(Jortipll iGaui i>rlfiml IGibrart} 
 
„_ _,. S°' neU University Library 
 
 KF5569.G69 1900 
 
 A treatise on the law of waters :includi 
 
 3 1924 020 002 709 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020002709 
 
A TREATISE 
 
 ON THE 
 
 LAW OF WATEKS, 
 
 INCLUDING 
 
 RIPARIAN RIGHTS, 
 
 AND 
 
 PUBLIC AND PEIVATE EIGHTS IN" WATEKS 
 TIDAL AND INLAND. 
 
 THIRD EDITION". 
 
 JOHN M. e GOULD, Ph. D., 
 
 Joint author of " Gould and Tucker's Notes on the United States Revised 
 
 Statutes; " Editor of Last Editions of " Kent's Commentaries," 
 
 and 07 "daniell'b chancery practice," etc. 
 
 CHICAGO: 
 
 CALLAGHAN AND COMPANY 
 
 1900. 
 
Copyright, 1883, 
 
 BY 
 
 JOHN M. GOULD. 
 
 Copyright, 1891, 
 
 BY 
 
 JOHN M. GOULD. 
 
 Copyright, 1900, 
 
 by 
 
 JOHN M. GOULD. 
 
 Kf 
 SSU\ 
 
 I1GO 
 
 STATE JOURNAL PRINTING COMPANY, 
 
 Pbimtehs and Stereotyfers, 
 
 madison, wis. 
 
PREFACE. 
 
 f I ^HE number and importance of the recent decisions upon 
 the Law of Waters, as shown by the additions or changes 
 upon nearly every page of this work, as well as the favor with 
 which it has thus far been* received, appear to abundantly 
 justify a new edition after the lapse of nine years. Apart from 
 the vast number of minor decisions now added, it is probable 
 that no more important decisions upon questions of property 
 have ever been made than those of Shively v. Bowlby, 152 
 U. S. 1, as to the power of the general government to control 
 and dispose of tide lands in the Territories ; of Morris v. United 
 States, 174 TJ. S. 196, as to the Potomac Flats, and the various 
 cases, now first collected here in a new section, in which the 
 rights and liabilities of water companies are defined. About 
 three thousand authorities have been added in this edition; new 
 illustrations of the principles considered have been derived from 
 the Canadian and colonial reports as well as from those of the 
 United States and England, and all the more important articles 
 and monographic notes are cited. The original aim has been 
 pursued of making the book a contribution to systematic juris- 
 prudence, and in view of the local value of decisions, even upon 
 well-settled rules, the citation of decisions has been made as 
 exhaustive as possible. 
 Boston, 
 September 1, 1900. 
 
PREFACE TO FIRST EDITION. 
 
 rpHE present work was begun about three years since, at 
 the suggestion of the publishers, with the intention of 
 stating the law upon Eiparian Eights, 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 pre- 
 vailed 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 principles conduc- 
 ing to harmony; and the aim has been to present exhaust- 
 ively and concisely all the authorities, ancient and modern, 
 which have been collected by a thorough examination of atl 
 the original reports and abridgments. 
 
 On account of the difficulty and complexity arising upon 
 questions of substantive law, and the delay incident to a 
 proper consideration of them, the author was led to entrust 
 to Merritt Starr, Esq., of the Chicago bar, the preparation of 
 
Vi PEEFACB TO FIEST EDITION. 
 
 that part of the work which relates to Private Kennedies 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 XIY., subject to verbal changes in order to secure uni- 
 formity of style throughout the work, and the division into 
 sections, which were made by the author. He is further in- 
 debted to "William Y. 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 hope is indulged, that the great labor expended in 
 collecting from original sources the numerous authorities 
 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. 
 
TABLE OF CONTENTS. 
 
 Paet I.— Public Waters. 
 CHAPTER L 
 
 PAGES. 
 
 Of Property m Tide Waters at Common Law 1-66 
 
 CHAPTER IL 
 Of Property m Tide Waters 1 in this Country 67-96 
 
 CHAPTER IIL 
 Rivers and Lakes 97-164 
 
 CHAPTER IV. 
 The Public Right of Navigation 165-295 
 
 CHAPTER V. 
 Riparian Rights — Boundaries 296-392 
 
 Part II. — Private "Waters. 
 
 CHAPTER VL 
 
 Rights of Riparian Proprietors in the Natural Flow and 
 
 Condition of the Stream 393^447 
 
 CHAPTER VIL 
 Appropriation and Rights Acquired by Priority .... 448-476 
 
 CHAPTER VIIL 
 Eminent Domain 477-534 
 
Vlll TABLE OF CONTENTS. 
 
 % 
 
 CHAPTER IX 
 
 PASES. 
 
 Surface and Subterranean Waters — Mines 535-579 
 
 CHAPTER X. 
 Contracts and Covenants 580-625 
 
 CHAPTER XL 
 Prescription — Severance op Tenements 626-666 
 
 CHAPTER XII. 
 Remedies at Law 667-775 
 
 CHAPTER XIII. 
 Equitable Remedies 776-841 
 
 CHAPTER XIV. 
 Statutory Remedies and Effect Thereof 842-907 
 
TABLE OF CASES CITED. 
 
 [The references are to the sections.] 
 
 A. 
 
 Abbe de Stratforde's Case, 396, 428, 
 
 430. 
 Abbot of Strada Marcella's Case, 6, 
 
 184 
 Abbot v. Kennedy, 40. 
 Abbott v. Baltimore Steam Packet 
 Co., 143. 
 v. Cottage City, 105, 260. 
 v. Kansas City E. Co., 273. 
 v. Mills, 122, 123. 
 v. Upham, 597. 
 Abby, The, 4. 
 Abel v. Love, 231. 
 Abelson v. Brockman, 96. 
 Abendroth v. Greenwich, 132. 
 Aberdeen v. Menzies, 160. 
 Aberdeen Arctic Co. v. Sutter, 1. 
 Aborn v. Dubuque Mining Co., 143. 
 
 v. Smith, 138, 164, 165, 171. 
 Abraham v. Great Northern Ey. Co., 
 41, 42, 93, 135. 
 v. Oregon & C. E. Co., 230. 
 Abrams v. Hempstead Auditors, 185. 
 A C. Conn Co. v. Little Suamico 
 
 Lumber Co., 110, 127, 211. 
 Acker v. Newcastle, 270. 
 Ackerman v. 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. 
 Acton Local Board v. Batten, 41. 
 Ada County Farmers' Ir. Co. v. Farm- 
 ers' Canal Co., 234, 238. 
 Adams v. Barney, 46, 160, 204, 206, 
 214, 364, 365. 
 v. Barnes, 504. 
 
 v. Boston Wharf Co., 162, 164. 
 v. Conover, 305, 459. 
 v. Durham & N. E Co., 256. 
 v. Farmer, 175. 
 v. Frothingham, 155, 195. 
 v. Harrison, 266. 
 v. Hastings E Co., 273. 
 
 Adams v. Manning, 225, 540, 550, 606. 
 
 v. Miller, 617. 
 
 v. Patrick, 574 
 
 v. Pearson, 600. 
 
 v. Pease, 4 46, 54, 56, 112, 182, 185. 
 
 v. Popham, 121, 212, 541. 
 
 v. Eivers, 105. 
 
 v. Eogers, 304a. 
 
 v. St. Louis, 76, 77, 166. 
 
 v. Slater, 213, 243, 375. 
 
 v. Stadler, 211a. 
 
 v. Ulmer, 110, 202. 
 
 v. Walker, 267. 
 
 v. Warner, 320. 
 
 v. Wiggins Ferry Co., 96. 
 Addison v. Hack, 323, 496, 497. 
 
 v. Eowe, 256. 
 Ad Hine v. Trevor, 67. 
 Addy v. Janesville, 272. 
 Adele, The, 9. 
 Admiralty, The, 4, 5. 
 Adsit v. Brady, 115. 
 Mtna. Mills v. Brookline, 245, 281. 
 
 v. Waltham, 245. 
 Agamemnon, The, 96. 
 Agar v. Eegent's Canal Co., 507. 
 Agawam Canal Co. v. Edwards, 196, 
 
 204, 364 
 Agnew/y. Lord Advocate, 4, 23. 
 
 v. McDowell, 512. 
 Agua Pura Co. v. Las Vegas, 245a. 
 Ague v. Seitsinger, 310. 
 Aguirre v. Maxwell, 35. 
 Ah Chong, In re, 38. 
 Ahern v. Steele, 113, 392. 
 Ahrns v. Chartiers Valley Gas Co., 
 
 291. 
 Aiken v. Eager, 119. 
 Aikin v. Benedict, 373. 
 
 v. Mills, 599. 
 
 v. Western E Co., 145, 146, 193. 
 Aitcheson v. Endless Chain Dredge, 
 
 61. 
 Aitken v. Wells Eiver, 363. 
 Aiton v. Stephen, 141. 
 Aken v. Parfrey, 589, 600. 
 Akin v. Davis, 210, 512, 585, 620. 
 
 v. Marshall Oil Co., 302. 
 
 v. Mills, 586. 
 
CASES CITED. 
 
 Akling v, St. Louis & Tenn. R. P. Co., 
 
 67. 
 Alabama, The, 98. 
 Alabama v. Bell, 109. 
 
 v. Georgia, 45, 58, 202. 
 Alabama Gt So. E. Co. v. Shahan, 210, 
 
 273. 
 Alabama S. R. Nav. Co. v. Georgia 
 
 Pao. Ry. Co., 125, 134 
 Albany Bridge Case, 35. 
 Albany Street, In re, 242. 
 Albany v. Cunliff, 113, 115. 
 
 v. Sikes, 260, 272. 
 
 v. Trowbridge, 114, 120. 
 Albee v. Hayden. 307. 
 
 v. Huntley, 318. 
 Albernathy v. Dennis, 13. 
 Albert v. State, 113. ' 
 
 Albert Lea v. Da vies, 85. 
 Albertson v. Prewitt, 194. 
 Albina Ferry Co. v. The Imperial, 88. 
 Albright v. Cortright, 184. 
 
 v. Penn, 193. 
 Albuquerque Land & Ir. Co. v. Gui- 
 
 tierrez, 233. 
 Alcock v. Cook, 6, 192. 
 Alcorn v. Hamer, 138. 
 
 v. Sadler, 264, 271, 279, 335. 
 Alden v. Carleton, 540. 
 
 v. Minneapolis, 209, 270. 
 
 v. Pinney, 168. 177. 
 Alder v. Savill, 599. 
 
 v. Savin, 344. 
 Alder G. M. Co. v. Hayes, 231. 
 Alderman v. Hastings, 183. 
 Aldred's Case, 185, 219, 376, 378. 
 Aldrich v. Cheshire R. Co., 250, 252, 
 257, 582. 
 
 v. Tripp, 116. 
 
 v. The W. H. Beaman, 35. 
 
 v. Wetmore, 278. 
 
 v. Wright, 102. 
 Aldworth v. Lynn, 296. 
 Alexander, The, 5. 
 Alexander v. Beresf ord, 325. 
 
 v. Kerr, 210, 214, 303. 
 
 v. Milwaukee, 117, 143, 248, 257, 
 261. 
 
 v. Tolleston Club, 101. 
 
 v. United States, 243. 
 
 v. Winters, 218a. 
 
 v. Woodford S. L. Fish Co., 349. 
 Alexandria Ry. Co. v. Faunce, 103, 
 
 178, 179. 
 Alhambra Addition W. Co. v. May- 
 berry, 213. 
 
 v. Richardson, 231. 
 Aliso W. Co. v. Baker, 245a. 
 Allegheny v. Zimmerman, 121. 
 Allegheny City v. Campbell, 113. 
 
 v. Moorehead, 36, 65, 148. 
 
 v. Nelson, 65. 
 
 v. Reed, 65. 
 Allen v. Allen, 24. 
 
 Allen v. Bates, 318. 
 
 v. Boston, 223, 261, 262. 
 
 v. Buncombe Turnpike Co., 145. 
 
 v. Chippewa Falls, 258, 262, 270. 
 
 v. Donnelly, 21, 189. 
 
 v. Fiske, 323. 
 
 v. Holton, 37, 148. 
 
 v. Jay, 242. 
 
 v. Koepsel, 196. 
 
 v. McCorkle, 211. 
 
 v. McKay, 37. 
 
 v. Mansfield, 323. 
 
 v, Marion, 188. 
 
 v. Michel, 210. 
 
 v. Monmouth Co., 115, 121, 132, 
 134, 139, 140. 
 
 v. Munn, 148. 
 
 v. Newberry, 33, 67. 
 
 v. Pray, 114. 
 
 v. San Jose L. & W. Co., 319. 
 
 v. Scott, 312. 
 
 v. Smith, 116. 
 
 v. Taylor, 358. 
 
 v. Weber, 75, 111, 191, 199. 
 Allentown v. Kramer, 183, 260. 
 Allgood v. Gibson, 24. 
 Allianca, The. 120. 
 Allison v. Davidson, 109, 246. 
 Allnut v. Inglis. 119, 120. 
 Alloway v. Nashville, 252. 
 Almy v. Grinnel, 99, 100. 
 
 v. Harris, 193. 1 
 Alston v. Scales, 376, 479, 582. 
 Alston's Estate, In re, 22. 
 Alta Land & W. Co. v. Hancock, 228V 
 
 235, 238, 240, 334, 335. 
 Alton v. Hope, 272. 
 
 v. Illinois Transp. Co., 105. 
 Alton R. Co. v. Deitz, 256, 273. 
 Alves v. Henderson, 105. 
 Ambrose v. Buffalo, 548. 
 America, The, 35, 114, 120. 
 American Co. v. Bradford, 231, 238, 
 
 341. 
 American Dock Co. v. Public School 
 
 Trustees, 143, 171. 
 American Guano Co. v. United States 
 
 Guano Co., 1. 
 American Ins. Co. v. Canter, 40. 
 American River W. Co. v. Amsden, 
 
 109. 
 American Stave Co.i>. Butler County, 
 
 247. 
 American Union Tel. Co. v. Middle- 
 ton, 441. 
 American Well-works v. Rivers, 32L 
 Ames v. Cannon Manuf. Co., 211c, 
 368, 555, 620. 
 
 v. Dorset Marble Co., 222. 
 
 v. Port Huron Log Co., 241. 
 Amick v. Tharp, 261. 
 Amidon v. Harris, 299. 
 Ammand v. Turnpike Co., 144. 
 Ammidown v. Granite Bank, 195, 371. 
 
OASES CITED. 
 
 XI. 
 
 Amos v. Norcross, 171. 
 Amoskeag Manuf. Co. v. Goodale, 
 121, 128, 206, 208, 210, 211b, 
 
 214, 243, 253, 364, 405, 584. 
 v. Head, 210, 242, 253. 
 
 v. The John Adams, 96. 
 
 v. Worcester, 253, 256, 556, 605. 
 Amrhein v. Quaker City Dye Works, 
 
 210. 
 Amsterdam Knitting Co. v. Dean, 
 
 215, 519, 534. 
 Amsterdam Water Com'rs, In re, 242. 
 Anaheim Water Co. v. Semi-Tropic 
 
 W. Co., 214, 238, 245, 336. 
 Anderson v. Baker, 241. 
 
 v. Barksdale, 623. 
 
 v. Hamlin, 185. 
 
 v. Henderson, 268, 271. 
 
 v. Hill, 143. 
 
 v. Hubble, 349. 
 
 v. Kerns Draining Co., 241. 
 
 v. Maloy, 90. 
 
 v. Munch, 110, 620. 
 
 v. No. Pac. Ry. Co., 297. 
 
 v. Oppenheimer, 461. 
 
 v. Rochester R. Co., 122. 
 
 v. St. Louis, 104 
 
 v. Thunder Bay River Boom Co., 
 90, 103. 
 Andover v. Sutton, 212, 253, 416, 584, 
 
 589. 
 Andrew v. Nantasket Beach R. Co., 
 
 22. 
 Andrews v. Johnson, 621. 
 
 v. Mulford, 331. 
 
 v. National F. Works, 305. 
 Androscoggin Booms v. Haskell 143. 
 Androscoggin Bridge, v. Bragg, 323. 
 Andrus v. Knott, 28. 
 Angus v. Brown, 214. 
 
 v. Dalton, 329. 
 Ankeny v. Fairview Milling Co., 365, 
 
 555. 
 Ann, The, 9, 38. 
 Annapolis, The, 4. 
 Annapolis v. Harwood, 146. 
 Annett v. Foster, 96. 
 Ann L. Lockwood, The, 6. 
 Ann Ryan, The, 35. 
 Annie M. Small, The, 202. 
 Annie R. Lewis, The, 1 14 
 Annot Lyle, The, 96. 
 Anon. (1 Camp. 517, n.), 186. 
 
 (Ld. Raym. 252), 481. 
 
 (Dyer, 3266), 6, 18. 
 
 (2 Eq. Cas. Abr.), 323. 
 
 (Loft. 364), 183. 
 
 (6 Mod. 149), 6, 21, 189, 193. 
 
 (2 P. W. 75), 30. 
 
 (1 Ves. Jr.), 552. 
 
 v. Deberry, 300, 412, 415. 
 Ansbro v. United States, 24 
 Anthony v. Adams, 117, 260. 
 
 v. Gifford, 25. 
 
 Anthony v. Lapham, 204, 205, 217. 
 
 v. Lawhorne, 609. 
 Antonio Zambrana, The, 120. 
 A. P. Cook Co. v. Beard, 343. 
 Apollo, The, 96, 114. 
 Apollon, The, 64. 
 Appleman v. Myre, 147. 
 Appleton v. Fullerton, 214 
 Appleton Paper & Pulp Co. v. Kim- 
 
 berly & Clark Co., 300. 
 Aram v. Shellenberger, 123. 
 Arave v. Idaho Canal Co., 233. 
 Arbo v. Brown, 96. 
 Arbuckle v. Ward, 329. 
 Archeboll and Borrell's Case, 438. 
 Archer v. Archer, 204. 
 
 v. Eckerson, 252. 
 Archibald v. New York Central R. 
 Co., 175, 342. 
 
 v. Miss. R. Co., 256, 426. 
 
 v. Morrison, 194. 
 Arctic Fire Ins. Co. v. Austin, 96. 
 Arden v. Kermit, 165. 
 Ardery v. Rowles, 194 
 Argo, The, 175. 
 
 Arimond v. Green Bay Canal Co., 75, 
 103, 222, 243, 257, 305, 329, 
 398, 584, 586. 
 Arkansas, The, 33. 
 Arkwright v. Gell, 225, 340. 
 Armendiaz v. Stillman, 439. 
 Armstrong v. Du Bois, 28. 
 
 v. Larimer Co. D. Co., 228. 
 
 v. Luco, 293. 
 
 v. Masten, 312. 
 
 v. Pennsylvania R Co., 241, 331. 
 
 v. Potts, 213. 
 
 v. Risteau, 176. 
 
 v. Wheeler, 163. 
 Arn v. City of Kansas, 219, 266, 272. 
 Arnett v. Linhart, 231, 234 
 Arnold v. Elmore, 75, 105, 111, 148, 
 196. 
 
 v. Farr, 317. 
 
 v. Foot, 204, 205, 208, 213, 218, 264, 
 285. 
 
 v. Hudson River R. Co., 248. 
 
 v. Klepper, 121, 615. 
 
 v. Mundy, 18, 25, 30, 31, 33, 36, 58> 
 171, 189. 
 
 v. Passavant, 336. 
 
 v. Stevens, 334, 351. 
 Arpin v. Bowman, 128. 
 
 v. Burch, 102. 
 Arthur v. Bank, 144 
 
 v. Case, 57, 196, 209, 215, 524, 534, 
 537. 
 
 v. Grand Trunk Ry. Co., 263. 
 
 v. Morgan, 606. 
 Arundell v. McCulloch, 21, 121, 128, 
 
 139. 
 Ash v. Cummings, 244, 580, 586, 605. 
 Asher L. Co. v. Lunsford, 194. 
 Ashberry v. West Seneca, 272. 
 
xu 
 
 CASES CITED. 
 
 Ashby v. Eastern R. Co., 150, 162, 164, 
 169, 195, 250, 252, 304a. 
 v. White, 409. 
 Ashley v. Ashley, 338, 376, 379, 479, 
 480. 
 v. Eastern Railroad, 37. 
 v. Pease, 204, 318, 320. 
 v. Port Huron, 261, 272. 
 v. Wolcott, 41, 275. 
 Ashurst v. McKenzie, 318a. 
 Askain v. King County, 244. 
 Askew v. Wynne, 105. 
 Assante v. Charleston Bridge Co., 33, 
 
 135. 
 Associates v. Jersey City, 157, 171. 
 Astor v. New York Ry. Co., 145. 
 Astoria Exchange Co. v. gihively, 177. 
 Astrow v. Hammond, 133. 
 Atchison v. Challis, 262, 270. 
 
 v. Peterson, 204, 228, 229, 231, 236, 
 240, 511, 543. 
 Atchison, etc. R. Co. v. Hammer, 273. 
 
 v. Long, 285. 
 Athabasta, The, 111. 
 Athens Manuf. Co. v. Rucker, 623. 
 Atkins v. Boardman, 122, 126, 347. 
 v. Thompson, 319. 
 v. Witherell, 599. 
 Atkinson v. Bowman, 31. 
 
 v. Newcastle W. W. Co., 250. 
 v. Philadelphia R. Co., 140. 
 Atlanta, The, 89. 
 Atlanta v. Green, 251. 
 
 v. Word, 272. " 
 Atlanta Mills v. Mason, 215, 314, 318, 
 
 351, 537. 
 Atlantic City Waterworks v. Atlantic 
 
 City, 245. 
 Atlantic Dock Co. v. Brooklyn, 175. 
 Atlantic & D. R. Co. v. Peake, 257. 
 Atlantic Dredging Co.u Bergen Neck 
 
 Ry. Co., 175. 
 Atlantic Tel. Co. v. Baltimore R. Co., 
 
 436. 
 Atlantic Trust Co. v. Woodbridge 
 
 Canal Co., 241. 
 Atlas, The, 96. 
 Atlee v. Packet Co., 132, 140, 149, 160, 
 
 179, 181. 
 Attorney General, In re, 40. 
 Attorney General v. Acton Local 
 Board, 223, 519, 544, 545, 546, 
 554. 
 v. Barker, 21. 
 v. Basingstoke, 544, 545. 
 v. Birmingham, 121, 123, 152, 185, 
 219, 223, 226, 525, 527, 528, 
 530, 544, 545, 546, 559. 
 v. Boston, 118. 162, 193. 
 v. Boston & Lowell R. Co., 138. 
 v. Boston Wharf Co., 27, 121, 162, 
 
 164, 165, 169. 
 v. Bradford Canal, 152, 223, 527, 
 528, 533, 544, 550, 559. 
 
 Attorney General v. Burridge, 4, 19, 
 
 21, 121, 168. 
 v. Cambridge, 138, 139. 512. 
 v. Cambridge Gas Consumers' 
 
 Co., 533. , 
 
 v. Chamberlaine, 21, 23, 155. 
 v. Chambers, 4, 9, 18, 19, 23, 27, 37. 
 
