, '^Greenleaf v. Birth, 6 Pet. 302, 511. 310; Mower v. Hutchinson, 9 Vt. 242. 514 THE LAW OF WATERS. [PAET 11. effect will be given to the intention of the parties irrespec- tive of the words employed.^ Thus, where a conveyance to A. was of a portion of certain land, and a right to maintain a dam on the rest, a subsequent grant to B. of the whole parcel, "reserving" all the rights of A., his heirs and assigns therein, was held to create an exception, and not a reser- vation.^ If the water in a well is ample for the use of both parties, the words "reserving to myself the use of the well in front of the granted premises " create a reservation merely.^ In the case of a reservation, as of a mill-site, the whole premises vest in the grantee until the grantor or. his assigns exercise the right reserved,* and a power of revoca- tion of an easement, reserved in a demise, is valid and may be exercised partially as well as wholly.^ § 311. An exception or reservation of a water right will he construed most strictly against the grantor, and most /beneficially for the grantee.^ Thus, where a grantor in a -deed of land, with a right to take water for machinery from :a dam, reserved " sufficient water at all times to work " the tannery wheels, " as now used," it was determined that the 'Water so reserved was the quantity actually used by the tan- ineiy at the time the deed was given, and not its capacity.^ ■If an exception does not clearly designate the particular por- .tion meant of" the property convej'ed, it fails for uncertainty.^ Jn a grant of land " excepting one acre and one-half acre, ■which is reserved for the use and flowing of water for the 1 Cocheco Manuf. Co. y. Whittier, 5 Ex parte Miller, 2 Hill, 418. 10 N. H. 305 ; Cutter v. Tufts, 3 I-ick. 6 Case o. Haight, 3 Wend. 632 ; 272 ; Bowen v. Conner, 6 Cush. 132, Howard ,.. Wadsworth, 3 Greenl. 471. 135 ; Hill i,. Cutting, 107 Mass. 597 ; ' Wyman v. Farrar, 35 Maine, 64. Bowman v. Wathen, 3 McLean, 366. 8 Cq. Ljtt, 142 n; Hull v. Leonard, Hurd 0. Curtis, 7 Met. 94, held the 1 Pick. 31 ; WusthofE v. Dracourt, 3 words " except the reserve " to be Watts, 240. A deed from A. to B. equivalent to " except and reserve." with the words " C.'s mill-seat ex- ^ Stockwell v. Couillard, 129 Mass. cepted " conveys no title to C. be- .231. yond an easement therein for a mill- 8 Barnes v. Burt, 38 Conn. 541. site, a dam, and a flowage right. * Dygertu. Matthews, 11 Wend. 35; Everett o. Dockery, 7 Jones (N. C.) Newmarket Manuf. Co. v. Pendergast, 390. See Memphis & St. Louis Packet 24 N. H. 54. See Thompson v. Gre- Co. ^. Grey, 9 Bush, 137. gory, 4 John. 81. CHAP. X.j CONTRACTS AND COVENANTS. 515 mill," the exception was decided to be void for uncertainty.^ In a reservation of streams, a right to build dams, and of such land as might be flowed thereby in the granted premises, the reservation is inoperative until the grantor exercises the right by the erection of dams, and, if viewed as an exception strictly, it is void for uncertainty .^ § 312. It is clear that an exception or reservation of something not embraced in the premises conveyed would be simply void, there being nothing for it to operate upon.^ Where a riparian owner convej^ed to one a parcel of land with certain water rights, " except the reserve of the right and privi- lege of conve3'ing water through the premises hereby granted and conveyed, in the channel now open, in which water used to run to a saw-mill, for the purpose of carrying such water- works as the grantor may wish to erect on his premises adjoining the premises hereby conveyed, with the right of widening said channel, not exceeding sixteen feet, and of deepening the same,'' and subsequently conveyed to another a parcel of land with certain water rights and " all the rights, privileges, benefits, and interest in and to the exceptions and reservations which said grantor excepted and reserved " by the prior deed, it was held that such grant of the grantor's excepted rights in the former deed did not enlarge the water rights released to the grantee in the latter convey- ance.* Any restrictions placed by a grantor upon a grantee respecting the use of water, or rights in and to water, must be clear and unambiguous, and not repugnant to the grant.^ An exception or reservation of a mill in a grant of land includes not only the land beneath it, but whatever is neces- sary to its beneficial use as an appurtenant water privilege,® ' Darling v. Crovvell, 6 N. H. 421. v. Snow, 4 Pick. 54 ; Jewett v. Ricker, " Thompson v. Gregory, 4 Johns. 81. 68 Maine, 377 ; Denton o. Leddell, 23 " Hurd V. Curtis, 7 Met. 94, 110; N. J. Eq. 64. Cocheco Manuf . Co. c. Whittier, 10 « Allen v. Scott, 21 Pick. 25 ; Ham- N. H. 305. mond v. Woodman, 41 Maine, 177, * Hurd V. Curtis, 7 Met. 94. 203 ; Moulton v. Trafton, 64 Maine, = Lambert o. Bennet, 3 Smith, 34 ; 218. Cutter V. Tufts, 3 Pick. 272 ; Sprague 51S THE LAW OF WATEES. [PAET U. land sufScient for a mill-pond,^ and a right of flowing land so far as may be necessary,^ words in a grant that are effective to pass being equally effective to except.^ If the exception is for so long "as the said grantee occupies said privilege with mills," the existence of the mills marks the limit.* A reservation of " all watercourses suitable for the erection of mills " gives a right to all the mill-sites on the granted laud, whenever the grantor chooses to make a location,* for all pur- poses that he may choose,® including, however, natural, not artificial, mill-sites7 A reservation to a grantor, and to his heirs and assigns, of a certain water privilege for the benefit of his saw-mill, canuot be availed of by a grantee, of other land of his, but not of the saw-mill, for any purpose.^ § 313. When the dominant estate and servient estate be- come united in the person of the same owner, easements in and to the use of water resting upon the latter in favor of the former become extinguished.^ A natural watercourse, however, which is insej)arably annexed to the soil, and passes with it, not as an easement or appurtenance, but as parcel of it, is never extinguished or suspended by such unity of possession.^" If, however, the owner, after unity of posses- sion, does not interrupt existing easements in the use or enjoyment of water, a subsequent grant by him of either 1 Jackson v. Yermilyea, 6 Cowen, * Judd v. Wells, 12 Met. 504. G77. In Gregg v. Birdsall, 53 Barb. ^ Lady Brown's case cited in Sury 402; 35 How. Pr. 345, where there v. Pigot, Popham, 166, 170; Palmer, was a reseryation for sawing lumber 444, 446 ; Canham v. Pisk, 2 Cr. & J. iind of flowage for that purpose, the lat- 126; Thomas i;. Thomas, 2 Cr. M. & tor right was held co-extensive with R. 34 ; Ivimey v. Stocker, L. R. 1 Ch. the former. 396, 407 ; Eitger v. Parker, 8 Cush. 2Pettee v. Hawes, 13 Pick. 323; 145; Atwaterc.Bodfish, 11 Gray,151; Yickerie v. Buswell, 13 Maine, 289. Stevens !■. Dennett, 51 N. H. 324,330; 8 Blake v. Madigan, 65 Maine, 522. Kieffer ;•. Imhoif, 26 Penn. St. 438, 4 Moulton c. Traf ton, 65 Maine, 443 ; Pearce r. McGlenaghan, 5 Rich. 218. See Esty v. Currier, 98 Mass. (S. C.) 178; McAllister r. Devane, 70 500; Linthicum v. Ray, 9 Wall. 241. N. C. 57. 5 Russell 0. Scott, 9 Cowen, 279 ; " Woolrych, Waters, 234 ; Bui. N. Butz V. Ihrie, 1 Ravvle, 218. P. 74 ; Hazard v. Robinson, 3 Mason, 15 Erench v. Carhart, 1 Comst. 96. 272 ; Johnson i . Jordan, 2 Met. 289 ; ■' Armstrong i,. Masten, 11 Johns. Tucker v. Jcwett, 11 Conn. 311; ante, 189. § 204. CHAP. X.] CONTRACTS AND COVENANTS. 517 estate, or any portion of either, will carry therewith all the water privileges and burdens existing at the time of the con- veyance.^ Where the owner of the lower of two mills on a stream lowered his dam, which flowed back the water upon the upper mill, and thus freed the upper mill from obstruc- tion' for thirty-eight years, when he sold his mill to the upper owner, it was held that the lapse of time and unity of posses- sion had extinguished the right to again raise the dam t^^'o feet in height, and that the upper mill had a right to be kept free from obstruction.^ An upper and lower owner, although occupying the relation of grantor and grantee, must each use the water in a reasonable and proper manner, irrespective of the use prior to the conveyance. ^ § 314. Easements which are necessary to the enjoyment of an estate, such as gutters and drains, and are called continu- ous easements, do not, like discontinuous easements,* come to an end by mere unity of possession, but they will revive on severance,^ like ways of necessity,^ because they are subsisting easements, provided the necessity for them has not ceased,^ unless the owner during the unity has by some positive act shown his desire to no longer enjoy them.^ The unity of title and possession, such as will extinguish an easement in 1 Nicholas v. Chamberlain, Cro. Jac 121 ; Morris v. Edginton, 3 Taunt. 24 I'yer v. Carter, 1 H. & N. 910 ; Elliott Ann. 407 !•. Sallee, 14 Ohio St. 10; Grant t- Chase, 17 Mass. 443; Philbrick r Ewing, 97 Mass. 133; Seymour c Sage, 13 N. J. Eq. 430; Perry Parker, 1 Woodb. & M. 280 ; Manning N. Y. 505. Smith, 6 Conn. 289; Dunklee Wilton Railroad Co., 24 N. H. 489, Pond Aqueduct v. Chandler, 9 Allen, 159, 164; Durel v. Boisblanc, 1 La. 5 Sury V. Pigot, Popham, 166 ; Palmer, 444 ; Pheysey o. Vioary, 16 M. & W. 484 ; Hazard v. Robinson, 3 Mason, 272 ; Lampman v. Milks, 21 6 Clark V. Cogge, Cro. Jac. 170 ; Jorden v. Atwood, Owen, 121 ; Holmes See Cary v. Daniels, 8 Met. 466. v. Goring, 2 Bing. 83. See Proctor v. ^ Hazard ,j. Robinson, 3 Mason, Hodgson, 10 Exch. 824. 272. See Brace o. Yale, 4 Allen, 393. ' Viall v. Carpenter, 14 Gray, 126 ; See also Seeley .-. Bridges, 13 Neb. Collins c. Prentice, 15 Conn. 39, 423 ; 547. " Pierce v. Selleck, 18 Conn. 321 ; Seeley 5 Barrett v. Parsons, 10 Cush. 367; ,:. Bishop, 19 Conn. 128. Haskins v. Haskins, 9 Gray, 390. » Copie v. I. de B. 11 Hen. 7, 25; * Worthington v. Gimson, 2 El. & Robins v. Barnes, Hob. 131 ; Pyer v. El. 618; Pearson v. Spencer, 1 B. & Carter, 1 H. & N. 916, 921. See Dodd S. 571 ; 3 B. & S. 761. See Jamaica ■,-. Burohell, 1 H. & C. 113. 618 THE LAW OF WATEKS. [PART II. the beneficial use of water, must be of an estate in fee in both the dominant and the servient tenements in the same person. Thus the possession by the same person of one parcel of land in fee and another for the terra of five hundred years, the one of which had an easement for drip in the other ; ^ the vesting of two estates iu the same person as mortgagee without fore- closure,^ and the holding an estate in a dock in fee by a defec- tive title, and an easement in the same by a valid title,^ have all been held insufficient to extinguish the easement. If an owner on one side of a stream of half the water' privilege is also the owner as a tenant in common of an undivided part of the other half, it is not such a unity of possession as will extinguish in whole or in part the water easement of the tenants in common.* If A. enjoys adversely a water ease- ment in adjoining land, and before it ripens into a right conveys to the adjoining owner, who shortly reconveys to A., who again enjoys the easement as before for a period less than, but, with the former period, exceeding the statutory limit, he gains no right to the easement by user, by reason of the former unity of possession in himself.^ An easement in a watercourse may also be extinguished by operation of law, as by filling it up and laying out over it a highway .^ § 315. Tenants in common of watercourses or other water rights may, as of right at the common law, have partition of the whole property so held regardless of the difficulty, hardship, or inconvenience resulting from so doing.^ This partition need not necessarily be by metes and bounds, although the land covered by water, or used in connection therewith, may be so divided, but the extent of water or water privilege assigned may be marked by visible monu- ments, noting the rise and fall, by controlling the flowage 1 Thomas v. Thomas, 2 C, M. & » Hancockv.Wentworth,5Met.446; E. 34. See Karanagh v. Coal Mining Wright v. Ereeman, 5 H. & Jolin. 467. Co., 14 Ir. C. L. 82. t Hanson v. Willard, 12 Maine, 142 ; 2 Bitger v. Parlcer, 8 Gush. 145. Smith v. Smith, 10 Paige, 470 ; Mor- is Tyler v. Hammond, 11 Pick. 193. rill <>. Morrill, 5 N. H. 134. Doan v. ^Blissj;. Rice, 17 Pick. 23; Atlanta Metealf, 46 Iowa, 120, seems to in- Mills V. Mason, 120 Mass. 244, 251. timate that partition is confined to ^ Manning v. Smith, 8 Conn. 289. cases where '• practicable." CHAP. X.J CONTRACTS AND COVENANTS. 519 through gates, by designating the number of inches to which each partitioner is entitled, or by ascertaining in any way the bulk, value, or quantity of water to be used.i In a par- tition of land lying on each side of a watercourse between tenants in common, by assigning the land on either side to each respectively, the dividing line between the two tracts will be the thread of the stream.^ A partition of a dam and the water-power thereby formed will not be made exclusive of the mill and the mill-site to which they are appurtenant.^ An ancient partition into proportionate parts of a water priv- ilege, originally owned by one proprietor, but for a long series of years occupied by different persons in severalty, and transferred fronr time to time between themselves by deed, levy, or descent, will be presumed, as it has been used, ex- cepting as to what has been disposed of by common consent.* § 316. In a partition one part of the common premises may be assigned to a party charged witli an easement for the benefit of another party, to which another portion was assigned by metes and bounds,^ as of flowage as the water had been wont to flow back before partition.® In a partition of a water-power provision may be made for keeping the various portions of the dam, the water-gates, and the flume in repair, by making it a charge upon the land including them, or bj' a compensation to be paid by one party to another therefor.^ Water, however, conducted in ditches for mining purposes and owned by tenants in common, cannot, from the nature of the water service to be performed, be mechanically partitioned, a distribution of the proceeds after a sale being the only partition practicable to perma- nently end the disputes of such tenants in common.^ Equity 1 Hanson u. Willard, 12 Maine, ^ Smith v. Smith, 10 Paige, 470, 142; Smith v. Smith, 10 Paige, 470; 479. Morrill v. Morrill, 5 N. H. 134 ; Cooper « Hills v. Dey, 14 Wend. 204. V. Cedar Rapids Water Power Co., 42 ' Smith v. Smith, 10 Paige, 470 ; Iowa, 398. See Kane v. Parker, 4 "Wis. Cooper v. Cedar Rapids Water Power 123, 131. Co., 42 Iowa, 398. 2 King V. King, 7 Mass. 496. ^ McGillivray v. Evans, 27 Cal. 92 ; 3 Miller v. Miller, 13 Pick. 237. Lorenz v. Jacobs, 59 Cal. 262. In the * Munroe v. Gates, 48 Maine, 463, latter case a statement that the parties 620 THE LAW OP WATERS. [PAET 11. will intervene to prevent the removal of a clam and the building a new one higher up the stream by a grantee under a deed of partition of a water jjrivilege, the effect of which will be to deprive a co-grantee under the same indenture who was entitled to "six-tenths of the water appertaining to said divided premises," whicli was construed to mean six- tenths of the water-power, which had been conveyed, as provided in the deed, by a trench to said co-grantee's mill for forty years during which the grantees shared the ex- pense.^ Equity will not order a sale, un,der a statute, if the whole water-power, in connection with each mill property, would not be worth more than the same power equally divided by a proper partition, tlie one half to be used with each mill, in the hands of different proprietors.^ § 317. When the privilege is granted of taking water by a pipe of a specified size, it 'authorizes the taking of all the water which such a pipe would conduct, and it is not an abuse of the right for the grantee to permit the water to flow continuously from the mouth of the pipe, even though it runs to waste.^ When the quantity of water granted is regulated by the size of the pipe through which it is drawn, it is limited to so much water as will run through the pipe without increasmg its head by a dam, but if the right is granted to draw water from any and all sprmgs on the grantor's land, "with the right to conduct the same by aqueduct to said premises for all uses and purposes forever," the grantee is entitled to take all the water from the springs which is in good faith required for use on the granted premises, and to make such reasonable arrangements as are really necessar}^ to enable him to use all the Avater.* as tenants in common held and pos- ^ Matteson v. "Wilbur, 11 R. I. 545. sessed " a certain water ditch, run- ^ Smith v. Smith, 10 Paige, 470. ning from and taking water from" a ^ Bissell v. Grant, 35 Conn. 288. creek and " conducting the water of See Paschall v. Passmore, 15 Penn. St. said creek" to a certain point "for 295. mining and other useful purposes," * Stevenson v. Wiggin, 56 N. H. was held to suiEciently allege that the 308 ; Walker v. Stewart, 13 Law Eep. property can be partitioned only by a 396. sale and distribution. CHAP. X.J CONTRACTS AST) COVENANTS. 521 Where in a deed of land with " one hundred and fifty inclies of water for propelling machinery," to be furnished by the grantor on the premises conveyed in a flume or race and to be iaken by the grantee " at the side thereof," at an opening or openings between the bottom and top of the same, it was provided that no more water be taken at said opening or openings than would be discharged at a point as low as the surface of the river " at said premises by an aperture of ouo hundred and fifty square inches," the deed was held to convey only as much water as would naturally flow through an opening of one hundred afld fifty square inches at the side of the main race or flume as low as the surface of the river.i The use of an easement is confined to the purposes for which it was granted ; and a right reserved in a deed of one lot to draw water from a well thereon for the family occupying another lot confers the right to draw water for the ordinary purposes of a family, but not for an additional use, such as a bakery.^ § 318. Grants of the right to use water are to be so con- strued as to substantially secure the rights which appear to have been contemplated by the parties, and the literal read- ing of the conveyance will not be followed if a more liberal construction does not impair the rights of the other party .^ If the grant of a water-power leaves it doubtful whether the kind of mill mentioned indicates the quantity of water and measures the extent of the power intended to be conveyed, or limits the use to a particular kind of mill, the former construction will be favored, because it is most favorable to the grantee without being more onerous to the grantor.* ' Blanchard v. Doering, 21 Wis. away !■. Mitchell, 34 Mich. 104; Doan 477; 23 Wis. 200; Norris u. Shower- man, Walker Ch. 206; 2 Dougl (Mich.) 16. 2 Noyes v. Hemphill, 58 N. H. 530 27 Alb. L. Journ. 157;. French i Marstin, 24 N. H. 440. ' Atlanta Mills v. Mason, 120 Mass, Metualf, 46 Iowa, 120. If the owner of the whole length of a river grants " a certain part " of it, he conveys a, part of the whole length. BuUen i'. Runnels, 2 N. H. 255. * Ashley ^. Pease, 18 Pick. 275; Pratt V. Lamson, 2 Allen, 281 ; Johns- 244; Merrill ^. Calkins, 74 N. Y. 1; ton v. Ilydo, 33 N. J. Eq. 632; Covel Esty V. Baker, 50 Maine, 025 ; Salado v. Hart, 56 Maine, 518 ; Hines c. College I). Davis, 47 Texas, ICl ; Hath- Eobinson, 57 Maine, 324; Kaler v. 622 THE -LAW OF WATEES. [PART II. When it appears that the granted privilege is a given quan- tity of power, not limited to a specific purpose, it may be apportioned to any purpose whatever, and by any person to whom it may be assigned or transferred.^ If, under a grant of an unlimited right to flow, at the first settlement of the country, the grantee flows his land to a certain extent for a great length of time, this will be considered his construction of the grant, and will prevent him from raising his dam.^ ^ § 318a. When a water easement is granted in general or indefinite terms, rendering the construction doubtful, contem- poraneous acts of the parties, giving a practical construction to the grant, will be deemed to express their intention,^ as a right to erect a dam within certain limits is fixed by building it within those limits by mutual consent.* A grant of a right to build a dam and flow the water " as high as will answer, and not injure or obstruct the water-wheels " of an upper mill, is determined by what the parties did immediately after the grant, under a mutual agreement, defining the site and height of the dam.^ And when the parties have once exer- cised the right, the grantee cannot change the manner of its enjoyment at his pleasure.® Thus, after pipes have been laid and water through them used for many years under a grant defining neither size or quantity, larger pipes cannot be laid and more water taken,'' and pipes of the same size, Boaman, 49 Maine, 207; Garland v. 207; Allen v. Bates, 6 Pick. 460; Hodson, 46 Maine, 511; Miller v. Dryden r. Jepherson, 18 Pick. 385; Lapham, 46 Vt. 525 ; 44 Vt. 416 ; Stone v. Clark, 1 Met. 378 ; Bannon v. Dewey ii. Williams, 40 N. H. 222 ; Angler, 2 Allen, 128 ; Farrar v. Cooper, Leavitt v. Towle, 8 N. H, 96 ; Salado 34 Maine, 394 ; Davidson v. Fowler, 1 College V. Davis, 47 Texas, 131. Eoot, 358. 1 Ibid. ; Tourtellot ;;. Phelps, 4 ^ Boynton v. Eees, 8 Pick. 329. Gray, 374 ; Casler v. Shipman, 35 N. ^ Dryden v. Jepherson, 18 Pick. 385. Y. 533; Comstock v. Johnson, 46 N. « Jennison f. Walker, 11 Gray, 423; Y. 615; Drumraond «. Hinckley, 30 Evangelical Home «. Buffalo Hy- Maine, 433 ; Deshon v. Porter, 38 draulic Co., 64 N. Y. 561 ; Jones v. Maine, 289 ; Dow v. Edes, 58 N. H. 193 ; Percival, 5 Pick. 485 ; Choate v, Bum- Hathaway v. Mitchell, 34 Mich. 164. ham, 7 Pick. 274 ; Wynkoop v. Burger, 2 2 Swift's Sys. 86 ; Barret „. Hos- 12 John. 222 ; Johnson ,,. Jaqui, 27 mer, 1 Root, 271. N. J. Eq. 552. 3 Makepeace v. Bancroft, 12 Mass. ' Onthank v. Lake Shore Eailroad 460 ; Davis u. Rainsford, 17 Mass. Co., 71 N. Y. 194. CHAP. X.] CONTRACTS AND COVENANTS. 523 if relaid, must be sunk in the same place. ^ If a boundary is variable, as a pond which is raised more or less at various times by a dam, parol evidence is admissible to show what line was actually agreed on at the time of the conveyance.^ A boundary line in a deed to run so as to include the " whole of a mill-pond which may be raised by a dam," determines the land boundary and not the height to which the pond may be raised.^ § 319. A conveyance of water rights shoiild be construed in the light of preliminary agreements and circumstances, rendering the purpose of the parties plain.* A general grant of water easements will be construed in connection with any . express stipulations that may be contained in the demise in view of the character of the right granted.^ In Prentiss v. Wood,^ where a grant of a water privilege by A. and B. to C. provided that " the said C. is to have the right to build a dam across said river as high as he shall need, by his being respon- sible for all damages that may be done by flowing in conse- quence of said dam, excepting, as is hereinafter provided, to wit, the said C. shall have the right to flow the land of said A. and B. without paying damage therefor, so far and so high as he can do so without setting the water back upon the wheel of their grist-mill, so as in any manner to obstruct said Avheel or injure the privilege of said A. and B.," it was held that the natural construction was that C. had the right to build the dam as high as he should need, paying all damages, with the proviso that he was not to pay A. and B. any dam- ages unless it flowed the water back upon their wheel, the clause as to the back-flow upon their wheel being a limi- tation of the right to flow^without paying damages, not a 1 Woodcock V. Estey, 43 Vt. 515 ; ^ Watts v. Kinney, 6 Hill, 82 ; Jennison v. Walker, 11 Gray, 423. Phelps v. Tourtellot, 9 Gray, 102 ; 2 Waterman v. Johnson, 13 Pick. Kennedy v. Scovil, 12 Conn. 317. See 261. Hatch v. Dwight, 17 Mass. 289; 2 Hull V. Fuller, 4 Vt. 199. Randall o. Silverthorn, 4 Penn. St. * Salmon Palls Manuf. Co. v. Ports- 173. mouth Co., 46 N. H. 249. See Wink- " 118 Mass. 589. ley V. Salisbury Manuf. Co., 14 Gray, 443. 524 THE LAW OF WATERS. [PAET H. limitation of the right granted to build a dam as high as C. should need. In the construction of a grant and res- ervation, the obvious intention of the parties will govern. i In Chadwick v. Marsden,^ a reservation in a lease of "the free running of vs^ater and soil coming from any other build- ings and lands contiguous to the premises hereby demised, in and through the sewers and watercourses made or to be made within, through, or under the said premises," was held to " mean water naturally falling or arising on, or elsewhere, and coming to, the contiguous land, and to such matters as are the product of the ordinary use of land for habitation, such as night soil and sewage," and not to extend to the " refuse, however offensive," of certain tan-pits located on the adjoin- ing land. § 320. When the easement is of a certain quantity of water, the owner is not bound to use it in a particular manner, though the purpose for which it is used is men- tioned in the grant. He may use the water in a different manner or at a different place, or increase the capacity of the machinery which is propelled by it, without affecting his right, if the quantity used is not increased and the change does not prejudice the rights of others.^ This rule applies both to reservations and grants.* If the use of water is granted for a certain purpose, with a prohibition agamst certain other specified uses, the grantee may use it for any purpose not prohibited.^ It is, however, within the power of the grantor to limit the use of the water granted to a 1 Moore v. Fletcher, 16 Maine, 63 ; Vt. 395 ; Rogers v. Bancroft, 20 Vt. Provost r. Calder, 2 Wend. 517 ; Mar- 250; Rood o. Johnson, 26 Vt. 64; shall V. Niles, 8 Conn. 369 ; Nicodemus Davis v. Muncey, 38 Maine, 90 ; De- c. Nicodemus, 41 Md. 529. shon v. Porter, 38 Maine, 293 ; Covil 2 L. R. 2 Ex. 285. c. Hart, 56 Maine, 518 ; Blake v. Madi- ■'' "Luttrell's case, 4 Co. 80 ; Hale v. gan, 65 Maine, 522 ; Doan v. Metcalf, Oldroyd, 14 M. & W. 789 ; Watts c. 46 Iowa, 120. Sec Richards ?;. Koenig, Kelson, L. R. 6 Ch. 166 ; Casler v. 24 Wis. 3U0. Siiipman, 35 N. Y. 533 ; Cromwell * Ibid. ; Miller <-. Lapham, 44 Vt. V. Selden, 3 Comst. 253 ; Merrill c. 416 ; 46 Vt. 525. Calkins, 74 N. Y. 1 ; Cress v. Varney, ^ Iszard v. Mays Landing Water- 17 Penn. St. 496; Bigelow r. Battel, Power Co., 31 N. J. E(i. 511 ; 34 N. J. 15 Mass. 313; Adams v. Warner, 23 Eq. 556. CHAP. X.J CONTRACTS AND COVENANTS. 525 specific purpose, and not merely in quantity, and, in de- termining .whetlier such was the intention, the situation and circumstances of the parties may be taken into consideration. ^ If the grant be of water sufficient for a given purpose, and this is made by the owner of the whole stream, the grantor and his assigns are precluded from diminishing or defeating in any way what is thus conveyed.^ To a suit for the -violation of a covenant respecting the joint use of water, it is no answer to say that the alterations would not be injurious, or to prove even that thej^ are beneficial to the complainants.^ Thus, a defendant has been held liable for increasing the size of a flume, although it was more advantageous to the plaintiff.* Where an indenture, made in 1841, provided that "in case there is not at any time a full supply of Avater for the simultaneous operations of the works connected with the dam, the grist-mill shall draw its requisite quantity of water exclusive of all other works," it was held that the right secured to the grist-mill was not merely a right to use the water exclusively in the manner and for the time it was then accustomed to be used, but a right to use the water in quantity as then used, and for such length of time during the season of scarcity as the custom and business of the mill might require ; and that, if the work done in six hours by the \vheel substituted for the one in the mill when the covenant was made, was as much as that done by the latter in twenty-four hours, and with the use of less water, there appeared to be no breach of covenant, if the business was of the same character as was done in ^ Strong V. Benedict, 5 Conn. 210 ; ^ Jordan v. Mayo, 41 Maine, 552 ; De Witt V. Harvey, 4 Gray, 486 ; Samuels v. Blanchard, 25 Wis. 329. Sibley v. Hoar, 4 Gray, 222 ; Tour- ^ Dickerson v. Grand Junction Ca- tollot ;;. Phelps, 4 Gray, .370, 374; nal Co., 15 Beav. 260; Hulme. u. Garland o. Hodson, 46 Maine, 511; Shreve, 3 Green Ch. 116; Johnston v. Ashley v. Pease, 18 Pick. 268 ; Peck Hyde, 32 N. J. Eq. 446 ; Dewey v. V- Conway, 119 Mass. 546 ; Borst v. Bellows, 9 N. H. 282 ; Jewett v. Whit- Empie, 1 Selden, 33 ; Shed v. Leslie, ney, 43 Maine, 242 ; Howe Scale Co. 22 Vt. 498 ; McKclway v. Seymour, v. Terry, 47 Vt. 109 ; Carver v. Miller, 29 N. J. L. 321 ; Washabaugh v. 4 Mass. 558. Oyster, 18 Penn. St. 497. ^ Dewey v. Bellows, 9 N. H. 282. 526 THE LAW OF WATEBS. [PAET 11. 1841.1 The grantee of the right to use the surplus water not required by a certain mill cannot interfere with the necessary supply of water for such mill, but may maintain an action against the mill-owner, if he prevents the passage of the water when there is no deficiency.^ § 321. Water rights are, in general, interests connected with land, and, as such, are within the statute of frauds. The right to overflow another's land by a mill-dam,^ by the drippings from a roof,* or to erect a mill on another's land,^ is an interest in land which cannot pass by parol. A parol agreement that a person may abut and erect a dam upon the land of another, not for a temporary, but for a permanent purpose, as the creation of mills or hydraulic works, is void within the statute of frauds.^ The right to enter upon another's land for the purpose of repairing a dam and em- bankment necessary to the working of a mill, and erected by the consent of the owner of the land, can only be acquired by deed or prescription.^ So, a ferry franchise is real estate, and can only be transferred by deed.^ A verbal license to take water from a well on another's land gives the licensee no such interest in the well as will entitle him to recover damages for the pollution of the water therein.* § 322. While an easement can only be created by deedj^" yet a license, which is a permission to do some act or series of acts on the licensor's land, without having any permanent 1 Howe Scale Co. v. Terry, 47 Vt. 6 Trammell v. Trammell, 11 Rich. 109, 123 ; Loverin ;;. Walker, 44 N. H. (S. C.) 471 ; Bostwick v. Leach, 3 Day, 489. See Davis v. Muncey, 38 Maine, 476. 90. 6 Mumford v. AVhitney, 15 Wend. 2 Sumner v. Foster, 7 Pick. .32. 380 ; Moulton v. Taught, 41 Maine, » Woodward u. Seely, 11 III. 1,57; 208; Phillips v. Tompson, 1 John. Ch. Cook V. Pridgen, 4.5 Ga. 331 ; Harris 131. V. Miller, Meigs (Tenn.) 158; Carter 'Cook v. Stearns, 11 Mass. 533; V. Harlan, 6 Md. 20 ; French v. Owen, Jackson v. Litch, 62 Penn. St. 451. 2 Wis. 250 ; Clute v. Carr, 20 Wis. « Dundy v. Chambers, 23 111. 369. 531 ; Thompson v. Gregory, 4 Johns. ^ Ottawa Gaslight Co. v. Thomp- 81; Woodward v. Seely, 11 HI. 157; son, 39 111. 598; Clark v. Close, 43 Harris v. Miller, Meigs (Tenn.) 158. Iowa, 92. 4 Tanner u. Volentine, 75 111. 024. i" Ante, § 300. CHAP. X.] CONTfiACTS AND COVENANTS. 527 interest in it, may be given verbally as well as by writing.^ A parol grant of the privilege of floating timber doM^n a private stream, not involving the occupation of the land, is a mere license and not within the statute of frauds.^ An agreement between the owner of an artificial watercourse and a railroad company, whereby the former permits the latter to divert the water into a new channel on its own land, in consideration that the company will open the old channel and restore the water thereto whenever requested, is not a contract for an interest in land within the statute.^ An agreement to accept a certain annual compensation for damages occasioned by flowing land by a mill-dam,* or an agreement not to demand damages for flowing one's land, if the other party will erect a mill and dam,^ does not create such a right, interest, or easement in land as requires a writing. A parol agreement to flow a neighbor's land, for a stipulated annual compensation, during an indefinite period, by means of a dam on one's own premises, is within the statute of frauds ; but if that statute permits leases for a year to be created by parol, such an agreement may be treated as a valid lease from year to year, until terminated by notice.^ If the owner of land assists as a laborer in build- ing and repairing a dam which he knows will flow his land, says that the mill will benefit the neighborhood and urges other laborers to make the dam tight, these facts will not constitute either a valid license or estop him from claiming damages for the flowing of his land by the dam.'^ Upon such facts, it is for the jiiry to say whether a license was in fact given.^ If acts are performed upon another's estate under 1 Morrill c. Mackman, 24 Mich. Seidensparger v. Spear, 17 Maine, 279; Whitmarsh v. Walker, 1 Met. 123. 313 ; Taylor v. Waters, 7 Taunt. 374 ; « Morrill v. Mackman, 24 Mich. 279. Fcntimau v. Smith, 4 East, 107 ; Cook ' Batchelder v. Sanborn, 24 N. H. V. C. B. & Q. E. Co., 40 Iowa, 451. 474; Watldns v. Pecli, 13 X. H. 360. 3 Rhodes v. Otis, 33 Ala. 578. » .Tohnson o. Lewis, 13 Conn. 303 ; '^ Hamilton Hydraulic Co. v. Cin- Swartz v. Swartz, 4 Penn. St. 353; cinnati Railroad Co., 20 Ohio St. 341. Corning ^. Gould, 10 Wend. 531 ; ^ Short V. Woodward, 13 Gray, 86. Christmas v. Oliver, 10 Q. B. 181 ; '^ Smith V. Goulding, 6 Cush, 154 ; Corning v. Troy Iron Factory, 40 N. Clement v. Durgin, 5 Grecnl. 0. See Y. 101; 30 Barb. 311. 528 THE LAW OF WATEES. [PAET 11. licenses asked and obtained from time to time, or without causing any damage,^ long enjoyment cannot be as of right so as to give rise to a custom or prescription.^ The right acquired by a license or agreement, whether oral or written, such as the right to flow land by a dam, differs from that acquired by prescription in that the privilege acquired by the grant need not be uniformly exercised to its full extent.^ But an easement, whether acquired by grant or by prescrip- tion, may be extinguished, abandoned, or modified by a parol license granted by the owner of the dominant tenement and executed by the owner of the servient tenement.* Thus, evidence is admissible to prove a verbal agreement, which has been carried into effect, whereby a previously executed conveyance of a right to a watercourse through the granted premises, by courses and distances, was modified so as to change the course of the water for the mutual accommoda- tion of the -parties.^ § 323. When a parol license has been executed, in whole or in part, it is a justification for the acts done under it prior to its revocation or the completion of the work.*' Where a land-owner verbally- authorized his neighbor to construct and use perpetually a ditch over the former's estate for the pur- pose of draining the latter's land, such license was held to be irrevocable by the grantee of the licensor, after the construc- tion and continued use of the drain, although unforeseen 1 Hathorn v. Stinson, 12 Maine, Winter v. Brockwell, 8 East, 308; 183 ; Nelson v. Butterfield, 21 Maine, Liggins v. Inge, 7 Bing. 682 ; 5 Moore 220. & p. 712. 2 Mills V. Colchester, L. R. 2 C. P. » Le Pevre v. Le Perre, 4 S. & E. 47G ; Cocker v. Cowper, 1 Cr., M. & 241. E. 418; Corning v. Troy Iron Fac- i^ Selden i. Delaware Canal Co., tory, 34 Barb. 485; 89 Barb. 311; 29N. Y. 634; Miller f. Auburn Eail- 40 N. Y. 191 ; Tinkham o. Arnold, 3 road Co., 6 Hill, 61 ; Carter v. Page, 4 Greenl. 120 ; Stevens v. Morse, 5 Ired. 424 8 ; Baker v. Chicago Eail- Greenl. 26. road Co., 57 Mo. 265; Blaisdell v. " Lacy V. Amett, 33 Penn. St. 169. Portsmouth Eailroad, 51 X. H. 483 ; * Morse v. Copeland, 2 Gray, 302, Sterling v. Warden, Id. 217 ; Marstou 304; Dyer v. Sandford, 9 Met. 395; v. Gale, 24 N. II. 176; Addison c. Curtis 0. Noonan, 10 Allen, 406 ; Hack, 2 Gill, 221. CHAP. X.] CONTRACTS AND COVENANTS. 529 injuries resulted therefrom.^ If a licensee, under authority so conferred for a consideration, makes large investments for the enjoyment of a permanent easement, the licensor is estopped to revoke the license, unless the licensee can be placed in statu quo,^ and equity will decree specific performance, as in other cases of part performance,^ espe- cially if adequate compensation in damages cannot be ob- tained.* The more recent decisions and the weight of authority are to the effect that, both at law and in equity, the doctrine that an executed license is irrevocable is confined to those licenses under which, when executed, it cannot be claimed that any estate or interest in lands passes,'' and to licenses which are given upon a valuable consider- ation.® In case of laches,^ or express acquiescence,^ equitj- will not interfere by injunction to enforce the rights acquired imder a parol license, but will leave the parties to first try the question at law. A license to flow the water from the licensee's land through the ditch of the licensor affords no 1 Hodgson V. Jeffries, 52 Ind. 334; ton v. Putnam, 3 Pin. (Wis.) 107 ; t!- Cook V. C. B. &. Q. R. Co., 40 Iowa, Chand. 117 ; French r. Owen, 2 Wis- 451, 455. 250 ; Fryer v. Warne, 29 Wis. 511 ;: 2 Lane v. Miller, 27 Ind. 534 ; Rari- Cookti. Stearns, 11 Mass. 533 ; Houston tan Water Power Co. v. Veglite, 21 v. Laffee, 46 N. H. 505; Batchelder v. N. J. Eq. 463; 19 N. J. Eq. 142; Hall Hibbard, 58 N. H. 269; Van Ohlen v. i: Chaffee, 13 Vt. 150; Foot v. Kew Van Ohlen, 56 111. 528. See, however,. Haven Co., 23 Conn. 214; Morse i. Wiseman u. Lucresinger, 84 N. Y. 31.. Copeland, 2 Gray, 302 ; Blanchard v. The rule, as sometimes stated, that an* Baker, 8 Greenl. 253 ; Androscoggin executed license cannot be counter- Bridge V. Bragg, 11 N. H. 102; Hall manded, is not applicable to licenses. V. Chaffee, 13 Vt. 150 ; Eerick v. Kern, which, if given by deed, would create 14 S. & R. 267 ; Mumford v. Whitney, an easement ; but to licenses,, which, , 15 Wend. 380 ; Addison v. Hack, 2 if given by deed, would extinguish or Gill, 221 ; Van Ohlen t;. Van Ohlen, modify an easement. Morse v. Cope-- 56 111. 528 ; Sheffield 6-. Collier, 3 land, 2 Gray, 302. Kelly (Ga.) 82. » Babcock v. Utter, 1 Abb.. Dec. 8 Cook ,.. Pridgen, 45 Ga. 331 ; 27 ; 1 Keyes, 115, 397. Winham v. McGuire, 51 Ga. 578; ' Weller o. Smeaton,. 1, Bro. Cli. Wynn i;. Garland, 19 Ark. 23; Le 572; Birmingham Canal Co. v.. Lloyd, Fevre v. Le Fevre, 4 S. & R. 241 ; 18 Ves. 517 ; Anon. 2 Eq, Cas. Afir. McKellip V. Mcllhenny, 4 Watts, 317 ; 523 PI. 3 ; Williams c. Jersey, 1 Cr. Lee V. McLeod, 12 Nev. 280; Gooch & Ph. Ch. 92; Jones o. Royal Canal V. Sullivan, 13 Nev. 78. Co., 2 Molloy, 319 ; Hulrae v. Shreve, *Snowden v. Wilas, 19 Ind. 10; 3 Green. Ch. 116. Stephens v. Benson, Id. 3C7. ^ Cobb c. Smithy W.. Wis. . 661 ; 23 5 Clute V. Carr, 20 Wis. 531 ; Hazel- Wis. 261. 630 THE LAW OF AVATEES. [PAET n. justification for afterwards causing an increase in the quantity of the water so flowed.^ A parol license to enlarge a canal justifies an increase in its depth as well as its width, and, while in force, relieves the licensee from any consequence*? which may naturally flow from such enlargement.^ Such a license authorizing the plaintiff or his grantor to build a dam on another's land, in order to raise a reservoir of water for the use of his mill, confers no right upon the plaintiff to maintain such dam after it is built, or control the water raised by means of it.* A verbal license to erect a bridge, or aqueduct, or a dam and fish traps on another's premises is not a license to renew them as often as they fall to decay or are washed away, but is revocable at any time before they are renewed,* and, if the condition, upon which a license to build a dam is given, is that the licensor shall not be injured thereby, and the work is so imperfectly executed that the water sets back upon his wheels, the licensor is not bound by his consent, and the licensee is liable for the injury caused to him.^ After the lessee has enjoyed the right secured by .a verbal lease, such as a right of fishery, he is liable for the .stipulated rent, notwithstanding the statute of frauds.^ By ..a common agreement of all parties interested, though merely verbal, a new channel may doubtless be made for a stream, rthe water turned into it, and the old watercourse abandoned ■ or obliterated, and the new channel be thereafter the only .channel.^ A contract by which one party is to build a dam and the other to pay therefor in certain instalments, which was signed only by the first party, is binding if it appear, that the other party paid his instalments as required by the agreement and both acted upon it as binding.** 1 Carter v. Page, 8 Ired. 190. 364; Hepburn u. McDowell, 17 S. & ^ Selden v. Delaware Canal Co., R. 383. .29 N. Y. 6.34 ; 24 Barb. 362. s Brown v. Bowen, 30 N. Y. 519. ■ 8 Pitman v. Poor, 38 Maine, 237 ; ^ Eastham u. Anderson, 119 Mass. Moulton V. Eaught, 41 Maine, 298. 526. 4 Wingard v. Tift, 24 Ga. 179 ; ' Dunklee v. Wilton Railroad Co., .Hall V. Boyd, 14 Ga. 1 ; Farmer v. 24 N. H. 489, 506 ; Wetmore v. White, McDonald, 59 Ga. 509 ; Allen v. Fiske, 2 Caines, 87 ; Pratt v. Lamson, 2 Al- .42 Vt. 462 ; Carleton v. Redington, 21 len, 275. N. H. 291 ; Coles v. Kidder, 24 N. H. 8 Reedy v. Smith, 42 Cal. 245. CHAP. X.] CONTEACTS AND COVENANTS. 531 § 324. A parol license may be revoked so long as it re- mains unexecuted,^ although a consideration for it has been paid/ and terminates with the death of the licensor.^ A license by a riparian proprietor for the building of a bridge on his premises is revocable, and is revoked by a convey- ance of the property .8 Where A. and B. agreed by an un- sealed writing that A. might cut timber on B.'s land, and that B. might flow A.'s land to a certain extent by a dam, it was held that, although the licenses might have been mutual and given, each in consideration for the other, they were independent, and that either might be revoked without the other.* But where A., at B.'s' request, agreed verbally to build his mill at a spot different from that which he had intended, and which was selected by B., and also to give B. possession of a strip of land required to straighten B.'s lines, and to saw B.'s lumber at less than the market rates, and B. agreed, in return, to permit A. to build a tramway across B.'s land, and to throw the waste from the mill into a stream running through B.'s land, it was held that, the contract having been executed bj' both parties, A.'s license to throw the waste from the mill into the stream was irrevocable.^ Upon the revocation of a license to erect a dam upon an- other's land, and tender of the expenses thereof, it is as much the duty of the licensor as of the licensee to remove the dam.® A parol license cannot be assigned by the licensee,'^ and is presumed to be inoperative if not acted upon within a reasonable time ; ^ but an abandonment will not be pre- sumed where the enjoyment of the license is interrupted by a providential cause, without laches or fault on the part of 1 Beidelman v. Foulk, 5 Watts, 308 ; " Dodge v. McCIintock, 47 N. H. Dark u. Johnston, 55 Penn. St. 104 ; 383 ; East Jersey Iron Co. v. Wright, Owen V. Field, 12 Allen, 457 ; Hewlins 32 N. J. Eq. 248. V. Shippam, 5 B. & C. 222 ; Bryant v. ^ Thompson v. McEIarney, 82 Penn. Whistler, 8 B. & C. 288. St. 174 ; Lacy i,. Arnett, 33 Penn. St. 2 Bridges v. Purcell, 1 Dev. & Bat. 169. 492. 6 Woodbury v. Parshley, 7 N. H. ^ Jackson v. Babcock, 4 John. 418 ; 237. Drake v. Wells, 11 Allen, 141 ; Dark ' Ruggles v. Lesure, 24 Pick. 187 ; V. Johnston, 55 Penn. St. 164, 171; Carleton w. Eedington, 21 N. H. 291. Maxwell v. Bay City Bridge Co., 41 « Hill v. Lord, 48 Maine, 83 ; Hoit Mich. 453 ; Clark v. Close, 43 Iowa, 92. v. Stratton Mills, 54 N. H. 109. 532 THE LAW OF WATERS. [PAET II. the licensee.^ If a license to butt a dam on the opposite shore, until the opposite owner should wish the privilege for his own use, is revoked, the licensee's right to the head of water thus raised and appropriated remains unimpaired.^ § 325. The right of a riparian proprietor to the use of a stream is so valuable that misrepresentations as to the benefits or disadvantages arising therefrom may afford a cause of ac- tion for fraud or deceit.^ If the vendor of land which the vendee wishes, with the knowledge of the vendor, to pur- chase for a stock-ranch, represents that the land sold was upon a certain creek, when, in fact, the land was not sup- plied with water from that creek or any other source, and was worthless 'as a stock-ranch, the sale may be set aside at suit of the vendee, although the vendor made the state- ment in ignorance of the truth, and refused to enter such description in the warranty clause of the deed.* So, if the vendor of a river plantation makes positive representations as to its comparative safety from overflow, which are in- ducements to the vendee to purchase, the latter may recoup, to the extent of his injurj', in a suit in chancery by the vendor to enforce security for the purchase-money ; ^ and if the land is diminished in value by the overflow, and the rep- resentations are false and fraudulent, a court of equity will rescind the contract.^ If a positive declaration is made that a sluiceway connected with a mill is firmly laid upon sand rock which is from four to five feet below the bed of the river at that point, the vendee may rely upon the repre- sentations, and may maintain an action for deceit against the Vendor if such representations are false and fraudulent. '^ So, 1 Southwestern Railroad Co. v. Mit- White c. Hardin, 5 Dana, 154 ; Long chell (Ga.), 27 Alb. L. Jouru. 116. i. Weller, 29 Gratt. 347. 2 Blanciiard v. Baker, 8 Greenl. 25.3, * Pendervis v. Gray, 41 Texas, 326. which suggested that the right might ^ Estell c. Myers, 54 Miss. 174 ; still be "enjoyed by a diagonal or Reynolds i-. Cox, 11 Ind. 262; Durrett wing dam." v. Simpson, 3 Mon. 517. ' Earris o. Ware, 00 Maine, 482 ; « Alexander i-. Beresford, 27 Miss. Gilpin V. Smith, 11 S. & M. 109; Sar- 747. gent V. Gutterson, 13 N. II. 407 ; Win- " Earibault v. Sater, 13 Minn. 223. ston V. Gwathmey, 8 V,. Mon. 19, 23; CHAP. Xj CONTRACTS AND COVENANTS. 533 fraudulent representations, as to the extent of the right to the use of a sewer, are cause for an action for fraud and deceit.^ § 326. Promissory representations, or expressions of opinion that a dam will in the future continue to furnish the full amount of power conveyed, or that " the stream will furnish water to run the mill day and night eight months in the year," ^ are not fraudulent, though proved to be erroneous ; ^ nor are representations that the dam supplied " about three times as much " power as was conveyed, where the dam fur- nishes the vendee the full amount conveyed to him.* Where a navigation company laid out a town and sold the lots, the purchasers expecting that they would open the navigation to it, and the lots were rendered worthless because the funds of the company were insuiScient, the vendees were held not en- titled to relief in equity, upon the ground that the vendors had made no fraudulent concealment of their means.* If a deed conveys the right to flow so much of the grantor's land as would be flowed by raising the water of a stream by a dam to a certain height, it will not be cancelled upon a bill by the grantor, alleging that the deed was procured by the grantee's false representations as to the quantity of land that would be flowed by thiis raising the water, if it appears that the pro- spective flowage could be ascertained by personal inspection ; that neither party possessed any me^iUS of information not thus obtainable ; that the grantor's agent inspected the land for this purpose before the sale, and the grantee did nothing tending to mislead the agent.^ An affirmation that land which is, in fact, imperfectly watered is "uncommonly rich water meadow-land " will not render the contract voidable in equity by the purchaser, although the court might, on that account, be disinclined to enforce^ specific performance at the suit of the vendor." And if a spring, which was rep- ^ Whitney v. Allaire, 1 N. Y. 305 ; ^ Turner v. Capo Fear Navigation Green v. Collins, 86 N. Y. 240, 253. Co., 2 Dev. Eq. 230. 2 Morrison v. Koch, .32 Wis. 254 ; ^ Sanford v. Nyman, 23 Mich. 320 ; Banta v. Savage, 12 Ncv. 151. Wright v. Gully, 28 Ind. 475. " Clark V. Ralls, 50 Iowa, 275. ' Scott v. Hare, 1 Sim. 13. < Morrison v. Koch, 32 Wis. 254; Wells V. Day, 124 Mass. 38. ^34 THE LAW OF WATERS. [PART II. resented to be upon the tract of land sold, could not, from its location and value, have formed a decided inducement to the purchase, there is no ground for rescission, if, in fact, it is found to be without the purchase.^ Upon the sale of " eighty acres of land, be the same more or less," including a mill-site, if it is evident that such site was the main object of the pur- chaser, a deficiency of twenty acres in the land sold wiU not, in the absence of fraud, justify a rescission of the contract.^ § 327. Damages for the breach of a covenant against in- cumbrances, when the incumbrance is of a permanent charac- ter and impairs the value of the premises, such as an ease- ment of a canal company to pass and repass along their canal upon the premises, upon which it abutted, for the purpose of cleaning and repairing it, will be measured by the dimin- ished value of the premises.^ Damages for failure to keep a dam in repair so as to furnish the necessary supply of water, as agreed in a lease of a saw-mill, the lessee to have a right to repair at the lessor's expense, is the difference between the rental value of the mill in its then condition and in the stipulated condition, or the cost of repairs ; and profits that would have been made if kept in the latter condition, or for deterioration of machinery, etc., are too remote.* § 328. Mill-owners on either side of a stream are jointly liable to keep the dam between them in repair,^ each being bound to keep his own flume in order, and one will not be liable, while using ordinary diligence, to the other, for dam- age accidentally caused in making the repairs.^ The grantee of an ancient mill, the water from which has passed off from time immemorial, through a raceway, which was an artificial channel, through land of another, has a right to enter on such land and clear out any obstructions in the ordinary 1 Winston v. Gwathmey, 8 B. Mon. Fort v. Orndoff, 7 Heisk. 167 ; ante, 19, 23 ; Jasper v. Hamilton, 3 Dana, 280. § 211 J. 2 PoUoclc V. "Wilson, 3 Dana, 25. * Runnels i . BuUen, 2 N. H. 532. 8 Mitchell r. Stanley, 44 Conn. 312. « Boynton v. Eees, 9 Pick. 527. ' Winne u. Kelley, 34 Iowa, 339; CHAP. X.] CONTEACTS AND COVENANTS. 535 manner, doing no unnecessary damage,^ and to make re- pairs^ and improvements, etc., necessary to its .full enjoy- ment.^ A right to enter to cleanse a pool and repair a dam is incident to a grant to flow back water upon the grantor's premises,* and to take earth and stones from the bottom of the pond for that purpose.^ A person with a right to use a well and pump on another's land, each being bound to pay for repairs proportionately, cannot maintain an action against the latter before a request and a refusal to repair.^ Under tlie general rule that a lessor, in the absence of an ex- press agreement, is not bound to make any repairs,^ leases of a farm with " water privileges from the mill-pond for turning a wheel to drive a saddle-tree manufactory,"^ and of "so much of the surplus water of a canal " as might be neces- sary to propel a mill of a certain kind,^ have been held not to bind the former lessor to keep the mill-dam in repair, and sufficient water in the mill-pond to carry on the factory, or to prevent the latter from abandoning the navigation of the canal, and suffering it to go to decay. A general covenant in a lease of a mill propertjr and land " to keep the mill in good repair," while it may embrace an obligation to keep the tail-race in as good repair as at the date of the agree- ment to lease, will not relieve the lessee of an obligation to clear the race of such deposits as result from the ordinary use of the mill.^" A bond to build and keep a bridge in repair for ' Prescott r. White, 21 Pick. .341 ; ^ Doane v. Badger, 12 Mass. 65 White r. Chapin, 12 Allen, 516, 521 ; Calvert v. Aldrioh, 99 Mass. 74, 76. Roberts r. Roberts, 55 N. Y. 275. ' Pomfretu. Eicroft, 1 Wms. Saund. 2 Daniel v. Chaffin, 28 Iowa, 327. 321 n. ; Colebeck v. Girdlers Co., 1 Q. B, 'Ecals 1-. Stewart, 6 Lans. 408. D. 234. Sheets u. Selden, 7 Wall. 416, Pico c. Colinias, 32 Cal. 578, while decided that a lessee, under a water- admitting the general principle that power lease, providing for an abate, a person, enjoying an easement in ment of rent for every failure of water, the land of another, may enter thereon cannot, having forfeited the estate by to keep it in repair, declared that a non-payment of rent after due pro- water commissioner, under the stat- ceedings had, set up n, claim for ro- ute to regulate watercourses, etc., pairs to the water-channel made neces- hadno authority as such to repair a saryby the landlord's gross negligence, watercourse, or to make an entry to ^ Morse v. Maddox, 17 Mo. 509. remove an obstruction. ' Trustees v. Brett, 25 Ind. 409. * Prailey v. Waters, 7 Penn. St. 221. " Middlekauff v. Smith, 1 Md. 329. 5 Miller v. Scolfleld, 12 Conn. 335. See Bird v. Elwes, L. R. 3 Ex. 225. 536 THE LAW OF WATEKS. [PART II. four j'^ears binds the obligor to rebuild, even if it is washed away by an extraordinary flood, in default of which the dam- ages will be the cost of rebuilding, with the premium requisite to insure it against the perils named in the bond for the time remaining.! The owner of a water-mill benefited by a reser- voir higher up the stream, who promises to pay his propor- tionate share of the cost of necessary repairs, if made, is liable on their completion, in an ordinary action upon an account annexed.^ '■ Gathwright v. Callaway County, agreement to repair was merely a 10 Mo. 663. Contra, Livingston County means to find out if the builder had V. Graves, 32 Mo. 479, where the bridge properly constructed the bridge, was burned, on the ground that the ^ Mullett v. Bemis, 100 Mass. 92. CHAPTER XI. PKESCBIPTION. — SEVERANCE OF TENEMENTS. SECTION. 329. Prescriptive rights, how acquired. 330. Presumption of a lost grant cannot be rebutted by proof. — Pleading. 331. Disabilities overcoming the presumption of a grant. 332, 333. Distinction between the modes of acquiring an easement and land by prescription. 834. Prescriptive right, how acquired. — The adverse use must be incon- sistent with the continuance of the prior right. 335, 336. Ibid. — It must be continuous for the necessary period. 337. Ibid. — It must be open and notorious. 338, 339. Ibid. — It must not be permissive. 340. Ibid. — It may be restricted by conditions, or by negative adverse rights. 341. Ibid. — Burden of proof. 342. Prescriptive rights limited by the user. 343, 344. Ibid. — Height of the water held by a dam. 345, 346. Pollution of water by prescription. 347. The grant of a particular use does not prevent the acquisition by the grantee of another right of user by prescription. 348-351. A prescriptive right may be- abandoned, or lost by acquiescence. 352. Prescriptive right not acquirable when the enjoyment is of a tem- porary nature. 353. Statutory right to flow another's land, whether acquirable without proof of damage. 354. Severance of tenements. — General rules. 355. Implied grants when favored. 356. Nicholas v. Chamberlain. 357, 358. Pyer v. Carter. 359, 360. The effect of simultaneous and non-simultaneous grants. 361. Seymour v. Lewis. 362. Necessity, not convenience, the ground on which implied grants are upheld. 538 THE LAW OF WATERS. [PAET II. § 329. No one can acquire an easement in his own estate.^ But, in the absence of an express grant of such right from another, an easement in water may arise : first, by prescrip- tion ; second, upon severance of tenements. With respect to prescriptive rights, it is settled that the owner of land upon the margin of a natural stream may by long user acquire a right to use the water in a manner not justified by his natural rights. The term " prescription " is strictly applicable only to incorporeal hereditaments and not to land ; ^ and, under the ancient rule of the common law, the use of the incorporeal right, in order to support a title by prescription, must have continued immemorially, that is, have had a commencement before the reign of Richard I.^ Inasmuch as such length of user is now difficult of proof in England, and incapable of proof here, it came to be held that the existence of an earlier right may be inferred from evidence of enjoyment during a less period.* It is now generally held that a continued use in a particular manner and without opposition through twenty j^ears, corresponding to the period usually prescribed by statutes of limitations for an entry on lands, is sufficient for the purpose.^ Under this rule, the use must have assumed 1 Ritger u. Parker, 8 Cush. 145; ^ Lewis v. Price, 2 W. Saund. 175; White V. Chapin, 12 Allen, 516, 518. Angus v. Dalton, 3 Q. B. D. 85 ; Claw- 2 Wilkinson v. Proud, 11 M. & W. son v. Primrose, 24 Am. L. Reg. 6; 33 ; Carlyon <,. Levering, 1 H. & N. Ricard t^. Williams, 7 Wheat. 59 ; 784; Hall on the Seashore (2d ed.), Coolidge o. Learned, 8 Pick. 504; 22 ; Caldwell v. Copeland, 37 Penn. Sargent !). Ballard, 9 Pick. 251 ; Mel- St. 427, 431 ; Ferris v. Brown, 3 Barb, vin v. Whiting, 10 Pick. 297 ; Barnes 105 ; Tinicum Fishing Co. v. Carter, v. Haynes, 13 Gray, 188 ; Blake v. 61 Penn. St. 21. Everett, 10 Allen,' 248 ; Pierre v. 3 1 Black. Com, 75; 2 Id. 263; Fernald, 26 Maine, 436; Jlitchell v. Bract, lib. 2, c. 22. Walker, 2 Aik. (Vt.) 269 ; Shumway k. « Falmouth v. Innys, Mosely, 87 ; Simons, 1 Vt. 53 ; Wakins v. Peck, * Hillary D. Waller, 12 Ves. 261 ; Finch 13 N. H. 360; Wallace v. Fletcher, V. Resbridger, 2 Vern. 390 ; Hill v. 30 N. H. 434 ; Olney v. Tenner, 2 R. Smith, 10 East, 476 ; Trotter ;;. Har- I. 211 ; Horner v. Stillwell, 35 N. J. L. ris, 2 Younge & J. 285 ; Jackson „■. 307 ; Townsend v. McDonald, 12 N. Harvey, 1 Cr. M. & R. 51 ; Saunders Y. 381 ; Parker o. Foote, 19 Wend. V. Newman, 1 B. & Aid. 258 ; Bailey 309 ; Miller v. Oarlock, 8 Barb. 153 ; V. Applegard, 8 Ad. & El. 161 ; Hazard Shreve v. Voorhees, 2 Green Ch. 25 ; f, Robinson, 3 Mason, 272, 275; Wal- Campbell v. Smith, 3 Halst. 140; lace V. Fletcher, 30 N. II. 444 ; Rogers Carlisle , . Cooper, 19 N. J. Eq. 256 ; <,. Mabe, 4 Dev. 180. Postlethwaite o. Payne, 8 Ind. 104; CHAP. XI.J PEESCEIPTION. 539 its .character as ad,verse twenty years before the right can accrue ; but recent acts, acquiesced in by the owner, may go to the jury as evidence tliat the use has been in derogation of the owner's right for the full term of twent}"- years. i § 330. According to some decisions, long-continued and uninterrupted possession is merely evidence from which a jury would be justified in presuming a grant ; ^ but, by the Smith V. Euss, 17 Wis. 227 ; Rooker V. Perkins, 14 Wis. 79 ; Cobb v. Smith, 16 Wis. 661 ; 38 Wis. 21 ; Sherwood !). Vliet, 20 Wis. 441 ; Haag v. De- lorme, 30 Wis. 591 ; Arimond v. Green Bay Co., 31 Wis. 316 ; Vail v. Mix, 74 111. 127 ; Sheuber v. Held, 47 Wis. 340 ; Manier v. Myers, 4 B. Mon. 514 ; Phin- izy V. Augusta, 47 Ga. 260 ; Cuthbert V. Lawton, 3 McCord, 194 ; Felton v. Simpson, 11 Ired. 84 ; Griffin v. Foster, 8 Jones, 337 ; Powell v. Lash, 64 N". C. 456. It is twenty-one years in Ohio and Pennsylvania. Tootle ;;. Clifton, 22 Ohio St. 247; Bucking- ham V. Smith, 10 Ohio, 288, 299; Cooper ,.. Smith, 9 S. & E. 26; Sleickler v. Todd, 10 S. & E. 63; Biedelman v. Poulke, 5 Watts, 308; Workman v. Curran, 89 Penn. St. 226. Fifteen years in Vermont and Connecticut. Norton v. Valentine, 14 Vt. 239; Ford ... Whitlock, 27 Vt. 265 ; Shrewsbury v. Brown, 25 Vt. 197; Arbuckle v. Ward, 29 Vt. 43; Rogers v. Bancroft, 20 Vt. 250; In- graham t. Hutchinson, 2 Conn. 584 ; Parker v. Hotchkiss, 25 Conn. 321; Sherwood v. Burr, 4 Day, 244; Eogers V. Page, Brayt. (Vt.) 169. Ten years in Texas and Alabama. Haas u. Choussard, 17 Texas, 588 ; Baker v. Brown, 55 Texas, 377 ; Wright v. Moore, 38 Ala. 593. Five years in California. Campbell v. West, 44 Cal. 646; Grigsby v. Clear Lake Water Co., 40 Cal. 396. And seven years by the statutes of Georgia and Tennessee. ' Nash V. Peden, 1 Speers, 22. In Lehigh Valley Railroad Co. v. Mc- Farlan, 43 N. J. L. 605, 617, Bepue, J., said : " At common law there was no fixed period of prescription. Eights were acquired by prescription only when the possession or enjoyment was 'time whereof the memory of man ran not to the contrary.' By 20 Hen. III., c. 8, the limitation in writs of right dated from the reign of Henry II. By 3 Edw. I., c. 39, the limitation was fixed from the reign of Richard I. By 21 Jac. I., c. 16, the time for bringing possessory actions was limit- ed to twenty years after the right ac- crued. These statutes applied only to actions for the recovery of land ; none of them embraced actions in which the right to an incorporeal hereditament was involved. But by judicial construction an adverse user of an easement for the period men- tioned in the statutes, as they were passed from time to time, became evidence of a prescriptive right ; and finally, the fiction was invented of a, lost grant, presumed from such user to have been once in existence and to have become lost. The fiction of a lost grant seems to have been devised after the statute of James. It was called a lost grant, not to indicate that the fact of the existence of the grant originally was of importance, but to avoid the rule of pleading requiring profert. Allegation of the loss of the grant excused profert and bringing the instrument into court." 2 Wallace v. Fletcher, 30 N. H. 446, citing Keymer v. Summers, B. 540 THE LAW OP WATERS. [PAET H. weight of authority in this country, while the presumption of a lost deed may be rebutted by contradicting or explain- ing the facts upon which it rests, yet it cannot be overcome by proof in denial of a grant.^ The adverse enjoyment of the water in a stream for a less period than twenty years is not sufBcient to warrant a presumption of a grant, and no superior right in the stream is acquired by mere priority of occupation.^ If, therefore, a mill-dam is newly erected above an ancient mill on the same stream, the owner of the ancient mill cannot lawfully increase the height of his dam to a level with the wheel of the new mill, and thus obstruct it by backwater.^ If the plaintiff in his declaration relies upon a prescriptive right to use the water, he cannot recover by proving only that the defendant's dam flows back the water on his mill-wheel, and that his rights as a riparian proprietor are thus infringed.* So, upon the other hand, a plea of a general right to a watercourse is not sustained by proof of a particular right acquired by adverse enjoyment,^ nor can the defendant, in an action for diverting a watercourse, avail of a right so acquired, unless set up in his answer." N. P. 74 ; Campbell v. Willson, .3 East, Wright v. Howard, 1 Sim. & Stu. 203 ; 294 ; Gray i'. Bond, 5 Moore, 327 ; 2 Mason v. Hill, 3 B. & Ad. 304 ; 5 B. & B. & B. 627 ; Cross ?;. Lewis, 2 B. & C. Ad. 1. Tlie riglit to flow land by a 686 ; Darwin o. Upton, 2 W. Saund. pond created by a dam attached to 175 a.; Livett v. Wilson, 3 Bing. 115; an ancient mill-site, is a prescriptive Jones !••. Jones, 2 Kerr, 265. right in a que estate. Sargent v. Gut 1 Lehigh Valley Railroad Co. ;;. terson, 13 N. H. 467. McFarlan, 43 N. J. L. 605 ; Coolidge ^ Prescott v. Phillips, cited 6 East, !>. Learned, 8 Pick. 504 ; Edson o. 283 ; Rex v. Wardroper, 4 Burr. 2024 ; Mmisell, 10 Allen, 568; Wallace v. Tyler v. Wilkinson, 4 Mason, 397; Fletcher, 30 N. H. 434, 448 ; Pills- Oilman v. Tilton, 5 N. H. 231 ; Camp- bury V. Moore, 44 Maine, 154 ; Burn- bell v. Smith, 3 Halst. 146 ; Sherwood ham c. Kempton, 44 N. H. 88; Win- v. Burr, 4 Day, 244; Buddington nipisseogee Lake Co. v. Young, 40 N. Bradley, 10 Conn. 213 ; Davis i-. Fuller, H. 433 ; Tracy v. Atherton, 30 Vt. 510 ; 12 Vt. 178 ; Pugh c. Wheeler, 2 Dev, 2 Greenl. Evid. § 539. To the same & Bat. 50. effect are numerous English author- " Sumner v. Tileston, 7 Pick. 198 ities. Dougal v. V\''ilson, 2 W. Saund. ante, c. 7. 175 a. ; Darwin o. Upton, Id. ; Hed v. i Rudd v. Williams, 43 111. 385. Holcroft, 1 B. & P. 400 ; Balston u. ^ Darlington v. Painter, 7 Penn. St. Bensted, 1 Camp, 463; Bealey II. Shaw, 473; Wetmore v. Robinson, 2 Conn. 6 East, 208 ; Bright t: Walker, 1 Cr. 529. M. & R. 217 ; Jenkins v. Harvey, Id. ^ Matthews v. Ferrea, 45 Cal. 51. 894; Hillary v. Waller, 12 Ves. 239; CHAP. XI.] PEESCEIPTION. 541 § 331. Prescription thus depends, at the present day, upon the presumption of a previous grant or agreement which has been lost by lapse of time.^ But a grant cannot be presumed with respect to that which in its nature could not be granted, or against a person legally incapable of making it.^ An insane person cannot make a binding grant of his real estate, and no prescription begins to run against him until his death or the removal of the disability.^ So, no presumption of a grant arises, from the adverse enjoyment of an easement, against ,a minor or married woman.* In the case of a reversion, the time of prescription does not begin to run against the reversioner, until his interest becomes so vested or he has such knowledge that a permanent easement is claimed as to give him a cause of action, although the tenant for life or years may permit easements to be acquired by user which will be valid during his tenancy.® Where a company was authorized by act of Parliament to construct 1 Rust 0. Low, 6 Mass. 97 ; Morse II. Copeland, 2 Gray, 305 ; Edson i... Munsell, 10 Allen, 557, 567. 2 Barker i'. Richardson, 4 B. & Aid. 579 ; Ricard u. Williams, 7 Wiieaton, 109; Hill V. Lord, 48 Maine, !)0 ; Ayraud v. Babin, 19 Martin (La.) 471 ; Jackson v. Johnson, 5 Cowen, 74. ^ Edson V. Mmisell, 10 Allen, 557 ; Currier ^. Gale, 3 Allen, 328. The general rule is that an intervening dis- ability between the commencement of the adverse enjoyment and the expi- ration of the twenty years will not de- feat the prescriptive right. Wallace V. Fletcher, 30 N. H. 434; Tracy v. Atherton, 36 Vt. 503; Andrews v. Mulford, 1 Hayw. (K C.) 322; Mer- cer V. Selden, 1 How. 537 ; Peck v. Randall, 1 Johns. 176 ; Moores u. White, 6 Johns. 360 ; Dekay v. Dar- rah, 2 Green (N. J.) 28S; Clark ,. Richards, 3 Id. ,347; McFarland ,. Stone, 17 Vt. 165. But the minority of an heir who succeeds to the dom- inant tenement during the twenty years has been held to interrupt the prescription. Melvin i-. Whiting, 13 Pick. 188; Watkins v. Peck, 13 N. H. 360 ; Lamb v. Crosland,4 Rich. (S. C.) 536. * Reiner o. Stuber, 20 Penn. St, 458 ; Watkins v. Peck, 13 N. H. 360 See Tyler v. Wilkinson, 4 Mason, 402 ^ Saunders r. Annesley, 2 Sch. & Lef. 101 ; Baxter r. Taylor, 4 B. & Ad 72 ; Barker v. Richardson, 4 B. & Aid 578 ; Wood c. Veal, 5 B. & Aid. 454; Doe V. Reed, Ibid. 232 ; Gray u. Bond, 2 Bro. & Bing. 667 ; Dawson v. Nor- folk, 1 Price, 246; Daniel o. North, 11 East, 372; Yard i-. Ford, 2 W. Saund. 175 a. ; McGregor c. Wait, 10 Gray, 72 ; Parker v. Framingham, 8 Met. 260 ; Lund v. New Bedford, 121 Mass. 286; Wallace u. Fletcher, 30 N. H. 434; Tinsman v. Belviderc Railroad Co., 25 N. J. L. 255 ; Schen- ley V. Commomvealtli, 36 Penn. St. 29; Reimer v. Stuber, 20 Penn. St. 458. Leasing the servient estate to a tenant after the time of prescrip- tion has begun to run would not pre- vent the acquisition of the right. Cross !.. Lewis, 2 B. & C. 086 ; Mebane u. Patrick, 1 Jones, 23. 542 THE LAW OF WATERS. [PART II. and operate a canal for public use, and the defendant pleaded a prescriptive right to draw water therefrom for operating a. mill and steam engine erected upon the banks, the court held that such right could not be maintained, for it implied an original grant thereof by the company, which had no right to make such a grant or to use the water for any purpose except for that of a canal.^ In Burbank v. Fay,^ in New York, it was held that, as the canal commissioners could not grant the State canals, no right adverse to the State could be acquired by a private use of the waters of such canals, whether adverse or by permission. In Mayor of Saltash v. Goodman,^ the defendants claimed, as free inhabi- tants of ancient tenements in a borough, and also as free inhabitants of the borough and as subjects of the realm, to have, without interruption and as of right, the privilege of dredging for oysters in a public navigable river, and the plaintiffs claimed to be possessed of the soil and a several fishery in the river. The plaintiffs proved a prima facie right to a several fishery, and it was held that the defend- ants' claim of immemorial user could not be estabhshed, being made in respect of a fluctuating body, and that the presumption of a lost royal graut, which alone could incorpo- rate such a bodj"-, could not be made in opposition to the right proved by the plaintiffs. § 332. The title to an easement by adverse user is to be distinguished from a title to land claimed by adverse ]! lly^es- siou. In the latter case, a mere verbal protest or proliibiii i to occupy the premises is not sufficient without enny ) defeat the right acquired by disseisin.* But in the ou.'-e .f an easement, the title rests chiefly on the owner's acquies- 1 Rochdale Canal Co. v. RadclifEe, road Co. c. McFarlan, 43 N. .J. I-. (',05, 18 Q. B. 315 ; Staffordshire Canal v. 621 ; ante, § 225. Birmingham Canal, L. R. 1 H.L.254; 2 65N.Y.57. See Jessupi-. Lmicks, 11 Jur. 71; National Manure Co. v. 55 Penn. St. 350; Cass c. Peni!i>ylva- Donald, 4 H. & N. 8 ; Sapp v. Northern nia Railroad Co., 51 Penn. St. 351. Central Railway Co., 51 Md. 125 ; s 5 c. P. D. 431 ; 7 Q. JB. D. 106. Armstrong v. Pennsylvania Railroad * Workman <.. Curran, 89 Penn. Co., 38 N. J. L. 1 ; Lehigh Valley Pvail- St. 226 ; Smitli r. Miller, 11 Gray, 145; Bowen v. Guild, 130 Mass. 121. CHAP. XI.j PRESCRIPTION. 543 cence in the adverse use, and the presumption of a grant may be rebutted by proof of declarations without evidence of opposition to the use by suit at law or by forcible resistance.^ Where, for example, an easement in an aqueduct on another's land was claimed by adverse user, and it appeared that the owner of the servient tenement had forbidden his neighbor to enter, and had ordered him off the land while there for the purpose of repairing the aqueduct, it was held that these verbal orders were admissible to show an iuterrupbion of the easement, and that it was not necessary to use actual force to eject, in order to break the continuity of possession and use.^ If a suit is brought within twenty years against the occupants of a mill-dam and is compromised, this fact is admissible in evidence to rebut the presumption of an ease- ment by prescription.^ In Kimball v. Ladd,* the Supreme Court of Vermont held that acts may amount to acquiescence, even when there are verbal objections, and that the owner of a lower mill, who claims the right to have the water come to him through the flume and gates of an upper mill, may acquire a prescriptive right to the continued flow of the water as the upper mill-owner permits it to run, whatever the latter may say in denial of his claim. § 333. Long enjoyment of an easement establishes a right to the easement, but not to the land itself,® and the acquisi- tion, by adverse enjoyment, of the privilege of ponding back water on another's land does not prevent the latter from conveying the right of soil.^ A riparian proprietor whose title extends usque ad filum aquae, may acquire by ^ Ibid. ; Chicago Railway Co. v. ^ Powell v. Bagg, 8 Gray, 441 ; Hoag, 90 111. 339 ; Stillman v. White Tracy v. Atherton, 36 Vt. 514 ; In- Rock Co., 3 Wood. & M. 533, 549 ; graham v. Hough, 1 Jones, 39. Nichols u. Aylor, 7 Leigh, 546 ; Field ^ Postlethwaite v. Payne, 8 Ind. V. Brown, 24 Gratt. 74 ; Tyler p. Wil- 104 ; Eaton v. Swansea Waterworks kinson, 4 Mason, 397 ; Pierce v. Cloud, Co., 17 Q. B. 267. See Langford v. 42 Penn. St. 102. Where a dam is Poppe, 56 Cal. 73. built under authority from the State, * 42 Vt. 747. acquiescence is not presumed on the ^ Schuylkill Navigation Co. v. Stoe- part of the owner of land flowed by ver, 2 Grant Cas. 462. the dam. Jessup ». Loucks, 55 Penn. ^ Everett v, Dockery, 7 Jones (N. St. 350. C.) 390. 544 THE LAW OF WATERS. [PAIIT 11. prescription the right to maintain a dam across the stream and to abut it on the opposite shore.^ If there is no claim of right to the land on which the dam is built, only an easement will be gained ; but the erection of a dam on the land of another, and maintaining it, uninterruptedly and under a claim of right to the land for a period of twenty years, with the acquiescence and knowledge of the owner of the land, and during all the same period flowing the land of a third person above on the stream with his knowledge and acquiescence, gives a title by adverse possession to the land on which the dam is located, and a right by prescription to flow the land of such third person situated above on the stream.^ If a highway extending across a stream is used as a dam for twenty years without interruption on the part of the State, or objection on the part of the owner of land which is flowed by the pond, the latter cannot maintain an action for the injury to his land.^ In support of a claim of title to the whole bed of a river on which the plaintiff's land bounds, he is entitled to submit to the jury acts of ownership, such as the taking of stones, not only in that part of the river which lies between the lands of the plaintiff and the defend- ant, but along the bed of the river beyond the defendant's land.* In Ridgway v. Ludlow,*' in Indiana, it was held that a title acquired by adverse possession to land adjoining an unnavigable lake within the congressional survey carried with it the bed of the lake to its thread, and that the entry of the original owner, within the period of prescription, upon the bed of the lake, from which the water had receded, and the removal therefrom of its natural products, did not affect the claimant's title, these acts not being with his knowledge, or accomjianied by any assertion of ownership. 1 Bliss V. Eice, 17 Pick. 23 ; Pratt c. ' Borden v. Vincent, 24 Pick. 301 ; Lanison, 2 Allen, 275, 288 ; Bfidel- Lawrence v. FairhaTen, 5 Gray, 114 ; man v. Poulk, 5 Watts, 308 ; Burn- Perley v. Hilton, 55 N. H. 444. ham V. Kempton, 44 N. H. 78. * Jones v. Williams, 2 M. & W. 326 ; ^ Trask v. Ford, 39 Maine, 437 ; Attorney General u. Portsmouth, 25 Chalk V. McAlily, 11 Rich. (S. C.) W. R. 559. 153 ; Perrin ... Garfield, 37 Vt. 304 ; 5 53 ind. 248. See Clarke r. Wag- Thompson V. Androscoggin Bridge, ncr, 74 N. C. 791. 5 Maine, 62; Dryden t, Jephcrson, 18 Pick. 302. CHAP. XI.] PEBSCEIPTION. 545 § 334. In order to establish the presumption of a right or easement in the lands or waters of another person, the enjoy- ment must have been uninterrupted, adverse, and under a claim of right, and with the knowledge of the owner.^ It must have been inconsistent with or contrary to the interests of the owner, and of such a nature that it is difficult or impossible to account for it except on the presumption of a grant from him.^ If the use or enjoyment has been consistent with the continuance of his right or title, no such presumption arises. In order to establish a prescriptive right to a certain flow of water from another's reservoir higher up the stream, the owner of the dam must not have merely permitted the water to flow as demanded without intending to acknowledge any right on the part of the lower proprietor, for so equivocal an act would not justify a pre- sumption of an adverse user or enjoyment.^ So, the erection of a dam across a stream to raise a head of water for the purpose of driving wheels and machinery in a mill, and the cutting of canals, sluices, and water-ways to conduct, apply, and discharge the water, although they may change in some degree the natural flow of the stream and cause a temporary obstruction to the passage of the water, yet, if thej^ do not essentially affect the reasonable use of the current by the riparian proprietors above and below for similar purposes, they would not be inconsistent with the rights of such pro- prietors, and would not be deemed to confer any right or to take away any title or privilege.