 155. 
 v. Chicago, etc. Ry. Co., 108. 
 v. Cleaver, 21, 121. 
 v. Clerkenwell Vestry, 223, 535. 
 v. Cockermouth Local Board, 219, 
 
 223, 544, 545. 
 v. Cohoes Co., 21, 121, 168. 
 v. Colney Hatch Asylum, 152, 
 
 219, 223, 527, 529, 530, 545, 
 
 559. 
 v. Conservators of the Thames, 
 
 26, 124, 149, 250, 547. 
 v. Constable, 21. 
 v. Delaware R. Co., 36, 58, 64, 65, 
 
 121, 132, 168, 171. 
 v. Devonshire, 21. 
 v. Dorking Guardians, 545. 
 v, Dossee, 30. 
 v. Eau Claire, 132, 133, 140, 143, 
 
 241. 
 v. Emerson, 21, 22. 
 v. Evart Booming Co., 21, 93, 93a, 
 
 95, 96, 108, 110. 
 v. Fartnen, 18, 23. 36. 
 v. Forbes, 21, 121, 513, 514 
 v. Furness Ry. Co., 134. 
 v. Gee, 152, 223, 509, 546. 
 v. Great Eastern Ry. Co., 205, 534. 
 
 548. 
 v. Hackney Local Board, 219, 223, 
 
 545, 546. 
 v. Halifax, 223, 345, 527, 530, 545, 
 
 559. 
 v. Hane, 212. 
 v. Hanmer, 28, 36. 
 v. Harrison, 56. 
 v. Heishon, 121. 
 v. Hudson Tunnel Co., 33, 136, 
 
 138. 
 v. Hudson River R Co., 121, 132, 
 
 135. 
 v. Hunter, 506, 507, 541. 
 v. International Bridge Co., 121, 
 
 242. 
 v. Jamaica Pond Aqueduct Co., 
 
 21, 84, 121, 212. 
 v. Johnson, 21, 121, 167, 168, 525, 
 
 533. 
 v. Jones, 25, 28. 
 v. Kingston on Thames, 219, 223, 
 
 512, 544, 545. 
 v. Lake Superior Canal Co., 68. 
 v. Lea, 121. 
 v. Leeds Corp., 152, 219, 222, 223, 
 
 346, 512, 527, 544, 545, 546. 
 v. Logan, 212. 
 v. London, 4, 17, 91. 
 
CASES CITED. 
 
 Xlll 
 
 Attorney General v. Lonsdale, 86, 121, 
 140, 160, 208, 547. 
 
 v. Lorman, 191. 
 
 v. Luton Local Board, 219, 512, 
 520, 527, 544, 545, 546. 
 
 v. Mathias, 24. 
 
 v. Met'n Board of Works, 250, 552. 
 
 v. Mid Kent Ry. Co., 134. 
 
 v. Morgan, 10. 
 
 v. Newcastle-upon-Tyne, 21, 22. 
 
 v. New Jersey R. Co., 115, 121, 
 555. 
 
 v. New York E. Co., 132, 135. 
 
 v. Old Colony E. Co., 139. 
 
 v. Parmenter, 4, 19, 21, 121, 167, 
 168. 
 
 v. Paterson R. Co., 132. 
 
 v. Perry, 21, 82a. 
 
 v. Philpot, 21. 
 
 v. Plymouth, 533. 
 
 v. Portsmouth, 23, 333. 
 
 v. Public Board, 545. 
 
 v. Eeeve, 23, 155. 
 
 v. Revere Copper Co., 84, 212. 
 
 v. Eichards, 19, 21, 121, 167, 168. 
 
 v. Richmond, 223, 545. 
 
 v. Eoanoke Nav. Co., 144. 
 
 v. St. Aubyn, 10, 18, 21. 
 
 v. Salem, 121. 
 
 v. Sheffield, 223. 
 
 v. Sheffield Gas Co., 512, 533. 
 
 v. Shrewsbury Bridge Co., 21. 
 
 v. Stevens. 32, 132, 135, 137, 139, 
 140. 
 
 v. Stewart, 30, 121, 219, 544. 
 
 v. Suton, 544. 
 
 v. Tarr, 105. 
 
 v. Terry, 4, 21, 86, 95, 121, 140, 160, 
 208. 
 
 v. Todd Heatley, 219, 278. 
 
 ■o. Tomline, 4, 21, 24, 91, 121, 161. 
 
 v. Tomsett, 8. 
 
 v. Turner, 18, 158. 
 
 v. Utica Ins. Co., 121. 
 
 v. Wemyss, 124 
 
 v. Whitney, 194. 
 
 v. Williamson, 21. 
 
 v. Woods, 27, 42, 43, 44, 86, 108, 
 109, 111, 138, 169. 
 
 v. Wright, 95, 100. 
 Att. Gen. for Canada v. Att. Gen. for 
 
 Ontario, 82. 
 Atwater v. Bodfish, 313. 
 
 v. Schenck, 69. 
 Attwood v. Fricot, 214 
 Atwood v. Canandaigua, 83. 
 
 v. Caswell, 187, 189. 
 
 v. Moose Head P. Co., 595. 
 Auburn v. Union W. P. Co., 84, 205. 
 Auburn Cong. Church v. Walker, 305. 
 Audenried v. Philadelphia E. Co., 552. 
 Auger v. Cook, 92, 211b. 
 Au Gres Boom Co. v. Whitney, 162. 
 August, The, 1. 
 
 Augusta, The, 192. 
 Augusta v. Hudson, 115. 
 
 v. Lombard, 211c. 
 
 v. Moulton, 353, 602. 
 Aurora v. Gillett, 261, 272. 
 
 v. Love, 272. 
 
 v. Reed, 272. 
 Austerberry v. Oldham, 111, 302, 
 Austin i'. Carter, 169. 
 
 v. Chandler, 213, 228. 
 
 v. Emanuel, 256. 
 
 v. Helms, 614 
 
 v. New Jersey S. Co., 89, 96. 
 
 v. Rutland R. Co., 56, 82, 179, 198, 
 203, 315, 471. 
 
 v. Snyder, 222. 
 
 v. Walsh, 211 
 Austin Ry. Co. v. Anderson, 210, 251. 
 Austria, The, 89, 96. 
 Authors v. Bryant, 238. 
 Averett v. Brady, 193. 
 Averill v. Hull, 189. 
 Avery v. Empire Woolen Co., 160. 
 
 v. Fox, 54, 132, 242, 243. 
 
 v. Police Jury, 143, 241. 
 Avid, The, 96. 
 Avon, The, 33, 67. 
 Avon Manuf. Co. v. Andrews, 309, 
 
 477. 
 Axline v. Shaw, 177, 199, 203. 
 Aye v. Philadelphia Co., 291. 
 Ayers v. Watson, 194 
 Aynsley v. Glover, 223. 
 Ayraud v. Babin, 331. 
 
 B. 
 
 B. & G, The, 33. 
 
 Babb v. Mackey, 253, 579. 
 
 Babbitt v. Safety Fund Nat. Bank, 
 
 222. 
 Babcock v. Buffalo, 149, 549. 
 
 v. Herbert, 88, 193. 
 
 v. New Jersey Stock-Yard Co., 
 219, 544 
 
 v. Utter, 197. 305, 323, 338. 
 
 v. Western Railroad, 252, 256. 
 Babson v. Tainter, 169. 
 Backus v. Detroit, 75, 103, 106, 119. 
 Bacon, The H. D., 67. 
 Bacon v. Arthur, 126, 135, 608. 
 
 v. Bowdoin, 305. 
 
 v. Jones, 525. 
 
 v. Mulford, 117. 
 Badger v. South Yorkshire Ey. Co., 
 
 101, 104, 241. 
 Baer v. Martin, 373. 
 
 v. Moran Bros. Co., 177. 
 Bagnall v. London E Co., 256, 273, 
 
 294 
 Bagott v. Orr, 4, 20, 24, 25, 26, 47. 
 Bailey v. Applegard, 329. 
 
 v. Burges, 138. 
 
 v. Heintz, 210. 
 
XIV 
 
 CASES CITED. 
 
 Bailey v. Malheur & H. L. Ir. Co., 521. 
 
 v. McConnell, 194. 
 
 v. Miltenberger, 65. 
 
 v. New York, 589. 
 
 v. Philadelphia E. Co., 35, 123, 130, 
 132. 136, 150, 250. 
 
 v. Rust, 227, 384 
 
 v. Sohnitzius, 524, 534. 
 
 v. Sisson, 25. 
 
 v. Woburn, 245. \ 
 
 Bainard v. Newton, 545. 
 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 R. Co., 129, 130. 
 
 v. "Wells, 579, 583. 
 
 v. Williamson, 288, 295. 
 
 v. Wilson, 126. 
 Baker v. Allen, 267, 391. 
 
 v. Bessey, 305. 
 
 v. Boston, 122, 338. 
 
 v. Brown, 205, 329. 
 
 v. Byrne, 113. 
 
 v. Chicago R. Co., 323. 
 
 v. Dale, 291. 
 
 v. Johnson, 241. 
 
 v. Leka, 353. 
 
 v. Lewis, 65, 95, 96. 
 
 v. McGuire, 344 
 
 v. Power, 96. 
 
 v. Sanderson, 376, 379, 380, 479, 
 480. 
 
 v. Wentworth, 187. 
 Balance v. Peoria, 148. 
 Balch v. Smith, 113. 
 
 v. Utica, 363. 
 Balcom v. McQuesten, 191. 
 Bald Eagle Boom Co. v. 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. Berwind, 98. 
 
 v. Blackmore, 4 
 
 v. Hardesty, 495, 620. 
 
 v. Herbert, 4, 48, 55, 91, 99, 103, 
 104 
 
 v. Kehl, 233, 338, 510. 
 
 v. Nye, 219, 288. 
 
 v. Slack, 27, 32, 46, 65, 99, 173. 
 
 v. Trenholm, 114 
 Ballacorkish Mining Co. v. Dumball, 
 286. 
 
 v. Harrison, 286, 295. 
 Ballantine v. Harrison, 512. 
 Ballard v. Ballard Vale Co., 595. 
 
 v. Butler, 348. 
 
 V. Child, 169. 
 
 v. Struckman, 334. 
 
 Ballard v. Tomlinson, 288, 296. 
 
 Balliet v. Com., 65, 157. 
 
 Ballinger v. Nowland, 5. 
 
 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. 
 
 v. Cowen, 241. 
 
 v. Day, 205. 
 
 v. Fairfield Impr. Co., 219. 
 
 v. Gill 121. 
 
 v. Kennedy, 21. 
 
 v. McKim, 21, 58, 176, 196. 
 
 v. Marriott, 116, 122, 125. 
 
 v. Merryman, 260, 414 
 
 v. Schnitker, 261. 
 
 v. St. Agnes Hospital, 176. 
 
 v. State, 13. 
 
 v. Stoll. 135. 
 
 v. Warren Manuf. Co., 219, 544, 
 565. 
 
 v. White, 147, 176. 
 Baltimore B. Co. v. Ranstea.d, 296. 
 Baltimore, etc. R. Co. v. Chase, 149, 
 155, 176. 
 
 v. Fifth Baptist Church, 248, 387. 
 
 v. Haokett. 273. 
 
 v. Magruder, 250, 256. 
 
 v. North, 255. 
 
 v. Reaney, 136. 
 
 v. Sulphur Spring School Dis- 
 trict, 258, 298. 
 
 v. Wheeling Transp. Co., 96, 132. 
 Baltimore Turnpike Co. v. Cassell, 
 
 113. 
 Baltzeger v. Carolina Midland Ry. 
 
 Co., 273. 
 Bancroft v. Conant, 430. 
 Banghart v. Flummerfelt, 300, 322. 
 Bangor v. Lansil, 41, 264 267, 277. 
 Bangor Booming Co. v. Whiting, 145. 
 Bangs v. Waterville & F. Light Co., 
 
 300. 
 Banigan v. Worcester, 439. 
 Bank of North America v. Miller, 301, 
 
 305. 
 Bankhead v. Brown, 241. 
 Banks v. Ogden, 76, 148, 155, 157. 
 Bannister v. Grassy Ford Ditching 
 
 Ass'n, 69. 
 Bannon v. Angier, 318, 348, 351. 
 Banta v. McNeil, 35. 
 
 v. Savage, 326. 
 Barataria Co. v. Field, 247. 
 Barber v. Abendroth, 114 
 
 v. Fox, 477. 
 
 v. Nye, 304, 336, 347. 
 
 v. Wharton, 4. 
 Barbier v. Connelly, 243. 
 I Barbour v. Lyddy, 305. 
 I Barclay v. Com., 555, 556. 
 
CASES CITED. 
 
 XV 
 
 Barclay u Howell, 105, 148. 
 Barclay R. Co. v. Ingham, 36, 46, 65, 
 
 91. 108, 110, 111, 608. 
 Bard v. Yohn, 222. 
 Barden v. Crocker, 187, 188, 429. 
 
 v. Portage, 260. 
 Bardwell v. Ames, 56, 166, 304, 518, 
 
 534, 540. 
 Bare to. Hoffman, 210, 213, 215, 420. 
 Barham v. Hostetter, 121. 
 Barker v. Bates, 18, 25, 31, 90, 169, 192, 
 199. 
 
 v. Bodwell, 23. 
 
 v. Deignan, 37, 111. 
 
 to. Faulkner, 21. 
 
 v. Kings Norton Sanitary, 582. 
 
 to. Richardson, 831. 
 Barkley v. Levee Com'rs, 138. 
 
 v. Tieleke, 234. 
 
 v. Wilcox, 265, 267, 271. 
 Barlout v. Rhodes, 301. 
 Barnard to. Com'rs, 535. 
 
 v, Hinckley, 55. 
 
 to. Shirley, 206, 219. 
 Barnes to. B. & M. R. Co., 577. 
 
 v. Berwind, 295. 
 
 v. Burt, 310. 
 
 v. Calhoun, 121. 
 
 to. District of Columbia, 13, 116. 
 
 to. Haynes, 329. 
 
 to. Heath, 110. 
 
 v. Lloyd, 310, 348. 
 
 to. Loach, 354. 
 
 to. Marshall, 160. 
 
 to. Racine. 121. 127, 128, 134, 135, 
 136, 140, 2i2. 
 
 to. Rawson, 280. 
 
 to. Sabron, 41, 229, 231, 236, 240, 
 265, 512, 519, 543. 
 Barnet to. Ihre, 368, 391. 
 Barney to. Baltimore, 105, 106. 
 
 v. Keokuk, 18, 27, 32, 33, 40, 54, 64, 
 67, 72, 76, 106, 143, ;151, 155, 
 166. 
 Barnhart to. Ehrhart, 76. 
 Barns v. Hannibal, 260. 
 Barnstable v. Thacher, 18, 37. 
 Baro to. Phillips Co., 247. 
 Barr to. Stevens, 125. 
 Barracleugh v. Brown, 98. 
 Barre to. Fleming, 71. 
 
 to. New Orleans, 155, 156. 
 Barre Water Co., In re, 205, 241. 
 Barre Water Co. to. Carnes, 157, 205, 
 
 245a, 561. 
 Barret to. Hosmer, 318. 
 Barrett to. Bangor, 92, 103, 193. 
 
 to. Black, 113, 114. 
 
 to. Metcalfe, 76. 
 
 to. Mt. Greenwood Cem. Ass'n, 
 544. 
 
 to. New Orleans, 155, 157. 
 
 to. Parsons, 313. 
 
 v. Rockport Ice Co., 191. 
 
 Barring to. Com., 278. 
 Barrington to. Commercial Dock Co., 
 119. 
 
 v. Neuse River Ferry Co., 104, 241. 
 Barron v. Baltimore, 122, 123, 149, 261. 
 
 v. Davis. 108. 
 Barrow v. Laudry, 266. 
 Barrows v. Fox, 228, 620. 
 
 v. McDermott, 84, 169. 
 Barry v. Arnaud, 6. 
 
 v. Com., 268. 
 
 v. Lowell, 262, 270. 
 Bartholomew v. Candee, 504 
 
 v. Edwards, 196. 
 Bartle v. Des Moines, 269. 
 Bartlett v. Baker, 98. 
 
 v. Budd, 1. . 
 
 v. Corliss. 195. 
 
 v. Moyers, 296, 501. 
 
 v. O'Connor, 534. 
 Barton v. Bouvier, 36. 
 
 v. Syracuse, 113, 261. 
 
 v. Union Cattle Co., 219. 
 Basey v. Gallagher, 229, 231, 233, 240, 
 
 543. 
 Basley v. Susquehanna Canal, 101. 
 Bass v. Buker, 234. 
 
 v. Fontleroy, 193. 
 
 v. Fort Wayne, 255, 535. 
 
 v. State, 247. 
 Bass Lake Co. v. Hollenbeck, 460. 
 Bassett v. Carle ton, 110. 
 
 v. Franklin, 36. 
 
 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., 206, 302, 373, 374, 408, 447. 
 Batchelder v. Hibbard, 323. 
 
 v. Keniston, 162, 163, 164. 
 
 v. Sanborn, 322. 
 Bateman v. Bluck, 92, 128. 
 
 v. Colgan, 138. 
 
 v. Covington, 117. 
 
 v. Hollinger, 510. 
 
 v. Hussey, 405. 
 
 v. Poplar D. Board of Works, 41. 
 Baten's Case, 293, 363, 368. 
 Bates v. Illinois Central R. Co., 78, 
 148, 155. 
 
 v. Ray, 431, 595, 599. 
 
 v. Sloan, 590. 
 
 v. Smith. 41, 268. 
 
 v. State, 191. 
 
 v. Westborough, 272, 293. 
 
 v. Weymouth Iron Co., 84, 253, 
 594. 
 Bathgate v. Irvine, 213, 280, 235, 238, 
 
 549. 
 Bath River Nav. Co. to. Willis, 103. 
 Battishill v. Reed, 210, 293, 373, 376, 
 
 378, 381, 415, 420, 424. 
 Baughman v. Heinselman, 582. 
 
XVI 
 
 CASES CITED. 
 
 Baughton v. Carter, 256. 
 
 Bauman v. Ross, 244. 
 
 Baumgartner v. Sturgeon R. B. Co., 
 
 482. 
 Baxendale v. McMurray, 344, 346, 544. 
 Baxter v. Gilbert, 231. 
 
 v. Rutland, 251. 
 
 v. Taylor, 331, 376, 479. 
 
 v. Winooski Turnpike Co., 122, 
 
 126. 
 
 Bay City Gaslight Co. v. Industrial 
 
 Works, 75, 82a, 138, 162, 163, 
 
 165. 
 
 Bayley v. Wolverhampton Water 
 
 Works Co., 115. 
 Baylor v. Decker, 85. 
 
 v. Tillebach, 21. 
 Bayzer v. McMillan Mill Co., 109. 
 Beach v. Child, 383. 
 
 v. Elmira, 546. 
 
 v. Gaylord, 424. 
 
 v. Morgan, 184. 
 
 v. New York, 175. 
 
 v. Schorl, 128. 
 
 v. Sterling Iron Co., 219, 220, 544. 
 
 v. Trudgain, 364. 
 
 v. Wilmington & W. R Co., 256. 
 Beahan v. Stapleton, 194, 197. 
 Bealafeld v. Verona, 272. 
 Bealey v. Shaw, 219, 227, 264, 281, 330, 
 
 476, 500. 
 Beals v. Brookline, 251, 265. 
 
 v. James, 251. 
 
 v. Stewart, 308, 328. 
 Beamish v. Barrett, 537. 
 Bean v. Hinman, 597. 
 
 v. Mayo, 455. 
 
 v. Stoneman, 232. 
 Bear Camp River Co t v. Woodman, 
 
 147. 
 Bear Lake Ir. Co. v. Garland, 228, 234, 
 
 240. 
 Bear River Co. v. Boles, 236. 
 
 v. York Mining Co., 229, 543. 
 Bear Water Co. v. New York Mining 
 
 Co., 231. 
 Beard v. Morancy, 247. 
 
 v. Murphy, 41, 275, 278. 
 
 v. Yates, 485. 
 Beardslee v. French, 348. 
 Beardsley v. Crane, 194. 
 Bearrs v. Sherman, 98, 110. 
 Bearse v. Perry, 213, 216. 
 Beasley u Clarke, 339. 
 Beatrice v. Knight, 256. 
 
 v. Leary, 256, 268. 
 Beatrice Gas Co. v. Thomas, 542. 
 Beatty v. Conner, 621. 
 Beaty v. Baltimore R. Co., 256. 
 Beaufort v. Duncan, 155. 
 
 v. Morris, 295, 506, 507, 524, 527. 
 
 v. Swansea, 6, 21, 22, 23, 29. 
 Beaver v. Manchester, 115. 
 
 v. Reed, 324. 
 
 Beaver Brook R. Co. v. St. Vrain R. 
 
 Co., 233, 238. 
 Beavers v. Trimmer, 220, 227, 392. 
 Bechtel v. Edgewater, 36. 
 Beck v. Pasadena Lake Co., 233. 
 Beckenham U. D. Council v. Wood, 
 
 41. 
 Becker v. Church, 338. 
 
 v. Marble Creek Ir. Co., 231. 
 Beckett v. Midland Ry. Co., 124, 150, 
 
 231. 
 Beckley v. Learn, 193. 
 Beckman v. Kraemer, 182. 
 Beckwith v. Griswold, 412, 413, 478. 
 
 v. Racine, 13. 
 Becton v. Chestnut, 195. 
 Bedell v. Sea Cliff, 271. 
 Bedington v. Onslow, 376, 378. 
 Bedlow v. New York Floating Dry- 
 dock Co., 82, 175. 
 
 v. Stillwell, 175. 
 Beecher v. Weathersby, 30. 
 Beekman v. Jones, 225. 
 
 v. Saratoga R. Co., 241, 253. 
 
 v. West Shore R. Co., 175. 
 Beeler v. Turnpike Co., 147. 
 Beeston v. Weate. 340, 346, 548. 
 Behan v. New York, 92, 113, 262. 
 Beidelman v. Foulk, 204, 324, 329, 333, 
 
 365, 387, 471. 
 Beissell v. Scholl, 204, 210, 214. 
 Belch v. Miller, 785. 
 Belcher v. Murphy, 138, 161. 
 Belcher Sugar Refining Co. v. St. 
 Louis Grain Elevator Co., 
 117, 241, 255. 
 Belfast, The, 33. 67. 
 Belfast Dock, In re, 22, 23, 28. 
 Belfast Rope- Works Co. v. Boyd, 185, 
 
 209. 
 Belgenland, The, 1. 
 Belknap v. Belknap, 545. 
 
 v. Trimble, 225, 340, 537, 540. 
 Bell v. Blount, 513, 541. 
 
 v. Clegg, 142. 
 
 v. Dudley, 289. 
 
 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 Ry. Co., 150. 
 
 v. McClintock, 143, 211c, 298, 608. 
 
 v. Midland Ry. Co.. 376, 378. 
 
 v. Quebec, 124, 149, 151. 
 
 v. Sausalito Land Co., 286. 
 
 v. Schultz, 220. 
 
 v. Twentyman, 296, 366, 376, 378. 
 Bellant v. Brown, 477. 
 Belle of the Coast, The, 33. 
 Bellefontaine Impr. Co. v. Niedring- 
 
 haus, 202, 333. 
 Belleville v. Stookey. 55. 
 Bellinger t\ New York Cent. R Co., 
 250, 258, 296," 394, 588, 589. 
 
CASES CITED. 
 