* If, on the other hand, the- iLiv-ctt V. Wilson, 3 Bing. 115; ^ jjorgp ^ -vfilliams, 62 Mame,.445 Coalter v. Hunter, i Rand. (Va.) 58; Brace v. Yale, 10 Allen, 444. Stokes V. Upper Appomattox Co., 3 ^ Vliet v. Sherwood, 35 Wis. 229 Leigh, 318 ; Chicago Railway Co. v. 38 AVis. 159. Hoag, 90111.339; Ingrahamy. Hutch- * Brace v. Yale, 10 Allen, 444 inson, 2 Conn. 584 ; Eastman v. Thurber v. Martin, 2 Gray, 394 ; Gould Amoskeag Manuf. Co., 47 N. H. 71 ; v. Boston Duck Co., 13 Gray, 451 Flora V. Carbean, 38 N. Y. Ill ; Trask Donnell u. Clark, 19 Maine, 174 V. Ford, 39 Maine, 437 ; Smith o. Parker v. Hotchkiss, 25 Conn. 321 Miller, 11 Gray, 145 ; ICilburn o. Keeney Manuf. Co. v. Union Manuf Adams, 7 Met. 33 ; Hannefin v. Blake, Co., 39 Conn. 576 ; Piatt a.. Johnson 102 Mass. 297 ; Perrin v. Garfield, 37 15 Johns. 218 ; Shreve v. Vborhees, 2 Vt. 310; Arnold v. Stevens, 24 Pick. Green Ch. 25. This is upon the prin- 110; Wilson v. Wilson, 4 Do v. 154. ciple that no prescriptive right is ac- 546 THE LAW OF WATKKS. [PABT 11. mode of controlling and regulating the use of the water essentially interrupts the original and natural flow of the water, and interferes materially with the right of other riparian owners to appropriate and use the water, it is, in its nature, adverse, and, if continued for twenty years, affords a conclusive presumption of a grant of such appropriation and use.^ Where a judgment of ouster is entered, upon a pro- ceeding in the nature of a quo warranto, against a corporation owning a mill privilege, upon which it has erected and maintained a dam, a grantee of the corporation who acquired his title before such judgment was entered, and who has maintained the dam for more than twenty years after the judgment, gains a prescriptive right to maintain the same as against the owner of the land which it flows.^ § 335. In order to support an easement by prescription, the adverse use must have been continuous.^ A person cannot claim an easement in his own land, and the time during which the claimant may have owned or leased the :servient tenement cannot be counted in computing the .length of enjoyment, nor can any length of user of a ditch ■ or dam entirely on one's own land be connected with a . consequential injury resulting therefrom to a neighbor's land . and continued for an insufficient period.* But the times of i-enjqyment by an ancestor and his heir, or by a seller and the ;:piurchaser, may be counted together in order to make up the ' quiredTvhere the person against whom ^ Campbell v. Talbot, 123 Mass. 174. the right is claimed could not have in- ^ Monmouth Canal Co. v. Harford, .terrupted or prerented the exercise 1 C. M. & R. 631; Eaton v. Swansea of the subject of the supposed grant. Waterworks Co., 17 Q. B. 267 ; Ward Webb V. Bird, 13 C. B. n. s. 841 ; Win- v. Robins, 15 M. & W. 237 ; Pollard v. ship V. Hudspeth, 10 Exch. 5 ; Chase- Barnes, 2 Cush. 191 ; Tyler v. Mather, .more v. Richards, 7 H. L. Cas. 349; 9 Gray, 177 ; Bodfish <,. Bodfish, 105 -UnionMillCo.K.Ferris,2Sawyer,170; Mass. 317. Nelson v. Butterfield, 21 Maine, 220. ^ Mansm- v. Blake, 62 Maine, 38; 1 Ibid.; Newhall v. Ireson, 8 Cush. Polly v. McCall, 37 Ala. 20; Round- ,595. The erection of a new and higher tree u. Brantley, 37 Ala. 544; Wilder dam in place of an old one is not an v. Clough, 55 N. H. 359; Reed v. - infringement of another's prescriptive Earnhart, 10 Ired. 510 ; Haag v. Del- ' right to use the water, if such use is orrae, 30 Wis. 594 ; Holland v. Long, 1 not thereby prejudiced. Rogers v. 7 Gray, 486 ; Olney v. Gardiner, 4 M. i Bruce, 17 Pick. 184. & W. 496. CHAP. XI.] PEESCEIPTIOK. 647 requisite period,^ and it is sufficient prima facie proof of a prescription for a general easement, as of a right pf way for all purposes, to show the actual exercise of the right for more than twenty years for all the purposes for which its exercise was required at different times, although for some of those purposes it was first used in fact within that period.^ An occasional suspension or interruption of the enjoyment will not defeat the right, if it arises from such causes as the dryness of the season,^ or a temporary failure to exercise the right to the extent claimed,* or fluctuations in the flow of the stream.^ So an entry by stealth, or for purposes other than those connected with the right to enter, will not break the continuity of exclusive possession in another.® § 336. The diversion of water from a stream by means of a trench is siibstantially continuous, although subject to interruption during a part of each j^ear by the owner of the land through which the trench is dag.'^ Where a pre- scriptive right to flow land is claimed, the question is not whether the claimant alone and exclusively has caused the land to be flowed, but whether he has flowed it uninter- ruptedly for a particular purpose ; and it is, therefore, no objection to the, acquisition of such a right by prescription that the flowing was caused by different dams owned by 1 Sargent v. Ballard, 9 Pick. 251 ; Branch v. Doane, 18 Conn. 233 ; 17 Leonard u. Leonard, 7 Allen, 277 ; Conn. 402. If the different parties do Hill 0. Crosby, 2 Pick. 406 ; Kent v. not claim under the same title, or one "Waite, 10 Pick. 138 ; Melvin v. Whit- of them within the twenty years oc- ing, 13 Pick. 184 ; Williams v. Nelson, cupies by permission of the owner of 23 Pick. 141 ; McFarlin v. Essex Co., the servient tenement, the continuity lOCush. 304; Sawyer t. Kendall, Id. is broken. Winship w. Hudspeth, 10 244; Okeson c. Patterson, 29 Penn. Exeh. 5; Benson v. Soule, 32 Maine, St. 22 ; Benson v. Soule, 32 Maine, 39. 39 ; Perrin v. Garfield, 37 Vt. 309. 2 Dare D. Heathcote, 25 L. J. (n. s.) ^ Winnipisseogee Lake Co. w. Young, Ex. 245 ; Cowling v. Higginson, 4 M. 40 N. H. 436 ; Tyler v. Wilkinson, 4 & W. 245 ; Davies v. Stephens, 7 C. & Mason, 397 ; Perrin v. Garfield, 37 Vt. P. 570. 310. See Curtis u. Angler, 4 Gray, 3 Hall V. Swift, 6 Scott, 167 ; Tyler 547 ; Plympton v. Converse, 42 Vt. V. Wilkinson, 4 Mason, 397 ; Geranger 712 ; Carr v. Foster, 3 Q. B. 581. V. Summers, 2 Ired. 229 ; Haag v. Del- ^ Burrows v. Gallup, 32 Conn. 493. orme, 30 Wis. 591. ' Bolivar Manuf. Co. v. Neponset * Wood o. Kelley, 30 Maine, 47. Manuf. Co., 16 Pick. 241 ; Cowell v. See Bodfish v. Bodfish, 105 Mass. 317 ; Thayer, 5 Met. 257. 548 THE LAW OF WATERS. [PAET 11. different persons, one of whom exercised the right of flowage for the purpose of floating logs, and another for the purpose of working mills.^ If a watercourse is first obstructed by a temporary dam erected to aid in the construction of a permanent dam, which is afterwards built, and not as a means of enjoying or appropriating the water for any of the purposes , for which the second dam is intended, the main- tenance of the temporary dam is not an assertion of a permanent right to raise the water, and the time during which it is maintained is not to be computed as part of the period of prescription for setting back the stream.^ So if a dam is permitted to be out of repair for an unreasonable time, as for one or more years, during which the land above is not flowed, the prescriptive right of flowage is interrupted and must begin anew.* § 337. The user to be adverse must be attended by such circumstances of notoriety that the person against whom the right is exercised may have reasonable notice that the right is claimed against him, and be enabled to resist its acquisition before the period of prescription has elapsed.* Thus, the occasional use of flash boards for brief periods, when little or no injury may be done, does not amount to that open and uninterrupted use which is required.* Such boards may be used so continuously as to make them a part of the permanent structure, and by such user a right to flow to the height of such boards may be acquired;^ but then- use only during times of low water, though for more than twenty years, does not justify keeping the water to the height of such boards during the whole year.''' It is a ques- ' Davis V. Brigham, 29 Maine, 391 ; Co., 52 N. H. 262 ; Solomon v. Vint- Kent V. Waite, 10 Pick. 138. ners' Co., 4 H. & N. 602; O'Neil u. '^ Branch v. Doane, 17 Conn. 402, Blodgett, 53 Vt. 213. 419 ; 18 Conn. 233. See Durgin c. 6 pierce v. Travers, 97 Mass. 306 ; Leighton, 10 Mass. 56. Marcly v. Shults, 29 N. Y. 346 ; Hall v. 3 Carlisle v. Cooper, 19 N. J. Eq. Augsbury, 46. N. Y. 622 ; Carlisle v. 256 ; Metz u. Darney, 25 Penn. St. Cooper, 21 N. J. Eq. 696. 519; Barber v. Nye, 65 N. Y. 221; « Ibid. Olney v. Gardiner, 4 BI. & W. 500. ' Ibid. ; Marcly v. Shults, 29 N. Y. See Dana v. Valentine, 5 Met. 8. 346. * Gilford V. Witinipisseogee Lake CHAP. XI.] PRESCRIPTION. 649 tion of fact for the jury whether such user has established the right ;^ and if within twenty years the claimant has been ordered by an upper proprietor to remove the flash boards from his dam, and has acquiesced and admitted that he had no right to use them, the presumption of a grant is defeated.^ The maintenance of a mill-dam is an act of sufficient notoriety to raise a presumption of knowledge on the part of the laud-owner;^ but the long-continued use of a drain beneath different houses would not give rise to such presumption, if the course of the drain was not known to any of the owners of the houses.* If the water in a mill- pond gradually subsides in consequence of the decay of the dam, the owner of an adjoining meadow, who has title to' the edge of the pond when full, and whose cattle wander from the meadow over the bottom of the pond, does not . thereby acquire title by adverse possession to the bed of the pond in the absence of further notice of such a claim to its owner.^ § 338. The enjoyment must also be as of right, and not by license or merely permissive.® " If," says Chapman, J.,'' " the use of a way is under a parol consent given by the owner of the servient tenement to use it as if it were legally conveyed, it is a use as of right.^ So an occupation of land under a parol gift from the owner is an occupation as of right.* So if under a parol contract by a tenant in common.^* 1 Noyes v. Silliman, 24 Conn. 15; McLeod, 2 Met. (Ky.) 98; Wiseman w. Branch v. Doane, 18 Conn. 233 ; 17 Lucksinger, 84 N. Y. 31 ; Corning v. Conn. 402 ; Pollard v. Barnes, 2 Cush. Troy Iron Factory, 40 N. Y. 191 ; Bab- 191- cock V. Utter, 1 Keyes, 391, 115; 1 ^ Sumner v. Tileston, 7 Pick. 198. Abb. Dec. 27 ; Ingraham v. Hough, 1 5 Perrin v. Garfield, 37 Vt. 311. Jones, 39 ; Winter c. Winter, 8 Nev. * Carbrey v. Willis, 7 Allen, 368 ; 129. The mere fact that the use be- Hannefiu v. Blake, 102 Mass. 297. gan in a trespass does not show that * Eddy V. St. Mars, 53 Vt. 462. it was not continued under a claim of 8 Cholmondeley v. Clinton, 2 Jac. & right. Sibley v. Ellis, 11 Gray, 417. W. 1 ; Bright V. Walker, 1 C. M. & ' Stearns v. Janes, 12 Allen, 582. E. 219; Baker v. Boston, 12 Pick. « Ashley v. Ashley, 4 Gray, 197; 184; White t-. Chapin, 97 Mass. 101 ; Kimbrall (,-. Walker, 7 Rich. (S. C.) Kilburn v. Adams, 7 Met. 33 ; Paine v. 422. Hutchins, 49 Vt. 317 ; Postlethwaite « Sumner ^■. Stevens, 6 Met. 337 ; ». Payne, 8 Ind. 104 ; Mebane v. Legg v. Horn, 45 Conn. 415. Patrick, 1 Jones (N. C.) 23; Hall v. " Leonard i'. Leonard, 10 Mass. 281. 550 THE LAW OF WATERS. [PAET II. In such cases the law presumes, after the lapse of twenty years, that a legal conveyance was made. But the character of the use or occupation depends upon the language used and the manner of the enjoyment. If the language is such as to create only a license or a lease, the enjoyment is regarded as permissive, and not as of right, and no title is acquired by it." ' § 339. The presumption of a grant is rebutted if the person prescribing for the easement acknowledges the right of the owner within the twenty years, though he does it under a mistake of his own rights.^ So the asking leave to exercise the right from time to time within the period of prescription breaks the continuity of the enjoyment as of right, inasmuch as each asking of leave is an admission that, at that time, the person so asking had no title ; ^ but the right, when fully established by adverse use, is not lost by asking and receiving a license from the original owner, although this may, in case of doubt, be strong evidence that the previous use was not under a claim of right.* It is not necessary that there should be an express claim of the right by the person who enjoys it, or an express admission of the right by the owner of the land.^ In Outram v. Maude,^ the plaintiff was yearly tenant, from 1791 to 1836, of an under- ground channel for conducting water from the plaintiff's mill through the landlord's land. This demise was determined in 1836, and a demise of a new channel, for pure water only, continued in force until 1867, when it was determined by the ' Cheever v. Pearson, 16 Pick. 266. takes possession under a parol agree- 2 Mitchell V. Walker, 2 Ark. (Vt.) ment for a purchase, and pays for the 266. land, or purchases it and takes a deed 3 Monmouthshire Caual Co. v. Har- which is defective, the ensuing pos- ford, 1 C. M. & R. 614 ; 5 Tyrwh. 68 ; session of the purchaser is prima facie Tickle V. Brown, 4 Ad. & El. 369, 382 ; under a claim of title in himself, and Beasley v. Clarke, 2 Bing. N. C. 705, is, therefore, adverse. South School 709; Watkins v. Peck, 13 N. H. 360; District v. Blakeslee, 13 Conn. 235. Pierce v. Cloud, 42 Penn. St. 102. * Tracy v. Atherton, 36 Vt. 603; Any possession of land which is ac- Perrin !■. Garfield, 37 Vt. 304. companied by the recognition of a ^ Blake v. Everett, 1 Allen, 248 ; superior title still existing, is not ad- Johnson o. Gorham, 38 Conn. 513 ; verse to that title. Griswold o. But- Law v. McDonald, 9 Hun, 23. ler, 3 Conn. 246. But when a person o 17 Ch. D. 391 ; 29 W. E. 818. CHAP. XI.j PEESCKIPTION. 551 defendant, the landlord's successor. The plaintiff, however, continued to use the old channel for foul water from 1836 to 1879. It was held that, being a tenant, he had not acquired an easement by prescription in the old channel, although the user thereof was uninterrupted. § 340. Prescriptions niaj be upon condition in restraint of the mode in which the prescriptive right is to be enjoyed, or have annexed to them a duty to be performed for the benefit of the person against whom the prescription exists.^ So, there may be a negative as well as an affirmative ease- ment in another's land acquired by adverse enjoyment. If a prescriptive right has been gained to divert a stream from its natural channel, the proprietors below along that channel may claim exemption from having their lands overflowed or their mills injured by tlie restoration of the water to its natural course.^ In Felton v. Simpson,^ the Supreme Court of North Carolina held that tiie owner of land protected by a dam which ponded the water in heavy falls of rain until it was drained off by ditches leading from the pond through the plaintiff's land, could not gain a prescriptive right to the benefit of this protection, inasmuch as there was nothing which could be granted, and no adverse possession of any- thing which, without a grant, would expose the party to an action. The submission to the exercise of an easement by the owner of the dominant estate, for his own purposes and in his own way, does not necessarily give the servient owner a right to the continuance of the easement imposed, because it is attended with incidental advantages to the latter ; but the former may, if he chooses, cease to exercise it entirely.* 1 Brook V. Willett, 2 H. Black. 224 ; closed which has been closed for Paddock v. Forrester, 3 Man. & G. 903 ; twenty years. Drewett v. Sheard, 7 Gray's Case, 5 Rep. 79 ; Carlisle y. C. & P. 465. Cooper, 21 N. J. Eq. 597 ; Mitchell v. ^ 11 Ired. 84. Walker, 2 Aik. (Vt.) 270; Watkins v. * Beeston v. Weate, 5 El. & Bk. Peck, 13 N.-H. 360, 375. 986 ; Magor v. Chadwick, 11 Ad. & El. ^ Shepardson v. Perkins, 58 N. H. 571 ; North Eastern Railway v. Elliot, 354; Middleton ^. Gregorie, 2 Rich. 1 John. & H. 154; Arkwright v. Gell, (S. C.) 631, 638; Delaney v. Boston,- -5 M. & W. 203; Wood v. Waud, 3 2Harr. (Del.) 489; Belknap y. Trim- Exch. 748; Greatrex y. Hayward, 8 ble, 3 Paige, 577. So of the right to Exch. 291 ; White v. Chapin, 12 Allen, keep the end of an ancient ditch 516 ; Yale v. Brace, 99 Mass. 488. 552 THE LAW OF WATERS. [PAET 11. An active enjoyment for more than the statutory period is not an enjoyment as of right, if during the period it was known that it is only permitted so long as some particular purpose was served. Where a canal company was authorized, hut not required, hy statute to divert the waters of a stream, which they did for a period of forty years, it was held that the riparian proprietors below on the stream had no right to insist that the diversion should be continued for their benefit, although the natural channel had meanwhile been choked up, and the restoration of the water to that channel caused their lands to be overflowed in times of flood.^ § 341. In order to make the use of an easement for twenty years conclusive of the right, the person who claims it has the burden of proof to establish that the use was adverse, uninterrupted, and known to the owner of the land, and each of these essential ingredients to the maintenance of the claim may be contradicted and disproved.^ If the possession is adverse, the jury should regard it as strong ground on which to found the presumption of a grant.^ K the use of the easement for twenty years is unexplained, it will be presumed to be under a claim of right, and adverse, and be sufficient to establish a title by prescription, and it is incumbent upon the owner of the servient tenement to show that the use was under some license or special contract inconsistent with a claim of right.* So proof of a qualified ^ Mason v. Shrewsbury Kailway ■• White v. Chapin, 12 Allen, 516, Co., L. R. 6 Q. B. 578 ; Arkwright u. 519 ; Perrin o. Garfield, 37 Vt. 310 ; Gel!, 5M. &W. 220;Greatrext,-. Hay- Hammond v. Zehner, 21 N. Y. 118; ward, 8 Exoh. 291 ; ante, § 225. Law v. McDonald, 9 Hun, 23 ; Melvin 2Haight o. Price, 21 N. Y, 241; i;. Locks & Canals, 16 Pick. 137 ; White Bradley Fish Co. v. Dudley, 87 Conn. v. Loring, 24 Pick. 319 ; G arrett i'. Jack- 136, 148 ; Smith v. Miller, 11 Gray, son, 20 Penn. St. 331 ; Steffy v. Car- 149 ; Carlisle u. Cooper, 19 N. J. Eq." penter, 37 Penn. St. 41 ; Wilson «. Wil- 256 ; American Co. v. Bradford, 27 son, 4 Dev. 154 ; Cross v. Lewis, 2 B. Cal. 360 ; Miller d. Stowman, 26 Ind. & C. 686 ; Miller v. Garlock, 8 Barb. 143 ; Ogle v. Dill, 55 Ind. 130. 153 ; Hart v. Vose, 19 Wend. 365. The ^ Campbell v. Wilson, 3 East, 303 ; force of the presumption is not dimin- BuUen c. Runnels, 2 N. H. 255 ; Ste- ished when the owners of the two tene- vens V. Taft, 11 Gray, 33; Chalk v. ments claim under a common grantor. McAlily, 11 Ricli. 153 ; Esling v. Wil- White i;, Chapin, 12 Allen, 520. liams, 10 Penn. St. 126. CHAP. XI .] PEESCEIPTI03Sr. 553 right as to time is to be produced by the party who claims that it was so qualified.^ Under the foregoing rules the presumption of a grant, according to the circumstances of each case, is to be generally regarded as one of fact and not of law.^ § 342. Rights gained by prescription are limited in extent by the previous enjoyment, and cannot be materially varied to the injury of others,^ unless the new use has been the same continuously for a long period of years, and is itself a pre- scriptive right,* The long enjoyment of a ditch raises no presumption of the right to use another ditch which differs therefrom in an appreciable degree, either in locality or dimensions.^ Where certain mill-owners had maintained a dam across a river for thirty years, and taken the water through a village in an artificial channel which ran by the side of a highway and within its limits, it was held that the town was entitled to recover damages for injury to the high- way caused by an increased flow of the Avater in the channel resulting from a higher and tighter dam erected in place of that first built.^ So, the right to use an artificial ditch through another's land for irrigation, with the privilege of entering and clearing the same, does not justify the conver- sion of the ditch into the tail-race of a mill, and its enlarge- ment and deepening for that purpose." Where the user consists in taking fish on a beach without a capstan and reel. 1 Matter of Water Commissioners, v. Lane, 37 Barb. 244 ; Prentice u. 4 Edw. Ch. 545 ; Pinch v. Eesbridger, Geiger, 74 N. Y. 341 ; Baldwin v. 2 Vernon, 391. Calkins, 10 Wend. 167 ; Peterson v. 2 Townsend v. Downer, 32 Vt. 183 ; McCullougli, 50 Ind. 35 ; Mitchell v. Bradley Fish Co. „. Dudley, 37 Conn. Parks, 20 Ind. 354. 136. < Prentice v. Geiger, 9 Hun, 350 ; 3 Bealy v. Shaw, 6 East, 208 ; Brown 74 N. Y. 341 ; Cotton v. Pocasset V. Best, 1 Wils. 174 ; Strutt ;,■. Boving- Manuf . Co., 13 Met. 429 ; Stein u. don, 5 Esp. 56 ; Crossley v. Lightowler, Burden, 24 Ala. 130. L. E. 2 Ch. 478 ; L. E. 3 Eq. 279 ; ^ Porter v. Durham, 74 N. C. 767. Carlisle v. Cooper, 21 N. J. Eq. 594 ; « Shrewsbury v. Brown, 25 Vt. 197 , 19 Id. 256 ; 17 Id. 525 ; Norway Plains Darlington v. Painter, 7 Penn. St. 473. Co. V. Bradley, 52 N. II. 86, 103 ; Eus- ^ Darlington v. Painter, 7 Penn. St. sell „•. Scott, 9 Cowen, 279 ; Wilklow 473. 554 THE LAW OF WATERS. [PART II. this does not authorize setting up a capstan and reel on such beach for the purpose of taking fish more conveniently.^ § 343. The extent of the right of flowage acquired by adverse enjoyment over another's land is not determined by ascertaining how long the claimant's dam or mill has been in existence, or by the claim which he makes during the period of prescription.^ The question is not how high the dam is, but whether the water has been held during the requisite period so high as to affect the land flowed as injuriously as it did at the time when the owner of such land brings his action,^ and it is incumbent upon the claimant to show that his privilege entitles him to pond it as high as at present.* The period of limitation begins to run from the time when the land was first flowed or received actual injury, and not from the erection and completion of the dam.* To an action for damages by the owner of land adjoining a river, for obstructing the river and causing the water to overflow his lands, the defendant pleaded that he was possessed of a mill near said lands, and that for twenty years the occupiers thereof enjoyed, as of right and without interruption, the right of maintaining a weir and mill-dam across the river, and penning back the water for said mill, and that the grievances were a user by the defendant of this right. This 'Hart V. Chalker, 5 Conn. 311. ^itid.; Postlethwaite v. Payne, 8 See Melvin v. Whiting, 13 Pick. 184 ; Ind. 104 ; Mentz v. Darney, 25 Penn. McFarlin y. Essex Co., 10 Cush. 304. St. 519; Stiles v. Hooker, 7 Cowen, 2HuIme u. Shreve, 3 Green Ch. 266 ; Ellington w. Bennett, 59 Ga. 286 ; 116 ; Carlisle v. Cooper, 21 N. J. Eq. Smith v. Russ, 17 Wis. 227. A claim 594 ; 19 Id. 256 ; 17 Id. 525 ; Horner by grant differs from one by prescrip- V. Stillwell, 35 N. J. L. 307 ; Burnham tion, in that the right of the grantee V. Kempton, 44 N. H. 78 ; Bucklin v. in the grant is not affected by the fact Truell, 54 N". H. 122 ; Russell v. Scott, that he has not at all times exercised 9 Cowen, 279 ; Baldwin v. Calkins, 10 his privilege to its full extent. Lacy Wend. 107 ; Rogers v. Bruce, 17 Pick. v. Arnett, 33 Penn. St. 169. 184 ; O'Brien r. Enright, Ir. R. 1 C. ^ Morris v. Commander, 3 Ired. 510. L. 718; Flight u. Thomas, 10 Ad. & 6 Hurlburt w. Leonard, Brayt. (Vt.) El. 590 ; Smith v. Russ, 17 Wis. 227 ; 202 ; Nelson u. Butterfield, 21 Maine, Sabine w. Johnson, 35 Wis. 185, 202; 220; Wentworth v. Sanford Manuf. Powell V. Lash, 64 N. C. 456 ; Jenkins Co., 33 Maine, 547 ; Delaware Canal V. Conley, 70 N. C. 353; Grigsby v. Co. i.. Wright, 21 N". J. L. 469. Clear Lake Co., 40 Cal. 407. CHAP. XI.J PEESCRIPTIOX. 555 plea was held to be bad, as it did not allege previous user that caused damage to the plaintiff's lands.^ § 344. The general rule is that the height of the dam, when in good condition and repair, including such parts and appendages as make its efficient height in its ordinary action and operation, fixes the extent of the right to flow, without regard to fluctuations in the flowage which are due to accidental causes, such as a want of the usual repairs, or variations in the stream caused by drought or in the pondage of the dam by its being drawn down by use.^ This rule regulates the right of the owner of a dam who claims by prescription.^ The owner of the easement is not bound to use the water in the same manner, or to apply it to the same mill or the same purpose.* He may at his pleasure make alterations or improvements or increase the capacity of the machinery which is propelled by the water, if the burden upon the servient tenement is not increased.^ So, it is not necessary that the dam should have been maintained for the 1 O'Brien v. Enright, Ir. E. 1 C. L. Gray, 86 ; and is disapproved in Wis- 718; 15 W. R. 637. consin and New Hampsliire. Smith u. 2 Carlisle v. Cooper, 21 N. J. Eq. Russ, 17 Wis. 227 ; Sabine v. Johnson, 595 ; Cowell v. Thayer, 5 Met. 253, 35 Wis. 185 ; Burnham v. Kempton, 44 258 ; Bliss v. Rice, 17 Pick. 23 ; Jack- N. H. 90 ; Griifin v. Bartlett, 55 N. H. son !). Harrington, 2 Allen, 242; Gil- 123; Carlisle v. Cooper, supra. The ford V. Winnipisseogee Lake Co., 52 height of a dam should be fixed by N. H. 202 ; Manier v. Myers, 6 B. Mon. experiment, not by theoretical con- 134; Winnipisseogee Lake Co. v. elusions based upon surveys. Decorah Young, 40 N. H. 420 ; Viekerie u. Woolen Co. u. Greer, 58 Iowa, 86 ; 49 Buswell, 13 Maine, 289 ; Wood u. Iowa, 490 ; ante, § 209. Kelly, 30 Maine, 47 ; Alder v. Savill, ^ Daniels v. Citizens' Savings In- 5 Taunt. 454 ; Gerenger v. Summers, stitution, 127 Mass. 534. 2 Ired. 229; Baker v. McGuire, 53 * Luttrell's Case, 4 Rep. 87 ; Saund- Ga. 245 ; Maguire v. Baker, 57 Ga. ers v. Newman, 1 B. & Aid. 258 ; Hale 109; Lane v. Miller, 27 Ind. 534. In v. Oldroyd, 14 M. & W. 789; Baxen- Cowell V. Thayer, 5 Met. 258, it was dale t,. McMurray, L. E. 2 Ch. 790 ; held that the right to maintain a par- Hall y. Swift, fl Scott, 167 ; Whittier ticnlar dam, acquired by prescription v. Cocheco Manuf. Co., 9 N. H. 454 ; or grant, includes the right to tighten Casler v. Shipraan, 35 N. Y. 533 ; Big- and repair such dam, although the low v. Battle, 15 Mass. 513 ; Miller v. consequence may be a greater flowing Lapham, 46 Vt. 525 ; McDonald v. than had been usual. This rule does Bear River Co., 13 Cal. 220. not apply when there is an express ^ Ibid, agreement ; Short v. Woodward, 13 ^56 THE LAW OF WATERS. [PAET II. whole period upon the same spot, if the lines of the actual enjoyment of the easement are not changed.^ The right to keep up the dam may be subject to limitations during a part of each year. If the modification of the right to flow is for the haying season, or the period required for the getting off of the hay from the meadow below, the extent of that modi- fication is measured by the time reasonably required in each year for that purpose, and not by the extreme limits of time over which the haying season may have extended in any of the different years during the acquisition of the right.^ § 345. The right to pollute a stream to a greater extent than is permissible of common right may be acquired by prescription.^ So may the right of placing cinders and other refuse of works on the banks and bed of a stream.* A tanner does not acquire the right to deposit bark upon the land of a lower proprietor by the continued casting of the bark into the stream for twenty years, unless it has been annually deposited on such land during the whole of that period.^ So, the mere use for the statutory period of a ditch, the washings of which cause an accumulation of sand in a stream, and a consequent flooding of the plaintiff's land, does not establish an injury to such land during the same length of time.^ As the right is measured by the enjoyment, one proprietor cannot acquire a right by prescription to pollute the stream to a greater extent than it was polluted at the ' Davis V. Brigham, 29 Maine, 391 ; Lewisham, 11 Jur. (N. S.) 340; Warren Stackpole v. Curtis, 32 Maine, 383 ; v. Hunter, 1 Pliila. 414. Carlisle v. Cooper, 21 N. J. Eq. '595; * Murgatroyd u. Eobinson, 7 E. & Ogle V. Dill, 55 Ind. 130 ; Johnson u. B. 391. Eand, 6 N. H. 22. 5 Crosby v. Bessey, 49 Maine, 539. 2 Powers V. Osgood, 102 Mass. 457 ; A grant of land for a tannery with the Eay V. Fletcher, 12 Cush. 200 ; Daniels right to take water from the grantor's V. Citizens' Savings Institution, 127 mill-pond, " for carrying away the Mass. 534. spent bark," does not confer the right ^ Crossley v. Lightowler, L. R. 3 to discharge the bark into the stream, Oh. 478; L. R. 3 Eq. 279; Wood v. so that it will lodge upon the grantor's Waud, 3 Exch. 748 ; Carlyon o. Lov- premises, or obstruct the flow of the ering, 1 H. & N. 784 ; Moore u. Webb, water. Winchester v. Osborne, 01 N. 1 C. B. N. s. 673; Wright v. Williams, Y. 555; reversing s. c. 62 Barb. 337. 1 M. & W. 77 ; Attorney General u. '^ Cooper v. Barber, 3 Taunt. 99 ; Halifax, 39 L. J. Ch. 129 ; Cater v. Roundtree v. Brantley, 34 Ala. 544. CHAP. XI.] PRESCRIPTION. 557 commencement of the twenty years.^ " It may be difficult," says Lord Chelmsford, L.C.,^ " to fix a limit to such a right •where the quantity of fouling to which the prescription extends has not been far exceeded, but where the excess is considerable the proof will be comparatively easy. The user which originated the right must also be its measure, and it cannot be enlarged to the prejudice of any other person." § 346. In order to establish such a right, there must be a perceptible amount of injury throiighout the statutory period, and, if M'ithin that period, it appears, upon a bill for an injunction, that some degree of present nuisance exists, the court will take into account its probable continuance and increase.® If a prescriptive right to pollute is proved, it is not sufficient for the plaintiff to show that the defendant uses in his mill materials different from those formerly employed, but he must show a greater amount of pollution and injury arising from the use of the new materials.* If it has been the practice to throw only saw-dust into a stream, this does not establish the right of discharging into it poisonous and noxious drugs.^ A prescriptive right may also be acquired to go upon another's land for the purpose of cleansing a watercourse, or for purposes connected there- with, under a claim of right to the watercourse itself.^ § 347. The general rule is that when an easement is created by grant or reservation, no use of it will be held to be adverse which substantially conforms to such grant or 1 Crossley v. Lightowler, L. R. 2 Leeds Corporation, L. E. 5 Ch. 583, Ch. 478 ; L. R. 3 Eq. 279 ; Moore 596 ; Pennington v. Brinsop Hall Coal t. Webb, 1 C. B. x. s. 673 ; McCallum Co., 5 Ch. D. 769; Murgatroyd v. V. Germantown Water Co., 54 Penn. Robinson, 7 El. & Bk. 391. St. 40 ; Jones u. Crow, 32 Penn. St. * Baxendale v. McMurray, L. R. 2 398 ; Holsman v. Boiling Spring Ch. 790 ; Luttrell's Case, 4 Rep. 86. Bleaching Co., 14 N. J. Eq. 335, 346. ^ Holsman u. Boiling Spring Bleach- 2 L. R. 2 Ch. 481. ing Co., 14 N. J. Eq. 335, 346. SGoldsmid o. Tunbridge Wells "Peter v. Daniel, 5 C. B. 568; Commissionors, L. R. 1 Ch. 349 ; L. Beeston v. Weate, 5 E. & B. 986. R. 1 Eq. 161 ; Attorney General v. 558 THE LAW OF "WATERS. [PAET H. reservation, and can be construed to be consistent with its terms.^ When an express grant is made of the right to use the water for a particular purpose, the grantee may acquire a prescriptive right to use it for a different purpose.^ In Wheatley v. Chrisman,^ the right was granted by an upper to a lower proprietor to divert water from a stream for the irrigation of meadows, and the grantee used the diverted water for more than twenty-five years for watering horses and cattle. The mining operations of the upper proprietor, rendering the water unfit for the latter purpose, were held to be an infringement upon the prescriptive right of the lower proprietor to apply the water to that use. The court said : " When an easement is granted for one purpose, and the grantee exercises the right mentioned in the deed, and another right als6, he is not less secure against all interrup- tion of either than he would have been if no express grant at all had been shown. It is as easy to presume another grant for watering horses, superadded to that for watering meadows, as it would have been, in the absence of any deed, to presume that there wiis a grant for both together. If one man has a right of way over another's field, which he has exercised without interruption for twenty-one years, it will scarcely be contended that his right could be destroyed by showing that he had a deed for a similar right of way over a different field. It is almost equally clear that if I grant a right to pass over my land on foot, and the grantee, instead of confining himself to that mode of passage, goes over it continually, for twenty-one years, with wagons and horses, a grant for the latter purpose ought to be presumed in addition to that of the footway." § 348. After the acquisition of an easement by prescrip- tion is comjjlete, it may be lost by abandonment, when the facts or circumstances clearly indicate such an intention.* 1 Atkins V. Boardman, 20 Pick. 291 ; » 24 Penn. St. 298. 2 Met. 457 ; Gayetty v. Bethune, 14 * Carlisle v. Cooper, 19 N. J. Eq. Mass. 49 ; Barber u. Nye, 65 N. Y. 256 ; 21 N. J. Eq. 576 ; Shields v. 211, 221. Arndt, 3 Green Cli. 234 ; Doe o. Hil- 2 Olmsted v. Loomis, 9 N. Y. 423. der, 2 B. & Aid. 791 ; Jamaica Pond CHAP. XI.J PRESCRIPTION. 559 Non-user is one element in determining such intention, and if long continued, is presumptive evidence that the right is lost.^ But a jury is not bound to infer an abandonment from non-user alone, though continued for more than twenty- years.^ If the non-user was merely for the convenience of the owner of the dominant tenement and those under whom he claims, and without any intention to abandon the right, such right still continues ; ^ and if the non-user is not accom- panied by acts showing an intention to abandon, evidence of adverse possession, as well as non-user, is necessary to effect the extinguishment.* In Crossley v. Lightowler,® it was held that the actual disuse of a prescriptive right to foul a stream for twentj'' years, during which time others had S;quired adverse rights, destroys the right of fouling. In Chandler v. Jamaica Pond Aqueduct Corporation,^ it was decided that the uninterrupted occupation of the land in question, for more than twenty years, under a claim of a title in fee, was an adverse use of the servient tenement, inconsistent with the existence of an easement established by grant, to raise a dam, and to check, impede, and use the water flowing through the land, and thus to flow it, and that the easement was extinguished. A misuse of an ease- ment, however great the perversion, is not an abandonment ; '' Aq^ueduct v. Chandler, 121 Mass. 3 ; ^ Veghte v. Raritan Water Power Parkins v. Dunham, 3 Stroh. 224. Co., 19 N. J. Eq. 141 ; 21 N. J. Eq. 1 Hillary v. Waller, 12 Ves. 265; 403; Browne v. Trustees, 37 Md. 119; Farrar v. Cooper, 34 Maine, 394. Wright v. Freeman, 5 H. & J. 407, 2 Veghte V. Raritan Water Power 477 ; Harvie v. Rogers, 3 Bligh, n. s. Co., 19 N. J. Eq. 141 ; 21 N. J. Eq. 440 ; Pillsbury a. Moore, 44 Maine, 468 ; Barnes v. Lloyd, 112 Mass. 231 ; 154 ; Cuthbert v. Lawton, 3 McCord, Bannon v. Angier, 2 Allen, 129 ; Pratt 195 ; Smyles v. Hastings, 22 N. Y. 217. 1^. Sweetser, 68 Maine, 344 ; Maguire ^ l. R. 2 Ch. 478 ; L. R. 3 Eq. 277 ; V. Baker, 57 Ga. 109 ; Townsend «. Ward v. Ward, 7 Exoh. 838 ; Cook v. McDonald, 12 N. Y. 381 ; Nitzell c. Bath, L. R. 6 Eq. 178. Paschall, 3 Rawle, 76. A release of '^ 125 Mass. 544 ; Owen v. Field, the original right will be inferred 102 Mass. 90; Barnes o. Lloyd, 112 from non-user, though not extend- Mass. 224; Jennison o. Walker, 11 ing over twenty years, when a way Gray, 423 ; 3 Kent Com. 448 ; Hoff- ie substituted for a previous way with man v. Savage, 15 Mass. 130 ; Boards- the consent of the person entitled, lee v. French, 7 Conn. 125. Mulville V. Fallow, Ir. R. 6 Eq. 458. ' Locks & Canals v. Nashua & 3 Horner o. Stillwell, 35 N. J. L. Lowell Railroad Co., 104 Mass. 8. 307 ; Ward u. Ward. 7 Exch. 838. 660 THE LAW OP -WATERS. [PAET II. and an easement does not become merged or lost by the assertion of a claim which is inconsistent therewith, as by a disseisin or wrongful claim of title against the owner of the servient tenement.^ After the extinguishment of an ease- ment the purchaser of the dominant tenement has no remedy against one who, after such extinguishment, has purchased the servient tenement.^ § 349. If the period of twenty years has not elapsed, the acts of the owner of one tenement, which are acquiesced in by the owner of the other, are often material on the question of abandonment, and may create an equitable estoppel.^ The creation by the parties of a new right, which is incoji- sistent with the nature or exercise of the servitude, however acquired, extinguishes the former right.* If tenants in common make partition of lands theretofore flowed by a dam, and execute mutual releases, in each of which the grantor conveys all his "right, title, and interest" in the land, and agrees that neither the grantor, nor his heirs, nor any person claiming under him or them shall "claim or demand any right or title to the aforesaid premises or their appurtenances, or to any part or parcel thereof forever," the mill privilege is thereby voluntarily abandoned and -ex- tinguished.^ The owner of land flowed by a dam, who permits it to be several times rebuilt without opposition, and who encourages by his silence the expenditure of money and labor thereon, is deprived of the right to the interference of a court of equity to restrain the rebuilding of the dam.^ 1 Ibid. ; Tyler v. Hammond, 11 Mowry v. Sheldon, 2 R. I. 369 ; Mor- Pick. 193, 220 ; White's Bank v. rill r. Mackman, 24 Mich. 279. Nichols, 64 N. Y. 65. * Taylor v. Hampton, 4 McCord, 2 Ballard v. Butler, 30 Maine, 94. 96 ; Illinois Central Eailroad Co. v. 8 Queen v. Charley, 12 Q. B. 573 ; Allen, 39 111. 205. Stokoe V. Singers, 3 El. & Bk. 31 ; ^ Hamilton v. Tarrar, 128 Mass. Davies v. Marshall, 10 C. B. n. s. 097 ; 492. Case of the watercourses, 2 Eq. Cas. '' Sheldon v. Rockwell, 9 Wis. 167 ; Air. 522 ; Johnson v. Hyde, 33 N. J. Thomas v. Woodman, 23 Kansas, 217 ; Eq. 643; Carlisle „. Cooper, 21 N. J. Wilson v. Vaughn, 40 Iowa, 179; Ja- Eq. 591 ; Society v. Lehigh Valley cox v. Clark, Walk. Ch. 249. See Eailroad Co., 32 N. J. Eq. 329 ; Haight Fremont Ferry Co. v. Dodge County, V. Proprietors, 4 Wash. C. C. 601 ; 6 Neb. 18. Hazard u. Robinson, 3 Mason, 275 ; CHAP. XI.J PRESCEIPTIOK. 561 Where the plaintiff, being the owner of land overflowed by the defendant's dam, told the defendant, before the erection of the latter's dam and mill, that the stream had a sufficient fall, and that he had levelled it, and then stood by and without objection saw the mill and dam erected at great expense, an injunction was refused to enjoin the maintenance of the dam and to obtain its removal.^ § 350. In Birmingham Canal Co. v. Lloyd,^ the plaintiffs, who had the use of certain reservoirs, were notified by the defendants, owning coal mines, that they intended to make a level on their mines, the effect of which would be to draw off the water in the reservoirs. After the defendants had commenced their work and expended about two thousand pounds, and nearly two years after the notice was given, the plaintiffs applied for an injunction. Lord Eldon said that the plaintiffs' opposition should have been made when they could have done so with justice, and that they must now take their chances at law. In Farrar v. Cooper,^ it was held that, although twenty years may not have elapsed from the time of ceasing to use a mill privilege, prior to its being overflowed and destroyed by a lower dam, yet an abandon- ment of the upper privilege may be presumed, if its owner, witnessing the erection of the lower dam and of expensive works in connection therewith, and knowing that it must destroy his privilege, makes no effort to prevent it, or claim for remuneration, within the residue of the twenty years. In Corning v. Troy Iron Factory,* it was held that the owner of a water privilege who assents to the erection by another of expensive machinery for the diversion of water above him on the stream is not thereby estopped, upon afterwards purchasing the land on the stream opposite such machinery, -from insisting upon the restoration of the water to its natural channel along the land so purchased. So, a license to overflow the plaintiff's land is not to be presumed from the fact that the plaintiff did not object to the bmlding of 1 "Wilson V. Vaugh, 40 Iowa, 179. » 34 Maine, 394. " 18 Ves. 515. 1 40 N. Y. 191. 562 THE LAW OP WATERS. [PAKT II. the dam, and gratuitously assisted in its erection, if he did not know and could not foresee the injury.^ A land-owner who sees the erection of a dam, by which the water will be flowed back to his injury, is not bound to give notice to the owner of the dam if the latter knows his rights or has means of knowing them, and obstinately proceeds with the work.^ The acceptance, within twenty years, of a deed which grants a mill-site, and recites the existence of another mill-site above it, but does not show that the upper site had a prior right in ,the use of the water, does not estop the grantee from asserting the abandonment of the upper site by non-user.^ § 351. When an easement is once established by grant, or by prescription which presupposes a grant, it cannot be extinguished by a parol agreement,* at least, if such agree- ment is unexecuted.^ In the case of an express grant, the same period of time and the same acts of enjoyment are necessary for the acquisition of rights, adverse to the exist- ence of the easement, that are required in order to establish an easement by prescription.^ It would seem that a title acquired by prescription is as strong as a title acquired by grant, and that, where no element of estoppel enters into the 1 Bell V. Elliott, 5 Blackf . 113. N. Y. 217 ; Casler v. SHpman, 35 N. 2 Hepburn v. McDowell, 17 S. & R. Y. 542 ; Jewett v. Jewett, 16 Barb. 383 ; Brown v. Spalding, 1 Pitts. 361. 150 ; Townsend r. McDonald, 12 N. 3 Farrar v. Cooper, 34 Maine, 394. Y. 381 ; Doe v. Butler, 3 Wend. 149; * Pue V. Pue, 4 Md. Ch. Dec, 386 ; Maguire v. Baker, 57 Ga. 109 ; Kit- Dyer V. Sanford, 9 Met. 395 ; Bronson zell «. Paschall, 3 Rawle, 76 ; Butz i-. V. Coffin, 108 Mass. 186. Ihrie, 1 Eawle, 218 ; Teakle v. Nace, 6 Dyer v. Sanford, 9 Met. .395; 2 Whart. 123; Noll ». Dubuque Eail- Pope V. Devereux, 5 Gray, 412 ; Morse road, 32 Iowa, 66. An easement V. Copeland, 2 Gray, 304 ; Curtis u. created by grant does not become ex- Noonau, 10 Allen, 409 ; Wallis v. Har- tinguished merely because the neces- rison, 4 M. & W. 538 ; Bannon u. sity for its use has ceased. Atlanta Angier, 2 Allen, 128. Mills v. Mason, 120 Mass. 244. But " Veghte V. Karitan Canal Co., 19 an easement, created by grant, to take N. J. Eq. 142 ; 21 N. J. Eq. 463 ; water from one tenement to be used Hayford v. Spokesfield, 100 Mass. for the running of a mill situated ou 491 ; Owen v. Field, 102 Mass. 90, another, and appurtenant to the mill 114; Arnold ;•. Stevens, 24 Pick, only, and not to any parcel of land, 106 ; Knapp v. Douglass Axe Co., is lost if the mill is destroyed and 13 Allen, 1; White u. Crawford, 10 not rebuilt. Day y. Walden, 46 Mich. Mass. 183; Smyles <,-. Hastings, 22 575. CHAP. XI.J PRESCRIPTION. 563 ease, such as witnessing without objection the erection of a dam and expensive works upon the stream,^ the prescriptive right would not be abandoned without a non-user for twenty years,^ althougli according to the decisions in England and in several States, the intention is the material consideration in determining whether there has been an abandonment, and a cesser of use for a less period than twenty years, accom- panied by acts clearly indicative of the intent to abandon the prescriptive right, is sufficient.^ This doctrine, if correct, would not apply to the abandonment of an easement within the twenty years during which the right thereto is accruing.* § 352. The right to artificial watercourses, as against the party creating them, depends upon the character of the water- course, whether it is of a permanent or temporary nature, and upon the circumstances under which it is created. The enjoyment for twenty years of a stream diverted or penned up by permanent embankments, stands upon a different footing from the enjoyment of a flow of water originating in the mode of occupation or alteration of a person's property, presumably of a temporary character, and liable to variation. The flow of water for twenty years from the eaves of a house could not give a right to the neighbor to insist that the house shall not be pulled down or altered, so as to diminish the quantity of water flowing from the roof. So, the flow of water from a drain for twenty years, for the purposes of agricultural improvements, would not enable the neighbor to preclude the proprietor from altering the level of his drains for the greater improvement of the land. 1 Stokoe V. Singers, 8 El. & Bk. 31 ; 584 ; Bowen v. Team, 6 Rich. (S. C.) I"arrar o. Cooper, 34 Maine, 394 ; 305. Taylor v. Hampton, 4 McCord, 96. s Queen v. Chorley, 12 Q. B. 515 ; 2 Bowery. Hill, 1 Bing. (N.C.) 549; Moore v. Eawson, 3 B. & C. 332; 5 Johnston v. Hyde, 33 N. J. Eq. 643 ; Dowl. & Ryl. 234 ; Liggins v. Inge, 7 Curtis V. Jackson, 13 Mass. 507 ; Jen- Bing. 682 ; Dyer u. Sanford, 9 Met. nison v. Walker, 11 Gray, 423 ; Hurd 395 ; Pope v. Devereux, 5 Gray, 412 ; , V. Curtis, 7 Met. 94; Williams v. Mississippi Central Railroad Co. o. Nelson, 23 Pick. 141 ; Day v. Walden, Mason, 51 Miss. 234. 46 Mich. 575 ; Corning v. Gould, 16 * Ibid. ; Dana v. Valentine, 5 Met. Wend. 531; Warren o. Syme, 7 W. 8; Cuthbert u. Lawton, 3 McCord, Va. 474; Dyer v. Dupui, 5 Whart. 195. 564 THE LAW OF WATERS. [PART II. In such cases, the circumstances show that one party never intended to give, nor the other to enjoy, the use of the water as matter of right.^ § 353. In Massachusetts it is held that the unexplained enjoyment for twenty years, and without any claim or pay- ment of damages, of the statutory right to flow another person's land by means of a mill-dam, is evidence of a right to flow without such payment, and bars a claim for dam- ages.^ But in Maine, actual damage to the land-owner must be shown in order to give rise to the presumption of a grant or license of the right to flow, or to bar proceedings under the statute.^ § 354. The general rules relating to severance of tene- ments are that a grant by the owner of a tenement of part of that tenement, as it is then used and enjoyed, passes to the grantee by implication, and without use of the word " appurtenances '" or similar words, all those easements which the grantor can convey, which are necessary to the reasonable enjoyment of the granted property, and have been, and are, at the time of the grant, used by the owners of the entirety for the benefit of the granted tenement ; and that, except in the case of ways or easements of necessity,* there is no corresponding implication in favor of the grantor, who if he wishes to reserve any right over the granted part, should reserve it expressly in the grant.^ If, therefore, the owner 1 Wood 0. Waud, 3 Exch. 777 ; 1089, 1093 ; Hinchcliffe v. Kinnoul, Greatrex v. Hayward, 8 Exch. 291 ; 5 Bing. N. C. 1 ; Barnes v. Loach, 4 Rawstron v. Taylor, 11 Exch. 380; Q. B. D. 494 ; Wardle u. Brocklehurst, Broadbent v. Ramsbotham, Id. 602. 1 El. & El. 1058 ; Palmer v. Fletcher, 2 Williams u. Nelson, 23 Pick. 141. 1 Lev. 122; Swansborough v. Cov- 2 Nelson v. Butterfield, 21 Maine, entry, 9 Bing. 305 ; Cox v. Mathews, 220 ; Underwood v. North Wayne 1 Vent. 237 ; Compton v. Richards, 1 Scythe Co., 41 Maine, 291 ; Gleason Price, 27 ; Jamaica Pond Aqueduct V. Tuttle, 46 Maine, 288 ; Tinkham u. Corporation v. Chandler, 9 Allen, 164; Arnold, 3 Greenl. 120 ; Seidensparger Spaulding v. Abbott, 55 N. H. 423 ; V. Spear, 17 Maine, 123. Tourtellot v. Phelps, 4 Gray, 378 ; * See Pearson v. Spencer, 3 B. & S. Micliell v. Seipel, 53 Md. 251 ; Oak- 761 ; Pettingill v. Porter, 8 Allen, 1 ; ley v. Stanley, 5 Wend. 523 ; Elliott Morrison v. Marquardt, 24 Iowa, 35. v. Rhett, 5 Rich. (S. C.) 405; Ham- ^ Wheeldon v. Burrows, 12 Ch. T). mond v. Woodman, 41 Maine, 177. 31 ; Tenant v, Goldwin, 2 Ld. Raym. CHAP. XI.] SEVEEANCE OP TENEMENTS. 565 of land conveys away a pqition of his premises, a part of wHch is, at the time of the conveyance, flowed by a mill-dam belonging to him, and makes no reservation of the right to continue to flow the land, he loses the right, and cannot set up an implied reservation ; but if he sells and conveys the mill, the right to flow the land passes as an incident to the purchaser, and cannot be cut off by the grantor.^ So, the grant of a dam on another's soil entitles the grantee to enter for the purpose of repairing the dam.^ It is, however, a matter of contract depending entirely upon the construc- tion of the conveyance, and the aboVe rules are applicable according to the character, state, and use of the premises at the time of the grant, only where the intention of the parties in this respect is not expressed in terms.^ § 355. A grant will be implied esjDeeially in favor of easements of air and light, lateral support, partition walls, drains, aqueducts, conduits, and waterpipes or spouts, all these being continuous easements technically so called, that is, easements which are enjoyed without any active interven- tion of the party entitled to enjoy them ; but ways are not in tills sense continuous easements, being enjoyed only as they are travelled. The application of the doctrine to ways has been quite uniformly denied,* although there are cases, especially in Pennsylvania, in which it has been held that ways which are visibly and permanently established on one part of an estate for the benefit of another, will, upon a severance of the estate, pass as implied or constructive ease- i Burr V. Mills, 21 Wend. 290 ; H. & C. 113 ; Polden v. Bastard, 4 B. United States v. Appleton, 1 Sumner, & S. 258 ; L. R. 1 Q. B. 155 ; Barlout 492. But see Dunklee v. Wilton Rail- ;;. Rhodes, 1 C. & M. 448; Thompson road Co., 24 N. H. 489. v. Waterlow, L. R. 6 Eq. 36 ; Langley 2 Frailey w.Waters, 7 Penn. St. 221 ; „. Hammond, L. R. 3 Ex. 161 ; Daniel Skull V. Glenister, 11 W. R. 368; v. Anderson, 31 L.J. n. s. 610; Pet- Phear's Rights of Water, 72-74. ters v. Humphreys, 19 N. J. Eq. 471 ; 3 Hall 0. Lund, 1 H. & C. 676 ; O'Rorke v. Smith, 11 R. I. 259 ; Pro- Johnso]^ V. Jordan, 2 Met. 234, 239. vidence Tool Co. v. Corliss Steam * Pheysey v. Vicary, 16 M. & W. Engine Co., 9 R. I. 564 ; Evans v. 484 ; Whalley v. Thompson, 1 B. & Dana, 7 R. 1. 306 ; Kenyon v. Nichols, P. 371; Worthington u. Grimson, 2 1 R. L 411; Lampman v. Milks, 21 El. & El. 618 ; Dodd v. Burchell, 1 N. Y. 505. 566 THE LAW OF "WATERS. fPAET H. ments appurtenant to the part of the estate for the benefit of which they were established.^ Whether the estate sold be the servient or dominant tenement, the easement, or other incident of property, in order to pass by implication, must be open, apparent, and continuous.^ The right to go to a well and there take water is not a continuous easement nor is it an easement of necessity.^ § 356. In Nicholas v. Chamberlain,* it was held upon demurrer, " that if one erect a, house, and build a conduit thereto in another part of his land, and convey water by pipes to the house, and afterward sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to liimself the house, the conduit and pipes pass with the house ; because it is necessary, et quasi appendant thereto ; and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case may require. So it is, if a lessee for years of a house and land erect a conduit upon the land, and, after the term determines, the lessor occupies them together for a time, and afterwards sells the house with the appurtenances to one, and the land to another, the vendee shall have the conduit and the pipes, and liberty to amend them. But by Popham, Chief Justice, if the lessee erect such a conduit, and after- ward the lessor, during the lease, sell the house to one, and the land wherein the conduit is to another, and after the lease determines ; he who hath the land wherein the conduit is, may disturb the other in the using thereof, and may break it ; because it was not erected by one who had a permanent estate or inheritance, nor made one by the occupation and usage of them together by him who had the inheritance. So it is if a disseisor of an house and land erect such a conduit, and 1 Kieffer v. Imhoff, 26 Penn. St. Scott v. Bentel, 23 Gratt. 1 ; Hardy 438 ; McCarty v. Kitchenman, 47 Penn. v. McCulIough, Id. 251. St. 239; Cannon v. Boyd, 73 Penn. St. = Polden v. Bastard, L. E. 1 Q. B. 179; Thompson v. Miner, 30 Iowa, 156, 161. 386 ; Huttemeier i . Albro, 18 N. Y. * Cro. Jac. 121 ; Palmer v. Fletcher, 48 ; 2 Bosw. 546. 1 Lev. 122 ; Sury v. Pigott, Palmer, = Kutz v. McCuno, 22 Wis. 628; 444; SBiilst. 339; Poph. 166. CHAP. XI.] SEVEEANCE OP TENEMENTS. 567 the disseisee re-enter, not taldng conusance of any such erection nor using it, but presently after his re-entry sells the house to one, and the land to another ; he who hath the land is not compellable to suffer the other to enjoy the conduit." This decision appears never to have been ques- tioned, and is recognized as authority in numerous decisions.' § 357. With respect to the rights of the vendor upon the severance of tenements, the decision in Pyer v. Carter ^ has given rise to much discussion, and has been approved in certain cases in England and in this country.^ In that case 1 Suffield V. Brown, 33 L. J. (N. S.) Cli. 249 ; Pyer v. Carter, 1 H. & N. 916 ; Rotins v. Barnes, Hobart, 131 ; IJnited States v. Appleton, 1 Sumner, 492 ; Hazard v. Robinson, 3 Mason, 272; Philbrick v. Ewing, 97 Mass. 133; Coolidge v. Hagar, 43 Vt. 9, 14; Lampman v. Milks, 21 N. T. 505 ; Burr V. Mills, 21 Wend. 290 ; Ogden V. Jennings, 62 N. Y. 526, 531 ; New Ipswicb Factory v. Batclielder, 3 N. H. 190; Shaw iJ.Etheridge, 3 Jones (N. C.) 300; Elliott v. Sallee, 14 Ohio St. 10; Parmer v. TJkiah Water Co., 56 Cal. 11; Pickering u. Stapler, 5 S. & R. 107 ; Seymour v. Lewis, 13 N. J. Eq. 439 ; Elliott v. Sallee, 14 Ohio St. 10. 2 1 n. & N. 916; Ewart .-. Coch- rane, 4 Macq. 117 ; Hall v. Lund, 3 B. & S. 761 ; 1 H. & C. 676 ; Pearson v. Spencer, 3 B. & S. 762 ; Chadwick u. Marsden, L. R. 2 Ex. 289. ^ Ibid. ; Ewart v. Cochrane, 4 Macq. 117; Watts v. Kelson, L. R. 6 Ch. 166; Worthington v. Gimson, 2 El. & El. 618 ; Dillman v. Hoffman, 38 AVis. 559; Seibert v. Levan, 8 Penn. St. 383; Fetters v. Humphreys, 18 N. .T. Eq. 260, 203 ; 19 N. J. Eq. 471 ; Janes V. Jenkins, 34 Md. 1. In Wheeldon v. Burrows, 12 Ch. D. 31, 48, 52, 59, Thes- iger, L. J., while dissenting from the broad doctrine laid down in Pyer v. Carter, said : "That was a case of a somewhat special character. A house was conveyed to the defendant by a person who was the owner of that house, and also of the house which was subsequently conveyed to the plaintiff ; and there had been during the unity of the ownership the enjoy- ment of the easement of a spout which extended from the defendant's premises over the plaintiii's premises, and by which water was conveyed on to the latter. But it is material to observe that the water, when it came on to what were subsequently the plaintiff's premises, was conveyed into- a drain on the plaintiff's premises,, which di-ain passed through the de- fendant's premises, and in that way' went out into the common sewer; Subsequently, the house over whiclii this easement existed was conveyed. to the plaintiff, and upon an obstruc- tion of the drains in the defendant's house, which, be it observed, imme- diately caused a flooding of tlie plain- tiff's house by the very water coming from the defendant's house, the plain- tiff brought his action, and it was held' there that the plaintiff was entitled to maintain his action, and that upon, the original conveyance to the defend- ant, there was a reservation to the grantor of the right to carry away this water which came from the de- fendant's premises by the medium of the drain which also went through his premises. Though these circum- stances were special in their charac- ter, there is no doubt that the prin- ciples laid down by the Court of. 568 THE LAW OP WATERS. [PAKT H. the action was for stopping a drain discharging into a com- mon sewer and running through the adjoining premises of the plaintiff and the defendant, which had formerly been one estate and were converted into two by a former owner after the construction of the drain. It appeared that the plaintiff might have made a drain directly from his house into the sewer at a trifling expense, and the defendant testified that he did not know of the existence of the drain at the time of the conveyance to him. Judgment was for the plaintiff, and Watson, B., said: "We think that the owners of the plaintiff's house are, by implied grant, entitled to have the use of this drain for the purpose of conveying the water from his house, as it was used at the time of the defendant's purchase. It seems in accordance with reason that where the owner of two or more adjoining houses sells and conveys one of the houses to a purchaser, that such house in his hands should be entitled to the benefit of all the drains from his house, and subject to all the drains then necessarily .used for the enjoyment of the adjoining house, and that with- out express reservation or grant, inasmuch as he purchases the house such as it is. If that were not so, the incon- veniences and nuisances in towns would be very great." "It was urged that there could be no implied agreement unless the easement was apparent and continuous. The defendant ; stated he was not aware of this drain at the time of the conveyance to him, but it is clear that he must have known or ought to have known that some drainage then existed, Exchequer were as wide as possibly and mutual easement by which that could be. That Court laid down that very same water was carried into the there was no distinction between im- drain on that land and then back plied reservation and implied grant ; through the land of the person from and this, as it appears to me, broke whose land the water came. It seems the hitherto unbroken current of au- to me to be consistent with reason and thority upon this subject." "I cannot common sense that these reciprocal see that there is anything unreason- easements should be implied ; and, able in supposing that in such a case, although it is not necessary to decide where the defendant, under his grant the point, it seems to me worthy of is to take this easement, which had consideration in any after case, if the 'been enjoyed during the unity of question whether Pyer K.Carter is right ownership, of pouring his water upon comes for discussion, to consider that the grantor's land, he should also be point." i held to take it subject to the reciprocal CHAP. XI.] SEVERANCE OP TENEMENTS. 569 and if he had inquired he would have known of this drain ; therefore it cannot be said that such a drain could not have been supposed to have existed; and we agree with the observation of Mr. Gale that by ' apparent signs ' must be understood not only those which must necessarily be seen, but those wMch may be seen or known on a careful inspec- tion by a person ordinarily conversant with the subject. We think that it was the defendant's own fault that he did not ascertain what easements the owner of the adjoining house exercised at the time of his purchase." § 358. In the subsequent case of Suffiield v. Brown,i the owner of a dock and an adjoining wharf conveyed the wharf without reservation, and it was held that no reservation of an easement was implied, in favor of the vendor, and for the perfect enjoyment of the dock, to have the bowsprits of vessels project over the wharf. Lord Westbury, L. C., said: "I cannot agree that the grantor can derogate from his own absolute grant, so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement wliich remains the property of him, the grantor." Of Pyer v. Carter, his lordship said : " I cannot look upon the case as rightly decided, and must wholly refuse to accept it as any authority." The doctrine of Pyer v. Carter has also been disapproved in other cases in England,^ and in Massachusetts,^ Maine,* and Maryland.^ § 359. In Johnson v. Jordan,^ in Massachusetts, the owner of two adjoining lots, one occupied by himself and the other leased by him, constructed a drain leading into a common sewer from the leased premises through those which 1 4 De Gex, J. & S. 185 ; 10 Jur. n. Q. B. 156, 160; White v. Bass, 7 H. & s. Ill ; 6 Jur. N. s. 999 ; Morland v. N. 722. Cook, L. R. 6 Eq. 252. s Carbrey v. Willis, 7 Allen, 364, 2 Dodd V. Burchell, 1 H. & C. 113 ; 369; Randall v. McLaughlin, 10 Allen, Crossley o. Lightowler, L. K. 2 Ch. 366; G Allen, 201. 478, 486 ; Wheeldon v. Burrows, 12 * Warren v. Blake, 54 Maine, 276. Ch. D. 31 ; Polden v. Bastard, L. R. 1 ■= Mitchell v. Seipel, 53 Md. 251. 6 2 Met. 234. 570 THE LAW OF WATERS. [PAET II. he occupied, and permitted his tenants to use it for about ten years. He then sold both lots by simultaneous convey- ances 1 to different purchasers, and did not refer to the drain in the deed of the premises which he had previously leased. This deed was held to pass no right to the use of the drain through the other lot, if, by reasonable labor and expense, the grantee could make a drain without going through that land. In delivering the opinion of the court, Shaw, C. J., distin- guished an artificial gutter, made for the purpose of drain- age, from a natural watercourse, of which each adjoining proprietor has a natural right to the benefit, as it passes through his land, not as an easement or appurtenance, but as parcel, for all useful purposes to which it may be applied,^ and from those cases wherein the declivity of the land and the relative position of the tenements are such that a drain cannot be formed with reasonable labor and expense for the benefit of one without passing through the other. The learned judge said : " If a man, owning two tenements, has built a house on one, and annexed thereto a drain passing through the other, if he sell and convey the house with the appurtenances, such a drain may be construed to be de facto annexed as an appurtenance, and pass with it ; and because such construction would be most beneficial to the grantee : Whereas, if he were to sell and convey the lower tenement, still owning the upper, it might reasonably be considered that, as the right of drainage was not reserved in terms, when it naturally would be if so intended, it could not be claimed by the grantor. The grantee of the lower tenement, taking the language of the deed most strongly in his own favor and against the grantor, might reasonably claim to hold his granted estate free of the incumbrance." As the convey- ances from the owner of the whole estate under which the parties claimed were simultaneous, the case was considered to be more like a partition between tenants in common, where each party takes his estate with the rights, privileges, and in- 1 See, also, Kilgour v. Ashcom, 5 = Sury v. Pigott, Palmer, 444 ; 3 H. & J. 82 ; Elliott r. Sallee, 14 Ohio Bulst. 339 ; ante, c. 7. St. 10. CHAP. XI.J SEVERANCE OF TENEMENTS. 571 cidents inherently attached to it than the case of grantor and grantee, where the grantor conveys a part of his land by metes and bounds, and retains another part to his own use, and where the question is, upon the terms of the deed, whether an easement for drainage was granted with the estate conveyed over that retained, or reserved over that conveyed for the benefit of that retained. § 360. In Carbrey v. Willis,^ in the same State, it was held that, where the grant of the lower estate precedes that of the other, no easement can be taken as reserved by im- plication, unless it is de facto annexed and in use at the time of the grant, and is necessary to the enjoyment of the estate which the grantor retains, such necessity not being deemed to exist, if a similar privilege can be secured by reasonable trouble and expense ; and that where there is a grant of land by metes and bounds, without express reservation, and with full covenants of warranty against incumbrances, there is no just reason for holding that there can be any reservation by implication, unless the easement is strictly one of necessity. In Roberts v. Roberts,^ in New York, it was held that, if a land-owner changes the course of a stream running through his land by cutting an artificial ditch to carry off its waters, the change in the condition of the land being permanent and visible, and afterwards conveys to different grantees the respective portions of the land on which are the old and new channels, the one grantee holds his portion relieved from the stream and the other burdened with it. In other cases, in this State, it is held that, the presumption that the parties contract with reference to the visible physical condition of the prop- erty at the time of the conveyance, may be rebutted by proof that there is no apparent sign of the servitude indicating its existence to a person reasonably familiar with the subject 1 7 Allen, 364 ; Collier v. Pierce, 7 68 Maine, 173 ; Parker v. Bennett, 11 Gray, 18 ; Ilapgood v. Brown, 102 Allen, 388. 453 ; Pettingill v. Porter, 8 2 55 n, Y. 276 ; Lampman v. Milka, Allen, 1; Thayer v. Payne, 2 Cush. 21 N. Y. 505; Dunklee v. Wilton 327 ; Warren v. Blake, 64 Maine, 276 ; Kailroad, 24 N. H. 489. DalUrf I. Boston & Maine Eailroad, 572 THE LAW OF WATERS. [PAET n. upon an inspection of the premises, or by proof of actual knowledge on the part of the parties of facts which negative any deduction to be drawn from the apparent condition.^ § 361. The decision in Seymour v. Lewis,^ in New Jersey, inclines more strongly to support the doctrine of the French law. It was there held that when the owner of two tene- ments sells one of them, the purchaser takes his tenement with all the burdens as well as benefits, as between it and the property which the grantor retains, which appear at the time of the sale to belong to it ; and that, upon the facts of the case, the privilege of diverting water, by means of conduits and pipes, from a spring in one parcel of land to a mill upon other land belonging to the same owner, was reserved by im- plication to the grantor, under his grant of the first parcel by metes and bounds, without reservation of or reference to the easement. § 362. No implication of a grant of an easement arises from proof that the land granted could not be conveniently occupied without it. Its foundation rests in a necessity for it, not in convenience.^ In New Ipswich Factory v. Batchelder,* a tract of land was conveyed, described by metes and bounds, with a mill upon the same. At the time of the conveyance, a raceway to conduct the water from the mill ran along the side of the natural stream, beyond the land granted, into other land of the grantor, and then discharged the water into the natural stream. This raceway had been used with the mill for several years, and was necessary for 1 Butterworth v. Crawford, 46 N. Y. 761 ; Nichols v. Luce, 24 Pick. 102 ; 349 ; Simmons w. Cloonan, 47 N. Y. 3; Gayetty v. Bethume, 14 Mass. 49; Curtis V. Ayrault, 47 N. Y. 73. See Tliayer v. Payne, 2 Cush. 327 ; Carbrey Wardle v. Broeklehurst, 1 El. & El. v. Willis, 7 Allen, 364, 369 ; Leonard 1058 ; Shaw v. Etheridge, 3 Jones (N. v. Leonard, 2 Allen, 543 ; Trask v. C. ) 300. Patterson, 29 Maine, 499, 503 ; Howell 2 13 N. J. Eq. 439 ; Denton v. Led- v. McCoy, 3 Rawle, 256 ; Smyles w. dell, 23 N. J. Eq. 64 ; 24 N. J. Eq. Hastings, 22 N. Y. 217 ; Brakely ;;. 667 ; Fetters ;;. Humphreys, 18 N. J. Sharp, 9 N. J. Eq. 9 ; 10 N. J. Eq. Eq. 260 ; 19 N. J. Eq. 471. 206 ; McTairsh v. Carroll, 7 Md. 352. 3 Dodd u. Burchell, 1 H. & C. 113, * 3 N. H. 190. 122; Pearson v. Spencer, 3 B. &. S. CHAP. XI.] SEVEEAJ*fCB OF TENEMENTS. 573 the convenient working of tlie mill. It was held that the right to have the water flow off through the whole extent of the raceway passed, as appurtenant to the mill. A right of way by necessity does not depend upon the existence of such right prior to the conveyance of the land, but it has never been held that the grantee has any right, on the ground of necessity, to construct a new drain through his grantor's land.i 1 Kussell u. Jackson, 2 Pick. 578 ; lins v. Prentice, 15 Conn. 39 ; Pierce v. Hart V. Cramer, 25 Conn. 331 ; Col- Selleck, 18 Conn. 321. CHAPTER XII. EEMEDIES AT LAW. SECTION. 363-365. Abatement by party injured. 366, 367. He may cleanse the stream. 368. Original private remedies at law. 369. Remedy by action of trespass. 370-372. Distinction between trespass and case. 373-375. "When case is the appropriate remedy. 376, 377. Parties plaintiff. 378-381. Ibid.— Reversioners. 382. Ibid. — Joint tenants and tenants in common. 383, 384. Ibid. — Action by one tenant in common against co-tenant. 385. Ibid. — Vendor and vendee. 386. Ibid. — Eight of action for past injury not transferable. 387. Parties liable as defendants. 388, 389. Ibid. — Creator of nuisance liable after alienation. 390. Ibid. — Contra, in New York. , 391. Ibid. — Landlord not usually liable for tenant's act. 392. Ibid. — Notice to abate nuisance, when required to be given to a grantee who continues it. 393, 394. Ibid. — Requisites of such notice. 395. Ibid. — Grantee liable, without notice, for new nuisance. 396. Ibid. — Tortfeasors when jointly and severally liable. 397, 398. Ibid. — When not jointly liable. 399. Ibid. — Creator of a nuisance liable, though not owner or occupant of the premises. 400. Survival of suits. 401-405. Actual damage not necessary to support action. 406-410. The distinction between the reasonable and the. vmlawful use of a stream by a riparian proprietor. 411. Damages. 412-414. Ibid. — Where damage is the gravamen of the action. CHAP. XII.J EEMEDIES AT LAW. 575 BBCTION. 415-420. Ibid. — Permanent injuries. — Exemplary damages for continuance of a nuisance once judicially detormined. 421, 422. Ibid — Single trespasses. — Where the act is wrongful, and the damages are merely consequential. 42.J, 424. Ibid. — Continuing trespasses. 423-431. Venue and jurisdiction. — Private actions. 432-44.3. Ibid. — Of indictments. 444. Ibid. — The rule in equity. 445, 440. Ibid. — Jurisdiction exercised by the Federal courts. 447-461. Other remedies at law. — On covenants. 462-468. Ibid. — Particular covenants. 469,470. Ibid. — Assumpsit. 471. Ibid. — Ejectment. 472-474. Ibid. — Mandamus. 475-480. Pleading. — The declaration. 481-487. Ibid. — Allegation and proof of breach. 488-491. Ibid. — Defences and pleas. 492-503. Evidence. 504, 505. Former judgment. § 363. A person specially injured by a nuisance may law- fully enter upon the premises of anotlier who maintains it, for the purpose of abating it, or of removing the obstruc- tion which is the cause of the injury, when this can be done without a breach of the peace. ^ This right appears to exist in favor of a lessee, or any other person lawfully in posses- sion, as well as the owner in fee.^ Under this rule a dam which causes the water to flow back to an unreasonable extent may be removed, so far as necessary, by an upper proprietor whose land is thereby flowed without his license ; ^ an obstruction to the free flow of the water to or from a mill may be re- ' Batten's Case, 9 Rep. 54 J ; Raikes Brown f . Chadbourne, 31 Maine, 26; K. Townsend, 2 Smith, 9; Baldwin v. Hodges v. Raymond, 9 Mass. 316; Smith, 82 111. 162 ; Day v. Day, 4 Md. Jewell v. Gardiner, 12 Mass. 311 ; Col- 262; Hamilton ^. White, 5 K Y. 9; burn d. Richards, 13 Mass. 420; Knoll ante, § 128. v. Light, 76 Penn. St. 268 ; Overton 2 Great Palls Co. v. Worster, 15 v. Sawyer, 1 Jones (N. C.) 308; Bris- N. H. 435, 436. bane v. O'Neall, 3 Strob. 348. » Heath v. Williams, 25 Maine, 209 ; 576 TflCE LATV" OF "WATERS. [PAET U. moved ; ^ an artificial cliannel, through which the water is unlawfully diverted, may be iilled up ; ^ or if the stream, is so polluted as to be injurious to the working of a mill, or the health of the community, a person thereby injured may abate the source of the corruption. If a natural stream is made foul by , impurities cast therein, the source from which the impurities originate may be removed, but the stream itself cannot be lawfully destroyed or filled up ; ^ and if a sewer is made by a municipal corporation, under competent author- ity, but in such an unskilful manner as to cause injury to pri- vate property, the owner may maintain an action against the city, but cannot remedy the injury by filling up the sewer.* But if commissioners of highways, or road surveyors, change the course of a stream to the injury of a riparian proprietor, he may make such reasonable abatement as may be necessary to secure his rights.^ So if a town fails to keep in repair a culvert in a highway crossing a stream, whereby lands above are flooded, the land-owners may, after due notice, open the culvert in a proper manner, doing no unnecessary damage.^ § 364. No one can rightfully abate either a public or pri- vate nuisance who could not maintain an action for damages caused thereby ; ^ but the abatement of the nuisance does not preclude a person entitled to maintain an action from recov- ering the damages sustained by him before the nuisance was removed.8 And in an action to recover damages for the nui- ' Prescott !'. Williams, 5 Met. 429 ; * McGregor v. Boyle, 34 Iowa, 268. Colburn v. Richards, 13 Mass. 420. If " McCord v. High, 24 Iowa, 336 ; A. erects a dam on B.'s land without Thompson u. Allen, 7 Lans. 459. A license, B. may cause it to be removed county is not liable for the acts of the as a nuisance, but cannot compel A. county court in causing a mill race to maintain any portion of it. A. may which crosses a road to be tilled up. permit the dam to fall to decay, or Reardon v. St. Louis Co., 36 Mo. 279; the water to run to waste, and will Swineford v. Franklin Co., 73 Mo. 279. not thereby subject himself to any « Groton v. Haines, 36 K. II. 388. liability to B. Bradford v. Cressey, ' Ante, § 128. 45 Maine, 9. s Kendrick v. Bartland, 2 Mod. 253 ; ' Hodges V. Raymond, 9 Mass. 319 ; Call i: Buttrick, 4 Cush. 345 ; Tate v. Lee V. Stevenson, 27 L. J. Q. B. 263. Parrish, 7 Mon. (Ky.) 325 ; Gleason 3 Pinley v. Hershey, 41 Iowa, 394 ; v. Gary, 4 Conn. 418 ; Pilcher v. Hart, Miller v. Burch, 32 Texas, 208 ; Bloom- 1 Humph. 524. cr V. Morss, 08 N. Y. 023. CHAP. XII.] REMEDIES AT LAW. 577 sance, it is no ground for mitigation of damages that the plaintiff might have abated the nuisance but did not.^ The right to recover nominal damages caused by the nuisance is suffieient to justify an entry for the purpose of abating it.^ In general, an erection cannot be abated as a nuisance un- less it be such at the time ; but it may be a nuisance at a time when it is not causing actual damage.^ The right of abatement must be exercised iu the manner least injurious to the rights of others, and can be justified only against the wrong-doer. Thus, in the case of a nuisance by diversion, there is no right to enter upon the lands of those not parties to the wrong, for the purpose of regaining the use of the diverted water.* If there are two ways of abating the nui- sance, the least mischievous of the two must be chosen, and if by one of these alternative methods wrong would be done to innocent third parties, or to the public, that method can- not be justified at all as against them, and it may become necessary to abate the nuisance in a manner more onerous to the wrong-doer.* § 365. The abatement may be made, althoiigh greater dainage results to the wrong-doer than the loss of that which causes the nuisance. Thus, if the owner of land upon one- side of a stream builds a dam across the stream, the opposite- proprietor may remove that part of the dam which is upon his land, even though the rest of the structure is thereby so weakened as to cause its destruction.^ So, if a person who has a prescriptive right to discharge clean water through another's drain, sends down foul water so that the nuisance' ' White V. Chapln, 102 Mass. 138 ; ■* Agawam Canal Co. v. Edwards, Wolf V. St. Louis Co., 15 Cal. 319. 36 Conn. 476. '' Amoskeag Manuf. Co. v. Goodale, '' Roberts v. Rose, L. R. 1 Ex. 82. 