 XV11 
 
 Bellirigham Bay & B. C. E. Co. w 
 
 Strand, 177. 
 Bellis v. Bellis, 383. 
 Bellows v. Jewell, 194 
 
 v. Sackett, 268, 290, 293, 373. 
 Belmont Bridge v. Wheeling Bridge, 
 
 146. 
 Belton v. Baylor College, 220. 
 
 v. Central Hotel Co., 220. 
 Belvidere Gaslight Co. v. Jackson, 
 
 219. 
 Belyea v. Hamm, 392. 
 Bemis v. Clark, 368. 
 
 v. Uphani, 368, 511, 512, 534, 555. 
 Benedict v. Johnson, 362. 
 Benest v. Pipon, 4, 25. 
 Be.nett v. Costar, 183. 
 Benfleldside Local Board v. Consett 
 
 Iron Co., 547. 
 Benjamin v. Manistee River Impr. 
 Co., 35. 
 
 v. Storr, 124. 
 
 v. Wheeler, 290, 579, 589. 
 Benj. A. Van Brunt, The, 96. 
 Benne v. Miller, 155. 
 Benner v. Atlantic D. Co., 129, 242. 
 
 v. Platter, 70, 200. 
 Bennett v. Boggs, 31, 32, 38, 64, 65, 
 189. 
 
 v. Clemence, 106. 
 
 v. Kennebec Fibre Co., 306. 
 
 v. Morris, 547. 
 
 v. Murtaugh, 85, 213. 
 
 v. National Starch M. Co., 155, 
 219 
 
 v. Schoellkopf, 120. 
 Bennett's Branch Impr. Co.'s Appeal, 
 
 144. 
 Benscoter v. Long, 187. 
 Bensley v. Mountain Lake W. Co., 
 
 236. 244. 
 Benson v. Chicago R. Co., 263. 
 
 v. Connors, 41. 
 
 v. Ketchum, 1. 
 
 v. Morrow, 68, 73, 76, 77, 99, 155, 
 166. 
 
 v. New York, 175, 255. 
 
 v. Soule, 335. 
 
 v. Townesend, 195. 
 
 v. United States, 242. 
 
 v. Wilmington, 210, 261. 
 Bent v. Emery, 169. 
 
 v. Wheeler, 206, 217. 
 Bentley v. Fischer Lumber Co., 138. 
 
 v. Manchester, etc. Ry. Co., 367. 
 Benton v. Elizabeth, 291. 
 
 v. Johncox, 228. 
 Bentonville R. Co. v. Baker, 211. 
 Bentz v. Armstrong, 268. 
 Bergen Neck Ry. Co. v. Point Breeze 
 
 Ferry Co., 251. 
 Berlin Mills Co. v. Wentworth's Lo- 
 cation, 41. 
 Bernard v. Brewer, 609. 
 
 Bernhardt v. Brown, 203. 
 Berridge v. Ward, 197. 
 Berry v. Carle, 53, 56, 108, 192. 
 
 v. Raddin, 84, 164, 169. 
 
 v. Snyder, 18, 46, 62, 76, 77, 93a, 
 155. 
 Berryman v. Port Burwell Harbor, 
 
 115. 
 Bersie v. The Shenandoah, 120. 
 Berwick v. Ewart, 426. 
 Beswick v. Combdon, 373, 381, 392, 
 
 394. 
 Bstohel v. Edgewater, 155. 
 Bethall v. Seifert, 265. 
 Betham v. Philadelphia, 261. 
 Bethum v. Turner, 24, 105. 
 Bettman v. Harness, 291, 508. 
 Bevan v. London P. C. Co., 241. 
 Beveridge v. Lacey, 121. 
 Bevier v. Dillingham, 211, 601. 
 Beyer i\ Nurnberg,'96. 
 Bib v. Mountjoy, 609, 610. 
 Biccot v. Ward, 482. 
 Biok v. Post. 135. 
 Bickel v. Polk, 58, 99, 104, 189. 
 Bickerdike v. Chicago, 241. 
 Bickett v. Morris, 160, 404, 513. 
 Bickford v. Hyde Park, 252. 
 Bicknell v. Comstock, 334. 
 Bidder v. Croydon, 219, 544, 545. 
 Biddle v. Wayne W. W. Co., 241. 
 Bierer v. Hurst, 211c. 
 Bigaouette v. North Shore Ry. Co., 
 
 151, 194. 
 Bigelow v. Draper, 228, 241. 
 
 v. Hartford Bridge Co., 121, 123. 
 
 v. Hoover, 155. 
 
 v. Newell, 583. 
 
 v. Shaw, 75, 191. 
 
 v. Wickerson, 13. 
 Big Goose & Beaver Ditch Co. v. Mor- 
 row, 297. 
 Biggs v. Ferrall, 193. 
 Bigler v. Antes, 257, 608. 
 
 v. Morgan, 189. 
 
 v. O'Connor, 97. 
 
 v. Penn. Canal Co., 241. 
 Bigley v. Nunan, 123. 
 Biglow v. Battle, 320, 344 
 Bileu v. Paisley. 235. 
 Bill v. Smith, 96. 
 Billings v. Berry, 600. 
 
 v. Breinig, 96. 
 Bingham v. Doane. 105, 118, 140. 
 
 v. Salene, 184. 
 Binghamton Bridge, The, 145, 146. 
 Binney's Case, 58, 111, 241, 507, 534, 
 
 551. 
 Bird v. Elwes, 328. 
 
 v. Hannibal, etc. R. Co., 259. 
 
 v. Hoi brook, 128. 
 
 v. Lisbros, 230. 
 
 v. Randall. 488, 504. 
 
 v. Smith, 65, 99, 103, 105, 121, 193. 
 
JXV111 
 
 CASES CITED. 
 
 BirdsaU v. Rose, 189, 190. 
 Birkenhead v. L. & N. W. Ry. Co., 
 
 124, 548. 
 Birmingham v. Anderson, 194. 
 Birmingham & B. Co. v. Ross, 362. 
 Birmingham Canal Co. v. Lloyd, 295, 
 
 323, 350, 507, 527. 
 Birmingham Traction Co. v. Birm- 
 ingham Ry. Co., 511. 
 Bisher v. Richards, 143, 208. 
 Bishop v. Morgan, 194. 
 
 v. Seeley, 197, 200. 
 
 v. Tripp, 91. 
 Bishop of Nesqually v. Gibbon, 228. 
 Bissell v. Fletcher, 76, 155. 
 
 v. Foss, 231. 
 
 v. Grant, 317. 
 
 v. New York Central R. Co., 121, 
 200. 
 
 v. Southworth, 56. 
 Bittenhaus v. Johnston, 189. 
 Bitting's Appeal, 535, 553. 
 Bittle v. Stuart, 13, 69, 112. 
 Bizer v. Ottumwa Hydraulic Power 
 
 Co., 387. 
 Black v. Ballymera Com'rs, 281. 
 
 v. Christchurch F. Co., 296. 
 
 v. Delaware Canal Co., 241. 
 Blackburn v. Parkinson, 147. 
 Blackburne v. Somers, 342. 
 Blackman v. Halves, 241. 
 Blackpool Pier v. Fylde Union, 13, 14, 
 
 15, 155. 
 Black River Imp. Co. v. Ketchum, 
 144. 
 
 v. La Crosse Booming Co., 136, 
 143. 144, 146, 246. 
 Blacks v. Hepburn, 471. 
 Blackwell v. Old Colony R. Co., 122, 
 123, 126, 135. 
 
 v. Phinney, 599. 
 Blagrave v. Bristol W. W. Co., 126. 
 Blaine v. Brady, 160. 
 
 v. Chambers, 305. 
 
 v. Ray, 338. 
 Blair v. Boswell, 230. 
 
 v. Cuming County, 254. 
 
 v. Deakin, 222. 
 
 v. Kiger, 241, 251. 
 Blairmore, The, 4. 
 Blaisdell v. Portsmouth Railroad, 323. 
 
 v. Stephens, 222. 
 Blake's Case, 4. 
 Blake v. Clark, 306, 307. 
 
 v. Everett, 329, 339. 
 
 v. Madigan, 312, 320. 
 
 v. Winona R. Co., 142, 143. 
 
 v. Woolf, 391. 
 Blakeley v. Le Due, 193. 
 Blakely v. Devine, 260, 271. 
 Blakemore v. Glamorganshire Canal, 
 
 504, 526, 534, 552. 
 Blakslee Manuf. Co. v. Blakslee's Sons 
 Iron Works, 175. 
 
 Blanc v. Bowman, 105. 
 
 v. Klumpke, 123. 
 Blanchard v. Ames, 453. 
 
 v. Baker, 205, 214, 217, 323, 324, 
 327, 346, 383, 405. 
 
 v. Doering, 317, 530. 
 
 v. Moulton, 95. 
 
 v. Porter, 49, 70, 71, 123, 179. 
 
 v. Western Union Tel. Co., 92, 
 134. 
 Bland v. Lipscomb, 24, 85, 184. 
 Blaney v. Rice, 194. 
 
 v. Salem, 251. 
 Blankard v. Galdy, 30. 
 Blanks v. Ripley, 303. 
 Blantyre v. Babtie, 124. 
 
 v. Clyde Nav. Trustees, 4, 111. 
 
 v. Doon, 160. 
 Blatchford v. Chicago Dredging Co., 
 156. 
 
 v. Plymouth, 461. 
 Bleidorn v. Pilot Mountain, etc. Co., 
 
 194. 
 Blessing v. Blair, 217. 
 Blewett v. Tregonning, 24, 25. 
 Bligh v. Rathangan R. D. Board, 296. 
 Bliss v. Grayson, 238. 
 
 v. Greeley, 280. 
 
 v. Hall, 219. 
 
 v. Kennedy, 204, 507. 
 
 v. Kingdom, 241. 
 
 v. Rice, 213. 214, 314, 333, 344, 502, 
 540, 561, 599. 
 Blizzard v. Danville, 260. 
 Blodgett v. Dwight, 509. 
 
 v. Syracuse, 128. 
 Blodgett & D. L. Co. v. Peters, 162. 
 Blood v. Keller, 488. 
 
 v. Light, 369, 555. 
 
 v. Millard, 286. 309, 355. 
 
 v. Nashua R Co., 56, 108, 109, 122, 
 127, 256. 
 Bloodgood v. Ayers, 263. 
 
 v. Mohawk R. Co., 242, 244 
 Bloom v. West, 230. 313. 
 Bloomer v. Morss, 363. 
 Bloomfleld v. Johnston, 23, 52, 81. 
 Bloomfield Gas Light Co. v. Calkins, 
 
 105. 
 Bloomington v. Brokaw, 272. 
 
 v. Burke, 323. 
 
 v. Costello, 339. 
 Blower v. Ellis, 44, 185. 
 Blundell v. Catterall, 4, 6, 18, 19, 20, 
 21, 23, 24, 26, 27, 47, 91, 93, 99, 
 100, 104, 123, 189. 
 Blunt v. Aikin, 368, 390. 
 Blydenburgh v. Miles, 189. 
 Blyth v. Birmingham W. Co., 296, 
 
 298. 
 Boale v. Dickson, 111. 
 Board of Health v. Casey, 219. 
 
 v. Copcutt, 363, 587. 
 
 v. Maginnis Cotton Mills, 272. 
 
CASES CITED. 
 
 XIX 
 
 Board of Liquidation v. Louisville E. 
 
 Co., 158. 
 Boardman v. Scott, 196. 
 Boatwright v. Bookman, 59, 182, 186, 
 
 189. 
 Bodfish v. Bodfish, 335. 
 Bodi v. Winous Point S. Club, 82a. 
 Bodin v. The Thule, 96. 
 Bodley v. Taylor, 145. 
 Boehler v. Des Moines, 157. 
 Boehmer v. Big Rock Ir. Dist., 148. 
 Bogardus v. Trinity Church, 30. 
 Bogart v. Haight, 113. 
 Boggs v. Com., 38. 
 
 v. Merced Mining Co., 223, 593. 
 Bohan v. Avoca Borough, 261. 
 Bohannan v. Hammond, 33. 
 Boissonnault v. Oliva, 54, 108. 
 Boland v. Combination Bridge Co., 
 
 135. 
 Boling v. Mayor, 260. 
 Bolivar Manuf. Co. v. Neponset 
 Manuf. Co., 210, 214, 227, 336, 
 410. 
 Bolt v. Stennett, 18, 119. 
 Bonaparte v. Camden R. Co., 142, 244, 
 
 250. 
 Bond v. Kenosha, 118. 
 
 v. Wool, 165, 178, 512. 
 Bonewits v. Wygant, 166. 
 Bonner v. Wirth, 353. 
 Bonshaw v. Prince, 560. 
 Book v. New Castle W. N. Co., 280. 
 Booker v. McBride, 210. 
 Booksh v. Dardenne, 247. 
 Boom Co. v. Patterson, 251. 
 Boon v. Kent, 171. 
 Boorman v. Sunnuchs, 75, 76, 85, 155, 
 
 158, 160, 179. 
 Booth v. Chapman, 234. 
 
 v. Hubbard, 71. 
 
 v. Lloyd, 35, 38. 
 
 v. Ratte, 95. 
 
 v. Woodbury, 242. 
 Borchardt v. Wausau Boom Co., 211c, 
 
 248a. 
 Borden v. Lewis, 128. 
 
 v. Vincent, 122, 140, 333. 
 Borden Mining Co. v. Barry, 114 
 Borell v. New York, 175. 
 Borkenhagen v. Vianden, 194 
 Borst v. Empie, 320. 
 Borton v. Minister of Mines, 205. 
 Boscawen v. Canterbury, 56, 198, 202. 
 Bostock v. North Staffordshire Ry. 
 
 Co., 548. 
 Boston v. Crowley, 33, 132. 
 
 v. Hewitt, 280. 
 
 v. Lecraw, 24, 148, 152, 169. 
 
 v. Richardson, 18, 23, 24, 31, 32, 
 
 36, 37. 56, 105, 123, 139, 152, 
 
 157, 164, 169, 195, 196, 199, 200, 
 
 202, 203. 
 
 Boston Belting Co. v. Boston, 250, 261. 
 
 Boston & Maine R. Co. v. Boston & 
 
 Lowell R. Co., 139. 
 Boston & Providence R. Co. v. Do- 
 
 herty, 323. 
 Boston & Roxbury Mill Corp. v. New- 
 man, 142, 169, 253. 
 Boston & Worcester R. Co. v. Old 
 
 Colony R. Co., 121, 150. 
 Boston Freight R. Co. v. Hubbard, 144. 
 Boston Manuf. Co. v. Burgin, 216, 602, 
 
 603. 
 Boston Mill Corp. v. Bulfinch, 37. 
 Boston Rolling Mills v. Cambridge, 
 92. 121, 123, 152, 223, 544, 545, 
 546. 559. 
 Boston S. Co. v. Munson, 98, 138, 169. 
 Boston S. D. Co. v. Salem W. Co., 245a. 
 Boston W. P. Co. v. Boston, 194 
 
 v. Boston & Worcester R. Co., 
 137. 169, 241, 253, 255, 511, 521, 
 540, 548. 
 Bostwick v. Leach, 321. 
 Boswell v. Laird, 232, 298. 
 Bosworth v. Norton, 191. 
 Bottomly v. Chism, 211b, 583. 
 Bottoms v. Brewer, 253, 254, 610. 
 Boulder & W. C. Co. v. Lower Boulder 
 
 Ditch Co., 210, 228. 
 Bouldin v. Phelps, 112. 
 Bouligny v. Dornenon, 247. 
 Boulo v. Mobile R. Co., 27, 37, 38. 
 Boulware v. Parke, 228. 
 Bourdier v. Morgan's La. R. Co., 273. 
 Bourg v. Niles, 247. 
 Bourke v. Davis, 86. 
 Bourne's Estate, 190. 
 Bom - ne v. Ashley, 1. 
 Boutelle v. Nourse, 188, 189. 
 Bouvier v. Stricklett. 155, 158. 
 Bowas v. Tow Line, 89. 
 Bowen v. Conner. 310. 
 
 v. Guild, 332. 
 
 v. Lewis, 128. 
 
 v. Team, 351. 
 Bowen v. Wendt, 345. 
 Bower v. Hill, 214, 351, 366, 404 
 Bowering v. Adams, 563. 
 Bowers v. Citizens' W. Co., 251. 
 
 v. Miss. & R. R. Boom Co., 160. 
 Bowie v. Ailsa, 21. 
 Bowlsby v. Speer, 41, 264, 268, 275. 
 Bowman v. Ayers, 231. 
 
 v. Bowman, 323. 
 
 v. Farmer, 194, 201. 
 
 v. New Orleans, 210, 266. 
 
 v. Omaha. 297. 
 
 v. Portland, 106. 
 
 v. Wathen, 27, 112, 123, 193, 204, 
 310. 
 Bowyer v. Cook. 423. 
 
 v. Schofield, 489. 
 Box v. Judd, 296, 297, 560. 
 Boyd v. Conklin, 275. 
 
 v. State, 528. 
 
XX 
 
 CASES CITED. 
 
 Boyd v. "Woolwine, 362. 
 Boye v. Albert Lea City, 2015. 
 Boyer v. Little Falls, 341, 345. 
 Boyer, Ex parte. 33, 67. 
 Boyington v. Squires, 214. 
 Boykin v. Shaffer, 142, 143. 
 Boyle v. Mulholland, 23. 
 
 v. Musser, 241. 
 Boynton v. Gilman, 263. 
 v. Longley, 217, 279. 
 v. Miller, 76. 
 
 v. Peterboro' R. Co., 244. 
 v. Rees, 213, 318, 328. 
 Brace v. Union Forwarding Co., 92. 
 v. Yale, 208, 209, 218, 305, 313, 334. 
 Brackett v. Persons Unknown, 37, 
 
 169, 195. 
 Bradbury v. Manchester Ry. Co., 507. 
 Braddock Ferry Co.'s Appeal, 142. 
 Bradfield v. Dewell, 540, 557, 558. 
 Bradford v. Cressey, 46, 56, 197, 199, 
 200, 363. 
 v. McClelland, 194. 
 Bradford Corp. v. Pickles, 290. 
 Bradley v. Amis, 412, 413, 415. 
 v. Fallbrook Ir. District, 241. 
 v. Harkness, 231, 234. 
 v. Rice, 27, 56, 196, 200, 203. 
 v. South Carolina Phosphate Co., 
 
 145. 
 v. Tittabawassee Boom Co., 103. 
 v. Warner, 191, 318a. 
 Bradley Fish Co. v. Dudley, 99, 100, 
 
 341. 
 Bradshaw v. Duluth 1. M. Co., 138, 
 179. 
 v. Lankford, 38, 189. 
 v. Rogers, 255. » 
 
 Bradstreet v. Erskine, 590. 
 Bradt v. Albany, 261. 
 Bradwell v. Dewell, 210. 
 Brady v. Blackinton, 580, 584, 594, 599. 
 v. Detroit S. Co., 288. 
 v. Weeks. 121. 
 Brain v. Marf ell, 280, 286. 
 Brainard v. Boston, 127. 
 
 v. Connecticut River R. Co., 122. 
 Braine v. Summers, 392. 
 Braisted v. Brooklyn & R. B. R. Co., 
 
 289. 
 Brake v. Crider, 55. 
 Brakely v. Sharp, 362. 
 Brakken v. Minneapolis Ry. Co., 105, 
 
 423. 
 Bramlett v. Tees Conservancy 
 
 Com'rs, 161. 
 Branch v. Doane, 214, 300, 335, 336, 
 337, 342, 377, 385, 392, 395, 405. 
 Brandt v. McKeever, 36. 
 Branham v. Blencoe Creek Turnpike 
 
 Co., 166. 
 Branson v. Studabaker, 299. 
 Braristetter v. Williams, 231. 
 Brastow v. Rockport Ice Co., 84, 191. 
 
 Brattle Square Church v. Grant, 464. 
 Braxton v. Bressler, 46, 55, 69, 93a. 
 Bray v. Marshall, 349. 
 Brayton v. Fall River, 92, 122, 123, 
 
 124. 
 Brearly v. Norris, 193. 
 Breaux v. Bienvenu, 241. 
 Brecknock Township Road, In re, 
 
 362. 
 Breed v. Breed, 162. 
 
 v. Lynn, 122, 123, 152. 
 Breen v. Locke, 31. 36, 175. 
 Brent v. Haddon, 392, 394, 426. 
 Bresler v. Pitts, 318a. 
 Brett v. Beales, 141. 
 Breuck v. Holyoke, 262. 
 Brew v. Haren, 23, 24. 25, 189. 
 Brewer v. Boston R. Co.,, 123, 250. 
 Brewster v. 3. & J. Rogers Co., 241. 
 Briar v. Job's Creek D. Com'rs, 241. 
 Brice v. Randall, 55. 
 Brickett v. Haverhill Aqueduct, 84, 
 250, 439. 
 v. Morris, 46, 52, 208. 
 Brickner Woolen Mills Co. v. Henrv. 
 478. * 
 
 Bridge's Case, 161. 
 Bridge v. Grand Junction Ry. Co., 92, 
 
 128. 
 Bridge Proprietors v. Hoboken Co., 
 
 146. 
 Bridgeman v. Hardwick, 251. 
 Bridgeport, The, 96. 
 Bridgeport v. New York, etc. R. Co., 
 
 255. 
 Bridges v. Highton, 183, 185. 
 v. Lanham, 619. 
 v. Purcell, 324. 587, 621. 
 Bridgewater Trustees v. Bootle-cum- 
 
 Linacre, 11, 27, 202. 
 Briggs v. Cape Cod Ship Canal, 241. 
 v. Knickerbocker Ice Co., 191. 
 v. Murdock, 188. 
 v. N. Y. Central R. Co., 139. 
 v. Pfeil, 123, 173. 
 v. Swanwick, 185. 
 Brigham v. Holmes, 597, 599. 
 v. Ross, 311. 
 v. Smith, 306. 
 v. Wheeler, 583. 
 Bright v. Farmers' Highline Canal 
 Co., 473. 
 v. Walker, 330, 338. 
 Brightman v. Fairhaven, 122. 
 Bright Star, The, 34, 35, 130. 
 Brimmer v. Boston, 255. 
 
 v. Long Wharf, 37, 162. 
 Brinckerhoff v. Starkins, 189. 
 Brink v. Kansas City R. Co., 256. 
 
 v. Richtmyer, 99, 100, 166. 
 Brisbane v. O'Neall, 363, 366. 
 Brisbine v. St. Paul, etc. R. Co., 76, 
 
 105, 148, 150. 157, 179, 181. 
 Briscoe v. Drought, 41, 264. 
 
CASES CITED. 
 
 XXI 
 
 Bristol v. Carroll County, 76, loo. 
 
 v. Morgan, 21. 
 
 v. Ousatonic W. Co., 187, 188. 
 Bristol Door Co. v. Bristol, 363. 
 Bristol Harbor Case, 21. 
 Bristol Hydraulic Co. v. Boyer, 211c, 
 
 224, 478. 
 Bristol Manuf. Co. v. Gridley, 122. 
 Bristol W. W. Co. v. Uren, 205. 
 Bristow v. Cormioan, 18, 23, 52, 53, 
 
 80, 81. 
 Britain v. Cromford Canal, 36. 
 British Cast Plate Manuf. Co. v. MeTe- 
 
 deth, 143. 
 British North America Bank v. Miller, 
 
 356. 
 British South Africa Co. v. Compan- 
 
 hia de Mocambique, 441. 
 Britton v. Green Bay W. Co., 245a. 
 
 v. Hill, 185. 189. 
 Broadbent v. Ramsbotham, 218, 265, 
 
 279, 283, 352. 
 Broadhead v. Milwaukee, 242. 
 Broadmoor Dairy Co. v. Brookside 
 
 W. & I. Co., 205, 238. 
 Broadnax v. Baker, 146. 
 Broadway Ferry Co. v. Hankey, 119. 
 Broadwell v. Swigert, 96. 
 Brock v. Barnett, 241. 
 
 v. Hishen, 244. 
 Broder v. Saillard, 267, 296. 
 
 v. Water Co., 240. 
 Bronson r. Coffin, 302, 351, 448. 
 
 v. Taylor, 136. 
 
 v. Wallingford, 272. 
 Bronte Harbour Co. v. White, 147. 
 Brook v. Willett, 340. 
 Brooke v. Winter, 215, 220. 
 Brookfield v. Walker, 212. 
 Brookhaven v. Smith, 36. 
 
 v. Strong, 21, 31, 188, 189, 195. 
 Brookline v. Mackintosh, 223, 339. 
 Brooklyn, In re, 138, 241. 
 Brooklyn v. Mackay, 168, 304a. 
 
 v. Smith, 69, 191, 196. 
 Brooklyn Park Com'rs v. Armstrong, 
 
 151, 175. 
 Brooks v. Britt, 196. 
 
 v. Cedar Brook Impr. Co., Ill, 
 248. 
 
 v. Curtis, 293. 
 
 v. Davenport R. Co., 252. 
 Brookville Hydraulic Co. v. Butler, 
 
 191. 
 Broome v. Mordant, 374. 
 Brophy v. Richeson, 76. 
 Brotherton v. Manhattan Beach 
 
 Impr. Co., 26. 
 Broughton v. Carter, 369. 
 Broussard v. Sabine, etc. Ry. Co.; 256. 
 Brower v. Merrill, 211, 212, 594. 
 Brown v. Ashley; 224, 519, 543. 
 
 V. Atlanta.-211, 211c, 298. 
 
 v. Best, 204, 342, 488. 
 
 Brown v. Black, 108, 111. 
 
 v, Bowen, 210, 323, 376, 377. 
 
 v. Brown, 24, 379. 
 
 v. Bush, 204. 
 
 v. Bussell, 391. 
 
 v. Camden R. Co., 64 
 
 v. Carkeek, 177, 304a. 
 
 v. Carolina Central R. Co., 256, 
 
 555. 
 v. Catlettsburg, 117. 
 v. Cayuga R. Co., 136, 256, 394. 
 v. Chadbourne, 53, 54, 56, 99, 102, 
 
 108, 109, 110, 111, 128, 132, 
 
 200, 363. 
 v. Chicago, etc. R. Co., 211. 
 v. Collins, 90, 102, 206. 
 v. Com., Ill, 121, 132, 579, 581, 
 
 608. 
 V, Cunningham, 191. 
 v. Dean. 218. 222, 493. 
 v. Doubleday, 495. 
 v. Dunstable Corp., 223. 
 v. Ellicott, 119. 
 v. Evans, 349. 
 v. Farmers' High-Line Canal Co., 
 
 233 
 v. Goddard, 138, 165, 172. 
 v. Gugy, 124, 149, 160. 
 v. Heard, 199. 
 ' v. Houston, 35. 
 v. Huger, 194. 
 v. Illius, 278, 280, 288. 
 v. Keener, 241. 
 v. Kentfield, 95, 108. 
 v. King, 338, 339. 
 v. Kistler, 213. 
 v. Lakeman, 27, 29. 
 v. Lynn, 89. 
 v. McAllister, 266, 278. 
 v. Mallett, 98. 
 v. Maryland, 35, 129. 
 v. Milliman, 194. 
 v. Morris Canal Co., 171. 
 v. Mullin, 228. 
 v. Nye, 37. 
 v. Pancoast, 304a. 
 v. Perkins, 128. 
 v. Pine Creek Ry. Co., 211c. 
 v. Preston, 43, 139. 
 v. Providence Railroad, 252. 
 v. Reed, 91. 
 v. Smith, 236. 
 v. Spalding, 350. 
 v. Susquehanna Boom Co., 298. 
 v. Swanton, 495. 
 v. United States, 169. 
 v. Watson, 126. 
 v. Windsor Ry. Co., 160. 
 v. Wood worth, 300, 368, 478. 
 v. Worcester, 244. 
 Brown Oil Co. v. Caldwell, 71. 
 Brown Paper Co. v. Dean, 392. 
 Browne v. Kennedy, 21. 31, 32, 58, 91, 
 
 159, 176, 182, 189, 196. 
 
XXII 
 
 CASES CITED. 
 
 Browne v. Scofield, 53, 57, 108, 126, 
 132 
 
 v. Stone, 89, 95, 96. 
 
 v. Trustees, 348. 
 Brownell v. Gratiot Supervisors, 472. 
 
 v. Old Colony R. Co., 193. 
 Brownlow v. Metropolitan Board of 
 
 Works, 115, 160. 
 Brubaker v. Paul, 53, 121, 128. 
 Brace's Case, 66. 
 Bruce v. Morgan, 194, 197. 
 
 v. State, 388. 
 
 v. Taylor, 62, 194. 
 
 v. Willis, 101. 
 Brucklesbank v. Smith, 92. 
 Bruening v. Dorr, 285. 
 Brugger v. Butler, 305, 307, 459. 
 Brumagim v. Bradshaw, 27, 196, 199. 
 Brune v. Thompson, 120. 
 Bruning v. New Orleans Canal Co., 
 
 126. 
 Brunswick Gas Light Co. v. Bruns- 
 wick Village Corp., 261. 
 Bryan v. Branford, 139. 
 
 v. Burnett, 583. 
 
 v. East St. Louis, 55. 
 
 v. Idaho Quartz M. Co., 311. 
 Bryant v. Bigelow Carpet Co., 257, 
 589. 
 
 v. Foot, 184. 
 
 v. Glidden, 584, 597, 601. . 
 
 v. Robbins, 241. 
 
 v. Whistler, 324. 
 Brymbo Water Co. v. Lesters Lime 
 
 Co., 340. 
 Buccleuch v. Cowan, 219, 382, 398. 
 
 v. Met. Board of Works, 124, 149, 
 150, 151. 
 Buchanan v. Duluth, 261. 
 
 v. Grand River Log Co., 110, 547. 
 Buchert v. Boyertown, 270. 
 Buck v. Adams, 128. 
 
 v. Spofford, 540. 
 
 v. Squires, 46, 196, 197, 200. 
 Buckbee v. Brown, 113, 114, 120. 
 Bucker v. Athens Manuf. Co., 211c. 
 Buckeridge v. Ingram, 101. 
 Buckeye, The, 91. 
 Buckeye State, The, 120. 
 Buckhurst. The. 89, 96. 
 Bucki v. Cone, 76. 
 Buckingham v. Elliott, 211. 
 
 v. Fisher, 113. 
 
 v. Plymouth W. Co., 219. 
 
 v. Smith, 241, 329. 
 Buckley's Case, 33. 
 Buckley v. Blackwell, 197. 
 
 v. Buckley, 366. 
 
 v. Gilmore, 194. 
 Bucklin v. Truell, 337, 343. 
 Buck Mountain Coal Co. v. Lehigh 
 
 Coal Co., 552. 
 Buckner v. Anderson, 194 
 Budd v. Brooke, 201. 
 
 Budd.u. New York. 244. 
 
 v. Sipp, 187, 189. 
 Buddington v. Bradley, 204, 205 r 
 
 330. 
 Buell v. Long, 66, 67. 
 Buffalo, Re, 255. 
 Buffalo v. Delaware, etc. R. Co., 105, 
 
 119, 151. 
 Buffalo Iron Works v. Buffalo, 118. 
 Buffalo Pipe Line Co. v. New York 
 
 R. Co., 57. 
 Buffum v. Harris, 41, 265. 
 
 v. Hutchinson, 310. 
 Bulbrook v. Goodere, 21. 
 Bull v. Bell, 574. 
 
 v. Valley Falls Co., 511, 579. 
 Bullard v. Saratoga Manuf. Co., 208* 
 
 210, 214. 
 Bullen v. Runnels, 300, 318, 341. 
 Buller v. Society, 507. 524. 
 Bullock v. The Lamar, 68. 
 v. Smith, 194. 
 v. Wilson, 74. 
 Bulstrode v. Hall, 4, 18, 50. 
 Bulwer's Case, 428, 429, 430, 436, 439, 
 
 445. 
 Bumstead v. Cook, 306, 355. 
 Bunch v. Wolerstein, 247. 
 Buncombe Turnpike Co. v. McCarson, 
 
 144. 
 Bunderson v. Burlington, etc. R. Co., 
 
 273. 
 Bunnel v. Read, 570. 
 Bunten v. Chicago, etc. Ry. Co., 210, 
 
 353. 
 Bunting v. Hicks, 285, 358. 
 Buras v. O'Brien, 155. 
 Buras Levee District Com'rs v. Mia.- 
 
 legvich, 178. 
 Burbank u Ditch Co.. 211c, 330. 
 
 v. Fay, 251, 331, 532. 
 Burden v. Mobile. 481. 
 
 v. Stein, 241, 245, 506, 534, 
 Burdge v. Underwood, 233. 
 Burdick v. Glasko, 478. 
 Bureau v. Marshall, 292. 
 Burford v. Grand Rapids, 261. 
 Burgess v. Clark, 254, 621. 
 Burgner v. Humphrey, 289. 
 Burhop v. Milwaukee, 145. 
 Burk v. Simonson, 241. 
 Burke v. Carlinville W. Co., 471. 
 v. Chicago San. District, 251. 
 v. Mo. Pac. Ry. Co., 273, 275. 
 v. Niles, 155. 203. 304a. 
 v. People, 121, 435. 
 Burkhalter r, Edwards, 146. 
 Burleigh v. Lumbert, 602. 
 Burlington, The. 114. 
 Burlington v. Beasley, 143, 254. 
 Burlington Ferry Co. v. Davis, 35. 
 Burnett v. Boston, 241. 
 v. Com., 241. 
 v. New York, 272. 
 
CASES CITED. 
 
 XX111 
 
 Burnett v. Nicholson, 210, 211b, 412, 
 420. 
 v. Thompson, 196. 
 v. Whitesides, 238. 
 Burnham v. Freeman, 234. 
 v. Hotohkiss, 93, 128. 
 v. Kempton, 305, 330, 333, 343. 344, 
 502, 512, 51 3, 517, 538, 540, 599. 
 v. Ramsev, 570. 
 v. Story, 579, 583. 
 v. Thompson. 253, 592, 617. 
 v. Webster, 187, 189. 
 Burnis v. Brown, 160. 
 Burnley Co-op. Society v. Pickles, 160. 
 Burns v. Clarion Co., 13. 
 
 v. Greaves, 197. 
 Burr v. Dana, 105. 
 
 v. Mills, 354, 356. 
 
 Burris v. People's Ditch Co., 237, 328. 
 
 Burroughs v. Housatonic R. Co., 588. 
 
 v. Satterlee, 542. 
 
 v. Whitwam, 86. 
 
 Burrows v. Burrows, 228. 
 
 v. Gallup, 43. 103, 119, 168, 170, 335. 
 v. Pixley, 123. 
 Burton v. Chattanooga, 260. 
 
 t7. Dougherty, 125. 
 Burwell v. Cannady, 210. 
 
 v. Hobson, 160, 513, 548, 555. 
 v. Port Burwell Harbor Co., 115. 
 v. Sneed, 495. 
 Busby v. Chesterfield W. Co., 205. 
 Busch v. New York, etc. Ry. Co., 278. 
 Buse v. Russell, 155. 
 Bush v. Dubuque, 365. 
 v. Golden, 540. 
 v. Portland, 272. 
 v. Trowbridge W. W. Co., 254. 
 v. Western, 506, 507, 534. 
 Bushnell v. Proprietors, 220. 
 Buszard v. Capel, 181, 304a. 
 Butchers' Ice Co. v. Philadelphia, 
 
 252, 261. 
 Butchers' Slaughtering & M. Ass'n 
 
 v. Com., 251. 
 Butchers' Union Co. v. Crescent City 
 
 Co.. 243. 
 Butler v. Ashworth, 210, 222. 
 
 v. Boston & Savannah S. S. Co., 2. 
 v. Edgewater. 261, 272. 
 v. Grand Rapids & I. R. Co., 75. 
 v. Huse, 307, 453, 599. 
 v. Peck, 266, 271, 276. 
 v. Sewer Com'rs, 244. 
 v. State, 136, 212. 
 v. Worcester, 261. 
 Butler Hard Rubber Co. v. Newark, 
 
 245, 301, 306. 
 Butman v. Hussey, 214, 227. 
 Butrick v. Tilton, 185. 
 Butte Canal Co. v. Vaughn, 229, 238, 
 
 239 543. 
 Butte Mining Co. v. Morgan, 228, 229, 
 237. 
 
 Buttenuth v. St. Louis Bridge Co., 69. 
 Butterfield v. Boston, 139. 
 
 v. Forrester, 92, 125. 
 
 v. Gilchrist, 90, 91, 95, 495. 
 
 v. Reed, 347. 
 Butterloss v. State, 223. 
 Butterworth v. Crawford, 360. 
 Butz v. Ihrie, 209, 307, 312, 351. 
 Buzzard v. The Petrel, 96. 
 Bybee v. Oregon, etc. R. Co., 240. 
 Bye, In re, 1. 
 Byers, Ex parte, 202. 
 Byrd v. Blessing, 209. 
 
 v. Ludlow, 178. 
 Byrne v. Chicago, 114. 
 
 v. Crafts, 231. 
 
 v. Farmington, 260. 
 
 v. Keokuk & W. R. Co., 256. 
 
 v. Minneapolis, etc. Ry. Co., 263 r 
 495. 
 Byrnes v. Cohoes, 261, 272. 
 Byron v. Stimpson, 124, 149. 
 
 c. 
 
 Cabell v. Vaughn, 396. 
 Cabot v. Kingman, 255, 289. 
 C. Accame, The, 33. 
 Cachapool, The, 96. 
 Cache La Poudre Ir. Co. v. Larimer 
 & Weld Res. Co., 229, 234, 235.. 
 
 v. Water Supply Co., 235. 
 Cadigan v. Brown, 121, 206. 
 Cady v. Conger, 105. 
 
 v. Springfield W. W. Co., 302. 
 Cage v. Trager, 234, 247. 
 Cagle v. Parker, 211. 
 Cahill v. Eastman, 296, 298. 
 
 17. Layton, 113. 
 Cairo, etc. R. Co. v. Brevoort, 210, 213,. 
 263. 
 
 v. Houry, 265. 
 
 v. Stevens, 268. 
 
 v. Turner, 243, 244. 
 Calahan v. Babcock, 1. 
 Calais v. Dyer, 594. 
 Caldwell v. Copeland, 329. 
 
 v. East Broad Top R. Co., 510. 
 
 v. McLaren, 111. 
 
 v. Sacramento County, 78, 109. 
 Caledonian Ry. Co. v. Ogilvy, 124. 
 
 v. Walker's Trustees, 124. 
 Calhoun v. Palmer, 587, 609. 
 
 v. Rourke, 357. 
 California, The. 35. 
 California Nav. Co. v. Union Transps- 
 
 Co., 105, 521. 
 California Oil Co. v. Miller, 549. 
 California Tel. Co. v. Alta TeL Co.,. 
 
 193. 
 Calk v. Stribiing, 197. 
 Calking v. Baldwin, 145, 582. 
 Call v. Buttrick, 128, 364 
 
XXIV 
 
 CASES CITED. 
 
 Call v. Lowell, 164. 
 Callahan v. Des Moines, S72. 
 
 v. Dunn, 241. 
 Callender v. Lagos, 30. 
 Calliope, The, 114. 
 Calmady v. Howe, 4, 6, 14, 18, 22, 23, 
 
 24,28. 
 Calvert v. Aldrich, 328. 
 Calvin's Case, 30. 
 Calvin P. Harris, The, 114. 
 Cambre v. Colin, 155, 157. 
 Camden v. Creel, 46, 196. 
 Camden Land Co. v. Lippinoott, 155. 
 Camden, etc. R. Co. v. Briggs, 142, 
 144. 
 
 v. Finch, 120. 
 Cameron Furnace Co. v. Penn. Canal 
 
 Co., 65. 
 Camp n Barre, 222. 
 Campbell v. Bear River Mining Co., 
 232, 298. ' 
 
 v. Boyd, 115. 
 
 v. Branch, 104 
 
 v. Brown, 4. 
 
 v. Dwiggins, 246. 
 
 v. Hall, 30. 
 
 v. Laclede Gas Light Co., 155. 
 
 v. Nicolini, 264. 
 
 v. Penn. R. Co.. 96. 
 
 v. Portland Sugar Co., 113. 
 
 v. Seaman, 121. 
 
 v. Shivers, 331, 349. 
 
 v. Smith, 227, 329, 330. 
 
 v. State. 555. 
 
 V. Talbot, 334. 
 
 v. West, 238, 329. 
 
 v. Wilson, 330, 341. 
 Canadian Pac. Ry. Co. v. Parke, 241, 
 
 296. 
 Canal Appraisers v. People, 57, 64, 82, 
 
 143, 249. 
 Canal Com'rs v. East Peoria, 121, 534 
 
 v. People, 27, 30, 54, 82, 166, 195, 
 198, 203, 243. 
 Canal Co. v. Hill, 304. 
 
 v. Railroad Co., 145. 
 Canal Trustees v. Haven, 69, 76, 204 
 Canfield v. Andrew, 206, 208, 213, 218, 
 220, 410, 534, 544, 561. 
 
 v. Erie, 96. 
 Canham v. Fisfc, 313. 
 Canima, The, 89. 
 Cannon v. Boyd, 355. 
 
 v. New Orleans, 34, 35, 142. 
 
 v. St. Joseph, 271. 
 Cannovan v. Conklin, 113. 
 Canoe Creek v. McEniry, 97. 
 Cansler v. Henderson, 196, 197. 
 Cantell v. Knoxville, etc. R. Co., 135. 
 Canton Iron Co. v. Biwabik B. Co., 
 
 340. 
 Canton, etc. R. Co. v. Paine, 273. 
 Canyonville Road Co. v. Stephenson, 
 145. 
 
 Cape v. Thompson, 210, 300, 334 
 Cape Elizabeth v. County Com'rs, 
 
 134, 139. 
 Cape Girardeau v. Campbell, 138. 
 Carbrey v. Willis, 280, '293, 337, 358, 
 
 360. 362. 
 Card v. McCaleb, 191. 
 Cardiff v. Cardiff Water Works, 507, 
 
 525. 
 Cardoza v. Calkins, 236. 
 Cardwell v. American River Bridge 
 
 Co., 35, 39, 68, 131, 133. 
 Cargill v. Thompson, 211b, 304 
 Cargo of Lumber, A, 120. 
 Carhart v. Auburn Gas Co., 219, 375. 
 Carl v. West Aberdeen Land Co., 110. 
 Carland v. Aurin, 266. 
 Carleton v. Franconia Iron & Steel 
 Co., 113, 114 
 v. Redington. 300, 323, 324 392, 
 393, 395. 
 Carleton Mills Co. v. Silver, 318. 
 Carl Frederick, The, 92. 
 Carli v. Stillwater Street Ry. Co., 149, 
 
 150. 
 Carlin v. Chappel, 289. 
 Carlisle v. Blamire, 450. 
 v. Cassady, 194 
 
 v. Cooper, 210, 212, 263, 329, 336, 
 337, 340, 341, 343, 344 348, 349, 
 506, 526, 530, 534, 537, 551, 553. 
 v. Graham, 4, 158, 159, 183, 189. 
 v. State, 71. 
 
 v. Stevenson, 520, 521, 530, 552. 
 Carll v. Northport, 268, 271. 
 Carlson v. St. Louis Dam Co., 90, 243. 
 Carlyon v. Lovering, 220, 329, 345, 491. 
 Carman v. Standaker, 234 
 Carmen v. Clarion River Nav. Co., 
 
 144 
 Carmichael v. Texarkana City, 261. 
 Carollton R. Co. v. Winthrop, 99, 105, 
 
 157. 
 Carondelet Canal Co. v. Parker, 35, 
 
 143. 
 Carpenter v. Gold, 510. 
 v. Mann, 122, 125, 127. 
 v. Rogers, 40. 
 v. Spencer, 590. 
 v. State, 101, 103. 
 Carpentier v. Webster, 231. 
 Carr v. Foster, 335. 
 v. Lowry, 302, 447. 
 v. Northern Liberties, 262, 270. 
 Carraway v. Witherington, 194 
 Carrick v. Johnston, 55. 
 
 v. Lamar, 155. 
 Carriger v. East Tennessee R. Co., 
 
 266, 273. 
 Carroll v. Casemore, 570. 
 v. Cockey, 462. 
 v. New York, 113. 
 v. New York Life Ina Co., 304a. 
 v. Price, 40, 174, 177. 
 
OASES CITED. 
 
 XXV 
 
 Carrollton F. M. Co. v. Carrollton, 113. 
 Carron v. Wood, 228. 
 Carrow v. Bridge Co., 145. 
 Carrutliers v. Tillman, 412, 415. 
 Carsley v. White, 96. 
 "Carson v. Blazer, 4, 3l', 63, 65, 182, 246. 
 , v. Coleman, 122, 244, 248. 
 
 v. Gentner, 240. 
 
 v. Perry, 570. 
 Carson River Co. v. Barrett, 40. 
 Carson R. L. Co. v. Patterson, 35. 
 Carstairs v. Taylor, 296. 
 Carter v. Berlin Mills Co., 108, 391. 
 
 v. Chesapeake Ry. Co., 196. 
 
 v. Clark, 194. 
 
 v. Harlan, 321. 
 
 v. Murcot, 4, 21, 46, 48, 50, 91, 121, 
 183, 189. 
 
 v. Oldham, 200. 
 
 v. Page, 323. 
 
 v. Thurston. 53, 54, 56, 90, 102, 108. 
 Cartwright v. Canandaigua G. L. Co., 
 
 189. 
 Caruthers v. Pemberton, 236. 
 Carvell v. Charlottetown, 111. 
 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. Hoffman, 63, 302, 321, 569. 
 
 v. Toftus, 39, 40, 168. 
 
 v. Weber, 208, 218, 373. 
 Casebeer v. Mowry, 210, 211c. 
 Casement v. Brown, 98. 
 Casey v. Ingloes, 21, 58, 176. 
 Cash v. Auditor, 112. 
 
 v. Thornton, 228. 
 
 v. Whitmore, 247. 
 Casher v. Holmes, 141. 
 Casler v. Shipman, 318, 320, 344, 351. 
 Cass v. Dicks, 264. 
 
 v. Pennsylvania R Co., 331. 
 Cass County v. G, B. & Q. R. Co., 135. 
 Cassell v. Crothers, 291. 
 Cassidy v. Old Colony R. Co., 273. 
 Castalia T. C. Co. v. Castalia S. Co., 
 
 281. 
 Castello v. Landwehr, 78, 92, 137. , 
 Castle v. Elder, 194. 
 
 v. Smith, 388. 
 Castner v. The Dr. Franklin, 68, 76. 
 Caswell v. Johnson, 183. 
 Cataraqui Bridge Co. v. Holcomb, 96. 
 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. 
 Catskill, The, 96. 
 