46 N. H. 53, 56 ; Adams v. Barney, ^ Wigford v. Gill, Cro. Eliz. 269 ; 25Vt.231; FishK.r)odge,4Denio,311. Adams t-. Barney, 25 Vt. 225 ; Richard- ' Pay V. Prentice, 1 C. B. 828 ; Rex son v. Emerson, 3 Wis. 319; Marsh r. !). Wharton, 12 Mod. 510; Norris „. Brooks, 2 Hill (S. C.) 42; Biedelman Baker, 1 Roll. 393, pi. 15 ; Beach v. v. Poulk, 5 W.atts, 308 ; Lindeman v.- Trudgain, 2 Gratt. 219 ; Strong v. Lindsey, 69 Penn. St. 93 ; Woolrych. Benedict, 5 Conn. 210, 222 ; Tuthill v. on Waters, 225. Scott, 43 Vt. 525. 5T8 THE LA"W OP WATERS. [PAET II. cannot be abated without interfering with the enjoyment, the Avhole drain may be stopped.' But no greater injury can be done than is strictly necessary to make the abatement effec- tual ; 3 and the right to abate an unlawful structure does not justify the removal of anything connected therewith which is- rightful.^ The person injured cannot convert to his own use the materials of the structure which causes the nuisance,'' and if his land is overflowed by the dam of a lower pro- prietor, which is of an unauthorized height, he may enter upon the land and lower the level of the dam, but is not justi- fied in removing it altogether,^ or in diverting the water, to the injury of the lower proprietor, by cutting a ditch upon his own land.6 He has not even the right to take such meas- ures as will relieve his land in the most speedy manner, if unnecessary injury will thereby be caused to the ^wrong-doer.^ If a dam erected in .a public river interferes with the navigar tion, and is a public nuisance, a lower proprietor, if specially aggrieved, may interfere by abating the nuisance, but this would afford no justification for the erection of a dam upon his own land, and thereby flooding the dam above, and the wrong-doer's land with it.^ '§ 366. A riparian proprietor is under no obligation to 1 cleanse the stream, or to remove any obstructions that may ; arise without fault on his part.^ But each proprietor has a natural easement in the land below for the passage of the 1 Cawkwell v. Russell, 26 L. J. Ex, 314 ; Hill V. Cock, 26 L. T. N. s. 185. 2 Prescott V. Williams, 21 Pick. 241 Wliite V. Cliapin, 12 Allen, 521 ; Veazie V. Dwinel, 50 Maine, 479, 496 ; Great Palls Co. V. Worster, 15 N. H. 439. Groton v. Haines, 36 N. H. 388 ; Gates V. Blencoe, 2 Dana, 158 ; Moffett Brewer, 1 G. Greene, 348. ' Greenslade v. Halliday, 6 Bing, 379; Great Palls Co. u. Worster, 15 N. H. 439. * Larson v. Purlong, 50 Wis. 681 ; State V. Taylor, 27 N. J. L. 117. 6 Wright V. Moore, 38 Ala. 593 Heath b. Williams, 25 Maine, 209; Dyer v. Dupui, 5 Wharton, 584. « Wright V. Moore, 38 Ala. 593. A person who attemps unlawfully to abate a sluiceway to a mill, is liable not only for the materials destroyed, but for damages sustained by the owner of the sluiceway in being de- prived of its use. Hammett v. Kuss, 16 Maine, 171. ' Great Palls Co. <,-. Worster, 15 N. H. 412, 439. 8 Odiorne v. Lyford, 9 N. H. 502 ; ante, § 121. "Taylor .,. Whitehead, 2 Dougl. CHAP. XTI.] KBMEDIBS AT LAW. 579 water in the natural channel of the stream away from his land, and may enter upon the land of a lower proprietor for the purpose of clearing the channel from obstructions to the flow of the water.i This privilege arises from the necessity of the case, and like a way of necessity, or the -right to abate a private nuisance, is to be exercised only when the party has no other reasonable and suitable mode of effecting the object, and in such a manner as to cause no unnecessary damage to the owner of the land below.^ § 367. A similar rule applies where the owner of a mill has acquired by grant, or has immemorially enjoyed, the right of conducting off the M'ater necessary to the working of the mill through an artificial canal or raceway constructed on another's land.^ The right thus acquired carries with it the right to do all necessary and proper acts to keep the raceway in a condition fit for the purposes for which it Avas intended. "It carries," says Shaw, C. J.,* " an implied authority and license to enter upon the land to examine and clear the canal in a reasonable and proper manner, and of what is reasonable the usual and customary mode is good evidence. As to plac- ing the materials taken from the bed of the stream on the adjoining bank, the right and the duty to do so may depend upon circumstances. If the canal is walled up, and the stones have fallen in, it would seem to be the right and the duty of the mill-owner, in removing the stones from the bed of the raceway, to replace them on the wall of the ditch. If the material be soil, which has fallen from the adjoining bank, and which may be useful or beneficial to the owner of 745; Pomfret v. Ricroft, 1 W. Saund. Darlington v. Painter, 7 Penn. St. 473; 321 ; Bell v. Twentyman, 1 Q. B. 766 ; Chapman o. Thames Manuf . Co., 13 Bower „. Hill, 1 Bing. (N. C.) 549; Conn. 269; anie, § 362. MeSwiney v. Haynes, 4 Ir. Eq. 322 ; ^ Ibid. Prescott V. Williams, 5 Met. 429. A s Prescott v. White, 21 Pick. 341 ; person who is required to construct White v. Chapin, 12 Allen, 516, 522. an artificial vent for water, to pre- * Prescott v. White, 21 Pick. 341, vent its overflowing another's land, is 343. So of a right to repair pipes bound to keep it in repair. Brisbane and to put a spring in order. Legg v, K.O'Neall, 3 Strob. {S. C.) 348. Horn, 45 Conn. 409. ' Ibid. ; Pico v. Colimas, 32 Cal. 578 ; 580 THE LAW OP "WATEES. [PAET II, the land, for the purpose of enriching the soil or otherwise, it would be the duty of the mill-owner to place it on the bank for his use. But if it be material not useful or benefi- cial, it would be the duty of the mill-owner to remove it oif the land in a reasonable time, and in a manner least preju- dicial to the owner of the land. We consider that this rule would not apply to a case where the mill-owner owns the land upon either side of the mill-race ; there he may make use of his own land, and no grant from the owner will be presumed, being not necessary to the use of his mill. Nor will it apply to a case where the rights of the parties in this regard are regulated by any express grant or contract. Nor will it apply to cases where another and different mode of keeping such raceway clear of obstruction has for a long time been used and practised. We consider the incidental right of entering to keep the race clear of obstructions, where it passes another's land, to arise from the principle of presumed grant, and the terms, limitations, and extent of such grant must be determined from the obvious purposes for which the easement is designed, and to which it is adapted, and upon the manner in which it has been in fact used in past time, if any such use has been shown. But we do not consider it necessary for the defendant to show actual previous entries and clearings to establish the right, because no such clearing may have been necessary within time of memory. But in the absence of such instances of actual entry and clearing, the obvious necessity and fitness of doing so, in order to enjoy the principal right granted, must be proved, from which a grant of the incidental privilege may be inferred." § 368. The original private remedies at law for injuries done to or by means of waters were the old assize of novel disseisin, the writs of quod permittat prosternere and praecipe quod reddat, the assize of nuisance, and the actions of tres- pass and trespass on the case. The assize of novel disseisin lay for obstructing a right to convey water through land,i and probably was the original remedy for nuisances. The 1 Bracton, bk. 4, c!.>. 42, 43, pp. 231, 232. Sec Viu. Abr. I^'uisance, 27 (TI.)- CHAP. XII.J EEMEDIBS AT LAW. 581 quod permittat prosternere was a writ in the nature of a writ of right, commanding the defendant to permit the plaintiff to abate the nuisance, and, in case of his refusal, summoning him to appear in court and show cause therefor. The plain- tiff, if successful, had judgment of abatement, and for dam- ages. The writ was confined to the tenant of the freehold, but could be maintained by tlie alienee of the injured party. Mid against the alienee of the tort-feasor, if the nuisance were continued after notice.^ The writ of praecipe quod reddat lay for an acre of ground covered with water.^ The assize of nuisance was a writ wherein it was stated that the party injured complained of some act done to the injury of his freehold, and commanded the sheriff to summon an assize or jury and view the premises, and have the jury at the next commission of assizes, that justice be done therein. It also was confined to the tenant of the freehold, and to things ap- pendant or appurtenant thereto.^ The plaintiff, if successful, had judgment as in the writ of quod permittat, for abatement and damages. This remedy was extended by St. Westm. 2, 13 Edw. I., c. 24, so as to lie against the tort feasor's alienee.* But these writs were both out of use in Blackstone's time,^ and were expressly abolished by St. 3 & 4 Wm. IV., c. 27, § 36.^ In New York, in the case of an indictment for a nuisance, the writ commanding the sheriff to prostrate the nuisance was issued only after a record was regularly made out and returned of the conviction of the defendant.^ The assize of nuisance was retained by statute in this State un- der the name of writ of nuisance, and the proceedings there- under simplified; but the remedy was not favored by the courts.^ In proceedings upon the writ of nuisance, as retained i3Bl.Com.220,221; Penruddock's 15 Wend. 522; Kintz .;. McNeal, 1 Case, 5 Rep. 100 b. Den. 430 ; Waggoner v. Jermaine, 3 2 Woolrych, 277. Den. 30C ; Plumer v. Harper, 3 N. 8 Vin. Abr. Nuisance, 27 ( H. ) ; Brit^ H. 88. ton, Bk. 2, c. 30, § 1 (Nichols's ed. p. ' People v. Valentine, 1 Johns. 398). Cas. 336. * Baten's Case, 9 Eep. 55 a (note) ; * Clark v. Storrs, 4 Barb. 562 ; 3 Bl Com. 220, 221. Brown u. Woodworth, 5 Barb. 551 ; ^ 3 Bl. Com. 220, 221. Cornes v. Harris, 1 Comst. 223 ; and ^ These remedies have been held see Ellsworth v. Putnam, 10 Barb. obsolete in America. Blunt v. Aikin, 565 ; Hutchins v. Smith, 63 Barb. 251. ■582 THE LAW OF WATERS. [PAET H. by the Revised Statutes of New York of 1830, in the action of nuisance substituted therefor, and by the former code, § 454, it was necessary for the plaintiff to aver that he was the owner of the freehold at the time the acts complained of were committed ; and in cases where the action was brought to abate the nuisance, it was required to be against the owner of the fee at that time, or, if he had aliened, against him or his alienee,^ and these rules are retained by the Code of Civil Procedure of 1880.^ A similar equitable action is maintain- able in the Supreme Court, by any person specially injured by a nuisance, in which a judgment would be granted direct- ing the removal or abatement of the nuisance.^ § 369. Trespasses include all torts to real property cor- 1 Ellsworth u. Putnam, 16 Barb. 565; Hubbard v. Russell, 24 Barb. 404; Brown v. Woodworth, 5 Barb. 550. So held in case of a noxious trade. Hutchins v. Smith, 63 Barb. 251. 2 See Code, ^. 14, art. 7, §§ 1660- 1663. ^ Knox V. Mayor, 55 Barb. 404 ; s. c. 38 How. 67 ; Delaney v. Bliz- zard, 7 Hun. 7 ; Van Brunt v. Alieam, 13 Hun. 388. For a similar equitable action in Minnesota, see Eastman V. St. Anthony Water Power Co., 12 Minn. 137 ; Ames v. Cannon River Manuf . Co., 27 Minn. 245. In the last case the judgment directed the cut- ting down of the dam. The Massa- chusetts statute of 1828, c. 137, § 6, provided that where judgment should be rendered for the plaintiff, in an action on the case for a nuisance, the court may on motion of the plaintiff, in addition to the common execution, issue a warrant to abate the nuisance. In Bemis u. Clark, 11 Pick. 452, this statute was held to leave it within the discretion of the court whether to issue the warrant on such motion or not. See Bemis v. Upham, 13 Pick. 170; Codman v. Evans, 7 Allen, 431. This provision is retained by Mass. Pub. Sts. 1882, c. 180, § 1. By § 3 of this chapter, the plaintiff is entitled to abatement as of right in a second suit. A similar judgment of abatement may be had in Wisconsin. Rev. Stats. 1878, c. 137. And this jurisdiction, which at first was in bar of equitable jurisdic- tion, is no longer so. St. 1882, c. 190 ; Denner v. Chicago Railroad Co., 15 N. W. Repr. 158. For a similar jurisdic- tion in Oregon, see Oregon Gen. Laws. 1872, § 330, p. 170; Marsh ;;. Trul- linger, 6 Oregon, 350. The assise of nuisance was formerly in use in Penn- sylvania. Livezey v. Gorgas, 1 Binn. 251 ; s. 0. 2 Binn. 192. For a full report of all the proceedings in tins case, see Brackenridge's Law Miscellanies, 438. See Lyle v. Richards, 9 S. & R. 322, at 367 ; Barnet v. Ihrie, 17 S. & E. 174; s. c. 1 Rawle, 44; Maris v. Parry, 3 Eawle, 413. But it was sustained- only because the remedies of the English common law were in force unless expressly abolished. Barnet v. Ihrie, 17 S. & R. 174. Other refer- ences to these remedies may be found in Great Falls Co. v. Worster, 15 N. H. 412, 435; Tate v. Parish, 7 Mon. (Ky.) 325. OHAP. Xir.] REMEDIES AT LAW. 583 poreal by acts wrongful in themselves and immediately injurious. Nuisances include all injuries to the realty, in ■which the harm done is consequential and not immediate. A trespass implies an illegal entry, or direct injury to land in the plaintiff's possession ; a nuisance implies an act or omission injurious only in its consequences. The action of trespass lies for the former injury, and the action on the case for the latter. The distinction between the remedies is explained in the books on pleading.^ It is our purpose to state only its applications to injuries done to or by means of waters. If a person pours water on another's land, the injury is immediate, and trespass lies ; but if he places a spout on his own building, in consequence of which water afterwards runs therefrom into my land, the injury is consequential, because the flowing of the water, which is the immediate injury, is not the wrong-doer's immediate act, but only the consequence thereof, which will not render the act itself a trespass or immediate wrong.^ Where the defendant caused water to overflow the plaintiff's fishery by throwing down a weir, trespass was brought, and a count was joined for the consequential damages ; the act was held to be a plain trespass, and the injury, which was laid with a 'per quod, mere aggra- vation.^ Where the defendant dug ditches and diverted a watercourse, and case was brought, it was objected that the diversion had not been shown to be a consequence of the digging, but the court held that it would be so intended after ^ 1 Chitty PI. 142, 194 ; and see Lord Raymond's report reads : " Caus- Scott V. Shepard, 1 Smith's Lead, ing water to overflow another's fish- Cas. 549. ery or land, though by an act on the '^ Reynolds v. Clarke, 1 Stra. 634, party's own soil, is a direct trespass.'-' 635 ; 2 Ld. Raym. 1399. And the same version is given in " Courtney v. Collet, 1 Ld. Raym. Carthew, 436. In Stra. 635, Lord 272 ; s. u. Carthew, 436 ; 12 Mod. Raymond, C. J., states the case as one 164 ; and cited Stra. 635, and 2 "Wm. " for the defendant's diverting his own Bl. 898. This case has generally been watercourse in his own land," which considered one where the act was done was held a trespass. In 2 Wm. Bl. on the plaintiff's close by the defend- 898, it is cited as for an act done " in ant as a trespasser ( Angell, § 395 ; the plaintiff's own land," which seems ■Woolrych, 278), but this, it seems, is an obvious substitution of "plaintiff" not the true view. The syllabus in for " defendant." 584 THE LAAV OF WATERS. [PAIIT II. verdict, and that case was the proper form of action.^ So the turning of water which Avashes a highway upon one's land has been held ground for an action on the case.^ § 370. It is laid down by Mr. Dane that when the plain- tiff is possessed of the soil and a wrong is done directly to his estate, he may have trespass, but generally, where the defendant so disturbs the plaintiff in his stream or water- course as to occasion consequential damages, case is the proper action in all cases where the defendant does the original act on his own land.^ The rule is laid down by Shaw, C. J., in Fiske v. Framingham Manuf. Co.,* that where the act complained of is not an entry upon the plain- tiff's land, or other direct injury, but the opening of a sluice upon the defendant's own land, or land upon which he has a right to enter, in consequence of which the plaintiffs land is flooded, case and not trespass is the proper form of action. Where trespass was brought for breaking the plain- tiff's close and erecting thereon a wall by which the plaintiff was prevented from using the water in her well, and it ap- peared that the well belonged to the defendant, and was on his land, but that the plaintiff had a right to use the water in it, it was held that the phiintiffs remedy was in case and not in trespass.^ § 371. To maintain trespass, the plaintiff must have actual or constructive possession of the locus in quo. He must show that the portion of land on which the wrongful act was committed was in his inelosure, or that he had paramount title if it was vacant, or that he was in the actual possession of a part under a deed for the whole, embracing the part upon which the act was committed. Trespass will not lie against a person for digging a ditch upon his own land, whereby water is thrown upon the land of the plaintiff, the 1 Leveridge v. Hoskins, 11 Mod. ' 3 Dane Abr. c. 71, art. 3, p. 10. 257. i 12 Pick. 68. 2 Broughton i;. Carter, 18 Johns. ^ Shafer o. Smith, 7 Har. & J. 67. 405. CHAP. XII.] KBMEDIES AT LAW. 585 remedy in such case being by an action on the case for conse- quential damages.^ Where it was alleged that the plaintiff was the owner of a mill on the same stream with the mill owned by the defendant, and that the defendant, wilfully and with intent to injure the plaintiff, frequently shut down his gates, so as to accumulate a large head of water, and then raised them, by which means an immense volume of water ran with great force against the plaintiff's dam and swept it away, it was held that case could not be maintained, and that trespass was the only remedy .^ The decision here turned on the violence and continuous force by which the injury was effected, and, it seems, is not in conflict with the ruling of Shaw, C. J., above cited, which made allowance for direct injuries. § 372. The case of Smith v. Fletcher,^ in England, was tried before the passage of the Judicature Acts. It was an action against the defendant for injuries caused by water which he had accumulated upon his land, and which burst the banks' in its course during a flood and escaped into the plaintiff's mine. The plaintiff alleged that the defendant " broke and entered a close of the plaintiff called C, and certain mines thereunder, and flooded them with water." The form of the action was not considered, but a recovery was had as for ^ Winkler v. Meister, 40 III. 349. As ground, the question was raised. Lord one owning land adjacent to a stream Abinger, C. B., said : " It is said above the tide owns to the medium that the action should have been tres- fdum, he owns the ice formed therein, pass. No case has been cited to show wMch maybe regarded as attached to that where an injury has been done, the soil, and, like any other accession, partly by an act of trespass and partly be considered as part of the realty, by that which is not an act of trespass, and the owner may maint/iin tres- but the subject of an action on the pass against any one wrongfully ap- case, the plaintiff is bound to adopt propriating it. Washington Ice Co. one or the other form of action. I V. Shortall, 101 111. 46 ; s. c. 21 Am. can see no reason which prevents the L. Reg. (N. S.) 313, and notes; ante, present form of action from being re- § 191. sorted to, that would not be equally ^ Kelly V. Lett, 13 Ired. L. 50. applicable to an action of trespass. ^ Smith a. Fletcher, L. E. 7 Ex. If the argument be good for anything, 305; 2 App. Cas. 781. In an action on that an action on the ease cannot be the case for obstructing ancient lights, maintained by parity of reasoning, an by a building partly on the plaintiff's action of trespass could not ; so that 586 THE LAW OF WATERS. [rAET II. a trespass. But where new systems of procedure have abol- ished the different forms of action, the distinction between trespass and case has become unimportant.^ § 373. For injuries to incorporeal rights in waters, such as easements, trespass cannot be supported, and case is the proper remedy.^ Where the rights of the parties to the water are regulated by a contract, case will still lie for any negligence or misfeasance in the execution of the contract, or where there is a breach of duty imposed by law, indepen- dent of the contract. Where mill-owners, who were entitled to all a certain stream except what they had leased to the defendants, brought suit against the defendants for diverting more water than they had a right to take, case was held the it would prove that the plaintiff is not entitled to maintain any action. I should hare thought that the plain- tiff might bring either action, case, or trespass. Suppose a person to be af- fected in the enjoyment of a water- course by the erection of a weir partly placed on his own land and partly on his neighbor's ; that which was placed on his own land would be the sub- ject of an action of trespass. If the acts be both done at the same time, and there be a common injury, it seems to me the plaintiff may bring either case or trespass, alleging the common damage. There are not wanting analogies to show that where there is a common injury there may be a common remedy, and a party may adopt either ; as in the cases of nuisances where the act is committed in one county and the effect is pro- duced in another, the venue may be laid in either. However specious the argument which lias been urged, it will not bear investigation ; but the result is, that the party might have brought either form of action." Wells i>. Ody, 1 M. & W. 452 ; s. c. Tyrwh. & Gr. 715. 1 "This distinction between tres- pass and nuisance," say Coulson and Forbes, in their recent work on the Law of Waters, p. 649, " so far as the form of action is concerned, is now of little value, as by the Common Law Procedure Act, 1852, and the Judicar ture Acts, 1873 and 1875, ail forms of action are abolished." The same ■is true in many of the States wliich have abolished the old forms. 2 1 Chitty PI. 142 ; Nuttall v. Brace- well, L. K. 2 Ex. 1 ; Wilson v. Wilson, 2 Vt. 68 ; Case v. Webber, 2 Ind. 108. So held of an injury to a right to con- vey water through another's land. Baer ... Martin, 8 Blackf. 317. So where one conveyed a mill, and grant- ed an easement in the dam and pond, and afterwards injured the dam, the grantee's remedy was held to be case, and not trespass. Whitehead v. Gar- vis, 3 Jones L. 171. But where the conveyance of a water privilege Is of "all the land that the dam flows," trespass is the proper remedy for an injury to such land. Morse v. Marsh- all, 13 Allen, 288. Cutting off one's access to a body of water upon which his land fronts is an actionable in- jury, although his title extends only to the water's edge. Ante, § 149. CHAP. XII.] REMEDIES AT LAW. 587 proper remedy, and not covenant.^ A grantee may maintain ease for diversion of water by a grantor, which is in deroga- tion of his grant.2 Where the defendant contracted for the privilege of floating logs through the plaintiff's mill-dam and flume at a stipulated price, and agreed to repair and pay all damage done, it was held that case would lie for damage care- lessly and negligently done to the plaintiff's dam.^ The action on the case is the proper remedy for the owner of property who is injured by the nuisance of projecting eaves or roofs of an adjoining building causing rain to overflow upon his land.* § 374. An action on the case lies for any wrongful diver- sion of water from a mill,^ or for any diversion or obstruction 1 Bigelow V. Battle, 15 Mass. 313. See Batavia Manuf. Co. v. Newton Wagon Co., 91 111. 230. 2 Cromwell v. Selden, 3 N. Y. 253 ; Eshelman v. Snyder, 82 Ind. 498. 8 Dean v. McLean, 48 Vt. 412. Where the defendant had for several years flowed the plaintiff's land, pay- ing an annual compensation therefor, nnder an oral agreement, it was held, in an action to recover damages for such flowage, that the relation of land- lord and tenant existed between the parties, and that the plaintiff could maintain no action except for the yearly compensation, without giving notice to quit. Morrill <,. Mackman, 24 Mich. 279. iRolfe V. Rolfe, T. Moore, 353, cited there in Beswick v. Combdon; s. 0. cited, 5 Rep. 101 ; Penrud- dock's Case, 5 Rep. 101 ; Battishill V. Reed, 18 C. B. 696; Codman v. Evans, 7 Allen, 431 ; Whitney v. Sanders, 3 Pitts. 226; Gould «. Mc- Kenna, 86 Penn. St. 297. In Aikin ;■. Benedict, 39 Barb. 400, overruling Sherry v. Frecking, 4 Duer, 452, it was held that trespass on the case or the statutory action for nuisance was the proper remedy for such an injury, and not ejectment. The erection of eaves projecting over another's land is a nuisance, for which case will lie without proof that rain has fallen since the erection. Fay v. Prentice, 1 C. B. 828. See Bellows v. Sackett, 15 Barb. 96. But where the injury com- plained of is caused by rain thrown on his premises by such eaves, the injury must be proved as laid. Sim- mons V. Pollard, 53 Vt. 343. It is held that the landlord of the injured premises may maintain case as a re- versioner for such a nuisance during the term, if the jury think the re- version is injured. Tuckerman v. Newman, per Lord Denman, C. J., 11 A. & E. 40. Compare Jackson o. Pesked, 1 M. & S. 234, where Lord Ellenborough held that injury to the reversion must be alleged in such case. See ante, §§ 292, 293. * So held in case of an ancient mill. Broome c. Mordant, Cro. Eliz. 112. See Ingraham v. Hutchinson, 2 Conn. 504. But if right claimed is that of an ancient mill, a prescriptive right must be shown. Piatt v. Johnson, 15 Johns. 213. Mere inconvenience to an ancient mill by increase of rub- bish in the stream held no cause of action. Palmer v. Mulligan, 3 Caines, 307. Wrongful diversion from new mill. Dyer, 248 b • Cox v. Matthews, 1 Vent. 237. An injury by a dam, 688 THE LAW OF WATERS. [PAET II. to the injury of a riparian proprietor ; ^ and if the defendant has the right to maintain a dam at a certain height, the action will lie against him for •wrongfully increasing the height.^ So the action lies if a person, having a preferred right to the water, uses it wrongfully to the injury of one ' entitled to the surplus.^ So, if water is accustomed to flow to a well and thence to one's house for his use, and one diverts the stream from coming to the well.* If one disturbs the plain- tiff in the use of his well by putting rubbish therein, case will lie if the water is shallowed and rendered less convenient for use.^ § 375. Case is also the appropriate remedy for the pollu- tion of a watercourse to the injury of another. It was de- cided, in a case reported in the Year Books, that if two several owners of houses have a river in common between them, which one corrupts, the other shall have an action upon the case ; ^ and the action has been allowed without question ever since.'^ So, if one abandons waters artificially causing a growth of grass in a stream, the stream and the nature of acts im- which impedes its flow, is actionable pairing such purity have already been in case, unless the grass would have considered. Ante, §§ 219-223. Lead- grown without the dam. Knoll o. ing cases illustrating the use of the Light, 76 Penn. St. 268. action on the case are : Wood v. Waud, 1 Wright V. Howard, 1 Sim. & Stu. 3 Exch. 748 ; Stockport Waterworks 190 ; Mason v. Hill, 3 B. & Ad. 304 ; Co. c. Potter, 3 H. & C. 300 ; Norton v. s. c. 5 B. & Ad. 7 ; 3 Kent Com. 442 ; Scholefield, 9 M. & W. 565 ; Hodg- Martin v. Bigelow, 2 Aik. (Vt.) 184. kinson o. Ennor, 4 B. & S. 229. See 2 Phillips V. Sherman, 64 Me. 171 ; Cator v. Lewisham Board, 5 B. & S. Sackrider v. Beers, 10 Johns. 241 ; 115 ; Locks & Canals v. Lowell, 7 Gray, Merritt c. Brinkerhoff, 17 Johns. 306. 223 ; and Mills v. Hall, 9 Wend. 315 ; So where the defendant (maintaining Thomas u. Brackney, 17 Barb. 655 ; a dam under the Mill Acts) wrongfully Carhart v. Auburn Gas Co., 22 Barb, closes his gates at night to collect 297 ; O'Riley v. McChesney, 3 Lans. water, the remedy is in case. Thomp- 278 ; Merrilield v. Worcester, 110 Mass. son V. Moore, 2 Allen, 350. 216; Woodward c. Aborh, 35 Maine 2 Batavia Manuf. Co. u. Newton 271 ; Washburn v. Gilman, 64 Maine Wagon Co., 91 111. 230. 163 ; Wheatlcy v. Chrisman, 24 Penn. * 1 Com. Dig. Title Action upon the St. 298 ; Little v. Schuylldll Nav. Co. v. case for a nuisance (A.). Psickman Richards, 57 Penn. St. 142; Seeley f. V. Tripp, Skin. 389. Alden, 61 Penn. St. 302 ; Sanderson v. ' Taylor v. Bennett, 7 C. & P. 329. Penn. Coal Co., 86 Penn. St. 401 ; s. c. " Y. B. 13 H. 7, 26, cited in Co. 94 Penn. St. 302 ; Snow v. Parsons, 28 Litt. 200 b. Vt. 459 ; Gladfelter v. Walker, 40 Md. ' The right to the natural purity of 1 Story v. Hammond, 4 Ohio, 376. CHAP. XII.] BEMEDIES AT LAW. 589 collected, and turns them into a natural stream, he cannot afterwards reclaim them ; and if lie attempts to withdraw them from the stream, he is liable in case to any one in- jured thereby.^ Where the canal commissioners of Illinois turned the surplus water of a certain canal into a natural stream to get rid of it, and so increased the volume of the stream, and their lessee, succeeding to their rights, diverted a portion of the water from the stream to drive his mill, and returned it to the stream below the plaintiff's mill, thereby diminishing the volume of water at the plaintiffs mill, it was held that the plaintiif could maintain case.^ § 376. Actions for torts affecting rights in water, and also for torts done by means of water, must in general be brought in the name of the person whose legal right has been affected, and who had a legal interest in the property injured at the time the injury was committed.^ For any injury affecting the present enjoyment of water-rights, the person entitled to the present enjoyment thereof is the proper party to bring the suit ; but for any permanent injury to such rights the reversioner may maintain an action.* The same rule holds true of all injuries to real property by means of water.^ The remedies 6f the tenant in possession and the reversioner may be concurrent. The act which injures the reversioner usually injures the tenant in possession also, and each may maintain his action for the injury to his separate right.^ This principle applies to all injuries to lands or water-rights in the possession of lessees. lAdamsj;. Slater, 8 Brad. (111. App.) Dicey on Parties, 333, 340. Prior 72 ; Druley v. Adams, 102 111. 177 ; and of Southwark's Case, Year Book, 13 see Davis v. Gale, 32 Cal. 26. Hen. 7, 26, cited ty Wray, C. J., in ^Adamst). Slater,8Brad. (lU.App.) Aldred's Case, 9 Rep. 59a; Beding- 72. field V. Onslow, 3 Lev. 209 ; Jackson " 1 Chitty, Pleading, 69. v. Pesked, 1 M. & S. 234 ; Tucker t.. * Mr. Dicey says (Parties, p. 332, Newman, 11 A. & E. 40 ; Battishill v. note) that the term reversioner is used Reed, 18 C. B. 696 ; Bell v. Twenty- as a convenient though not strictly man, 1 Q. B. 7'66 ; Lord Egremont v. correct description of any person who, Pulman, M. & M. 404 ; Dobson v. not being in possession of land, has Blackmore, 9 Q. B. 991. a future interest in it. ' ^l Chitty PI. 63 ; Com. Dig. '■' 1 Chitty, PI. 63 ; Com. Dig. Ac- Title Action on the Case for a Nui- t>r ' upon the case for a nuisance B. ; sance B. ; 1 Wms. Saund, 322, note 5 ; 590 THE LAW OF WATERS. [PAET II. § 377. Where the tenant in possession brings suit for the disturbance of his present enjoyment, possession alone is suf- ficient evidence of his title prima facie, and will support a recovery against a wrong-doer.^ So a cestui que trust in pos- session may maintain the appropriate legal actions against a wrong-doer for injuries to his possession.^ In Sumner v. Tileston,^ where the owner of the freehold brought suit for flowage, it was held that the possession of a tenant at will was that of the owner of the freehold, and that the latter could recover for present injury. The lessee of water-rights may maintain an action against a stranger for any interfer- ence therewith to the injury of the lessee. § 378. The reversioner may sue for any wrongful inter- ference with _ the future enjoyment of the property. This includes all acts directly injuring his freehold, and all adverse uses tending to establish easements or to abridge his rights. He may also sue for any acts interfering with his title. In the Prior of Southwark's Case,^ as cited by Wray, C. J., in Aldred's case,^ the landlord was allowed to Bedingfield o. Onslow, 3 Lev. 209; 28 N. H. 438; Branch v. Doane, 17 Kipka V. Sergeant, 7 Watts & S. 9 ; Hart Conn. 401 ; s. c. 18 Conn. 233 ; Brown V. Evans, 8 Penn. St. 13 ; Seely v. Al- v. Bowen, 30 N. Y. 519 ; Lincoln t den, 61 Penn. St. 302 ; Potts v. Clarke, Chadbourne, 56 Maine, 197 ; King v. Spencer (N. J.) 536; Tinsman v. Rail- Tarlton, 2 H. & McHen. 473; Fergu- road Co., 1 Dutch. (N.J.) 255; Brown son v. Witsell, 5 Rich. (S. C.) 280: V. Bowen, 30 N. Y. 519 ; Woodbury v. Kimball v. Walker, 7 Rich. (S. C.) 422 ., Wills, 50 Maine, 403; Davis !>. Jewett, Patrick K.Ruffners, 2 Rob. (Va.) 209; 13 N. H. 881 ; Baker v. Sanderson, 3 Morris v. McCainey, 9 Ga. 160 ; Ran Pick. 348; Sumner v. Tileston, 7 Pick. v. Minnesota Valley Railroad Co., 13 195; Ashley v. Ashley, 4 Gray, 197. Minn. 442. In Dyson u. CoUick, 5 B. The following leading cases further & Aid. 600, a contractor for building illustrate the rule, but do not affect a canal, having by permission of the waters : Baxter v. Taylor, 4 B. & owner of land built a dam for the pur- Ad. 72 ; Hopwood u. Schofield, 2 pose of aiding navigation, was held to Moo. & Rob. 34 ; Alston v. Scales, 9 have sufficient possession to enable Bing. 3 ; Johnstone v. Hall, 2 K. & J. him to maintain trespass against a 414 ; Mumford v. Oxford Railway wrong-doer. Co., 1 H. & N. 34 ; Kidgill v. Moor, 9 C. " j chitty, PI. 69. B.364; Simpson t). Savage, IC.B.N.s. ^ 7 Pick. 198 (Putnam, J., dissented). 347; Metropolitan Building Associa- And see, to same effect, Cushing v. tion V. Fetch, 5 C. B. n. s. 504 ; Bell Adams, 18 Pick. 110. V. Midland Railway Co., 10 C. B. n. s. * Year Book, 13 Hen. 7, 26. 287. 5 9 Rep. 59 a. 1 Bassett u. Salisbury Manuf. Co., CHAP, xn.] REMEDIES AT LAW. 591 recover for an injury to land in the possession of a tenant by corrupting water with the refuse of a lime-pit. In Beding- field V. Onslow,! flowage was held an injury to the reversion. The overhanging of eaves or walls has been held not such an injury per se;^ and in another case,^ this question was left to the jury by Lord Denman, with the suggestion that it was a fair case of injury to the reversion. The washing away of soil, resulting from the non-repair of a conduit or gutter leading to the defendant's mill, has been held an injury to a reversioner;* but a general allegation of an injury to the reversion by an obstruction of navigation has been held insufficient.* § 379. In America it has been held that the freehold is injured by causing water to flow back upon the plaintiff's land,^ or into his race,'^ or by the obstruction of his mj.ll by backwater;^ or again by withholding the water from his mill;^ or by diverting a natural watercourse from his land;i^ or by polluting the stream ; ^^ and that the reversioner may recover for such injuries. The owner of land leased at will for purposes of pasturage may maintain an action for the obstruction of a right to drain the land through an ancient watercourse, but must show and can only recover for the injury to the reversion.!^ 1 3 Lev. 209. To same effect see held maintainable by a reversioner for Bell V. Twentyman, 1 Q. B. 706. a nuisance which produced no present '^Jackson v. Pesked, 1 M. & S. injury beyond that to the reversionary 234. right, and which may be removed be- ^ Tucker v. Newman, 11 A. & E. 40. fore .the reversioner would come into In .another case, where the reversioner possession. See also Bell v. Midland brought suit for the same injury, it Railway Co., 10 C. B. n. s. 287. was held that he could recover only " Davis v. Jewett, 13 N. II. 88 ; such damages as the jury should\think Ashley v. Ashley, 4 Gray, 197 ; Potts sufficient to compel the defendant to u. Clarke, Spencer (N. J.) 530. abate the nuisance, and not the dam- ' Ripka v. Sergeant, 7 Watts & S. 9. age to the saleable value of the prem- " Baker v. Sanderson, 3 Pick. 348 ; ises. Battishill t;. Eeed, 18 C. B. 696. Sumner i;.Tileston, 7 Pick. 198; Brown * Lord Egremont v. Pulman, M. & u. Brown, 30 N. Y. 519. M. 404. 8 Woodbury i;.Willis, 50 Maine, 403. = Dobson V. Blackmore, 9 Q. B. (A. i' Hart v. Evans, 8 Penn. St. 14. & E. N. s.) 991. In Shadwell v. Hutch- n Seeley v. Alden, 01 Penn. St. 302. inson, 4 C. & P. 333 ; s. c. M. & M. i^ Hastings v. Livermorc, 7 "Gray, 350 (affecting ancient light), case was 194; s. c. 15 Gray, 10. 692 THE LAW OF WATEES. [PAET II. § 380. Anything which will create a permanent disturb- ance of the enjoyment of property if not altered is in this inquiry considered an injury to the freehold. Thus the building of a railway embankment in a stream, obstructing the passage of rafts to and from a lumber mill, was held by Green, C. J., to be an injury to the reversion, for which the owner of the mill might recover, although the mill was leased for a term which had several years to run. The concurrent right of the tenant, to sue for his injury was con- sidered no objection, nor was the possibility that the cause of injury might be removed during the term.^ § 381. When the disturbance is continued, fresh actions may be maintained from time to time by the persons occupy- ing the positions of tenant in possession and reversioner.^ A purchaser may maintain an action for a nuisance created before the purchase, if continued,^ and an heir or devisee, for the continuance of a nuisance created in the lifetime of the ancestor or devisee ; * but an executor cannot recover for a nuisance committed in the lifetime of his testator.^ A mort- gagee's right of action for an infringement upon his mill privilege vests upon his taking possession of the premises.^ 1 Tinsman v. Belvidere Railroad for loss of rent. So in Ripka v. Ser- Co., 25 K". J. L. 255. Green, C. J., said : geant, 7 Watts & S. 9, it was held that " While the nuisance or cause of com- the law implied a damage to the re- plaint is continued, the premises are version from back flowage upon a diminished in value, and the present mill race. value of the reversion is consequently ^ Penruddock's Case, 5 Rep. 101 ; diminished. The estate of the rever- Shadwell v. Hutchinson, 2 B. & Ad. sioner would sell for less. The law 97 ; s. c. 4 C. & P. 333 ; Battishill r. therefore regards him as sustaining Reed, 18 C. B. 696; and see Gale on an injury. And, if the inheritance Easements (5th ed.), 658; an(e, § 210. be in fact diminished in value, the ^ Beswick v. Combden, Cro. Eliz. reversioner may maintain an action 402 ; Russell and Handf ord's Case, 1 for the injury, though there may have Leon. 273 ; Vedder u. Vedder, 1 Den. been no diminution in the amount of 257. the rent, and no loss by a sale of the * Some v. Barwish, Cro. Jac. 231. premises at a depreciated price." He ^ McLaughlin v. Dorsey, 1 H. & approved the rule in Shadwell o. McHen. (Md.) 224. An action for Hutchinson, supra, allowing the rever- diversion dies with the plaintiff, and sioner to recover nominal damages in cannot be continued by his executor, the first instance, and then substantial Holmes v. Moore, 5 Pick. 257. damages; and criticised the rule in ^ Hatch v. Dwight, 17 Mass. 289; Baker v. Sanderson, 3 Pick. 348, where ante, § 211 6. it was held that he could recover only CHAP. XII.J REMEDIES AT LAW. 593 § 382. At common law, parceners a'nd joint tenants were required to join in all actions respecting their tenancy; and tenants in common, who sued separately in the ancient real actions, because claiming by different titles, were com- pelled to join in personal actions, as for trespass and nui- sance, " because in those actions, though their estates are several, yet the damages survive to all." ^ It is sometimes stated that tenants in common may join in actions for such injuries ; ^ but Shaw, C. J., in deciding upon a bill in equity between tenants in common, for the wrongful detention of water from a mill, said : " Though the phrase ' may join ' is used, yet the reason given brings the case within the gen- eral rule of law, that where a personal claim is joint, and the right survives, all must join, otherwise the process may be abated." ^ Owners in common of a mill, who have derived their respective rights under different conveyances, may join in an action in tort for a diversion of water from their mill, but cannot join in an action for breach of defendant's cove- nants in reference to such water.* If tenants in common of lands, owning adjoining lands in severalty, grant a license to. a stranger to erect and maintain a dam on their land, each is- estopped from claiming damages occasioned thereby to land held by him in severalty.'' 'Bacon's Abr. Joint Tenants, K. *> Francis D.Boston & Roxbury Mill (Bouvier's ed.) p. 301; Litt. § 310; Co., 4 Pick. 365. In England, bj Co. Lit. 198 a; 1 Chitty PL 74; Dicey Order xvi. of the Judicature Act of on Parties, 380, Rule 80; Thompson 1875, all persons maybe joined as V. Hosldns, 11 Mass. 419; Crippen i. plaintiffs in whom the right to aii^- Morss, 49 N. Y. 63, 69. In Stone relief claimed is alleged to exisi,. V. Bromwich, Yelv. 101, where ten- whether jointly, severally, or in the ants in common brought an action alternative; and judgment may be for diverting a watercourse and set given for such one or more of the out their titles, it was objected that plaintiffs as may be found to be en- they should not be joined, but the titled to relief, for such relief as he court overruled the objection, say- or they may be entitled to without ing, " This action . . . does not confiern any amendment. But the defendant, the title, but only the possession though unsuccessful, shall be entitled whereby the profits of the land are to his costs occasioned by so joining diminished." any person or persons who shall not 2 Angell on Watercourses, § 400. be found entitled to relief, unless the ' May V. Parker, 12 Pick. 34. court, in disposing of the costs of the * Samuels u. Blanchard, 25 Wis. motion, shall otherwise direct. L. P.. 329. 10 Gen. St. p. 791 (38 & 39 Vict. c. 77); 594 THE LAW OF WATERS. [PAET H. § 383. One tenant in common has no right, by means of a dam erected on land of which he is sole owner, to llow the land owned in common without the assent of his co-tenant, and thus exclude his co-tenant from the possession. It is a wrong to his co-tenants of the same character, and which allows of similar remedies, as if they had been severally seized.! go one tenant in common may have an action on the case against his co-tenant for diverting, obstructing, or polluting water to the injury of their common right, or for any infringement upon their common rights in water, or for flowing common lands or properties, without the consent of the co-tenant.^ In the earliest case in point it is said that if two several owners of houses have a river in common between them, if one of them corrupt the river, the other shall have an action upon his base.^ The leading American case was an action by one co-tenant against another, for diverting a stream from their common mill for purposes of Ms own. It M^as held that case was the proper remedy, and this case has generally been followed.* See Coulson and Forbes on Waters, in Odiorne v. Lyford, 9 N. H. 502. '656. By the rules of chancery, which ^Y. B. Hen. 7, 26; Blanchard v. are followed in the Judicature Acts, Baker, 8 Greenl. (lie.) 253; Hutchin- the owners of several properties af- son v. Chase, 39 Maine, 508, 514; fected hy a nuisance might join in Pillsbury v. Moore, 44 Maine, 154; . suing. If one failed to make out his Hines u. Kobinson, 57 Maine, 324 ; case, the suit as to him was dismissed Odiorne v. Lyford, 9 N. II. 502 ; Great with costs. Such costs were deducted Falls Co. v. Worster, 15 X. H. 412, 460 ; from those of the successful plaintiff. Beach v. Child, 13 Wend. 343; s.c.22 Coulson & Forbes on Waters, 656. In Wend. 538; Crippent).Morss,49 N. Y. a Scotch case, for a pollution of the 63 ; McLellan v. Jones, 43 Vt. 183 River Esk, the House of Lords held (5 Am. Rep. 270); Jones d. Weathers- . that, by the Scotch practice, the sev- bee, 4 Strob. (S. C.) 50. eral sufferers may bring a jbint ac- ^ 2 Waterman on Trespass, p. 392. tion against the several authors of the So if one co-tenant hinders another nuisance, asking a declarator and in- from cleansing a common well. JSfew- terdict, but not claiming damages ; ton v. Newton, 17 Pick. 201, 207. So and Lord Blackburn said that this one may have case against his co- rule, though different from the Eng- tenant for cutting down or injuring a lish law, was preferable. For the dam held in common. Linton v. English rule, contra, see Cowan v. Wilson, 1 Kerr (N. B.) 223, 231. Duke of Buccleuoh, 2 App. Cas. 344; * Blanchard v. Baker, 8 Maine, 253 Hudson V. Maddison, 12 Sims. 410. (1832). The Massachusetts case of 1 Per Parker, C. J., in Great Falls May v. Parker, 12 Pick. 34, in equity, < Co. V. Worster, 15 N. H. 312, 460, and before cited, was decided in the pre- CHAP. XII.] EEMEDIBS AT LAW. 595 § 384. Where the plaintiff and defendant were tenants in common of a salmon fishery, the plaintiff was held entitled to ceding year. Shaw, C. J., there said : "Tlie consideration that the right to recover damage is joint, and survives, suggests the application of another rule of law, that where there is a joint right to claim damage, each has a right to claim the whole, holding him- self liable to account, and if the claim be against one of the parties, he has as good a right to retam the amount as they have to recover it, and it would involve the legal solecism of a man's having an action against him- self. The same reason, therefore, which prohibits co-partners from suing one of their number, who is debtor to the firm, and obliges them to go into equity for relief, seems to apply strongly to the case of a joint claim for consequential damages against one of the co-tenants." This dictum has been disregarded. The case of Cdiorne v. Lyford, 9 N. H. 502, was decided in 1838. May v. Parker was cited in the argument, and Parker, 0. J., said of it : " In May v. Parker, the court held that where a person being sole owner of one mill, and tenant in common of another, uses in his several mill more water than apper- tains to it, to the injury of the mill owned in common, a bill in equity may be maintained. It is not decided in that ease that an action at law would not lie, but only that the remedy at law, if one existed, would be inadequate for the redress of the wrong done." "The act of the defend- ant in flowing the common property in this case, if without right, is not a mere entry and possession, as a ten- ant in common, subjecting him to account for the profits, but it is an act which tortiously deprives the plaintiff of the use of the property, and is in the nature of a destruction of the use for which it was intended." Since this decision, the dictum of Shaw, C. J., must be considered as not giving a correct statement of the law. The reason he gives, viz., that the wrong-doer would have the same legal title to the amount of the damages as the injured party, is not sound in principle, and has not been applied to other cases of torts between co-ten- ants. In Hines v. Robinson, 57 Maine, 324, the action was against a tenant in common and u, stranger, for using the water of a stream so as to im- pair the use of the mill held in com- mon, and for erecting viother mill which obstructed the use of the for- mer. Barrows, J., said: "If the plaintiff can maintain a suit against any person for doing these acts, the fact that one of these defendants is his co-tenant in the property injured will not bar the action." In Beach «. Child, 13 Wend. 343, where tliree ten- ants in common constructed a basin for navigation and water-power, con- necting it with a public canal, and laid out their lands fronting thereon in lots which tliey divided among themselves and afterwards conveyed, but left the basin common property, and one of the grantees built a pier in the basin in front of his lot, obstruct- ing the adjacent owner's use of the basin, it was held that the latter could maintain an action on the case against his co-tenant for the obstruc- tion. This decision was affirmed in the court of errors, 22 Wend. 538, and followed in Crippen v. Morss, 49 N. Y. 63. In McLellan v. Jenness, 43 Vt. 183 (S Am. Eep. 270), the plain- tiff and defendant and three ' others owned an aqueduct together, and 'each had a branch of his own, and was entitled to one-fifth of the water. The plaintiff brought the action against the defendant for using or wasting more than his fifth of the water, and the action was sustained. The court say : " The true principle is /Stated by Kenyon, Ch. J., in Martyn 596 THE LAW OF WATEES. [PAET II. recover damages in an action on the case for the continued deprivation of the enjoyment of his rights in being kept out of the occupation of any part of the fishery, after he was first deprived of it by the defendant, without having first regained possession by entry or otherwise.^ One tenant in common of a saw-mill and mill privilege may maintain an action of trespass quare clausum ' against a co-tenant for the destruction of the mill,^ but not for his entry upon the entire common property and ^exclusive occupation thereof.^ And where two tenants in common" of land including a water privilege made a division of the land, leaving the water pri^i^ilege in common, which was of sufficient power to drive but one mill, and each of them erected a mill on his own land, it was held that neither acquired a priority of right by first erecting his mill, that each had an equal right to 'the use of the water, and that neither could maintain an action founded j.n tort for such use of the water thus owned in common befor^ their rights became several by the parti- tion.* § 385. When land injured by a nuisance is conveyed, the purchaser stands in the same position as the vendor. He may sue the original wrong-doer who erected and maintains the nuisance, without notice or request to abate, for damages done to the land, during his ownership and occupancy. And the same is true of any number of successive pur- chasers against whom the nuisance is continued.^ In Ives IK Cress,^ it was held that a vendor of lands, retaining the V. KnowUys, 8 T. R. 145, that, ' if one « Bailey v. Rust, 15 Maine, 440. tenant in common misuse that which ^ Branch v. Doane, 17 Conn. 402 ; is in common with another, he is an- Eastman v. Amoskeag Manuf. Co., 44 swerable to the other in an action as N. H. 143, overruling "Woodman c. for misfeasance.'" That was an action Tufts, 9 N. H. 91, so far as contra; •on the case by one tenant in common Plumer v. Harper, 3 N. H. 88. Sec against his co-tenant, for cutting cer- Penruddock's Case, 5 Rep. 101 a ; ante, tain trees upon the common land. §§ 364, 365. 1 Duncan u. Sylvester, 24 Maine, " 5 Penn. St. 118. Where the 482. lessee of a term having several years 2 Maddox u. Goddard, 15 Maine, to run diverted a watercourse at con- 218. siderahlc expense, and made extensive ' . ^ Porter !•, Hooper, 1" Maine, 25. improvements thereon, it was held CHAP. XII.] EBMBDIES AT LAW. 597 legal title, could not maintain an action on the case for such injuries to the inheritance during the possession of the vendee under the contract, though it did not appear that the vendee had become entitled to a conveyance. § 386. A right of action for a nuisance could not at comr mon law be transferred to another by an instrument in writing for the purpose, or by conveying the land affected.^ Such a right of action is not appurtenant to the land, nor does it, like a covenant for title, inhere to or run with the land. When accrued, it is a personal right and not transfer- able. Where a railway company placed a protection to a drawbridge in a river, whereby the approach of vessels to a dock was obstructed, and the value of the land on which the dock was placed was permanently depreciated, and after- wards the owner of the lot and dock sold the same to his wife, and conveyed the legal title to her, it was held that she could not maintain any action against the company for placing the obstruction in front of the dock, or for any damages arising since the conveyance. When such an injury is permanent in its nature, the owner may recover not only for the present, but also for future damages, and such a recovery will be a bar to any other suits for damages grow- ing out of the continuance of the injury. The grantee of such injured party cannot in such case recover for the continuance of the injury, although the former owner may not have brought any suit for the original injury.^ Where, from the improper grading of a street, the water flowing therein formed a gully which caused a permanent injury to a lot, it was held that the right of action for such injury accrued to the owner of the lot at the time the gully that the injuries would not be pre- ^ Dicey on Parties, 382 ; Bald- sumed to be of sucli a permanent char- win i. Calkins, 10 Wend. 167; Or- aeter as necessarily to affect the rever- twine u. Mayor of Baltimore, 16 Md. sion, and that the lessor could not be 387. required to enter a protest under the ^ c, |^ _4, jj jj Co, „ Maher, 91 penalty of otherwise being estopped in 111. 312. For a similar question •^^lity, from objecting to the diversion, under the AVisconsin Mill Act, see Corning v. Troy Iron Factory, 39 Barb. Faville v. Greene, 12 AVis. 11. 311; 40 N. Y. 101; 34 Barb. 485. 598 THE LAAV OF WATEKS. [PART II. was made ; and upon the sale of the lot, did not pass to the grantee.i Where a railway company filled up a trestle-work and so caused a river to overflow certain flats, and the owner of the flats built cattle-pens thereon, in which a third party placed cattle under a contract with the owner of the land to feed them, it was held that the owner of the cattle could not recover for an injury to them by the overflow of the river, on the ground that his rights were only in contract with the owner of the pens, and on the further ground that he had placed himself in a position to be injured, or in other words, had come to the nuisance. The remedy, if any, against the company lay with the owner of the pens.^ § 387. Every person who creates or continues a nuisance is liable to be sued by any person specially injured thereby.^ Each continuance of the nuisance is a fresh one,* for which each successive occupier of the premises on which the nui- sance is maintained is liable.* The liability of one erecting and maintaining a nuisance is twofold; he is liable to an action for the erection, and for each continuance of the nuisance ; and each action, being in respect of a new wrong, is not barred by former recoveries growing out of the same matter. § 388. If one creates a nuisance upon his premises, and then conveys them to another, he continues liable so long as it exists for all 'damages subsequently accruing, although a like liability may attach to other persons by their becoming purchasers ; and in such cases the person injured may sue either the original wrong-doer or the person in possession of the premises.® The same rule applies if the owner creates a nuisance and then lets the premises to a tenant. In Pen- 1 Ortwine v. Baltimore, 16 Md. 387. 72 ; Hodges v. Hodges, 5 Met. 205 2 Toledo Railroad Co. v. Hunter, Baldwin „. Calkins, 10 "Wend. 167 50 111. 325. Beidelman v. Foulk, 5 Watts, 308 " Dicey on Parties, 422. Ramsdale v. Foote, 55 "Wis. 557. The * 3 Bl. Com. 220. heir will be liable for continuing a ^ Moore v. Brown, Dy. 319 h ; Ryp- nuisance erected by the ancestor. 3 pon V. Bowles, Cro. Jac. 373 ; 3 Dane Dane Abr. 57. Abr. 57; Staples „. Smith, 10 Mass. " Penruddock's Case, 5 Rep. lOOi; CHAP. Xir.] EEMEDIES AT LA\T. 699 ruddock's case,^ it is said o£ the quod permittat: "But against him who did the wrong it lies without any request made, for the law doth not require any request to be made to him who doth the wrong himself." In Rosewell v. Prior,^ a tenant for years erected a nuisance by darkening the ancient lights adjoining, and then underlet the premises, and it was held that the action lay against either him or the under tenant. § 389. In Mason v. Shrewsbury Railway Co.,^ the principle of the former case was extended to a conveyance in fee. A railway company was authorized to discontinue and fill up a canal. In so doing they made a cut into its bank and returned a supply of water formerly feeding it to the brook from which it was taken. The company then conveyed the land on which the cut was made to a purchaser in fee. The changes in the course of the water caused injury to the plaintiff's premises during a flood. It was held for other reasons that the action would not lie, but the judges agreed that the fact that the defendants had parted with the property would not have affected their liability. In Plumer V. Harper,* more than forty years before the English case above, it was contended in argument that the rule was con- fined to cases of leases, but the court said it would be dif- ficult to find a good reason why the original wrong-doer should be discharged by conveying the land, and denied the distinction. The later New Hampshire cases ^ lay down the principle without limitation that the wrong-doer continues liable notwithstanding his alienation ; and in a late Massa- Eosewell v. Prior, 2 Salk. 460 ; 1 Ld. Stone Co. o. Buffalo Eailroad Co., 52 Raym. 713; 12 Mod. 635; Mason v. Barb. 390. Por cases affirming the Shrewsbury Railway Co., L. R. 6 Q. landlord's continued liability, but not B. 578 ; Plumer v. Harper, 3 N. H. 88, affecting watercourses, see Christian 92; Woodman v. Tufts, 9 N. H. 88; Smith's case, Sir Wm. Jones, 272; Curtice V. Thompson, 19 N. H. 471 ; Todd v. Plight, 9 C. B. n. s. 377; Eex Eastman v. Amoskeag Manuf . 44 N. H. u. Pedley, 1 A. & E. 822. 143; Prentiss v. Vi^ood, 132 Mass. 2 2 Salk. 460 ; 1 Ld. Raym. 713 ; 12 486; Hughes u. Mung, 3 H. & Mc- Mod. 635. Hen. 441 ; Dorman v. Ames, 12 Minn. = l. jj g q. b, 578. 451. < 3 N. H. 88. •5 Rep. 1006; Rosewell u. Prior, * "Woodman o. Tufts, 9 N. H. 88; sujpra ; 3 Dane Abr. 57 ; Conhocton Curtice v. Thompson, 19 N. 11. 471 ; 600 THE LAW OF WATBKS. [PA1£T 11. chusetts case it is held that a mill-owner, whose mill is injured by a dam erected and kept up without right, may maintain an action against the person who erected it, for injuries sustained after the wrong-doer has conveyed the dam to a third person.^ I § 390. In New York the law is different. In Blunt v. Aikin,2 it was held that one erecting a dam was not liable Eastman v. Amoskeag Mannf. Co., 44 N. H. 143. 1 Prentiss v. Wood, 132 Mass. 48G. The decision in Wendell v. Pratt, 12 Allen, 464, is not inconsistent with this rule. There A. owned land on both sides of a highway. A stream flowed through his land and crossed the highway through a culvert of suf- ficient size, at all seasons. B., under a contract with A., for the purchase of a mill privilege, dammed the stream on the upper side of the high- way, making the dam lower at the culvert, and putting in flash boards, by which this aperture could be opened or closed. B. never com- pleted his title under the contract, and A. afterwards conveyed the land, mill, and dam to others. A freshet afterwards came, while the flash boards were on, and the gate closed, and broke down the dam and washed away the highway, for which the town sued A. and B. and A. 's grantees. It was held that if B. built the dam un- skilfully, A. was not hable ; that if the injury was caused by closing the gate, neither A. nor B. was liable ; and that if the dam was built unskil- fully or negligently, or had become ruinous, the grantees by using it would be liable for damages sus- tained by its breaking away in conse- quence of such defect. Chapman, J., in speaking of the conveyance by A., said ; " It does not appear that it had ever, up to that time, been so obstructed as to do any private damage to the plaintiffs. This was not, therefore, . such a case as that of Eosvvell v. Prior, 12 Mod. 035, where one erected a private nuisance on land, and then assigned the land with the nuisance existing upon it. B. had abandoned the premises still earlier ; and neither of them could be liable for what might be unlawfully done at a sub- sequent time by later owners or oc- cupants." In Dorman v. Ames, 12 Minn. 451, 458 (a flowage case), the court said : " The erection of the ob- struction is sufficient to constitute a liability, and the disposition of his in- terest subsequently, if it were estab- lished, would not defeat the action for damages arising from a nuisance erected by him." A recent Connecticut case seems to depart from the rule in the text. A landowner had covered a stream flowing through his land, and diminished its channel ; and the city in which the land was situated had afterwards taken steps toward con- verting the stream into a sewer. The, court said : " If the defendant had surrendered the possession and control of it to the city, in the belief that the proceedings of the city were regular and complete, and the city had taken such possession and control in that belief, the defendant would clearly no longer be liable for its insufiiciency ; in other words, he would no longer bo maintaining a nuisance. The city alone would be responsible for any further damage." Sellick xr. Hall, 47 Conn. 260. It is to be noticed that in that case the city proceeded to commit a new nuisance by wrongfully increasing the volume of the stream.^ 2 15 Wend. 521. CHAP. XII.J EEMEDIES AT LAW. 601 for damages caused by its continuance after lie had left the possession of the premises, and others had assumed it, when there was no evidence that they held as tenants in common of such former owner. Tliis was modified in Waggoner v. Jermaine,'' and the rule given that if a person erects a nuisance upon his own lands, as by obstructing a water- course, and then conveys his premises to another with warranty, he remains liable for damages caused by the continuance of the nuisance after the conveyance. The warranty of the land as then used is taken as an upholding of the nuisance. In Mayor of Albany v. Cunliff,^ the rule is thus stated : that " a party who has erected a nuisance will sometimes be answerable for its continuance after he has parted with the possession of the land. But it is only where he continues to derive a benefit from the nuisance, as by demising the premises and receiving rent, or where he con- veys the property with covenants for the continuance of the nuisance." This is followed in Hanse v. Cowing,^ and the rule in Blunt v. Aikin, with the foregoing modifications, affirmed. § 391. Generally the landlord is not liable for nuisances created by the tenant during his tenancy,* but may become so if he relets the premises with the nuisance continuing ; or if after the creation of the nuisance, and before the damage caused, he might have put an end to the tenancy and did 1 3 Den. 300. 58 N. H. 52, cited in 19 Alb. L. J. 3, 2 2 Comst. 165, 174. where the defendants owned a water- ' 1 Lans. 288. See, also, Walsh k. power, of which third persons obtained Mead, 8 Hun, 387. the use under a contract; and the * Vt'^oodfall, Landlord and Tenant defendants were held not liable 'for (Utli cd.), 090; Wood, Landlord and damages caused by the negligent use Tenant, § 539 ; Kastor v. Newhouse, of the power by the third persons. If i E. D. Smith, 20 ; Jansen v. Varnum, a married woman owns land, and it is 89 111. 100; Harris v. Cohen (Mich, occupied by a tenant, or cultivated Sup. Ct.) 15 N. W. Rep. 433. A dec- by her husband, and either of them laration charging the defendant with erects a dam thereon, or digs a ditch,, the duty of cleansing drains, merely so as to overflow the land of another, as owner and proprietor thereof, is she will not be liable unless the act was bad. Russell v. Shenton, 3 Q. B. (A. done under her direction or with her & E. N. s.) 449. The same rule is approval, or she knowingly maintained applied in Carter v. Berlin Mills Co., it. Jansen v. Varnum, 89 111. 100. 602 THE LAW OP WATEES. [part n. not (wliicli is equivalent to a reletting i); or if he retains control of that part of the property in which the nuisance is caused.^ In the case of nuisances from the non-repair of the premises, if the landlord takes from the tenant a covenant to repair, he is not liable, since he does not authorize the con- tinuance of the nuisance.^ § 392. The person occupying the premises is, for the same reason, liable for the continuance of a nuisance created before his occupancy.* But the continuance must be with knowl- edge of the nuisance. Such knowledge will not be presumed, 1 Rex V. Pidley, 1 A. & E. 822 ; Gandy V. Jubber, 5 B. & S. 78, 485 ; 33 L. J. Q. B. 151. And see Dicey on Parties, 422. 2 Shipley v. Tifty Associates, 101 Mass. 251 ; Marshall v. Cohen, 44 Ga. 489 ; Brown v. Bussell, L. R. 3 Q. E. 251, 261. In the latter case the land- lord retained control of a drain which became a nuisance from the tenant's use of it. 3 Pretty v. Bickmore, L. R. 8 C. P. 401 ; affirmed (in case of coal shoot) L. R. 10 C. P. 658. And see Gandy v. Jubber, 5 B. & S. 78, 485. In Preston v. Norfolk Railway Co., 2 H. & N. 735, the Norfolk Railway Company owned a canal and lock, for navigation, and transferred to the Eastern Counties Railway Company the exclusive possession, use, enjoy- ment, and receipt of all property, rights, rates, etc., therein, and the latter company agreed to repair and keep up the works at all times. The gates and lock were out of repair at the time of the transfer, and after the Eastern Counties Company took pos- session, large quantities of water escaped and were diverted from the stream to the injury of the plaintiff. Pollock, C. B., held that the Norfolk Company was not liable, and that the Eastern Counties Company was, on the ground that the latter company had possession at the time of the diversion. The covenant to repair was not alluded to. The decision may be supported on the ground that the canal and lock had not become a nuisance at the time of the transfer, for there is no law against letting a tumble-down house, or property out of repair. Bobbins v. Jones, 15 C. B. N. s. 221, 240. And the covenant to repair would have the effect of dis- charging the transferrer. Where a contractor erected piles in a river, and, after completing his work, sold the piles which his vendees cut off and removed, leaving stumps which became a nuisance, the contractor was held not liable. Bartlett v. Barker, 3 H. & C. 153. Where the lease con- templates or authorizes a nuisance, the landlord is liable. Harris i-. James, 45 L. J. Q. B. s. s. 661. * In Beswick v. Combdon, P. Moore, 353; Cro. Eliz. 402. A feoffee was held liable for maintaining a bank in a stream, which caused an overflow of another's land. At a later hearing of this case it was held no offence for the feoffee to maintain the bank as he found it. Cro. Eliz. 520. But this is no longer law. In a case where the defendant's husband in his lifetime diverted a watercourse from the plain- tift''s house, and after her husband's death the defendant continued the diversion, she was held liable in case. Moore v. Dame Browne, Dyer, 3196. CHAP. XII.] REMEDIES AT LAW. 603 and an action cannot be maintained against him until he has been notified of the existence of the nuisance, and requested to abate it.^ He may rightfully suppose that the property has been lawfully used in the past, and may use it as it was used when purchased until objection is made. The Supreme Court of Connecticut say: The purchaser "might be sub- jected to great injustice if he were made responsible for conse- quences of which he was ignorant, and for damages which he never intended to occasion. They are often such as cannot easily be known except to the party injured. A plaintiff ought not to rest in silence, and finally surprise an unsuspecting purchaser by an action for damages ; but should be presumed to acquiesce until he requests a removal of the nuisance." ^ § 393. The form of the notice is immaterial, provided its character is clear and unmistakable.^ In "Woodman v. Tufts,* a letter of remonstrance was held sufficient, and the court say : "No particular form of words is required. The person continuing a nuisance should be so far apprized of the injury done, and of the claim made for redress, as not to be taken by surprise, and subjected to unnecessary costs by the com- mencement of a suit against him." In Carleton v. Reding- ton,'' the court say : " It may be written or verbal, or by acts clearly giving the party notice of the claim for a removal of 1 Penruddock's Case, 5 Rep. 101a ; Nichols v. Boston, 98 Mass. 39; Dodge Brent v. Haddon, Cro. Jac. 555 ; Tom- v. Stacy, 39 Vt. 558, at 577 ; Howe lin «. Fuller, 1 Mod. 27; Wlnsmore v. Scale Co. v. Terry, 47 Vt. 109, 124; Greenbank, "VVilles at 583 ; Salmon v. Morris Canal Co. o. Eyerson, 27 N. Bensley, Ry. & M. 189; Jones v. Wil- J. L. 457. See 2 Saund PI. & Ev. liams, 11 M. & W. 176; Plumer v. 464; 1 Chit. PI. 95. In Hughes v. Harper, 3 N. H. 88; "Woodman v. Mung, 3 Har. & McH. (Md.) 441, it Tufts, 9 N. H. 88 ; Curtice v. Thomp- was held that the alienee would be son, 19 N. II. 471 ; Carleton i^. Red- liable for doing any act to continue ington, 21 IST. H. 291 ; Eastman v. the diversion. Amoskeag Manuf. Co., 44 N. H. 143 ; ^ Johnson v. Lewis, 13 Conn. 303, .lohnson v. Lewis, 13 Conn. 303; 307. Branch r. Doane, 17 Conn. 402 ; Noyes 3 "Woodman v. Tufts, 9 N. H. 88 ; V. Stillman, 24 Conn. 15 ; Pierson v. Carleton v. Redington, 21 N. H. 291 ; Glean, 2 Green (N. J.) 36; Beavers McDonough i;. Oilman, 3 Allen, 264. V. Trimmer, 25 N. J. L. 97 ; Pills- < 9 N. H. 92. bury V. Moore, 44 Maine, 154 ; Mc- ^ 21 N. H. 311. Donough u. Gilman, 3 Allen, 264; 604 THE LAW OF ^VATEKS. [PATt^ XI. the nuisance.'' Such a notice to a municipal corporation, as a grantee continuing a nuisance, must be served upon the proper officer, and in Nichols v. Boston, it was held that the mayor was the proper officer, and that a notice given to the clerk was insufficient.^ In Tomlin v. Fuller,^ it was held that the lack of notice was cured by a verdict, where the objection was not taken until after verdict obtained. In Salmon v. Bens- ley,^ it was held that a notice left at the premises was evi- dence of knowledge, as against a subsequent occupier; but in Nichols v. Boston,* it was held that a judgment against the grantor for a nuisance, existing a year previous, was no evidence of knowledge of its continuance. § 394. In New York the rule has varied somewhat. The later decisions hold that a purchaser of property, upon which there is a nuisance, must be shown to have notice or knowl- edge of its existence before he will be liable for damages caused by its continuance, but that it is not necessary to prove a request to abate it.^ The rule formerly was that a purchaser who continued a nuisance was responsible for the damages caused by it, although he had not been notified to remove it, nor, it would seem, shown to have loiowledge of it.'' In Brown v. Cayuga Railroad Co.,^ the defendants had 1 Nichols V. Boston, 98 Mass. 39. we should be of opinion that an ae- 2 1 Mod. 27. tion on the case could not be main- 3 Ry. & Mo. 180 ; 21 E. C. L. 730. tained against one who has continued * 98 Mass. 39. a nuisance erected by anotlier, with- 5 Conhocton Stone Road r. Buffalo out notice to remove it having been Railroad Co., 51 N. Y. 573. Reversing first given, the defendants could not s. c. 52 Barb. 390 ; Miller v. Church, claim the benefit of that principle in 2 T. & C. 259 ; s. c. 5 Hun, 342. this case, for the reason that they '' Brown v. Cayuga Railroad Co., failed to make any such objection 12 N. Y. 486 ; followed in Irvin c. at the trial ; " and that the case of Wood, 4 Rob. 138 ; 51 N. Y. 224 ; Con- Rolf v. Rolf, cited in Renruddock's hocton Stone Road tj. Buffalo Railroad case as agreeing with it, was one of Co., 52 Barb. 390. And see Bellinger an action on the case for the nuisance V. New York Central Railroad Co., 23 of drip. See Beswick f. Combdcn, N. Y. 52 ; Wasmer o. . Delaware Rail- F. Moore, 353. The case of Jones road Co., 80 N. Y. 212. t,. Williams, 11 M. & W. 17G, is sub- ' 12 N. Y. 486. Of this it may be ject to the same limitation which he said that the opinion of Denio J. him- puts upon Tomlin v. Fuller, 1 Mod. self is an obiter dictum. He said : " If 27, and the facts in Salmon v. Bensley CHAP. XII.] EEMBDIES AT LAW. 605 bought a railway and land, which included a cut in the bank of a stream. The action was for damages from the overflow- ing of the plaintiff's land through this cut. Denio, J., laid down the rule as above. He confined the rule in Penrud- dock's case to the writ of quod permittat ; distinguished Tom- lin V. Fuller as a case of denying a right of way through the defendants' land, and therefore not applying to all nuisances ; relied on Salmon v. Bensley as showing that the notice need not be personal ; and held that the rule in Johnson v. Lewis was not sustained by these cases, and was incorrect in prin- ciple. He made no reference to Brent v. Haddon or to Jones V. Williams. are not given. But this doctrine of Denio J.'s opinion was opposed by the opinion of Strong, P. J., a year and a half later (1857) in Hubbard o. Rus- sell, 24 Barb. 404. He followed the English cases, and gave the usual rule. Judge Denio's opinion was not referred to, and apparently was not brought to Judge Strong's attention, and the decision was based on the ground that a request was sufficiently proved. The question was again brought be- fore the court of appeals in the case of Conhocton Stone Road c. Buffalo Railroad Co., 51 N". Y. 573, reversing s. c. 52 Barb. 390. The cases were reviewed at length by Lott, Ch. C, the decision below reversed. Brown v. Cayuga Railroad Co. was overruled, and the rule settled as stated at the beginning of this section. It differs from the ordinary doctrine' in holding that no request to abate the nuisance is necessary. This decision is noticed in Morse v. Fair Haven East, 48 Conn. 220. The action was case for a nui- sance created by the town of East Ha- ven, by the improper construction of a highway, and continued by the borough of Fair Haven East. It was found that the borough had, at the time of the transfer of liability for the highway from the town to the bor- rpugh, no knowledge of the nuisance. The Supreme Court held that it was not a case of defective highway but of nuisance, and that the borough could not he held liable in the ab- sence of knowledge. After referring to Johnson «. Lewis, 13 Conn. 303, and the New York cases above cited. Park, C. J., said; " It is not necessary for us to consider whether such a re- quest is necessary, as the want of knowledge is decisive of the present case." The New York doctrine is fol- lowed in Pinney v. Berry, 61 Mo. 359 ; Dickson v. Central Pacific Railroad Co., 71 Mo. 575 ; Wayland v. St. Louis Railway Co., 75 Mo. 548. In the last case the court also liad occasion to decide that a purchaser is not liable for either the erection or continuance of a nuisance created by his vendor upon adjoining land. A railway com- pany had dug a ditch mainly upon its own land, connecting a lake with a. river, for purposes of drainage ; but the discharge into the river was upon the land of another. The water, when high, flowed backward from the river, and overflowed adj oining land ; and the overflow was found to be due to the construction of the discharge which was upon another person's land. A purchaser of the road was held not liable for damages caused by a sub- sequent overflow. 606 THE LAW OF WATERS. [PAET II. § 395. If the grantee erects a new nuisance upon his prem- ises, he is an original wrong-doer and not entitled to notice.^ Such new nuisance may be created by a new use of existing structures, as by increasing the height of a dam,^ or by using flash-boards, which were formerly used in a proper manner, in such a way as to raise the water to a greater, height than he had a lawful right to raise it ; ^ or by keeping closed the gates in a dam, which have been habitually kept open, where- by water is diverted from the plaintiff.* § 396. It is a general rule that one, any, or all of several joint wrong-doers may be sued.