 Cattle v. Stockton Water Works, 296. 
 Cauble v. Hultz, 272. 
 
 Cavanaugh v. Boston, 363. 
 Cave v. Calmes, 586, 610, 611. 
 
 v. Crafts, 240. 
 Cawkwell v. Russell, 365. 
 Caygill v. Thwaite, 135. 
 Cayuga Bridge Co. v. Stout, 145, 146. 
 C, B. & Q. R. Co. v. Chicago, 242, 
 258. 
 
 v. Emmert, 251. 
 
 v. Porter, 78, 157. 
 
 v. School District No. 1, 135. 
 
 v. Twine, 123. 
 C, C, C. & St. L. Ry. Co. v. Logan 
 
 Countv Com'rs, 267. 
 C. D. Jr., The, 128. 
 Cedar Falls v. Hansen, 269. 
 Cedar Lake Hotel Co. v. Cedar Lake 
 
 Hydraulic Co., 84, 561. 
 Cemetery Ass'n v. Meninger, 55. 
 Center Creek W. & Ir. Co. v. Lind, 
 
 238. 
 Central Bridge Co. u. Abbott, 147. 
 Central Ir. District v. De Lappe, 174. 
 Central R. Co. v. Kent, 258. 
 
 v. Wood, 212. 
 Central Trust Co. v. Wabash, etc, Ry. 
 
 Co., 135, 256. 
 Central Wharf v. India Wharf, 37, 
 
 153, 162, 195. 
 Centralia v. Wright, 251. 
 Cessill v. State, 166, 200. 
 Chabert v. Russell, 22. 
 Chad v. Tilsed, 21, 22, 23. 
 Chadeayne v. Robinson, 218. 
 Chadwick v. Marsden, 319, 357. 
 Chaffe v. Trezevant, 247. 
 Chalk v. McAlily, 210, 214, 333, 341. 
 
 v. Wyatt, 24, 534. 
 Chalker v. Dickinson, 183, 189. 
 Chalkley v. Richmond, 545. 
 Challenor v. Thomas, 471. 
 Chalmers v. Dixon, 296. 
 Chamber Colliery Co. v. Hopwood, 
 468. 
 
 v. Rochdale Canal Co., 196, 289, 
 296. 
 Chamberlain v. Baltimore R Co., 273. 
 
 v. Hemingway, 41, 225. 
 
 v. West End of London Ry. Co., 
 150, 251. 
 Chambers v. Church, 38. 
 
 v. Furry, 99, 103, 105. 
 
 v. Kyle, 211a, 241, 535. 
 Chambliss v. Johnson, 247. 
 Champion v. Crandon, 261. 
 
 v. Doughty. 426. 
 Champlain R. Co. v. Valentine, 57, 82, 
 
 136, 158, 198, 203. 
 Chandler v. Calumet & H. Co., 36. 
 
 v. Douglass, 133. 
 
 v. Howland, 218. 
 
 v. Jamaica Pond Aq. Co., 348. 
 
 v. Pittsburgh Plate-Glass Co., 291. 
 
 v. State, 145. 
 
XXVI 
 
 CA.SES CITED. 
 
 Changing; the Boundary Line of a 
 
 Town, 203. 
 Channel Co. v. Railroad, 241. 
 Chan Sing v. Portland, 261. 
 Chapel v. Smith, 271. 
 Chapin v. Bourne, 39. 
 
 v. Crusen, 133, 145. 
 Chapman v. Albany R. Co., 143. 
 v. Aukland Union, 552. 
 v. Clark. 247. 
 
 v. Copeland, 213, 214, 215, 405. 
 v. Edmands, 199. 
 v. Edwards, 195. 
 v. Fylde W. Co., 248. 
 v. Gates, 244. 
 v. Groves, 616. 
 
 v. Hoskins, 36, 58, 155, 176, 189. 
 v. Kimball, 18, 25, 32, 37, 56, 155, 
 
 158, 170. 
 v. Lamb, 4. 
 v. Morgan, 426. 
 v. Newmarket M. Co., 605. 
 v. Oshkosh & Miss. R. Co., 150, 
 
 152. 
 v. Rothwell, 113. 
 v. State, 113. 
 
 v. Thames Manuf. Co., 214, 366, 
 404, 405. 
 Chappell v. Jardine, 5. 
 
 v. United States, 242. 
 Charles v. Finchley Local Board, 223, 
 278, 544 
 v. Monson Manuf. Co., 595, 597. 
 v. Porter, 599. 
 Charles River Bridge v. Warren 
 Bridge, 31, 36, 145, 146, 249, 
 255. 
 Charleston & S. R. Co. v. Johnson, 43. 
 Charleston Rioe Mining Co. v. Ben- 
 nett, 194. 
 Charlestown v. County Com'rs, 43, 
 86, 108, 109, 139. 
 v. Tufts, 164, 169, 199. 
 Charlestown Branch Railroad v. Mid- 
 dlesex, 244 
 Charlotte v. Pembroke Iron Works, 
 
 203, 212, 584 
 Charlotte Road, The, 96. 
 Charnock v. Higuerra, 233. 
 
 .„ v. Rose. 229, 231. 
 Chase v. American S. S. Co., 1, 5, 9, 32. 
 v. Baker, 187. 
 v. Corcoran, 90, 192. 
 v. Dwinal, 147. 
 v. Middleton, 338. 
 v. New York Central R. Co., 211a, 
 
 419. 
 v. Silverstone, 280, 284 
 v. Steel, 231. 
 
 v. Sutton Manuf. Co., 255, 599. 
 v. Warsaw W. W. Co., 349, 535. 
 Chasemore v. Richards, 41, 43, 55, 
 148. 204, 206, ' 214, 216, 227, 
 280, 281, 283, 284, 334 
 
 Chatfield v. Wilson, 205, 214, 265, 28fr, 
 
 290, 405. 
 Chattanooga v. Dowling, 210. 
 Chattaroi Rv. Co. v. Kinner, 136. 
 Chauvet v. Hill, 333. 
 Cheever v. Pearson, 338. 
 Cheeves v. Danielly. 211a. 
 Chelsea Dyehouse Co. v. Com., 252. , 
 Chelsea W. Co. v. Bowley, 101. 
 Chenango Bridge Co. v. Lewis, 145>. 
 146, 398. 
 
 v. Paige, 55, 57, 143, 246. 
 Cheney v. Guptill, 1, 27, 185. 
 Cherokee Nation v. Georgia, 30. 
 Cherry v. Stein, 293. 
 Chesapeake Canal Co. v. Key, 241. 
 
 v. Young, 241. 
 Chesapeake, etc. R Co. v. Bobbett, 
 213, 215. 
 
 v. Chambers, 581. 
 Cheshire v. Adams Reservoir Co., 
 
 594 
 Cheshire Mills v. Gowing, 540. 
 Chesley v. King, 290. 
 
 v. Miss. Boom Co., 95. 
 Chesma'n v. Two Ferry Boats, 33. 
 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. 
 Chiatovitch v. Davis, 231, 234 
 Chicago v. Dermody, 116. 
 
 v. Huenerbein, 211, 211a. 
 
 v. Joney. 116. 
 
 v. Laflin, 69, 99, 120, 179. 
 
 v. Law, 117, 118, 129. 
 
 v. McGinn, 35, 69, 132, 133, 143. 
 
 v. McGraw, 143, 144 
 
 v. Reed, 512. 
 
 v. Rock Island R Co., 211a. 
 
 v. Taylor, 124 
 
 v. Van Ingen, 69. 
 
 v. Ward, 158. 
 
 v. Wisconsin S. S. Co., 135. 
 Chicago Dock Co. v. Kinzie, 76. 
 Chicago Oil Co. v. United States Pe- 
 troleum Co., 291. 
 Chicago, etc. R. Co. v. Blume, 252. 
 
 v. Carey, 211, 256, 257, 419, 624 
 
 v. Chappell, 258. 
 
 v. Chicago & E. R. Co., 255.' 
 
 v. Clinton, 202. 
 
 v. Conners, 273. 
 
 v. Cosper, 252. 
 
 v. Donelson, 495. 
 
 v. Emmert, 211a. 
 
 v. Gardner, 341. 
 
 v. Glenney, 210, 222, 273. 
 
 v. Greiney, 252. 
 
 v. Groh, 333. 
 
 v. Henneberry, 256, 259, 263. 
 
 v. Hoag, 211c, 332, 334 
 
CASES CITED. 
 
 XXV11 
 
 Chicago, etc. R. Co. v. Iowa, 143. 
 
 v. Kelley, 157. 
 
 v. Lake, 242, 255. 
 
 v. Maher, 386, 416, 418, 419, 571, 
 574. ' 
 
 v. McGlinn, 242. 
 
 v. Moffitt, 248a, 256. 
 
 v. Moore. 260. 
 
 v. Morrow. 41, 264. 
 
 v. O'Neill, 256. 
 
 v.. Riley, 273. 
 
 v. Robbins. 210. ' 
 
 v. Schaffer, 210, 258. 
 
 v. Schoeneman, 574. 
 
 v. Stein, 69. 78. 150, 255, 418. 
 
 v. Sutton, 222. 
 
 v. Willi, 353. 
 Chick v. Newberry County, 193. 
 
 v. Rollins, 596. 
 Chico Bridge Co. v. Sacramento 
 
 Transp. Co., 33. 
 Chicosa Ir. Ditch Co. v. El Moro 
 
 Ditch Co., 300. 
 Chidesteru Cons. Ditch Co., 211c, 232. 
 
 v. Lethbridge, 126. 
 Child v. Boston, 123, 261. 
 
 v. Chappell, 120. 
 
 v. Greenhill, 183, 185. 
 
 v. Starr, 27, 41, 197, 200. 
 
 v. Whitman, 234. 
 Childers v. Neely, 231. 
 Chilton v. Adams, 24. 
 
 v. London, 184. 
 Chilvers v. People, 35. 
 China v. Southwick, 211c, 298. 
 Chincleclamouche Lumber Co. v. 
 
 Com., 135. 
 Chipman v. Palmer, 222, 398. 
 C. H. Northam, The. 89. 
 Chisolm v. Caines, 86, 108, 168. 
 Choate v. Burnham, 318. 
 Cholmondeley v. Clinton, 338. 
 Christ Church Inclosure Act, In re, 
 
 331. 
 Christian v. Van Tassel, 114. 
 Christian Smith's Case, 388. 
 Christian M. B. Co. v. Fasse, 362. 
 Christmas, Re, 141, 144. 
 Christmas v. Oliver, 322. 
 Christopher Columbus, The, 96. 
 Church v. Chambers, 62, 71. 
 
 v. Hubbart, 2, 4. 9, 11, 16. 
 
 v. Meeker, 25, 27, 28, 30, 31, 32, 37, 
 
 103, 170, 189. 
 v. Still'well, 233. 
 Churchill v. Baumann, 213, 349, 534. 
 v. Beethe, 272. 
 v. Grundy, 194. 
 v. Lauer, 222, 263. 
 Church Wardens v. Robertson, 4. 
 Chusan, The, 34. 
 Chy Lung v. Freeman, 35. 
 Cilly v. Cincinnati, 534. 
 Cincinnati, The, 96. 
 
 Cincinnati v. Hamilton Co., 105. , 
 v. Penny, 241. 
 
 v. Presbyterian Church, 105. 
 v. White, 105. 
 Cincinnati Packet Co. v. Catletts- 
 
 burg, 35. 
 Cincinnati R. Co. v. Ahr, 160, 268, 273. 
 
 v, Zinn, 255. 
 Cire v. Rightor, 156, 157. 
 Citizens' Water Co. v. Bridgeport 
 
 Hydraulic Co., 458. 
 City of Augusta, The, 96. 
 City of Erie, The, v. Canfield, 108, 110. 
 City of Hartford, The, 96. 
 City of Pekin, The, 96. 
 City of Richmond, The, 87, 89, 92. 
 City of Toledo, The, 67. 
 City Power Co. v. Fergus Falls W. 
 
 Co., 304. 
 Clack v. White, 241. 
 Claflin v. Boston & A R. Co., 310. 
 Clamorgan v. Hornsby, 194. 
 Clan Gordon, The, 92. 
 Clancy v. Byre. 113, 175. 
 
 v. Houdlette, 31, 37, 169. 
 Clapp v. Boston. 243, 252. 
 v. Herrick, 218, 589. 
 
 v. Manter, 596. 
 Clara, The, 96. 
 Clara Killam, The, 93, 96. 
 Claremont v. Carlton, 56, 166, 196. 
 Claremont Bridge v. Royce, 142. 
 Clarita, The, 96: 
 Clarity v. Sheridan, 331. 
 Clark, Re, 331. 
 Clark v. Bonnycastle, 23. 
 
 v. Brown, 301. 
 
 v. Cambridge Impr. Co., 112, 243, 
 530. 
 
 v. Campau, 75, 162, 163, 165. 
 
 v. Chamberlain, 192. 
 
 v, Chicago Ry. Co., 125. 
 
 v. Clapp, 290. 
 
 v. Clark, 30. 
 
 v. Close, 321, 324. 
 
 v. Cogge, 314. 
 
 v. Conroe, 280, 286, 291, 303, 458, 
 460. 
 
 v. Dasso, 89. 
 
 v, Debaugh, 315. 
 
 v. Des Moines, 118. 
 
 v. Durland, 85. 
 
 v. Dyer, 256, 353. 
 
 v. Glidden, 323. 
 
 v. Hannibal R. Co., 253, 273. 
 
 v. Lake, 140. 
 
 v. Lake St. Clair Ice Co., 93, 128. 
 
 v. Lanier, 210. 
 
 v. Lawrence, 288. 
 
 v. Nelson Lumber Co., 102. 
 
 v. Nevada Land Co., 211, 412, 420. 
 
 v. Peckham, 92, 123, 126, 138, 149, 
 150, 152, 153, 172. 
 
 v. Penn. R. Co., 205, 251, 257, 259. 
 
XXV111 
 
 CASES CITED. 
 
 Clark v. Plummer, 540. 
 
 v. Providence, 123. 
 
 v. Balls, 326. 
 
 v. Reeves, 36. 
 
 v. Richards, 331. 
 
 v. Rochester, 271. 
 
 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. Clark, 35. 
 
 v. French, 222, 493. 
 
 v. Hall Lumber Co., 111. 
 
 v. Midland G. W. Ry., 210. 
 
 v. Somersetshire Drainage Com- 
 missioners, 342, 346. 
 
 v. Southwick, 575. 
 
 v. Wagner, 166, 333. 
 Clarksville Land Co. v. Harriman, 
 
 574. 
 Clason v. Milwaukee, 117. 
 Classen v. Chesapeake Guano Co., 176. 
 Clatsop Chief, The, 67. 
 Clausen v. Chicago & N. W. Ry. Co., 
 
 273. 
 Clauser v. Jones, 323. 
 Clawson v. Primrose, 329. 
 Claxton v. Claxton, 279, 404. 
 Clay v. Hart, 302, 584. 
 
 v. Pennoyer Creek Impr. Co., 103, 
 111, 143, 253. 
 
 v. St. Albans, 261. 
 
 v. Thackrah, 491, 503. 
 Clayton v. Carby, 24. 
 Clearyu Oceanic Steam Na v. Co., 113. 
 Cleaveland v. Norton, 36, 189. 
 Clee v. Sanders, 241. 
 Clegg v. Dearden, 210, 294, 421. 
 Clement v. Burns, 18, 24, 25, 32, 56, 
 122, 123, 139, 168, 169, 189, 190. 
 
 v. Durgin, 300, 322, 599. 
 
 v. Gould, 213, 318, 349. 
 Clement M. Co. v. Wood, 211b. 
 Clements v. Philadelphia Co., 291. 
 
 v. West Troy, 111. 
 Cleveland, etc. R. Co. v. Ball, 150. 
 
 v. Huddleston, 263. 
 
 v. King, 210. 
 Cleveland S. & T. Co. v. Bear Valley 
 
 Ir. Co., 241. 
 Cleveland W. Co. v. Redcar Local 
 
 Board, 245a. 
 Clifford v. Larrien, 230. 
 
 v. O'Neil, 120. 
 
 v. United States, 120. 
 Clifton Iron Co. v. Dye, 509, 532. 
 Cline v. Baker, 222. 
 Clink v. Thurston, 504. 
 Clinton v. Bacon, 22. 
 
 Clinton v. Buell, 185. 
 
 v. Englebrecht, 40. 
 
 v. Myers, 204, 208, 210, 218. 
 Clinton Bridge, The, 34, 35, 129, 132. 
 Clinton Gas Light Co. v. Fuller, 304, 
 
 348. 
 Clinton Oyster Ground, Re, 190. 
 Close v. Samm, 210, 214, 583. 
 Clothier v. Webster, 115. 
 Clowes v. Beck, 24. , 
 
 v. Staffordshire W. W. Co., 219, 
 223, 404, 520, 534, 544. 
 Cloyes v. Keatts, 142. 
 Clute v. Briggs, 112, 594 
 
 v. Carr, 321, 323. 
 
 v. Fisher, 70, 85. 
 Clyde v. Clyde, 415. 
 Clyde Nav. Trustees v. Blantyre, 113. 
 
 v. Laird, 41. 
 Clyde S. S. Co. v. Charleston, 35. 
 Clymene, The, 35. 
 Clyne v. Benicia W. Co., 238, 317. 
 Coal Float, A. 147. 
 Coalter v. Hunter, 213, 334, 512, 530, 
 
 532, 557. 
 Coast Line R. Co. v. Cohen, 121. 
 Coates v. Campbell, 241. 
 
 v. New York, 121, 128. 
 Coats v. Clarence Ry. 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. 
 
 v. Illinois & St. Louis R. Co., 248a. 
 
 v. Lavalle, 156. 
 
 v. Slimmer, 532. 
 
 v. Smith, 75, 103, 110, 132, 133,210, 
 211c, 244, 253, 323, 329, 412, 
 512, 530. 586. 
 Coburn v. Ames, 39, 97, 120, 171, 174, 
 179, 304a. 
 
 v. Middlesex Co., 312. 
 
 v. San Mateo County, 76, 174 
 Cocheco v. Strafford, 605. 
 Cooheco Manuf. Co. v. Strafford, 203. 
 
 v. Whittier, 310, 312. 
 Cochran v. Fort, 156, 157. 
 
 v. Wood, 621. 
 Cochrane v. Com., 251. 
 
 v. Maiden, 272. 
 
 v. Minto, 79. 
 Cock v. Vivian, 120. 
 Cocker v. Cowper, 227, 300, 322. 1 
 Cockey v. Smith, 32, 176. 
 Cockrell v. McQuinn, 62, 194 
 Coddington v. White. 175. 
 Codling v. Johnson, 346. 
 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. 
 
OASES CITED. 
 
 SX1X 
 
 Coe v. Winnipiseogee Lake Co., 508, 
 510, 512, 520. 
 
 v. Wise, 115. 
 Coffin v. Left-Hand Ditch Co., 230, 
 234, 237, 240. 
 
 v. Portland, 105. 
 Coffman v. Robbins, 206, 576, 577. 
 Coffrin v. Cole, 338, 544. 
 Coggswell v. Essex Mill Co., 122, 136, 
 
 250, 582. 
 Cogswell v. Forrest, 177. 
 Cohen v. Bellenot, 261. 
 Conn v. Wausau Boom Co., 75, 103, 
 
 1,08, 179, 181, 241. 
 Coker v. Simpson, 236. 
 Colburn v. Richards, 217, 363. 
 Colby v. La Grange, 546. 
 
 v. Spokane, 511, 523. 
 Colchester v. Brooke, 4, 20, 21, 26, 42, 
 43, 86, 87, 92, 96, 98, 102, 128, 
 141, 189. 
 
 17. Goodwin, 340. 
 Cold Spring Iron Works v. Tolland, 
 
 196, 197, 202. 
 Coldwater v. Tucker, 262, 546. 
 Coldwell v. Sanderson, 228. 
 Cole v. Bradbury, 354. 
 
 v. Eastham, 84. 
 
 v. Haynes, 200. 
 
 v. Lake Co.. 299, 570. 
 
 v. Logan, 229, 238. 
 
 v. Mahoney, 138. 
 
 v. Sprowl, 123, 126. 
 
 v. Wells, 194, 196. 
 Cole Silver Mining Co. v. Virginia W. 
 Co., 233, 281, 287, 542, 543, 552. 
 Colebreck v. Girdlers Co., 328. 
 Coleman, The, 96. 
 Coleman v. Andrews, 601. 
 
 v. Chadwick, 280, 295. 
 
 v. Manhattan Beach Imp. Co., 
 194. 
 
 v. Moody, 609. 
 
 17. Robertson, 199. 
 
 v. San Raphael Road Co., 37. 
 
 v. State, 333. 
 Colfax Tp. Conrrs v. East Lake Fork 
 
 D. District, 241. 
 Colgan 17. Forest Oil Co., 291. 
 Colket 17. Rightmire, 171. 
 Collard v. Eddy, 192. 
 Collett 17. London, etc. Ry. Co., 113, 
 203, 204. 
 
 17. Vanderburgh Co., 213. 
 Collier 17. Pierce. 360. 
 Collins 17. Benbury, 60, 182, 183, 185, 
 189. 
 
 17. Chartiers V. G. Co.; 281, 288. 
 
 17. Hall, 120. 
 
 17. Howard, 108. 
 
 17. Keokuk, 272. 
 
 17. Macon, 160. 
 
 17. Middle Levee Com'rs, 161. 
 
 17. Philadelphia, 262. 
 
 Collins 17. Plumb, 447, 572. 
 t7. Prentice, 306, 314, 362. 
 v. Slade, 300. 
 v. State. 159. 
 v. Waltham, 271. 
 Collis 17. Selden, 113. 
 Colon 17. Lisk, 189, 244 
 Coloney 17. Farrow, 218. 
 Colorado Land Co. v. Adams, 323. 
 
 17. Rocky Ford, etc. Co., 238. 
 Colorado M. Ry. Co. v. Brown, 251, 
 
 257. 
 Colorado Milling Co. 17. Larimer & 
 
 Weld Ir. Co., 233. 
 Colrick 17. Swinburne, 213. 
 
 v. Syracuse, 210. 
 Colton 17. Rossi, 244. 
 
 17. Smith, 120, 141. 
 Columbia Ave. etc. Co. 17. Georgia 
 
 Prison Commission, 545. 
 Columbia Bridge Co. u Geisse, 35. 
 Columbia Mining Co. 17. Holter, 235, 
 
 237, 512, 543. 
 Columbia W. P. Co. v. Columbia, 573, 
 576. 
 17. Columbia El. St. Ry. Co., 299. 
 Columbus, The, 98. 
 Columbus v. Grey, 119, 120. 
 
 17. Hydraulic Woollen Mills Co., 
 
 219, 260, 261, 545. 
 17. Jaques, 121. 
 17. Willard, 289. 
 Columbus, etc. R. Co. 17. City Mills 
 Co., 300. 
 17. Seattle, 157. 
 Columbus & Hocking C. & L Co. 17. 
 