® In other words, the liabihty for torts is both joint and several, and every person who joins in committing a tort is separately liable therefor, and cannot escape his liability, or compel the joinder of other -per- sons by showing that such others are liable also.^ But this rule is modified where the cause of action is against per- sons in respect of their common interest in land. "Where the injury arises from the state of their land, apart from any act, the liability is simply joint, and all must be made defendants.'^ But if the injury arises from the acts of co- tenants upon their land, the general rule applies, and any or all of the wrong-doers may be sued. Applying these rules to injuries affecting waters, it follows that for any nuisance caused by a misfeasance by co-tenants, as by wrongfully main- taining a dam or polluting a stream, the plaintiff might sue one or all of the co-tenants ; but where the injury proceeds from a mere omission of the land-owners to perform tlieir duties in respect to their land, the tort is simply joint, and all must be sued ; and so the courts have held.* 1 Curtice o. Thompson, 19 N. H. * Snow v. Cowles, 22 N. H. 296. 471 ; Carleton v. Redington, 21 N. H. '" Dicey on Parties, 430. 291 ; Snow v. Cowles, 22 N. H. 296 ; » Dicey on Parties, 430 ; 1 Chitty Branch v. Doane, 17 Conn. 402 ; Noyes PI. 97, 98 ; Freeman on Co-tenancy, u. Stillman, 24 Conn. 15; Lawson v. §366; an/c, § 222. Price, 45 Md. 123, 137 ; Morris Ca- ' 1 Chitty PI. 98 ; 1 Wms. Saund. nal Co. V. Ryerson, 27 N. J. L. 457. 291 fg. {notes to Cabell v. Vaughn) ; 2 Carleton v. Redington, 21 N. H. 1 Lindley on Partnership (4th ed.), 291. 485. " Noyes v. Stillman, 24 Conn. 15. * Abbe de Stratforde's case, T. B. 7 CHAP. XII.] REMEDIES AT LAW. 607 § 397. If one of two tenants in common of a mill use it to the nuisance of a stranger, the other owner not actually participating in the wrong is not liable.^ A joint tort must Hen. 4, p. 8, case 10 ; Sutton v. Clarke 6 Taunt. 29; Low v. Mumford, 14 Johns. 426 ; Simpson ;.. Seavey, 8 Greenl. 138; Southard v. Hill, 44 Maine, 02; Sumner ,.•. Tileston, 4 Pick. 308. And see Converse v. Symmes, 10 Mass. 377. In the Abbe de Stratforde's case (7 Hen. 4, p. 8, case 10), an action of trespass on the case was brought against hira, and the plaintill averred that the defendant held certain land, by reason whereof he ought to repair a wall on the bank of the Thames ; that the plaintiff had lands adjoining, and that for default of repairing the wall his meadows were drowned. To which Skrene said : " It may be that the abbot had nothing in the land by cause whereof he should be charged, but jointly with another," "in which case the one cannot answer without the other." In Sutton v. Clarke, 6 Taimt. 29, the suit was against the chairman of a board of trustees of a turnpike, who had caused a trench to be cut in the road, whereby the plaintiff's land was over- flowed. It was held that the other members of the board need not be joined. Low v, Mumford, 14 Johns. 426, was an action for keeping up a mill-dam on the Susquehanna River below the plaintiff's land, and causing the water to overflow it. The defend- ant- pleaded in abatement that he held the lands on which the mill-dam was erected in joint tenancy with other persons who were not made parties. The court above held the joinder un- necessary. Piatt, J., in speaking of the Abbe de Stratforde's case, said : " The gist of the action, therefore, was that the defendant was such proprietor, and had neglected a duty incident to his title. The title to the land on which the nuisance existed was, therefore, directly in question ; for, if the abbot was not the owner of the land, he was not chargeable with neglect nor liable for the nuisance. But in this case the action is for a nuisance arising from an act of misfeasance, 'the keeping up ' a mill-dam on a stream below the plaintiff's land." The title to that land cannot come in question in this suit, for the maintaining such a dam is equally a nuisance, and the defend- ants are equally liable for damages whether the defendants own the land as joint tenants with others, or whether they are sole proprietors, or whether they have any right whatever in it." "Unless the title comes in question, there is no difference in this respect, in cases arising ex delicto between actions merely personal and those wliich con- cern the realty." Sumner v. Tileston, 4 Pick. 308, was an action against three defendants for erecting a dam, by means whereof the plaintiff's mills were obstructed. Two of the defend- ants pleaded in abatement the death of the third, pending the suit ; but the pleas were held ill, as the action was simply ex delicto, and it did not ap- pear that the defendants were charged by reason of their holding real estate as co-tenants. In Converse v. Symmes, 10 Mass. 377, which was also for main- taining a dam and flooding land, the non-joinder of a tenant in common was pleaded in bar, and it was held matter only for abatement. 1 Simpson v. Seavey, 8 Greenl. 138. In this case four persons owned a saw- mill, and three of them erected a lath- mill inside the saw-mill, for their sep- arate use, the rubbish thrown from which obstructed the mills below. It was held, in an action on the case against all the owners of the saw-mill for this injury, that the fourth owner, having no interest in the lath-mill or occupancy thereof, was not liable, 608 THE LAW OF WATERS. [PAET II. arise out of a single and joint act, and immediate juxtaposi- tion of different acts will not make a tort joint. Where a land-owner had covered a stream flowing through his land, and had used the stream as a sewer, and increased the volume of water in the stream, it was held that they could not be made jointly liable ; and that the fact that the effects of their several wrongful acts were produced at the same time and place did not affect the question of liability, but only of damages.^ § 398. Where the injury complained of results from the separate acts of many persons, any one contributing to pro- duce the injury is separately liable for the injury which he causes.^ So where the flow of a stream was obstructed by several distinct causes, and water was thrown back upon the plaintiff's premises, the court said: "If the injury is pro- duced by the joint action of several parties, and especially if it is the result of the independent action of several parties contributing thereto, though not in combination or by con- cert, it is no defence that all are not made defendants " ; but that fact " can be considered only upon the question of dam- ages."^ § 399. It is not necessary that one should be the owner or even occupier of the freehold in order to become liable for erecting a nuisance, and on the other hand the owner is not liable for nuisances erected on his land without his consent. In Dorman v. Ames,* the court said : " It is not necessary in an action of this nature that a person charged with erecting the nuisance should be the owner of the freehold, or any part of it upon which the dam is erected ; it is sufficient if he is a party to the erection of the obstruc- tion claimed to be a nuisance." In Saxby v. Manchester 1 Sellick V. Hall, 47 Conn. 260. Cal. 724 ; Little Schuylkill Nay. Co. 2 Wheeler <,•. Worcester, 10 Allen, v. Richards, 53 Penn. St. 142; .Glad- 591; Chipmanu Palmer, 9 Hun, 517 ; felter ;■. Walker, 40 Md. 1; Buccleuch s. c. 77 N. Y. 51 ; Chenango Bridge r. Cowan, 5 Macph. Sc. Sess. Cas. Co. V. Lewis, 63 Barb. Ill ; Arimond (3rd ser.), 214. V. Green Bay, 35 Wis. 41 ; Hill v. » Wheeler u. Worcester, 10 Allen. Smith, 32 Cal. 166; Keyes c: Little 591. York Gold Washing & Water Co., 53 * Dorman v. Ames, 12 Minn. 451, 456. CHAP. XII.] BEMEDIES AT LAW. 609 Railway Co.,^ the defendants were owners of the soil of a stream which supplied water to two print works, both of which had formerly been occupied by A., who had erected a weir across the stream and diverted water from one of the works to supply the other. The plaintiff, becoming lessee of the former works and entitled to the water from the stream, removed the weir, which was shortly afterwards replaced by A., as it was supposed, but without the authority of the defendants. The court' held that they were not responsible for the acts of A., or for the continuance of the nuisance. So one does not become a party to the wrong by deriving benefit from it. If a mill-owner increases the height of the stream, and in so doing wrongfully flows the lands above, another mill-owner who derives benefit from the increase, but who contributes to it in no way, is not liable for the flowage to those who are injured thereby. But if he pays anything for the benefit which he enjoys, he Avill be liable for the injury caused by the wrong done in producing that benefit.^ ' § 400. At common law an action to recover damages sustained from diversion, obstruction, or flowage, caused by the defendant's wrongful acts, died with the defendant.. But this has been, changed by statute in several of the States.^ § 401. It was at one time doubted whether case could Be- maintained for a nuisance which caused no actual damage to the plaintiff; but the rule is well settled both in England and America, that for any nuisance which infringes upon, the rights of the plaintiff, or which would abridge his present or potential use of his property, the action will lie- although it causes no present actual damage.* ' L. R. 4 C. P. 198. gives a rule apparently contrary 1o 2 Tourtellot v. Phelps, 4 Gray, 370, that above. In Bk. II., c. 30, § 2, 154 376. (1 Nichols's ed. 398), Brition says -. ' Ten Eyck v. Eunk, 31 N. J. L. 428. " Of nuisances, however, s«me arc * Ante, § 214. A statement in both tortious and hurtfoUi.others hurt- Britton (written about 1300 a.d.) ful, yet not tortious-;: tiitereftjpe, it 610 THE LAW OP WATERS. [PART 11. § 402. The case usually treated as the leading case is Duncombe v. Randall,^ where it is said : " If one had anciently ponds which are replenished by channels out of a river, he cannot change the channels if any prejudice accrew to another by that." In Westbury v. Pond, cited in Fineux v. Hovenden,^ it was held that one of a body of people entitled to a common watering-place, which the defendant obstructed, might bring an action on the case, although there was no actual and particular damage to the jjlaintifp. The principal English authorities by which the doctrine opposed to that given above is seemingly supported, are WUliams v. Mor- land,^ Wright v. Howard,* and Miner v. Gilmour.^ In Williams v. Morland the case was for diverting a stream by a dam, and, it was alleged, causing injury to the plaintifFs land. The jury found that the plaintiff was uninjured, but that the defendant had no right to stop the water. The judges all used language seemingly opposed to the rule. Holroyd, J., said : " The mere obstruction of the water which had been used to flow through his lands does not of itself give any right of action. In order to entitle himself ±0 recover, he should show the loss of some benefit, or the ■ deterioration of the value of the premises." But the ground ■ of the decision was that no such damage as that alleged was .shown. In Wright v. Howard, Vice Chancellor Sir John Leach, in deciding upon a bill for specific performance of a ■ contract to purchase land with water-rights, and to which :there was a cross bill for cancellation, remarks obiter: "It -appears to me that no action will lie for diverting or throw- ing back water except by a person who sustains an actual in- jury." But the distinction between actual injury and actual behoves every plaintiff in this case to not tortious, it must be tolerated, show what damage is occasioned to however hurtful it may be " ; which him by the nuisance." This is almost seems to indicate that damage was a copy from Bracton (Bk. 4, c. 43) ; used more in the sense of injury. but the important clause in this con- ^ Hetley, 34. nection is wanting. And Britton con- ^ Cro. Eliz. 664. tinues : " And if the nuisance be ^ 2 B. .& C. 910 ; s. c. 4 Dow. & Ry. , found to be both hurtful and tortious, 583. then matters are to be entirely re- * 1 Sim. & Stu. 190, 203. : stored to their former condition. If ^5X2 Moo. P. C. 131, 156. CHAP. XII.] REMEDIES AT LAW. 611 damage must be observed. In Miner v. Gilmour,i the privy council were called upon to determine the rights of riparian owners. Lord Kingsdo wn, in delivering the opinion, said : " But he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury." Wc shall hereafter notice the application of the rule to the rights of adjacent riparian owners. In Mason v. Hill,^ Denman, C. J., reviewed several of these cases, but declined to pass on the point. He said : " It must not, therefore, be considered as clear that an occupier of land may not recover for the loss of the general benefit of the water without a special use or special damage shown." He referred to Palmer v. Keble- thwaite,^ and Glynne v. Nichols,* where the question was raised, but not decided. In the latter ease it was adjudged for the plaintiff. But the report in Comberbach shows that this was a case of trespass, and therefore not in point. § 403. The later English cases jslace the rule beyond a doubt. In Rochdale Canal Co. v. King,^ the defendants, who owned a mill adjacent to a canal, were authorized by Act of Parliar ment to draw water from the canal for the sole purpose of condensing steam used in their engines. It was found at the trial that they had been drawing the Avater for other purposes, but that they had not thereby obstructed the navigation. The court held that the action woiild lie. Coleridge, J., said: "The water then having been used by the defendants for illegal purposes, the general principle applies, that although no appreciable damage may be sustained in the particular instance by the wrongful act, yet as the repetition of such an act might be made the foundation of claiming a right te do the act hereafter, a damage in law has already been sus- tained, in respect of which an action is maintainable." In Wood V. Waud,® the defendants fouled a stream without rendering the water less available for useful purposes than 1 12 Moo. P. C. 131, 156. But see * 2 Show. 507 ; Comberbach, 43. article in 12 Jur. n. s. (1866) 359. ^ 14 q. b. 122, 134. 2 5 B. & Ad. 1, 27. s 3 Exch. 748, 772. ' 1 Show. 64 ; s. c. Skinner, 65. 612 THE LAW OF 'WATEKS. [PAET 11. before. Pollock, C. B., in delivering the opinion, said : " We think, notwithstanding, that the plaiutiifs have received dam- age in point of law. Tlaey had a right to the natural stream flowing through the land in its natural state." This is a case, therefore, of an injury to a right. The defendants by continu- ing the practice for twenty years might establish the right to the easement of discharging into the stream the foul water from their works." § 404. In Embrey v. Owen,^ which was a suit by a lower riparian proprietor against an upper one for abstracting water, and to^ which we shall again refer, Parke, B., says : "Actual perceptible damage is not indispensable as the foundation of an action ; it is sufficient to show the violation of a right, in which case the law will presume damage ; iw- juria sine damno is actionable." This was followed in Northam v. Hurley.^ In Harrop v. Hirst,^ the court held that an action for diverting water is maintainable without proof of any actual personal damage. Martin, B., said: "The test is whether the doing of the acts complained of would, if continued, bar another person's legal right." So the drawing of a seine in the several fishery of another, although no fish are taken, entitles the latter to damages, on the ground that a repetition of such act for the required time would divest the proprietor of his rights.* § 405. In America, the rule that the action on the case lies for any nuisance infringing the plaintiffs right, although there is no actual damage, is sustained by an almost un- 1 Exch. 353, 368. 679; 1 App. Cas. 662; Claxton v} 2 1 E. & B. 665. Claxton, Ir. Eep. 7 Com. L. (1873) 3 L. R. 4 Exch. 43, 45. The same 23. To same effect see 1 Wms. doctrine is followed in Rose r. Groves, Saund. 3466 (note to Mellor v. Spatc- 5 M. & G. 613 ; Bower v. Hill, 1 Bing. man) ; 2 Notes to Saund. 370 ; Clowes (N. C.) 549; Sampson t>. Hoddinott, 2 v. Staffordshire Waterworks Co., L. C. B. N. s. 590 ; Medway v. Eomney, R. 8 Ch. 125. And see Pennington v. C. B. N. s. 575 ; Crossley v. Light- Brinsop Co., 5 Ch. D. 709, where Fry, owler, L. R. 3 Eq. 279; Bickett i: J., distinguishes the term "injury" Morris [per Lord Westbury) L. R. 1 from "damage." H. L. (Sc. & Div. Ap.) 47; 14 L. T. < Patrick o. Greenway, 1 Wm. N. s. 835 (explained in Ewing v. Col- Saund. 346 6 ; 1 Notes to Saund. 627. quhoun, L. E. 2 App. Cas. 839) ; Lyon And see Chapman v. Thames Manuf. V. Eishmongers Co., L. R. 10 Ch. Co., 13 Conn. 209, 274. CHAP. Xir.] TwEMEDIES AT LAAV. G13 broken series of autliorities.^ In Woodman v. Tufts,^ de- cided in 1837, before most of the English cases above cited, the defendants maintained a dam which caused the water to flow back upon the plaintiffs' land. It was insisted on the part of the defendants that the overflowing had occasioned no actual damage after the plaintiffs became the owners, but the court ruled that if the defendants without right main- tained a dam so high as to overflow the land of the plaintiffs, the presumption of law was that the act was a damage, and no special damage need be shown in order to maintain the action, and this ruling was sustained above. In Webb v. Portland Maniif. Co.,^ which was an equity case between riparian proprietors, Story, J., lays down the rule which is followed by Parke, B., in Embrey v. Owen, above cited, who quoted almost the words of Story. In Tillotson v. Smith,* the defendant increased the head of water in his pond by turning into it another stream, thereby increasing the vol- ume of water flowing over the land of the plaintiff below* The court say: "It is a long established principle of the common law, that wherever any act injures another's right, and would be evidence in future in favor of the wrong-doer, an action may be maintained for an invasion of the riglit, without proof of any specific injury." Similar language is used in nearly all the cases above cited. So where the iWebb V. Portland Manuf. Co., 3 "Wilson, 27 Vt. 670; Tuthill v. Scott, Sumner, 189; Whipple v. Cumber- 40 Vt. 525; Plumleigh a. Dawson. 1 land Manuf. Co., 2 Story, G61 ; Chap- Gilman, 544 ; Hulme v. Shreve, 3 man ;;. Thames Manuf. Co., 1.3 Conn. Green. Ch. 110 ; Pastorius u. Fisher, 269; Parker v. Griswold, 17 Conn. 1 Rawle, 27; Ripka v. Sergeant, 7 288; Branch o: Doane, 18 Conn. 233; Watts. & S. 11; Miller v. Miller, S Newhall v. Ireson, 8 Cush. 595 ; Stow- Penn. St. 74 ; Delaware Canal Co. v. ell !,-. Lincoln, 11 Gray, 434; Blanch- Torrey, 33 Penn. St. 143; Graver u. ard V. Baker, 8 Maine, 253 ; Bateman Sholl, 42 Penn. St. 58 ; Stein v. Bur- V. Hussey, 12 Maine, 407 ; Munroe v. den, 42 Ala. 130 ; Tootle o. Clifton, Stickney, 48 Maine, 462 ; Woodman v. 22 Ohio St. 274 ; Mitchell i'. Barry, 26 Tufts, 9 N. H. 88 ; Cowles v. Kidder, Up. Can. Q. B. 416 ; Hendrick v. 24 N. H. 364, 379 ; Bassett v. Salis- Cook, 4 Ga. 241 ; Chapman v. Cope- bury Manuf. Co., 28 N. H. 438 ; Ger- land, 55 Miss. 476 ; Essen v. McMas- rish 13. New Market Manuf. Co., 30 ter, 1 Kerr (N. B.) 501. N. H. 479, 484 ; Tillotson v. Smith, 82 ' 2 9 N. H. 88. N. H. 90;.Amoskeag Manuf. Co. v. ^3 Sumner, 189. Goodalc, 46 N. H. 53 ; Chatfield v. * 32 N. H. 90, 96. 614 THE LAW OF WATERS. [PAKT II. owners of an ancient mill upon a lake, who had been ac- customed for many years to obtain water for their mill through an artiiicial channel which they maintained in a sand-bar, thereby obtained a prescriptive right to over- flow the adjoining lands to a certain heiglit, and afterwards placed a conduit in the sand-bar which admitted more water and overflowed the adjoining lands to a greater height, it was held that the adjoining owner could maintain an action, although the gradual filling of the ancient channel would have raised the water to the same height.^ § 406. The distinction between the proper use of the stream by a riparian owner, which infringes no right of the other proprietors, although it necessarily modifies the stream in some way, and a use which infringes their rights, although causing no damage, is important. This topic involves the dis- cussion of questions of substantive law which have already been considered,^ but it is so intimately connected with the subject in hand that it must be referred to here. When does the riparian owner's use of the stream cease to be rightful and become a nuisance ? What uses of the stream are per se infringements of the adjacent owner's rights? The answers to these questions doubtless explain the appar- ent conflict of authorities. § 407. The law of England on the point was settled by the opinion of Baron Parke in the case of Embrej'' v. Owen.^ He states the right of the riparian owner to the flow of the stream in its natural state, without diminution or alteration, and then adds : This " is not an absolute and exclusive right to the flow of all the water in its natural state ; if it were, the argument of the learned counsel that every abstraction of it would give a cause of action would be irrefragable; but it is a right only to the flow of the water and the enjoy- ment of it subject to the similar rights of all the proprietors of the banks on each side, to the reasonable enjoyment of the 1 Chapman v. Thames Manuf. Co., " Ante, e. 7. 13 Conn. 260. s 6 Exch. 353. CHAP. XII.] REMEDIES AT LAW. 615 same gift of Providence. It is only, therefore, for an unreasonable and unauthorized use of this common benefit that an action will lie ; for such an use it will ; even as the case above cited from the American reports shows (Webb v. Portland Manuf. Co.), though there may be no actual dam- age to the plaintiff." In the still earlier case of Tyler v. Wilkinson,^ Story, J., uses similar language, saying : " When I speak of this common right I do not mean to be under- stood as holding the doctrine that there can be no diminu- tion whatever, and no obstruction or impediment whatsoever by a riparian proprietor in the use of the water as it flows ; for that would be to deny any valuable use of it. There majr be and there must be allowed of that which is com- mon to all, a reasonable use." "There may be a diminu- tion in quantity, or a retardation or acceleration of the natural current indispensable for the general and valuable use of the water perfectly consistent with the existence of the common right. The diminution, retardation, or accel- eration not positively and sensibly injurious by diminishing the value of the common right, is an implied element in the right of using the stream at all." § 408. The correct answers to the above questions are indicated by these opinions, and the true rule is clearly stated in the case of Wheatlej^ v. Chrisman.^ There a small stream of water flowed through the land of the parties, the defendant being the upper and the plaintiff the lower proprietor. The plaintiff complained that the defendant, who was working a lead-mine, had corrupted the water, and sensibly diminished the volume of the stream. Black, J., in delivering the opinion of the court, said : " If either of these allegations be true the plaintiff has a right to recover in this action ; and if one verdict be not enough to make the defendant discontinue the nuisance, a second jury will be instructed to give such damages as will cause him to wish that he had taken the warning of the first. The wrong must cease, no matter how trifling it may seem. The right of the 1 4 Ma8on, 397, 401 (1827). = 24 Penn. St. 298, 302. 616 THE LAW OF WATEES. [I'AIiX 11. plaintiff is absolute to be restored to the full enjoyment of his own property, and is not dependent in any manner upon its value either to himself or his adversary." " The proposi- tion of the defendant was that he had a legal right to use a reasonable quantity of the water for the purposes of his busi- ness. The court replied that his business might reasonably require more than he could take consistently with the rights of the plaintiff. We cannot see how or on what principle the correctness of this can be impugned. The necessities of one man's business cannot be the standard of another's rights in a thing which belongs to both. The true rule was given to the jury. The defendant had a right to such use as he could make of the water without materially diminishing it in quantity, or corrupting it in quality. If he needed more, he was bound to buy it."^ § 409. In Dumont v. Kellogg,^ the same question came up between upper and lower riparian owners. The upper pro- prietor, by filling a reservoir from a stream, had diminished its volume. Cooley, J., in delivering the opinion of the court, said : " In considering the case it may be remarked at the out- set that it differs essentially from a case in which a stream has been diverted from its natural course and turned away from a proprietor below. No person has a right to cause such a diversion, and it is wholly a wrongful act, for which an action will lie without proof of special damage. It differs also from the case of an interference by a stranger, who by any means, or for any cause, diminishes the flow of the water ; for this also is wholly wrongful, and no question of the reasonableness of his action in causing the diminution can possibly arise." " But as between two proprietors, neither of whom has acquired superior rights to the other, it cannot be said that one 'has no right to use the water to the prejudice of the proprietor below him,' or that he cannot 1 Tlie language of this case is i-. Newton Manuf. Co., 91 111. 230, 245; adopted by Professor Washburn in and Garwood ;>. New York Central his treatise on Easements, p. 266, and Eailroad Co., 17 Hun, 356. is followed in Batavia Manuf . Co. ^ 29 Jlieh. 420, 422, 425. CHAP. XXI.J KEMBD-IBS AT LAW. 617 lawfully ' diminish the quantity which would descend to the proprietor below.' " " Such a rule would be in effect this : that the lower proprietor must be allowed the enjoyment of his full common-law rights as such, not diminished, restrained, or in any manner limited or qualified by the rights of the upper proprietor, and must receive the water in its natural state as if no proprietorship above him existed. Such a rule could not be the law so long as equality of right between the several proprietors was recognized, for it is manifest it would give to the lower proprietor superior advantages over the upper, and in many cases give him in effect a monopoly of the stream." " There may be, and there must be, allowed of that wliich is common to all a reasonable use by each." " The injury that is incidental to a reasonable enjoyment of the common right can demand no redress." Mr. Phear, in his treatise on 'Waters,^ says : " Of course no action will lie either in trespass or nuisance, unless a right be infringed; but if the infringement be proved, nominal damages must be awarded, whether actual damage were a consequence or not. In oases where the right alleged to be infringed is merely the right to be protected from actual damage, manifestly no action can succeed, unless actual damage be proved."^ § 410. In Elliot V. Fitchburg Railroad Co.,^ a railroad company, owning land along a stream, had dammed it to obtain water for their locomotives. It was held that a lower riparian proprietor could not maintain case unless he had suf- fered actual and perceptible damage. Shaw, C. J., said: " The gravamen of the complaint is not for. diverting the stream itself, but for abstracting a part of the water of the stream. This is a right which each proprietor has, if exercised within a reasonable limit. The proper question, therefore, was, whether in the mode of taking, in the quantity taken, ^ P. 107. tinction is stated, but less clearly, in ^ This is somewhat inaccurate of Miner v. Gilmour, 12 Moo. P. C. 131, trespass, since every trespass imports upon which see an important article damage. 3 Bl. Com. 209. For further in 12 Jur. n. s. (1866) p. 359. And discussion of the doctrine stated in see Snow v. Cowles, 22 N. H. 86. the text, see 1 Smith's Lead. Cas., » 10 Gush. 191, 197. See Bigelow's . notes to Ashby v. White. The dis- Leading Cases on Torts, 509. 618 THE LAW OF WATEES. [PAKT n. and the purpose for which it there was taken, was a reason- able and justifiable use of the water by Clark.^ The use being lawful and beneficial, it must be deemed reasonable, and not an infringement of the right of the plaintiff, if it did no actual and perceptible damage to the plaintiff." It will be seen that he distinguishes the case from the typical one by which the plaintiff resists an infringement, which may ripen into an adverse right, or abridge or bar the plaintiff's right. That this is not in conflict with the rule, that the action lies in the latter case, may be inferred from the opinion of the same learned judge in Newhall v. Ireson.^ There the upper proprietor had conveyed water by a pipe to his well upon another tract of land, wholly away from the stream, and returned it into the salt water below the plaintiff's land. Shaw, C. J., says: "This substantial diversion of the water- course, therefore, was unwarranted by any rights of the de- fendants as proprietors above, was an encroachment on the rights of the plaintiff, and prejudicial to her estate. And, although the plaintiff has sustained no present damage be- cause she has had no mill upon it, or otherwise used it for any agricultural or manufacturing purpose, j'et such diver- sion would prevent such beneficial use of it hereafter, and thus impair the value of the estate. It is, therefore, a case where an action can be maintained to vindicate the plaintiffs right, and to prevent a loss of it by adverse possession and lapse of time."^ ^ The defendant's grantor. St. 187, it was held that the use of 2 8 Cush. 595, 599. streams of water for domestic, agri- ^ In the case of Cummings v. Bar- cultiiral, or manufacturing purposes, rett, 10 Cush. 186, 191, Shaw, C. J., being to some extent a public right, also expresses his opinion in similar an action for a nuisance caused by terms as to cases where rights are In- any obstruction or diversion of a fringed. And this rule has been fol- stream for any such purpose, will not lowed by the same court in Bolivar lie unless the damage occasioned Manuf. Co. v. Neponset Manuf. Co., thereby is real, material, and sub- 16 Pick. 241 ; Hastings v. Livermore, stantial. For other authorities, that 7 Gray, 194 ; Stowell v. Lincoln, 11 an insensible or minute diminution, Gray, 434; and Lund v. New Bed- or interference with a stream by a ford, 121 Mass. 286. The doctrine of riparian owner in the course of a Elliot 17. Ktchburg Railroad Co. is proper use of the stream, not causing in accord with decisions in other damage, is no infringement of other States. In McElroy v. Goble, 6 Ohio riparian proprietors' rights, and is CHAP. XII,] IlEjrBDIBS AT LAW. 619 § 411. The question whether damages shall be computed only up to the beginning of the action, or shall include pro- spective damages, is one o£ considerable difficulty. The gen- eral rule, stated by Mayne, is that damages arising subsequent to action brought, or even to the date of the verdict, may be taken into consideration when they are the natural and nec- essary result of the act complained of, and where they do not themselves constitute a new cause of action.^ This general principle must be applied to single nuisances, to continuing and permanent nuisances, to acts which are wrongful only when causing damage, to single trespasses and continuing trespasses, and to cases where adverse rights are acquired by the party answering in damages. For the purpose of illus- trating the leading distinctions made by the courts, we have distributed these cases into several classes. § 412. First. Nuisances and acts wrongful only when causing actual damage ; i.e., where damage is the gravamen of the action.^ In these cases, only the damages actually accrued before action brought can be recovered ; and any further damage must be recovered in a separate action when it actually accrues.^ This class includes cases where the acts not actionable, see Wadsworth c. Til- ^ Mayne's Law of Damages {3d ed.), lotson, 15 Conn. 336; Martin v. Bige- 84. low, 2 Aik. (Vt.) 184; Pord o. Whit- "- See Whitehouse v. rellowes, 10 C. lock, 27 Vt. 265 ; Canfield c. Andrew, B. rr. s. 765 ; Lamb v. Walker, 3 Q. B. 54 Vt. 1. And cases cited ante, §§ 204, Div. 389 (dissenting opinion of Coek- 214. In Sandwich i'. Great Northern burn, C. J.); Delaware & Raritan Railway Co., 10 Ch. D. 707, the facts Canal Co. v. Wright, 21 N. j. l. 469. were very similar to those in Elliot v. ^ Ibid. ; Waggoner v. Jermaine, 3 Pitchburg Railroad Co. On a bill for Denio, 306 ; Baldwin v. Calkins, 5 an injunction Vice-Chancellor Bacon Wend. 167, 179; Phillips c. Terry, 42 laid down the same rule, and denied the N. Y. 313; Whitemore v. Bischoff, 5 injunction. But if a railway company, Hun, 176 ; Duryea v. Mayor, 26 Hun, as riparian owner, appropriates so much 120; Beckwith v. Griswold, 29 Barb, of the water as perceptibly to reduce 291 ; Thayer v. Brooks, 17 Ohio, 489; the volume in the stream, and mate- Polly v. McCall, 1 Ala. Sel. Cas. 246 ; rially to diminish the power of a mill 37 Ala. 20 ; Stein v. Burden, 24 Ala. below, the company will be liable for 130; Savannah Canal Co. v. Bour- all damages caused thereby. Gar- quin, 51 Ga. 378 ; v. Deberry, 1 wood V. New York Central Railroad Hayw. (N. C.) 248; Carruthers v. Ho., 83 N. Y. 400. Tillman, Id. 501 ; Bradley v. Amis, 2 Id. 399; Shaw v. Etheridge, 3 Jones 620 THE LAW OF ■WATERS. [PART 11. complained of are interrupted and repeated, as in the open- ing and closing of the gates of a dam ; ^ cases where, from a single act, not wrongful in itself, new damages result from time to time, and constitute new causes of action ; and, on principle, would include all cases of nuisances, single and continuing. In Whitehouse v. Fellowes,^ the trustees of a turnpike had converted an open ditch at the side of their road into a covered drain. In heavy storms this drain was inadequate to the carrying off of the water, and in conse- quence the plaintiff's lands were overflowed. Williams, J., said : " In considering the first point, I assume that an in- jurious act was dojie to the plaintiff, by reason of the defend- ants' improper management of the catchpits, whereby the water which ought to have passed down the drain was caused to flow into the plaintiff's pits. The question is whether the plaintiff is bound to rest his complaint upon the original con- struction of the works, or whether he can maintain an action after the expiration of three months from that time " (the period of a special statute of limitation). "I am of opinion that the continuance by the defendants of that negligent and improper condition of the road under their charge, if accom- panied by fresh damage to the plaintiff, constitutes a fresh cause of action." " Suppose an action to have been com- menced immediately after the first injury accrued to the plaintiff's pits from the flow of water down the road in ques- tion ; when that cause came to be tried, the only ques- tion would be how much damage the plaintiff had actually sustained. It would be monstrous injustice to hold that the jury must assume that the defendants would persevere in (N. C.) 300; Burnett v. Nicholson, Canal Co., Ir. Eep. 9 C. L. 194, where 86 N. C. 90 ; Duncan v. Markley, it is held that in actions for damages 1 Harper (S. C.) 270; Langford u. caused hy continued obstruction, the Owsley, 2 Bibb (Ky.) 215; Cobb v. statute runs from the time the special Smith, 38 "Wis. 21 ; Hazeltine v. damage complained of occurred. To Case, 46 Wis. 301 ; Dorman v. Ames, the same effect see Van Orsdol u. B. 12 Minn. 451 ; Clark ;,. Nevada Min- C. R. & N. R. Co., 50 Iowa, 470. ing Co., 6 Nev. 203. See Hodges i So in case of the occasional erec- V. Hodges, 5 Met. 205 ; McConnel v. tion of flash-boards upon a dam, Kibbe, 29 111. 483. As to the statute causing damages from time to time, of limitations, see Sutton u. Clarke, Noyes v. Stillman, 24 Conn. 15. 6 Taunt. 20; and Deverry v. Grand 2 iq C. B. n. s. 765, 781. CHAP. XII.] REMEDIES AT LAW. 621 their wrongful conduct, and that the damages must be as- sessed upon that assumption. All that the jury could do would be to find what damages the plaintiff had sustained from the wrongful act complained of, and thej^ would be told to give him such damages as they might find he had sustained down to the time of the commencement of the action." ^ § 413. Most of these cases turn upon the principle that eyery continuance of a nuisance is a new nuisance.^ In Beck- with V. Griswold,^ the action was for damages caused by obstructing and changing the channel of a creek and divert- ing its waters and causing them to overflo.w the plaintiff's lands. The plaintiff had already had one recovery for dam- ages caused by the same act. The court held that the former recovery was no bar to the present action. Balcom, J., said: "The plaintiff recovered damages in the first suit 'for erecting and continuing the obstructions in the channel of the creek, by the defendants, to the time he commenced that suit, and he has only recovered damages in this action for continuing such obstructions from the time the first suit was commenced to the time of the commencement of this one."* § 414. In Duryea v. Mayor,^ the action was for damages caused by the wrongful discharge of water and sewage upon the plaintiff's lands. Daniels, J., said:- "As the discharges flowed from the sewer upon the plaintiff's property, they constituted a nuisance ; and for that nuisance a distinct and separate action might have been brought by him for every discharge made by the sewer upon his property. Each dis- charge was in and of itself a substantive cause of loss, and for that reason constituting a separate right of action." " As to wrongs of this nature, their continuance has been uniformly ^ For similar reasoning applied to ^ Beckwith!).Griswolcl,29Barb. 291. the subsidence of land, from the re- * This case is cited with approval moval of lateral support, see the dis- in Munson r. People, 5 Parker, C. C. senting opinion of Cockburn, C. J., in 16. The same rule is laid down in Lamb v. Walker, 3 Q. B. Div. 389. Bradley v. Amis, 2 Hayw. (N. C.) 399. " '". Bl. Com. 220. « Duryea v. Mayor, 26 Hun, 120, 122. 622 THE LAW OF WATERS. [PAET II. held to be an additional nuisance, forming of itself the sub- ject-matter of an action, and for that reason only such damages could be recovered for the causes alleged in the complaint as the ground of action, as originated solely from that source before the commencement of the action." Thayer V. Brooks ^ was an action on the case for nuisance in divert- ing water from the plaintiff's mill by means of a ditch. The court say : " The court instructed the jury that the owner of the mill might recover for the injury sustained by the diminution in value of the mill-site, consequent upon the diversion of the water. This was going too far. Supposing the party liable at all, he was only liable, under any form of declaration, for the damages actually sustained prior to the commencement of the suit." § 415. If a person continues a nuisance after its wrongful character has been judicially determined, and damages have been recovered against him, the case becomes one for exem- plary damages.^ In a second action, the plaintiff should be awarded damages sufficient to compel the defendant to abate the nuisance.^ 1 Thayer v. Brooks, 17 Ohio, 489. way affected the rights of the parties In Hayden o. Albee, 20 Minn. 159, in the first action, pending in the tliis principle is departed from. The circuit court. action there was for damages to plain- ^ Bradley v. Amis, 2 Hayw. (N. C.) tiff's land resulting from an overflow 399. caused by defendant's dam. The ^ Ibid. See u. Deberry, 1 jury Were allowed to include in the Hayw. 248; Carruthers v. Tillman, 1 damages the value of timber caused Hayw. 501 ; Clyde v. Clyde, 1 Teates, to die by the flowage, although the 92 ; Walker v. Butz, 1 Yeates, 574 ; timber did not die until after the Mayor v. Commissioners, 7 Penn. St. action was begun. In Hazeltine i/. 348, 366 ; Wheatley v. Chrisman, 24 Case, 40 Wis. 891, a lower riparian Penn. St. 298. In Battishill v. Reed, owner had brought one action against 18 C. B. 696, where the action was an owner above, for fouling the for the nuisance of overhanging eaves, stream, and had obtained judgment Jervis, C. J., said : " Every daj* that from which the defendant appealed, the defendant continues the nuisance, While such appeal was pending, the he renders himself liable to another plaintiff brought a second action be- action. I think the jury did right to fore a justice of the peace for dam- give, as they generally do, nominal ages accruing since the date of the damages only in the first action ; and, first action. It was held that the if the defendant persists in continu- action would lie, and further that a ing the nuisance, then they may give judgment in the second action in no such damages as may compel him to CHAP. Xn.] KEMEDIES AT LAW. 623 § 416. But the rule as to the class of cases is subject to an important modification where the injury complained of is permanent. In such cases, the rule is altered for the sake of convenience, and but one action is allowed. The plaintiff is required to recover in one suit the entire damages, present and prospective, caused by the defendant's act.^ Injuries caused by permanent structures infringing upon the plain- tiff's rights in his land, such as railroad embankments, culverts, and bridges, permanent n dams and permanent pollutions of water, fall in this class. The leading case of this class is Troy v. Cheshire Railroad Co.^ This was an action on the case by a town against a railroad company for damages caused by building a railroad bridge across the public highway, obstructing the highway, and demolishing a public bridge. The plaintiff recovered and was allowed to include in its damages the prospective increased cost of maintaining the highway. In delivering the opinion of the court, Bell, J., said: "Wherever the nuisance is of such a character that its continuance is necessarily an in- jury, and where it is of a permanent character that will continue without change from any cause but human labor, there the damage is an original damage and may be at once fully compensated, since the injured person has no means" to compel the individual doing the wrong to apply the labor necessary to remove the cause of injury, and can only cause it to be done, if at all, by the expenditure of his own means. But where the continuance of such act is not abate it, but not, as was insisted here, 397 ; Fowle v. New Haven & Nortb- the difference between the original ampton Co., 107 Mass. 352 ; 112 Mass. value of the premises and their pres- 334 ; Powers v. Council Bluffs, 45 la. ent diminished value." In Delaware, 654; Chicago & Alton Eailroad Co. o. by statute, the owner of an upper Maher, 91 111. 312 ; Van Schoick v. mill is bound to give notice to the Delaware & Earitan Canal Co., 20 N. owner of a lower mill before dis- J. L. 249 ; Seely v. Alden, 61 Penn. charging an unusual quantity of St. 302 ; Van Orsdol u. B. C. R. & N. water, and if he wilfully discharges E. Co., 56 Iowa, 470. water in an unusual quantity, he is " Troy v. Cheshire Eailroad Co., 23 liable for double damages. Mcllvane N. H. 83. For a suggestion of the V. Marshall, 3 Har. (Del.) 1 ; Eoss. u. convenience of one action instead of Horsey, 3 Har. (Del.) 60. several, see Duncan v. Sylvester, 24 1 Troy V. Cheshire Eailroad Co., 23 Maine, 482. N. H. 83; Warner v. Bacon, 8 Gray, 624 THE LAW OF WATERS. [PAET II. necessarily injurious, and where it is necessarily of a perma- nent character, but may or may not be injurious, or may or may not be continued, there the injury to be compensated in a suit is only the damage that has happened. Thus the individual who so manages the water he uses for his mills as to wash away the soil of his neighbor, is liable at once for all the injury occasioned by its removal, because it is, in its nature, a permanent injury; but if his works are so constructed that upon the recurrence of a similar freshet the water will probably wash away more of the land, for this there can be no recovery until the damage has actually arisen, because it is yet contingent whether any such dam- age will ever arise. A person erects a dam upon his own land, which throws back the water upon his neighbor's land; he will be answerable for all damage which he has caused before the date of the writ, and ordinarily for no more, be- cause it is as yet contingent and uncertain whether any further damage will be occasioned or not, because such a dam is not of its own nature and necessarily injurious to the lands above, since that depends more upon the manner in which the dam is used than upon its form. But if such a dam is in its nature of a permanent character, and from its nature must continue permanently to affect the value of the land flowed, then the entire injury is at once occasioned by the wrongful act, and may be at once recovered in damages. In one of the cases which arose from the building of the great canals of New York, the case was that a high dam was erected upon the falls of the Hudson for the purpose of diverting the waters of the river into a feeder for the canal; the lands of an owner above were buried twenty feet under water, and their value to him, of course, entirely destroyed ; the work was in its nature and design permanent. There it would be clear that the party injured would be entitled to recover the entire damages he had sustained, and must sus- tain in a single action, in truth, substantially the entire value of his property." The court also cited Woods v. Nashua Manuf. Co.,1 which was a case of taking lands for a canal.^ It will 1 Woods 11. Nashua Manuf. Co., 5 N. ^ ggg Powers v. Council Bluffs, 45 H. 467. Iowa, 652. Here the city constructed a CHAP. XII.] ' EBMBDIBS AT LAW. 626 be observed that the case itself was one for damages by building a railroad, and that the two cases cited in the opinion are cases for damages by building canals. They resemble the cases of eminent domain, of which we shall speak hereafter, but the reasoning is extended by the court to all permanent nuisances. § 417. In Fowle v. New Haven & Northampton Co.,^ where the action was for the washing away of the plaintiff's land by the diversion of' a stream caused by building a railroad embankment. Gray, J., said : " The embankment of the defendants was a permanent structure, which, without any further act except keeping it in repair, must continue to turn the current of the river in such a manner as gradually to wash away the plain tifPs land. For this injury the plain- tiff might recover in one action entire damages, not limited to those which had been actually suffered at the date' of the writ. And the judgment in one such action is a bar to another like action between the parties for subsequent ditch so that it emptied into a main injury is not permanent, if it depends stream by a fall of several feet, in- upon human volition, as the mainte- stead of grading the bed of the ditch nance of a mill-dam, the damages to the level of the stream. The action cannot be foreseen and estimated." of the water washed out a cavity at So where a railroad company erected the fall, which worked backward up an embankment for its track, which the channel of the ditch, and at closed the natural channel of a stream,, length washed out portions of the and diverted water from land, it was plaintiff's soil, for which injury he held that the injury was a permanent brought stiit. The period of the one, for which damages might be at statute of limitations had run after once fully recovered. Stodghill c. C. the stream began to wash out his B. & Q. R. R. Co., 53 Iowa, 341. premises, but there were recent dam- Where a town is required by law to ages within the period. It was held repair and maintain a road washed that the nuisance was a permanent out by the overflow of a mill-pond, one, the damages from which were it may recover the cost of repairs calculable from the first; and that and of building a wall protecting it the entire action was barred. The against future injuries. Andover v. coiu-t quoted and applied the rule in Sutton, 12 Met. 182. Sec, also, Bald- Troy V. Cheshire E. R. Co., supra, win v. Oskaloosa Gas Light Co., 57 and said: "In the light of it (this Iowa, 51, and Dickson v. Chicago, R. prmciple) we can see that, in a case of I. & P. R. R. Co., 71 Mo. 575, where overflow from a mill-dam, the injured the doctrine is considered by the party should be allowed to maintain court, successive suits." " If the cause of the 1 10-7 Mass, ,35a ; 112 Mass. 334. 626 THE LAW OP WATERS. [PART II. injuries from the same cause." In the later report of the case, after further proceedings, Colt, J., said : " The case at bar is not to be treated strictly in this respect as an action for an abatable nuisance. More accurately it is an action against the defendant for the construction of a public work under its charter in such a manner as to cause unnecessary damage by want of reasonable care and skill in its con- struction. For such an injury the remedy is at common law. And if it results from a cause which is either permanent in its character, or which is treated as permanent by the parties, it is proper that entire damages should be assessed with reference to past and probable future injury." § 418. In the case of Chicago & Alton Railroad Co. v. Maher,^ the action was for damages caused by a railroad drawbridge which spanned the river upon which the lot fronted, immediately at the corner ' of the lot, and by its supports obstructed the access of vessels to the plaintiif's dock. The bridge in question was erected while the property ■was owned by the plaintiif's husband, and he conveyed it to .lier without bringing suit for the obstruction. She then rbrought the action for the injuries caused. The court held -that the structure was permanent, and the damages entire, .and that the total right of action therefor had vested in the grantor, and could not be transferred.^ -§ 419. To this class must be referred the cases of nuisance ;for which the measure of damages is the depreciation in the 1 91 111. 312, relying on C. & P. It. 92 111. 19, the action was for the continu- E. Co. 0. Stein, 75 111. 41, which was ance of a nuisance by the maintenance •a case of eminent domain, with facts of gas works, polluting the water sup- ; like those in the, Maher case; and on ply of the plaintiff. The plaintiff Ottawa Gas Light & Coke Co. v. Gra- had formerly recovered for the depre- ham, 28 111. 73. This was a case ciation in value of his premises from \where a well was polluted by percola- the same cause, and that recovery .tions from the defendant's gas works, was held a bar to any further action The court held that the measure of for the same cause. ..damages was the depreciation in the ^ pgr u, similar ruling, see Ortwine • value of the property caused thereby, v. Baltimore, 16 Md. 387. In Decatur Gas Light Co. v. Howell, CHAP. Xn.J KEMEDIBS AT LA"W. 627 value of the property injured.^ Such damages are for the permanent injury to the property, although the injury to the use of it is distinguished by some cases as an additional item not included ; ^ and having been recovered once, no further action lies for that cause. ^ In Seely v. Alden* the action was for the pollution of a stream by throwing tan bark into it, and the plaintiff contended that he should be allowed the depreciation in the value of his premises, which was allowed by the court. Agnew, J., said : " If, therefore, a permanent injury was created by the lodgement of the tan bark in the pool of their dam, which actually depreciated the property in value as a water-power, it must affect the price or value of the land to which it belonged, and why should this not be compensated in damages? It is difficult to give a good reason against it. The plaintiffs in that case have lost just so much in the value of their property by the illegal act of the defendant. Compensation for the diminished enjoyment or use of the property for a certain number of years is no com- pensation for the diminished value of the estate itself. The profit of the land must not be confounded with the land itself." " The argument of the defendant in error is that the injury is only temporary, the tan bark being light and removable by freshets. But this assumes the fact. The' plaintiffs declared upon the deposit as an injury to theii' freehold, alleged it to be permanent in its character, and offered evidence to this effect. The fact was one to be decided by a jury ; but in assuming that the injury was only to the use of the property for a certain period of time, the court withdrew the fact of permanency. If the deposit was of a temporary character, it was the subject of proof, and the defendant's right to an instruction to the jury to con- ' Chase v. New York Central Rail- Finley v. Hershey, 41 Iowa, 389. And road Co., 24 Barb. 273 ; Easterbrook see Anon., 4 Dall. 147. V. Erie Eailway Co., 51 Barb. 94 ; ^ Illinois Central Eallroad Co. ». Hanover Water Co. v. Ashland Iron Grabill, 50 111. 241, 246. Co., 84 Penn. St. 279 ; Seely v. Alden, " Chicago & Alton Railroad Co. v. CI Penn. St. 302 ; Minnequa Spring Maher, 91 111. 312. Co. V. Coon (Penn.), 12 Reporter, 763 ; * Seely v. Alden, 61 Penn. St. 302, Marsh <,-. Trullinger, Oregon, 356; 300. G28 THE LAW OF WATERS. [PAET IT. fine the damages to the vise during its temporary existence, depended on the finding of the fact." ^ § 420. The law will not presume a permanent injury. In order to recover such damages the plaintiff must aver and prove that the act complained of necessarily causes a perma- nent injury to the value of his property.^ In Battishill v. Keed,^ which was for the nuisance of overhanging eaves, Creswell, J., said : " The plaintiif had no right to assume that things would remain as they were." In Bare v. Hoffman,* which was an action for diminishing the volume of a stream, the court above said : " The whole damage of which the de- fendant in error complained was caused by Bare's placing a pipe in the stream on his own land. A severance of the pipe would cause the water to run in the accustomed channel, and remove the whole cause of complaint. It is not the case of an entry on the land of the defendant in error, and a sever- ance of any part of his freehold, nor of depositing a permanent nuisance thereon." " The act he committed was not of such a permanent character as to assume it to continue through all coming time, and to justify the assessment of damages accord- ingly. The general rule is that successive actions may be brought as long as the obstruction is maintained. A recovery in the first action establishes the plaintiff's right. Subsequent actions are to recover damages for a continuance of the obstruction." § 421. Second. Insingle trespasses the act complained of is a direct injury in itself, and the damages are merely consequen- tial. Fresh damages from the trespass do not give a fresh cause of action, and the plaintiff must recover the entire 1 In Hatch v. Dwiglit, 17 Mass. 289, 10 C. B. n. s. 765 (see ante, § 412) ; where a mortgagee was given as Bare v. Hoffman, 79 Penn. St. 71; damages the interest on the value of Burnett i'. Nicholson, 86 N. C. 99; a mill-site from the time the action Clark v. Nevada Land & Mining Co., accrued. 6 Nev. 203. And see Hoagland v. ^ 1 Sutherland on Damages, 199 ; Veghte, 30 N. J. L. 516, and Coming Sedgwick, Leading Cases on Dam- t. Ti-oy Iron Factory, 29 Barh. 311. ages, 662 (note) ; Battishill v. Reed, » Battishill r. Reed, 18 C. B. 658. 18 C. B. 658 ; Whitehousc r. Fcllowos, ^ Bare r. Tloaman, 79 Penn. St. 71. CHAP. Xn.] EEMEDIES AT LAW. 629 damages from the trespass in a single action.^ In Oakley V. Kensington Canal Co.,^ a canal company entered upon the plaintiff's land, and dug it aw.ay for the purpose of sloping the banks of their canal, in consequence of which the land was overflowed at every high tide. It was held by Lord Denman, C. J., that the injury was complete when the trespass was committed, and that no new cause of action arose with every overflow. In Clegg v. Dearden,^ the defend- ant trespassed upon the plaintiff's land by making an exca- vation into his mine, through which water flowed into the mine. Lord Denman held that the cause of action was complete when the excavation was made, and that his fail- ure to fill up the excavation was not a new cause of action. "The defendant, having made an excavation and aper- ture in the plaintiff's land, was liable to an action of tres- pass ; but no cause of action arises from his omitting to re- enter the plaintiffs land and fill up the excavation. Such an omission is neither a continuation of a trespass, nor of a nui- sance, nor is it the breach of any legal duty." * ^ Oakley «. Kensington Canal Co., J., said: " So far as the company had 5 B. & Ad. 138 ; Clegg v. Dearden, 12 acted, its action was finished when ft Q. B. 575; Kansas Pacific Railway had dug the ditches. It had invaded Co. u. Mihlman, 17 Kansas, 22-1 ; Ved- Mihlman's rights ; it had committed a der V. Vedder, 1 Denio, 257 ; White «. trespass on his lands. It was then re- Mosely, 8 Pick. 657 ; Dickinson ^■. sponsible in an action for the injury Boyle, 17 Pick. 78. To same effect it had done by that trespass. Such see Williams v. Pomeroy Coal Co., 37 action might have been brought im- Ohio St. 583. A former judgment in mediately, and in such action could trespass for the same cause, as for have been recovered all damages done flowage constituting a trespass, be- to Mihlman by the trespass, and which tween the same parties, is conclusive might have included the cost of restor- in the absence of new circumstances, ing the ground to the condition it was Dick V. Webster, 6 Wis. 481. before the digging of the ditches." '^ 5 B. & Ad. 138. Where the original act itself is not an ' 12 Q. B. 576. invasion of the plaintiff's rights, then * See, also, Kansas Railway Co. v. there is no cause of action until such Mihlman, 17 Kansas, 224. In this case act has caused damage, and the right the defendant entered upon the plain- of action dates from that time. On tiff's land and dug a ditch thereon, the other hand, where the original act diverting waters from their natural is unlawful and an invasion of the channel, and causing them to overflow plaintiff's rights, the cause of action the plaintiff's land. It was held the dates from that act, and a new cause trespass itself constituted the invasion of action does not arise from new of the plaintiff's rights, and that the damage resulting therefrom. Ibid. cause of action was complete. Brewer, 6S0 THE LA"W OF AVATEES. [PAET 11. § 422. In DeCosta v. Massachusetts Mining Co.,i the de- fendant had dug a ditch on the plaintiff's land. It was held that the plaintiff could not recover as damages a sum sufficient to fill up the ditch, or any prospective damages. Cope, J., said : " The plaintiff could not recover beyond the injury sus- tained, and it was improper to award compensation for an ex- pense which might never be incurred. It is possible that the cost of filling up the ditch may far exceed any injury result- ing from it in its present condition, and in that case it is not probable that the amount recovered would ever be used for tliat purpose." Vedder v. Vedder ^ illustrates the distinction between the consequences of a single trespass and a continu- ing nuisance. The defendant trespassed on the plaintiff's land and polluted his stream by placing foul matter therein. The plaintiff afterwards gave him, for a valuable considera- tion, a discharge and satisfaction " of all demands to date." It was held that such discharge extinguished all right of a,ction, not only for the original injury and the damages up to that time, but for all future damages occasioned by the nuisance. The court say: "If the nuisance had been placed on the defendant's land, at the head of the stream, so as thereby to have proved equally injurious to the plaintiff, an accord and satisfaction, or a release of all demands to the 1st of June, would not have barred an action for the continuance of the nuisance after that day. Every succeeding injury after that time would have been a new and distinct cause of action. But that is plainly distinguishable from this case." § 423. Third. In the case of continuing trespasses, the rule is altered to conform to that for continuing nuisances. 1 17 Cal. 613. recovered in former suits. The plain- 2 1 Denio, 257. In Law v. Mc- tiff afterwards brought another suit Donald, 62 How. Pr. 340, this rule was for tlie further damage arising from applied to the wrongful interruption the continued lack of water supply, of an easement. The plaintiff had an It was held that the cause of action easement to obtain the water supply was complete at the former suit, for his house by a pipe laid from a There was no prevention of the plain- spring on the defendant's land, and the tiff from re-laying the pipe after the defendant had wrongfully cut the pipe, former recovery, but only the con- and prevented the plaintiff from re- tinued damage. laying it ; for which the plaintiff had CHAP. XII.] REMEDIES AT LAW. 631 In such cases, only the damages which have happened before action brought are recoverable, and successive actions may- be brought to recover any damages happening thereafter. " The continuing of a trespass from day to day," says Sergeant Williams,^ " is considered in law a several trespass on each day, and must be directly and positively answered by the defend- ant, us well as the original trespass."^ The leading case is that of Holmes v. Wilson.^ There the defendants, as trus- tees of a turnpike road, had built buttresses on the land of the plaintiff to support the road. The plaintiff had recovered damages for the erection of the buttresses in a former suit, and now brought an action of trespass against the defendants for wrongfully continuing them on his land, and it was held the action would lie. Lord Denman, C. J., said : "The former and the present actions are for different trespasses. The former Avas for erecting the buttresses. This action is for con- tinuing the buttresses so erected. The continued use of the buttresses for the support of the road, under such circum- stances, was a fresh trespass." § 424. In Battishill v. Reed,* the nuisance consisted of overhanging eaves and gutters. Evidence of the diminution in the value of the property was rejected. The court above sustained the ruling, and held that the defendant was liable 1 1 Wms. Saund. 20, note 1, to continues afterwards," damage may- Manchester d. Vale, be recovered for it; but Ilolt, C. J., 2 Citing Monkton u. Pashley, 2 Ld. said "lie was not satisfied that the Raym. 976. parity would hold, for the git of the " Holmes v. Wilson, 10 A. & E. action in a nuisance is the damage ; 503. See Bowyer v. Cook, 4 C. B. and therefore, as long as there are 236. An earlier case, not referred to damages there is ground for an ac- in Holmes v. Wilson, is the case of tion; but trespass is one entire act. Farmers of Hampstead Water, 12 and the very tort is the git of the Mod. 519. There, says the report, action; and therefore, he said, ho " upon executing a writ of enquiry of doubted whether an action would lie damages in trespass, for digging a for the continuance of a trespass, as hole in the plaintiff's soil, whereby his for that of k nuisance." Lord Holt's land was overflown, continuando trans- reasoning would require the entire (pvssionem, for nine months, and it damages to be recovered in one action. was insisted that they might give evi- * Battishill v. Reed, 18 C. B. 696. clence of a consequential damage, after The overhanging of an eavo is a tres- the nine months, as well as in a nui- pass, and the result is the same as in ^ sance which continues for nine months. Holmes v. Wilson, and the cause is removed, if the effect 632 THE LAW Oi' WATERS. [l-AET XI. to a new action for every day of its continuance. The rule is stated in the same way in Maine. Continuing trespasses and continuing nuisances are placed in the same class as cases for successive actions, the damages in each being com- puted only until action brought. In Cumberland Canal Co. V. Hitchings,! the defendant, acting for the city of Portland, had filled up the bed of the canal with a solid embankment for a street. The court said : " When something has been unlawfully placed upon the land of another which can and ought to be removed, then, inasmuch as successive actions 1 Cumberland Canal Co. o. Hitch- ings, C5 Maine, 140. And see Russell i\ Bro^vn, 63 Maine, 203. The same I^roposition is stated as to continuing trespasses in Savannali Canal Co. z'. Bourquin, 51 Ga. 378 ; but tlie case is one of overflowing plaintiff 's lands by- reason of the defendant's negligence. !For successive single trespasses " to the plaintiff's close and dam, succes- sive actions lie. Wliitc v. Mosolcy, 8 Pick. 657. Mr. Mayne (Mayne on Damages, 89), after reviewing some of these cases, says : " In fact the whole law upon the subject of damages in the case of continuing nuisances or trespasses seems in a very unsatis- factory state." For continuing tres- passes, such as building a house on another's land, he says : " The fair rule in such a case would be to give the plaintiff such damages as would compensate him for the loss sustained up to the time of the verdict, and would pay him for putting the land into its original state. If he chose to leave the trespass after this, it would clearly be because he thought it advantageous to himself ; and if so, he ought not to be allowed to sue again." And he cites a ' case where such damages were allowed in an ac- tion on a covenant to repair. Short- ridge V. Lamplugh, 2 Ld. Raym. 798- 803. The reporter of Holmes v. Wil- son (10 A. & E. 503) indicated this rule in a note at the end of the case. He says ; " Quaere whether the plain- tiff, in the principal case, might not have recovered damages in respect of the expense of removing the but- tresses herself; and the effect of such recovery." The point is di- rectly considered in Kansas Pacific Railway Co. v. Mihlman, before re- ferred to (17 Kansas, 232). Speaking of Holmes v. Wilson, the court said : " It seems to us very doubtful whether this ruling can be sustained upon principle. As suggested by the re- porter, suppose the plaintiff had re- covered, as a part of his damages in the first action, as he properly might, the expense of removing these but- tresses, and this fact had appeared in the second suit, could the action have been maintained? And what differ- ence, we ask, does it make whether he did actually recover for such expense ' It was a proper matter of damages; it was a part of the amount necessary to place the land as it was before the trespass ; he was entitled to recover it, if he proved it ; and if he failed to prove it, or if after proving it the court refused to allow it, neither the failure nor the error laid the founda- tion for a second action." The rule of allowing the cost of restoring the premises was rejected in Easterbrook V. Erie Railway Co., 51 Barb. 94, and De Costa o. Massachusetts Mining Co., 17 Cal. 613, on the ground that such cost might exceed the value of the soil itself, or the injury suffered. CHAP. Xn.] REMEDIES AT LAW. 633 may be maintained, until the wrong-doer is compelled to remove it, the damages in each suit must be limited to the past and cannot embrace the future." They distinguish it from the cases of permanent injuries on the ground that the canal should have been bridged and not filled up. § 425. The subjects of venue and territorial jurisdiction are so intimately related that we shall take them up together, considering, first, the venue of private actions and of indict- ments; secondly, the jurisdiction, as between the States, of suits at law and in equity for injuries affecting waters ; and, thirdly, the jurisdiction over such injuries exercised by the federal courts. § 426. Actions for nuisances and trespasses are local, and in them the venue must be laid and the trial held in the county where the injury was committed, or where the cause of action arose. For such injuries to or by means of waters as constitute trespasses, the action of trespass quare clausum must be brought in the county where the injured land lies.^ The rule is the same for nuisances, except where the act causing the injury is done in another county, to which case we shall presently refer.^ In these actions it is held siif- ficient to lay the venue in the body of the county, and if the place be more particularly alleged, the allegation is surplus- age, and variance of proof therefrom is immaterial.^ Where an ' Shelling v. Farmer, 1 Strange, part of the injured property lies in 640 ; Berwick u. Ewart, 2 Wm. Bl. one county and part in another, pro- 1070 ; Doulson v. Matthews, 4 T. R. vision is sometimes made by statute, 503, limiting Mostyn v. Fabrigas, allowing the action to be brought in Cowper, 161; s. c. 1 Smith's Ldg. either county. Thus in Pennsylvania, Cas. ; Livingston v. Jefferson, 1 Brock, under St. 1836, June 13, §§ 79, 80, on 203; Eoach v. Damron, 2 Humph, actions real, where an action was 425; Champion v. Doughty, 3 liar, brought for injuring a mill and dam, (N. J.) 3; Ham v. Rogers, 6 Blaekf. the mill and part of the dam being in 559 ; Chapman v. Morgan, 2 G. Greene, one county, and the remainder of the 374. dam being in another county, it was '^ That the action for nuisance is held that the whole was a " single local, see Warren v. Webb, 1 Taunt, tenement," and that suit could be 379 ; Mersey & Irwell Navigation Co. brought in either county. Finney v. v- Douglas, 2 East, 497 ; 1 Chitty PI. Somerville, 80 Penn. St. 59. 281; Cooley on Torts, 471. Where ^ Mersey Navigation Co. r. Douglas, 634 THE LAW OF "WATEES. [PAET 11. action on the case was brought for obstructing navigation in the Irwell River by a weir or dam at Preston, in the county of Lancaster, non-suit was moved for default of proving that the Irwell was at Preston ; but it was held not necessary to give a local description to the nuisance, or to prove it to have happened at such a place, but it is sufficient if it be at any other place within the county.^ In an early case for overflow- ing the plaintiff's land by a mill-pond, it was objected that "there was no place mentioned where stagnum molendini should be, and there the nuisance is done ; and it may be in another vill. Sed non allocatur, for it shall be intended to be in the same vill where the mill is."^ If, therefore, the venue was sufficiently laid in describing the mill, it was unnecessary to allege the location of the pond itself which covered the plaintiff's land. § 427. The nuisance must be proved to have been com- mitted within the county where the venue is laid. An action on the case was brought for failure to repair a spout on the defendant's property in Middlesex, whereby the rain penetrated and injured the plaintiff's wall adjoining the de- fendant's premises. The lands were proved to be in Surrey. It was held that the action was local, and the variance fatal ; and that if no place is alleged where the nuisance was committed, the county in the margin would be intended.^ Where the defendant obstructed the waters of a navigable river by erecting a dam in Westmoreland County, whereby the plaintiff's boat was lost, the court held that he must sue in Westmoreland, and could not maintain the action in Fayette.^ So where the parties owned adjoining mines in Columbia County, and one mine was flooded by the wrongful management of the other, for which the plaintiff brought 2 East, 497 ; Simmons ti. Lillystone, 8 431, Parke, B., says that this case is Exch. 4.31. difficult to understand. For a similar 1 Mersey Navigation Co. v. Douglas, decision in an action for obstructing 2 East, 497. ' a footway, see Richardson v. Locklin, 2 Brent v. Haddon, Cro. Jae. 555. 6 B. & S. 777. 3 Warren «. Webb, 1 Taunt. 379. * Oliphant v. Smith, 3 Pen. & W. In Simmons v. Lillystone, 8 Exch. (Pa.) 180. CHAP. XII.] KEJIEDIES AT LAW. 635 suit in Philadelphia County, describing the mines as situated in the county of Columbia, to wit, at the county of Philadel- phia, it was held that the action was local, and that the venue could not be transferred by such a fictitious averment.^ § 428. "Where the nuisance is committed in one county, and the property injured lies in another, the action may be maintained in either county. The first form of remedy for such cases was the assize iw confinio comitatus, by which a writ issued to the sheriff of each county to summoii twelve men from the neighborhood, and a patent issued to the ju.s- tices to try the assize between the counties.^ In the Abbe de Stratforde's case^ it was adjudged that for a failure to repair a wall in Essex, which he ought to repair, whereby my land is drowned, I may bring my action in Essex, for there is the default ; and Lord Coke, citing the decision in Bulwer's case,* adds, " or I may bring it in Middlesex, for there I have the damage, as it is proved by 11 R. 2, Action sur le Case, 36." ^ In Bulwer's case the rule is laid down 1 Prerost v. Gorrell, 2 "Weekly close was open and not repaired, by Notes of Cas. (Penn. Sup. Ct.)440; reason of which the cattle of the s. c. affirmed, 3 W. N. C. 300. i tenants entered on his land, etc. ; and 2 F. N. B. 183 K. ; Co. Lit. 154.a ; the writ covered all the whole matter, Leveridge v. Hoskins, llJMod. 257. and note that the land, whicli was thus ^ Y. B. 7 Hen. 4, 8, pi. 10 ; and see charged witli the making and repair- this case as cited in ArcheboU and ing the enclosure, was in the county Borrcll's case, 3 Leon. 141'. of Surrey, and the close in another * Bulwer's case, 7 Co. 1 a. county" (i.e. in Kent). Kirby : "In ^ The case of 11 R. 2 is stated in such case the writ of de curia dau- Bellewe's Lcs Ans du Boy Richard le denda ought to have been brought. Second, p. 4. See reprint by Stevens and not a writ of trespass. Judgment & Haynes, 1809. The case related prayed of the writ. Rykel (answered), to tlie duty of fencing. It is trans- etc. . And it was held by all the lated as follows, by counsel for the court that this was a good issue on defendant (for whom the court ruled), the case, for nothing is recovered but inWorster u.Winnipiseogee Lake Co., damages. In this case the (jravamen 25 N. II. 525, 528 : " Action on the of the declaration was the injury done case against another, brought in the to the plaintiff's land, and tlie action county of Kent, and declared by Ry- was properly brought in the county of kel, that all those who hold such land Kent, that the jury of the county might ought to repair and enclose a certain videre tenementum illud." In 21 Vin. close in a certain vill, and alleged that Abr. 80, pi. 0, the case is stated some- the defendant was the tenant of the what differently. Tlie locations of the same land thus charged, and that the two pieces of land are changed, and 636 THE LAW OP WATERS. [PAKT II. generally : " In all cases where the action is founded upon two things done in several counties, and both are material or traversable, and the one without the other doth not maintain the action, there the plaintiff may choose to bring his action in which of the counties he will ; " and this rule prevails in most jurisdictions to-day. Where the defendant in Dorset dug ditches, and diverted water from streams watering the plaintiff's farm in Devon, it was held that the action would lie in either county.^ In Sutton v. Clarke, it was held that if a trench cut in Northampton causes the plaintiff's lands to be overflowed in Warwick, the action may be brought and tried in Warwick.2 § 429. The first American case in point was one of injury to a mill by a dam. The action was brought in Plymouth County, where the mill was, and the dam was alleged under a videlicet to be in the same county. The evidence proved the dam to be in Bristol. Parker, C. J., held that the va- riance was immaterial, and that the place where the injury was done, to wit, at the mills, gave locality to the action, and not the som'ce from which the mischief came.^ But in the following year the same court, in a case for injuries, caused apparently by the same dam, held that where an injury to a fishery in Plymouth County was caused by the dam in Bris- tol County, Bulwer's case Avas decisive, and the owner of the fishery could bring his action in either county.