 Tucker, 566. 
 Columbus Coal & Iron Co. v. Tucker, 
 
 220. 
 Columbus Gaslight Co. 17. Freeland, 
 
 208. 
 Columbus Ins. Co. 17. Curtinius, 132, 
 133. 
 17. Peoria Bridge Co., 93, 125, 132, 
 133, 134. 
 Columbus W. W. Co. u Long, 241. 
 Colvin 17. Burnett, 303. 
 Colwell u May's Landing Co., 305, 
 
 537. 
 Comanche 17. Zettlemoyer, 272. 
 Combridge 17. Harrison, 184. 
 Combs 17. Agr. Ditch Co., 229. 
 v. Scott, 194. 
 v. Slayton, 540. 
 Comet, The, 96. 
 Commerce, The, 33, 67. 
 Commercial Wharf v. Winsor, 113. 
 Cornins v. Turner's Falls Co., 594, 
 
 599. 
 Com'r of Highways v. Sperling, 212. 
 Commissioners, Re, 115. 
 Commissioners v. Beckwith, 46. 
 i;. Board of Public Works, 133. 
 v. Catawba Lumber Co., 109, 551. 
 
XXX 
 
 CASES CITED. 
 
 Commissioners v. Clark, 35, 120, 17o. 
 v. Detroit, 129. 
 v. Erie Ry. Co., 175. 
 v. Frost, 175. 
 
 v. Green Navigation Co., 35. 
 v. Holvoke W. P. Co., 36, 139, 182, 
 
 187, 253. 
 v. Hugo, 331. 
 
 v. Kempshall, 57, 196, 243, 246. 
 v. Peirce, 356. 
 v. Pidge, 71, 133, 136. 
 v. Queens County, 106. 
 v. State, 144, 474 
 v. Sweet, 272. 
 v. Taylor, 122. 
 v. Vanderbilt, 175. 
 v. Willamette Transp. Co., 242. 
 v. 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, 187, 
 195, 199. 
 v. Allegheny Bridge Co., 144. 
 v. Bailey, 20, 189. 
 v. Beatty, 591. 
 v. Beeson, 103. 
 v. Belding, 212. 
 v. Bender, 189. 
 v. Bilderback, 95. 
 v. Boston & Maine R. 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. 
 v. Clarke, 212. 
 v. Com'rs of Allegheny, 472. 
 v. Coombs. 139. 
 v. Crowninshield, 23, 95, 171. 
 v. Dearfield, 160. 
 v. Eliot, 84. 
 ' v. Ellis. 580, 598. 
 
 v. Erie Railway, 35, 130. 
 
 v. Essex Co., 88, 132, 187, 253. 
 
 v. Fans, 581, 587. 
 
 v. Fisher, 65, 143, 173, 211, 212, 
 
 249, 584 
 v. Fleming, 92, 97. 
 v. Frazer, 65. 
 v. Garner. 71, 202. 
 v. Gilbert, 189. 
 v. Gloucester, 139, 140. 
 v. Hilton, 188. 
 v. Howes, 121. 
 v. Hulings. 193. 
 v. King, 112. 
 v. Knowlton, 140. 
 
 Commonwealth v. Lohman, 189. 
 v. Look, 189. 
 v. Louisville, 119. 
 v. Lyons, 434 
 v. McCurdy, 187, 189. 
 v. McDonald, 121, 194 
 v. McLaughlin, 473. 
 v. McLoon, 7, 8, 11, 13, 429. 
 v. Manchester, 2, 4 5, 13, 16, 33, 
 
 38. 
 v. Manimon, 20. 
 v. May, 95. 
 
 v. Nashua Railroad, 140. 
 v. New Bedford Bridge Co., 132, 
 
 135, 140, 146. 
 v. Newbury, 37. 
 v. Newburyport Bridge, 144 
 v. Parker, 2. 
 v. Pease, 186. 
 
 v. Pennsylvania Canal Co., 136. 
 v. Perley, 84 189. 
 v. Peters, 5,' 244 
 v. Philadelphia, 105. 
 v. Phila. & Reading B, Co., 130. 
 v. Plumer, 581, 608. 
 v. Reed, 136. 
 v. Richardson, 84 
 v. Richter, 150. 
 v. Roxbury. 4, 5, 9, 13, 18, 27, 28, 
 
 30, 31, 32, 36, 37, 139, 169. 
 v. Ruggles, 121, 186, 187. 
 v. Russell, 544 
 v. Shaw, 173. 
 v. Skatt, 187. 
 
 v. Stevens, 212, 255, 261, 581, 584 
 v. Strickler, 92. 
 v. Supervisors, 472. 
 v. Taft, 248a. 
 v. Taunton, 132. 
 v. Tewksbury, 24 92. 
 v. Tiffany, 84, 187, 189. 
 v. Tolman, 110, 128. 
 v. Tucker, 106. 
 v. Upton, 121, 532, 533. 
 v. Vermont R. Co., 123. 
 v. Vincent, 42, 56, 84, 182, 187, 
 
 189, 191. 
 v. Weatherhead, 84, 189. 
 v. Webb, 212. 
 v. Weiber, 139. 
 v. Wilkinson, 142. 
 v. Wright, 18, 21, 95, 121. 
 v. Yost, 219, 261, 363. 
 v. Young Men's Christian Ass'n, 
 173, 194 
 Compagnie Francaise v. State Board 
 
 of Health, 35. 
 Compton v. Hankins, 105. 
 v. Richards, 354. 
 v. Susquehanna Railroad, 21. 
 v. Waco Bridge Co., 117, 146. 
 Comstock i\ Johnson, 318, 539. 
 v. New York C. R Co., 296. 
 Conant v. Jones, 229. 
 
CASES CITED. 
 
 XXXI 
 
 Concord v. Norton, 349. 
 
 Concord Manut Co. v. Robertson, 
 
 84. 
 ■Concord Railroad v. Greeley, 242, 252, 
 
 494. 
 Conde v. Schenectady, 112. 
 'Cone's Estate, 119. 
 Conger v. Weaver, 233, 235. 
 Congletoh v, Pattison, 302. 
 Conhocton Stone Road v. Buffalo, 
 
 etc. R. Co.. 273, 388, 394. 
 Conklin v. Boyd. 279. 
 
 . v. Old Colony R. Co., 241. 
 Conkling v. Pacific Imp. Co., 215, 236, 
 
 551. 
 Conley v. Chedic, 35. 
 Connecticut Mutual Ins. Co. v. Cross, 
 
 133. 
 Connecticut River Lumber Co. v. 01- 
 
 cott Falls Co., Ill, 318a. 
 Connehan v. Ford, 105. 
 Conner v. Woodfill, 293. 
 Conniff v. San Francisco, 260. 
 Connor v. Sullivan, 332. 
 •Connors v. McLaggan, 210. 
 Conover v. The John S. Daley, 92. 
 Conrad v. Arrowhead H. S. Hotel 
 
 Co., 224 
 Conservators of the Thames v. Lon- 
 don S. Authority, 21. 
 v. Smeed, 24, 41, 42. 
 Consett W. W. Co. v. Ritson, 289, 
 
 296. 
 Consolidated Canal Co. v. Mesa Canal 
 
 _ Co., 300, 548. 
 Consolidated Channel Co. v. Central 
 
 Pacific R. Co., 241. 
 Cons. H. S. Ditch Co. v. Hamlin, 210, 
 
 353 
 Constable's' (Henry) Case, 6, 21, 66, 
 
 192. 
 Constable's (John) Case, 3, 6, 7. 
 Constable v. Nicholson, 24. 
 Consumers' Gas Trust Co. v. Harless, 
 
 291. 
 Continental, The, 1. 
 Converse v. Symmes, 396. 
 Conway v. Taylor, 35, 62, 71, 133, 142, 
 
 145, 193. 
 Conwell v. Brookhart, 307. 
 
 v. Hagerstown Canal Co., 582. 
 Cook v. Bath, 121, 348. 
 
 v. Burlington, 105, 151, 157. 
 v. C, B. & Q. R. Co., 322, 323. 
 v. Champlain Transp. Co., 89. 
 v. Farrington, 199. 
 v. Hull, 214, 216, 217. 
 v. Kendall, 532, 620. 
 v. McClure, 155, 200, 203. 
 v. Oliver, 194. 
 v. Pridgen, 321, 323. 
 v. Stearns, 300, 321, 323. 
 v. Trimble, 302a. 
 Cooke v. Chilcott, 281, 447, 575. 
 
 Cooley v. Board of Wardens, 35, 129, 
 131. 
 
 v. Golden, 73, 155, 158. 
 Coolidge v. Hagar, 304, 356. 
 
 v. Learned, 24, 37, 105, 106, 121, 
 329, 330. 
 
 v. Williams, 104. 
 Cooling, Re, 249. 
 Coolman v. Fleming, 24 
 Coombes's Case, 66. 
 Coon v. Monongahela Nav. Co., 135. 
 Coonley v. Albany, 57. 
 Coonradt v. Hill, 234, 238. 
 Cooper, In re, 5. 
 Cooper v. Athens, 116, 146, 193. 
 
 v. Barber, 209, 214, 280, 345. 
 
 v. Blcfodgood, 171, 453, 456. 
 
 v. Cedar Rapids W. P. Co., 196, 
 315, 316. 
 
 v. Great Falls C. Co., 342, 343. 
 
 v. Hall, 208, 210, 214. 
 
 v. Louanstein, 310. 
 
 v. Overton, 297. 
 
 v. Phibbs, 185. 
 
 v. Smith, 65, 103, 173, 329. 
 
 v. Williams, 20, 99, 100, 143, 188, 
 204, 241, 245. 
 Coosaw M. Co. v. Carolina M. Co., 561. 
 Coovert v. O'Conner, 46, 65, 110, 111, 
 
 196. 197, 608. 
 Cope v. Vallette Dry Dock, 67, 120. 
 Copie v. I. de B., 314 
 Coram v. St. John, 116. 
 Corbett v. Jonas, 355. 
 Corby v. Hill, 113. 
 Corcoran v. Benicia, 269. 
 Corfield v. Coryell, 32, 33, 38, 64, 189. 
 Corley v. Lancaster, 349. 
 Cornelius v. Glenn, 60, 136, 188. 
 Cornes v. Harris, 368. 
 Corning v. Gould, 322, 351. 
 
 v. Lowerre, 121. 
 
 v. Saginaw, 134 
 
 v. Troy Iron Factory, 197, 204, 
 215, 322, 338, 350, 385, 420, 506, 
 513, 520, 521, 531, 534, 552, 553. 
 Cornish v. Chicago R. Co.. 273. 
 Cornish Bridge v. Richardson, 132. 
 Cornwall, The, 96. 
 Cornwall v. The New York, 89. 
 Cornwell Manuf. Co. v. Swift, 318, 
 
 335. 
 Correa v. Frietas, 237. 
 Correll v. Cedar Rapids, 278. 
 Corsey v. Hammond, 201. 
 Cortelyou v. Van Brundt, 24, 27, 30, 
 
 99, 100, 104, 105. 
 Cory v. Bristow, 14, 91, 101. 
 
 v. Silcox, 210, 214 
 Coryell v. Cain, 230, 235. 
 Coryton v. Lithebye, 476. 
 Costello v. Harris, 334, 338. 
 Coster v. Albany, 143. 
 
 v. Tide Water Co., 242, 244 
 
xxxu 
 
 CASES CITED. 
 
 Cotes v. Davenport, 261, 270. 
 Cott v. Lewiston E. Co., 136, 256. 
 Cotton v. Mississippi Boom Co., 123, 
 241, 520, 547, 548. 
 
 v. Pocasset Manuf. Co., 342, 594 
 Cotton Plant, The. 67. 
 Cottrell v. Marshall Infirmary, 298. 
 
 v. My rick, 121, 140, 187, 188, 253. 
 Couoh v. Charlotte E. Co., 495. 
 Couchman v. Thomas, 195. 
 Coulter v. Davis, 525. 
 Coulthard v. Davis, 158. 
 
 v. Stevens, 155. 
 County of Durham, The, 114 
 County of St. Clair v. Lovington, 76, 
 
 155, 194, 197. 
 County Com'rs, Re, 241. 
 County Com'rs v. Duckett, 115. 
 Courand v. Vollmer, 30. 
 Courier, The, 66. 
 Courtney v. Collet, 185, 369. 
 Courtwright v. Bear River Co., 123, 
 
 168, 233. 
 Coventon v. Seufert, 305. 
 Coverdale v. Smith, 271. 
 Covert v. Brooklyn, 210, 495. 
 
 v. Cranford, 256, 281. 
 
 v. Valentine, 412, 535. 
 Covil v. Hart, 318, 320. 
 Covington v. Becker, 214 
 Covington Harbor Co. v. Phoenix 
 
 Bridge Co., 129. 
 Cowan v. Glover, 609, 612. 
 
 v. Buccleuch, 382, 398. 
 
 v. Hardeman, 166. 
 Cowden v. Kerr, 71. 
 Cowdrey v. Woburn, 84, 245. 
 Cowellu Martin, 123, 138, 545, 547. 
 
 v. Thayer, 227, 336. 344, 599. 
 Cowles v. Gray, 105, 148. 
 
 v. Kidder, 204, 209, 211c, 227, 323, 
 405. 
 Cowley v. Copley, 247. 
 
 v. Newmarket Local Board, 113. 
 Cowling v. Higginsan, 335. 
 Cowper v. Baker, 24 
 
 v. Hall. 70. 
 Cox v. Arnold, 155. 
 
 v. Buis. 621. 
 
 v. Clough, 238, 335. 
 
 v. Forrest, 355. 
 
 v. Freedley. 200. 
 
 v. McClure, 312. 
 
 v. Mathews, 214 227, 354, 374. 
 
 v. New York, 92. 
 
 v. Paddington. 223. 
 
 v. State, 33, 54, 71, 92, 111, 130, 
 133, 435. 
 
 v. Ward, 337. 
 Coxe v. State, 175. 
 
 Coyne v. Miss. & E R. Boom Co., 90. 
 Crabtree v. Baker, 266, 267, 275. 
 Cracknell v. Thetford, 115, 160, 161. 
 Cragin v. Powell, 36. 
 
 Craig v. Allegheny, 241. 
 
 v. Kline, 34, 35, 130. 
 
 v. Lewis, 455, 580, 595. 
 
 v. Shippensburg, 211. 
 Craigendoran, The, 175. 
 Crain v. Beach, 466. 
 Crake v. Crake, 133. 
 Cramp, Re, 173. 
 Crandall, Ex parte, 130,132. 
 Crandall v. Allen, 155. 
 
 v. Nevada, 33, 34, 35, 131, 132; 
 
 v. Smith, 155. 
 
 v. State, 38. 
 
 v. Woods, 205, 230, 238. 
 Crandell v. Mooney, 126. 
 Crane v. Reeder, 19. 
 
 v. Winsor, 233. 
 Crapo v. Kelly, 1. 
 Crary v. Campbell, 231. 
 
 v. Port Arthur Channel Co., 244 
 Crawford v. Delaware, 123. 
 
 v. Minnesota Co., 233. 
 
 v. Parsons, 211b. 
 
 v. Rambo, 160. 
 Crawfordsville v. Bond, 261, 273. 
 Creek v. Bozeman W. W. Co., 229. 
 
 v. McManus, 561. 
 Creigg v. Boggs, 570. 
 Creighton v. Evans, 214 
 
 v. Kaweah Canal Co.; 543. 
 Crenshaw v. Slate River Co., 61, 128, 
 
 254 507, 549. 
 Crescent City Mill Co. v. Hayes, 510. 
 Crescent City Wharf Co. v. Simp- 
 son, 35. 
 Crescent M. Co. v. Silver KingM. Co., 
 
 229, 512. 
 Cress v. Varney, 320. 
 Crewson v. Grand Trunk Ry. Co., 41. 
 Crichton v. Collery, 183. 
 Grill v. Rome, 57, 121, 246. 
 Crippen v. Burroughs, 228. 
 
 v. Morss. 382, 383. 
 Crisman v. Heiderer, 232, 234 
 Criswell v. Clugh, 121, 128, 187, 579. 
 Crittenden v. Alger, 204. 
 
 v. Field, 305. 309. 539. 
 
 v. Wilson, 121, 122, 136, 243, 58t,. 
 582, 588. 
 Crocker v. New York, 138, 146. 
 
 v. Old South Society, 464 
 Crockett v. Millett, 584 
 Croft v. Rickmansworth H. Board,. 
 
 41. 
 Cromford Canal Co. v. Cutts, 296. 
 Cromie v. Trustees, 191, 241. 
 Crommelin v. Coxe, 292. 
 Crompton v. Lee, 161, 295. 
 Cromwell v. Selden, 320, 373. 
 Cronkhite v. Cronkhite, 323, 338. 
 Crook v. Hewitt. 148. 
 
 v. Old Point Comfort Hotel Co., 
 242. 
 
 v. Seaford, 163. 
 
CASES CITED. 
 
 XXX111 
 
 Crooke v. Flatbush W. Co., 255. 
 Crooker v. Benton, 305. 
 
 v. Bragg, 166, 205, 214. 
 Crosby v. Bessey, 214, 220, 345. 
 
 v. Bradbury, 305. 
 
 v. Hanover, 132, 146, 202, 242. 
 
 v. Smith. 110, 530, 537, 579, 591. 
 Crosland v. Rogers, 354. 
 Cross v. Kitts, 281, 543. 
 
 v. Lewis, 330, 331, 341. 
 
 v. Morristown, 23, 532. 
 
 v. Pike, 305. 
 Crossan v. Wood, 114. 
 Crossland v. Pottsville, 278. 
 Crossley v. Lightowler, 204, 214, 219, 
 220. 222, 223, 224, 342, 345, 
 348, 358, 404, 519, 544. 
 Crosville v. Stuart, 266. 
 Croucher v. Wilder, 120. 
 Crouse v. Chicago & N. W. R. Co., 
 
 298. 
 Crowder v. McDonnell, 470. 
 
 v. Tinkler, 121, 547. 
 Crowell v. Sonoma County, 298. 
 Crowhurtu Amersham Burial Board, 
 
 296. 
 Crowley v. Copley, 161. 
 Crown v. Leonard, 508, 510. 
 Crowther v. Oldfield, 477. 
 Cruikshanks v. Wilmer, 156. 
 Croysdale v. Sunbury-on-Thames 
 
 Urban Council, 277. 
 Crumbie v. Wallsend Local Board, 
 
 289. 
 Crump v. Mims, 143. 
 Cruse v. McCauley, 235, 240. , * 
 Crystal, The, 98. 
 Cubit v. O'Dett, 269. 
 Cuff v. Newark R Co., 134 
 Culbertson v. Knight, 270. 
 
 v. The Southern Belle, 95, 117. 
 
 v. Wabash Nav. Co., 132, 143. 
 Culver v. Chicago Ry. Co., 210. 
 
 v. Garbe, 251, 619. 
 Cumberland v. Willison, 243, 250, 271. 
 Cumberland Canal Co. v. Hitchings, 
 
 210, 259, 424 
 Cumberland County v. Central 
 
 Wharf S. T. Co., 135. 
 Cummings v. Barrett, 84, 191, 208, 214, 
 217, 410, 507. 
 
 v. Blanchard, 208. 
 
 v. Huse & Loomis Ice Co., 121. 
 
 v. Parker, 303. 
 
 v. Peters, 241. 
 
 v. Toledo, 261, 270. 
 Cummins v. Presley, 92. 
 
 v. Spruance, 20, 96. 
 Cunard S. Co. v. Voorhies, 175. 
 Cunningham v. Breed, 121. 
 
 v. Browning, 32. 
 
 v. Stein, 220. 
 Curling v. Wood, 114 
 Curran v. Louisville, 244 
 
 Currier v. Crosby, 120. v 
 
 v. Gale. 331. 
 Curry v. Cincinnati, 289. 
 Curtice v. Thompson, 388, 389, 392, 
 
 395. 
 Curtis v. Angier, 335. 
 
 v. Ayrault, 213, 263. 265, 360. 
 
 v. Eastern R. Co., 252, 273. 
 
 v. Francis, 37, 162. 
 
 v. Gardner, 310. 
 
 v. Jackson, 215, 315. 
 
 v. Kessler, 24, 57, 105, 108, 109, 111, 
 121, 547. 
 
 v. La Grange H. W. Co., 228, 31 8a, 
 349. 
 
 v. Noonan, 322, 351. 
 
 v. Norton, 305. 
 
 v. Smith, 305. 
 Curtiss v. Smith, 606. 
 Cushing v. Adams, 377. 
 
 v. Nantasket Beach R. Co., 160; 
 
 v. Pires, 267. 
 
 v. Worrick, 25. 
 Cushman v. Highland Ditch Co., 544 
 
 v. Smith, 244. 
 Cusick v. Adams, 113. 
 Cuthbert v. Lawton, 329, 348, 351. 
 Cuthbertson v. Shaw, 95, 96. 
 Cutler v. Howard, 115. 
 Cutter v. Tufts, 310, 312. 
 Cutts v. Hussey, 28. 
 Cuyler v. City Power Co., 245a. 
 
 D. 
 
 Daily v. Swope, 138. 
 Daggett v. Cohoes, 278. 
 Dakin v. Cornish, 214, 497. 
 Dallas v. McAllister, 261. 
 
 v. Young, 353. 
 Dallas L. Co. v. Urquhart, 241. 
 Dallas & W. Ry. Co. v. Kinnard, 
 
 256. 
 Dalrymple v. Mead, 65, 95, 99. 
 Dalton v. Bowker, 204, 229, 543. 
 
 v. Helm, 467. 
 
 v. Water Com'rs, 241. 
 Daly, In re, 251. 
 Daly v. Murray, 23, 25. 
 
 v. State, 194 
 Damour v. Lyons City, 269, 270, 272. 
 Dana, The, 66. 
 
 Dana v. Jackson St. Wharf Co., 120, 
 138, 140, 167, 174 
 
 v. Valentine, 336, 351. 
 Danaher v. Brooklyn, 219, 245a. 
 Dand v. Kingscote, 306. 
 Daneri v. Southern Cal. Ry. Co., 210. 
 Danforth v. Groton W. Co., 250. 
 Daniel v. Anderson, 355. 
 
 v. Chaffin, 328. 
 
 v. North, 331. 
 
 v. Princeton, 288. 
 
:kxxiv 
 
 CASES CITED. 
 
 Daniel Ball, The, 34, 35, 67, 111, 130. 
 
 Daniel Drew, The, 89. 
 
 Danielly v. Cheeves, 210. 
 