* In the late case of Pilgrim v. Mellor,^ the defendant had erected a dam in Stark County, which produced an injury to the adjoining land of the jjlaintiff, lying in Bureau County. The action was the action is said to liave been brought ^ Thompson v. Crocker, 9 Pick. 59. in Surrey, " where the land was. And ■* Borden v. Crocker, 10 Pick. 383. the writ awarded good, because nothing To the same effect see Oliphant i-. is to be recovered but damages." Tlie Smith, 3 Pen. & W. 180. land to be fenced, and the plaintiff's ^ 1 Brad. (111. App.) 448; s. c. 17 land wliich was injured, both lay in Am. L. Reg. (N. S") 729. To same one county, and the land charged with effect see Lower King's Hirer Water the duty of fencing lay in another. Co. o. King's River & Fresno Canal 1 Leveridge o: Hoskins, 11 Mod. Co., 9 Pacific Coast L. J., 334 (Sup. 257. See Wells !■. Ody, 1 M. & W. 452. Ct. Cal.); Powers .-. Ames, 9 Minn. 2 Sutton V. Clarke, Taunt. 29. 178 {semblc}. CHAP. XII.] REMEDIES AT LAW. 637 brought in the county where the dam was erected, and it was held in the appellate court that the action might be brought in either county. § 430. Opposed to these decisions is that in "Worster v. Winnipiseogee Lake Co.,^ which came up on facts precisely similar to those in the case last mentioned. The court held that the action should have been brought in the county where the plaintiff's land lay. Gilchrist, C. J., reviewed the authorities at length, and held that the rule in Bulwer's case sprang from the ancient remedy of assize in confinio comitatus, which having become obsolete, the rule must go with it. He says : "The decisions, and they are but few, which hold that an action will lie in the county where the nuisance was done, or in that where the injury was sustained, depend upon Bul- wer's case, 7 Co. 1, and that seems to be founded upon rea- sons which have long since ceased. It does not appear to us that there is any reason for excepting such cases as the present out of the operation of the general rule, and it is very clear that the exception rejects the principle of the rule, and is not a mere modification of the application of it. The erection of the dam, of itself, gave the plaintiff no cause of action. It was not until his land was injured that an action accrued, and this happened in the county of Carroll (where the land lay). The general rule then applies, and it is there that the action should have been brought." ^ ' Worster v. Winnipiseogee Lake Blockhouse Dock, and the defendant Co., 25 N. H. 525. For a reference to obstructed the dock by placing piles, this case per Ryan, C. J., arguendo, etc., thereon. The venue in the margin and apparent agreement with it, see of the declaration was London. Parke, in re Eldred, 46 Wis. 530. See, also, B.,said:"Probablytheobjectionmight Wisconsin Rer. Stats. (1878), § 2619. have been raised by special demurrer ; ^ He denied the doctrine in the Ab- but, after verdict, it certainly comes bot of Stratforde's case, saying there too late, because, then, any defect in was no reason for it, and relied prin- the venue is cured by St. 16 & 17 Car. cipally on Simmons v. Lillystone, 8 2, u. 8. It is enough, for the present Exch. 431 ; 22 L. J. Exch. 217 ; 20 E. purpose to say that there is nothing L. & E. 445. In that case the plain- which makes it necessary to prove, on tiff owned premises in the county of the part of the plaintiff, that the ob- Kent, abutting on the Thames at a struction took place in the city of certain point of the river called the London." " It is unnecessary to decide 638 THE LAW OF AVATEIIS. [PAET II. § 431. The distinction between local and transitory actions has been modified or abrogated in many of the new systems of procedure ; but in most of the States it retains its place as part of the law. In Ohio it has been abolished by judicial legislation;^ and in England it has been abolished by the Judicature Acts, and the question of venue must there be considered as new.^ whether this is a local action, though I am rather disposed to think it is, since it is an injury to the plaintiff's premises." It will be seen that the nuisance, and the land injured thereby, both lay in the same county, and that the objection was that the plaintiff had brought his suit outside of that county. There is nothing here con- trary to the exception in Bulwer's case. Baron Parke's consenting that it was a local action is not contrary, because the gist of the exception is that where two counties are involved, the action has ttoo localities, in either of which it will lie, not that it is tran- sitory. The New Hampshire case makes no reference to Leveridge u. Hosldns, 11 Mod. 257. In that case (decided in 1710), Holt, C. J., said ; " Here is a cause of action that arises in both counties, and the action may be brought in either." It fol- lowed the analogy of tlie assize in con- finio comitatHS, but that remedy had already gone into disuse. The court did not think that the need had dis- ' appeared with the old writ. In truth, tliat assize disappeared only in com- mon with all the writs of right, and the special necessity in this case for a remedy, in either county, remained the same as ever. Courts generally have held that the rule of the com- mon law was arbitrary and rested on historical grounds (see Doulson v. Matthews, 4 D. & E. 503, per BuUer, J.), and the distinction is fast disappear- ing from the new systems of proce- dure. Genin o. Greer, 10 Ohio, 209; and see 22 Alb. L.J. 47. But the New Hampshire court held that a branch of the common-law rule allowing greater liberality in tlie venues within which an action can be brought, his- torically founded on a writ of right, and in its present form dating back to 1406 (Abbe de Stratforde's case), and perhaps of equal date with the rule itself, was an imreasonable invasion of tlie common law, and that the general rule must be restored and applied with uniform rigor. 1 Genin i: Greer, 10 Ohio, 209 ; N. Y. Code, 1880, §§ 982, 984. It was early determined in Massachusetts that, by their statutes, an action for injuries to realty where the damage did not ex- ceed twenty dollars might be brought before a justice of the peace for the county where the wrong-doer lived, although the land lay in another county. Sumner v, Finegan, 15 Mass. 280. Under Mass. Gen. Sts. c. 149, it was held that a complaint for flowing land by a dam might include tracts lying in different counties, but over- flowed by means of the same dam, and would lie in a county wliere any por- tion of the land lies. Bates v. Kay, 102 Mass. 458, and see Todd v. Austin, 33 Conn. 87. In New Jersey it was held that in such actions the venue cannot be chanyed from the county where the land lies, under their statute. Deacon v. Shreve, 2 Zab. 204. In a similar case, under the Missouri statute (Wag. St. § 4), it was held that the venue could be changed, and accord- ingly we find tlie venue changed three times in that case. Taylor v. Atlantic Railroad Co., 68 Mo. 397. 2 38 & 39 Vict. c. 77, Ord. XXXVI. K. 1 (L. B. 10 Gen. St. 813). In Eng- CHAP. Xn.J EBMBDIES AT LAW. 639 § 432. In the case of indictments for nuisances committed in one county and injuring the public in another, the rule of the common law was the same, and the offender was liable to indictment in either county.^ But the weight of more recent decisions is opposed to this rule, and limits the venue for an indictment to the county where the act is committed. The remedy by indictment has by legislation in some States become a proceeding in rem, which accounts for the change. § 438. The question was considered by the Supreme Court of Wisconsin in Eldred's case.^ That was the case of aii indictment of an unauthorized dam, situated in one county, and producing injurious effects in another. Ryan, C. J., in delivering the opinion said : " The venue of local actions rests entirely, in the absence of statute, upon the authority of adjudged cases. But the venue of indictments rests upon fundamental law, as old as Magna Charta, entering into the provision of the constitution of the State." He then reviews the authorities and concludes : " If a dam, being a public nuisance, were on the confines of two counties, it might probably be indicted in either under § 7, c. 172 of 1858 ; perhaps if it were within a hundred rods' of the county line. Possibly it would be competent for the legislature to provide that a dam situate in one county, but creating injurious effects in several, might be indicted in either. That question is not determined here, because there is no such statute. But in the absence of such legislation, a dam more than a hundred rods from a county line can be indicted in its own county only." He held that the indictment alleging a public nuisance in one county was complete, and that the land, before the passage of these Bk. 2, c. 25, § 37 ; 1 Chitty Criminal statutes, the venue of local actions Law, 193 (2 Eng. and4 Am. ed.). And might be changed after issue was see 2 Hale's Pleas of the Crown, 164. joined, but not before, by order of the But Chitty cites no cases since the court or judge. Bell v. Harrison, 2 earlier writers which support the rule. C. M. & B. 733 ; and see 3 & 4 Wm. 4, He refers to Scott v. Brest, 2 T. R. c. 42, § 22. 241, and 2 B. & P. 381, which were ^ Staundf ord, Plees del Corone, lib. private actions for usury. 2, p. 91 ; citing Ass. Edw. 3 ; Ann. 19, 2 In re Eldred, 46 Wis. 530. pi. 6; Hawkins, Pleas of the Crown, 640 THE LAW OF WATERS. [PAET II. per quod containing the averment of injury in another county was surplusage. " The radical difficulty in the argu- ment " (for the other view) " is that an indictment is directed against the thing, as an offence against the public, while the private action at the common law goes upon the consequences of the thing only, for the recovery of damages for private injury. The maintenance of the nuisance is local in the county where it exists, though its effects may extend beyond the county." § 434. In Pennsylvania, where works were erected on a stream in Center County, which corrupted its waters in an adjoining county, it was held that the indictment could be prosecuted in Center County .^ In Maine, where a dam lying partly in the town of Eddington, and partly in Bangor, both in Penobscot County, was alleged to be a nuisance, the in- dictment charging that the offence was committed in Bangor, it was held that the place was laid as venue and not as a description of the offence, and that the variance was imma- terial.^ § 435; In general, the rule holds good of indictments for nuisances that the venue need only be laid in the body of the county, but matters of description of the offence must be strictly proved as laid. So an indictment for obstructing a navigable stream must state the name of the stream, the place where the obstruction is situated, that the part ob- structed is navigable, and that the passage of boats is obstructed at that poiut.^ Where the indictment is a pro- 1 Commonwealth v. Lyons, 1 Clark either of them, and within said county (Penn. L. J.) 497. of Penobscot," it was held'that the 2 State V. Godfrey, 12 Maine, .361. place was sufficiently alleged. State The venue of an indictment for any v. Roberts, 26 Maine, 263. So where offence committed in, or upon, a body an indictment (for murder) charged of water, is laid in the adjoining that the act was committed "at an county. Where an indictment charged island called ' Smutty Nose,' a place that the offences (of assault and within the County of York," it was rescue) were committed "on the said held sufficient. State v. Wagner, 61 Penobscot River, between the two Maine, 178. towns of Enfield and Howland afore- ^ Qq^ „. gtate, 3 Blackf. 193. said, or within the limits aforesaid or CHAP. XII.] EEMBDIES AT LAW. 641 ceeding to abate, great accuracy of description and proof is required. An indictment of a mill-dam, creating a public nuisance by flowage, described the nuisance as "a certain mill-dam in, about, and across a certain stream of water in said county, called Elkhart River," and this was held insuffi- cient even after judgment for the State. " The land on which the dam is constructed," said the Court, "could have been described, or such a reference to known objects near or ad- jacent to it might have been made, as would have rendered the indictment in point of description sufficiently certain." ^ § 436. Where different states or sovereignties are involved in actions of this kind, the question is different.^ Actions Avill not be entertained for nuisances committed outside the State, and affecting lands in another State. Where the plaintiff owned a mill in New Jersey, from which the defend- ant diverted water by cutting a trench in New Jersey, and the plaintiff brought suit in New York, averring that the wrongful acts were done in New Jersey, to wit, at the city and county of New York, it was held that the action would not lie in New York.^ Where the nuisance is located in one State and the property injured is in another, the rule of the- common law applies strictly that the action must be brouglit in the jurisdiction where the land which is injured is situ- ated. And this is not inconsistent with the exception m Bulwer's case. By the common law, where the offence was. complete in the sovereign's dominions, he gave a remedy in either of two counties, for injuries caused in one county and" accomplished in another. By the common law the sovereign gave his subjects redress for any injuries to lands in his dominion, though caused by acts outside, if jurisdiction over 1 Wood w. State, 5 Ind. 433. Where, Ind. 161. Confer Roscoe'fe Crim. Er. in an indictment for maintaining a 85. nuisance (in this case a soap fac- ^ As trespass will not lie for in- tory), the nuisance was alleged to be juries to lands in another county, a maintained on a particular tract of fortiori it will not lie for injuries to ground, the State was held bound to lands in another State, prove the location as laid, or fail in ^ Watts v. Kinney, 23 Wend. 481; the prosecution. Wertz v. State, 42 afiSmied, 6 Hill, 82. 642 THE LAW OP WATEES. [PART II. the offender could be obtained. But the sovereign acting through the common law never attempted to redress injuries to foreign real estate, springing from causes set in motion within his dominion, the reason being that the act is wrong- ful only by reason of consequences happening beyond his ter- ritory and jurisdiction.^ § 437. The first American case in which the question was involved was that of Thayer v. Brooks.^ There the action was brought in Ohio for injuries to a mill and water-power in Ohio, by the diversion in Pennsylvania of water which was accustomed to flow to the mill. The supreme court of Ohio held that the action would lie. In their opinion the court say : " The act was done in Pennsylvania, the injury which was occasioned by that act was sustained in Ohio. In such a case it is believed the suit would well lie in either State. When an injury has been caused by an act done in one county, to land, etc., situated in another, the venue may be laid in either." The point agrees with the law in general, but the dictum that the action would lie in either State is unsound in principle, and contrary to the weight of the authorities. § 438. In 1855 a similar question came up in Maine. It was held that an action on the case would lie in Maine for flowing lands in that State by a dam across a river forming the boundary line between Maine and New Hampshire, to feed a mill situated in the latter State.^ The next case came 1 Doulson V. Matthews, 4 T. R. 503 ; actions transitory, it would follow " Livingston v. Jefferson, 1 Brock. 203 ; that the' action could be brought in Mostyn v. Fabrigas, Cowper, 161. either State," the dictum would have 2 17 Ohio, 489 ; citing 1 Chitty been sound. The short point involved, 'Plead. 299. The court treated the that the State could give a remedy action as a local one to be deter- for injuries to land within its borders, imined by the rules of the common though caused by acts done outside, Idaw. In so doing, they overlooked where jurisdiction of the wrong-doer their earlier decision in Genin v. Greer, could be had, was correctly deter- 10 Ohio, 209, abolishing the distinc- mined. I tion between local and transitory ac- ^ Wooster v. Great Falls Manuf. ■ tions. If the court had said : " From Co., 39 N. H. 246. 1 the rule of this court making all CHAP. XII.] EBMEDIBS AT LAW. 643 up in Illinois. A dam which was erected in "Will County, Illinois, for the purpose of feeding a canal, caused the flood- ing and injury of lands in Indiana. The owner of the land brought suit in Illinois. It was held that the action would not lie, and that only the courts of the State within whose limits the injured lands lay could take jurisdiction.^ § 439. A contrary decision was reached in a recent case in Texas. The parties were both citizens of Texas, and the plaintiff owned lands on the south bank of the Rio Grande, in Mexico. The defendant placed obstructions in the bed of the river, on the Texas side, which threw the current of the river against the plaintiff's land, and caused serious injuries. The court followed the obiter dictum in Thayer v. Brooks, held that the rule in Bulwer's case applied, and that the action could be maintained.^ § 440. In a State which has abolished or does not recog- nize the distinction between local and transitory actions, an ^ Eachus V. Trustees of Illinois the first it is emphatically declared in Canal, 17 111. 5-34. See, also, Slack v. the bill of rights as a fundamental Waleott, 3 Mason, 508, 517. In New principle of government, that ' all York, in the recent case of Ruckman courts shall be open, and every per- V. Green, 9 Hun, 225, it was held that son, for any injury done him in his an action could be maintained in New lands, goods, person, or reputation, York for an injury to lands situated shall have remedy by due course of in New York, caused by a nuisance law.' Now a party may not have an (a noxious trade) established and car- action in rem for or concerning land ried on in New Jersey. in a foreign jurisdiction, because re- 2 Armendiaz v. Stillman, 54 Texas, dress cannot be given or had by such 623. The court also relied on the federal proceeding in due course of law; but- case of Rundle v. Delaw^are Canal, 1 personal damages may be given and Wall. Jr. 275, which will be noticed enforced by due process of law within hereafter.- The Texas court said (p. the State." This view is singular, as 631 ) : "In our opinion, however, these the statute, cited in the argument, pro- eommon-lawrules, respecting local and vides (Tex. Rev. St. 1879, Art. 1198, transitory actions, have no more to do pi. 13); "Suits for the recovery of in determining with us where suit can lands or damage thereto ; suits to re- be brought and maintained, than the move encumbrances upon the title to like rules in respect to the form and land ; suits to quiet the title to land, names of actions ; but this solely reg- and suits to prevent or stay waste on ulated by and dependent upon the lands, must be brought in the county proper construction of the constitu- in which the land or a part thereof tion and statutes of the State. In may lie." 644 THE LAW OF WATBES. [PAKT II. action in personam will lie for injuries to foreign real estate. An action was held to lie in Louisiana for damages to land and buildings in Illinois caused by a steamer which, in plying upon the Mississippi River during a high flood, struck against and injured the buildings.^ An exception, taken below on the ground that the action would be local by the law of Illinois, was overruled. The Supreme Court said: "The present action is under our laws, a^ personal action, and is not distinguished from any ordinary civil action as to the place or tribunal in which it may be brought." § 441. The same question recently came up in England in the Admiralty Division, and again in the Court of Appeal, but was determined by an agreement of the parties.^ The owner of a pier in Spain brought an action in the English court against the owner of an English ship for an injury caused by the ship knocking down a pier attached to the Spanish soil. James, L. J., said : " It is a very novel action, and very grave difficulties indeed might have arisen as to the jurisdiction of this Court to entertain any action or proceedings whatever with respect to injury done to foreign soil. But the question of jurisdiction has probably been successfully got over- by what has been done in this case, inasmuch as the ship in question, the owner of which is sued, and which by a figure of speech may be called the delinquent ship, having been arrested in Spain, was released upon an agreement between the parties that all remedies against the ship and against the owners should be tried in this country. Such an agreement would give jurisdiction by contract, not only jurisdiction by consent." "Possibly this would get rid of the question, and the Court of Admiralty would have jurisdiction to enforce against the ship an equi- 1 Holmes v. Barclay, 4 La. Ann. in Missouri was injured hy a. bridge 63. As it is the property injured, over the Mississippi, on the Illinois which, as between States, determines side, it was held that the action was the character of the action, an in- transitory and could be maintained jury to a steamer, caused by the in Missouri. Mason v. Turner, 31 wrongful obstruction of a stream by Mo. 508. a bridge, is held ground for a transi- ^ The M. Moxham, L. E. 1 P. D- tory action. "Where a steamer owned 43, 107. CHAP. XII.j REMEDIES AT LAW. 645 table right arising from this contract, by virtue of which the ship was released from its liability under the jurisdiction in Spain." Mellish, L. J., was equally doubtful of the juris- diction, apart from the contract.^ 1 See comments on this case in Foote's Private International Juris- prudence, pp. 135, 390. Mr. Foote considers the question as it was at common law, and as one of general jurisprudence. On p. 137, he thus condenses Lord Mansfield's opinion in Mostyn v. Pabrigas (1 Sra. L. C, 658, 680), before cited: "Lord Mansfield pointed out that there is a formal and a substantial distinction as to the locality of the trials. The substantial distinction is where the effect of the judgment cannot be had if the action is laid in the wrong place. The formal distinction is that which arises from the mode of trial, and excludes certain actions by means of the rules of venue. And, by way of example, it was said that there might be a solid distinction of locality, if an action were brought relative to an estate in a foreign country, where the question was a matter of title only, and not of damages. It cannot be doubted that the rule as to venue was, in Lord Mansfield's mind, the only obstacle to the trial by an English court of an action for injury to foreign realty. Nor is it easy to maintain that there is any reason more valid to restrain the jurisdiction now that that obstacle is removed. The execution of the judgment in such an action, inasmuch as it can only be brought when proper service is effected on the defendant, and execution can only issue on his person or property within the juris- diction, cannot interfere with the sov- ereign rights of a foreign power, as it would in an action for the title to or possessibn of land. An injury to land is in fact a personal injury to its owner, and is no more beyond the jurisdiction of an English court, on general principles, than other per- sonal injuries are." On page 390 of the same work, he says : " That diffi- culties would arise there can be no doubt, as the abolition of the rules of venue have cut away the main ground upon which the earlier decisions on the point were founded ; but it is sub- mitted that the result of the change has been to make the reasoning of Lord Mansfield in Mostyn i-. Pabrigas applicable to its full extent, and to remove all reasons that existed pre- viously from excluding actions for damages in respect of injuries done to foreign immovables from English courts." To same effect see Westlake, Private International Law, ed. 1880, p. 210, note, on actions for trespass to foreign soil. See, also. The Uhla, cited in note, L. R. 2 Adm. & Eccl. 29, and De Lovio r. Boit, per Story, J., 2 Gallison, 398, 474, 475. The distinc- tion is abolished by the New York code, and the question of venue opened anew. Actions for waste and nuisance must be brought in the county where the land lies, but no provision is made for actions for tres- pass. In the Albany Law' Journal, vol. 22, pp. 47-50, a contributor con- tends forcibly that the effect of the code is to give the courts of that State jurisdiction of actions for in- juries to land situated in a foreign State or county. The code provides (§ 982): "But where all the real property to which the action relates is situated without the State, the action must be tried as prescribed in § 984 of this act." § 984 reads : " An action not specified in the last two sections must be tried in the county in which one of the parties resided at the commencement thereof. If neither of the parties then resided in the State, it may be tried in any county 646 THE LAW OF WATERS. [PAET IL § 442. In proceedings against the nuisance in abatement, and in all proceedings in rem, jurisdiction necessarily depends on the presence of the property or res, and its subjection to the control of the court; and therefore such actions are maintainable only in the State and county where the prop- erty is situated.^ This applies to indictments in rem. Although indictments for nuisances affecting two counties may have been entertainable in either county by the com- mon law, the same rule does not apply between States. An indictment for a nuisance can properly be brought only in the State within which the nuisance was committed. This is true of the common-law indictments of offenders, as well as of the statutory indictment in rem? § 443. Indictments lie only for breaches of the law pun- ishable as crimes, and criminal laws have no extra-territorial force.^ Acts done outside the sovereign's territory are not breaches of lii& law, although they may produce harmful con- sequences within it. Such consequences are not crimes in themselves. The first case involving the question arose in New Hampshire,* and is opposed to this reasoning. There an indictment was found against the defendant for erect- ing and maintaining a dam, thereby overflowing the high- way and making it impassable. The indictment alleged that the dam was situated partly in New Hampshire and partly in Maine. The evidence showed that it was entirely in Maine. It was held by Parker, C. J., that the gravamen of the indictment was the damage to the highway, and that wliieh the plaintiff designates for that ^ Mississippi & Missouri Eailroad purpose in the title of the complaint." Co. i>. Ward, 2 Black, 484 ; In re El- But in American Union Telegraph dred, 46 Wis. 530. Co. V. Middleton, 80 N. Y. 412, de- ^ For an exception to this rule, cided when the same provisions were showing that the sovereign may make in force, it was held that the action laws authorizing certain acts to be of trespass quare clausum was local in done out of the State, and prescribing its character, and would not lie in their effect within it, and may make New York for injuries to lands in laws controlling his citizens when New Jersey. without the State, for the violation of 1 Story, Conflict of Laws, § 551. which they may be punished within That this rule extends to counties, see it, see State v. Main, 16 Wis. 398. in re Eldred, 46 Wis. 530. i State v. Lord, id N. H. 357. CHAP. Xir.] EEMEDIES AT LAW. 647 the variance as to the situation of the dam was immaterial. The correct rule was stated in New Jersey in the case of State V. Babcock.i There an obstruction was placed in the Hudson River, on the soil of New Jersey, but within the exclusive jurisdiction of New York, by compact between the two States, and an injury was caused in New Jersey. The Court held that the indictment could not be maintained in New Jersey. § 444. In equity the distinction between local and transi- tory actions is unknown, and as equity acts in personam, there is no obstacle of territorial jurisdiction to prevent the granting of equitable remedies for nuisances affecting land in another county or State. If the defendant is witliin the jurisdiction of the court, he can be controlled and prevented - from injuring the property of another, wherever it is situ- ated. This rule was applied by the court of New Hampshire to protect a mill dam. The complainants owned a dam in the river bounding the State, which extended across the river into the State of Maine. The defendant was a citizen of New Hampshire. It was held on a bill filed for that pur- pose that the court had jurisdiction to issue an injunction restraining the defendant from destroying the dam of the complainants in Maine .^ ' State V. Babcock, 1 Vroom, 29, 32. marks are made contrary to this. Elmer, J., in delivering the opinion, The court say: "The owners of the said : " The case does not materially ■ canal, the supposed ^vrong-doers, reside differ from a line between two States there, and an injunction issuing in an- on the land which happens to be the other State or Circuit could not be ex- scene of a busy population, where a ecuted there, it being a proceeding manufactory near to that line in one guasi in rem. The injured party then State may be a nuisance to the citi- must be deprived entirely of this legal zens of the other, whose redress will summary and useful species of redress, have to be obtained from the tribunals unless rights and jurisdiction to pro- of the State in which the nuisance is tect them exist beyond the centre of situate." This case is approved by the stream." The court say, in an- Kyan, C. J. {In re Eldred, 46 Wis. 530), other place : " The remedy by in- and the case of State v. Lord, criti- junction is a specific one, or quasi in cised. rem, and whether that nuisance be in ^ Great Falls Manuf. Co. (-■. Wors- fact situated in Ehode Island or Cen- ter, 23 N. H. 462. In the similar case, necticut, it must be enjoined against Stillman u. White Rock Manuf. Co., wherever it is, and there alone, and 3 Wood. & M. 538, 545, some re- by the laws existing there alone, it 648 THE LAW OF WATERS. [part n. § 445. Ill the Federal courts the question has been consid- ered both with reference to their own jurisdiction and that of the State courts. The decisions are not altogether har- monious. The judges speak of the courts in general terms, but such remarks must be taken to refer to the Federal coui-tsi must be abated, if at all." This is true as to abatement, as we shall see, but the court seem to proceed on an erroneous view of the nature of the equitable remedy. There might be difficulty in obtaining jurisdiction and control of the defendant, but it would not be because equity acts upon the res. The decision seems to confuse tlie injunction directed against the defendant in personam, forbidding him to maintain the nuisance, with a pro- ceeding against the nuisance, in rem, to abate it. The case of Morris v. Remington, 1 Pars. Sel. Cas. Eq. (Pa.) 387, decided in 1849, two years before the case of Great Falls Manuf. Co. v. Worster, is also opposed to the doc- trine in the text. The parties owned adjoining lands separated by a stream, in Montgomery County. The defend- ant cut a new channel for waters sup- plying the stream, upon his land, and thereby diverted water from liis stream, and from the plaintiif's race. The plaintiff filed a bill in Philadelphia County for an injunction to prevent such diversion. The defendant de- murred for want of jurisdiction. The demurrer was allowed and the de- cision sustained above. The court {per King, P. J. ) said : " Broad as is the language of the text-writers and even of the courts, in regard to this position that equity, having possession of the person of the WTong Dobbins a. Brown, 12 Penn. St. thatj therefore, there was no breach. 75. But where a lease of a mill and 658 THE LAW OF WATERS. [PAKT ir. § 457. In Maine, where a corporation was authorized to erect dams, locks, etc., in a stream, and to take lands therefor, making compensation to the owners, and the company leased land, and erected a portion of their works thereon, no dam- ages being claimed by the owner, or assessed, and the owner afterwards conveyed the land with covenants, it was held that the company had erected its works under its charter power, and had the right to maintain them permanently, and that they were a breach of the covenant against incum- brances.i If this case is law, it follows that an easement erected in the past, under the exercise of the power of emi- nent domain, is an incumbrance within the meaning of the covenant, which is a strict application of the original rule as to easements. § 458. The covenant of seisin is held to be broken by the existence of a prior grant to another of the right to divert a natural spring.^ So where the deed included a grant of the right " to raise a dam sufficient to raise the water seven feet water-power was made after the water had been taken for the temporary use of a canal company, and the lease contained covenants of war- ranty and against incumbrances, such abridgment of the full use of the property, under a prior exercise of the power of eminent domain, was held a breach of the covenant. Peters v. Grubb, 21 Penn. St. 455. This is plainly contrary to the New Hamp- shire and Wisconsin doctrine as to notorious easements. 1 Ginn v. Hancock, 31 Maine, 42, 47. Tlie court said : " The acts performed would have been unlawful if they had not been done by virtue of the Act. The presumption is that they acted lawfully. The company must be considered as acting by virtue of the same authority, in all parts of the river, while constructing connected works of improvement; and not as erecting one portion of such works by virtue of the Act, and another por- tion by a different right or authority, merely because it was erected on land owned or occupied by it. The works must, therefore, be considered as erected and maintained by the com- pany, by virtue of the Act, and as rightfully existing there as its prop- erty at the time of the conveyance. It is agreed that, ' no damages for tlie .premises in question were ever claimed or assessed under the act, and as there provided.' This fact does not deprive the company of the right to maintain those works. The defendant might have applied and have had any damages occasioned thereby to his reversionary interest assessed according to the provisions of the act. His neglect to do so can- not diminish the rights of the com- pany. The land must, therefore, be considered as subjected to that servi- tude and as thereby incumbered at the time of the conveyance." Confer Peters u. Grubb, 21 Penn. St. 455, supra, accord. - Clark V. Conroe, 38 Vt. 469. CHAP. XII.] REMEDIES AT LAW. 659 high," with a covenant of seisin, it was held that the habendum and covenant of seisin extended to the right to maintain the dam, and were broken by lack of that right in the grantor.^ A similar question arose in Vermont on a covenant of war- ranty. The defendant had conveyed a lot, including a mill- site and dam, simply as "lot No. 19" ; habendum, etc., " with the appurtenances thereof," with a covenant to warrant and defend "the above granted and bargained premises." The plaintiff maintained the dam at its former height, and thereby overflowed lands above him, for which a recovery of damages was had against him. He then brought suit on the covenant against the grantor, alleging for breach the recovery against him. It not appearing that the dam had ever caused such flow- age prior to the date of the defendant's deed, or that the de- fendant had ever exercised or claimed the right so to flow the land, it was held that no breach of the covenant was shown.^ § 459. In a recent case in New York a different result was reached. The defendant and another conveyed to the plain- tiff and another certain premises upon which were a mill, a dam and pond, which furnished water-power for the mill, and were essential to its complete enjoyment and operation, by a deed containing covenants of warranty and quiet enjoy- ment, but with no express covenant in regard to the water- power. The grantees entered into possession, and while working the mill with the dam at the same height as when the conveyance was made, were sued for overflowing the lands of an upper riparian proprietor by means of the dam. They gave their grantors notice to defend the actions, and judg- ments for damages were obtained against the grantees. They 1 Walker v. Wilson, 13 Wis. 522; Wooley, 2 Lans. (N. Y.) 394, a grant Hall V. Gale, 14 Wis. 54 ; s. c. 20 of a prior right to conduct water by Wis. 292; Traster v. Snelson, 29 Ind. means of pipes laid beneath the sur- 96. In Stetson v. Veazie, 11 Maine, face of land, from a spring thereon, 408, it is held that an easement (in was held an easement, and not a this case of landing boats on the breach of covenants of warranty and shore of a stream) was not a disseisin for quite enjoyment, but a breach of of the owner of the land to which the the covenant against incumbrances, easement is annexed (upon which it ^ Swasey v. Brooks, 30 Vt. 692. is exercised). So in McMuUen c^. 660 THE LAW OP WATERS. [PAET II. then brought an action upon their covenants, and it was held that the deed conveyed the dam as it then stood, at its existing and apparent height, and the water-power it thus indicated, which was an essential element in the value of the property, and that the judgment constituted an eviction and breach of the covenants.-"^ § 460. The paramount right to divert water from a spring was also held a breach of the covenant of warranty in the above case from Vermont.^ But in Mitchell v. Warner^ it was held that a pre-existing right to divert water from water works, thereby rendering them useless, was not a breach of the covenant of warranty. This case is placed upon the ground that the water is not part of the freehold; but the common law was not so, and the decision has been criti- cized in Pennsylvania as ill-considered.* In the last men- 1 Adams v. Conover, 22 Hun {'S. Y.) 424; s. c. 87 N. Y. 422; 25 Alb. L. J. 193. In the Court of Appeals, Mnoh, J., in speaking of the plain- tiff, said : " He had a right to assume that it stood lawfully at its existing height, that his deed would pass it at the same height and allow him right- fully to maintain it unchanged, and so preserve to him the water-power which was the Important and essen- tial element of his purchase. . . . From the thing thus conveyed, itself covered by the deed and passing under it, the grantee was evicted by a para- mount title. . . . The grantee, there- fore, was not merely deprived of an easement in another's land which was not conveyed, and which his deed did not purport to convey, but. he lost by force of the paramount title a thing actually conveyed, included within the metes and bounds of his deed, and just as much property granted by that con- veyance as if it had been a particular acre of the land. Considering the subject-matter of the grant, the pecu- liar character , of the property as a water-power and a mill-site, the exist- ence of the dam at a hciglit essential to that power, and to the full enjoy- ment of the property, we hold that the deed conveyed the dam at its ex- isting height, and the covenant of war- ranty was broken when the grantee was compelled in whole or in part to take it down." No mention was made of the case of Swasey o. Brooks in either court. For a decision distin- guishing the case of a sewer over ad- joining land from this, and holding that the covenants of warranty and for quiet enjoyment of the premises and appurtenances do not extend to the right to discharge water through such a sewer, see Green v. Collins, 86 N. Y. 246. 2 Clark V. Conroe, .38 Vt. 469. 8 5 Conn. 497. The case of Thayer V. Wheelock, 16 Pick. 68, before re- ferred to, held similarly that the bene- fit of a covenant of warranty in a grant of the right of drawing water from a pond would not enure to a sub- sequent purchaser of the land. * See Wilson v. Cochran, 46 Penn. St. 229 ; Rawle, Covenants for Title (4th ed.), 182 (note 2) ; Spencer's Case; 1 Smith's Lead. Cas. (7th Am. ed.), 201, note. In Griswold v. Allen, CHAP. XII.J REMEDIES AT LAW. 661 tioned State, it was held that a covenant for quiet enjoy- ment in the lease of a grist-mill, operated by water-power, was broken by the diversion of the water of the stre&m under a prior right, acquired by a canal company under a delegation of the power of eminent domain. ^ § 461. In Blatchford v. Plyniouth,^ certain allegations as to the use of water were held to show no breach of a cove- nant for quiet enjoyment. The defendants demised a mill and stream of water flowing in their trench, except so much of the water as should be sufficient for the supply of persons whom the lessor should already have contracted with, or should thereafter contract to supply, provided that such a quantity should be left as would be sufficient to supply the mill for twelve hours a day, with a covenant for quiet enjoy- ment. The breach assigned was that the defendants, at divers times between the execution of the lease and the bringing of the suit, had caused and procured to be drawn off large quantities of water. The evidence showed that nothing had been done since the execution of the lease ; but it was shown that persons having rights under prior grants had diminished the quantity of water that might otherwise have flowed to the plaintiff's mill. It was held that the lease was not a demise of water for twelve hours a day, that the proviso for such quantity of water was a limitation merely on future grants, and that the diversions complained of were no breach of the covenant. In an action by a tenant on the covenants of his lease, for damages caused by the bursting of a water-pipe in the house, where the jury found that the pipe was reasonably flt and proper for the purpose for which it had been placed in the house, it was held that the bursting of the pipe was no breach of the covenant for quiet enjoy- ment.^ 22 Conn. 89, it was held that a grant the grantee from using so much water, of the right to maintain a raceway was not a breach of the covenant, would not include a grant of the right i Peters v. Grubb, 21 Penn. St. i55. to use as much water as would flow ^ 1 Bing. N. C. 091. through it ; and that a prior right of ' Anderson v. Oppenheimer, 5 Q. another riparian owner, preventing B. D. 602. 662 THE LAW OF WATERS. [PAET H. § 462. A covenant in a conveyance of land intersected by water-races, that the courses should not be diverted, but should flow uninterruptedly in their present channels, and that the grantee should have access J;o thek sources, to in- crease or improve the streams, and that the grantor would keep the races in repair over his other land, was held to impose the duty on the grantor of maintaining the races in such repair that water should continue to flow in them as freely as at the time of the grant, and to be enforceable in an action of covenant.^ A covenant to convey land, together with the right to erect a dam and to overflow the land of the vendor, is not complied with by a tender of a deed for the land, omitting all reference to the easement ; and on a failure to tender a deed containing grants of such rights, the cove- nantee may maintain an action of covenant.^ § 463. By an instrument made under seal between the owner of a mill-dam and the owner of land flowed thereby, the owner of the dam stipulated that he would reduce his dam to a specified height, and covenanted for himself, his heirs and representatives, to keep the dam so reduced for- ever. The land-owner granted to the mill-owner, his heirs and assigns forever, the right to flow so much land as would be flowed by the dam at such height, but reserved the right to annul the grant whenever the dam should be raised above such height. The mill-owner lowered his dam, as agreed, but afterwards raised it again, and thereby flowed more land, to the injury of the other party, and for this injury suit was brought. The defendant contended that the covenants were dependent, and that he had a prescriptive right prior to the covenant. It was held that the covenants were independent, the mill-owner promising for the future, the land-owner granting in presenti; that the reservation of the right to annul the grant gave no election to the owner of the dam to raise it after having once reduced it to the height agreed, and furnished no defence to the action ; and that whatever prescriptive right he might have had before the agreement was 1 Carroll v. Cockey, 3 H. & J. 282. 2 Wilson v. McNeal, 10 Watts, 422. CHAP. XII.] EBMBDIES AT LA\Y. 663 immaterial in an action for the breach of his covenant.^ In Tomlinson v. Ousatonic Water Co.,^ a covenant by the defend- ant to repair injuries which might be caused by flowage, recited simply in the condition of a bond for the perform- ance of such covenant, was held a sufficient and valid cove- nant. § 464. Underbill v. Saratoga Railroad Co.^ was an action to recover possession of land, and also for damages for the breach of certain covenants. A grant was made to a railroad company upon the condition that the grantees should build and maintain a water-tight embankment or dam over a certain brook crossing the land conveyed for part of their line of road, and that the said embankment or dam with the flood-gates and sluice-ways therein might be used for hydraulic purposes by the grantors, their heirs, and assigns ; and it was covenanted that the grantees should not be liable for any damages which the grantors should sustain in case of . a break in the dam or an overflow thereof, unless the same should happen through the gross negligence or wilful mis- feasance of the grantees, but that the grantees should forth- with repair all damages which the dam or embankment should at any time maintain. The grantees took possession and built their road, but omitted to build the dam. The grantors assigned all their rights to a third person, who brought the suit. It was held that the condition was subse- quent, that the effect of the deed was to vest the fee-simple of the estate in the grantees, subject to be defeated by a neglect or refusal to perform the condition ; that a right of re-entry remained in the grantors and their heirs ; but that no action could be maintained by the assignee for the possession of the land. It was further held that there was no express covenant in the grant except the one to repair ; that the condition as to the erection and maintenance of the dam did not raise an implied covenant so to do ; and that 1 Stinson u. Gardner, 33 Maine, 49. 8 20 Barb. 455. ^ Tomlinson v. Ousatonic Water Co., 44 Conn. 99. 664 THE LAW OF WATERS. [PAKT U. by the assignment the condition was discharged forever, and an indefeasible estate was vested in the- grantees.^ § 465. Where property was conveyed together with the right of taking water by a race from the grantor's pond, with a warranty of the title to the land and right of taking water, and suit was brought on the covenant, the breach charged being that during a specified period of time the defendant deprived the plaintiff of the water necessary for his mill, by diverting it therefrom, and suffering it to be diverted by others, it was held that the plaintiff was not limited to proving acts committed during the period alleged, but might prove previous acts, in consequence of which the injury was sustained during the time.^ § 466. In Fish v. FoUey,^ the action was on a covenant that the plaintiff should have a continued supply of water for his mills from the defendant's dam. The defendant after a time wholly failed to perform his covenant. It was held that the breach was entire, and that one recovery was a bar to any further action. But in Grain v. Beach,* which was an action on a covenant for maintaining a gate, a contrary rule is laid down ; and Fish v. FoUey is explained as decided with reference to the fact that a new water-power had been obtained, and the one in c[uestion abandoned several years before the suit. ^ It is to be noticed tliat the condi- Brattle Square Church v. Grant, 3 tion was to maintain as well as to Gray, 142, 148 ; Crocker v. Old South construct a dam. The court {per Society, 106 Mass. 479. A suggestion Allen, J.) say (p. 460): "There was contra is made by Mr. Lewis {Per- no limit to the time of its perform- petuities, 619). ance, and consequently the defendants '^ HoUingsworth v. Dunbar, 5 Munf. would be allowed a reasonable time (Va.) 199. to construct and complete the work." ^ Fish v. Folley, 6 lEU, 54. A fortiori there was no limit within * Grain v. Beach, 2 Barb. 120. This which the condition for maintaining case is limited in Shaffer v. Lee, 8 the dam was to be performed. The Barb. 412 ; and Fish v. FoUey is cited right of re-entry, therefore, was an- generally in New York as an authority nexed to a continuing condition with- for the rule that a right of action can- out limit in time. That such an in- not be divided. It must be eonsid- terest is not void for remoteness with- ered with reference to the explanation in the rule against perpetuities, sec given in Grain v. Beach. CHAP. XII.] REMEDIES AT LAW. G65 § 467. It is a general rule that in actions npon covenants, where there can be but one breach there can be but one recovery, and such recovery must include entire damages for the permanent injury done. This rule Avas applied in Jacobs V. Davis ^ to the case of the breach of covenants as to the construction and use of a trench. Where, on a breach of covenants for title, the breaeli is but partial, as of the waters of a stream supplying the land conveyed, the damages will be apportioned to the measure of value between the property lost and that jjreserved.^ § 468. A covenant in a lease of water-power, to use due diligence in furnishing water-power, is a proper matter for set-off in an action on a promissory note and account for rent ; and it has been held that a deduction from the rent for an obstruction of the power, under a clause in the lease pro- viding for a rebate of rent for a stoppage of water, was no bar to an action on such covenant.^ But Avliere a lease of 1 Jacobs V. Davis, 34 Md. 204. 2 Dalton u. Helm, 8 Nev. 190. In Jacobs V. Davis, just cited, A., B., and C. owned, in severalty by separate titles, certain tracts of swamp lands adjacent to one another. By a sealed instrument signed by them all, A. and B. agreed to lot C. cut a ditch through their respective lands, and C, in con- sideration of this permission, cove- nanted that he would not allow D., an adjacent owner, or anyone who might thereafter own the adjacent land of D., to cut ditches in C.'s land so as to drain through the ditches by the agreement granted ; C. further agreed to cut the ditch by a particular line, and not to open it and let water flow through it until provision was made f er carrying it away below. On breach of the covenants by C, A. brought suit without joining B. as co-plaintiff. C. ' demurred on the grounds that the covenant was joint, the breach was insufficiently assigned, and that the covenant not to allow the ditches to be used for the land of D. was against public policy. It was held that the agreement was valid, and that the cov- enants were several. The court also held (relying on 1 VVms. Saund. 154, note 1, to Eccleston v. Clipsham) that though the parties covenanted jointly, yet as the interest and cause of action were several, the covenant should be taken so, and separate actions allowed. The allegation of breach, that C. did cut the said ditch so as to throw the water down before it could be taken off by the ditch be- low, was held a sufficient assignment of breach in that respect. And an averment that C. allowed the oivner of the said lands of D. to cut a ditch into the lands of said C, so as to drain through the said ditches, was held sufficient without namincj the owner. It was held, also, that if C. entered on the land of A. under the agreement, and began cutting the ditch, he must cut it as agreed, and could not defend on the ground that he had no deed, but should have tendered a deed for execution if he thought it necessary. 3 Moline Water Power Co. v. Waters,10Brad.(Ill.)App.l59. Where 666 THE LAW OF -WATERS. [PAET II. ■vvater-power provides in a plain way for an abatement at specified rates for every failure of water, the tenant is con- fined to the remedy so specified ; a covenant that the lessor will repair will not be implied, and the tenant cannot coun- terclaim for the cost of repairs made by himself.-^ § 469. Where a contract under seal has been modified, and a simple contract substituted, upon a valid consideration, the remedy for a breach of contract after such modification is by assumpsit, and not in covenant.^ Where the rights of par- ties in respect of water are the subject of a simple contract, express or implied, assumpsit is the legal remedy for the breach of such contract.^ So where, after a wrongful diver- sion and recovery therefor, a lease of the use of the water was given and accepted, and rent paid, and parties claiming under the lessee held over after its expiration, it was held that the assignee of the reversion could maintain assumpsit against them for the use and occupation.* § 470. Where a co-tenant uses more than his share of a mill or water-right, it is presumed prima facie to be done with the consent of his co-tenants, and the law implies a promise to pay for such excess. But if such presumption is rebutted, and there is no promise, and nothing to show the rela- tion of landlord and tenant, the other co-tenants cannot maui- tian assumpsit against him for the use and occupation. Where the joint owners of a mill, excepting P., who refused to unite with them for that purpose, rebuilt a mill, and retained P.'s share to reimburse themselves for expenses incurred for liim the land beneath the pool and inlet only to use due diligence in attempt- furnishing the power had been ceded ing to procure such removal by the by the lessor to the United States gov- United States. Ibid. ernment, which had agreed to maintain i Sheets v. Selden, 7 Wall, 416... the power out of appropriations that ^ Mill Dam Poundery v. Hovey, 21 might be made by Congress for that Pick. 417. purpose, and which had entire control ^ Davis v. Morgan, 4 B. & C. 8; over the power, it was held that the s. c. 6 Dowl. & Ey. 42 ; Turner v. covenant "to use due diligence in pro- Strange, 56 Texas, 141. viding water" did not require it to ^ Davis t. Morgan, 4 B. & C. 8; remove accumulations of sediment in s. c. 6 Dowl. & Ey. 42. the pool, impairing the power, but CHAP. XII.J REMEDIES A*E LAW. 667 in rebuilding it, refusing to give him his share until reim- bursed, it was held that P. could not maintain assumpsit against them, as the holding was adverse.^ § 471. It was early settled that ejectment would not lie for a watercourse.^ But it of course lies for land covered with water, and the recovery will include all incidents of the land, and the action may be used to try the title to a water- right.^ Where the rights of the State in public waters begin with low-water mark, and owners of lands bordering thereon have a statutory right to build into the water, they cannot maintain ejectment for land artificially made in front of their own land.* § 472. In a proper case, an injury done to or by means of waters may be remedied by the extraordinary writ of man- 1 Porter v. Hooper, 11 Maine, 170. 2 Challenor v. Thomas, Yelv. 143 ; s. c. Brownl. & Golds. 142. s Beidelman u. Poulke, 5 Watts, 308. ^ Austin V. Rutland Railroad Co., 45 Vt. 215. In Iowa, it is held that owners of land bounding on a navi- gable river own the fee only to high- water mark. Under this doctrine it is held that an act of Congress subse- quently declaring that a river formerly held navigable is not navigable, will not have the effect to extend the ownership of such persons to the center of the stream, so as to enable them to maintain ejectment against parties claiming land that forms part of the bed of the river. Wood u. Chicago Railway Co., 15 N. W. Rep. 284. But the State may maintain ejectment for land which was below high-water mark in navigable waters and arms of the sea, which have been filled up and made hard land. People I.. Mauran, 5 Denio, 389. The right of the riparian proprietor to land below high-water mark is a right to a tangible corporeal hereditament which may be vindicated against a disseisor by this action. Nichols d. Lewis, 15 Conn. 137. But the action will not lie for a mere privilege of a landing- place held in common with other citizens of a town. Black v. Hep- burn, 2 Yeates, 331. If a grantor reserves to himself, his heirs, and as- signs forever " the right and privilege " of erecting a mill-dam at a certain place described, and " to occupy and possess the aforesaid premises, without any let, hindrance, or molestation" from the grantee or his heirs, he has such an interest in the land reserved as will enable him to maintain ejectment. Jackson v. Buel, 9 Johns. 298. The action may be maintainecj for a fishery. Rex V. Old Arlesford, 1 T. R. 358, per Ashurst, J. : " There is no doubt but that a fishery is a tenement. Trespass will lie for an injury to it ; and it may be recovered in ejectment." Deny- ing the doctrine of Molineaux v. Mol- ineaux, Cro. Jac. 144; Herbert u. Luugiiluyii, Cro. Car. 492; Waddy v. Newton, 8 Mod. 275, 277. See ante, § 185. Ejectment will lie for a well of salt water, or for a right to a cer- tain q[uantity of the water to be taken from a certain well. Smith v. Bar- ret, 1 Lev. 114; Cro. Jac. 150; Run- nington on Ejectment, 131. 668 THE laV op waters. [part n. damus. It has seldom been employed in cases of such injuries, and an extended discussion of its nature and uses may there- fore be omitted. It may, however, be briefly stated that the essentials of a proper case for its exercise are, first, a specific legal duty due to the relator from a specific person or body ; and secondly, the absence of any other remedy by due course of law.i By " due course of law " is here meant the entire system of remedies administered by courts, including reme- dies in equity.^ • § 473. An obligation arising merely upon a contract and not involving any trust,^ or an obligation to pay damages for a tort,* will not be ground for a mandamus; nor will the existence of a nuisance for which a complete remedy may be had by indictment and judicial abatement.^ § 474. The exercise of official discretion, as by municipal bodies, boards of health, or commissioners of highways, will not be controlled by the writi^ But an official trust to perform a specific duty, or a public trust imposed on a private corpo- 1 High on Extraordinary Legal bridge was merely contractual, and Remedies, § 10. could not be enforced by mandamus. 2 In Commonwealth v. Supervisors, To same effect, see State v. ZanesvilTe 29 Penn. St. 121, it was held that Turnpike Co., 16 Ohio St. 308. mandamus would not lie where the * So one who has a claim for com- relator had a full and adequate remedy pensation against a local board of by injunction. But in Commonwealth health, for injuries not specially V. Commissioners of Allegheny, 32 authorized, has a remedy by action, Penn. St. 218, 223, it is said that the and cannot hare a mandamus. Regina existence of an equitable remedy is v. Darlington Beard, 6 B. & S. 562. not ground for refusing mandamus. ^ Reading v. Commonwealth, 11 2 State r. Republican River Bridge Penn. St. 196. Co., 20 Kansas, 404. So where the ^ High on Extraordinary Reme- State received a grant of land from dies, § 42 ; Dillon, Municipal Corpora- tlie United States, for bridge purposes, tions, § 830. So of a discretionary and gave a guaranty to erect and power to erect and repair bridges, maintain a bridge at a certain place. State u. Freeholders of Essex, 3 and then procured the erection of a Zab. (N. J.) 214. A discretion as to bridge at that place by a company, erecting a bridge is not determined by accepted the bridge and took from it levying and collecting a tax for that a guaranty to protect the State against purpose ; and the commissioners will loss upon its guaranty to the United not be compelled by mandamus to States, it was held that the obliga- complete the bridge. State v. Com- tion of the company to repair the missioncrs, 31 Ohio St. 211. CHAP. XII.] REMEDIES AT LAW. 669 ration may be enforced by mandamus. Thus, in California, canal companies organized under a general statute relating to such companies are held to be charged with a public trust, so long as they have water, to supply with water all those included in the classes for whose alleged benefit the companies were created ; and this duty is enforceable by mandamus.! Sq -^^here a company was authorized by Act of Parliament to divert rivers and watercourses, and under this authority the company raised the level of a brook, causing the flooding of a mine, it was held that the persons injured might have a writ of mandamus to compel the pay- ment of compensation under the Act ; and that if the injuries were caused partly by acts done under the powers of the statute, and partly not, the remedy was by mandamus, and not by action at law.^ But it is always open to the company to show full compliance with the act, in answer to the writ ; as in a case where a company was required to make ponds and watering-places for cattle, where, by means of the railway, the cattle of persons occupying lands adjacent thereto were deprived of access to former watering-places.^ § 475. As the rights infringed by injuries done by and affecting waters are property rights, it is necessary for the plaintiff to allege an interest in the property injured, and an injury to such interest, in order to show a cause of action.* The nature and extent of his interest need appear only so far as to show that it is injured by the wrong charged. Where the law gives a common right, as of navigation or fishing in public waters, it is unnecessary to state such right specially ; but if the plaintiff claims more than he is entitled to of common right, he must allege his title to the right which he claims.^ Rights infringed by private nui- sances fall within the latter class. ^ Price V. Eiverside Co., 56 Cal. " Leeds v. Shakerley, Cro. Eliz. 431. 751; 1 Com. Dig. 308, Action for ^ Queen v. North Midland Railway Nuisance, E. Co., 2 Eail. Cas. 1. 6 i Chitty P1.-393 ; Gale on Ease- ' Queen v. York & North Midland ments (5th ed.), 668. So where a Railway Co., 3 Rail. Cas. 764. plaintiff declared that he was poa- 670 THE LAW OP ■SKATERS. [PAET II. § 476. If the injury is to the possession, a general aver- ment of the plaintiff's possession is suificient, without any- special statement of his title ; ^ for, as we have seen, posses- sion is a sufficient interest to maintain an action against a wrong-doer.^ If, for example, the injury is by diverting or f)olluting a stream, the plaintiff should aver that he was possessed of the property injured, and that by reason thereof he was entitled to the flow of a stream to his land, or to the flow of a stream of good quality in its natural purity.^ Seisin in law is a sufficient interest to maintain the action. So, if one avers the seisin and death of his father, and a descent to the plaintiff, whereby he is seized, it suffices with- out alleging an entry;* and so if one alleges that he is "seized, in his demesne as of fee," possession will be implied.^ sessed of a house and was thereby entitled to an easement to take water from a cistern, but that the defendant wrongfully closed and fastened up a doorway, and thereby prevented the plaintiff from having access to the cistern and taking water, it was held that, if the declaration had alleged generally a right to use the cistern, and had complained that that right was interrupted, it might have been good ; yet as it had stated the par- ticular mode of obstruction by fasten- ing the door, the plaintiff was bound to allege a right to pass through the door, for the lack of which the dec- laration was bad. Tebbutt ;;. Selby, 6 A. & E. 786. See Gale on Ease- ments {5th ed.), 669. And where a count for polluting the waters of a canal which supplied boilers on the plaintiff's land, alleged that the plaintiif enjoyed the benefit of the water for that purpose, and that the water used and ought to run and flow without being fouled and polluted, it was held bad on the ground that it did not show that the plaintiffs were entitled to the flow or enjoyment of the benefit of the water. Laing u. Whaley, 3 H. & N. 675, 901 ; revers- ing 2 H. & N. 476. 1 Sly V. Mordant, 1 Leon. 247 ; Jackson v. Savage, Skinner, 316; Sand V. Trefuses, Cro. Car. 575 ; Glyn V. Nichols, Comb. 43; Rutland c-. Bowler, Palm. 290; Heblethwaite v. Palmer, Carthew, 85 ; 3 Mod. 48 ; 3 Lev. 133 ; Fentiman v. Smith, 4 East, 107; Bealey v. Shaw, 6 East. 208; Northam v. Hurley, 1 El. & Bk. 665; Hoare v. Dickinson, 2 Ld. Raym. 1568 ; Winnipiseogee Lake Co. v. Young, 40 N. H. 420, 432. See 2 Wm. Saund. 115, note 1 (to Coryton v. Litliebye). In an anonymoas case, Cro. Car. 499, which was an action for diverting an ancient watercourse, it was held un- necessary to show title by prescrip- tion or otherwise. 2 See Ante, § 377. s For precedents of forms of dec- laration for injuries affecting waters and watercourses, see 2 Chitty PI. (16th Am. ed.), 624-631; 2 Chitty's Precedents, 600-610. " Russell V. Handford, 1 Leon. 273. 5 Hart c. Evans, 8 Penn. St. 13. Coulter, J., here said : "The possession of the plaintiff below is sufliciently set out. The averment is that the plain- tiffs were at the time of the tort« committed 'seized in their demesne as of fee.' Seisin includes possjs- CHAP, xir.] REMEDIES AT LAW. 671 § 477. The plaintiff's possession must be 'alleged to be at the time of the wrong done ; but possession at the time of action brought is unnecessary, and the averment '■'■still is possessed " -may be rejected as surplusage.^ While the plain- tiff is at liberty to declare generally upon his possession, yet if he undertakes to set out a title, and does it insuffi- ciently, the declaration is bad.^ But an allegation that the plaintiff is entitled to the use of water in a convenient and customary manner is held not an allegation of a prescrip- tive right to be proved ; and in a complaint for the unreason- able detention of water, the «,verment that the plaintiff is entitled to use the stream without hindrance or interruption is held not a declaration upon an exclusive right, but only the right incident to the ownership of land through which the stream passes.^ § 478. The plaintiff must state his title sufficiently, if at sion. It is true there is also seisin in law, and that would be sufficient to maintain this action ; and actual and corporal seisin. But when an indi- vidual avers that he was seized, we may take it for granted that he was in pos- session, as the words will import that state of facts. But I am not to be understood as intimating that it was necessary to state an actual pedis pos- sessio, or to prove it, in order to en- able the plaintiffs to maintain this action. It was an injury to the free- hold as well as to the actual posses- sion." This ease seems to hold (1) that the ■ averment of seisin will be taken to imply possession; (2) that seisin in law is sufficient to maintain the action for injuries to the freehold ; and is apparently pregnant with the proposition that seisin in law is not sufScient to maintain the action for injuries not affecting the freehold. The injury in the preceding case was diver- sion from a mill, necessarily affecting the freehold. But where the plaintiff attempted to charge the defendant with the duty of cleansing a drain, it was held that the words " owner and proprietor" did not import that the defendant was the occupant of the premises. Russell v. Shenton, 3 Q. B, 449. 1 Vowles V. Miller, 3 Taunt. 137 So where the plaintiff alleged that his watercourse ran through his land prior to the injury, without alleging a continuance of the flow, it was held that the continued flow would be presumed. Stone v. Bromwich, Yelv. 161. 2 Dome t. Cashf ord, 1 Salk. 363 ; Crowther v. Oldfield, 1 Salk. 365; 2 Ld. Raym. 1225, 1230. And see 1 Wms. Saund. 346 o (note to Mellor V. Spateman) ; Notes to Saund. 625 ; Winnipiseogee Lake Co. u. Toimg, 40 N. H. 420, 432. STwiss V. Baldwin, 9 Conn. 291. See Avon Manuf. Co. u. Andrews, 30 Conn. 476. At common law a verdict would cure a title imperfectly stated, but would not cure a defective title, or the omission to state any title. 1 Wms. Saund., notes to Stennel v. Hogg; 2 Wms. Saund., notes to Bar- ber V. Fox. 672 THE LAW OF -WATERS. [PAET U. all, but is not bound to prove the same title as he alleges; " for the disturbance is the gist of the action, and the title is only inducement, and cannot be traversed." ^ But he is re- quired to prove the right which he alleges is infringed, as laid. "Where the plaintiff declared that he was possessed of a mill, whereby he was entitled to enjoy a watercourse which had been accustomed to flow to his mill, and the evidence showed that he owned land along an ancient stream, but that his mill was a new mill, as to which the jury found no right, it was held that the declaration would not support a recovery. The right declared on was that of an ancient ap- propriation ; the right proved was that of an ordinary ripa- rian proprietor, which in no way supported the declaration.^ Where the plaintiff in case for diversion alleged, as a rever- sioner, a right to the flow of water to three ponds, and the evidence showed that he had an immemorial right to the flow of water to an ancient pond, but had turned the water into three new ponds, and that his right in respect to these was barred by an outstanding life estate, it was held that he might recover under the declaration in respect of his right to the flow of water to the ancient pond.^ In averments describing his right great accuracy was required of the plaintiff, and any substantial variance was held fatal to re- covery. A general description of the course of a stream was sufficient, but if he attempted to describe it by metes and bounds, he must do it accurately.* Where he declared that he was entitled to all the water above a certain mark, whereas he was only entitled to the surplus of such water, after a prior use, the variance was fatal ; ^ and the same rule was applied where the plaintiff described a dam as located below his land, and it was proved to be adjoining and partly on his land.'^ So an averment that the plaintiff was pos- sessed of land, by reason of which he had a right to the use ' BuUer, N. P. 76, 7th ed. ; Ferrer 2 Prankum v. Falmouth, 2 A. & E. u. Johnson, Cro. Eliz. 336. " He must 452 ; 4 Ney. & Man. 330. prove the same right, hut he need not ^ jjale v. Oldroyd, 14 M. & W. 789. prove the same title." Gale on Ease- * Hall v. Swift, 6 Scott, 167. ments (5th ed.), 672. 6 Wilbur v. Brown, 3 Den. 356. ^ Brown v. Woodworth, 5 Barb. 650. CHAP. Xn.j EEMBDIBS AT LAW. 673 of water running in a tunnel to his mill, is not supported by proof that the tunnel was on the defendant's land, and that the plaintiff was using the water under a parol license and contract to convey.'^ But where the plaintiff alleged a greater right tlian he possessed, but of the same kind, tlie variance was not fatal. So where the plaintiff alleged that he was entitled to the free course of the stream, and that the defendant unlawfully increased the height of his dam, and inundated the plaintiff's mill, and the evidence showed that the parties' rights were subject to an agreement that during a scarcity of water the defendant was entitled to all the water during three days out of four, and the plaintiff to all the water on the fourth day, it was held that the injury to the plaintiff on the days when he was entitled might be proved under the declaration.^ In most of the States as well as in England, the statute of amendments is so liberal that the distinctions as to variance have become unimportant.^ § 479. It is settled in botli countries that the reversioner must state the nature of his interest, and allege an injury of such a character as to be necessarily injurious to the freehold,, or else must aver in terms and prove that the act complained of injures his reversion.* Wliere the plaintiff declared as a ^ Fentiman u. Smith, 4 East, 207. purport to recite tlie words of the See Hewlins o. Shippara, 5 B. & C. contract and the descriptions did not 221 ; 7 D. & E. 783. So an allegation vary as to the locality of the action, that, by reason of a dam, substances Sublett v. Kerr, 12 Texas, 366. An brought down the stream were col- averment that the plaintiff 's mill, lected and corrupted the water, was alleged to he obstructed, is " on " the held sustained by proof tliat the in- watercourse does not amount to an jury resulted from the alternate rise allegation that he is a riparian owner, and fall of the stream, and from tlie whicli would be at variance with thts action of the sun upon the water, extent of his real ownership. Bristol (Bronson, J., dissenting.) People v. Hydraulic Co. u. Boyer, 67 Ind. 230. Townsend, 3 Hill (N. Y.) 479. Where = Burdick v. Glasko, 18 Conn. 494. a petition alleged a contract in writ- ' Forthe English statuto,see L.Jv.lO ing respecting lands on the southwest Gen. Sts. 102 (Judicature Act of 1875 ; bank of the Sabine Kiver, and the 38 and 39 Vict. c. 77, Order xxvii). contract when produced was found to * Jackson v. Pesked, 1 M. & S. 234 ; describe the land as on the Sabine Hale u. Oldroyd, 14 M. & W. 783. River only, it was held that there was And see Alston u. Sjales,.9 Bing. .j; no variance, as the petition did not Baxter v. Taylor, 4 BV Si- Ad. 72;, 674 THE LAW OP WATERS. [PAET II. reversioner of lands and buildings, which were injured by the defendant who had the lands adjoining, by erecting over- hanging walls, it was held that the plaintiff must allege spe- cifically that it was to the. damage of the reversioner, or must state an injury of such a permanent nature as to be necessarily injurious to the reversion ; and the allegations in that case (merely charging the injury by overhanging eaves, and not using the term reversion) were held insufficient.^ In Massachusetts, in an action on the case for obstructing the plaintiff's use of his mills, the declaration alleged that the mills were leased, and that in consequence of the obstruc- tion the tenants had threatened to quit, and the plaintiff had therefore been compelled to make a reduction in his rents. It was held that the declaration was sufficient, but that the last averment was necessary to show an injury to the reversion.^ § 480. Where the plaintiff has different interests in pos- session and in reversion, he may recover in one action for an injury affecting both ; but where the common-law system of pleading is retained, he must insert separate counts.* Where the plaintiff declared in case for obstructing a stream and injuring liis ferry francliise, and the declaration contained two counts, one by the plaintiff, as in possession, and the Metropolitan Association o. Petch, 5 by stopping a watercourse flowing C. B. N. s. 504 ; Baker v. Sanderson, through it. He declared as " seized 3 Pick. 348; Noyes u. Stillman, 24 and possessed," and there was evi- ' Conn. 15. See Sumner v. Tileston, 7 dence that he held as tenant at will. Pick. 198 ; and Tinsman v. Belvidere Shaw, C. J., held that he could main- Eailroad Co., 25 N. J. L. 255. The tain case for the injury and that he rule in Jackson v. Pesked is stated and had sufficiently set forth his interest followed in Dayis v. Jewett, 13 N. H. to recover for the damages to the 88, and Potts v. Clarke, Spencer (N.J.) reversion. Ashley v. Ashley, 4 Gray, 530. 197. In Sumner v. Tileston, 7 Pick. 1 Jackson v. Pesked, 1 M. & S. 234. 198, the declaration was in the same ^ Baker v. Sanderson, 3 Pick. 348. form, and the plaintiff recovered for Where the plaintiff had by descent a present injury. share in the reversion of his father's ^ Baker v. Sanderson, 2 Pick. 348 ; lands, and had purchased the shares Davis u. Jewett, 13 N. H. 88. In of the other heirs, and the widow held Ashley v. Ashley, supra, n. 2, and for life, he brought an action on the in Woodbury v. Willis, 50 Maine, case for an injury to the land caused 403, the recovery seems to have in? CHAP. XII.] REMEDIES AT LAW. 675 other as a reversioner for the injury to his reversionary estate, both counts w^ere laeld good on general demurrer.^ § 481. In an action on the case for a nuisance, the injury may be alleged generally without describing the manner in which it was done.^ Thus, in an action for diverting water and impeding navigation. Lord Ellenborough said: "It is sufficient to describe the substance of the injury in order to give the other party notice of what he is to defend ; and it is sufficient in the form of pleading to allege the gravamen at any place within the body of the county." ^ Allegations of nuisance must be such allegations of fact as to show the nature of the nuisance on the face of the declaration, or it will be open to demurrer.* § 482. At common law the plaintiff was bound by his own averments, and if he particularly described the alleged tort, he must prove it as described, and any substantial variance was ground for non-suit.^ So at the present day, the plain- eluded damages to the present enjoy- * 2 Saund. PI. & Ev. (5th Am. ed.), ment and to the reversion, but no 471 ; Anon., Ld. Eayni. 452. So in mention is made of more than one an action against an upper ripa- count. rian owner for diverting a stream, ^ Patrick v. EufEners, 2 Eoh. (Va.) the plaintiff must allege diminution 309. and injury to himself. Burden i;. 2 1 Chitty PI. 406 ; Com. Dig. Ac- Mobile, 21 Ala. 309. A complaint tion on the Case for Disturbance B ( 1 ) ; alleging the wrongful cutting of a Anon., 3 Leon. 13 ; Prickman v. Tripp, ditch and the consequent flowage of Skin. 389. In an anonymous case, in the plaintiif 's premises was held good 1 Ld. Eaym. 452, it was held that on demurrer. It described the injury such a general averment of obstruc- with suflBlcient certainty, and there tion was good after verdict, but it was nothing to show that the flowage was questioned whether it would be was by surface-water (which would good on demurrer. not be a cause of action). It was not ^ Mersey & Irwell Navigation Co. necessary for the plaintiff to deny V. Douglas, 4 East. 497. In Tebbutt that the flowage was by surface-water. ". Selby, 6 A. & E. 786, 793, Patte- Ramsdale v. Foote, 55 Wis. 557. It son, J., said: "If the charge were is a variance to declare for the de- simply that the use was obstructed, I struction of a natural watercourse, think that would not be enough ; such and to prove at the trial damages by an allegation might mean an im- the flow of surface-water. Munkers prisonment, or any other way of im- v. Kansas Railroad Co., 10 Mo. 334. pediug." But the common law is un- See Illinois Eailroad Co. v. Fehringer, doubtedly as stated by Lord Ellenbor- 82 111. 129. ough. See Stein v. Ashby, 24 Ala. 521. = i Chitty PI. 407. 676 THE LAW OF WATERS. [PART 11. tiff cannot allege one kind of nuisance and prove another.^ Where the owner of a paper-mill declared that earth, sand, and other substances were washed into his mill-dam, and so filled and choked the pond as to make it in a great degree useless to him in the working of his mill, it was held that under this count he could not prove that the acts complained of made the water useless for washing rags.^ So in the description of the injury, an allegation that the defendant placed obstructions in a ditch has been held not proved by- evidence that materials were placed near the ditch, which were afterwards trodden and fell into the ditch.^ And a count for diverting water has been held not sustained by proof of penning it back and causing it to overflow the plaintiff's meadow.* But a count for diverting water and preventing it from , running along its usual course has been held sustained by proof that the water was prevented from being regularly supplied to the plaintiff's mill, although there was no diversion from the mill.^ § 483. If there is a defective statement of a valid claim, but the statement renders it necessarj^ to establish facts, which if established would support the claim in the writ, the defect, though it might be fatal on demurrer, is cured by the verdict.^ Where the complaint was for wrongful diver- 1 O'Brien v. St. Paul, 18 Minn. 176. was immaterial and need not be 2 EUicott V. Lamborne, 2Md 131. proyed. Dukes c. Gostling, 1 Bing. See ante, § 346. N. C. 588. The Common Law Pro- 3 Fitzsimmons v. Inglis, 5 Taunt, ceedure Act of 1852 (15 and 16 Vict. 534. In an early case, it was held c. 76, Schedule B. R. 30) prescribed that a count for breaking the bank of the following form for alleging tlie a stream was not sustained by proof right and the breach: "That the of breaking a dam. Biccot v. Ward, plaintiff was possessed of a mill, and Hob. 193. by reason thereof was entitled to tlie * Griffiths V. Marson, 6 Price, 1. flow of a stream for working the 5 Shears v. Wood, 7 Moore, 345. same, and the defendant, by cutting But where the plaintiff declared that the bank of the said stream, diverted he was possessed of an adjoining the water thereof away from the said close used as a private road, and that mill." the defendant constructed a sewer in ^ 1 Saund. 220, note (1) to Stennel v. his close, and thereby diverted water Hogg; Notes to Saimd. 260. So on from the plaintiff's pond, Tindal, C. an application for a mandamus the J., held that the averment that the prosecutor complained that the de- defendant's close was used as a road fendants, as trustees of navigation. CHAP. XII.] REMEDIES AT LAW. 677 sion by the defendant, and the evidence showed a diversion, but that he provided means for returning the water to the stream above the plaintiff's lands, and that the return was prevented by the act of another person, it was held that the allegations were suificient, and that there was no material variance.^ But under a declaration for obstructing the natural ilow of a stream, "which had theretofore run and flowed," " and of right ought to run and flow freely," no re- covery can be had for injuries caused by the improper con- struction of an authorized dam.^ § 484. The plaintiff is not bound to prove as great an injury as that alleged, but only to prove an injury of the kind charged, sufficient to constitute a cause of action.^ In an action for flowing the plaintiff's land, where it was alleged that the defendant unlawfully erected and kept up a certain dam, and the proof offered was that he kept the gates or sluices in the dam shut when he should have kept them open, and thereby caused the injury complained of, it was held that there was no variance. Redfield, J., in delivering the opinion, said : " He must prove the very injury of which he complains, but not to the full extent. If he alleges the dam to be ten feet high, or unlawfully erected, or wholly unlawful, he may recover upon showing it five feet high, or unlawfully continued or repaired, and made tighter or higher, so that in fact it is but partly unlawful. If any portion of the dam is unlawfully erected or kept up, and it cause an injury to the plaintiff of the kind he complains of, had charge of a lock, weir, and clows the navigation and works. It was in a stream near his land, that the held that, although the allegations, water was increased by rains, and the might have been insufficient on de- clows were not sufficiently raised to murrcr, the defect was cured by the let off the water, whereby he suffered verdict. Delamere v. The Queen, L. damage, but did not allege that the R. 2 H. L. 419. effect of the works was to raise the i Stein v. Burden, 29 Ala. 127. water higher than it would have been 2 vVood p. Rice, 24 Mich. 523. if they had not existed. The issue ' In Luttrell's case, 4 Co. Rep. 89 a, on the return and pleadings was it was held that the amount of diver- whether the damage was caused by sion was immaterial. 678 THE LAW OP WATERS. [PART II. he may recover."^ But, as we have already seen, a variance is now easily corrected under the statutes of amendments.^ § 485. The rule that a tort cannot be proved upon an allegation in an action ex contractu applies to actions for injuries to rights in waters. Under a complaint against the alienee of the grantor of an easement of taking water from a pond, the plaintiff cannot recover for the defendant's tortious interference with his rights in such water. In New York, this rule has not been changed by the adoption of the code.^ § 486. It is a general principle that damages should always be alleged in personal actions. But an action wUl he for any infringement of the plaintiif's rights although no special damage be caused.* It follows that in such cases no sjjecial damage need be alleged.^ And it is equally well settled that general damages such as the law implies from the tort complained of need not be alleged.^ But if the plaintiff claims any special damages, it is necessary to allege them with sufficient definiteness to inform the defendant of the nature of his claim.'' The loss of rents occasioned by a nuisance is a special damage, and cannot be proved unless specially alleged.'^ § 487. At common law the plaintiff might set forth his cause of action in several counts, with substantial variations, 1 Hutchinson c. Granger, 13 Vt. proper to be made at the trial after a 386. So under a count for diverting reference to arbitration, award for the and preventing water from coming to defendants, and appeal by the plaintiff. a mill, leakage and wastage may be ^ Beard v. Yates, 2 Hun, 466. shown. Wier v. Covell, 29 Conn. 197. « Ante, § 401. 2 See ante, § 478. In Morris v. Mc- ^ 1 Chitty PI. 411. See Pastorius Namee, 17 Penn. St. 173, the plaintiff v. Fisher, 1 Rawle, 27. was allowed to amend a declaration ^ Richards o. Hill, 1 Ld. Raym. for obstruction and diversion by the 102; Hutchinson v. Granger, 13 Vt. addition of a clause alleging that the 386. defendant, during the same time, un- ' 1 Chitty PI. 411 ; Solms v. Lias, 16 lawfully discharged the water of the Abb. Pr. 311 ; Moline Water Power stream, so that it came upon the Co. v. Waters, 10 Brad. (111.) 159. premises of the plaintiff at unreason- * Parker v. Lowell, 11 Gray, 358; able times and in unreasonable quan- Plimpton ;;. Gardiner, 64 Maine, 360; titles ; and this amendment was held Potter v. Proment, 47 Cal. 165. CHAP. XII.] REMEDIES AT LAW. 679 SO that if he failed on one, he might succeed on another. The right to decLare in several counts has been modi- fied and limited in almost all jurisdictions where the common law prevailed, and in many abolished. The law upon this subject is stated at length in the books on pro- cedure ; but a discussion of it here would be foreign to our purpose.^ § 488. In > actions on the case for nuisances, as in other actions on the case, the general issue of "not guilty" was at common law a simple denial that the plaintiff was entitled to judgment, and under it anything might be given in evidence which tended to defeat the plaintiff's claim.^ This was an extension of the scope of the plea which on principle should have been confined to a traverse or denial of the, facts alleged in the declaration.* But under this rule the plaintiff was at liberty to introduce evidence denying the plaintiff's title, or of a license, or accord and satisfaction, or a former recovery, or any defensive matter. And in jurisdictions retaining the common-law rules in their completeness, this is still the law.* So where the defendant pleaded to a declaration for diver- sion, that the stream sprung from his ground, and that 'he had a prescriptive right to fill certain pits therefrom, which becoming filled up, he had dug others instead, which he had filled from the stream, and denied diverting any water, 1 See 1 Chitty PI. (16th ed.), 424. which the causes of complaint and Woolryeh (p. 398) says : " Other the resulting injuries may be infinitely counts varying the matters charged diversified." against the defendant are commonly ^ 1 Chitty PI. (2d Am. ed.), 486 ; introduced. For example, there may (12th Am. ed.), 491 ; 1 Tidd Pr. (3d be one alleging a general diversion of Am. ed.), 651 ; 3 Dane Abr. 56. the water without showing the means ; " Stephen, PI. 177. And see Met- another for widening cuts from the calf's note, Yelv. 147 h, n. 1. Lord stream, etc. ; and a count for not Mansfield assigns as a reason for keeping the banks of the river in this extension, that the action on the repair is said to be proper in order to case is " in the nature of a bill in avoid a risk, namely, of not being able eguity," " because the plaintiff must re- to show that the defendant made the cover upon the justice and conscience cuts or channels stated in the first of his case." Bird c. Eandall, 3 Bur. count. The above may suflice as an 1353. And this is repeatcdin the books, example of the declarations on this * Plowman v. Toster, 6 Coldw. 52 ; subject, but there are many others in Puterbaugh's Practice (HI-); 1880,489. 680 THE LAW OF WATERS. [PAET II. except in this way, the plea was held bad, as amounting to the general issue.^ §489. In New York it is held that a general denial, pleaded in an action for the wrongful diversion of water,, does not draw in question the title to tlie premises.^ But in an action of trespass, on appeal from a justice's court, for removing gates 1 Brown o. Best, 1 Wils. 174. In England the new rules of pleading provided: "In actions on the case, the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, and no other defence than such de- nial shall be admissible under that plea; all other pleas in denial shall take issue on some particular mat- ter of fact, alleged in the declara- tion. 7?.^/., in an action on the case for a nuisance to the occupation of a house by carrying on an offen- sive trade, the plea of not guilty wiU operate as a denial only that the de- fendant carried on the alleged trade in such a way as to be a nuisance to the occupation of the house, and will not operate as a, denial of the plain- tiff's occupation of the house. In an action on the case for obstructing a right of way, such plea will operate as a denial of the obstruction only, and not of the plaintiff's right of way." Hilary Term, 4 Will. 4, 1834; 5 B. & Ad. i. In the rules of Hilary Term, 1853, rule 16, on the sanie point, was substantially the same as this. See 17 Jur. Part 11., pp. 168, 170. Where the plaintiff alleged that he was possessed of a water-mill, and by reason thereof ought to have had a stream of water running to his mill, yet that the defendant wrongfully di- verted " the said stream," it was held that, under these rules, the word wron<]fulhj did not put the title in issue. ITrankum i-. Falmouth, 2 A. &, E. 452. To same effect see Blood v. Keller, 11 Ir. C. L. (1860) 132. In Dukes V. Gostling, 1 Bing. JT. C. 588; 1 Scott, 570; 3 Dowl. 619, in an action for diverting water from the plaintiff's pond, it was held that the plea of not guilty put in issue the fact of diversion only, and admitted the matters alleged by way of induce- ment. But under these rules " not guilty " put in issue both the act com- plained of and its consequences. So, in an action for erecting a cesspool near a well, and thereby contaminat- ing the water of the well, the plea of not guilty was held to put in issue both the fact of the erection of the cess- pool, and that the water was thereby contaminated. Norton v. Scholefield, per Parke, B. 9 M. & W. 665 ; s. c. 1 Dowl. N. s. 638. Where a local com- pany was authorized to enter on lands and sink wells to obtain a supply of water for a town, not depriving the occupiers of the lands of water for their own necessary uses, and such company complained against an oc cupier for diversion, the court (per Parke, B.) held that under the plea of not guilty, and a plea denying the plaintiff's right, the defendant might make the defence that within twenty years after the discovery of the spring by the plaintiffs, he had simk a well, and used the water in a manner and for purposes not prohibited by the act. South Shields Water Works Co. V. Cookson, 15 L. J. Ex. 315. 2 Kathbone v. McConnell, 21 N. Y. 466. CHAP. XII.J KEMEDIES AT LAW. 681 from a raceway, it was .held that the defendant might show under a general denial, that the raceway ran through his land, which could be rebutted only by proof of an easement, and that this would involve title, which would oust the jus- tice's jurisdiction.^ Where trespass is brought for flowage, if the defendant relies on a license, it must be pleaded spe- cially, and cannot be proved under the general issue ; but it is sufficiently pleaded, if the facts constituting the license are averred.^ A plea of license to divert does not draw in ques- tion the title to the premises.^ § 490. In trespass a prescriptive right to a watercourse, or in respect of any use of waters, must be pleaded specially ; * and at common law it was necessary to show who was seized in fee of the land in respect of which it was claimed, and then to aver that imniemorially all the ancestors of the party so seized were entitled to, and from time to time actu- ally exercised the right ; and the title was required to be pleaded with exactness.^ § 491. A prescription cannot be pleaded against a pre- scription without a traverse of the plaintiff's right. This was decided in an action for the diversion of a watercourse in which the plaintiff claimed a prescriptive right to the flow of the water, and the defendant set up a prescription to main- tain a ditch on his land.^ A plea of prescriptive right in 1 O'Donnell v. Brown, 3 Lans. 474. * 1 Chitty PI. (16th ed.), 541. In another case, appealed from a jus- * Ibid. And see Gale on Ease- tiee's court, it was held that the ques- ments (5th ed.), 677 ; 1 Wras. Saund. tion where a stream ought to run (in 346)! ; 1 Notes to Saund. 624. By the trespass for entry to abate a nuisance Prescription Act, 2 & 3 Wm. 4, c. 71, and restore a diverted stream to its it was provided that it shall be suf- channel) did not involve title, flcient to allege the enjoyment of such Bowyer v. Schofield, 1 Abbott, N. Y. rights as of right, by the occupiers of Ct. of Ap. 177; s. c. 2 Keyes, 628. the tenement in respect of which it But the question whether one party is claimed, for the required periods, has a prescriptive right to use a well without setting out the title of the on the premises of another involves fee. title. Gage v. Hill, 43 Barb. 43. ^ Murgatroyd v. Law, Carthew, 116. 2 Lockhart v. Geir, 54 Wis. 133. The Hilary Rules (4 Will. 4, 1834) ' Rathbone v. McConnell, 21 N. Y. provided that in all actions in which 466. a right of way or other similar right 682 THE LAW OF WATERS. [PAET II. respect of a mill, to use the water of a canal for generating steam and supplying a cistern, was held divisible where the evidence supported the right for the former purpose, but not for the latter. 1 Where the defendant in one plea claimed the right to have water flow from a mill-stream to a ditch at all times, and in another plea claimed the right only at times when the stream was increased by certain water called "flash water," and the jury found the right in his favor at all times, the finding was held to include the right claimed by the other plea, and the jury was discharged as to it.^ Where the defendant relies on an easement, the plaintiff may defeat it by showing that the defendant held the estates by unity of possession without a special replication to that effect.^ is so pleaded, if the allegations as to the extent of the right are capable of being construed distributively, they shall be taken distributively. This was held to apply to the case of a claim of right to pass and repass for the purpose of carrying water and goods, where the jury affirmed the right so far as it related to the carry- ing of water, but negatived it as to the rest. Knight v. Moore, 3 Scott, 326 ; 3 Bing. N. C. 3. 1 Rochdale Canal Co. u. Eadcliffe, 18 Q. B. 287. 2 Drewett v. Sheard, 7 C. & P. 46-5. 3 Clay V. Thackrah, 9 C. & P. 47, where easement of way was claimed. Only V. Gardiner, 4 M. & W. 490. For a form of pleas denying the plaintiff's right to the water, see Thomas c. Thomas, 2 Cr. M. & R. 37. For form of plea of immemorial right at com- mon kill} to discharge water from a tan-yard into a stream, see Moore d. Webb, 1 C. B. n. s. 673. Of a pre- scriptive right to throw refuse and cinders into a stream ; Murgatroyd v. Robinson, 7 El. & B. 391 ; Carlyon v. Levering, 1 H. & N. 784 ; s. u. 20 L. J. Ex. 251. Under the Prescription Act (2 & 3 Will. 4, c. 71) of prescrip- tive right to lower a weir for the pur- pose of irrigation ; Ward v. Robins, 15 M. & W. 237. Of a prescriptive right to discharge noxious water into a stream; Wright v. Williams, 1 M. & W. 77. Of a prescriptive right to scour and amend the channel of a watercourse ; Peter v. Daniel, 5 D. & L. 501. In justification of a trespass, because the defendants had, as occu- piers of a mill, an easement of going upon the close to repair the banks of a stream which flowed to the mill; Clay V. Thackrah, 9 C. & P. 47. In justification of the obstruction of a watercourse, because the plaintiff thereby wrongfully discharged water upon the defendant's land; Roberts V. Rose, L. R. 1 Ex. 82. For other forms of pleas, see 2 Chitty PI. {16th ed.), 733. By the Supreme Court of Judicature Act of 1873, 36 & 37 Vict, c. 66, Schedule " Rules of Procedure," R. 1 (L. R. 8 Gen. Sts. 350), one form of action is substituted for the dif- ferent forms employed at common law. In the Judicature Act of 1875, 38 & 39 Vict. c. 77, First Schedule, Order XIX., i. 20 (L. R. 10 Gen. Sts. 797), it is provided : "It shall not be sufficient for a defendant in his de- fence to deny generally the facts alleged by the statement of claim, or for a plaintiff in his reply to deny generally the facts alleged in a de- CHAP. XU.] EEMBDIES AT LAW. 683 § 492. In order to recover, the plaintiff must prove his right and the injury caused by the defendant. His right may be in possession or reversion, or it may be an incor- poreal right; but he must prove the right which he has alleged, and in respect of wliich he has brought suit. The subject of variance has been already considered under the subject of pleading.! j^g ^jjg defendant may defeat the action by proving a right in himself, the same rules will apply to evidence of right in either party. § 493. Evidence of a similar injury to other persons or tracts of land is within the rule excluding res inter alios acta, unless it is shown that all the conditions of the two events are the same. So where the injury was caused by removing stones from a river, in consequence of which the river washed away the plaintiff's land, evidence that the removal of stones at another place on the river had produced the same effect was excluded.^ § 494. Damage need not be shown where the injury is to a private right,^ but must be for injuries to an individual by a public nuisance ; * and we have considered the time to which damages should be computed.^ Evidence of special damage fence by way of counter-claim, but see Tyler i.. Mather, 9 Gray, 177 ; each party must deal specifically with Ellis r. Harris, 32 Gratt. 684. Where each allegation of fact of which he the plaintiff claimed the whole of the does not admit the truth." bed of a river running between his 1 See ante, § 478. The plaintiff has land and that of the defendant, the a right to support his cause by proof plaintiff was allowed to give evidence of the facts stated in his declaration, of acts of ownership by him lower whether they are sufficient in law to down the stream, where the river entitle him to recov.er or not ; and flowed between his land and that of this can only be prevented by a de- a third person which adjoined the de- murrer. So the plaintiffs should be fendant's land ; and of repairs done allowed to prove a corruption of a to a fence along the river bank, divid- stream as plleged, although it may be ing the third person's land from the shown by the defendants to be no river, which was in continuation of a ground for making them liable, if the fence dividing the defendant's land issue has not been framed so as to from the river. Jones v. "Williams, 2 M. render such proof unnecessary. How- & W. 326. ell V. McCoy, 3 Eawle, 256. » Ante, § 401. 2 Hawks V. Charlmont, 110 Mass. ^ Ante, ^ 122. 110. For applications of the rule to pay- ^ _^nte, § 411. ments for the flowa-ge of other lands, 684 THE LAW OF WATEES. [PAET H. is admissible only when such damage is alleged.- Damages must be connected with the injury complained of. In an action for damages by the erection of an embankment cutting off the plaintiffs land from the river, it was held that the plaintiff might show the prevention of deposit of enriching sediment by the entire embankment, and not simply by that portion in front of his land.^ § 495. The rule excluding evidence of opinion is applied to matters of damage. So, opinions of witnesses as to the amount of damages caused by the deprivation or withdrawal of water from a tavern are inadmissible.^ In an action for flowage, the opinion of a witness as to the amount of damage sustained was held inadmissible.* And in Ohio, it was held that a person who was present during the trial of a cause, and heard witnesses describe the manner in which a ford was injured by the erection of a dam across the stream below the ford, could not be allowed to give his opinion of the damages sustained by the plaintiff.^ If the finding of damages by the jury is excessive, it is ground for allowing a new trial.® But if the jury merely compute the damages for too long a time, and the excess is ascertainable, the plaintiff may have judg- ment by remitting the excess.^ A verdict will not be set aside as against the weight of evidence, where the witnesses on one side satisfactorily prove that a dam has not been raised, and those on the other prove that the water in it is higher when the raising of the water, as found by the verdict, can be accounted for by other alterations in the dam.^ 1 EUicott , . Larnbdrne, 2 Md. 131; " Harger !.'. Edmonds, 4 Barb. 256. McTavish u. Carroll, 13 Md. 429 ; * Sinclair v. Rousli, 14 Ind. 450. Solms V. Lias, 16 Abb. Pr. 311. 6 Shepherd o. Willis, 19 Ohio, 142. 2 Concord Railroad Co. v. Greely, « A finding of £3,000 ioi the diver- 23 N. H. 237. So where the defendant sion of a, stream was held excessive has cut away the portion of the plain- by the court of King's Bench on cer- tiff's land abutting upon a lake, and tain facts, and a new trial ordered, made it liable to be washed away, the Pleydell v. Dorchester, 7 T. R. 529. plaintiff may recover the cost of a 'So ruled in a flowage case. Hodges retaining wall. Thompson v. Milwau- v. Hodges, 5 Met. 205. kee Railway Co., 27 Wis. 93 ; Price v. " Morris Canal and Banking Co. Milwaukee Railway Co., 27 Wis. 93. v. Seward, 3 Zab. 219. CHAP. XII.J REMEDIES AT LAW. 685 § 496. The evidence for the defendant may of course be either in rebuttal of the plaintiff's case, or in support of his own. If he relies on a license, it may be proved by parol.^ A parol license to erect a mill-dam, by which the lands above will be covered with water when executed, has been held binding on all subsequent purchasers of the lands affected.^ § 497. Under a denial of the injurious consequences of the act complained of, the defendant may show that the volume of the stream has not been diminished or its quality changed.^ So where water was diverted to a reservoir and mixed with other water obtained from the earth, and the whole after being used for a steam-engine was returned to the river, Baron Alderson said: "I left it to the jury to saj"- whether the same quantity of water continued to run in the river, as if none of its water had entered the premises of the 1 Addison v. Hack, 2 Gill, 221. 2 McKellip V. Mcllhenny, 4 Watts, 317. In Liggins v. Inge, 7 Bing. 682, where the plaintiff's father, by oral license, permitted the defendants to lower the bank of a river .and make a weir above the plaintiff 's mill, where- by less water flowed to the plaintiff 's mill than before, which proving in- jurious, the father had, after a lapse of five years, requested them to re- store the banks to the former level, it was held that no action could be maintained against the defendants for continuing the weir. Tindal, C. J., said : " This is not a license to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like ; which license, if countermanded, tlie party is but ii) the same situation as lie was before it was granted ; but this is a license to construct a work which is attended with expense to the party using the license ; so that after the same is countermanded, the party to whom it is granted may sustain a heavy loss. It is a license to do some- thing that, in its own nature, seems intended to be permanent and continu- ing. And it was the fault of the party himself, if he meant to reserve the power of revoking such a license after it was carried into effect, that he did not expressly reserve that right when he granted the license, or limit it as to duration. Indeed, the person who authorizes the weir to be erected becomes, in some sense, a party to the actual erection of it ; and cannot afterwards complain of the result of an act which he himself contributed to effect." In Fitch v. Seymour, 9 Met. 462, the action was by a pur- chaser whose land was flowed under an oral agreement and license from the plaintiff 's grantor. It was brought for a breach of a covenant against incumbrances by such flowage. The court held that the agreement could not bind the estate as to future dam- ages, not being in writing, and- that the flowage was therefore no breach of the covenant, and the party flowing the land was liable for such damages to the present owner. The Mill Act there gave annual damages for flow- age, recoverable by successive ac- tions. 8 Embrey v. Owen, 6 Exch. 353. 686 THE LAW OF WATERS. [PART U. defendant ; telling them, tljat if they were of that opinion, they should find a verdict for the defendant." ^ But the defendant cannot show in mitigation of damages that the act complained of, amounting to an invasion of the plaintiff's right, was a benefit to the plaintiff, and not an injury; for the plaintiff is not bound to accept a benefit given against his will. He is entitled to any benefits which the defendant's proper use of the stream may incidentally confer upon him,^ and is not bound to exchange one right for another.^ Where prospective damages are allowed, the defendant may show in mitigation that structures erected, or causes set in operation since the suit began, will prevent future injury. So it may be shown that a causeway erected since the suit began will prevent the continuance of flowage.* § 498. Admissions by a party or declarations by a person interested on either side, must, in order to be admissible as declarations against interest, have been made since his inter- est accrued.^ § 499. Evidence as to the nature of the injury must, as * Dakin c. Cornish, stated by Al- his right, for which an action would derson, B., in Embrey v. Owen, 6 lie, whether it would be barred by an Exch. 360. So in Elliot v. Fitchburg advantage of egual value, conferred Railroad Co., 10 Cush. 191 (a case for in nature of a set-off ; but whether diversion), the defendants offered evi- the improvements of Clark upon his dence tending to prove that one Clark, meadow, taken together as a whole, under whom they claimed had cut including the dam and ditches as parts ditches through his meadow, which of one and the same improvement, was wet and spongy, to the brook, any damage was done td the plain- thereby increasing the flow of water tiff ; and this, we think, was correctly to the brook ; and it was further so left." proved that there was no outlet for ^ Tourtellot v. Phelps, 4 Gray, 370, the water of the meadow, except into 374. the brook below the dam complained ' Webb v. Portland Manuf . Co., 3 of. Metcalf, J., instructed the jury Sumner, 189, 202 ; Gerrish v. New that if, by these ditches, the flow of Market Manuf. Co., 30 N. H. 478, water was increased equal to the 484, 5 ; Tillotson u. Smith, 32 N. H. quantity taken out by the defendants, 90, 96. But see Addison u. Hack, then the defendants were not liable on 2 Gill, 221, wliere it is said that the appeal. Shaw, C. J., said : "The ques- defendant may show a diversion to be tion was not if the defendants had a benefit. caused a damage to the plantiff, ' ^ Tyler c. Mather, 9 Gray, 177. amounting in law to a disturbance of ^ Tyler v. Mather, 9 Gray, 177. CHAP. XII.j EEMBDIES AT LAW. 687 ■we have seen, correspond with the allegation. In proving an injury by the flowage of land, where the defendant claimed the right to flow the land to a certain height, the plaintiff was permitted to introduce the declaration of a former owner that a certain stone marked the height of the defendant's right to flow.i In order to charge the defendant for an in- jury done, it is sufficient to show that it was done by his authority, or that he continues it.^ In an action by a canal company for a nuisance in digging clay pits, by which the banks of the canal were injured, it was held incumbent on the plaintiffs to show that the banks were at the time of the damage in such a state as the Act of Parliament required.^ In trespass for entering a close covered with water, and tak- ing fish therefrom, it is held that the ownership of the soil \% prima facie evidence of ownership of the fish> § 500. Where a prescriptive right is alleged, it must be proved by evidence of the exercise of such a right for the statutory period, which in the United States is usually twenty years.^ Evidence is admissible of a user for more than the required time,® and also of a user for less than such time, and even of an interrupted use.'' § 501. The claim of a prescriptive right may be defeated by showing it to be under a grant from a temporary occu- pant, as from the vicar of a parish, who has no power to bind his successor ; ^ or the user may be shown to be permis- 1 Tyler v. Mather, 9 Gray, 177. See ' Bealey v. Shaw, 6 East, 208, 215 ; on amendments, ante, § 478. Oilman v. Tilton, 5 N. H. 2.31. Lord ^ Penruddock's case, 5 Co. 100. Ellenborough, C. J., said : " I take And see Greenl. Evid., § 472. it that twenty years exclusive enjoy- ^ Stafford Canal Co. c. Hallen, 6 ■ ment of the water in any particular B. & C. 317. But see Eex v. Trafford, manner affords a conclusive presump- 1 B. & Ad. 874'; 3 Starkie Evid. (7th tion of right in the party so enjoying Am. ed.), 1252. it, derived from grant or Act of Parlia- * Waters v. Lilley, 4 Pick. 145. ment. But less than twenty years' ' Ante, § 329. For the Prescription enjoyment may or may not afford Act In England, see 2 & 3 Will. 4, such a, presumption, according as it c. 71. is attended with circumstances to sup- ^ Lawson v. Langley, 4 A. & E. 890 port or rebut the right." (a ease of way). * Wall v. Nixon, 3 Smith, 316. 688 THE LAW OF "WATERS. [PAKT II. sive, and evidence may be given of what a former tenant said as to asking permission to have the water, which may be a verbal act, and may be proof or disproof of an exercise of right by one, and an acquiescence in it by the other.^ § 502. When a prescriptive riglit is made out, and the opposing party seeks to show a limitation of the right, he has the burden of proof, ^ but may establish the limitation by the same kind of evidence, as of user, as that by which the right itself may be proved.^ But where a proprietor on one shore appropriates so much of the passing water as he is enabled to control, even the whole of it, by means of structures on his own estate, he can thereby gain no pre- scriptive right to appropriate more than one-half the same, so long as the opposite proprietor neither uses nor seeks to use any part of the stream to which he is entitled.* § 503. To avoid the effect of a grant, the party claiming the prescriptive right may give evidence tending to refer the grant to a different right, subject of course to the rules of evidence on explanation of documents.^ An alleged ease- ment may be defeated by showing that the party claiming it held both the dominant and servient estates by a unity of possession. So where an easement was claimed by the holder of a mill, of entering upon lands in order to repair the banks of a stream, letters which the claimant had written, while lessee of the mill, were held admissible to show the nature of his possession.® § 504. A former judgment on the question of right in- volved will, if pleaded, be conclusive of the rights of the parties or those claiming through or under them.^ This was the rule originally, and it was held with great strictness that 1 Wakeman v. West, 8 C. & P. 105 ; o Clay v. Thackrah, 9 C. & P. 47. ante, c. 11. ' Vooght v. Winch, 2 B. & Aid. 602 ; 2 Bliss V. Rice, 17 Pick. 23, 33, 34. Evelyn v. llaynes, per Ld. Mansfield, 3 Burnham v. Kempton, 44 N. H. 78. C. J., cited per Lord Ellenborough, in ' Pratt V. Lamson, 2 Allen, 275, 288. Outran) v. Morewood, 3 East, 366. 6 Tyler v. Mather, 9 Gray, 177. CHAP. XII.] EEMEDIES AT LAW. 689 if the party claiming the benefit of the judgment did not plead it, but simply offered it in evidence, he thereby, in the language of Abbot, C. J., " consents that the whole matter shall go to a jury, and leaves it open to them to inquire into the same upon evidence, and they are to give their verdict upon the whole evidence submitted to them."i So it was held - that a judgment in an action on the case, disaffirming an exclusive right to a river, is strong evidence in another action trying the same right, but not conclusive.^ Where the party is not allowed or required to plead specially, the judgment is allowed its full force in estoppel, when given in evidence ; ^ and it is now held by several authorities that it will be equally conclusive in all cases, whether pleaded or given in evidence.* iVooght 6-. Winch, 2 B. & Aid. 682, criticising Lord Mansfield's opin- ion in Bird i-'. Randall, 3 Burr. 1353, thiit in an action on the case a judg- ment given in evidence is conclusive. 2 Miles V. Rose, 5 Taunt. 705. In case for diversion, it was held that where a question of right has heen tried in an action on the case, the record of that trial is evidence in a second action against the same de- fendant, thougli there are other de- fendants, if they all claim under him. Strutt V. Bovingdon, 5 Esp. 56. To the same effect, see Blakemore >;. Glamorganshire Canal Co., 1 Gale, 78. 3 Kilheffer v. Herr, 17 S. & R. 319. See Clink v. Thurston, 47 Cal. 21 ; Gans u. St. Paul Ins. Co., 43 Wis. 108. < In 1 Greenl. Evid. § 531, it is said : " Notwithstanding there are many re- spectable opposing decisions, the weight of authority, at least in the United States, is believed to be in favor of the position that where a former recovery is given in evidence, it is equally conclusive in its effect as if it were specially pleaded by the way of estoppel." And in the notes, Marsh v. Pier, 4 Watts, 288, is relied on, and lOlhefEer v. Herr (opinion of Huston, J.) is cited in support. For a further discussion of the question supporting the wider rule, see Bigelow on Estoppel (3d. ed.), 583. And for a discussion of Vooght v. Winch, 2 B. & Add. 662, upholding it, as deciding that the conclusiveness of the estop- pel is waived by not pleading it, see 2 Sm. Lead. Cas., notes to Doe c. Oliver, and Duchess of Kingston's Case (7th ed. 628-9). The reason for the rule in Vooght u. Winch is that the form of the pleadings opens the case for evidence on the merits, and if the case is before the jury on the merits, the question of estoppel is out of the case. The distinction that where, from the nature of the plead- ings, recovery cannot be specially pleaded, it shall still be an estoppel, is a clear exception to the general rule. That the law in New York is as stated in the text, see Wood v. Jackson, 8 Wend. 9 ; Krekeler v. Ritter, 62 N. Y. 372. And that the law was the same in Massachusetts until altered by statute, see Howard v. Mitchell, 14 Mass. 241 ; Adams v. Barnes, 17 Mass. 365 ; Bartholomew v. Candee, 14 Pick. 167 ; Sprague r. Waite, 19 Pick. 455. In Pennsylvania, the common-law rule seems to be in force where there is an 690 THE LAW OF WATEES. [part II. § 505. If the plaintiff recovers judgment for the erection of a nuisance, and brings a second action for its continuance, he should recite the judgment in his declaration, and state that the action is for a continuance of the same, or the rule applies to both parties that the judgment is only evidence unless averred in pleading. In an action in Pennsylvania for the continuance of a dam overflowing the plaintiff's land, vp^here the plaintiff so averred the former recovery, the court said: "In an issue on a declaration or plea founded on a former judgment, the only, proper subject to be submitted to the jury is v^hether or not the matter in dispute in the present action is the same that wa,s litigated in the former one. With this fact found the court must decide upon the effect of the former judgment." ^ In an action for the con- opportunity to plead the judgment. In an action on the case for the con- tinuance of a nuisance by maintain- ing a dam, the defendant pleaded not guilty, license, and the statute of limi- tations, and offered in evidence the record of a former trial between the same parties on the same pleas, and the court held that the judgment would not be conclusive unless plead- ed. Kilhefler v. Herr, 17 S. & E. 319. This seems to be the decision in that case. It is so stated in the head-note, and so treated in subsequent cases. Marsh v. Pier, 4 Rawle, 273; Kerr ;;. Chess, 7 Watts, 367 ; Man v. Dre.xel, 2 Penn. St. 202. It is cited as an authority for the rule that the judg- ment is equally conclusive, though not pleaded, in Walton u. Dickerson, 7 Penn. St. 376. But the court said {per Rogers, J.) : " These principles apply only where special pleading is required, for I grant that where the parties are not bound to plead or re- ply specially, the record of a former recovery is conclusive evidence, bind- ing the plaintiff, the court, and the jury, as in actions of assumpsit and debt." (Relying on the Duchess of Kingston's Case, 20 How. St. Tr. 537.) But, as we have seen, at common law the greatest latitude was extended to defences in the action on the case, offered under the plea of not guilty ; and it would seem that if there were to be any exceptions to the rule, the action on the case would be one ; and so it was lield in Pennsylvania in Gilchrist v. Bale, 8 Watts, 355, 358. So that the authority of Kilheffer v. Herr, for the point in the text, is by no means imquestioned. In Long v. Long, 5 Watts, 102, the action was on the case for obstructing a stream, and a former judgment was specially pleaded. Rogers, J. (who gave the opinion in Kilheffer v. Herr), in his opinion followed the doctrine stated in the text, and cited the former case as in accord. In Smith n. Elliot, 9 Penn. St. 345, the action was on the case for diverting water from the plaintiff's mill. The defendant plead- ed the general issue, and insisted that a former judgment, offered in evi- dence, was conclusive. Rogers, J., again delivered the opinion. He fol- lowed Vooght V. Winch (2 B. & Aid. 662, see supra), and held that the judgment, while admissible, was not conclusive, and again construed Kil- heffer V. Herr as in accord. 1 Rockwell V. Langley, 19 Penn. St. CHAP, xn.] EBMEDIBS AT LAW. 691 tinuance of a nuisance, by maintaining a dam which over- flowed the plaintiff's mill and spring, where the defendants relied on a former recovery, it was held that the plaintiff might give evidence that at the former trial he gave no evidence of the damage done during a part of the time laid in the declaration, and that the defendant might contradict it by other evidence.^ 502. In Heller v. Pine, 8 Blackf . 175, the Supreme Court of Indiana held the same way. The action was case for obstructing a watercourse to the the injury of the plaintiff's mill. The defendant pleaded the general issue. The plaintiff' offered in evidence the record of a former cause for an in- jury to the same mill, by the same obstruction, and asked the court to instruct the jury that it was conclu- siye as to all matters put in issue at the former trial. But it was held that the record, though strong evidence for the plaintiff, could not act as an estop- pel. 1 Haak v. Breidenbach, 6 Binney, 12 ; 3 S. & E. 204. The doctrine of res adjudicata was not considered in this case. CHAPTER XIII. EQUITABLE EEMEDIES. SECTION. 508, 507. By injunction. — Without first establishing a clear right at law. 508-511. Ibid. — Irreparable injury. 512-517. Ibid. — Present and prospective injury. 518-520. Ibid. — Claim of adverse right by defendant. 521-523. Ibid. — Allegations in the bill. 524-527. Preliminary injunction. — When granted. 528, 529. Perpetual injunction. — When granted. 530-533. Ibid. — Acquiescence and equitable estoppel. 534-537. Injunctions in cases of obstruction or diversion of streams and other waters. 538, 539. Ibid. — Where the parties' rights are fixed by contract or other- wise. 540. Regulation of common rights in equity. 541. Injunctions in cases of nuisances from stagnant water. 542. Not granted to protect subterranean percolations. 543. May issue to protect prior appropriations of water in mining districts. 544-546. Injunctions. — To restrain pollutions. 547. Ibid. — To prevent impediments to navigation and private rights of access. 548, 549. Ibid. — In other instances of injuries affecting waters. 550, 551. Practice as to granting injunctions. 552-554. Porm of injunction. 555-557. Command to abate. 558-561. Difiiculty in framing or fulfilling the order, no ground for refusing relief. 562-568. Bills of peace. 069-578. Specific performance. CHAP. XIII.] EQUITABLE BBMEDIES. 693 § 506. Nuisances and injuries affecting waters are remedied in equity by the writ of injunction. The ground upon which equity takes jurisdiction is that the injury complained of is irreparable or of such a nature that there is no adequate remedy at law. It is an extraordinary remedy, and granted only where the plaintiff's right and his danger of suffering such an injury are clear. It is not, however, indispensable that the plaintiff should establish his title at law before coming into equity ;i for, if the plaintiff's right had never been drawn in question, he would be put to delay in estab- lishing it at law, and meanwhile the injury threatened might become complete, and the purpose for which equity takes jurisdiction defeated. § 507. In Bush v. Western,^ the plaintiff had been for sixty years in possession of the watercourse which was diverted, and it was held proper in such a case to bring the suit in equity in the first instance ; and in Gardner v. New- burgh,^ Chancellor Kent held that where the plaintiff showed that he had immemorially enjoyed the right to use the stream, there was no need of a trial at law. In Holsman v. Boiling Spring Co.,* it is said: "Where the complainant seeks protection in the enjoyment of a natural watercourse ^ Bush V. "Western, Free, in Ch. 191 ; Eastman v. Amoskeag Manuf.. 530; Firiehi;.Resbridger,2Vern.390; Co., 47 N. H. 71; Tuolumne "Water- KiponD.Hobart,3Myl.&K.169;Devv- Co. u. Chapman, 8 Cal. 392; Lyon v.. hirst II. Wrigley, 1 Cooper Prac. Cas. Ross, 1 Bibb (Ky.) 466. Originally 319 ; Branfort t). Morris, 6 Hare, 340 ; the rule undoubtedly was that the- Goodson V. Richardson, L. R. 9 Ch. plaintiff must, in every case, first es- Ap. 221. See St. 2526 "V^ict. c. 42, § 4. tablish his right at law. In Wellcr v. Gardner u. Newburgh, 2 Johns. Ch. Smeaton, 1 Bro.C.C. 572 (1784), Lord 162 ; Seneca "Woollen Mills u. Till- Thurlow said that in no instance, ex- man, 2 Barb. Ch. 9; Holsman v. Boil- cept that of Bush v. Steinman (1720), ing Spring Co., 1 McCarter (N.J.) 335 ; had equity ever interposed on a mere Eeid V. Gifford, Hopk. Ch. (N. Y.) 416; question of right between A. and B. Mohawk Bridge Co. o. Utica & Sche- See also "Welby v. Rutland, 2 Bro. nectady Railroad Co., 6 Paige, 554 Carlisle v. Cooper, 21 N. J. Eq. 576 Denton u. Leddell, 23 N". J. Eq. 64 P. C. (Tomlin's ed..), 39. 2 Bush V. "Western, Pree. in Ch. 530. 5 Gardner u. Newburgh, 2 Johns. Sprague v. Rhodes, 4 R. I. 301 ; At- Ch. 162. torney General v. Hunter, 1 Dev. Eq. * Holsman v. Boiling Spuing, Co;, 12; Burden v. Stein, 27 Ala. 104; 1 McCarter (N. J.) 335, 343, Corning v. Troy Iron Factory, 40 N. Y. 694 THE LAW OF WATERS. [PAJEIT II. upon his land, the right will ordinarily be regarded as clear ; and the mere fact that the defendant denies the right by his answer, or sets up title in himself by adverse user, will not entitle him to an issue before the allowance of an injunction." But where the rights of the parties are in dispute, and have never been adjudicated, equity will not undertake to try the right on a bill for injunction, but will direct an issue and require the plaintiff first to establish his title at law.i If it is not clear that the acts of a corporation in obstructing a. stream are unauthorized by its charter, that question must be determined against it by an action at law, before it will be restrained by injunction.^ But even in such case, if an act is threatened which would be an irrepar- able injury to the rights in question, if established, the court will interfere by an interlocutory injunction, and preserve the property and rights of the parties in statu quo until the question of right is determined.^ § 508. By irreparable injury, which is the equity of the hill, is meant one for which there is no adequate remedy at law.* In Wood v. Sutcliffe, which was a case for injunction ^ Agar V. Regent's Canal Co. (per ris Canal Co. v. Central Railroad Co., ■Lord Eldon), Cooper, Chan. Cas. 77; 16N. J.Eq.419,425; Troy «. Norment, Birmingham Canal Co. c. Lloyd, 18 2 Jones Eq. (N. C.) 318; Richmond Ves. 515; Mayor of Cardiff o. Car- c. Dubuque Railroad Co., 33 Iowa, 'diff Water Works, 4 De Gex & J. 482 ; United States v. Duluth, 1 Dil- . 596 ; Van Bergen v. Van Bergen, Ion, 469 ; Ingraham v Bunnell, 5 Met. • 3 Johns. Ch. 282 ; Seneca Woollen 118 ; McCallura v. Germantown Water -Mills V. Tillman, 2 Barb. Ch. 9 ; Porter Co., 54 Penn. St. 40 ; Sprague v. Rhodes, . V. Witham, 17 Maine, 292 ; Cummings 4 R. I. 301, 309 ; Crenshaw v. Slate V. Barrett, 10 Cush. 186 ; Prentiss v. River Co., 6 Rand. 245 ; Phillips v. Larnard, 11 Vt. 135 ; White v. Forbes, Stocket, 1 T. R. 200 ; Binney's Case, Walk. (Mich.) 112 ; Heiskell v. Gross, 2 Bland. Ch. 99; Bliss v. Kennedy, 3 7 Phila. 317 ; Bliss v. Kennedy, 43 111. 111. 67. See 1 High on Injunctions 67; Stolp V. Hoyt, 44 111. 219; Atr (2d ed.), § 8; Kerr on Injunctions, torney General v. Hunter, 1 Dev. Eq. (2d ed.), c. 3 ; Great Western Railway 12 ; ParkerV. Winnipiseogee Lake Co., Co.i'. Birmingham Co.,2 Phila. 597,603. 2 Black, 545. . ^Shields y. Arndt,3Green Ch.234; ^ Sheboygan v. Sheboygan Railroad Holsman v. Boiling Spring Co., 1 Mc- ,Co., 21 Wis. 667. Carter, 335 ; Scudder v. Trenton Dela- 3 Ripon V. Ilobart, 3 Myl. & K. 169, ware Falls, 1 Saxt. (N. J.) 694 ; Lam- 181, 182 ; Beaufort v. Morris, 6 Hare, born v. Covington Co., 2 Md. Ch. 340 ; Whitchurch v. Hide, 2 Atk. 391 ; 409 ; Nicodemus v. Nicodemus, 41 Md. ' BuUer v. Society, 12 N. J. Eq. 264; Mor- 529 ; Coe v. Winnipiseogee Lake Co., CHAP. XIII.J EQUITABLE KEMEDIES. 695 against corrupting water, it is stated among other conditions that, " if the injury complained of is of such a nature that damages will not be an adequate compensation, that is, such a compensation as will in effect, though not in specie, place them in the position in which they previously stood," equity will interfere.^ § 509. The court is not governed by questions of pecuniary value, but will remedy and prevent an injury which it may be reasonably supposed would materially lessen the enjoy- ment of property by its owner.^ Where the damage is inconsiderable, or accurately ascertainable, and capable of adequate compensation at law, equity will not interfere.^ § 510. A mere trespass and entry, as for the enlargement of a course for the discharge of water, is not such an injury.* The pollution of a stream causing serious and continuous, or frequently recurring obstruction of the plaintiff's use of the water, is ground for injunction.^ A diversion depriving the plaintiff of the use of a stream is such an injury, and it is 37 N. H. 254, 264 ; Parker v. "Win- annexed makes it worth more. Blorl' nipiseogee Lake Co., 2 Black, 545 ; gett v. Dwight, 38 Mich. 596. Legg V. Horn, 45 Conn. 409 ; Crown v. ^ AVood ;;. Sutclitfe, 2 Sim. N". S. 163 ; Leonard, 32 Ga. 241 ; Wright y. Moore, Attorney General v. Gee, L. B. 10 Eq. 38 Ala. 593; Laney v. Jasper, 39 111. 131 ; Lillywhite ^. Trimmer, 36 L. J. 46 ; Welton v. Martin, 7 Mo. 307 ; Ch. 525 ; Wing v. Fairhaven, 8 Cush. Hoxsie V. Hoxsie, 38 Mich. 77 ; Fair- 363 ; Shreve v. Voorhees, 2 Green Ch. haven Marble Co. v. Adams, 46 Vt. 25 ; Quaekenbush v. Van Riper, 2 496 ; Heiskell v. Gross, 7 Phila. 317 ; Green Ch. 350 ; Van Winkle o. Cur- Mason V. Cotton, 2 McCrary, 82. tis. Id. 422 ; Stevens <-. Ryerson, 2 1 Wood V. Sutcliffe, 2 Sim. N. S. Hal. Ch. 477 ; Morris Canal Co. v. 163. Central Railroad Co., 16 N. J. Eq. 2 White V. Forbes, Walker (Mich.) 419 ; Smith v. Adams, 6 Paige, 112. In New York, by statute, inter- 435 ; Heiskell v. Gross, 7 Phila. 317 ; ference by equity was formerly limited Eason v. Perkins, 2 Dev. Eq. 38; to injuries amounting to $100, and in Wilder v. Strickland, 2 Jones Eq. 386 ; ease of diversion causing recurring Nicodemus v. Nicodemus, 41 Md. 529 ; damage to cases where the annual in- Fox v. Holcomb, 32 Mich. 494 ; Stone jury equalled the interest on |100. v. Peckham, 12 R. I. 27 ; Thornton u. Smithy.-Adams.ePaige, 435. .Under Grant, 10 R. L 477. p^ oir a similar statute in Michigan, it is 4 Jerome y. Ross, 7 Johns. Ch.dlo; held that equity will take jurisdiction Nicodemus v. Nicodemus, 41 Md bA-). of suits involving land worth in itself See Crown v. Leonard, 32 Ga. 241. less than $100, if the riparian right ^ Wood v. Sutcliffe, 2 Sim. N. S. lb,i 696 THE LAW OF WATERS. [PAET II. said that a disturbance or deprivation of one's riparian right is in itself an irreparable injury.^ The erection of a race- way which would involve cutting down a river-bank, destroying trees, and exposing ground to be washed away is a clear case of waste, in which equity will interfere.^ But the overflowing of land, causing the destruction of timber, and other damages, has been held not a sufficient injury to justify interference.^ Where the diversion of a stream will cause the stoppage of the plaintiffs mill and throw a number of servants out of employment, the injury is plainly irrepa- rable.* Depriving the plaintiff of his right to a supply of water for his house from a spring, and the cutting and destruction of his pipes laid for conducting the water, are also grounds for interference.^ § 511. If a statute authorizing the taking of property, or flowage of land, or use of a stream, provides an adequate rem- edy by special proceeding to parties injured thereby, equity will not take jurisdiction.^ The mere existence of a legal ■ remedy will not bar equitable jurisdiction where the remedy in equity is more adequate, comprehensive, and effectual.^ So, where a Mill Act gave the court power to abate and remove a dam, without having a prospective effect, it was held that equity would take jurisdiction to determine the proper height of the dam, fix terms upon which it could be maintained, and perpetually enjoin the nuisance.^ An in- junction will not be granted merely as a means of compelling a defendant to make compensation ; as if having had the lease of a water-right, he holds over and refuses to pay for the use and occupation.^ But where the defendant is insolvent and unable to respond in damages, this is itself a 1 Holsman v. Boiling Spring Co., 42 ; Spangler's Appeal, 64 Penn. St, 1 McCarter (N. J.) 335. 387 ; ante, § 250. 2 Scudder o. Trenton Delaware ' Bemls v. Upham, 13 Pick. 169 ; Falls, 1 Saxt. (N. J.) 694. Boston Water Power Co. v. Boston & ^ Coe V. Winnipiseogee Lake Co., Worcester Eailroad Co., 16 Pick. 512 ; 37 N. H. 254, 264. Ballon v. Hopkinton, 4 Gray, 324. * Wright ;;. Moore, 38 Ala. 593. « Berais v. Upham, 13 Pick. 169. '' Legg V. Horn, 45 Conn. 409. ^ Warne v. Morris Canal Co., 1 Hal. 6 Bull V. Valley Falls Co., 8 R. I. Cli. 410. CHAP. XIII.J EQUITABLE REMEDIES. 697 ground upon which equity will take jurisdiction, as a recovery at law would necessarily be an inadequate remedy.^ § 512. The remedy being preventive, past injuries are not in themselves grounds for equitable interference.^ But where some degree of injury is shown, the court will consider its probable continuance ; ^ and if the injury seems likely to con- tinue, equity will not refuse to interfere because the damage is slight.* The fact that the act complained of is completed will not prevent an injunction from issuing against the con- tinuance of a trespass or nuisance.'^ An uncertain future 1 Winnipiseogee Lake Co. v. Wors- ter, 29 N. H. 433; Hart v. Mayor of Albany, 3 Paige, 212 ; Atchison v. Peterson, 20 Wall. 507, 615 ; Sword v. Allen, 25 Kansas, 67 ; Derry v. Koss, 5 Col. 295. In Heilman v. Union Canal Co., 37 Penn. St. 100, which was upon a bill to restrain a canal company from using the water of a certain creek, it is said: "The fact, if it be so, that this remedy may not be successful in realizing the fruits of a recovery at law, on account of the insolvency of the defendants, is not of itself a ground of equitable interfer- ence. The remedy is what is to be looked at, if it exist, and is ordinarily adequate ; its possible want of success is not a consideration. It is not in- tended here to say that insolvency is never a consideration moving a chan- cellor. It frequently does, but not alone. The equitable remedy must exist independently. In balancing cases, it is a consideration that gives preponderance to the remedy. Hence, the alleged insolvency of the company, and the supposed inability to collect damages that may be recovered from it, is no reason for interfering by in- junction." And this position is adopted byMr.High (Injunctions, 2d ed., § 18). It is called " an important considera- tion " in 29 N. H., p. 449. In the Penn- sylvania case, the defendant had used water belonging to the plaintiff for twenty years with his consent, and had paid him therefor. But in the leading case on the point, Smallman u. Onions, 3 Bro. Ch. 621, Lord Eldon granted an injunction to stay waste against the tenant in common of the plaintiff solely on the ground of insol- vency. The law is the same in New Jersey. "West v. Walker, 2 Green Ch. 279, note B. 291, citing MS. cases of Head v. Cornelius, and Norcross the water until it enters his well, and equity will not enjoin the opening and maintenance of a new well which diverts water therefrom.^ But the occupier of neighboring property will be restrained from collecting rubbish on his property, or using a cesspool therein in such a manner as to pollute the water coming through his property and supplying the well.^ § 543. Under the customs of .miners, adopted in the mining States and Territories, and allowing priority of right to the first appropriator of a stream,^ which doctrine has been extended by the courts to appropriations of streams flowing through public lands,* for any beneficial use, an appropriation of such a stream in whole or in part^ will be protected by injunction in the enjoyment of that portion of the stream to which he is entitled.® Such right extends to '' Hammond v. Hall, 10 Sim. 551 ; Ellis V. Duncan, 21 Barb. 230 ; Delhi V. Youmans, 50 Barb. 316 ; 45 N. Y. 362. See Acton v. Blundell, 12 M. & W. 324 ; and see ante, u. 9. 2 Womersley v. Church, 17 L. T. N. s. 190. It is held in Indiana that •equity will not restrain a municipality from establishing a cemetery which "will destroy the plaintiff's well. There •was some doubt as to the effect of the work proposed, but the court went ■upon the broad ground that it is " im- possible to establish correlative rights ' in a subterraneous stream, the situation ■ of which is not known " ; and that the 'defendant, as owner of land, owns whatever may be found below the surface, and may dig for and apply ■ such articles to his own purposes. Greencastle v. Hazelett, 23 Ind. 186. 8 Irwin V. Phillips, 5 Cal. 140; -Atchison v. Peterson, 20 Wall, 507 ; 1 -Mont. 561; Basey v. Gallagher, 20 Wall, 670; Bear River Co. v. York Mining Co., 8 Cal. 327 ; Butte Canal ■ Co. u. Vaughan, 11 Cal. 143; McDon- ald V. Bear River Co., 13 Cal. 220; Phoenix Water Co. v. Fletcher, 23 Cal. •482 ; Hill V. Smith, 27 Cal. 476 ; Smith V. O'Hara, 43 Cal. 371; Lobdell v. Simpson, 2 Nev. 274; Ophir Mining Co. V. Carpenter, 4 Nev. 534 ; Hobart V. Ford, 6 Nev. 80; Proctor v. Jen- nings, 6 Nev. 83 ; Dalton v. Bowker, 8 Nev. 201; Barnes v. Sabron, 10 Nev. 217; Columbia Mining Co. u. Holier, 1 Mon. 296 ; Woolman v. Gar- ringer, 1 Mon. 535 ; Keeuey v. Carilla, 2 New Mex. 480 ; Hungarian Hill Co. V. Moses, 58 Cal. 168 ; ante, c. 7. See Cal. Civ. Code, §§ 1410-1422. * Wixon I'. Bear River Co., 24 Cal. 367 , McDonald v. Askew, 29 Cal. 201 ; Basey V. Gallagher, 20 Wall, 670; Ellis V. Tone, 58 Cal. 289 ; ante, c. 9. 5 Butte Canal Co. v. Vaughan, 11 Cal. 143 ; Keeney v. Carilla, 2 New Mex. 480; Parley v. Spring Valley Mining Co., 58 Cal. 142. 6 Phcenix Water Co. u. Fletcher, 23 Cal. 482; Ophir Mining Co. v. Car- penter, 4 Nev. 534 ; Hobart v. Ford, 6 Nev. 80 ; Barnes v. Sabron, 10 Nev. 217 ; Atchison o. Peterson, 20 Wall. 507; Basey v. Gallagher, 20 Wall. 670 ; Columbia Mining Co. v. Holler, 1 Mon. 296; Keeney v. Carilla, 2 New Mex. 480. So where the plaintiff in excavating a tunnel in a mountain to CHAP. XIII.] EQUITABLE REMEDIES. 723 subterranean currents of water, which will be protected by injunction. § 544. The pollution of a stream or supply of water is another frequent ground for equitable interference.^ There must be a perceptible pollution, injuring the plaintiff, to justify the granting of an injunction. Where a local board maintaining waterworks on a stream sought to restrain the defendant from polluting the stream by the discharge of sewage eight miles above, on the ground of nuisance, and the evidence showed that there was such pollution at the point of discharge, but that it was wholly imper- ceptible by chemical analysis at the intake of the water- works, Jessel, M. R., dismissed the bill.^ The injury must be to the plaintiff in his rightful' use of the water. Where the plaintiff brought suit to restrain the defendant from discharging muddy water from a gravel-pit into a stream used by the plaintiff in cultivating water-cress beds, Wood, V. C, held that in the absence of a prescriptive right, the defendant had as much right to use the stream for drainage as the plaintiff for growing water-cresses, and its mining claim, on government lands, Carter, 335 ; Attorney General v. Stew- struck a subterranean flow of water, ard, 20 N.J. Eq. 415; 21 N.J. Eq. 340; * and appropriated and used it, and Merrifield v. Lombard, 13 Allen, 16 ; several years afterward the defend- Richmond Manuf. Co. v. Atlantic De ants, by another tunnel, intercepted Laine Co., 10 K. I. 106 ; Seaman v. the flow of water and appropriated it Lee, 10 Hun, 607 ; Canfield v. An- te their own use, an injunction was drews, 54 Vt. 1. See New Boston issued restraining the defendants from Coal Co. v. Pottsville Water Co., 54 such diversion. Cole Silver Mining Co. Penn. St. 164; "Woodyear «. Schaefer, I. Virginia Water Co., 1 Sawyer, 470. 57 Md. 1 ; Woodruff v. North Bloom- ^ Wood u. Sutcliffe, 2 Sim. n. s. field Gravel Mining Company, 11 Pa- 163 ; Oldaker v. Hunt, 6 De Gex, M. cific Coast L. J. 181 ; Silver Spring &G. 376; 19Beav. 485; Lingwood v. Co. v. Wanskuck Co., 13 R. L 611. Stowmarket, L. E. 1 Eq. 77; Gold- In the last case it was decided that smid V. Tunbridge Wells, L. R. 1 Ch. the change of a community from 349 ; L. R. 1 Eq. 161 ; Attorney Gen- agricultural to manufacturing does eral v. Bradford Canal, L. R. 2 Eq. not change the policy of the law, nor 71; Crossley u. Lightowler, L. R. 2 the rights of riparian owners to the Ch. 418 ; Clowes v. Staffordshire, L. natural purity of the stream. E. 8 Ch. 125 ; Pennington v. Brinsop, ^ Attorney General v. Cockermouth 5 Ch. D. 769 ; Jamieson v. Russel, Local Board, L. E. 18 Eq. 172. See 3 Pat. Ap. (Scots.) 403; ante, § 214; also Silver Spring Co. a. Wanskuck Holsman u. Boiling Spring Co., 1 Mc- Co., 13 R. I. 611. 724 THE LAW OF "^ATEES. [PAET II. refused tlie injunction.^ But -wliere perceptible pollution is shown to the damage of the plaintiff, an injunction will be granted to prevent its continuance,^ although the damage may be merely nominal.^ A corruption of water will be enjoined if causing injury to the plaintiff in any rightful use of the water, as by rendering it unfit for manufacturing purposes,* or for domestic uses,^ or for the drink of cattle,^ or for fish to live in,^ or when it impairs the health of those in the community.^ So the accumulation of corrupting deposits in a stream,^ the pollution of a canal,^" the discharge into a stream of heated water,^^ or of the offal of abattoirs,^^ or of sawdust from a mill,^^ will be prevented by injunction. And the fact that others also pollute the stream, and that the pollution caused by the defendant is an inconsiderable ^ Weeks v. Reward, 10 W. R. 557. 2 Goldsmid v. Tunbridge, L. E. 1 Ch. Ap. 349 ; Crossley v. Lightowler, L. R. 2 Ch. Ap. 478 ; Bidder v. Croy- den, 6 L. T. n. s. 778 ; Manchester v. "Worksop, 23 Beav. 198; Oldaker v. Hunt, 6 D. G., M. & G. 376 ; Attorney General v. Birmingham, 4 K. & J. 528 ; Attorney General v. Suton, 2 Jur. n. s. 180 ; Pennington v. Brinsop, L. R. 5 Ch. D. 709. 8 Crossley c. Lighto^yler, L. R. 2 Ch. Ap. 478 ; Attorney General v. Leeds, L. R. 5 Ch. Ap. 583, 589 (per James, V. C, in note) ; Clowes v. Staf- fordshire, L. R. 8 Ch. Ap. 125 ; Pen- nington V. Brinsop, L. R. 5 Ch. D. 769. See Coulson & Forbes on Waters, 669. * Wood u. Sutcliffe, 2 Sim. n. s. 163 ; Tipping v. Eckersley, 2 IC. & J. 264 ; Crossley i-. Lightowler, L. R. 2 Ch. Ap. 478 ; Clowes v. Staflordsliire, L. R. 8 Ch. Ap. 125 ; Pennington v. Brinsop, L. R. 5 Ch. D. 769 ; Merri- field V. Lombard, 13 All. 16. * Goldsmid o. Tunbridge Wells, L. R. 1 Ch. 349; L. R. 1 Eq. 161; At- torney General v. Cockermoutli Board, L. R. 18 Eq. 172 ; Holsman v. Boiling Spfing Co., 1 McCarter, 335 ; Attorney General v. Steward, 20 N. J. Eq. 415 ; Baltimore v. Warren Manuf. Co. (Md.), 27 Alb. L. J. 387. 6 Oldaker v. Hunt, 6 De Gex, M. & G. 376 ; 19 Beav. 485 ; Attorney Gen- eral o. Birmingham, 4 K. & J. 528; Attorney General v. Luton Local Board, 2 Jur. n. s. 180. ' Oldaker v. Hunt, 6 De Gex, M. & G. 376 ; 19 Beav. 485 ; Bidder v. Croy- don, 6 L. T. N. s. 778 ; Attorney Gen- eral V. Luton Local Board, 2 Jur. n. s. 180 ; Attorney General v. Birmingham, 4 K. & J. 8 ; Seaman v. Lee, 10 Hun, 607. 8 Ante, § 220. ' Attorney General v. Bradford Ca- nal, L. R. 2 Eq. 71 ; Attorney General V. Luton Local Board, 2 Jur. N. s. 180 ; Hudson River Railroad Co. u. Loeb, 7 Rob. (N. Y.) 418. 1" Attorney General v. Basingstoke, 45 L. J. Ch. 726 ; Boston Rolling Mill u. Cambridge, 117 Mass. 396. 11 Tipping V. Eckersley, 2 K. & J. 264. Por recovery at law for dis- charging heated water into a stream, see Mason v. Hill, 5 B. & Ad. 1. 12 Attorney General o. Steward, 20 N. J. Eq. 415; 21 N. J. Eq. 340; Babcock v. New Jersey Stockyard Co., 20 N. J. Eq. 296 ; Woodyear v. Schaefer, 57 Md. 1. 13 Canfield v. Andrews, 54 Vt. 1. CHAP. XIII.] EQUITABLE BBMEDIES. 725 part of tlic whole corruption, is no bar to an injunction.^ If the defendant has a right to discharge corrupting matter into the stream to a certain extent, he may be enjoined from polluting the stream beyond his right; but the plaintiff of course must show that there has been such an increase.^ The same rules apply to the corruption of navigable or tidal waters as to private streams.^ § 645. The pollution of streams by municipalities and public bodies in charge of sewage and drainage has occa- sioned frequent exercise of the preventive powers of equity. Upon principle a public body has no more right at common law than a private person. Its duty to prevent public nuisances by taking care of the sewage or drainage of a district gives it no right to create another nuisance by the pollution of a stream.* If special powers have been granted to it by statute for the performance of a given object, it is bound to act strictly within its powers.^ If it exercises such powers so as to injure the property of individuals, it is responsible for the injury as a tort, unless the act done was Btrictl}' necessary for the performance of the objects for which the powers were granted ; and in such case the remedy of the individual is under the compensation clauses of the A ct,^ or, in America, usually under the provisions for exercising the power of eminent domain.^ Any pollution of a stream by a public body, in taking care of sewage, is there- fore a nuisance unless expressly authorized, and is liable to injunction.^ 1 Pennington v. Brinsop, L. R. 5 Belknap, 2 Johns. Ch. 463. See Cowell Ch. D. 769. V. Martin, 43 Cal. 605. 2 Baxendale o. McMurray, L. R. 2 « Ibid. Ch. 790 ; Attorney General v. Leeds, ' Martin, ex parte, 13 Ark. 198. See L. R. 5 Ch. 583 ; Holt v. Rochdale, Fleming's Appeal, 65 Penn. St. 444 ; L. R. 10 Eq. 354 ; Metropolitan Board Boston Rolling Mills v. Cambridge, f. London Railway Co., 17 Ch. 246; 117 Mass. 396. Attorney General „. Acton Board, 22 » Goldsmid r. Tunbridge Wells, L. Ch. D. 221. R. 1 Ch. 349 ; L. R. 1 Eq. 161 ; At- ' Attorney General v. Kingston, 34 torney General i. Richmond, L. R. 2 L. J. Ch. 481, 486. Eq. 306 ; Attorney General o. Colney * Dillon, Mun. Corp. (3d ed.), § Hatch Asylum, L. R. 4 Ch. 146, At- 1048. . torney General <■. Leeds, L. R. 5 Ch. 5 Attorney General w. Colney Hatch 583; Holt u. Rochdale, L. R. 10 Eq. Asylum, L. R. 4 Ch. 146. Belknap v. 354 ; Attorney General v. Cockermouth 726 THE LAW OF WATERS. [PAET II. § 546. An authority over sewage is no authority to commit a nuisance.^ An owner of land upon a stream below a city is entitled to an injunction against injury by the outflow of sewage.^ So an injunction will lie to prevent the opening of additional sewers into a stream in such a manner as to render the water unfit for use.^ And if a few house-holders upon a stream have used it as a drain, a modern board cannot found a prescriptive right to corrupt the stream upon such usage.* If any nuisance of this kind be shown, though causing inconsiderable damage, equity will enjoin its continuance.^ In deciding upon the right of a proprietor to an injunction against such a nuisance the court will not consider the convenience of the public. The fact that a large population will be affected by an interrup- tion of the use of a system of sewers is immaterial where the rights of an individual are invaded. The inconvenience is one of the public's own creation, and should be borne by it rather than the individual.^ But where the nuisance is public, an individual is not entitled to an injunction unless he shows a substantial injury to himself. '^ An injunction will be granted to prevent a local board from polluting Board, L. E. 18 Eq. 172 ; Attorney > Attorney General v. Leeds, L. K. General d. Hackney Board, L. R. 20 5 Ch. 583 ; Attorney General v. Hack- Eq. 026 ; Metropolitan Board u. Lon- ney Board, L. R. 20 Eq. 626. Same don Railway Co., 17 Ch. D. 246 ; Attor- point in case at law. Cator v. Lewis- ney General v Acton Board, 22 Ch. D. ham Board, 5 B. & S. 115. 221 ; Attorney General v. Luton Local 2 Oldaker !■. Hunt, 6 De Gex, M. & Board, 2 Jur n. s. 180 ; Bidder v. Croy- G. 376 ; Attorney General o. Leeds, don Board, 6 L. T. N. s. 778 ; Attorney L. R. 5 Ch. 583. General v. Kingston, 34 L. J. Ch. 481 ; ^ Attorney General v. Birmingham, Attorney General o. Halifax, 39 L. J. 4 K. & J. 528 ; Metropolitan Road v. Ch. 129; Attorney General v. Basing- London Railroad Co., 17 Ch. I). 246; stoke, 45 L. J. Ch. 726 ; Oldaker v. Attorney General v. Acton Board, 22 Hunt, 6 De Gex, M. & G. 376 ; 19 Ch. D. 221 ; Holt u. Rochdale, L. R. Beav. 485 ; Manchester v. Worksop 10 Eq. 354. Board, 23 Beav. 198 ; Attorney Gen- * Attorney General v. Luton Board, eral u. Birmingham, 4 K. & J. 528 ; 2 Jur. n. s. 180. Attorney General v. Public Board, 1 * Goldsmid v. Tunbridge Wells, L. H. & M. 298; Belknap v. Belknap, 2 R. 1 Ch. 349; L. R. 1 Eq. 161. Johns. Ch. 463 ; Woodruff v. Fisher, 17 " Attorney General v. Birmingham. Barb. 224 ; Haskell v. New Bedford, 4 K. & J. 528. 108 Mass. 208; Boston Rolling Mills y. ' Lillywhite r. Trimmer, 15 W. R. Cambridge, 117 Mass. 396; Columbus 763; Attorney General v. Gee, L. K. u. "Woollen Mills Co., 33 Ind. 435. 10 Eq. 131. CHAP. Xin.] EQUITABLE REMEDIES. 727 surface-water flowing by an open gutter into a canal and supplying it with water, by first diverting it into a sewer and discharging sewage into the canal.^ So a city council will be restrained from discharging sewage into a private canal.2 Where a discharge of sewage into a stream has been continued for several years, but in quantities not pro- ducing perceptible injury, and is afterwards increased so as to cause serious injury, a party applying for an injunction against such increase will not be held guilty of laches.^ Where a city made a contract with the proprietor of land to enlai-ge a ditch through- his premises, so as, to provide for carrying off the drainage of the city, and performed its part of the contract in good faith, and was not shown to be guilty of any serious fault or neglect, an injunction was granted to restrain the owner from filling in the ditch and obstructing the flowage.* § 647. Remedies for injuries to navigation are treated in that part of this work devoted to public waters.* It may be remarked here, that where such a nuisance causes, or is about to cause, special injury to an individual, he is entitled to an injunction against its creation or continuance as a private nuisance, but that such special injury must be clearly shown, to warrant the interference of the court at his suit.^ So an 1 Manchester v. Worksop Board, Alexandria Canal Co., 12 Pet. 91 ; 23 Bear. 198. Mississippi Railroad Co. t: Ward, 2 ^ Boston • Rolling Mills v. Cam- Black, 485 ; Rowe v. Granite Bridge bridge, 117 Mass. 396. Co., 21 Pick. 344 ; Penniman v. New ^ Attorney General v. Luton Local York Balance Dock Co., 3 How. Pr. Board, 2 Jur. n. s. 180 ; Goldsmid v. 40 ; Hecker v. New York Balance Tunbridge Wells, L. R. 1 Ch. 349 ; L. Dock Co., 13 How. Pr. 549 ; Hudson R. 1 Eq. 161 ; Metropolitan Board v. River Railroad Co. v. Loeb, 7 Rob. London & N. . W. Ry. Co., L. R. (N. Y.) 418; Gillespie r. Forrest, 18 17 Ch. D. 246; Attorney General ». Hun, 110; Maryland Railroad Co. v. Acton Board, L. R. 22 Ch. D. 221 ; Stump, 8 Gill & J. 479 ; Prink c. Boston Rolling Mills u. Cambridge, Lawrence, 20 Conn. 117 ; Thornton t,. 117 Mass. 396. Grant, 10 B. I. 477 ; Hickok u. Hinc, * Coldwater v. Tucker, 36 Mich. 474. 23 Ohio St. 523 ; Cowell v. Martin, 43 ° Ante, §§ 121-128. Cal. 605 ; Parrish v. Stephens, 1 Ore- 1* Crowder i. Tinkler, 19 Ves. 617; gon, 73; Parker v. Taylor, 7 Oregon, Spencer u. London Railway Co., 8 435; Musser w. Hershey, 42 Iowa, 356; Sim. 193; Attorney General v. Lons- Stevens Point Boom Co. v. Reilly, 44 dale, L. R. 7 Eq,. 377; Georgetown v. Wis. 295; Cotton v. Mississippi Boom 728 THE LAW OF WATERS. [part n. interference with one's private right of access to a body of water from his own land, or by a particular wharf, will be enjoined at his private suit.^ An obstruction or injury to the navigation of a private canal will be restrained at the suit of the parties injured thereby.^ § 548. Other instances of injuries affecting waters, in which injunctions have been granted are : against the flood- ing of another's mine by permitting a communication be- tween the mines to remain open;* preventing a person from exercising his right to enter upon the lands of the defendant to repair his dam or works erected for the use of water ; * the erection of a railway bed in and upon an artificial basin, diminishing its capacity ; ^ maintaining a boom which drives Co., 19 Minn. 497. See Moms & Essex Railroad Co. v. Prudden, 20 N. J. Eq. 530. 1 Lyon V. Fishmongers' Co., 1 App. Cas. 662 ; Hartlepool Collieries Co. v. Gihh, 5 Ch. D, 713; Cowell v. Martin, 43 Cal. 605 ; Parker v. Taylor, 7 Ore- gon, 435. See Thornton v. Grant, 10 E. I. 477. As to injuries to such right by the public in the construction of public works, see Attorney General V. Conservators of the Thames, 1 H. & M. 1, 31; Macey v. Metropolitan Board, 3:3 L. J. Ch. 379; Sutton Har- bor Improvement Co. v. Hitchins, 21 L. J. Ch. 73. 2 London Railway Co. u. Grand Junction Canal Co., 1 Railway & Cas. 224. In States where streams having only capacity to float logs to market at certain seasons of the year are not considered navigable, the diversion of water from such streams will not be enjoined as an injury to navigation. Hubbard ^. Bell, 54 111. 