 Daniels v. Cheshire R. Co., 194, 200. 
 
 v. Citizens' Savings Inst'n, 344, 
 594. 
 
 v. Denver, 144 
 
 v. Lansdale, 236, 240. 
 Dans v. Jerkins, 87. 
 Danville v. Danville W. Co., 245a. 
 Danville Gravel Road Co. v. Camp- 
 bell, 118. 
 Dare v. Heathcote, 335. 
 Dare County Com'rs v. Currictuok 
 
 County Com'rs, 213. 
 Darge v. Horicon Iron Co., 599. 
 Darien Oyster Ground, Re, 190. 
 Dark v. Johnston, 291, 324. 
 Darley Main Colliery Co. v. Mitchell, 
 
 289. 
 Darling v. Blackstone Manuf. Co., 
 599. 
 
 v. Crowell, 311. 
 
 v. Thompson, 495. 
 Darlington v. New York, 175. 
 
 v. Painter, 330, 342, 366. 
 Darrall v. Southern Pao. Co., 114. 
 Darst v. Rush, 232. 
 Darwin v. Upton, 330. 
 Dashwood v. Magniao, 366, 468. 
 Daughtry v. Warren, 253. 
 Daum v. Conley, 234. 
 Dauntless, The, 1. 
 Dave & Mose, The, 114, 115. 
 David, Re, 115. 
 David v. Portland, 145. 
 David Dows, The, 96. 
 Davidheiser v. Rhoads, 275. 
 Davidson, Ex parte, 76, 112. 
 Davidson v. Boston & Maine Rail- 
 road, 132, 135, 165, 169, 244, 
 248a, 255, 257. 
 
 v. Fowler, 318. 
 
 v. Oregon R. Co., 273. 
 Daveis v. Collins, 334 
 Da vies v. Mann, 92, 128. 
 
 v. Marshall, 349. 
 
 v. Stephens, 335. 
 
 v. Thomas, 359. 
 Davis, In re, 144 
 Davis v. Afong. 280. 
 
 v. Atkins, i54, 542. 
 
 v, Brigham, 336, 344, 597. 
 
 v. Central Cong. Society, 113. 
 
 v. Central Vermont R. Co., 258. 
 
 v. Connolly, 193. 
 
 v. Crawfordsville, 271. 
 
 v. Du Pont, 194. 
 
 v. Frankenlust Tp., 510. 
 
 v. Fuller, 204 211c, 227, 330. 
 
 v. Gale, 213. 235, 237, 238, 239, 375. 
 
 v. Getchell, 204, 206, 217, 218, 219. 
 
 v. Herbert, 335. 
 
 v, Jenkins, 134. 
 
 Davis v. Jewett, 376, 379, 479, 480. 
 
 v. Londgreen, 271, 536. 
 
 v. Mattawamkeag L. D. Co., 374. 
 
 v. Mayor, 21. 
 
 v. Morgan, 335, 469. 
 
 v. Munoey, 320. 
 
 v. Munro, 222. 
 
 v. New Bedford, 245. 
 
 v. New York, 121. 
 
 v. Police Jury, 193. 
 
 v. Port Arthur Channel Co., 511. 
 
 v. Rainsford, 194, 318. 
 
 v. Sacramento, 582. 
 
 v. Spaulding. 286. 
 
 v. Stevens, 595. 
 
 v. Wilson, 303. 
 
 v. Winslow, 92, 95, 96, 108, 110, 
 121, 218. 
 Davison v. Hutchinson, 265, 274 1 
 Dawes v. Prentice, 162. 
 Daws v. McDonald, 41. 
 Dawson v. James, 71. 
 
 v. Moons, 609. 
 
 v. Norfolk. 331. 
 
 v. St. Paul Ins. Co., 121. 
 Day v. Allender, 105. 
 
 v. Cotnpton, 38. 
 
 v. Day, 58, 128, 176, 189, 363. 
 
 v. Pittsburgh R Co., 70. 
 
 v. Stetson, 104, 241. 
 
 v. Walden, 351. 
 Dayton v. Drainage Com'rs, 271. 
 
 v. Robert, 216. 
 
 v. Rutherford, 268, 510, 534 
 Dayton Mining Co. v. Seawell, 241, 
 
 242. 
 Deacon v. Shreve, 431. 
 De Acuna v. Joliff, 4. 
 Deaderick v. Oulds, 103. 
 Dean v. Benn, 349. 
 
 v. Colt, 227, 583: 
 
 v. Davis, 247. 
 
 v. Goddard, 333. 
 
 v. McLean, 373. 
 Deansville Cemetery Ass'n, Matter 
 
 of, 242. 
 Dearborn v. Boston R Co., 589. 
 Dearing v. Long Wharf, 37. 
 De Armes v. New Orleans, 30. 
 De Baca v. Santo Domingo, 228. 
 De Baker v. So. Cal. Ry. Co., 112, 248, < 
 
 248a, 262. 
 De Bary Baya Merchants' Line v. 
 
 Jacksonville Ry. Co., 120. 
 De Baun v. Bean, 208. 
 De Ben v. Gerard, 247. 
 De Boer v. Brooklyn Wharf Co., 116. 
 De Burgho's Estate, 52. 
 De Camp v. Burns, 143, 548. 
 
 v. Dix, 143. 
 
 v. Thompson, 111, 112, 246. 
 Decatur Gaslight Co. v. Howell, 268,~ 
 
 418. 
 Decker v. Baltimore R Co., 34, 243. 
 
OASES CITED. 
 
 XXXV 
 
 Decker v. Fisher, 189. 
 
 v. Jaques, 118. 
 Decorah Woolen Mill Co. v. Greer, 
 
 211a, 211b, 344. 
 De Costa v. Mass. Mining Co., 422, 
 
 424. 
 Bedriok v. Wood. Ill, 608. 
 Deerfield v. Arms, 46, 155, 162, 163, 
 
 164. 166. 
 Deering v. Long Wharf, 169. 
 (Defer v. Detroit, 272. 
 Defiance W. Co. v. dinger, 296. 
 De Force v. Welch, 177. 
 Degan v. Dunlap, 119. 
 De Graffenried v. Savage, 323. 
 De Gruy v. Aiken, 113. 
 De Guyer v. Banning, 77. 
 Deigleman v. N. Y. Ry. Co., 273. 
 Dekay v. Darrah. 331. 
 Delachaise's Succession v. Maginnis, 
 
 157. 
 Delahoussaye v. Judice, 266. 
 Delamere v. The Queen, 483. 
 De Lancey v. Hawkins, 333. 
 
 v. Piepgras, 175. 
 De Laney v. Blizzard, 121, 123, 368, 
 
 555.- 
 Delaney v. Boston, 58, 121, 225, 340, 
 
 555 
 v. Penn. R Co., 113. 
 Delaphine v. Chicago Ry. Co., 75. 76, 
 
 85, 103, 149, 150, 160, 179, 203. 
 DeLapp v. Kansas City, etc. R. Co., 
 
 273. 
 Delaware, The, 96. 
 Delaware Canal Co. v. Lawrence. 35, 
 
 93, 95, 140, 168, 175. 
 v. Lee. 126, 136. 210, 257, 589. 
 v. Raritan R. Co., 189. 
 v. Torrey, 135. 405. 
 v. Wright, 343. 412. 
 Delaware & H. Canal Co. v. Buffalo, 
 
 118. 
 v. Goldstein, 161. 
 Delaware Division Canal Co. v. Com., 
 
 136, 212. 
 Delaware, L. & W. R Co. v. Reich, 
 
 297. 
 Delaware, etc. R. Co. v. Brecken- 
 
 ridge, 291. 
 v. Hannon, 163, 164. 
 v. Mehrholf Bros. B. & M. Co., 135. 
 v. Stump, 37, 121, 176, 189. 
 Delaware River S. Co. v. Burlington 
 
 Ferry Co., 96. 
 De la Warr v. Miles, 24. 
 Delhi v. Youmans, 280, 281, 290, 542. 
 Dell Rapids Mercantile Co. v. Dell 
 
 Rapids, 261. 
 Delord v. New Orleans, 163. 
 De Lovio v. Boit, 4, 5, 66, 441. 
 Demby v. Kingston, 546. 
 Demeyer v. Legg, 196. 
 Demopolis v. Webb, 108, 157. 
 
 Dempsey v. Delaware Co., 114. 
 Den v. Jersey City, 20, 31, 72. 
 
 v. Morris Canal Co., 257. 
 De Necochea v. Curtis, 228, 236, 240. 
 Denison Paper Manuf. Co. v. Robin- 
 son Manuf. Co., 218. 
 Denman v. Prince. 540. 
 Denner v. Chicago Ry. Co., 368, 555. 
 Denning v. State, 115. 
 Dennis v. Wilson, 301. 
 Denniston v. Unknown Owners, 103. 
 Denny v. Cotton, 155. 
 
 v. No. Pac. Ry. Co., 177. 
 Denslow v. New Haven Co., 136, 256, 
 
 582, 587, 588, 595. 
 Dent v. Auction Mart, 223. 
 
 v. Bournemouth Corp., 223. 
 Denton v. Leddell, 312, 361, 506, 534 
 Denver v. Mullen, 128. 
 
 v. Pearce, 46. 
 
 v. Rhodes, 271. 
 Denver City Ir. Co. v. Middaugh, 250. 
 Denver, etc. Ry. Co. v. Denver City 
 Ry. Co., 121. 
 
 v. Pulaski Ir. Ditch Co., 210. 
 Department of Public Parks, Re, 250. 
 Depew v. Board of Trustees, 133, 136, 
 212. 
 
 v. Wabash & Erie Canal, 132. 
 Derbyshire County Council v. Derby, 
 
 223. 
 Derby Turnpike Co. v. Parks, 136. , 
 Dermott v. State, 31, 323. 
 Deny v. Flitner, 119. 
 
 v. Ross, 511. 
 Deseret Ir. Co. v. Mclntyre. 429. 
 Deshon v. Porter, 318, 320. 
 Des Jardins v. Thunder Bay R B. 
 
 Co., 194. 
 Desser v. Bosanquet, 147. 
 Detroit v. Blackeby, 13, 116. 
 
 v. Corey, 262. 
 
 v. Detroit Ry. Co., 55. 
 Detwiler v. Toledo, 210, 538. 
 Devato v. 823 Barrels of Plumbago, 
 
 175. 
 De Vaughn v. Minor, 349. 
 Dever v. South Bay Boom Co., 143. 
 Devery v. Grand Canal Co., 210, 412. 
 Devoe v. Penrose Ferry Bridge Co., 
 
 130. 
 Devoe Manuf. Co., Re, 175. 
 Devonshire v. Eglin, 535. 
 
 v. Hodnett, 21, 32, 189. 
 
 v. O'Connor, 99. 
 
 v. Pattinson, 52, 80, 183, 195, 196. 
 Dewees v. Adgar, 120. 
 Dewein v. Peoria, 262. 
 Dewey v. Bellows, 320. 
 
 v. Superior Court, 509. 
 
 v. Williams, 318. 
 Dewhirst v. Wrigley, 506, 527, 535. 
 De Witt v. Harvey, 304, 320. 
 
 v. Havs. 120. 
 
XXXVI 
 
 CASES CITED. 
 
 De Wolf v. Punchard, 120. 
 Dexter v. Jefferson P. Co., 306, 344 
 v. Providence Aq. Co., 280. 
 v. Riverside & O. Mills, 211b. 
 Dexter S. Co. v. Frontenao Paper 
 
 Co., 305, 306. 
 Deyo v. Ferris, 321. 
 Diamond Match Co. v. New Haven, 
 
 261. 
 Diamond Plate Glass Co. v. Echel- 
 
 berger, 291. 
 Dibble v. Seligson, 96. 
 Dice v. McCauley, 318a. 
 Dick v. Bird, 238. 
 v. Caldwell, 235. 
 v. Webster, 210, 421. 
 Dickens v. Shaw, 6, 19, 22, 24, 27, 192. 
 Dickenson v. Breeden, 69. 
 
 v. Grand Junction Canal Co., 320, 
 538. 
 Dickey v. State, 55. 
 Dickinson v. Amherst W. Co., 250. 
 v. Boyle, 211c, 421. 
 v. Codwise, 155, 175. 
 v. Grand Junction Canal Co., 204, 
 
 280, 281, 283. 
 v. Worcester, 41, 267, 270, 275, 279. 
 Dickson v. Carnegie, 208, 
 
 v. Central Pacific R. Co., 394. 
 v. Chicago R. Co., 210, 416. 
 Diedrich v. Northwestern Ry. Co., 21, 
 63, 75, 82a, 85, 105, 148, 149, 
 150, 160, 179, 181. 
 Dierks v. Com'rs, 541. 
 Dietrich v. Schremms, 132. 
 Dietrick v. Noel, 335. 
 Dietz v. Mission Transfer Co., 305, 
 
 342. 
 Diffendal v. Virginia Ry. Co., 306, 
 
 510. 
 Dill v. Wareham, 20, 188. 
 Dilling v. Murray, 204, 208, 213. 
 Dillingham v. Roberts, 199. 
 
 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. Gardiner, 579, 594. 
 Dinn v. Queen, 111. 
 Direct U. S. Cable Co. v. Anglo- 
 American Tel. Co., 4, 5, 13. 
 Dismal Swamp Canal Co. v. Com., 
 
 146. 
 Disney v. Coal Creek Mining Co., 194. 
 Dissette v. Lowrie, 263, 280. 
 District Attorney v. Lynn R. Co., 148, 
 
 152. 
 District Board v. London County 
 
 Council, 474. 
 District of Columbia v. Gray, 261. 
 
 v. Johnson, 119. 
 Dittmar v. New Braunfels, 511. 
 
 Dively v. Cedar Falls, 118. 
 Dixon v. Baker, 270. 
 v. Covert, 570. 
 v. Eaton. 583. 
 
 v. Met'n Board of Works, 248. 
 v. Schermeir, 238. 
 v. White, 283. 
 Dixson v. Snetsinger, 56, 120. 
 Dize v. Lloyd, 35. 
 D. Newcomb, The, 114 
 Doan v. Metcalf, 415, 318, 320. 
 Doane v. Badger, 328. 
 
 v. Broad St. Ass'n, 37, 169, 195. 
 v. Weil, 145. 
 
 v. Willcutt, 28, 29, 195, 199. 
 Dobbins v. Brown, 456. 
 
 v. Mo. etc. Ry. Co., 273, 297. 
 Dobson v. Blackmore. 376, 378. 
 Dodd v. Burchell, 306, 314 355, 358, 
 362. 
 v. Williams, 136. 
 Dodge v. Berry, 191. 
 
 v. County Com'rs, 150, 252. 
 v. Gallatin, 175. 
 v. McClintock, 324 
 v. Marden, 238, 240. 
 v. Stacy, 392. 
 v. Van Lear, 126. 
 Dodridge v. Thompson, 200. 
 Dodson v. Fort Smith, 13. 
 
 v. Parker, 160. 
 Doe v. Beebe, 40. 
 v. Butler, 351. 
 v. East India Co., 31. 
 v. Georgia R Co., 244 
 v. Hilder, 348. 
 v. Hildreth, 194 
 v. Hill, 166. 
 v, Littlehale. 37. 
 v. Oliver, 504 
 v. Redfern, 18. 
 v. Reed, 331. 
 v. Wood, 145. 
 Doe d. West v. Howard, 22. 
 
 v. York, 21. 
 Doerbaum v. Fisher, 268. 
 Dogerty v. Power. 13. 
 Dole v. Hickey, 561. 
 Dolliff v. Boston & Maine Railroad, 
 
 360. 
 Donahoe v. Kansas City, 261. 
 Donaldson v. Lucett, 194. 
 Donalson v. Lawson, 241. 
 Doncaster Union v. Manchester, S. & 
 
 L. Ry. Co., 241. 
 Donegall v. Templemore, 23. 
 Donnebaum v. Tinsley, 194 
 Donnell v. Clark, 37, 334 
 v. Humphreys, 234, 305. 
 v. Joy, 189. 
 Donnelly v. Luzerne County, 584 
 Donohue v. Chase, 243. 
 v. New York, 261. 
 Donovan v. New Orleans, 155. ! 
 
OASES CITED. 
 
 XXXV11 
 
 Dora Mathews, The, 119. 
 
 Doran v. Cunningham, 185. 
 
 Dore v. Gray, 91. 
 
 Dorgan v. Weeks, 194 
 
 Dority v. Dunning, 94 
 
 Dorian v. East Brandywine R. Co., 
 
 252 259 
 Dorman v. Ames, 209, 211c, 388, 389, 
 
 399, 412, 456, 620. 
 Dormont v. Furness Railway, 98, 115. 
 Dome v. Cashi'ord, 477. 
 Dorr v. Hammond, 237. 
 
 v. Waldron, 67. 
 Dorris v. Sullivan, 323. 
 Dosoris Pond Co. v. Campbell, 329. 
 Dotson v. Sibert, 612. 
 Doty v. Gorham. 193. 
 
 v. Lawson, 456. 
 Douchette v. Little Falls Impr. Co., 90. 
 Doud v. Guthrie, 209, 210. 
 
 v. Mason City Ry. Co., 250. 
 Dougal v.' Wilson, 380. 
 Dougherty v. Bunting, 122. 
 
 v. Creary, 231, 239. 
 
 v. Haggin, 236. 
 Doughty v. Conover, 189. 
 Douglas, The, 98. 
 Douglas County Road v. Canyonville 
 
 Road Co., 145. 
 Douglass's Appeal, 103. 
 Douglass v. State, 121, 212. 
 Doulson v. Matthews, 426, 430, 436. 
 Douty v. Bird. 294 
 Dover v. Portsmouth Bridge, 32, 130, 
 
 132 
 Dow v. Ede's, 318. 
 
 v. Electric Co., 605. 
 
 v. Wakefield, 185. 
 Doward v. Lindsay, 89. 
 Dowell v. General Steam Nav. Co., 96. 
 Downes v. Elmira Bridge Co:, 113. 
 Downing v. Agr. Ditch Co., 234 
 
 v. Mason County, 262. 
 
 v. More, 272. 
 Downs v. Ansonia, 269. 
 Doxey v. Long Island R. Co., 135. 
 Doyle v. San Diego L & T. Co., -302. 
 
 v. Sycamore, 412. 
 Drainage, In re, 212. 
 Drake v. Chicago Ry. Co., 210, 211a, 
 273, 419. 
 
 v. Curtis, 37, 162, 169. 
 
 v. Earhart, 205. 240. 
 
 v. Hamilton Woolen Co., 218, 594 
 
 v. Lady Ensley Coal Co., 219. 
 
 v. New York, etc. R. Co., 211c. 
 
 v. Sault Ste. Marie Pulp & Paper 
 Co., 126. 
 
 v. Schoenstedt, 562. 
 
 v. Wells, 324 
 Draper v. Mackey, 121. 
 Drew, The, 89. 
 Drew v. Hilliker, 82, 189. 
 
 v. Westfield, 260. 
 
 Drewett v. Sheard, 264, 340, 491. 
 Drexel v. Berney, 349. 
 
 v. Lake, 261. 
 Dreyfus v. Peruvian Guano Co., 561. 
 Drinkhouse v. Spring Valley Water- 
 works, 426. 
 Drinkwater v. Porter, 37. 
 
 v. Sauble, 364. 
 Driscoll v. Taunton, 251, 349. 
 Driver v. Simpson, 91. 
 Druley v. Adam, 204, 213, 375. 
 Drummond v. Hinckley, 318. 
 Drury v. Midland Railroad, 23, 122, 
 
 169. 
 Dryden v. Jepherson, 318, 333. 
 Dubois v. Glaub, 588. 608. 
 Dubose v. Levee Com'rs, 247. 
 Dubuque v. Stout, 118. 
 Duchess, The, 96. 
 Duchess of Kingston's Case, 504. 
 Dudden v. Clutton Union, 41, 218, 264, 
 
 285, 536. * 
 Dudley v. Buffalo, 261. 
 
 v. Camden Ferry Co.. 193. 
 v. Camden R. Co., 193. 
 v. Kennedy, 126. 
 Dudley Canal Nav. Co. v. Grazebrook, 
 
 296. 
 Duesler v. Johnstown, 509. 
 Dufour v. Stacey, 193. 
 Dugan v. Baltimore, 119, 176. 
 
 v. Bridge Co., 135. 
 Dugger v. McKesson, 31. 
 Dukes v. Gostling, 482. 
 Duley v. Kelley, 105. 
 Duluth Lumber Co. v. St. Louis Boom 
 
 & Impr. Co., 35, 67, 133, 142, 
 
 141. 
 Dumas v. Garnett, 177. 
 Dumont v. Kellogg, 206, 208, 213, 214, 
 
 227, 409. 
 Dunbar v. Vinal, 53, 139. 
 Duncan v. Markley, 122, 412. 
 v. Navassa Phosphate Co., 1, 
 v. Sylvester, 99, 100, 169, 384, 416. 
 Duncombe v. Randall, 204, 402. 
 Dundy v. Chambers, 321. 
 Dungarvan Guardians v. Mansfield, 
 
 286. 
 Dunham v. Joyce, 340. 
 v. Kilpatrick, 291. 
 v. Lamphere, 5, 9, 13, 16, 38, 130, 
 
 189. 
 Dunham T. & W. Co. v. Dandelin, 
 
 154 
 Dunklee v. Wilton R. Co., 196, 313, 
 
 323, 354, 360, 453. 
 Dunlap v. Com., 13, 65. 
 
 v. Stetson, 169, 195, 197, 199, 200. 
 v. Yoakum, 193. 
 Dunleith Bridge Co. v. Dubuque 
 
 County, 202. 
 Dunn v. Birmingham Canal Co., 115, 
 
 296. 
 
XXXV111 
 
 CASES CITED. 
 
 Dunn v. Hayes. 194 
 v. Stone, 123. 
 1 Dunning v. Kelly, 270. 
 
 Dunniwav v. Lawson, 229. 
 Dunty v. Williams, 166. 
 Dunwicli v. Sterry, 6, 90, 192. 
 Durango v. Chapman, 219. 
 Durel v. Boisblano, 314. 
 Durell v. Pritchard, 552. 
 Duren v. Getohell, 590. 
 Durfee v. Garvey, 232. 
 Durgin v. Leighton, 590. 
 
 v. Neal, 277. 
 Durham v. Bishopwearmouth, 141. 
 Durkin v. Cobleigh, 355. 
 
 v. Troy, 113. 
 Durning v. Burkhardt, 556. 
 Durrett v. Simpson, 325. 
 Duryea v. Burt, 231. 
 
 v. Mayor. 175, 412, 414. 
 
 V. New York, 175. 
 Duryee v. Mayor, 175. 
 Dutton v. Howell, 30. 
 
 v. State, 115. 
 
 v. Strong. 27, 32, 41, 76, 89, 93, 
 119, i20, 122, 149, 168, 179, 
 181. 
 Duval v. MoLoskey, 39. 
 Dwelle v. Wilson, 82a. 
 Dwight v. Hayes, 223, 323, 506, 545. 
 Dwight Printing Co. v. Boston, 219, 
 
 243, 245, 603. 
 Dwinel v. Barnard, 108, 110, 142, 159. 
 
 v. Veazie, 92, 110, 122, 128, 180. 
 Dwyer v. Rich. 52, 196. 
 Dyce v. Hav, 24. 
 Dyer v. Depui, 128, 308, 351, 365, 
 
 v. Cranston Print Works, 305, 
 318, 540, 604. 
 
 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. 
 
 v. Schenck, 532. 
 Dynevor v. Tennant, 376. 
 Dyson v. Collick, 377. 
 Dzik v. Bigelow, 95, 97. 
 
 E. 
 
 Eachus v. Trustees, 438. 
 
 Eads, The. 67. 
 
 Eads v. Brazelton, 98. 
 
 Eager v. New Orleans, 247. 
 
 Eagle, The, 33, 67. 
 
 Eagle v. Beard, 13. 
 
 Eagle Manuf. Co. v. .Van Leonard, 
 
 305. 
 Eagles v. Merritt, 97. 
 
 Eames v. New England Worsted Co.,. 
 