110. The Illinois courts followed the early New York doctrine. Munson v. Hungerf ord, 6 Barb. 265. So the owner of a dam on such a stream was held entitled to an injunction against injury by the rafting of logs over it. Curtis v. Keeler, 14 Barb. 511. The New York rule was modified in Morgan u. ICing, 18 Barb. 277 ; 30 Barb. 9. The stricter rule as to right of navigation was fa- vored in the same case, 35 N. Y. 454 , and Pierrepont r. Lovelass, 4 Hun, 696. But in Pierrepont v. Lovelass, 72 N. Y. 211, the latter decision was reversed, and the rule that streams capable of floating logs at certain seasons will be protected as navigable for such pur- poses, adopted. Por other cases recog- nizing the right of navigation in such streams, see ante, § 107 ; Rowe v. Titus, 1 Allen (N.B.) 326; Essen v. McMaster, 1 Kerr (N. B.) 501; McLaren v. Cald- well, 6 Tupper's App. Rep. (Canada) 456. On a bill for an injunction by a mill-owner to protect his dam from injuries by floods, and jams of logs caused by the defendant's booms, Cooley, J., held, in dismissing the bill without prejudice, that the parties' rights mutually modified each other, and that, while the exercise of each might render the other less valuable, there was no ground for complaint, if the use was reasonable. Buchanan v. Grand River Log Co., 48 Mich. 364. ' Mexborough v. Bower, 7 Beav. 127. * McSwiney o. Haynes, 1 Ir. Eq. (1839), 322. ^ Boston Water Power Co. v. Bos- ton Railroad Co., 16 Pick. 572. For CHAP. XIII.J EQUITABLE BEMBDIES. 729 logs upon another's land;i interference with an exclusive right to supply a town with water ;2 the holding of a regatta upon a lake, and thereby injuring an exclusive right of fish- ery ; ^ the diminution of the volume of a stream by pumping out large quantities of water for mechanical purposes ; * the building of a dike along the bank of a stream in such a way as to throw the water in unnatural quantities upon the lands on the other side, and injure them ; ^ and the destruction of a dam and works, where the plaintifPs right to maintain them is clear.'' § 549. The abatement, as a nuisance, of works authorized by law, or whose character as a nuisance is not clear, will be enjoined until the character of the structure is ascertained, and if it be decided to be lawful, a perpetual injunction will issue.'^ So the abatement, as a nuisance to navigation, of a dam maintained as by right, will be restrained until the right can be determined, where great loss to the owner and inconvenience to the public would be occasioned by its destruction.^ So equity will prevent the abatement of an alleged nuisance by an unreasonable method, or one causing needless damage. So, where a municipal body attempted to fill up a canal which was a public highway, because it had become unwholesome, such action was restrained by an injunction at the instance of an owner of property abutting thereon.^ eases at law upon the same point, see Eq. 180. In this case a company Beeston v. Wheate, 5 E. & B. 986; authorized to maintain a canal and Peter v. Daniel, 5 C. B. 568 ; Frailey v. take property therefor had main- Waters, 7 Penn. St. 221. tained a dam for many years as a 1 Cotton u. Mississippi Boom Co., part of their works. They increased 19 Minn. 497. its height by flash-boards. The de- 2 Whitchurch v. Hide, 2 Atk. 391. fendant, who was injured by back- ^ Bostock V. North Staffordshire flowage caused by the increased Railway Co., 5 De Gex & Sm. 584. height, removed the flash-boards. It * Attorney General v. Great East- was held that his only remedy was by ern Railway Co., L. R. 6 Ch. 572. an action for damages, and he was * Bunvell v. Hobson, 12 Gratt. 322. enjoined from interfering with the' " Great Palls Manuf . Co. v. Worster, dam in future. 23 N. H. 462 ; Morris Canal Co. o. « Crenshaw u. Slate River Co., 6 Society, 1 Hal. Ch. 203. Rand. 245. ' Lehigh Valley Railroad Co. v. ^ Clark o. Syracuse, 13 Barb. 32 ; McParlan, 31 N. J. Eq. 706; 30 N. J. Babcock ,,. Buffalo, 1 Sheld. (N. Y. 730 THE LAW OF WATERS. [PART n. § 550. The plaintiff's equitable right to an injunction must appear on the face of the bill, or it will be held bad on demurrer. 1 The jurisdiction of the court must also be shown where the court is not of general jurisdiction, or the bill will be demurrable.^ But the pendency of an action at law by the jilaintiff is no reason why equity will not grant an injunc- tion. And the court will not withhold its hand on account of the pendency of an appeal at law from the decision estab- lishing the legal right, unless it doubts the correctness of the decision,^ but the pendency of the appeal may influence the court in determining the date at which the injunction should take effect.* Generally the court will not grant an injunc- tion seriously affecting the rights of persons not before the court.^ But we have seen that in such a case it may call the persons to be affected before it.^ And where a person under- takes the prosecution or defence of a case, as where a land- lord assumes the defence of a bill against his tenant, he is within the jurisdiction of the court, and may be included in the terms of the decree.' § 551. Where a preliminary injunction has been granted ixpon the filing of the bill, it is always open to a motion to Sup. Ct.) 317; 56 N. Y. 268. See the plaintiffs' prosecuting one of these Finley v. Hershey, 41 Iowa, 389. suits at law to final judgment, so that 1 Winnipiseogee Lake Co. v. Young, their legal right be fully established, 40 N. H. 420. and they have doubtless the right to 2 May V. Parker, 12 Pick. 34. resort to another suit at law. But 3 Attorney General v. Bradford Ca- when a party brings forth his two nal, L. R. 2 Eq. 71. But equity may suits at law before he appeals to the decline to exercise jurisdiction where equitable tribunal, we think the pre- actions at law are pending, and the sumption may be fairly entertained effect of taking jurisdiction would be that he has elected a favorite remedy, to produce, and not to prevent, multi- and must abide by it, and should not plicity of suits. In Eastman v. Amos- ask for equity while inflicting a nmlti- keag Manuf. Co., 47 N. H. 71, the plicity of suits at law upon his oppo- court said : The plaintiffs " bring nents." forth their two suits at law, and no * Attorney General v. Bradford Ca- fiual judgment is obtained in either nal, L. K. 2 Eq. 71. of them. They then bring their bill ^ Hartlepool Gas Co. y.West Hartle- in. equity, and ask this court for the pool Harbor Co., L. J. n. s. 366. writ of injunction, and among other ^ Adams v. Manning, 48 Conn. 477. things, for damages, since the last or ' Attorney General v. Bradford Ca- second suit at law. We approve of nal, L. R. 2 Eq. 71. CHAP. XIII.] EQUITABLE REMEDIES. 731 dissolve before the coming in of the answer ; ^ and sometimes provision will be made in the preliminary order for hearing such a motion.^ Where the preliminary injunction appears to have been granted in a case perfectly remediable at law, it will be dissolved.'^ But a partial removal of the nuisance before the injunction issues will not deprive the plaintiff of his right where the existence and continuance of an injury in the past is shown.* § 552. In form the injunction may be either prohibitory or mandatory. The power to issue a mandatory injunction was formerly • doubted ; and resort was had to prohibitory circumlocutions.^ Thus Lord Eldon refused to order repairs to be made to a canal, but granted an injunction restraining the defendant from impeding the use of the canal by continu- ing to keep it or its works out of repair.^ Where the injunc- tion requires a positive act on the part of the defendant, it is called a mandatory injunction, although expressed in nega- tive terms.'' But the power to issue a mandatory injunction is completely established, and has been frequently exercised in cases affecting waters.^ It has also been questioned 1 2 Dan. Ch. Prac. (5th ed.), 1675; 1 H. & M. 298, 312; Manchester v. Wing V. Fairhaven, 8 Cush. 353. Worksop Board, 23 Beav. 198, 209 2 Binney's Case, 2 Bland Ch. 99. Van Bergen v. Van Bergen, 2 Johns 3 Wing V. Fairhaven, 8 Cush. 363 ; Ch. 272 ; Buck Mountain Coal Co. v Wheeler v. State, 50 Ga. 34; Philips Lehigh Coal Co., 50 Penn. St. 91 V. Stocket, 1 Tenn. 200. Corning v. Troy Iron Factory, 40 N * Carlisle o. Cooper, 21 N. J. Eq. Y. 191 ; 39 Barb. 311 ; 34 Barb. 485 576. Foot V. Bronson, 4 Lans.'47; Shannon 5 Anon. 1 Ves. Jr. 140 ; Robinson v. Wisconsin, 18 Wis. 604 ; Carlisle v. u. Byron, 1 Bro. C. C. 588 ; Blake- Cooper, 21 N. J. Eq. 576. In Blake- more V. Glamorganshire Canal Co., 1 more v. Glamorganshire Canal, 1 Myl. MyL & K. 154; Spokes v. Banbury &K. 154,184, Lord Bougham, in speak- Board, L. R. 1 Eq. 42 ; Mexborough ing of the form of the order in Lane v. V. Bower, 7 Beav. 127. Newdigate, said : " I take leave to 5 Lane «. Newdigate, 10 Ves. 192. agree with Lord Lyndhurst in the See Murdock's Case, 2 Bland Ch. 470, opinion that if the court has this 471. jurisdiction, it would be better to ex- ' Kerr on Injunctions, 50. See ercise it directly, and at once ; and I Carlisle v. Stevenson, 3 Md. Ch. 499. will further take leave to add, that * Harrop v. Hirst, as cited in 1 Se- the having recourse to a roundabout ton on Decrees (4th ed.), 213; At- mode of obtaining the object seems to torney General v. Metropolitan Board, cast a doubt upon the jurisdiction." 732 THE LAW OF WATERS. [part II, whether a mandatory injunction may be granted prelimina- rily or upon interlocutor}'- motion,^ but it is settled that the court has power to grant such orders at any stage of the pro- ceedings, subject to the limitation that before the hearing it is to be exercised with great caution and only in case of ex- treme necessity.^ ' Audenreid c. Philadelphia Rail- road Co., 68 Penn. St. 370. 2 Westminster Brymbo Coal & Coke Co. u. Clayton, 36 L. J. Ch. 476. In the case of Cold Silver Mining Co. v. Virginia Water Co., 1 Sawyer, 470, 482, where the defendant had tapped a sub- terranean stream of water to which the plaintiff had a prior right, Sawyer, J., said : " It is shown, and this does not seem to be seriously controverted, that the water can be restored by building a water-tight wall or bulkhead across the tunnel at a point indicated. But it is urged that the injury has been com- mitted, and that this being so, the court will not, on motion for a preliminary injunction, issue a mandatory writ, af- firmatively commanding the perform- ance of an act such as to fill up a tunnel, rebuild a wall that has been demolished, and the like ; and so the authorities seem to be. But, while this seems to be an established rule, it also appears to be well established that the result sought may be accomplished by an order merely restrictive in form." After citing several cases, principally those cited above, he pro- ceeded : " Under these authorities, by whatever name judges may see fit to call the injunction, the defendants may be restrained from continuing to cut off and divert the water in question, even though it should be necessary for them to fill up or build a water-tight barrier across the tunnel to accomplish the end sought." In the same case, p. 685, on a motion to dis- solve, Field, J., expressed his opinion to the same effect. After reviewing the authorities, he said : " Other cases to the same purport might be cited, but these are sufficient, I think, to show that a court of equity has juris- diction to issue, upon an interlocutory application, an injunction which will operate to compel the defendants, in order to obey it, to do substantive acts . . Undoubtedly the general purpose of a temporary injunction is to preserve the property in contro- versy from waste or destruction or disturbance until the rights and equi- ties of the contesting parties can be fully considered and determined. Usually this can be effected by re- straining any interference with it, but, in some cases, the continuance of the Injury, the commencement of which has induced the invocation of the au- thority of a court of equity, would lead to the waste and destruction of the property. It is just here where the special jurisdiction of the court is needed — to restore the property to that condition in which it existed imme- diately preceding the commencement of the injury, so that it may be pre- served until final decree." In Long- wood Valley Railroad Co. v. Baker, 27 N. J. Eq. 166, 170, an injunction was granted to restrain mill-owners from overflowing lands condemned for a railway, and preventing the laying of a track over it. Chan- cellor Runyon said : " The Messrs. Baker object also that the injunc- tion is mandatory, and that, inas- much as the addition had been made to the dam when the bill was filed, such an injunction is contrary to the established practice of the court. The objection cannot be sustained. Tlie in- junction is against causing the water to rise any higher than it was accus- CHAP. XIII.] EQUITABLE REMEDIES. 733 § 553. Where tlie wrongful diversion of water has been completed before the filing of the bill, equity will compel the restoration of the stream to its natural channel by a manda- tory injunction.! And where the defendants, in relieving their lands from surface-water, deepened a ditch upon the highway, and thus caused an increased and unnatural flow of water through the surface-drains of adjacent owners, causing injury to their lands, and making further injuries probable, a mandatory injunction was issued directing the defendants to fill up the ditch.2 In Carlisle v. Cooper ^ the decree author- ized the maintenance of a dam at a certain height, with the addition of movable gates in ordinary stages of water, subject to the obligation in times of freshets or high water, so as to raise the said gates, that the surface of the water should not be raised above a line twelve and a quarter inches above the top of the mud-sill upon the permanent dam, and directed the abatement of the dam to such limits. The court above, in approving this decree, said : " The decree, by its reference to the .cap-piece as fixing the extreme height to which the water may be raised by the use of the gates when shut, is probably more specific in its direction than usual ; but it re- move^ all uncertainty in the adjudication of the court as to the extent of the rights of the respective parties." So an injunction will be granted restraining the defendant from preventing the plaintiff from repairing the banks of a stream, and from entering on the defendant's land for that purpose, if necessary.* tomed to rise on the day designated, injury to other rights. The court will The injury was a continuing injury not, however, interfere hy mandatory from day to day. The mill-owners injunction, unless extreme or very were not required to reduce their serious damage, at least, will ensue dam, but to refrain from raising the from withholding that relief, and water beyond a certain height. Be- each case must _ depend on its own sides, if the injunction were regarded circumstances." See, also, Durell v. as strictly mandatory, that would Pritchard (obstruction of light), L. R. not constitute a valid objection to 1 Ch. 244. it. There is no general rule against i Coming v. Troy Iron Factory, 40 granting such relief interlocutorily, N. Y. 191 ; 39 Barb. 311 ; 34 Barb. 485. where the damage has been com- ^ Foot v. Bronson, 4 Lans. 47. pleted before the filing of the bill, » 21 N. J. Eq. 576, 598. and. there is no difference between < In McSwiney v. Haynes, 1 Ir. Eq. the case of injury to easements and 322, where a stream broke through its 734 THE LAW OP WATBES. [PAET ir. § 554. The court will not consider an application for a mandatory injunction where the plaintiff has been guilty of any delay in asking its aid. It will not undo what the plaintiff might have prevented by filing his bill promptly.^ In deciding upon an application, the court will consider the inconvenience likely to be caused. Where an order was asked against a local board to close up certain sewers, it was refused on the grounds of inconvenience, and of a doubt as to the powers of the board.^ § 555. Equity has jurisdiction to decree the abatement of a nuisance as well as to prevent its erection or continuance.^ Such a decree is a mandatory injunction in nature, for equity jurisdiction is properly in personam and not in rem, and the order is primarily directed to the defendant.* bank upon the land of the defendant and began to change its channel, threatening irreparable injury to the plaintiff, such an injunction was granted before the coming in of the answer. 1 Wicks V. Hunt, Johns. 372 ; Ward V. Higgs, 12 W. R. 1074. 2 Attorney General v. Acton Board, 22 Ch. D. 221. ^ Laraborn c. Covington, 2 Md. Ch. 409 ; Earl v. De Hart, 1 Beas. Ch. 280 ; Attorney General v. New Jersey Railroad Co., 2 Green Ch. 136 ; Mann V. Wilkinson, 2 Sumner, 272, 273; Pennsylvania v. Wheeling Bridge, 13 How. 518, 557 ; Hammond i-. Fuller, 1 Paige, 197. See Van Bergen i:. Van Bergen, 2 Johns. Ch. 272; 3 Johns. Ch. 282 ; Stone v. Peckham, 12 E. I. 27, 30; Philips v. Stocket, 1 Tenn. 200; Burwell v. Hobson, 12 Gratt. 322 ; Ackerman v. Horicon Iron Co., 16 Wis. 150. See Shannon v. AVisconsin, 18 Wis. 604 ; Eastman v. St. Anthony Water Power Co., 12 Minn. 137; Ames V. Cannon Eiver Manuf. Co., 27 Minn. 245 ; Brown v. Carolina Central Railway Co., 83 N. C. 128; Raleigh Co. u. Wicker, 74 N. C. 220. A cove- nant not to maintain a dam at a par- ticular place is not against public policy, and will be enforced. in equity by a decree to abate a dam built in violation thereof. Ulrich v. Hull, 17 Wis. 424. * See cases above cited. In some jurisdictions, either by statute or by judicial legislation, the practice is established of directing the order to the officer of the court in the first instance. Ames v. Cannon River Manuf. Co., 27 Minn. 245. But the power of equity was not so exercised originally. East India Co. v. Vincent, 2 Atk. 83 (abatement of a wall). To same effect, see Campbell v. State, 16 Ala. 144 j Barclay u. Common- wealth, 25 Penn. St. 503. These are cases of indictments. The power to abate a nuisance is generally lodged by statute with the cdfnmon-law courts in their criminal jurisdiction. We have noticed {ante, § 400) that an equitable action is maintainable in New York in the Supreme Court by any person specially injured by a nuisance, in which judgment will be granted, directing the removal- or abatement of the nuisance. Knox u. CHAP. XIII.] EQUITABLE REMEDIES. 735 § 556. In exercising this power, equity will not compel the destruction of valuable property, except in a clear case of necessity. The Supreme Court of Michigan, in reversing an order for the removal of a dam, said (^per Graves, J.) : "Property is not to be destroyed until its destruction is law- fully ascertained to be necessary in order to stop the nui- sance, and then no other and no more is to be destroyed than is thus determined to be needful to effect that object." i Mayor, 55 Barl>. 404 ; s. c. 38 How. 67; Delaney o. Blizzard, 7 Hun, 7; Van Brunt v. Ahearn, 13 Hun, 388. The action in Delaney v. Blizzard is described as brought "to enjoin the defendant from maintaining a per- manent float in front of plaintiff's premises," which would be a simple injunction. In the Massachusetts statutes of 1828, c. 137, § 6, it was provided that where judgment should be rendered in an action on the case for a nuisance, "the court may, on motion of the plaintiff, in addition to the common execution for damages and costs, award and issue a, warrant to the sheriff or his deputy to abate and remove the nuisance." In Bemis V. Clark, 11 Pick. 452, this statute was held to leave it within the discretion of the court whether to issue the war- rant on such motion or not. Bemis V. Upham, 13 Pick. 169; Codman v. Evans, 7 Allen, 431. This provision is retained by Mass. Pub. Sts., 1882, c. 180, § 1. By § 3 of this chapter, the plaintiff is entitled to abatement as of right in a second suit. See Wis. Eev. Stats., 1878, u. 137, for a similar jurisdiction at law, which abrogated the remedy by abatement in equity. But by St. 1882, c. 190, the equitable jurisdiction to abate in certain eases was restored. Denner i'. Chicago Co., 15 N. W. Rep. 158. Courts at law have a similar power in Oregon. Gen. Laws, 1872, § 330, p. 179. Marsh v. TuUinger, 6 Oregon, 356. For a sim- ilar exercise of power in California, see Blood v. Light, 31 Cal. 115. 1 Shepard v. People, 40 Mich. 487 ; Smidt 0. People, 46 Mich. 437 (on an information) ; Hill v. Sayles, 12 Gush. 454 ; Stone v. Peckham, 12 R. I. 27. In this case the court was asked to order the removal of a dam which was also used as a highway, and the restoration of a former highway upon which it infringed. The court said: " From the dam as now used the pub- lic receives no detriment. On the con- trary, we have no doubt that the new road formed by the dam is decidedly superior to the old which has been displaced by it. The removal would be an injury to the public; for it would not only subject the public to the attendant inconveniences, but it would also give a worse road. The plaintiffs are entitled to relief only in so far as they are individually injured. AVe think, therefore, that we shall go far enough in this respect, if we re- quire the defendant to widen the aperture in his dam so as to permit the full flow of the river, and thus relieve the land and pass-way from inundation. We will grant the plain- tiffs relief to that extent." So, where a stopping of the wrongful use of a structure will accomplish the object, the order will be limited to that, and not direct a removal of the structure. Barclay v. Commonwealth, 25 Penn. St. 503 (a case of indictment). So a judgment that a dam abate is im- proper where the court finds that, at the time of the trial, the dam was a lawful structure. Durning t. Burk- hardt, 34 Wis. 585. 736 THE LAW OF WATERS. [PAET II. Where the injury, present and threatened, is caused by the use of flash-boards, the court may command the removal of the flash-boards already placed upon the dam, and enjoin the defendant against their future use.^ § 557. The injunction itself must be in clear and definite terms, which will impose a specific prohibition or command upon the defendant. Generally equity will not command the defendant so to use his own rights as not to injure the plaintiff. That duty is already prescribed by the law of the land. The object of equitable interference is to protect parties from specific infringements of their rights. Where an injunction was asked to restrain the defendant from using a steam engine in pumping and draining water into a river, " so as in any manner to injure the banks of said river, or to injure or interfere with the draining" of other lands. Lord Brougham said: "What purpose then could such an injunction serve as the second alternative of the motion de- scribes ? It would give no information ; it would prescribe no rule or limits to the defendants ; it could not in any man- ner of way be a guide to them if it did not operate as a snare. It would in reality amount to nothing more than a warning, that if they did anything which they ought not to do, they would be punished by the court ; but it would leave to them- selves to discover what was forbidden and what allowed." ^ 1 Knapp V. Douglas Axe Co., 13 measure of right, or as to the precise Allen, 1. language in which to describe it intel- 2 Eipon V. Hobart, 3 Myl. & K. 169, ligibly in an injunction ; id certum est 173. See, also, Bradfield I'. Dewell, 48 quod certum reddi potest; and if it Mich. 9 ; Coalter v. Hunter, 4 Rand, were necessary, this case might now 58, 67 ; Baltimore v. Appold, 42 Md. be sent to a referee to ascertain and 442, 458 ; Olmstead v. Loomis, 6 Barb, report, after a scientific examination, 152 ; 9 N. Y. 423. In this case, at the the precise quantity of water requisite Supreme Court, the injunction was for the use of a forge, such as Wales denied because of the indefiniteness of (the plaintiff) had, and two blaclc- the injury to be prohibited. But it smith's bellows. But I think in this was overruled on appeal. Parker, J., case such a reference is unnecessary." said : " If it is established that a long- For cases where a general order will enjoyed right of the plaintiff's has be issued, with leave to the plaintiff to been improperly interfered with by apply for further order, see remarks the defendants, it is no objection to of Kindersley, V. C, in Hartlepool Gas entertaining jurisdiction of the case Co. u. West Hartlepool Harbor Co., 12 that there is an uncertainty as to the L. T. N. S. 3G6, cited ante, § 530, note 2. CHAP. Xlir.] EQUITABLE EEMEDIES. 737 § 568. The court will not refuse to grant an injunction on account of the difficulty in so framing it as to protect the respective rights of the parties, unless the difficulty is caused by uncertainty as to the rights themselves.^ In Patten v. Marden,2 a case in which the court was called on to adjust the rights of a grantor and grantee under a deed conveying a portion of a water-power, Cole, J., said: "But however difficult it might be to frame an injunction to meet the emer- gency of the case, still if the complaint set forth a state of facts calling for the interposition of a court of equity, we are clearly of opinion that an injunction should be granted to protect the rights of the appellant from violation and in- vasion." In cases where the injury is continued, but not great at any time, the writ or order should contain the words " to the injury of the plaintiff," to prevent the authority of the court being invoked for trivial reasons.^ § 559. Where a plaintiff has proved his right to an injunc- tion against a nuisance or other injury, it is no part of the duty of the court to inquire in what way the defendant can best remove it. The plaintiff is entitled to an injunction at once unless the removal of the injury is physically impossi- ble ; and it is the duty of the defendant to find his own way out of the difficulty, whatever inconvenience or expense it may cause him.* The possibility that another nuisance will' result from obeying the injunction is no ground for not obey- ing it.^ Where compliance with the decree will involve diffi- culty and expense, the court will usually suspend its opera- tion for a time so as to save the defendant from needless loss.® But the plaintiffs' rights will never be abridged for- this purpose. 1 Olmstead v. Loomis, 9 N. Y. 423, for the plaintiff's protection, because 434 ; Patten v. Harden, 14 Wis. 473. he would be entitled to an action ^ 14 Wis. 473. without damage, and to an injunction ' Lingwood v. Stowmarket, L. R. 1 to save repeated actions. Eq.77; Elwell «. Crowther, 31 Beav. * Attorney Generahi. Colney Hatch 163, 171. In Baltimore v. Appold, 42 Asylum, L. R. 4 Cli. 146. Md. 442, the court held that an injunc- * Attorney General v. Bradford tion merely forbidding user to the Canal, L. R. 2 Eq. 71. plaintiff's damage would be insufficient ' Attorney Gcnerai v.. Birmingham) 738 THE LAW OP WATEES. [PAET II. § 560. Where an injunction to restrain a local board of health from polluting a stream with sewage was suspended for a time, and on the expiration of the time- the board failed to comply with the order, alleging that they had not yet found a means of deodorizing the sewage, they were held guilty of wilful contempt, and an order of sequestration was issued. 1 "Where time is given for compliance, the court may require an undertaking from the defendants as to their future conduct, and retain the bill, giving the plaintiff leave to apply for a further order at any time.^ Such an undertaking is in effect equivalent to an injunction, and will be enforced by the court.^ But where the plaintiff does not make out his right to an injunction on the existing state of facts, equity will not retain the bill, and give him leave to apply, in the absence of special reasons for such a course.* § 561. An account of damages resulting from the injury in the past may be ordered, and payment of the amount found due decreed as incidental to the principal object of ithe bill ; ^ but damages will seldom be granted in lieu of an •4 K. & J. 528, 548; Attorney General in contempt for disobedience. Bon- V. Halifax, 39 L. J. Ch. 129 ; Attorney shaw v. Prince, 5 Wyatt, Webb, & A'- General v. Bradford Canal, L. R. 2 Beckett (Vict.), Eq. 140, cited in 31 Eq. 71 ; Attorney General v. Colney Moak's Eng. Rep. S74, notes to Box Hatch Asylum, L. R. 4 Ch. 161 ; Pen- v. Judd. nington v. Brinsop Hall Coal Co., 5 Ch. 2 Elwell v. Crowther, 31 Beav. 163. D. 769; Manchester!). Worksop Board, s London & Birmingham Railway 23 Beav. 198; Boston Rolling Mills w. Co. o. Grand Junction Canal Co., 1 Cambridge, 117 Mass. 396; 1 Seton Rail. Cas. 224. Where a coal mining on Decrees (4th ed.), 213. In At- company fobled a natural stream of torney General v. Halifax, 39 L. J. water by pumping water from its Ch. 129, a municipality was allowed mines into the stream, to the damage' One year in which to comply with an of a riparian proprietor, it was held order for the alteration of sewers. (in an action at law) that the act 1 Spokes V. Banbury Board, L. R. could not be justified either by the 1 Eq. 42. See Coulson & Porbes on importance of the industry to the Waters, 668. The fact that a com- Commonwealth, or by general custom, plete and literal compliancte with an Pennsylvania Coal Co. u. Sanderson, injunction would altogether stop the 94 Penn. St. 302. defendants from working, is not an * Pratt v. Lamson, 6 Allen, 457 ; excuse from such non-compliance ; a Mann v. Wilkinson, 2 Sumner, 273. grave inconvenience of such a kind is ^ Kerr on Injunctions, 47 ; Bliss v. proper ground for moving the court Rice, 17 Pick. 230; Canfield u. Au- to modify such injunction, and such drtews, 54 Vt. 1. motion may be made by » defendant CHAP. XIII.] EQUITABLE REMEDIES. 739 injunction.^ On the other hand, if the injunction has been wrongfully sued out, the court may decree the payment of damages to the defendant for the interruption of the enjoy- ment of his rights.^ § 562. The prevention of multiplicity of suits is a ground of jurisdiction which courts of equity exercise in several ways.* The taking an inquest of past damages, upon a bill to prevent a tort, and the determining and adjusting of com- mon rights in the same subject-matter, as, for example, in the same water-power, have been sustained by the courts upon this ground. But the principal means by which equity jurisdiction is invoked to prevent a multiplicity of suits is a bill of peace. § 563. A bill of peace proper may be filed either by a plaintiff at law or defendant at law. If by a plaintiff at law, it invokes the concurrent jurisdiction of the court upon the ground that there are several parties in the same interest upon one side or the other, whose rights may be made the subject of separate suits at law, but which can be determined by one suit. The only equity of the bill is to make one suit do the work of several. It may be filed by one plaintiff against several defendants who claim in the same right, or by several plaintiffs who each have a claim based in all re- spects on the same facts, against one defendant. In either case, it wpuld seem that the question whether the bill will lie, would, on principle, be determined by considering whether any one of the several parties, alleged to claim in the same interest, could be made a representative of the whole number, and whether an adjudication as to him as such representative would be conclusive as to the rights of all. If so, equity will take jurisdiction, but if not, it would seem that equity ought not to take jurisdiction, as, instead of preventing a multipli- 1 Pennington v. Brinsop Hall Coal ^ The injunction against repeated Co., 5 Ch. D. 769. trespasses, or vexatious persistence in '^ If the plaintiff acted in good faith, a tort, is not an instance of this kind, that will be considered by the court. Hart u. Albany, 9 Wend. 571, 501 ; Muller V. Laud, 31 Texas, 265. Jerome v. Ross, 7 Johns. Ch. 315, 336. 740 THE LAW OP "WATEES. [PAET n. city of suits, it would only aggravate the evil by confusing several separate suits in one. A different rule, however, was established by Lord Hardwicke in the case of Mayor of York V. Pilkington.i The decision in that case was that one who had had possession and enjoyment of a fishery for a long time could maintain a bill of peace against several adverse claim- ants, although they claimed by distinct and separate rights, and the rule in tliis case, that a plaintiff who claims by one general right may have a bill of peace against several defend- ants who dispute it by distinct and separate rights, has been generally followed, both in England and in America.^ The laxity in this respect has been somewhat restricted, and the principle upon which this branch of equitable jurisdiction is founded has been accurately defined, in Lehigh Valley Railroad Co. v. McFarlan.^ There the case arose from inju- ries by a dam, by means of which the Morris Canal crosses the Rockaway River at Dover. Mill-owners above the dam sued the company leasing the dam for the obstruction, throw- ing the water back upon their mills ; and mill-owners below brought suits against the company for the diversion of water by the same dam. The company asserted a general right under its charter to maintain the dam against all claimants of adverse rights, and filed a bill of peace for the determina- tion of the rights of the parties in one suit. It was held that there did not appear to be such a unity either in the grounds on which the several actions of the defendants rested, or in the defences proposed to be made thereto, as would make a bill of peace and an issue thereunder the appropriate method of settling the questions involved. Depue, J., said: "Mc- Farlan claims that he was injured by backwater arising from the increase in the height of the water in the pondage of the dam. The Halseys and those who represent them claim that their injuries were caused by the diversion of the waters of the river for use on the lower level of the canal. The Hal- seys suffered no injury from the increase in the height of the water above the dam, and McFarlan's injury is in no wise at- 1 1 Atk. 282. 8 31 N. J. Eq. 730 ; 30 N. J. Eq. 2 1 Dan. Ch. Prac. (5th Am. ed.), 135. 341. CHAP. Xni.J EQUITABLE REMEDIES. 741 tributable to the abstraction of water from the river for use upon the lower level of the company's canal, and which may, to some extent, have, been caused by the mode in which the lock and gates at the other extremity of the level were man- aged. The causes from which the injuries to the parties re- spectively resulted, instead of being coincident, are divergent." " The trial of an issue in which McFarlan and the Halseys were the parties on one side, involving the causes of their injuries respectively, would necessarily lead to the introduc- tion of evidence and the investigation of issues pertinent to the complaint of the one party, and wholly irrelevant to that of the other, and in some respects, their interests would necessarily clash. On the trial of such an issue, it would be to the interest of McFarlan to show the great volume of water discharged over the dam, as bearing on the height to which the water was held above the top of the dam, and the interests of the Halseys would be promoted by showing pre- cisely the reverse." The several defences were examined and contrasted in the same way. The learned judge also further said: "It is not indispensable that the defendants should have a co-extensive common interest in the right in dispute, or that each should have acquired his interest in the same manner, or at the same time, but there must be a general right in the complainant, in which the defendants have a common interest, which may be established against all who controvert it, by a single issue." § 564. As the jurisdiction in this class of cases rests upon the number of parties, it is not necessary for the plaintiff to have first established his right at law.^ Where the plaintiffs cause of complaint is of equitable jurisdiction originally, but he has the same cause of complaint against many defendants, who stand in the same position, he may file a single bill against them all, and the same reasons which sustain a bill of peace mil save the bill from the charge of multifariousness.^ In ^ Page, 754. ' On principle, if several plaintiffs ^ Lehigh Valley Railroad Co. v. have the same equity against a single McFarlan, SI N. J. Eq. 730. defendant, they may, if they choose, 742 THE LAW OF WATERS. [PAKT II. strictness, such a bill should join as defendants only persons whose rights can be determined by a single issue ; but the departure from principle originating with the case of York V. Pilkington ^ prevails here also, and it is settled that where the plaintifP asserts a general equitable right against several persons who infringe it, he may maintain a single bill against them all. § 565. The Supreme Court of California, in the case of Keyes v. Little York Gold Washing Co.,^ attempted to con- fine bills of this class to cases in which they can be sustained on principle. The plaintiff in that case owned bottom lands along the Bear River. The defendants were miners severally and independently, engaged in hydraulic mining at points higher up on the Bear River and its tributaries ; they dis- charged their waste earth and debris into the stream, by which they were carried down and deposited upon the plain- tiff's lands, covering them, and destroying their value. The plaintiff sought an injunction to restrain the several defend- ants from depositing the debris of their mines where they would be swept into the river. The defendants demurred to the bill, and the demurrer Avas sustained. The court said : " If a nuisance was created by the exposure of the dumps to the action of the waters of Bear River and its tributaries, a nuisance was committed by each of the defendants, when he, disconnected from the others, made or threatened such de- posit ; or if it be said that the matter of the reasonable use of the stream can enter into the inquiry, there could be no nui- sance. by auy of the defendants who had made only a reason- able use. In either view of the case there is a misjoinder of join in one bill on the same ground, o. Schaefer, 57 Md. 1, where the bill If they do not choose to join, and the was to restrain the corruption of a defendant wishes to be relieved from stream by the deposit of offal from the burden of defending several suits a slaughter-house therein. Other sim- at once, he may, on motion, obtain a ilar establishments contributed to the stay of proceedings in all but one, injury. There was no joinder in the until it is determined. See Leliigh case. The court said : " Each and Valley Railroad Co. v. McFarlan, 31 every one is liable to a separate ac- N. J. Eq. 730, 754. tion, and to be restrained." See 1 1 Atk. 282. Baltimore v. Warren Manuf. Co., 27 2 53 Cal. 724. Compare Woodyear Alb. L. J. 387. CHAP. XIII.] EQUITABLE KEMEDIES. 743 parties defendant. The bare statement would seem to prove the proposition, since the very essence of the objection of misjoinder of a defendant with others is that he is not con- nected with, or affected by," " one or more of several separate and distinct causes of action, if several are alleged. If any one of these defendants was liable to be enjoined, he could have been enjoined in a separate suit, the subject-matter of such suit being the alleged threatened wrong. If any one of the defendants is not liable to be enjoined in a separate suit, he cannot be made liable in an action like the present, for there is no principle of equity which w^ould make a man responsible for a wrong which he has neither done nor threatened, merely by joining him with other defendants who may independently have threatened a similar wrong." ^ But in the recent case of Hillman v. Newington,^ where the plaintiff claimed a right to a certain portion of a stream by prior appropriation, and several defendants, acting separately and independently, diverted the stream so as in the aggregate to diminish the stream available to the plaintiff to a quantity less than that to which he was entitled, it was held that he might join them all in a bill to restrain such diversion, and to recover damages for the injury. Keyes v. Little York Gold Washing Co. was cited on the argument, but is not alluded to in the reported opinion. The court speak of the case as sui generis, saying : " Each of them (the defendants) diverts some of the water. And the aggregate reduces the volume below the amount to which the plaintiff is entitled, although the amount diverted by any one would not. It is quite evident, there- fore, that, without unity or concert of action, no wrong could be committed ; and we think that in such a case, all who act ■ must be held to act jointly." The fallacy here is apparent. Some of the defendants may have been entitled, by a subse- quent appropriation, to the use of a certain portion of the stream after the plaintiff had taken the water to which he was entitled. A still later appropriator, by diverting a por- 1 The court attempted to distin- title. The cases appear, however, to guish the case of York v. Pilkington he irreconcilahle. as one where the action was to quiet ^ 57 Cal. 56. 744 THE LAW OF WATERS. [PAKT II. tion of the stream, diverts water from the plaintiff. It is only by acts of all those who take subsequently to the plain- tiff that his supply is diminished. And yet the act of one is rightful, and that of the other wrongful. It is impossible to try the rights of these defendants in a single issue. § 566. The Supreme Court of Nevada recently passed upon the question in a similar case. Several proprietors of lands, acting independently, had by user the right of draining a cer- tain amount of waste water which had been used for irriga- tion over the plaintiffs land ; and on one occasion the result of their acts was that an inordinate quantity of water was discharged upon the plaintiff's land. The court held that an injunction would be granted to restrain any and all of the defendants from discharging an inordinate quantity of water upon the jDlaintiff's land in future, but that the parties had not acted jointly, and could not be held jointly liable for damages. The judgment below for damages was therefore reversed. In the case of Woodruff v. North Bloomfield Gravel Mining Co.,^ in the Circuit Court of the United States, the facts were precisely similar to those in Keyes V. Little York Gold Washing Co. Sawyer, J., here adopted the general rule, and held that the bill could be filed against all the defendants who contributed to produce the injury by depositing debris in the stream above. He denied the doctrine of Keyes v. Little York Gold Washing Co. § 567. The same principle which enables a plaintiff at law to go into equity in these cases may sometimes apply to a bill by a defendant at law. If a defendant has a defence which cannot be established at law, but which is good in equity, this is in itself ground for going into equity.^ If the same defence applies to several suits bj^ persons having distinct claims on the same state of facts, he may file one bill against them all ; and while it is not primarily a bill of peace, the equity of a bill of peace will apply to it, and save it from the 1 11 Pacific Coast L. J. 181. 2 Lehigh Valley Railroad Co. u. McFarlan, 31 N. J. Eq. 730. CHAP. XIII.] EQTJJTABLE REMEDIES. 745 charge of multifariousness or misjoinder. So, where, by the bursting of a reservoir belonging to the Sheffield Waterworks Company, over seven thousand people suffered damage, and had claims against the company, and an Act was passed to regulate proceedings by these claimants, and certificates were issued to them by public commissioners upon which they could re- cover judgment at law as of course, and a question arose as to the validity of certain certificates so issued which affected fifteen hundred certificates, and since the certificates enabled their holders to take judgment as of course, this defence was not cognizable at law, the company filed a bill praying an injunction against the suits at law, and for cancellation of the certificates. Upon demurrer. Vice Chancellor Kindersley overruled the demurrer, sustained the bill as within the juris- diction of the court, and reserved the question of cancella- tion, and upon appeal, the decision was affirmed by Lord Chancellor Chelmsford upon both points.^ § 568. Where a bill of peace is filed by a defendant at law the case is different. His equity is that he is threatened with- needless and vexatious litigation the rights of which have already been determined at law. He prays for an in- junction restraining such suits. The bill is therefore ad- dressed to the exclusive jurisdiction of the court. The 1 Sheffield Waterworks v. Yeomans, The company filed a bill denying that L. R. 2 Ch. 8. A court of equity will he was entitled to compensation, and refuse to interfere for this purpose, praying that the suit might be stayed where, instead of preventing suits, until the defendant had established the effect would be to increase liti- his right at law. It was urged that gation and complicate the rights of if the present claim were successful, the parties. This was decided in the the company would be open to a vast interesting case of Sutton Harbor Co. number of claims for alleged injuries, V. Hitchins, 21 L. J. Ch. 73. The com- each of which would require a sepa- pany was authorized to improve Sutr rate adjudication, and which the court ton Harbor, making compensation un- was asked, in its discretion, to prevent. der the Lands Clauses Consolidation Lord Langdale, M. R., granted the in- Act. The company temporarily ob- junction (20 L. J. Ch. 489), but, on structed the harbor in the course of appeal, the decision was reversed by constructing its works. The defend- the Lords Justices, on the ground that ant, whose business was interrupted, litigation would be increased by inter- claimed compensation, and proceeded fering, instead of leaving the parties to appoint an arbitrator under the Act. to their remedies at law. 746 THE LAW OF WATEES. [PAKT n. number of parties concerned is immaterial. The bill may be maintained by a single defendant at law against a single plaintiff. But the defendant at law must have successfully defended at least one suit before he can maintain such a bill.^ Thus in Eldridge v. Hill,^ A. and B. owned adjoining lots. A. altered the course of the stream soraewhat by means of a ditch and used it as altered for several years. B., wishing to ascertain his rights, obstructed the ditch and returned the water to its former channel. A. brought suit in the Supreme Court for the obstruction, and while the cause was at issue and awaiting trial, brought other suits before a justice of the peace for the continuance of the obstruction. B. filed a bill statiag these facts. He alleged " that there had been com- menced, in all, fifteen or twenty suits, one of which was brought to trial on its merits, and a verdict given agamst the present plaintiff, who has eued out a certiorari and had the same allowed for removing that judgment into the Su- preme Court ; that the defendant continues to commence suits weekly, and threatens to do so indefinitely." T^e bill prayed an injunction to restrain the defendant from further prosecuting the suits pending before the justice, and from bringing any more until the principal suit should be deter- mined. Chancellor Kent, following the English cases, held that the bill could not be allowed until the plaintiff had es- tablished his defence at law.^ The appropriate relief against successive suits by the same plaintiff for damages arising froiti an injury which is continuous, is by application for the consolidation of actions, or for a stay of proceedings, and not by bill in chancery, unless the right in controversy has once been determined adversely to the plaintiff.* 1 Tenliam u. Herbert, 2 Atk. 483 the defendant the right to continue (case of fishery). his suit to determine other questions, ^ 2 Johns. Cli. 281. but enjoined the prosecution of fur- 3 In an action for the reformation ther suits inconsistent with the decree, and specific performance of a contract Winnipiseogee Lalie Co. c. Perley, 40 regulating the right to overflow lands, N. H. 83. It will be seen that here the Supreme Court of New Hampshire the plaintiff could not first establish grantedatemporaryinjunotionagainst his right at law, since it was of ex- the prosecution of a suit at law for clusirely equitable cognizance, such flowage, until the right of the « Lehigh Valley Eaiiroad Co. v. plaintiff could be ascertained. And, McParlan, 31 N. J. Eq. 700, 754. upon granting the decree, they gave CHAP. XIII.] EQUITABLE REMEDIES. 747 § 569. Courts of equity have at times been called upon to decree specific performance of contracts relating to water, upon the ground that the legal remedy for the breach, by compensation in damages, is inadequate. It is therefore nec- essary for the plaintiff to show that damages will not be an adequate compensation for the injury caused. Repeated and vexatious breaches of a continuing contract, making repeated suits at law necessary, are ground for specific per- formance, the legal remedy being proved clearly inadequate ; but in such case, the plaintiff must have first exhausted his legal remedy by at least one recovery at law. This was ruled on a bill for performance of a contract to furnish facilities for navigation of the defendant's canal for all boats used by the plaintiff.! Where the contract is to supply water to a mill, the necessity of receiving such supplj^ must be shown, to support the bill ; but if it be shown, specific performance will be decreed.2 Specific performance of a covenant for quiet enjoyment has been refused where the alleged breach consisted merely in slightly increasing the height of water in a brook flowing through the covenantor's land, and past the premises conveyed, but causing no perceptible damage.^ § 570. It is also necessary that the contract be in clear and definite terms, excluding all uncertainty as to the duties of the parties. Where a contract was alleged for the dis- charge of water from a canal into the Passaic River above the falls, which contract, it was claimed, entitled the claim- ants to a constant flow of three square feet of water into the stream, and an injunction was asked to enforce the agree- ment. Chancellor Halsted refused to grant the relief, saying : " I am not so well satisfied that this agreement calls for a constant flow of any quantity of water as to be willing to grant an injunction on the Society's bill " ; "and a doubt as to the correctness of the Society's construction of the agree- ment in this respect would be sufficient ground for denying the injunction asked by them for the purpose of compelling 1 Pennsylvania Coal Co. v. Dela- ^ Randall v. Latham, 36 Conn. 48. ware Canal Co., 31 K Y. 91. ' Ingram v. Morecraf t, 33 Beav. 49. 748 THE LAW OP WATERS. [PART H. a constant flow." ^ The court cannot place upon the con- tract a meaning not originally intended, for the purpose of doing justice between the parties. Where a contract by co- owners of a canal, for its maintenance and repair, authorized any one or more of them to make such repairs as he or they should deem necessary, and bound the others to contribute to the expense of such repairs, and several of the co-owners filed a bill against the principal proprietor, alleging that ex- tensive repairs were necessary, for which they could not advance the necessary means, and praying that the defend- ant be ordered to perform his part of the work, the court declined to make such a decree. The contract only bound the defendant to contribute, and he did not need to under- take repairs in the first instance unless he chose. The court could not add to the contract a further obligation.^ But courts of equity may exercise their power to reform a con- tract in order to make it express the intention of the parties, upon a bill for reformation and specific performance, and may enforce the contract as reformed.^ A contract contain- ing an option becomes certain as soon as the option is exercised, and will be enforced. So a grant of a right per- petually to laj' off new boat-landings on a river-bank, as the bank should cave and give way before the stream, with a stipulation that when the landing should give way, the cove- nantor should permit the covenantee to fix another landing at any point on the front of the plantation where the pubhc interest might require, was held sufficiently definite to be specifically enforced.* This case illustrates another element 1 Morris Canal Co. v. Society, 1 water, it was shown that the parties Halst. Ch. 20.3. had fixed upon that amount of power 2 Cobb u. Cromwell, Phil. Eq. (N. under an erroneous impression as to C.) 18. the amount of water needed to con- 3 Winnipiseogee Lake Co. v. Perley, stitute a horse-power at the site of the 46 N. H. 83. For another case of re- mill, the court held that the lessee formation of a conveyance of water- was entitled to power equal to six- power, see Bunnell v. Read, 21 Conn, horse-power in fact, and declined to 686. But where a lease of a mill in- enjoin him from the use of water to eluded water-power equal to six horse- that amount. McKelway v. Cook, 3 power, and upon a bill by the lessor Green Ch. 102, 115 and note. for specific performance and injunc- * Carson v. Perry, 57 Miss. 97. tion against the wrongful use of tlie CHAP. Xni.J EQUITABLE EEMEDIES. 749 essential to the obtaining of this relief. The contract must be free from taint of fraud or unconscionable dealing. But the grant in this case, for a valuable consideration, of the exclusive right perpetually to lay off such landings upon the river front of a large plantation, near a growing town, was held not unfair, and was enforced.^ § 571. Contracts which are against public policy wiU not be enforced. But it is held that a covenant not to maintain a dam at a particular place is not opposed to the policy of the law as indicated by the Acts favoring mills, and it will be enforced.^ So if great inconveniences to the public will be caused in performing the contract, this may influence the court against enforcing it;^ but a defendant cannot urge, nor win the court consider, an inconvenience to the public caused by the defendant himself, such as the interruption of his business as a carrier.* § 572. Where a covenant is continiiing and is so framed that a breach of it can be ascertained only by a trial at law in each instance, it will not be enforced in equity. This was decided by Lord Eldon upon a covenant by the grantee of land containing a well, not to dispose of water from it to the injury of the proprietors of certain waterworks intended for public supply, but not deriving water from the well.^ § 573. A contract must be mutual, that is, such that at the time it was entered into, it might have been enforced by either party against the other, in order to be enforceable in equity.® If a contract lacks such mutuality at the 1 Carson v. Perry, 57 Miss. 97. formance, 85, 41, 761. The case is 2 Ulrich V. Hull, 17 Wis. 424. discredited in 1 Story, Eq. Jur., § 736, 3 Chicago & Alton Railroad Co. «. note. It would seem that the ground Schoeneman, 90 111. 258. upon which cases of this class are to * Raphael v. Thames Valley Rail- be sustained, if at all, is the uncer- way Co., L. R. 2 Ch. 147, reversing tainty of the terms of the contracts s. c. L. R. 2 Eq. 37. in not clearly indicating what will he 5 Collins ,}. Plumb,' 16 Ves. 454. a breach. The ground of the decision is the in- ^ j^y on Specific Performance, convenience involved in ascertaining § 286. a breach. Cf. Fry on Specific Per- 750 THE LAW OF WATERS. [PART 11. beginning, but the party against whom it could not be en- forced performs in full on his part, he may then have it enforced against the other party .^ § 574. If the performance of a contract has become impos- sible or useless, specific performance will not be granted, be- cause the decree would be a fruitless exercise of power. Where A. contracted to sell a wharf on the banks of the Thames, with a jetty, and the jetty proved to be liable to be removed by the corporation of London at any time, it was held that the jetty was essential to the beneficial occupation of the premises contracted to be sold, and that a specific per- formance could not be decreed.^ And where a railway com- pany had covenanted to erect a drawbridge in their track, so as to admit vessels from a river through a contemplated canal, and owing to an agreement made by the owners of other lands intervening between the river and the track, the canal could not be completed to the river, and would therefore be useless, a decree against the company for specific perform- ance was refused.^ So where the suit was upon a contract to permit the plaintiff to maintain a ditch across the defend- ant's land, and the plaintiff sold and assigned his rights pend- ing the suit, and the assignee had acquired by a new contract with the defendant all the rights which the plaintiff was seeking in the cause, specific performance was refused as nugatory.* Courts of equity will not enforce covenants in a deed for the non-performance of which the covenantee may declare a forfeiture of the estate conveyed. The grantor has fixed his own remedy, and may forfeit the estate at his pleas- ure. This was determined upon a bill to enforce a proviso 1 Columbia Water Power Co. v. 4 Wis. 54. And quaere if this rule Columbia, 5 Rich. (S. C.) 225. should not have been applied in the ^ Peers p. Lambert, 7 Beav. 546. principal case, and performance en- But it is well settled that where full forced. performance is impossible, the plain- ^ Chicago & Alton Railroad Co. tiff is entitled to performance, so far i: Schoeneman, 90 111. 258. In this as possible, with a rebate of price, case the impossibility of completing Mortlock V. Buller {per Lord Eldon), the canal was caused by the com- 10 Ves. Jr. 292, 315 ; Waters v. Travis, pany itself. 9 Johns. 450, 465 ; McKay v. Carring- « Adams v. Patrick, 30 Vt. 510. ton, 1 McLean, 50, 54 ; Bull v. Bell, CHAP. XIII.J EQUITABLE EEMEDIES. 751 or condition in a deed for the maintenance of a raceway and bridge for the grantor's benefit.^ Specific performance will generally not be granted where the decree would affect par- ties not before the court.^ § 575. Where a contract involves the performance of ex- tensive works, equity will not assume the superintendence of such works, and for this reason, it is said, may refuse to decree specific performance ; but it will grant an injunction against allowing such works to remain unperformed.^ Con- tracts regulating the right to overflow land will be enforced in equity.^ "Where the plaintiff, who owned a tract of land, agreed to permit a neighbor to overflow it in consideration ^ of the neighbor's agreement to purchase the lands, and mean- while to allow the plaintiff to use certain other lands in ex- change, which agreement the neighbor afterwards refused to perform, the court refused to enjoin the flowage, but decreed alternatively that the defendant either perform the agree- ment or deliver it up to be cancelled, leaving the plaintiff to his remedy at law for future flowage.^ § 576. Covenants running with the land may be speci- fically enforced against the assignee of the property charged. So a lease of water-power to be taken at a specified place on the land of the lessor conveys an interest in land ; its cove- nants run with the land, and will be enforced against the lessor's assignee or grantee with notice. This rule has been applied to covenants to furnish a certain amount of water. ^ Woodruff V. Water Power, Co., ing specific performance. The evi- 2 Stock. 489. dence as to the transfer by A. was " Glass V. Clark, 53 Ga. 380. In conflicting, and the court declined to this case the original bill was against make a decree affecting his interests co-tenants A. and B. for an original in- while he was not a party, junction against maintaining a dam. ' Cooke v. Chilcott, 3 Ch. D. 694. The injunction was refused, but the * Sterens v. Eyerson, 2 Halst. Ch. bill retained. The plaintiffs filed a 477 ; Winnipiseogee Lake Co. v Per- second bill against B., alleging that A. ley, 46 N. H. 83 ; Salmon Falls Manuf . had sold his interest to B., and thatB. Co. v Portsmouth Co., 46 N. H. 249. had agreed that a decree might be ^ Stevens v. Eyerson, 2 Halst. Ch. granted in the former suit, and pray- 477. 752 THE LAW OF WATERS. [PAET II. and to raise a dam to a given height for that purpose.^ Similarly, where a stream of water passing through the lands iNoonan v. Orton, 4 Wis. 335; 21 Wis. 283 ; 27 Wis. 300 ; 31 Wis. 265. This case deserves further no- tice as involring several questions of equitable practice. The original bill against the lessor's assignees prayed a decree requiring the defendant to execute and deliver to the plaintiffs a lease of water-power, pursuant to the alleged covenants for renewal, contained in a previous lease ; and that the defendant be required to raise his dam, according to certain other covenants in the former lease, and be restrained from interfering with the plaintiffs' enjoyment of the water. Upon demurrer the covenants were held to bind the assignee, and the lessor was held not a necessary party ; and this was affirmed on appeal. 4 Wis. 335. By a supplemental bill the plaintiffs charged subsequent inter- ference, by defendant, with their en- joyment of the water-power, and that the defendant had brought suits against persons whom they had employed to remove obstructions to the flow of water to plaintiffs' mill, and prayed an injunction to prevent further ob- structions and suits by the defendant ; and for an account of damages for breaches of the covenants which the new lease should contain prior to its execution. A demurrer to the sup- plemental bill was overruled, and the decision affirmed above ; but, instead of taking account as incidental to the principal relief, it was held that in a suit for the specific performance of a covenant to furnish a lease with covenants, the court would not usually decree damages for past breaches, but, in decreeing execution, would order the lease to bear date anterior to the alleged breaches, and give the plaintiil a cause of action at law. It was then suggested that the defend- ant might plead the statute of limi- tations ; and the court decided that the supplemental bill for an account would be retained unless the defend- ant would file an undertaking not to avail himself of the statute in such action. 21 Wis. 283, 294. The de- fendants then answered, and the court decreed execution of a lease with the proper covenants, and binding the de- fendant personally in general terms. It appeared in evidence that the de- fendant had made a voluntary con- veyance of the property, pendente lite, two years before the decree. The de- fendant appealed, and the original question of the right of the plaintiffs * to a new lease was brought before the Supreme Court for the first time. DLxon, C. J., held that the alleged covenant to renew in the former lease was in reality a demise for a future term, to take effect at the option of the lessees upon notice by them, and that therefore a new lease was not necessary, and could not be granted. Cole, J., held that the covenant called for a new lease, and that the plaintiff was entitled to specific performance, but that the decree should not direct covenants to be inserted in the lease binding the defendant (the assignee) except for breaches during his owner- ship. The decree was reversed, and the cause remanded without direc- tions. 27 Wis. 300, 326. One of the plaintiffs then disposed of his interest to the defendant, and discontinued the suit as to himself. The court de- nied a motion to dismiss the whole suit, dismissed the bill so far as it related to the prayer for specific performance, but retained it as to all questions re- lating to the injunctions. It was held above that the defendant was entitled to a dismissal as to the retiring plain- tiff, and that the dismissal, as to the prayer of specific performance, worked no injury to either party. The cause CHAP. XIU.J EQUITABLE REMEDIES. 753 of different persons was divided by them by parol agreement by which each party was to maintain and repair ditches, and to receive and care for his share of the water, and the agreement was performed by both parties for a number of years, it was held that the agreement was taken out of the statute of frauds, and that it would be enforced against an assignee with notice.^ Where a contract is in terms assignable, the assignee is entitled to specific performance. So the assignee of a contract to supply a city with water and water-power, having performed its part, was held entitled to a decree against the city.^ Where the plaintiff and the owner of drowned lands agreed in writing, the plaintiff to fill in and reclaim the lands, and the defendant to convey to him, in payment, one-third of the lands in fee, and the plaintiff performed on his part, and entered into possession, and recorded his contract, it was held that he was entitled to a conveyance, and that a subsequent mortgage by the owner was subject to his rights.^ § 577. Oral contracts affecting land, when partly per- formed, have generally been considered enforceable in equity.* An oral contract by State drainage commissioners for the drainage of lands, and the assessment and payment of damages, under which the commissioners obtained permission to enter on the plaintiff's lands, occupy, and dig canals, was held binding in equity by the New York courts. The com- missioners had power to levy and collect taxes on the lands drained, and to sell them for non-payment, and when they proceeded to exercise these powers, disregarding their con- tract with the plaintiff, they were enjoined from making such sale until the damages for opening the canal were adjusted according to the agreement.^ § 578. Parol licenses to interfere with rights in water, or in land, have sometimes been made the subject of actions for was remanded for further proceedings. ^ Columbia "Water Power Co. u 31 Wis. 265. This is an outline of the Columhia, 5 Rich. (S. C.) 225. proceedings, so far as they relate to our ' Laverty v. Moore, 32 Barb. 347 ; subject, in a case extending through 33 N. Y. 658. a prolonged course of litigation. * See Coffman v. Eobbins, supra. 1 Coffman v. Robbiiis, 8 Oregon, 278. ^ Murray v. Jaync, 8 Carb. 612. 754 THE LAW OF WATEIJS. [PART II. specific performance. In Pennsylvania it has been held that a parol license, given without consideration, to divert and use the water of a stream for a mill, in consequence of which the licensee erects a mill at great expense, is irrevocable, and that equity will specifically enforce the right of the grantee by an injunction, and will give damages for interference. In Ohio it is said that a written license to put water-pipes in land, and to enter and repair them, cannot be specifically enforced, and that a violation of it is only ground for an action for damages.^ 1 Kerick v. Kern, 14 S. & R. 267. 2 Wilkins v. Irvine, 33 Ohio, 138, 145. CHAPTER XIV. STATUTORY REMEDIES AND EFFECT THEREOF. SECTION. 579, 580. In general, statutory remedies take away common-law and equitable remedies. 581. Whether they protect from indictment. 582. Their effect as to damages and modes of recovery. 583-585. As to unauthorized and excessive injuries. 586. Breach of statutory conditions. 587. Injuries unforeseen and unprovided for. 588. Case lies for incidental injuries from public works. 589. Also for injuries caused by negligence or abuse of the powers con- ferred. 590. Effect of statutory remedies upon contracts and submissions to arbitration. 591. Effect of repeal of statute on remedies. 592. Mill Acts. — Different systems of remedies thereunder. 593. Extra-territorial injuries. 594. The Massachusetts system. 595, 596. Ibid. — The Complaint. — Who may be complainants. 597. Ibid. — Respondents. 698. Ibid. — Description of the land injured. 599. Ibid. — Mode of trial. 600. Ibid. — New complaint. 601. Ibid. — Substantially followed in Wisconsin and Maine. 602. Ibid. — Prescriptive rights to flow under this system. 603. Ibid. — Damages under this system. 604. Other States adopting this system. — Rhode Island. 605. Ibid. — New Hampshire. ' 606. Ibid. — Connecticut. 607. Ibid. — Vermont. 608. Ibid. — Pemisylvania. 609-611. The Virginia system. 612. Ibid. — Kentucky. 613. Ibid. ^ West Virginia. 756 THE LAW OF WATERS. [PAET U. 614. Ibid. — Mississippi and Alabama. 615. Ibid. — Missouri. 616. Ibid. — Indiana. 617. Ibid. — Iowa. 618. Ibid. — Michigan. 619. Ibid. — Nebraska. 620. Ibid. — Minnesota and Kansas. 621. Ibid. — North Carolina. 622. Ibid. — Tennessee. 623. Ibid. — Georgia and other States. § 579. Special statutory remedies for injuries caused by acts authorized by the Legislature, and otherwise remediable at common law, usually take the place of the common-law remedies, which are thereby taken away by implication. The remedies provided in the Mill Acts for injuries author- ized by them have this effect.^ Equitable remedies,^ and 1 Stowell c. Flagg, 11 Mass. 364; Law Hep. (N. C.) 425; Wilson v. Wolcott Woollen Manuf . Co. i.. Up- Myers, 4 Hawks, 73 ; Gillet v. Jones, ham, 5 Pick. 292; Fiske v. Framing- 1 Dev. & Bat. (N. C.) 339; Waddy v. ham Manuf. Co., 12 Pick. 68 ; Baird Johnson, 5 Ired. (N. C.) 333 ; King v. V. Wells, 22 Pick. 312; Walker v. Shuford, 10 Ired. 100; Gilliam c. Oxford Woollen Manuf. Co., 10 Met. Canaday, 11 Ired. 106 ; Hendricks v. 203 ; Murdock v. Stickney, 4 Cush. Johnson, 6 Porter, 472 ; Lummery 113, 116; Leland o. Woodbury, 4 v. Braddy, 8 Iowa, 33; Stephens r. Cush. 245; Shaw v. Wells, 5 Cush. Marshall, 3 Pin. (Wis.) 203; 3 Chand. 537; Henderson v. Adams, 5 Cush. 222; Babb v. Mackey, 10 Wis. 371; 610; Gile v. Stevens, 13 Gray, 146; Newton «. Allis, 12 Wis. 378 ; Wood r. Burnham v. Story, 3 Allen, 378 ; Hustis, 17 Wis. 416 ; Crosby v. Smitli, Woods 1.. Nashua Manuf. Co., 4 N. 19 Wis. 449 ; Large v. Orvis, 20 Wis. H. 527; Hill v. Baker, 28 Maine, 9; 696. For decisions giving the same Monmouth v. Gardiner, 35 Maine, effect to a statutory remedy against 247 ; Wooster u. Great Falls Manuf. the overseer of highways for injuries Co., 39 Maine, 246; Underwood ji. in providing for the drainage of the Wayne Co., 41 Maine, 291 ; Veazie v. road, see Elder <;. Bemis, 2 Met. 599 ; Dwinel, 50 Maine, 485 ; Dingley v. Benjamin v. Wheeler, 8 Gray, 409 ; 15 Gardiner, 73 Maine, 63 ; Bull v. Val- Gray, 486. ley Falls Co., 8 R. I. 42 ; Brown v. 2 Bull v. Valley Falls Co., 8 B. I. Commonwealth, 3 Serg. & R. 273 ; 42 ; Lummery v. Braddy, 8 Iowa, 33. Criswell v. Clugh, 3 Watts, 330 ; As to injunctions, see Newton ;;. AUis, Speigelmoyer v. Walter, 8 Watts & S. 12 Wis. 378 ; Crosby v. Smith, 19 Wis. 540; Ensworth v. Commonwealth, 52 449. Penn. St. 320; Mumford v. Terry, 2 CHAP. XIV.J STATUTORY EEMEDIES. 757 the common-law remedies by abatement,i may also be taken away by such special enactments. § 580. In the leading case of Stowell v. Flagg,^ Parker, C. J., said : " From the general purview of the statute, made expressly to relieve mill-owners from the difficulties and dis- putes they were before subject to, there can be no doubt of the intention of the Legislature to take away the common- law action, which might be renewed for every new injury, and so burden the owner of a mill with continual lawsuits and expenses." In Murdock v. Stickney,^ Shaw, C. J., in speaking of the flowage and injury caused by the erection of a dam, said : " Here the law steps in and declares that, in consideration of the advantage to the public to be derived from the establishment and maintenance of mills, the owner of the land shall not have an action for this necessary conse- quential damage against the mill-owner, to compel him to prostrate his dam, and thus destroy or reduce his head of water ; but it authorizes him to keep up his head of water to his own best advantage, having at the same time provided what the law deemed an adequate and practicable remedy for all the damage sustained, by a compensation in monej^ to be paid by the owner of the mill." Some of the more recent Mill Acts have expressly taken away the common-law reme- dies for injuries so authorized.* 1 Criswell u. Clugh, 3 Watts, 330 ; 591, which was an action at law, the Speigelmoyer v. Walter, 3 Watts & S. New Hampshire Mill Act of 1868 is 540. construed. The Act provides, § 4: ^ 11 Mass. 364. That the Mill Act " No person or corporation shall de- was intended to fix a measure of drain- rive any title from said proceedings, age for the future, and relieve the or be discharged from any liability in mill-owner from future suits, as well as relation to said premises, until he or afford him a remedy for public past it has paid or tendered to the person damages, see Commonwealth v. Ellis, aggrieved or damaged the amount of 11 Mass. 464 ; Wolcott Manuf . Co. v. such adverse judgment." The Act Upham, 5 Pick. 292 ; Walker v. Ox- also provides that proceedings under ford Woollen Manuf. Co., 10 Met. it may be begun by either party, if 203 ; Craig v. Lewis, 110 Mass. 379. the injury by the acts authorized be ^ 8 Cush. 113. continued for thirty days mthout ad- * Mass. Public Sts. (1882), c. 190, justment. From these provisions, and § 28; Maine Eev. Sts. (1871), c. 92, from the possibility of an injury's § 23. In Ash v. Cummings, 50 N. H. being continued for a great length of 758 THE LAW OF WATERS. [PAET ir. § 581. Whether the statutes protect parties proceeding under them from indictments, where their dams injure the time, before a judgment could be reached, and the possible insolvency of the respondent at that time, and the possibility that the flowage may be found not to be of public use, the court decide that the act does not take away the common-law action until after the tender upon the judg- ment has been made ; they even con- template the pendency of a suit at common law and of another under the statute at the same time. Sar- gent, J., in delivering the opinion, said (p. 619) : "If a petition should be filed imder the statute, and a judg- ment for damages should be rendered thereon before a judgment in this suit is rendered, perhaps the plaintiff might have his election to go on with this suit, and retain any security he may have by attachment, to satisfy the judgment in this suit, or to be- come non-suit, and allow the subjects matter of it to be settled on the petition. If he should recover a judgment in this suit, and also on the petition, and defendants should pay both judgments, the law would not, of course, justify an injunction founded on the judgment in this suit. If plaintiff recover a judgment in this suit, and it is not satisfied, and a petition should be brought under the statute, there might, perhaps, be no objection to including in the judg- ment on the petition the amount of the former judgment and fifty per cent, additional, treating the petition as a suit upon the former judgment as far as it goes, and treating the former judgment as conclusive as to the estimation of the damages in- cluded in it. There would be no difficulty in settling every practical question that may arise, nothing to be compared with the difiiculties that have been overcome in the construc- tion of the Homestead Act, and some others. If the land-owner chooses to go on with his common-law action, notwithstanding the pendency of a petition, the damages claimed in the former must be excluded from con- sideration in the latter." In speaking of equitable remedies, he said : " But suppose'that the land-owner endeavors to prevent the mill-owner from build- ing his dam or from flowing his land after the dam is built, by injtmction, what course is to be taken, and what rule to be applied ? A mill-owner, in a given case, may be wholly irresponsi- ble, and in all cases there is a possi- bility that the flowage may not be deemed of a public benefit and neces- sary for the use of the mill, and some power must be lodged in the court to apply the general principle involved in ordinary cases of injunction to this new law. ... In ordinary cases, upon application of the land-owner for an injunction, the court would notify the mill-owner, and, instead of giving the plaintiff his injunction, as we do in other cases, by his giving bond to respond in damages to the other party if he does not succeed, we should, to meet the spirit of this act, order that the mill-owner, in case he showed no other right to flow the land than what arises under this Act of 1868, should deposit with the clerk of the court such an amount of cash, as, upon the best evidence that the case admitted of, would be compensation for the damage about to be done ; and unless he did this, or in some other way should give security equivalent to compensation, we should grant the injunction of course; but if he did this, the spirit of this Act of 1868 would authorize the court to refuse an injunction in order that the mill- owner might, by actual flowage, bring himself within the letter of this Act and proceed by petition." The de- CHAP. XIV.] STATUTORY REMEDIES. 759 public, is a qiiestion upon which the courts are divided. la New Hampshire it is held that an indictment will not lie.^ In Kentucky the statute contains, as we shall see, a provi- sion against injuries to health ; and a dam built under per- mission of court, but which causes injury to the health of the neighborhood, is indictable as a public nuisance.^ These decisions were followed in Wisconsin^ although the statute there contains no such provision.^ In Indiana the permis- sion to build a dam is held no protection against an indict- ment for creating a public nuisance by flooding a highway ; * and in Michigan, Cooley, J., in the course of a decision upon the constitutionality of an Act, expressed the opinion in cision is based principally on the special clause in the statute, and in view of this clause the decision that the liability to an action at law re- mained, was unavoidable. The sug- gestions of the delay possible, under the Mill Acts, of the possible insol- vency of the mill-owner, and of the possible decision of the court that the flowage and injury are not for public use, are added to show the evils which were to be avoided by preserving the remedy; and also to show the reasons upon which the clause in the statute was based; and not, it seems, as grounds for the decision itself. They would not in themselves prevent the application of the doctrine of abroga- tion of such remedies by implication. The citations from the opinion show some of the inconveniences to which the doctrine of concurrent remedies might lead. The suggestion that if a judgment were first obtained at law, the petition might be treated as an action on the judgment, is untenable, from the nature and object of the petition, and a fortiori because while the judgment at law is obtained by the land-owner, the petition may be by the mill-owner, who is the judg- ment defendant at law. It seems that, where the remedy is retained, a better method of avoiding these evils would be for the court to assume jurisdiction, if necessary, to grant a stay of proceedings in all actions at law, until judgment has been obtained on the petition, or the question of public use has been determined. In Indiana the statutory remedies are held not to deprive the injured party of his remedies at common law. Toney v. Johnson, 26 Ind. 382. And see Smith v. Olmstead, 5 Blackf. 37, where it is held that the common-law remedy lies unless the damages arc assessed and paid. In Snowden r.. Wilas, 19 Ind. 10, the court raise the question without deciding it, whether- the statutory remedy is not exclusive- See, further, post, § 250, et seq. 1 Hooksett V. Amoskeag Manuf. Co., 44 N. H. 105 ; Eastman v. Amos- keag Manuf. Co., 44 N. H. 143. To same effect, see Ensworth v. Common-- wealth, 52 Penn. St. .320; Crittenden V. Wilson, 5 Cowen, 165. 2 Jfy. Sts. 1879, c. 77, § 4; Mounts joy V. Oldham, 1 Marsh. 535 ; Major V. Taylor, Ibid. 552. See to same eifect Commonwealth v. Paris, 5 Rand. 691. 3 Luning v. State, 2 Pin. (Wis.) 215. ^ State V. Phipps, 4 Md. 515. This rule is now made a part of the statute, and applies to all public nuisances created by such dams. Ind. Rev. Sts. (1881), § 1859. 760 THE LAW OP WATERS. [PAKT II. general terms, that such a statute, if constitutional, would be no defence to a prosecution for a public nuisance.^ § 582. In Massachusetts it was held that the remedy by assumpsit or debt, allowed by the Mill Act,^ to enforce pay- ment of the annual compensation or gross damages, awarded for flowage under the Act, was not cumulative, but was sub- stituted for and took away the common-law remedy by an action of debt on the judgment.^ Where an action has been brought for the wrongful erection of a dam built under authority, it cannot be changed by amendment into a pro- ceeding under the statute.* But where a special Act author- izes the damming of a stream for manufacturing purposes, but provides no remedy, and makes no reference to the gen- eral Mill Act, the common-law remedy must be pursued, and not that provided by the general Act.^ So Acts authorizing the taking, diversion, or obstruction of streams, for canals or for the improvement of navigation, or for other public pur- 1 Ryerson c. Bro^TO, 35 Mich. 333, "338. The decision in Massachusetts tthat the Act did not authorize the flowage of a public highway, and that -for such injuries an indictment would tlie (Commonwealth v. Stevens, 10 Pick. 247; ante, § 214), is in effect an .authority for the same proposition. All the cases are apparently in har- imony with the following proposition : The effect of the statute is to author- lizc the acts provided for, and their ■necessary consec[uences, and to take away the public right of indictment or action therefor. So such statutes protect one maintaining a dam in ac- cordance with their provisions from indictment for a nuisance in obstruct- ing the stream. But for other nui- sances caused by the dam, which are not necessary consequences of the ' existence of the dam under any cir- cumstances, the statutes afford no protection. One of the New Hamp- • shire cases, on the one hand, expressly says ; " But an Act authorizing one 1 to build a dam on his own land upon a river which is a highway, merely protects him from an indictment for a nuisance in obstructing the river ; but if in doing this, he overflows his neigh- bor's land, he is liable to an action therefor " (Eastman v. Amoskeag Manuf. Co., 44 N. H. 143, 160). And the Virginia and Kentucky cases, on the other hand, are referable to the pro- visions of the statutes against injuries to health, or for unforeseen injuries. Where the statute prescribes an indict- ment with a special form of present- ment and procedure, a common-law in- dictment will not lie. Commonwealth V. Plumer, 1 Am. L. Eeg. 124 ; Brown V. Commonwealth, 3 Serg. & R. 273. 2 Rev. St. 1836, c. 116, § 24. ^ Leland v. Woodbury, 4 Cush. 245. * Newton v. Allis, 12 Wis. 378; Confer French t. Owen, 5 Wis. 112, which holds, conversely, that a statu- tory action cannot be changed by amendment into one at common law. "5 Cogswell u. Essex Mill Co., 6 Pick. 94 ; Lee v. Pembroke Iron Co., 57 Maine, 81. CHAP. XIV.] STATUTORY REMEDIES. 761 poses, and providing remedies for injuries caused thereby, have generally been construed to exclude the common-law remedies.^ 1 Lebanon v. Olcott, 1 N. H. 339 ; Steele u. Western Navigation Co., 2 Johns. 288 ; Stevens v. Middlesex Canal, 12 Mass. 466; Sudbury Mea- dows V. Middlesex Canal, 23 Pick. 36; Elder v. Bemis, 2 Met. 599; Tower V. Boston, 10 Cush. 235; Perry v. Worcester, 6 Gray, 546; Spring v. Kussell, 7 Greenl. 273; Aldrieh v. Cheshire Railroad Co., 21 N. H. 358 ; Troy V. Cheshire Railroad Co., 23 N. H. 83 ; Calking v. Baldwin, 4 Wend. 667 ; Spangler's Appeal, 64 Penn. St. 387 ; McKinney v. Monongahela Nav. Co., 14 Penn. St. 65 ; Pelir v. Schuyl- kill Navigation Co., 69 Penn. St. 161 ; Puller V. Edings, 11 Rich. S. C. 239; Kimble v. Whitewater Canal Co., 1 Ind. 285 ; Conwell o. Hagerstown Canal Co., 2 Ind. 588 ; Null v. White- water Canal Co., 4 Ind. 431, 435. See Cooley on Torts, 652 ; Barker v. King's Norton Sanitary, L. J. 17 Notes of Cas. 16. Contra, are Fryeburg Canal Co. V. Frye, 5 Maine, 38; Crittenden V. Wilson, 5 Cowen, 165 ; Selden v. Delaware Canal Co., 24 Barb. 362. In the first of these cases, it was held that the common-law remedy might be resorted to against one who diverted a watercourse by statutory authority, although a remedy was provided, on the ground that there were no words of negation in the Act. In Crittenden V, Wilson, 5 Cowen, 165, a private Act was held merely to relieve the mill- owner from the liability to indict- ment, and to authorize a summary mode of appraising damages, and not to take away the remedy by action at law, upon the same ground as the pre- ceding case, and relying on Comyn. Dig. Action Upon Statute (C). [" If a statute gives a remedy in the affirma- tive (without a negative expressed or implied) for a matter which was actionable by the common law, the party may sue at the common law, as well as upon the statute ; for this does not take away the common law."] This case is distinguished by Marcy, J., in Calking v. Baldwin, 4 Wend. 667, thus : " If this be a private Act, as contradistinguished from a public Act, the law which was applied to the case of Crittenden v. Wilson must govern. The plaintiffs are not in such a case confined to the remedy given by the Act, but may proceed by action according to the common law. But if the work authorized by the Act be of a public character, the case is altered, and the compensation which individu- als are entitled to receive for injuries occasioned by it, must be sought in the way pointed out by the Act, and not otherwise." Crittenden v. Wil- son was cited with approval in Sus- quehanna Turnpike Co. o. People, 15 Wend. 268; Waterford & Whitehall Turnpike v. People, 9 Barb. 173; and Clark v. Syracuse, 13 Barb. 32. See, also, Robinson v. New York Railroad Co., 27 Barb. 512. Selden v. Delaware Canal Co., 24 Barb. 362, follows 5 Cowen, 165, and holds that where land and buildings are injured by flooding, or by the per- colation of water caused by the en- largement of a canal under statutory authority, the action at common law will lie. Upon appeal, the decision was affirmed on other grounds (29 N. Y. 634), but Selden, J., said: "It was insisted by the defendants' coun- sel that, admitting the lands to have been appropriated by the defendants, without the plaintiff's consent, the only remedy allowed to the plaintiif to obtain indemnity was that pointed out by the defendants' charter (Laws of 1823, p. 309), and that the present action, for that reason, could not be maintained. Calking o. Baldwin, (4 Wend. 667), which does not appear to have been noticed when this case was 762 THE LAW OF WATERS. [PAET II. § 583. But it is equally clear upon principle, and equally- established by authority, that for injuries not authorized and included in the provisions of such statutes, the common-law remedies remain in full force. A frequent example of their use is afforded by injuries by a mill-dam to a mill already existing. Such injuries are usually expressly excluded from the operation and protection of the Aets,^ and are remediable at common law and in equity ; ^ and in the absence of such provisions the statute is so construed by the courts.^ What shall be protected as an existing mill has been considered in many cases, and with some difference of opinion. In Massa- chusetts it is held that the mill must be actually completed before the injury takes place. Where the plaintiff began to erect a mill, and the defendant, beginning later, finished his dam first, and injured the plaintiff's uncompleted mill, it was held that the plaintiff could not maintain a common-law action for the injury to his mill as an existing mill, but must pursue his remedy under the Mill Act.* So the common-law first before the general term of the Supreme Court, if the principle upon which it rests is sound, would go far to sustain that position, It does not be- come necessary, however, to pass upon that question, as upon other grounds which have been mentioned, the judg- ment must be affirmed." The decision upon this point below ought, it seems, to be considered no longer law. Crit- tenden V. Wilson is cited with ap- parent approval in Denslow v. New Haven Co., 16 Conn. 98. 1 Tor statutory provisions protect- ing existing mills, see Mass. Pub. Sts. (1882), c. 190, § 2; Maine Kev. Sts. 1871, title 9, c. 92, § 2 ; N. H. Rev. Sts. 1878, c. 141, § 19 ; Vt. Rev. Sts. 1880, § 3224; Rev. Sts. Conn. 1875, p. 473, §§ 1, 3; Wis. Rev. Sts. 1878, c. 146, § 3375; Va. Rev. Code, 1873, Title 19, c. 63, § 8; N. C. Rev. Sts. 1873, c. 72, § 8, pi. 3; Ala. Rev. Code 1876, § 3564, pi. 4; 111. Rev. Sts. 1881, u. 92, § 2; Ind. Rev. Sts. 1881, §§ 898, 900; Ky. Gen. Sts. 1879, c. 77, §§ 6, 8; Mich. Laws, 1873, Act No. 196, § 12 ; Tenn. Sts. 1871, § 1920; Mo, Rev. Sts. 1879, c. 132, § 6437. That per- mission will not be granted to build a mill which will injure one already existing, see Larsh v. Test, 48 Ind. 130. 2 Bigelow V. Newell, 10 Pick. 348 ; Smith V. Agawam Canal Co., 2 Allen, 355, 357 ; Burnham v. Story, 3 Allen, 378; Brigham o. Wheeler, 12 Allen, 89 ; Williams v. Elting Woollen Co., 33 Conn. 353 ; Hendricks v. Johnson, 6 Porter, 472; Thomas v. Hill, 31 Maine, 252; Wentworth v. Poor, 38 Maine, 243; Stickney o. Munroe, 44 Maine, 195; Lincoln v. Chadbourne, 56 Maine, 197 ; Lee v. Pembroke Iron Co., 57 Maine, 481 ; Moore v. Coburn, 1 Pin. (Wis.) 538; Large ^. Orvis, 20 Wis. 696; Hill v. Ward, 2 Gilman, 285 ; Close v. Samm, 27 Iowa, 503. ''Mowry v. Sheldon, 2 R. L 369; Stone V. Peckham, 12 R. I. 27, 28. Confer Seeley v. Bridges, 13 Neb. 547, which holds that such injury will be enjoined, although the statute con- tains no provision. * Baird v. Wells, 22 Pick. 312. A decision similar in effect is given in CHAP. XIV.J STATUTORY EEMBDIES. 763 remedies for injuries to existing mills are strictly confined to injuries to the mills and works. The plaintiff cannot include Hendricks u. Johnson, 5 Porter, 208. But see Elting Woollen Co. v. Williams, 36 Conn. 310, In which the court hold that where two persons are seeking to appropriate the same power, one as owner, and one under the flowage Act, the law will favor the owner ; and that this will not be altered by the fact that the owner has recently- purchased the power with knowledge at the time that the petitioner was negotiating for the right to flow it. The statute of Wisconsin (Rev. Sts. 1878, c. 146, § 3375) protects mills already existing or in "process of erection." Water-power held by the owner, near a mill actually in use, with the intention at some future time to use it for the mill, is protected by the act. Occum Co. v. Sprague Manuf. Co., 35 Conn. 496; Elting Woollen Co. v. Williams, 36 Conn. 310. But small mills which are not actually used as mills, but were erected merely to protect a right of flowage, are not entitled to the protection of the Act. Occum Co. I/. Sprague Manuf. Co., 35 Conn. 496. A mill is held to be " law- fully existing," though its dam is maintained a little higher than it should he. Robertson v. Miller, 40 Conn. 40. No person can avail him- self of the privileges conferred by the Mill Act of Massachusetts, nor bring himself, within its protection merely by erecting a dam across a stream running through his land. There must be coupled with such erection the building of a mill for use, or the bona fide provable intent to erect one forthwith. Pitch v. Stevens, 4 Met. 426; Veazie v. Dwinel, 50 Maine, 479, 485. A dam used to float timber to a steam saw-mill is not protected. Bryan v. Burnett, 2 Jones L. 305. Injury to a canal and waste weir con- nected with a water-mill has been held an injury to a mill within the Massachusetts statute. Dean v. Colt, 99 Mass. 480. In Bottomly v. Chism, 102 Mass. 463, a reservoir dam used with a mill was held entitled to pro- tection as an existing mill, under the Massachusetts Act. The owner of property already appropriated for milling purposes cannot have an in- junction to restrain proceedings which will authorize flowage injurious to him. If he can appear in such pro- ceedings, his remedy there is complete ; if not, the proceedings will be void as to him, and he can enjoin the flowage itself. Williams v. Elting Woollen Co., 36 Conn. 313. In Rhode Island it is held that where a, person has erected a dam for mill purposes, no one is authorized to erect a mill-dam in such a way as to flow out the former dam, or destroy its fall of water, even though no mill has been built or be- gun thereon, unless the design for building a mill has been abandoned. If the proprietor of such dam should represent that he intended to abandon the dam for mill-purposes, he would be estopped to deny that such were his purposes, as against one who has been influenced by his representa- tions, to build a dam below which injures the fall at the dam above. If the dam is built for other than mill- purposes, it is not entitled to protec- tion under the Act against flowage by a later dam, built for mill-purposes. The erection of a dam or mill-privil- edge available for mill-purposes fur- nishes prima facie presumption that the dam is intended for such purposes, and the fact that it is slightly built, is not sufficient to rebut the pre- sumption. Mowry v. Sheldon, 2 R. I. 369. The right to an injunction to protect an existing mill or mill-site, may be lost by acquiescence in the building of another mill. Nosser v. Seeley, 10 Neb. 460. In Indiana, a 764 THE LAW Oli' AVATEES. [PAET II. in his action at law injuries to his meadows ; nor will equity enjoin such an injurj^ ; for these he must proceed under the Act.i On the other hand, the Delaware statute of 1773, for the encouragement of mill-owners, which gives them a summary remedy for damages occasioned by the erection of other dams, has reference to the location of new mill-sites, and is held not to apply to a change in the construction of dams already erected. For injuries by such changes the common-law remedy must be pursued.^ § 584. For all injuries caused by persons proceeding under such statutes, but acting in excess of their authority, the common-law actions lie. So where the height at which a dam may be maintained has been determined by proceedings under the Mill Acts, any injuries caused by maintaining the dam at a greater height are unauthorized and remediable at common law.^ So if the right to flow lands is limited to purchase or holding of land, with the declared intention to build a mill in the future, does not entitle the holder to the protection of the statutes, but the collection of machinery and ma- terials, and excavation of a founda- tion, is sufficient to entitle him to the protection of the statute. Miller a. Stowman, 26 Ind. 143 ; Larsh v. Test, 48 Ind. 130. Any bona fide improve- ment of a water-power, with intent to use as such, makes it a " power pre- viously improved " under the Minne- sota statute. Miller v. Troost, 14 Minn. 365. The Missouri statutes for- merly contained no provision protect- ing existing mills. In Hook v. Smith, 6 Mo. 225, it is held that where con- flicting applications are made on the same day, or within a few days of each other, the court may exercise its discretion and grant permission to the one which will cause least damage to the public or individuals. The pres- ent statute gives the court power, on petition of the owner of any existing mill, to restrain such injuries. 2 Mo. Rev. Sts. (1879), § 6437. In a late case it is held that a dam authorized, but not completed within the time prescribed, is not a lawfully existing dam, and cannot be legitimated by lapse of time, so as to entitle the owner to the protection of the statute against injuries by other mills. Huff- man V. Vaughan, 72 Mo. 465. In Humes v. Shugart, 10 Leigh, 332, the Virginia court denied a second appli- cation made shortly after granting a former one for erecting a mill in the same neighborhood. 1 Large v. Orvis, 20 Wis. 696. 2 Garrett v. Bailey, 4 Har.- (Del.) 197. ^ Johnson v. Kittredge, 17 Mass. 76 ; Winkley v. Salisbury Manuf . Co., 14 Gray, 443 ; Leonard i'. Wading River Co., 113 Mass. 235 ; Brady v. Blackin- ton, 113 Mass. 338; Arimond v. Green Bay Co., 31 Wis. 316. See ffiscox ;;. Sanford, 4 R. I. 55, where the height was determined by contract. If the defendant Increases the height of his dam in order to enlarge his mill, or to supply a new mill with power, this is in effect a new taking under tlio CHAP. XIV.] STATTTTOKY EBMEDIES. 766 certain seasons of the year, and the person using the mUl flows the lands at other seasons, he is liable as a wrong-doer.^ So where the Act authorizes dams across unnavigable streams, a dam across a navigable stream is in no way entitled to the protection of the Act.^ So, where a dam is maintained by the defendants for the use of a mill not owned by them, nor situated on their land, it is not within the provisions of the MOl Act of Maine, and the common-law actions will lie for an injury caused by such a dam.^ So, an obstruction of the public use of a stream, as a water-way for rafts and 'timber is unauthorized by the Acts. The mill-owner may dam streams available for such transportation, but must keep a suitable passage-way for boats and rafts ; and for injuries to this use the common-law remedies may be maintained.* So it is held in Massachusetts that the Mill Act does not authorize the ilowage of a public highway already appro- priated and in actual use ; and for such flowage an action at law may be maintained, or an indictment will lie.^ So, if statute, and the statutory method must he pursued. Johnson v. Kit- tredge, 17 Mass. 76 ; Leonard v. Schenck, 3 Met. 359. A charter giring the right to erect a dam on the company's own land gives no right to flow the land of others without their consent. For such flowage the com- mon-law actions lie. Company y. Goodale, 46 N. H. 153. 1 Hill V. Sayles, 12 Met. 142. The plamtifE in this case afterwards re- covered damages in a second action for a repetition of the injury. 4 Cush. 549; and then was granted an in- junction against such unauthorized flowage. 12 Cush. 454. On the appeal in the first case, Shaw, C. J., said (12 Met. 150): "By the rule of the common law, the land-owner has a right to have the natural water- course kept open the whole time. By the statute, and the proceedings under it, the mill-owner has acquired a right to keep his dam up a, certain part of the time, paying a certain amount of damage. For the residue of the year the land-owner remains in the enjoy- ment of his common-law right, and is entitled to his common-law remedy for the infringement of it." 2 Bryant v. Glidden, 86 Maine, 36 ; Strout V. Millbridge Co., 45 Maine, 76. See, also, Eenwick o. Morris, 7 Hill, 575, where a statute authorized a per- son to maintain a dam in a navigable river, and the dam was so built as to obstruct the navigation beyond what the Act authorized. It was held a public nuisance, and liable to abate- ment pro tanto by any one, though it had stood for more than twenty years. 8 Crockett v. Millett, 65 Maine, 191. * Veazie v. Dwinel, 44 Maine, 167 ; Veazie u. Dwinel, 60 Maine, 479; Knox V. Chaloner, 42 Maine, 150 ; Treat v. Lord, 42 Maine, 552 ; Parks V. Morse, 52 Maine, 260; Lancey v. Clifford, 54 Maine, 487. 5 Commonwealth o. Stevens, 10 Pick. 247. To same effect under the Kansas statute, see Venard o. Cross, 8 Kansas, 248, where an injunction was granted. 766 THE LAW OF WATERS. [PAKT n. a mill is abandoned, and the riglit to flow lost, and a high- way is laid out over the land formerly flowed, the highway gains the prior right ; and if the mill-owner or his grantee injures it in attempting to re-assert the right to flow, he is liable to indictment.^ In reality any maintenance of the dam apart from the public benefit gained from the mill provided with power thereby, is unauthorized. So, if the mill- owner abandons his mill, but maintains his dam, he is liable at law to those injured.^ § 585. If a mill-owner makes a canal leading water into another's land, this is not within the protection of the Massa- chusetts statute.^ So trespasses in the construction of a dam or boom are not within the scope of the statutory remedy, and are actionable wrongs.* So where the pro- visions of the Mill Act were extended, so as to include the taking of waters to furnish a water-supply to cities and 1 Commonwealtli i-. Fisher, 6 Met. 433. So the remedy of a town against a mill-owner for overflowing a road which the town is obliged to repair, and does repair, is by action on the case and not under the Mill Act. AndoTer v. Sutton, 12 Met. 182. St. 1873, c. 144 (Pub. Sts. u. 190, § 42), establishes a proceeding by which a mill-owner can acquire the right to flow a highway. For the details of this procedure, see infra, the sections on Eemedies under the Mill Acts. See a similar provision in Minnesota, Gen. Sts. 1878, c. 31, § 23, p. 331. 2 French v. Braintree Manuf . Co., ,23 Pick. 216 ; Hodges v. Hodges, 5 Met. 205; Fuller v. French, 10 Met. 359. Mere disuse of a canal by a canal-company and a sale of its mill properties, reserving all rights neces- sary for the preservation and use of the canal, is not an abandonment. Heard v. Talbot, 7 Gray, 113. ^ Eiske V. Framingham Manuf. Co., 12 Pick. 68. * Perry v. Wilson, 7 Mass. 393 ; Henley v. Wilson, 77 N. C. 216. The North Carolina Mill Act provides for acts done on the defendant's own land. Battle, N. C. Eev. St. c. 72, §§ 13 et seq. It would be a proper ex- ercise of legislative power, however, to authorize an entry on another's land for the purpose of erecting a boom or dam, upon proper conditions as to compensation. Per Parsons, C. J., in Perry c. Wilson, 7 Mass. 393. In Pennsylvania, an Act authorizing persons to maintain dams and obtain control of the channels of streams, for the purpose of floating lumber and rafts to market, has been construed to authorize such acts only by public companies. Where individuals, acting for their private benefit, erected a temporary dam for such purposes, which they used in such a way as sometimes to cut off the water from the plaintiff's mill, and at other times flooded out his wheel, and injured his dam, by driving logs upon it, the court held that the plaintiff's remedy was at common law and not under the statute. Finney v. Somerville, 80 Penn. St. 59. CHAP. XIV.] STATUTORY REMEDIES. 767 towns, this extension was held not to imply a grant of power so to take water; and where the defendant diverted a stream in order to carry out a contract to supply a town with water, such diversion was enjoined.^ So under the Virginia system of Acts, if the order granting permission to build the dam is obtained without notice to the person in possession of the lands to be taken, or without adjudicating his rights, his right to possession will be unaffected and he may have a writ of forcible entry and detainer.^ So where a permission was granted to erect a dam with the condition that it should not be so maintained as to cause injury to a certain ford, a declaration in case for raising the dam so as to violate this condition, to the injury of the plaintiff, was held good.^ § 586. Similarly the common-law remedies lie for injuries caused by persons who proceed under the authority of such Acts, but fail to comply with their requirements. If a Mill Act imposes conditions precedent to acquiring the right to flow, they must be strictly performed by one claiming the right, or he is liable as a wrong-doer.* So, if the claimant fails to make compensation at the time and in the manner determined by the act or proceedings, or to give the secu- rity required for the payment of future damages,^ or to per- form the other duties imposed on him, he forfeits his rights under the Act, and renders a further maintenance of the dam 1 Howe V. Norman, 13 E. I. 488. tory method renders the mill-owner The extension was held to be simply liable as a wrong-doer. Hunting ;,•. of the procedure under the Mill Acts TVaterman, 10 Iowa, 152 ; Akin r. to control the taking for such pur- Davis, 11 Kansas, 580. So the writ poses when the right should be must be sued out before building the granted. The Mill Act of Mississippi mill and dam. A writ sued out after- has been held not applicable to in- wards was formerly held ineil:ectual. juries caused by a ditch and levee. Smith k. Olmstead, 5 Blackf. 37 ; Price K. Lagroue, 57 Miss. 839. Summy v. Mulford, 5 Blackf. 113; ° Wolf u. Coffey, 4 J. J. Marsh. 41. s. c. 202. See a similar opinion in ' Hardy v. McNeil, 8 B. Mon. 449. Alabama. Hendricks v. Jolmson, 5 * A strict compliance with the stat- Porter, 208. Contra, see "Wright u. utory method of procedure is a con- Pugh, 16 Ind. 106 ; and Ind. Rev. Sts. dition precedent to the acquisition of 1881, § 883, pi. 9. rights. A failure to follow the statu- ^ Stowell v. Plagg, 11 Mass. 364. 768 THE LAW OF -WATJEES. [part II. ii nuisance to be restrained or abated in equity.^ This rule applies to persons purchasing from the claimant subsequent to the proceedings. They take subject to the duties im- posed.^ § 587. Injuries unforeseen and unprovided for constitute another class for which the common-law remedies survive.^ The Virginia Mill Act, and several of the statutes modelled upon it, contain clauses expressly saving existing remedies for injuries not actually foreseen and estimated upon the inquest.* These Acts also provide that permission shall not be given to erect dams which will cause injury to health.^ So where a dam duly authorized, and found by the inquest not likely to injure ' Ackerman v. Horicon Iron Co., 16 Wis. 150 ; Zweig v. Horicon Iron Co., 17 Wis. 362; s.c. 20 Wis. 40; Akin v. Mills, 29 Wis. 322 ; Arimond v. Green Bay Canal Co., 31 Wis. 316 ; s. c. 35 Wis. 41 ; Wight v. Packer, 114 Mass. 473; Kirkendall v. Hunt, 4 Kansas, 514. See, also. Hill v. Sayles, 12 Cush. 454, cited above. In New Hampshire, as we have seen, the statute of 1868 is interpreted hy the aid of the constitution to require the claimant to make compensation be- fore the land is flowed, and not to take away the common-law remedies until after an assessment and judg- ment are had under the Act, and pay- ment or tender of the amount. Ash ,-. Cummings, 50 N. H. 591. In Wisconsin, it is held that judg- ment may be given in the alternative, upon proper allegations and proofs, for the payment of compensation and establishment of the right to main- tain the dam ; or, on non-payment, for the abatement of the dam. Cobb v. Smith, 38 Wis. 21. In an action to abate for non-payment of compensa- tion, it is not necessary to join the mill-owner's grantees of the use of the water; but such grantees may be made defendants at their request, and by payment of the compensation they may prevent an abatement. Newell V. Smith, 26 Wis. 582. On the other hand, the mill-owner may main- tain an action at law for an obstruc- tion of the stream to his injury, pending the proceedings for acquiring his right. Hendricks u. Johnson, 9 Porter, 208. A mere promise by the builder of the dam to pay the damages assessed does not bar the action for nuisance, and will not be ground for an action. Cave v. Calmes, 3 Marsh. 36. 2 Wight V. Packer, 114 Mass. 473. ^ Denslow v. New Haven & North- ampton Co., 16 Conn. 98 ; Eames v. New England Worsted Co., 11 Met. 570; Coe v. Hall, 41 Vt. 325; Calhoun u. Palmer, 8 Gratt. 88, 100; Waddy V. Johnson, 5 Ired. 333 ; Watson v. Van Meter, 43 Iowa, 152. See Smith 0. Olmstead, 5 Blackf. 37. 4 Va. Code, 1873, Title 19, c. 63, § 11 ; Miss. Rev. Code, 1880, § 932; 2 Mo. R. S. 1879, § 6435 ; Iowa Rev. Sts. 1882, § 1201. See Ind. Rev. Sts. 1831, c. 1, § 8 ; Ind. Rev. Sts. 1881, § 1859. 6 Ala. Code, 1876, § 3564; Ark. Rev. Sts. 1874, § 4225; Pla., McClel- lan's Dig. c. 152, § 6 ; 111. Rev. Sts. 1881, c. 92, § 1 ; Ind. Rev. Sts. 1881, § 887 ; Ky. Rev. Sts. 1879, c. 77, § 4 ; Miss. Code, 1880, § 928 ; N. C. St. 1873, c. 72, § 9 ; Va. Code, 1873, Title 19, c. 63, § 6 ; 2 West Va. St. 1879, c. 91, § 31 ; 2 Tenn. St. 1871, § 1920. CHAP. XIV.] STATUTORY EEMEDIES. 769 health, afterwards causes injury to health, the remedy is at common law.^ So where the statutes contain no such pro- visions, they are usually construed to provide remedies for injuries by flowage and the withholding of water only ; and the common-law remedies are sustained for injuries to health caused by dams maintained under the Acts.^ The saving clause in the Virginia statute, and those which follow it, extend to damages which though contemplated by the statute as grounds for recovery in the special proceeding, were not included in the finding of damages. It is held that in a second action, the jury in the original proceedings will be presumed, in the absence of proof, to have foreseen and estimated all the damages which it was then practicable to foresee and estimate,^ and the statute does not save a right of action for damages foreseen but miscalculated.* § 588. The right to compensation for incidental injuries caused by works of public utility is elsewhere considered.^ With respect to remedies where the right to compensation for incidental injuries is admitted, but is not provided for as. a taking, the remedy is usually held to be by an action on 1 Commonwealth u. Favis, 5 Rand, proprietor, from the direct injury done- 691 ; Miller v. Trueheart, 4 Leigh, to his estate, taken as a whole, by flow- 569. See Waddy ;;. Johnson, 5 Ired. ing, deducting therefrom any benefit 333, in which it is held that, where a which may be done to the same estate person's lands are flowed, the statute by the same cause, namely, by flow- intended to allow all incidental in- ing." In Gile v. Stevens, 13 Gray, juries caused by such flowage, e.g., 146, flowage below a, dam was- held injuries to health to be included within the protection of the statute., in the finding ; but that where But injuries to personal property a person's lands are not flowed, upon the lands flowed, e.g., peat, dry the remedy is by common-law action, or curing upon a meadow, are not And see Bridges v. Purcell, 1 Ired. grounds for recovery under the stat- 232, establishing the first part of the ute. And injuries to manure placed rule. upon land cannot be made an item of 2 Eooker u. Perkins, 14 "Wis. 70 ; damages, apart from the reality. For Eames w. New England Worsted Co., such injuries the remedy is at com- 11 Met. 570. In Palmer Co. u. Per- mon law. Gile u. Stevens, 13 Gray, rill, 17 Pick. 58, m, Shaw, C. J., says : 146. "The rule, therefore, which seems to ^ Ellis v. Harris, 32 Gratt. 684. be derived from the statutes con- * Kepley v. Taylor, 1 Blackf. 152. strued together, seems to be to esti- See Bell v. Elliot, 5 Blackf. 113. mate the pecuniary loss arising to the ^ See ante, §§ 243-250. 770 THE LAW OP WATERS. [part II. the case.^ Where certain Acts authorized the defendant to enter upon a river-bed and alter it for the purpose of improv- ing its channel-, and provided a special remedy for injuries caused in carrying the Acts into effect, it was held that this remedy did not extend to injuries caused by the defendant in floating timber over the plaintiff's dam, and that the ac- tion on the case would lie.^ 1 In Wabash v. Erie Canal Co., 16 Ind. 441, it was held that the flowing of lands by a canal company by statutory authority was not a taking within the statutory provision, and that an action at law could be main- tained for such flowage. In Snowden V. Wilas, 19 Ind. 10, the same question is raised as a new question, but not decided. The action on the case will lie for such injuries. Locks & Canals V. Nashua Railroad Co., 10 Cush. 385, 388 ; Estabrooks v. Peterborough Rail- road Co., 12 Cush. 224 ; Trenton Water Power Co. v. Raff, 7 Vroom, 335; Hooker v. New Haven Co., 14 Conn. 146 ; s. c. explained, 15 Conn. 312 ; Burroughs v. Housatonie Railroad Co., 15 Conn. 124, 132. See Grand Rapids Booming Co. v. Jarvis, 30 Mich. 321 ; Pumpelly v. Green Bay Co., 13 Wall. 166 ; Nevins v. Peoria, 41 111. 502, 510. An injunction may also be had against such injuries, unless compensation is made. Pettigrew c. Evansville, 25 Wis. 223. That any such injury con- stitutes a taking, see Eaton v. Boston Railroad Co., 51 N. H. 504; and see ' Cooley Const. Lim. (5th ed.), 570. But see Bellinger v. New York Cen- tral Railroad Co., 23 N. Y. 42 ; Monon- jgahela Navigation Co. u. Coons, 6 Watts & S. 101 ; West Branch & Sus- ■ quehanna Canal Co. v. MuUiner, 68 Penn. St. 357 ; Selden v. Delaware ■Canal Co., 29 N. Y. 634; Losee v. Buchanan, 51 N. Y. 476; Moyer v. New York Central Railroad Co., 88 N. Y. 361 ; Illinois Central Railroad . Co. u. Bethel, 11 Brad. (111.) 17. 2 Coe V. Hall, 41 Vt. 325. The case of Denslow v. New Haven & Northampton Co., 16 Conn. 98, must, it seems, be referred to the principle of injuries unprovided for, if supported at all. There the de- fendants erected a dam under the authority of their charter, and with the approval of the commissioners appointed under it. The dam caused injury to a mill-site above belonging to A. The commissioners were never called on to assess damages on this account. A. afterwards sold his mill- site to B. It was held that the com- missioners could not take cognizance of subsequent injuries arising from time to time, and that B. could main- tain an action on the case for the injuries. The court held that " where no steps are taken to present the case before them in the proper manner, the parties are left in the same situation as if no such authority was given, and, of course, that the defendants must be responsible as at common law." This is too broad. A mere failure by the injured party to bring his injuries before the commis- sioners, in the method provided, would not entitle him to an action at law. Such a rule would abrogate the doc- trine of res adjudicata, and would in effect give the plaintiff an election of remedies. The case approves the rule in Crittenden v. Wilson, 5 Cowen, 165, which gives such an election, and must be considered so far wrong. CHAP. XIV.] STATUTORY REMEDIES. 771 § 589. For injuries caused by ^egligence or by abuse of the powers delegated by statute to persons or companies, for the public good, the common-law remedies will lie. Such acts are not authorized, and are not within the scope of the statutory remedies.^ A mill-owner maintaining a dam under the statute is liable at common law for letting out water in unreasonable quantities, and wrongfully overflowing the lands and damaging the property below.^ So where the de- fendant maintained a dam under the Mill Act, but wrongfully withheld water from the plaintiff by closing his gates at night, the plaintiff's remedy was held to be at common law.^ In Schuylkill Navigation Co. v. McDonough, which was an an action on the case by McDonough against the company, for injuries caused by suffering a dam and pond to become ^ Estabrooks v. Peterborough Rail- road Co., 12 Cush. 224 ; Gile v. Stpvens, 13 Gray, 146 ; Thompson n. Moore, 2 Allen, 350; Rich v. Keshena Im- provement Co., 56 Wis. 287; Steele V. Western Nav. Co., 2 Johns. 283; West Branch & Susquehanna Canal Co. V. MuUiner, 68 Penn. St. 357; Fehr v. Schuylkill Navigation Co., 69 Penn. St. 161. Negligence or wan- tonness by a public officer, acting under a statute providing a special remedy, will not be ground for an action at common law. The ground for this exception is that the discre- tion of public oflScers is not con- trollable. But in such case the special remedy lies. Benjamin v. Wheeler, 8 Gray, 409; 15 Gray, 486. 2 Clapp v. Herrick, 129 Mass. 292. ' Thompson v. Moore, 2 Allen, 350. In this case, Bigelow, C. J., after allud- ing to the broad terms of the Act ("overflowed or otherwise injured"), said: "But, looking at the original design and intent of the legislature in enacting laws for the support and regulation of mills, and taking into view the successive Acts which have been passed in pari materia, it is clear that the remedy thereby provided is intended to be confined solely to cases where land is overflowed by raising a head of water, and to the incidental and consequential damages which neces- sarily and naturally arise tlierefrom. This is settled by a series of adjudi- cated cases. For all other injuries the remedy at common law still rera/iins, and the party sustaining damage can maintain an appropriate action to recover it. Hill u. Sayles, 12 Met. 142; Andover v. Sutton, lb. 182; Eames v. N. E. Worsted Co., 11 Met. 571 ; Murdock . 401, N. 2. See Peter v. Caswell, 38 Ohio St. 518. p. 418, N. 5. Water, when severed from land, and artificially stored, is private property and the subject of larceny at common law. Ferens V. O'Brien, 11 Q. B. D. 21. p. 531, with § 324, as to oral license to flow land. See 28 Alb. L. J. 144, 165; Johnson v. Skillman, 29, Minn. 144. p. 550, N. 5. A statute which forbids the discharge of polluting matter into any stream used as a source of water supply by any city or town, prevents the acquisition of a prescriptive right to foul a stream as against the city or town so using the stream. Brookline v. Mackin- tosh, 133 Mass. 215. p. 564, N. 5. See Watson v. Trougton, 48 L. T. n. s. 508. p. 581, N. 2. Add 16 Vin. Abr. 509, pi. 10. p. 582, N. 3. After Marsh v. Trullinger, 6 Oregon, 356, add. See Blood V. Light, 31 Cal. 115. p. 602, N. 4. (ad Jinem.') An agent maintaining a dam for his principal, and not himself having possession or control, is not chargeable for injuries caused by such continuance of the dam. Brown Paper Co. V. Dean, 123 Mass. 267. But on an indictment for maintaining a, nuisance, such agency is no defence. State v. Bell, 5 Porter, 365. p. 620, N. 2. {ad jinem.) See Thornton v. Turner, 11 Minn. 336. p. 627, N. 2. See contra, that all damages are included in depreciation of value. C. R. I. & P. Raikoad Co. v. Carey, 90 111. 514. p. 632, N. 1. (ad Jinem.') That such cost should be considered, instead of permanent depreciation of value, see C. R. I. & P. Railroad v. Carey, 90 111. 514. p. 660, N. 1. See Brugger ;;. Butler, 6 Oregon, 459. p. 666, N. 3. See Mullett v. Bemis, 100 Mass. 92. p. 683, N. 2. (ad finem.) Injuries to the plaintiff by his own dam can- not be shown in bar or mitigation. The doctrine of contributory negligence does not apply. Clarke v. French, 122 Mass. 419 ; Brown V. Dean, 123 Mass. 254. So the plaintiff is entitled to free navigation though he himself obstructs the stream. Svich obstruction cannot be shown in bar. Olsen v. Merrill, 42 Wis. 203. APPENDIX. 819 p. 698, N. 1. (adjinem.) Add Norris v. Hill, 1 Mich. 202. p. 714, N. 1. . That the statute of limitations on actions for damages does not extend to actions to enjoin or abate, see Cook v. Kendall, VA Minn. 324; Thornton v. Webb, 13 Minn. 498. p. 720, N. 1. That allegations must show injuries of such rights, see Norris v. Hill, 1 Mich. 202. p. 760, 1st column of notes, after " proposition." Add, And see Trustees V. Tuttle, 30 Ohio St. 62 ; Venard v. Cross, 8 Kansas, 248. p. 763, 1st column of notes, 4th line from bottom. With Bryan v. Burnett, see Dixon v. Eaton, 68 Maine, 542. p. 770, N. 2. (ad finem.) So for injuries caused by dams erected to create artificial floods and float logs to market, the remedy is in case. Dubois V. Glaub, 52 Penn. St. 238. p. 771, N. 8. (adjinem.') So the remedy under the Act does not extend to trespasses. Henley v. Wilson, 77 N. C. 216. p. 772, N. 2. (ad finem.) See Tiarney v. Smith, 86 lU. 391. A reservar tion in the Act of power of abatement does not exclude equitable jurisdiction therefor. State v. Bell, 5 Porter, 365. p. 775, s.l. Add Hooker v. Greene, 50 Wis. 271. But an amendment to the general Act amends such special Act. Id. p. 784, N. 2. An assessment may be had by certiorari, if omitted from the proceedings. Phillips v. Commissioners, 122 Mass. 258. p. 794, ST. 2. (ad finem.) So on petition to abate water, there is no right to jury trial. But the court may take advisory verdict or report. Cocheco V. Strafford, 51 N. H. 455. p. 385, 9th line. Omit " and Wisconsin." IK'DEX. The references are to the sections. ABANDONMENT. See Appropriation; License. of vessel, effect of, on owner's liability, 98. of rights in artificial watercourses, 213, 238, 239. of prescriptive right, 348-351. of water, by discharge into natural stream, 238, 375. of rights acquired by appropriation, 234, 238, 239. burden of proof to establish, 239. of mill, owner liable at law to those injured by maintaining dam, 584. ABATEMENT, of public nuisance, 121, 128, 364, 365. damages to compel, 210, note, 415, note. by private persons, when, 363-365. does not preclude recovery of damages for prior injuries, 128, note, 364. is justifiable only against wrong-doer, 364. must be made in least injurious manner, 364, 365. and without breach of the peace, 128, 363. materials of the structure abated cannot be wantonly destroyed or converted, 87, 128, 365. may be made, although greater injury is done than the removal of the structure, 365. right to enter upon another's land for the purpose of clearing a. natural or artificial stream, 366, 367. threatened, may be restrained by injunction, 128, note, 549. right of, may be taken away by special enactments, 579. command to abate, 553, 555-557. ACCESS, private right of, defined, 123, 124, 128, 148-154. no public right of, to and from navigable waters, over private lands, 26, 104. compensation for cutting off, to navigable waters, 122, 149-154.. private suit at law or in equity to protect, 123-128, 547. relates to front of lot, not sides of dock, 153, 154. right of, not lost by accretions, 155. 822 INDEX. ACCRETIONS, what are, 155-159. includes seaweed washed ashore, 25, 155. upon tide waters, 155-158. upon fresh navigable waters, 76, 77, 85, 155-159. title to, 155-158. effect of gradual and sudden changes in river channel upon boundar ries, private and national, 159. how apportioned between different proprietors, 162-165. title to, under grants, 200, 304 a. ACQUIESCENCE, what precludes an action, 212. granting an injunction, 527, 530-533, 554. effect of, in equity, 213, note, 323. to change of river-bed, 159. silence, when it amounts to, 146, 245, note, prescriptive rights, in acquisition of, 332, 532. in loss of, 348-351. on the part of the public, effect of, 533. ACT OF GOD, when a defence for injury to another's land, 232 and note, 248, 297, 298. ACTION. See Case, Action upon the ; Damages ; Equity ; Evidence; Pleading; Remedies at Law. private, when maintainable against public nuisance, 121-128. by navigators for delay, 125, 126. by those entitled to tolls, 126. for unlawful flowage, 210-212, 371, 372, 386. when successive actions lie, 210. not maintainable for backing upon dam wrongfully erected in part upon defendant's land, 211 J. for diversion, 213-217, 374. for obstruction, 218, 373. for pollution, 219-223, 375. what injury necessary to support, 208, 214, 401-410, 420. survival of, 400. in cases of joint and several torts, 621, note. ADMIRALTY. 5'ee Colonies ; Navigation. jurisdiction upon the sea, 8, 9, notes. over the shore, 4. in rivers and lakes, 4, 66, 67. ■ effect of cession of jurisdiction over, to Congress by the States, 33. what this includes, 33. decisions in, as to property in fresh navigable waters, 66. jurisdiction over canals, 33, note. INDEX. 823 AD QUOD DAMNUM, writ of, when used, 21 and note, 43, 609, note, 616. ADRIFT, when property is, 25, note. ALABAMA, law as to rivers, 74. Mill Act of, 611, 614. ADVERSE POSSESSION. See Prescription. ALLUVION". See Accretions. AMENDMENT, action brought, cannot be changed by, into proceeding under Mill Act, 582, 616, note. ANCHORAGE. See Mooring. a right incidental to navigation, 20. grant of, may convey shore, 28. APPROPRIATION, the sea incapable of, 1. products of the sea belong to the first occupant, 1. seaweed, when capable of, 25. territorial waters may be appropriated, 2, 3. of seaweed, 25. of uninhabited lands, 30. no superior right, at common law, acquired by,- in watercourses, 226, 227, 830. the rule in Massachusetts, 227. in the Pacific States and Territories, prior occupation gives prior right, 228-240. rights of the first appropriator, 228-231, 233. when protected by injunction, 543. rights of subsequent locators, 231, 565. how the appropriation is perfected, 235, 236. what notice necessary, 235, 236. this priority not dependent upon title to the soil, 230. liability for injuries from artificial ditches, 232, 233. purpose of, how far material, 233. right thus, acquired, how sold and transferred, 234. appropriated water is personal property, 236. change of use, 237. rights of riparian proprietors, 240. abandonment, what amounts to, and effect of, 234, 238, 239. property in tailings, 239. rights of the United States, 240. rights of way under the Act of Congress of July 26, 1866, 240. effect of this statute, 240. 824 INDEX. APPURTENANCES. See Grants. flats pass not as, but as parcel, 37. ARBITRATION, effect of statutory remedies upon, 590. ARKANSAS, Mill Act of, 623. ARMS OF THE SEA, what are, 4, 5, 19, 42, 62, note. property of sovereign in, 4, 5. jurisdiction over, 4, 5. "what are within counties, 4, 5. ownership of, does not justify imposition of tolls, 141. ARTIFICIAL WATERCOURSES. See Canals ; Eminent Domain ; Surface Water. ejffieet of acquiescence in change of a river channel, 159. title .ad yiZum aquae, 196. water of, when abandoned by discharge into a natural stream, 213, 238, 239. rights as to the flow of water in, 161, 225. right to enter for purpose of cleansing, 366, 367. negligence in maintaining, 232. prescriptive rights in, 225, 340, 352. surface water cannot lawfully be collected in, and discharged ou neighbor, 271, 274, 279. injunction to prevent obstruction of, 535, 536. abandonment of rights in, 213, 234, 238, 239. ASSIGNEE, of covenants that run with the land, rights of, 301, 302, 447. specific performance by, 574, 576. ASSIZE OF NUISANCE. See Remedies at Latv. ASSUMPSIT, ' when it lies, 469, 470. under Mill Acts, 582. ATMOSPHERE. See Health. corrupting, remedies for, 212, 541. BACKWATER. See Flow of the Stream. BALLAST, whether the public may take sand and gravel for, from private beaches, 24 and notes. BANKS OF RIVERS. See Embanking; Eminent Domain; Navi- gation; Riparian Rights. defined, 41, 45. distinguished from shore, 28, 41, 148, note. INDEX. 825 BANKS OP VilVERS— Continued. no common-law right to use, as incident to navigation or fishing (contra, by the civil law), 99, 100, 108, 247. nor for towage, 101. right to enter upon to reclaim stranded property, 102. boom companies have no right to use or flow without compensar tion, 103. artificial banks, levees, etc., 138, 157. are not " dams," 305, note. BATHING, no common-law right to enter upon the beach of another therefor, 26, 104. BAYS. See Arms of the Sea. BEACH. See Shore. synonymous with " shore," 28, 29. BED. See Rivers. of rivers, defined, 41, 42, 45. property in, 4, 19, 41, 46-78. of the sea, property in, 1-16. BILLS OF PEACE, to prevent multiplicity of suits, 562-568. by plaintiff at law, 562-566. by defendant at law, 567, 568. BOOMS. See Navigation; Riparian Rights. authority to maintain, not a defence to action for flowage or for trespass, 103, 132, 243. BOUNDARIES. See Grants ; Lakes ; National and State Boun- daries ; Riparian Rights ; Rivers ; Shore. of counties, whether identical with those of the nation or State, 13. of towns and parishes, not presumed to be the same as those of counties, 14. burden of proof lies upon individuals who claim the soil beyond the high-water mark of navigable waters, 27, 195. effect upon, of change in channel, 159. rules for apportioning alluvion, 162-165. presumably, side lines extend to the water, 194. direction of side lines, 194. of exterior lines, 194. control courses and distances, 194, 200. effect of plan upon description, 194. presumption that grant carries as far as grantor owns, 195. upon tide waters, 27, 195. upon fresh navigable waters, 196, 198. upon unnavigable and artificial waters, 46, 61, 65, 78, 196. 826 INDEX. BOUNDARIES — Continued. upon lakes and ponds, 79-85, 198, 203. what terms limit title to the bank, 197-200. if terms doubtful, how fixed, 23, 318, 318 a. BRIDGES. See Musticipal Corpoeations ; Navigation ; Nuisaxce. washed on others' lands in consequence of negligent construction, owner's liability, 90, 98. right of passage over, inferior to public right of navigation, 88. duty to repair, 115, 116 and notes. Eow authorized, 129-137. by implication, 134, note, 137. when indictable, 134. statutes authorizing, how construed, 134, 135. toll-bridges, exclusive rights, 118, 186, 144-146. BURDEN OF PROOF, upon plaintiff to show that a structure near the shore obstructs navi- gation, 122, note, to show private title below tidal high-water mark, 27, 195. to establish a several right of fishery, 183, note, as to abandonment, 239. to establish prescriptive rights, 341. CALIFORNIA, territorial limits of, seaward, 16, note. rights in flats, 174. law as to surface water, 266. CANALS. See Aktipicial Watercourses. admiralty has jurisdiction over, when, 33. right to ice in, 191. opening sluices and flooding mines, 211 c. as a boundary, 196, 213. acts authorizing, genejally exclude common-law remedies, 582. injunction against obstructing navigation in, 547. CASE, ACTION UPON THE. See Remedies at Law; Trespass. the remedy for flowing another's land by a dam, 210. for pollution, 219-223, 375. for detention, 218, 373. for diversion, 213-215, 374. for incidental or negligent injuries, 588, 589. evidence in support of declaration in, 211 b. CHANCERY. See Equity. CHANGE OF USE. See Prescription. CHANNEL. See Filum Aquae. INDEX. 827 CIVIL LAW. See Louisiana ; Sueface Water. under the, rights in the sea and its shores, 3, 30, 168, note. rights in rivers and to use banks of rivers, 47, note, 73, 99 227, note, rights as to surface water, 266, 268, 273, 276. levees, 157, 247. ' implied grants, 361. CLEANSING STREAM. See Repairs. liability by prescription, 161. as consideration for toll, 141. COAST, meaning of, 28. COLLISION, responsibility for, 89, note, 96. jurisdiction over, when injury results on land, 33. COLONIES, American, rights of, in tide waters, 30-32. admiralty jurisdiction of, 9, note. COMMERCE. See Navigation. COMMISSIONERS OF SEWERS, powers of, 91. duties of, by whom now performed, 91. COMMON CARRIER, whether ferryman is, 193, note. owner of toll-bridge is not, 115, note. COMMON FISHERY. See Fishery. COMMON LAW, how far applicable in this country as to tide waters, 18, 30. as to the/us privatum, 18, 20, 32. as to rivers, 41-78. as to lakes and natural ponds, 79-85. ancient jurisdiction of courts of, over territorial waters, 8, 9, note. COMMON-LAW REMEDIES. See Remedies at Law. effect of statutory remedies upon, 579-591. COMPENSATION. See Damages; Eminent Domain; Mill Acts. to be made in money, not benefits, 210, 497. COMPLAINT. See Pleading ; Remedies at Law. under Mill Acts, 595-600. CONDEMNATION. See Eminent Domain. CONDITION. See Mill Acts; Statutory Remedies. CONDUITS. See Artificial Watercourses; Prescription; Sev- erance OF Tenements. 828 INDEX. CONGRESS. See Navigation; State; United States. CONNECTICUT, title to flats in, 170. Mill Act of, 606. CONSERVATORS OF RIVERS, duties of, 81, 115. liability of, 115, 116. CONSTITUTIONAL LAW. 5ee Eminent Domain; Fishery; Leg- islature; Navigation. validity of Mill Acts, 253, 607, 618. CONSTRUCTION. See Grants; Statutes. CONTINUING INJURY. See Damages; Injunctions; Remedies at Law. successive actions for, 210. damages, 210, 259. CONTRACT. See Covenants; Grants; License; Specific Per- formance ; Statutory Remedies. CONVEYANCE. See Grants; Parol License. CORNWALL, property in mines on the searcoast of, 10. CORPORATION. See Eminent Domain; Legislature. charters, when alterable by legislature, 136, 144, 145. when not, 146. for improving navigation, rights and liability of, 115-118, 141-147. not a riparian owner, 224. liability under Mill Acts, 597. CORRUPTION. See Pollution. COUNTY. See Boundaries. what tide waters are within, 4, 5. power of legislature over, and its boundaries, 13 and notes, seaward limits of, at common law, 4, 36, note, under statutes, 13, 16, note. COVENANTS. See Easement; Grants; Remedies at Law; Re- pairs ; Specific Performance. when personal, 300, 301. what run with the land, 161, note, 301, 302, 447. specific performance, 576. of warranty, seisin, and against incumbrances, 303. breaches of, 303, 327, 451-469. taking by eminent domain, when a breach of, 456, 457. CREEKS. 5ee Arms of the Sea; Private Streams; Rivers. CRIMINAL LAW. See Indictment ; Jurisdiction ; Larceny. INDEX. 829 CROWN. See King. CUSTOM. See Evidence. in whale fisheries, 1. as showing title to the shore, 22. as interpreting ancient grants, 23. when not good, to take sand or shingle from another's estate, 24. or to fish in alieno solo, 85, note, 184. of miners in the West, 240. DAMAGES. See Eminent Domain; Injunction; Mill Acts; Statutory Remedies. as between riparian owners for unreasonable use of the stream, actual damage necessary, 206, 208, 401-424. opinion of witness as to, not admissible, 210, note, 495. for flowage, 210-212. speculative, not allowed, 212, note, profits of mill, 211 6. for breach of covenants, 303, 327. what injury necessary to support action, 208, 214, 221, 401^10. nominal, when recoverable, 211 c, note, 214, 621, note, for nuisance, 411-424. to what time computed, 411. where damage is the gravamen of the action, 412-414. exemplary, in case of permanent injuries after judgment for plaintiff, 415-420. permanent injury not presumed, 420. where, upon a single trespass, the act being wrongful, the dam- ages are merely consequential, 421, 422. in case of continuing trespasses, 210, 211, 423, 424. excessive, when set aside, 495. compensation under statutory proceedings, 244, 582, 615, note. under the Massachusetts system of Mill Acts, 353, 603. under the Virginia system, 603, 611. DAMS. See Flow of the Stream ; Mill Acts ; Prescription ; Statutory Remedies. how authorized, in navigable waters, 33-36. ' by Congress, 33-35, 130-132. by a State, 32, 34, 35. in unnavigable streams, 110 and note, property in ice forming in mill-pond, 191. DECLARATION. See Pleading. DEDICATION, of river bank for landing, 105. of stream as a highway, 109, 111, 143, note. DEED. See Grants; License. 830 INDEX. DE JURE MARIS, author of, 17, 18. authority of, 17, 18, 49 and note. DELAWAEE, Mill Act of, 623. DERELICT GOODS. See Weeck. property in, under the civil law, 3. DETENTION. See Case, Action of the ; Flow of the Stream ; Injunction. of flowing water, when lawful, 218. DISABILITY, effect of, on acquisition of prescriptive right, 331. DISCOVERY, rights acquired by, in the sea and uninhabited lands, 1, 25, 80. DISSEISIN. See Prescription. of flats, how proved, 37, 169. of riparian estates, 148, 155, note, 166, 333. DISTRESS, right of, incident to all tolls, 147. DITCHES. See Appropriation; Artificial Watercourses; Emi- nent Domain. DIVERSION. See Flow of the Stream ; Injunction ; Irrigation. actual damage, whether necessary to support action for, 208, 214, 401-411. to what extent lawful, 213-217. remedies at law for, 213, 215, 369, 373, 374, 383. of appropriated water, 236, 543. injunction against, 213, 215, 510, 534, 536. of public stream, does not open the land reclaimed to entry and sale by warrant and survey, 36, note. DOCKS. See Wharves. DOMESTIC PURPOSES, what are, 205. DOWER, in accretions, 156. in flats, 169. in fishery, 185. no right of, in use of surplus water of a canal, 241, note. DRAINAGE. See Surface AVatee. DRAINS. (See Artificial Watercourses; Eminent Domain; Pre- scription; Severance of Tenements. INDEX. 881 DRIFT-WOOD, property in, 192. DRIP. See Eaves-Drip. EASEMENT. See Covenants ; Grants ; Prescription ; Severance OP Tenements. defined, 299. grant of, distinguished from grant of the soil, 29, 458, note. devise or grant of " shore " does not create an, 29. no general presumption of, 55. right acquired by condemnation of land for a towing path is pre- sumably an easement, 101. in watercourses, how acquired, 299, 300. when a personal right, 300, 301. when implied, in grant, 306. extinguished by unity of possession, 313, 314. continuous easements not so extinguished, 314. EAVES-DRIP, liability for, when injuring another, 292, 293. prescriptive right to continuance of structure producing, 352. remedy for, in case, 373 and note. EJECTMENT, lies for soil reclaimed, 179, 471. for fishery, 185, 471, note, for land covered with water, 471. not for watercourse, 471. EMBANKING. See Levees. against the sea, 91, 160, 161. in fresh streams, 160, 161, 213. by prescription, 161. title by prescription to the land enclosed, 22. not required, for others' benefit, 160, 216. expense of, not recoverable, 248 a. against flowage under Mill Acts, 216, 603, note. EMINENT DOMAIN. See Ad Quod Damnum ; Booms ; Legisla- ture ; Mill Acts; State; Statutory Remedies. authority to construct and operate booms or ferries under, gives no right to use river banks without condemnation and compensa- tion, 103, 104. right in lands taken for towing path is presumably an easement, 101. power to condemn lands for public wharves and landing places, 103, 104. for ferry landing, 193. effect of exercise of, on covenants, 456, 457. can only be exercised for public purposes, 241. 832 INDEX. EMINENT DOM Am— Continued, public use, what is, 241, 242. what is not, 241. a horse ferry is not, 104, note, levees, 247. whether a use is public, when determined by the legislattu-e and when by the courts, 242. taking, what is, 242, 243, 245. what it includes, 256, 257, 588, note, by causing water to percolate into resei-voirs, 245. by diversion, flowage, and pollution, 245, 246. when property taken may be taken for a new use, 255. compensation in such cases, 255. compensation, to be made for direct injury by flooding, etc., 103, T-K. to be made in money, 210, 244. for cutting off access to navigable waters, 122. others' lands cannot be taken to make, 241. who to assess, 244. when to be paid, 244. how recovered, 250, 251. payment of, whether a condition precedent, 253, 611. what damages are included, 251, 252. for consequential injm-ies, 244, 248 a, 249, 588. liability of State agents for such injuries, 248. government not bound to complete appropriation, 244. taxation for improvements, 244. for levees, 247. benefits when considered, 210, 244, 247, 251. validity of Mill Acts, 253, 607, 618. public mills by statute, 254. duty to provide passage-ways for the water through roads and rail- road embankments, 255-260. prospective damages, when recoverable, 259. surface water, 260, 273. sewers and drains, 261, 262. EQUITABLE ESTOPPEL. 5ee Abaxdonmext ; Acquiescence; Lx- J UNCTION. EQUITABLE REMEDIES. See Bills op Peace; Equity; Ixjunc- tion; Specific Performance. when taken away by Mill Acts, 579, 580. when not, 583, 586. EQUITY. See Bills op Peace ; Injunction ; Specific Pekfokm- ANCE. when private suit lies against public iraisance, 121-128. , when riparian proprietors may join as plaintiffs in bill, 121. INDEX. 833 ^Q,mTY — Continued. jurisdiction in cases of nuisances and purprestures, 21, 168. joinder of different riparian proprietors to restrain unauthorized use of a watercourse, 205. venue and jurisdiction, 444, 530. ESTOPPEL. See Abandonment ; Acquiescence; Injunction. BVIDEJSrCE. See Damages. usage, defining ancient boundaries, 23. parol evidence, to determine ambiguous boundary, 194, 195, 318. of other similar torts, when admissible, 210, note. opinion of witness as to damages, 210, note, 495, 524. in actions for flowage, 209-212. proof necessary to support declaration, 481-487, 492. of other similar injuries not admissible, 160, note, 210, note, 493. when damages are to be shown, 486, 494. in mitigation of damages, 497. admissions and declarations, 498, 499. proof of the nature of the injury must correspond with the allega^ tions, 499. proof of prescriptive right, 330, 490, 491, 500-503. of disseisin of flats, 37. EXCEPTION. See Grants. EXCLUSIVE FISHERY. See Fishery. EXECUTED LICENSE. See License. EXTINGUISHMENT. See Abandonment; Prescription. FALL OF THE STREAM. See Instrumental Levellings. riparian ovniers entitled to, 209. FERRIES. See Tolls. subject to control of the States, 35, 133. over boundary rivers, 35. must not obstruct navigation, 88. limits of, 103. right of landing, how acquired, 103, 1D4. suits for diverting travel from, 126, 145, 146, 193, note. effect of ordinance of 1787 upon, 133. exclusive rights, 136, 144-146, 193. charter rights of New York City, 175, note. preferences to riparian owners, 193. do not pass as " appurtenances," 142, note. effect of" requiring the keeping of a ferry-boat, in grant of leave to erect a dam, 609, note, liability of keeper, 193, note, grants of, and prescriptive rights to, 193, note, 321. 834 INDEX. FERRIES — Continued. owner of, not entitled to compensation for injury from governmental improvement, 249. •when abolished by eminent domain, 255. FILUM AQUAE, what is, 166, 198. when change in, changes boundaries, 159, 166. the boundary in private fresh waters, 46, 50. except in the west where the bed of unnavigable streams belongs to the riparian owners in common, 78. whether so in watprs forming boundary between States or nations, 57, 58, 64, 202. in lakes and ponds, 79-85. FISHERY, PRIVATE AND EXCLUSIVE RIGHTS OF, kinds of, 183. in navigable waters, 21, 184-190. in non-tidal streams, 46, 51, 182. in ponds and small lakes, 79-85. raay be granted separate from the soil, 100. not acquired by clearing out a fishing place, 100, note, in tidal river which shifts its channel, 159. remedies for disturbance, 185, 548., traps and engines, 186. stopping passage of fish, 187, 206. under Mill Acts, 608-611. power of legislature to regulate, 187, 206, 253. of towns, 188. ownership of the soil is prima facie evidence of ownership of the fish, 499. pollution of stream, to injury of, actionable, 219, 544. legislature may prohibit such pollution, 189. FISHERY, PUBLIC RIGHT OF, apparently extends three miles seaward, 13. includes right to take shell fish and to rake the soil, 21. but not the privilege of taking shells, manure, or shingle, 24. whether the Crown may abridge by grant, 21, 22, 189. subject's several right in, by prescription, 22, 183, 189. in this country, subject to the exclusive control of the respective States, 32, 36, 38, 189. in navigable rivers, 42, 48, 184. in lakes, 79-85. distinct from the right of navigation, 54. gives no right to use shores or banks, 100. under the Massachusetts ordinance of 1647, 169. subordinate to the right of navigation, 180, 186. rsTDEX. 835 FLASH-BOARDS, height of, as determining extent of prescriptive right, 337. injunction to prevent abatement of, 549, note. flowage by means of, when actionable, 412, note, 537, note, 556. FLATS. See Boundaries ; Kipaeian Rights ; Shore. FLOATABLE STREAMS, no conmion right to use banks of, for propelling logs, 99-102, 108. what are, and how they may be used, 107-110, 121, 547, note, 584. FLOODS. See Freshets. FLORIDA, rights in flats, 177. MUl Act of, 623. FLOWING LAND. See Case, Action upon the ; Eminent Do- main ; Flow or ' the Stream ; Mill Acts ; Prescription ; Remedies at Law; Statutory Remedies. FLOW OF THE STREAM. See Appropriation; Mill Acts; Ri- parian Owners. * natural right of riparian owners to have it continue without mate- rial alteration, 204. this right annexed to the soil, and undivisible, 204, 215. and is a natural right, not depending upon user, or extinguished by non-user, 204, 207, 214, 227, 228. or unity of possession, 204, 313. rights of riparian owners to use the stream for ordinary purposes, 205, 207, 208. for domestic purposes, 205, 208. ordinary or extraordinary user defined, 205. common right in all the riparian proprietors to use and enjoy, 205. regulation of, in equity, 206, 540. reasonable use of, 208. improper use of, 208, 209. what interference with, actionable, 209, 401-410. whether raising the stream within its banks is rightful, 210, 615, note, 621, note. damages and effect of judgments, 209-212. backwater caused in part by natural causes, 211 c. dam flowing highway or impairing health, 212, 541, 544, 581. diversion, 213-217, 374, 534, 536. obstruction, 218, 373, 534-537. pollution, 219-223, 375, 544-546, 560. priority of occupation, effect of, 226-240, 543. FORCIBLE ENTRY AND DETAINER, does not lie for a fishery, 185. 836 INDEX, FORD, if rendered useless by a dam, right to is not destroyed, but suspended, 103, note, 143, note, injury to, by flowage, 211. effect of violating condition in Mill Act not to injure, 585. FOREIGNERS, on vessels, subject to law of the flag, 1. when.subject to the law of other nations, 1, 5, 11, 12. FORESHORE, meaning of, 27, note. FOULIIWJ. See Injunction ; PoLLunoN; Prescription. FRAUD. See Misrepresentations. FRAUDS, STATUTE OF, whether applicable to parol dedication of lands, 105. to parol lease of a fishery, 185, note, not applicable to parol consent to statute authorizing land to be taken with the owner's consent, 241. as to agreements relating to petroleum oil, 291. to eaves-drip, 292, 321. to water rights, 321, 322. parol license, 321-324. specific performance of, 578. letting dock, 116, note, 120, note. effect of part performance, 576, 578. FRESHETS, aiding to produce backwater, 211 c. ordinary, what are, 211 c. duty to construct dam so as to withstand, 298. FRONTAGERS, rights and liabilities of, as to defences against the sea, 160. GAS, pollution of water by, 219, 418, note. GEORGIA, property in rivers, 58. Mill Act of, 623. GRANTS. See Boundaries ; Covenants ; Easement ; Frauds, Stat- ute or; License; Prescription; Severance of Tenements. by Crown, must not impair public rights, 21, 167. by sovereign power, construed against a private grantee, 23, 29, 36. liberally construed, when made to colonies, 31. when exclusive of the river-bed, 64, note, if ancient, may be interpreted by usage, 23, 318, 318 a. by what terms in, the shore passes, 28, 29. INDEX. 837 GRANTS— Continued. by the Indians, effect of, 30, 36. by State, in soil of navigable waters, how construed, 36. of exclusive rights of fishery, 36. of flats, 169-179. of ferry franchise, 193, note. of ditches, in the Pacific States and Territories, 284. from the United States, eifect upon prior appropriations, 240. of watercourse, how construed, 30, 304 a. of water rights, how construed, 286, 804. of well or spring, how construed, 286, 291, note, 304 a, 321. of " mill," " mill-site," " dam," " liberty," " privilege," how construed, 305, 307, 309. meaning of "appurtenances," 177, note, 305, 306. easements by implication, 306. reservations and exceptions, 310-312. how construed, 310-312. of rights to use water, how construed, 317, 318. as measured by size of pipe, 317. as relating to quantity rather than manner of use, 318, 320. doubtful terms, interpreted by acts of parties, 318, 318 a. same, as to boundaries, 19. interpreted in the light of surrounding circumstances, 319. when they limit to a particular use, 320. presumably, use not limited, 320. do not preclude prescriptive rights to use for different purposes, 347. GRAVEL. See Sand. HARBOR. See Port. what is a, 4. legislature may protect, by prohibiting removal of sand from beaches, 24. HARBOR LINES, power of a State to establish, 138. effect of, as a grant, 138, 146, 165, note. HEALTH, injuries to, how remedied, 212. by action, 212. by indictment, 212, 581. by information. See App. p. 818. by injunction, 212, 537, note, 541, 544. imder Mill Acts, 581, 587, 609, 610, 621, note, when a public canal injuring, is a nuisance, 136. 838 INDEX. HEIGHT OF DAM. See Dams ; Prescription. how fixed under Mill Acts, 599, note, 609, note, 610, 619. increasing, when a new taking, 584, note, 599, note. HEIE, liability of, under Mill Acts, 621, note. for continuing a nuisance erected by ancestor, 387, note, adding their possessions to make up the period of prescription, 335. HIGH SEAS, begin at low-water mark on external coast, 4, note, 66. HIGH-WATER MARK. &e Shore. of shore, 27. of fresh waters, 41, 45, 203. HIGHWAYS. See Access. over navigable waters by land, what authority required for, 36, 139. what waters are, 43, 74, 86, 100, note. when founderous, right to pass over adjoining land, 55, 103, note, if extending to navigable waters, give right of landing, 103, 157. flowing by dam, an indictable offence, 212, 581, 584. under Mill Acts, 581, 584, 594, 606, note, laid out over land formerly flowed, have the prior right, 584. over streams, give no authority to quarry stone in river-bed, 46, note, 93 a. unlawful to encumber by deposits, 97, note, 105. ICE, right to travel upon, 111. property in, when not harvested, 191, 371, note. in mill pond, 191, 216. causing backwater, 211 c. falling from roofs, liability for, 293. ILLINOIS, law as to rivers, 69. as to surface water, 266. Mil] Act of, 611, 616, note. IMPLIED GRANT. See Grants; Prescription; Severance or Tenements. IMPROVING NAVIGATION. See Navigation; Tolls. under authority of Congress, 129, 147. of a State, 35, 133, 143. tolls in consideration of, 116, 141-147. act authorizing, takes away common-law remedies, 582, 588. by municipal corporation, 116-118. assessment therefor, 118. mDBX. 839 INCORPOREAL HEREDITAMENTS. See Easement; Pkescrip- TION. INDIANA, law as to rivers, 71. Mill Act of, 611, 616. INDIANS, grants by, 30, 36. commerce with, whether controlled by Congress, 34, note. right to appropriate water, 284, note. INDICTMENT, lies against a common nuisance in navigable waters, but not against a simple purpresture, 21, 121, 134. statute authorizing obstructions to navigation, a defence against, 132, 243. liability to, of public bodies for neglect of duty, 116. whether Mill Acts protect from, '581. for stealing shell-fish, 189. for flowing highway or impairing health, 212, 581, 584. for polluting a public spring, 219. venue and jurisdiction of, 432-435, 442, 443. INFANT, , disability of, effect on acquisition of prescriptive right, 331. INFORMATION, in case of public nuisance, 91, 121, and App. p. 818. to protect from purpresture, 21. INJUNCTION. See Acquiescence ; Equity. against encroachments in navigable waters, 21. upon bill by individual, suffering special damage from public nui- sance, 121-128, 547. to protect fishery, 185-189. to regulate use of water by different riparian owners, 205. in cases of flowage, 210, 510, 516, 548. to restrain flowage injuring health, 212, 541, 544. to restrain diversion, 213, 215, 534, 536, 585. to restrain diversion of appropriated water, 236, 543, 565. to compel restoration of diverted water, 553. to prevent injury to mines, 295, 548. may be granted, although the right has not been established at law, 506, 507. to prevent removal of sea defences, 24, note, 160. to prevent irreparable injury, 508-510. what is such injury, 508-510. when the legal remedy is inadequate, 511. where special proceedings are provided by statute, 511. 840 INDEX. INJUNCTION — Continued. insolvency, 511. not for past injury, 512. against injuries present and continuing, or threatened, 512-517, 551. to prevent continued adverse claim by defendant, accompanied by acts in furtherance thereof, 518, 519. necessary allegations in the bill, 521-523, 550. jurisdiction, if not general, must be shown in bill, 550. preliminary injunction, when granted, 524-527. how dissolved, 551. perpetual, when granted, 525, 528, 529. efiect of laches and acquiescence, 348-351, 527, 530-532, 554. on the part of the public, 533. the means by which the defendant is to comply with the order not considered by the court, 529, 558-561. to prevent diversion, detention, or obstruction of watercourses, 534- 537, 553. obstruction of artificial watercourses, 535, 536. diversion of springs and subterranean streams, 536, 542. to regulate rights under contracts and grants, 538, 539. common rights in water, 540. to prevent injury to health from stagnant water, 541. against pollution of wells, 542. of streams, 220-223, 510, 544^546, 560. by public 'bodies, 223, 545, 546. of surface water, 278, 546. to prevent other injuries to, or by means of waters, 548. to enjoin a threatened abatement of works as a nuisance, 549. venue and jurisdiction, 444, 550. prohibitory and mandatory injunctions, 552-555. form of, 552-554, 557-561. damages, account of past, as incidental to the relief, 228, 561, 562. in lieu of injunction, 223, 561. when decreed to defendant, 561. to prevent multiplicity of suits, 520, 540, 562. by bills of peace, 562-568. by plaintiff at law, 562-566. by defendant at law, 567, 568. INSTRUMENTAL LEVELLINGS, to determine fall of stream, 209, 344, note. INTENTION. See Malice. of abatement, when material, 128. INTERNATIONAL LAW. See Jurisdiction. sailing rules established by, 1. a nation's rights in adjacent seas by, 2, 5, 8, 9, 11-14. national boundaries under, 58, 02, 64 and note, 202. INDEX. 841 IOWA, law as to rivers, 72. Mill Act of, 611, 617. IRKIGATION. See Diversion. not a natural want, 205, 217. diversion for purposes of, 205, 216. to what extent, 217. ISLANDS, defined, 166 and note. in navigable waters, belong to sovereign, 8, 42, 166. in arms of the sea, may, with the mainland, form opposite shores, making the surrounding waters within county, 5. in unnavigable streams, belong to riparian owners, 46, 166. title to, in fresh navigable rivers of Pennsylvania, 65. under the public surveys, 60, 69, 72, 77. as between the State and United States, 166, note, soil of, when washed away and restored, 158. near shore, whether distinct from alluvion, a question of fact, IT; 166. how apportioned between opposite riparian owners, 166. grant of, whether implying title to bed of fresh rivers, 196. when to be paid for, upon sale of riparian estate, 194. taken by eminent domain, value of for boom purposes to be con- sidered, 251. JOINT AND SEVERAL TORTS, liability for, 222, 396-398, 565, 566. JOINT TENANTS. See Tenants in Common. JUDGMENT, when a bar to future actions, 210, 386. when not, 210-212. former judgment, recital of in declaration, 505. plea of, 504, 505. JUDICIAL NOTICE, of navigability, 112. of laws regulating fishing, 189. of rise and fall of waters in lakes, 203, note. JURISDICTION. See Admiralty; Equity; Navigation; Remedies AT Law; State. national, over the sea, 1. over territorial waters, 2, 3, 7-16. extends one league seaward, 2, 4, 5, 9, 13. over internal navigable waters, 4. over the shore, 4. over arms and inlets of the sea, 5. 842 INDEX. JURISDICTION— Con«mue