 123, 211. 212, 587, 589, 594 
 E. A. Packard, The, 96. 
 Eardley v. Granville, 519. 
 Earl v. De Hart, 41, 263, 264, 279, 555. 
 Earp v. "Lee. 128. 
 Easby v. Patterson. 67, 153. 
 Eason v. Perkins, 253, 509, 541. 
 East Alabama Ry. Co. v. Doe, 144. 
 Easterbrook v. Erie Ry. Co., 220, 256, 
 
 419, 424 
 Eastern Counties Ry. Co. v. Darling, 
 
 128, 154 
 Eastern Railroad v. Allen. 164, 203. 
 Eastham v. Anderson, 185, 188, 189, 
 
 323 
 East Hampton v. Kirk, 25, 28, 37, 199. 
 
 v. Vail, 36, 195. 
 East Hartford v. Hartford Bridge Co., 
 
 193. 
 East Haven v. Hemingway, 27, 30, 31, 
 
 36, 170, 195. 
 East Hoquiam Boom Co. v. Neeson, 
 
 111. 
 East India Co. v. Sandys, 4. 
 
 v. Vincent, 514. 
 East Jersey Iron Co. v. Wright, 334 
 East Jersey W. Co. v. Bigelow, 218a. 
 Eastlick v. Wright, 233. 
 Eastman v. Amoskeag Manuf. Co., 
 136, 243, 334, 385, 388, 389, 392, 
 506, 525, 528, 550, 581. 
 v. Meredith, 116. 
 v. New York, 120, 175. 
 v. Parker, 304 
 
 v. St. Anthony W. P. Co., 305, 368,. 
 555, 603, 620. 
 East Montpelier v. Wheelock, 366,. 
 
 534 
 Easton, Ex parte, 33, 67, 120. 
 Easton v. New York R. Co., 132, 146. 
 Easton R. Co. v. Central R Co., 92, 171. 
 East St. Louis Ry. Co. v. Eisentraut, 
 
 259. 
 Eastwood v. Honley Urban District 
 
 Council, 223. 
 Eaton v. B., C. & M. R. Co., 21, 90, 102, 
 243, 245, 248a, 257, 296, 588. 
 v. Evans, 37. 
 v. Knapp, 194 
 
 v. Swansea Waterworks, 333, 335. 
 Eberhard v. Tuolumne W. Co., 220. 
 Eccleston v. Clipsham, 467. 
 Echo, The, 96. 
 Eckerson i\ Crippen, 338. 
 Eckert v. Peters. 299. 
 Economy L. & P. Co. v. Cutting, 241. 
 Ecorse v. Supervisors, 115. 
 Ecroyd v. Coulthard. 46, 99, 183, 196.. 
 Ecton v. Lexington & E Ry. Co., 273.. 
 Eddings v. Seabrook, 119, 251. 
 Eddy v. Chase. 195, 204, 348. 
 v. St. Mars, 155, 337. 
 v. Simpson, 204, 235, 239. 
 
CASES CITED. 
 
 xxxix: 
 
 Edgar v. Stevenson, 229, 231, 543. 
 
 v. Walker, 267. 
 Edgerton v. Goldsboro W. Co., 245a. 
 
 v. Huff, 191, 241. 
 
 v. New York, 135. 
 Edgett v. Douglass, 309. 
 Edith. The, 98. 
 
 Edleston v. Crossley, 208, 534. 
 E. D. McChesney, The, 33. 
 Edmondson v. Moberly, 261. 
 Edmondson Island Case, The, 156. 
 Edson v. Crangle, 13. 
 
 v. Munsell, 330, 331. 
 Eduljee Byramjee, Ex parte, 21. 
 Edward Luckenback, The, 96. 
 Edwards v. Allouez Mining Co., 220. 
 
 v. Bender, 194. 
 
 v. Elliott, 33. 
 
 v. Haeger, 280. 
 
 v. Jenkins, 86. 
 
 v. Lyman, 194. 
 
 v. New York R. Co., 113. 
 
 v. Ogle, 71, 85. 
 
 v. Wausau Boom Co., 90. 
 Edye v. Robertson, 35. 
 Effingham v. Surrells, 205. 
 Egan v. Estrada, 231. 
 
 v. Fountain, 155. 
 
 v. Hart, 110, 111, 129, 244. 
 
 v. Russ, 218. 
 Egener v. New Yoik, etc. Ry. Co., 273. 
 Egremont v. Pulman, 376, 378. 
 
 v. Williams, 304a. 
 Egyptian, The, 96. 
 
 Ebrgood v. Moscow Water Co., 211a. 
 Eidemiller Ice Co. v. Guthrie, 191. 
 Eisenbach v. Hatfield, 28, 138, 177, 
 
 471. 
 Eisenmenger v. St. Paul W. Board, 
 
 250. 
 Elder v. Burrus, 51, 54, 60, 197. 
 
 v. Bemis, 579, 582. 
 
 v. Lykens V. C. Co., 296, 413. 
 Eldred, In re, 122, 140, 430, 433, 442, 
 
 443. 
 Eldridge v. Cowell, 32, 39, 132, 138, 
 140, 157. 
 
 v. Hill, 568. 
 
 v. Knott, 329. 
 
 v. Trezevant, 247. 
 Eleanor, The, 5. 
 Electra, The, 96. 
 Electric City Land Co. v. West Ridge 
 
 Coal Co., 302. 
 Elgin v. Elgin Hydraulic Co., 616. 
 
 v. Hoag, 271. 
 
 v. Kimball, 272. 
 
 v. Welch, 272. 
 Elgin Hydraulic Co. v. Elgin, 220. 
 Eliason v. Grove, 359. 
 Eliot v. Bristol. 329. 
 Elizabeth, The, 5. 
 
 Elizabethport Ferry Co. v. United 
 States, 35. 
 
 Eliza Jane, The, 5. 
 Eliza Keith, The, 96. 
 Ella B., The, 67. 
 Ellen S. Terry, The, 96. 
 Ellerman v. McMains, 35. 117. 
 
 v. Morgan's La. R. Co., 106. 
 Ellery v. Cunningham, 192. 
 Ellet v. St. Louis Ry. Co., 258. 
 Ellicott v. Lamborne, 382, 494. 
 Ellinger v. Mo. Pac. Ry. Co., 157. 
 Ellinghouse v. Taylor, 241. 
 Ellington v. Bennett, 212, 214, 343. 
 Elliot v. Fitchburg R. Co., 205, 206, 
 208, 213, 214, 215, 217, 227, 
 410, 497. 
 
 v. North Eastern Ry. Co., 289,. 
 513. 
 
 v. Whitmore, 236. 
 Elliott v. Oil City, 272. 
 
 v. Pray, 113. 
 
 v. Rhett, 354. 
 
 v. Sallee, 307, 313, 356, 359. 
 
 v. Shepherd, 305. 
 
 v. Stewart, 28. 
 Ellis v. Carey, 53, 74, 109. 
 
 v. Duncan, 280, 290, 542. 
 
 v. Harris, 493, 587, 609. 
 
 v. Pomeroy Impr. Co., 240. 
 
 v. Welch, 456. 
 
 v. Iowa City, 269. 
 
 v. Tone, 205, 543. 
 Ellison v. Com'rs, 512. 
 
 v. Jackson, 234. 
 Ellsworth v. Putnam, 368. 
 Elmendorf v. Classen, 291. 
 Elmhirst v. Spencer, 231, 512, 514,. 
 
 525, 534. 
 Elmira Shepherd, The. 67. 
 Elmore v. Drainage Com'rs, 241. 
 Elms v. Los Angeles, 233. 
 Eloina, The, 96. 
 Elphick v. Hoffman, 5, 16. 
 Elster v. Springfield, 280, 337. 
 Elston v. Chicago. 118. 
 Elting v. East Chester, 114, 115. 
 Elting Woolen Co. v. Williams, 583. 
 Elwell v. Crowther, 295, 512, 530, 534, 
 558, 560. 
 
 v. Fabre, 120. 
 Ely v. Ferguson, 228. 
 
 v.. Rochester, 135, 143. 
 
 v. St. Louis R. Co., 258, 498. 
 
 v.. Stewart, 307. 
 
 v. Supervisors, 128. 
 Emans v: Turnbull, 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 
 Emerald, The, 98. 
 Emerson v. Bergen, 214, 323. 
 
 v. Mooney, 310. 
 
 v. Taylor, 162, 163, 164, 169. 
 
ad 
 
 OASES CITED. 
 
 Emery v. Erskine, 121, 206. 
 
 v. Lowell, 41, 123, 261, 269. 
 
 v. Raleigh R. Co., 257, 337. 
 
 v. Three Rivers, 311. 
 
 v. Webster, 195. 
 Emigrant Ditch Co. v. "Webber, 241. 
 Emmons v. Milwaukee, 105. 
 Emporia v. Soden, 148, 205, 245, 281. 
 Energy, The, 76. 
 
 Enfield Toll Bridge Co. v. Hartford 
 R. Co., 56, 136, 142, 144, 145, 
 146. 
 Engard v. Frazier, 210. 
 Engel v. Ayer, 299. 
 English v. Johnson, 240. 
 Engs v. Peckham, 138. 
 Ennor v. Barwell, 41, 265, 536. 
 Enos v. Chicago Ry. Co., 251. 
 
 v. Hamilton, 108, 110, 122, 123, 126, 
 127, 133, 140. 
 Enright v. Hartsig, 210. 
 Ensminger v. Mclntire, 233. 
 
 v. People, 55, 69, 71, 99, 120, 179. 
 Ensworth v. Com., 579, 581, 608. 
 Eppes v. Cralle, 609, 610. 
 Erhardt v. Boaro, 236. 
 Erickson v. Michigan Land Co., 354. 
 Erie, The, v. Canfield, 93. 
 Erkenbrecher v. Cincinnati, 241. 
 
 v. Este, 534. 
 Erskine v. Moulton, 169, 194, 200. 
 Esberg-Gunst Cigar Co. v. Portland, 
 
 296.- 
 Escanaba Co. v. Chicago, 88, 117, 130, 
 
 133. 
 JEshelman v. Snyder, 305, 373. 
 Eshleman v. Martic, 272. 
 Eslmg v. Williams, 341. 
 Esmond v. Chew, 233, 240. 
 Esquimalt & N. Ry. v. Bainbridge, 10. 
 Essex v. Acton Local Board, 124 
 Esson v. McMaster, 54, 56, 108, 405, 
 547. 
 
 v. Mayberry, 155. 
 
 v. Wattier, 122, 211c. 
 Estabrooks v. Peterborough R. Co., 
 
 256, 588, 589. 
 Estell v. Myers, 325. 
 Estes v. China, 302. 
 Esty v. Baker, 305, 318. 
 
 v. Currier, 312. 
 Ethelridge v. Jones, 192. 
 Etheridge v. Philadelphia, 135. 
 Ethridge v. San Antonio, etc. Ry. Co., 
 
 211, 495. 
 Etter v. Edwards, 90, 192. 
 Etz v. Daily, 105. 
 Eubank v. Pence, 187, 610. 
 Euberweg v. La Compagnie Generale, 
 
 175. 
 Eufaula v. Simmons, 261. 
 Euler v. Sullivan, 220. 
 Eulrich v. Richter, 41, 213, 263, 275. 
 Eureka v. McKay, etc. Co., 157. 
 
 Eureka Basin W. & M. Co., Re, 241. 
 Eureka Harbor Com'rs v. Excelsior 
 
 Redwood Co., 24. 
 Eureka Lake Co. v. Supreme Court, 
 
 566. 
 Evangelical Orphans' Home v. Buf- 
 falo Hydraulic Co., 318a. 
 Evans v. Dana, 355. 
 
 v. Goodrich, 193. 
 
 v. Manchester Ry. Co., 296. 
 
 v. Merriweather, 204, 205. 
 
 v. Owens, 41. 
 
 v. Ross, 222, 238. 
 Evansville v. Decker, 261, 271. 
 
 v. Martin, 117, 128, 149. 
 Evansville R. Co. v. Dick, 256. 
 Evelyn v. Haynes, 504 
 Everett v. Council Bluffs. 149. 
 
 v. Dockery, 203, 233, 311. 
 
 v. Hydraulic Flume Tunnel Co., 
 232, 298. 
 Everman, The J. W., 96. 
 Everson v. Waseca. 76. 
 Ewart v. Belfast Poor Law Guard- 
 ians, 281. 
 
 v. Cochrane, 357. 
 Ewell v. Greenwood, 121, 123. 
 Excelsior Planting Co. v. Green, 247. 
 Exchange Fire Ins. Co. v. Delaware 
 
 Canal Co., 114. 
 Exeter v. Devon, 91. 
 
 v. Trimlet, 141. 
 
 v. Warren, 4, 18, 141. 
 Express, The, 96. 
 Exterkamp v. Covington Harbor Co., 
 
 119. 
 Eyber v. County Com'rs, 260. 
 Ezzard v. Findley G. M Co., 471. 
 
 F. 
 
 Fabian v. Collins, 231, 234, 236, 237. 
 Fagan v. Armistead, 60. 
 Fair v. Philadelphia, 262, 270. 
 Fairbanks v. Rollins, 233. 
 Fairfax v. Hunter, 31. 
 Fairhaven Marble Co. v. Adams, 508, 
 
 520, 521. 
 Fales v. Easthampton, 251. 
 Fall v. Sutter, 143, 145, 146. 
 Fallbrook Ir. District v. Bradley, 241. 
 Fall River Iron Works Co. v. Old 
 
 Colony Railroad, 122, 137. 
 Falls Manuf. Co. v. Oconto River 
 
 Imp. Co., 108. 
 Falls Village Co. v. Tibbettsj 121. 
 Falmouth u George, 4, 141. 
 
 v, Innys, 329. 
 Fame. The, 4, 64. 203. 
 Fannie Tuthill, The, 114 
 Fanning v. Gregoire, 35, 133, 145. 
 Faribault v. Hulett, 611. 
 v; Sater, 325. 
 
OASES CITED. 
 
 sli 
 
 Farish v. Coon, 39. 
 
 Farist Steel Co. v. Bridgeport, 138. 
 
 Farkas v. Towns, 276. 
 
 Farley v. Deslonde, 194 
 
 v. Spring Valley Mining Co., 240, 
 543. 
 Farm In v. Co. v. Carpenter, 228. 
 Farmer v. McDonald, 323. 
 
 v. Ukiah Water Co., 356. 
 
 v. Waterloo & City R. Co., 241. 
 Farmers of Hampstead Water, Case 
 
 of, 210, 423. 
 Farmers' Co-op. Manuf. Co. v, Albe- 
 marle & R. R. Co., 126. 
 Farmers' High Line Canal Co. v. 
 
 Southworth, 228, 234 
 Farmers' Ind. Ditch Co. v. Agr. Ditch 
 Co., 228, 229, 241. 
 
 v. Maxwell, 473. 
 Farmers' Loan Co. v. New York, 175. 
 Farmingdale v. Berlin Mills Co., 203. 
 Farnum v. Blackstone Canal Co., 145, 
 593. 
 
 v. Concord Land & W. P. Co., 
 468. 
 
 v. Johnson, 118. 
 Farquharsen's Case, 160. 
 Farquharsen v. Farquharsen, 160. 
 Farr v. Griffith, 191. 
 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. Dudley, 266, 275. 
 
 v. Ware. 325. 
 Harwell v. Sturgis W. Co., 281. 
 Fashion, The. 67. • 
 Faulkner v. Rondoni, 238. 
 Faull v. Cooke, 238, 240. 
 Faville v. Greene, 386. 595, 598. 
 Fawcett v. Natches, 89. 
 Fay, Petitioner, 193. 
 Fay v. Prentice, 292, 364, 373. 
 
 v. Salem Aq. Co., 84, 191, 203, 245, 
 246. 
 Feather v. Queen, 36. 
 Fehr v. Schuylkill Nav. Co., 220, 582, 
 
 589. ■ 
 Felder v. Bonnet, 196. 
 Felger v. Robinson, 78, 108. 
 Felix v. Los Angeles, 229, 233. 
 Fell v. Bennett, 505. 
 Fellow v. Fulgham, 621. 
 Felton v. Simpson, 329, 340, 603. 
 Fenley v. Moody, 325. 
 Fennimore v. New Orleans, 113. 
 Fennings v. Grenville, 1. 
 Fenter v. Toledo R. Co., 392. 
 Fentiman v. Smith, 322, 476, 478. 
 Ferens v. O'Brien, 236. 
 Ferguson v. Firmenich Manuf. Co., 
 212, 219. 
 
 v. Ross, 175. 
 d 
 
 Ferguson v. Spencer. 223. 
 
 v. Union S. Co., 87. 
 
 v. Witsell, 377. 
 Fernald v. Knox Woolen Co., 84, 601. 
 Ferrand v. Bradford, 243. 
 Ferrea v. Chabot, 233, 234, 300. 
 
 v. Knipe, 205, 208, 217, 240. 
 Ferrel v. Woodward, 146. 
 Ferrenbach v. Turner. 281. 
 Ferrer v. Johnson, 478. 
 Ferriere v. New Orleans, 148. 
 Ferris v. Brown. 329. 
 
 v. Higley, 40. 
 
 v. Wellborn, 263, 536. 
 Fetters v. Humphreys, 355, 357, 361. 
 Feurer v. Stewart, 40. 
 Fick v. Penn. R. Co., 211c. 
 Fidelity, etc. Co. v. Seattle, 262. 
 Field v. Apple River L. D. Co., 90. 
 
 v. Brown, 332. 
 
 v. Carr, 105, 148. 
 
 v. West Orange, 271, 272. 
 Finch v. Board of Education, 116. 
 
 v. Green, 209. 
 
 v. Resbridger, 329, 341, 506. 
 Fineaux v. Hovenden, 125, 214, 402. 
 Finger v. Kingston, 191. 
 Finley v. Hershey, 128, 363, 419, 549. 
 Finlinson v. Porter, 300. 
 Finney v. Somerville, 241, 253, 426, 585. 
 Firmstone v. Wheeley, 294 
 First Evangelical Church v. Walsh, 
 
 105. 
 First M. E. Church v. Old Columbia 
 
 Public Ground Co., 302a. 
 First Municipality v. Pease, 35. 
 First National Bank v. Hastings, 234 
 Firth v. Bowling Green Co., 296. 
 Fish v. Dodge, 364 
 
 v. Folley, 466. 
 Fisher v. Bountiful City, 148, 238. 
 
 v. Carter, 65. 
 
 v. Clisbie, 193. 
 
 v. Guffey, 291. 
 
 v. Haldeman, 65. 
 
 v. Horicon Iron Co., 253. 
 
 v. Paff, 488. 
 
 v. Police Court, 174 
 
 v. Steele, 35. 
 Fisk v. Hartford, 223, 261, 505. 
 
 v. Wilber, 538. 
 Fiske v. Framingham Manuf. Co., 
 
 253, 370, 579, 585. 
 Fitch v. Belding, 299, 300. 
 
 v. Johnson, 447. 
 
 v. Livington, 35. 
 
 v. New Haven, 142, 145. 
 
 v. Rawling, 24 
 
 v. Seymour, 300, 456, 496. 
 
 v. Stevens, 583, 589. 
 
 v. Taft, 590. 
 Fitchburg Railroad v. Boston & 
 Maine Railroad, 118, 136, 146, 
 169, 248a, 
 
xlii 
 
 CASES CITED. 
 
 Fitz v. Hobson, 124. 
 Fitzell v.- Leaky, 231. 
 Fitzgerald v. Barbour, 302. 
 
 v. Faunce, 171. 
 
 v. Firbank, 184, 219. 
 Fitzpatriok v. Mik, 305. 
 
 v. Montgomery, 233. 
 
 v. Robinson, 21. 
 
 v. Welch, 293. 
 Fitzsimmons v. Munch, 211a.\ 
 Fitzsimons v. Inglis, 482. 
 
 v. Milar, 120. 
 Fitzwalter's Case, 4, 18, 21, 183, 189. 
 Flagg v. Mason, 194. 
 
 v. Worcester, 41, 262, 265, 267, 
 269, 270, 272, 277. 
 Flanagan v. Philadelphia, 21, 35, 43, 
 
 65, 87, 91, 111, 130, 132, 135. 
 Flanders v. Locke, 192. 
 Flandreau v. Ellsworth, 120. 
 Flat River F & P. Co. v. Kelley, 349. 
 Flax Pond Water Co. v. Lynn, 83. 
 Fleet v. Hegeman, 20, 189, 190. 
 Fleming's Appeal, 260, 534, 545. 
 Fleming v. Davis, 205, 213, 217. 
 
 v. Hull, 241. 
 
 v. Kenney, 62, 197. 
 
 v. Manchester, 261. 
 
 v. Nelson, 255. 
 
 v. Wilmington & W. R. Co., 256, 
 273. 
 
 v. Yate 33 
 Fletcher v. Bealey, 223, 517. 
 
 v. Peck, 40. 
 
 v. Phelps, 57, 82, 82a, 195, 198, 903. 
 
 v. Rylands, 288, 294, 295, 296. 
 
 v. Smith, 225, 297. 
 
 v. Thunder Bay River Boom Co., 
 75. 
 Flick v. Bell, 323. 
 Flickinger v. Shaw, 232. 
 Flight v. Thomas, 343. 
 Flint & Marquette, The, 89. 
 Flora, The, 67. 
 Flora v. Carbean, 334. 
 Florence P. Hall, The, 96. 
 Flower v. Adams, 125. 
 Floyd v. Boulder Flume Co., 235. 
 Flynn v. Boston, 202. 
 
 v. Canton Co., 115, 122, 126. 
 Fobbing Com'rs v. Reg., 161. 
 Fogg v. Nevada O. C. Ry. Co., 121. 
 Foley v. Godchaux, 238. 
 Folkes v. Chad, 94, 121. 
 Folmar v. Folmar, 614. 
 Folsom v. Apple River Log Driving 
 Co., 211, 222. 
 
 v. Freeborn, 21, 22, 123, 148, 172, 
 329. 
 Foot v. Bronson, 121, 271, 274, 552, 553. 
 
 v. Edwards, 445. 
 
 v. New Haven Co., 300, 323. 
 
 v. Van Giesen, 536. 
 Forbell v. New York, 281, 285. 
 
 Forbes v. Com., 318a, 344. 
 
 v. Lee Conservancy Board, 115. 
 Forbush v. Lombard, 305. 
 Ford v. Lacy, 155, 158, 159. 
 v. Lukens, 218. 
 
 v. Met'n District Railways, 214, 
 v. Whitlock, 159, 213, 329, 419. 
 Fordyce v. Russell, 258. 
 Foreman v. Boyle, 222. 
 v. Canterbury, 115. 
 v. Whitstable Free Fishers, 4, 28, 
 95, 141. 
 Forest River Land Co. v. Salem, 169. 
 Forrest v. Greenwich, 91. 
 Forrest Milling Co. v. Cedar Falls 
 
 Mill Co., 315. 
 Forsdick v. Supervisors. 298. 
 Forster v. Juniata Bridge Co., 90, 98. 
 
 102 192 
 Forsyth u"smale, 76, 78, 85. 
 Fort v. Groves, 121. 
 v. Omdoff, 327. 
 Fort Edwards W. Works v. Mclntyre, 
 
 299. 
 Fort Leavenworth R. Co. v. Lowe. 
 
 242. 
 Fort Lee, The, 96. 
 Fort Morgan L. & C. Co. v. South 
 
 Platte Ditch Co., 230. 
 Fort Plain Bridge Co. v. Smith, 57 r 
 121, 122, 128, 132, 142, 145, 175. 
 Fort Reno Canal Co. v. Dunbar, 234. 
 Fort Smith Bridge Co. v. Hawkins, 76. 
 Fortain v. Smith, 193. 
 Foss v. Cosgriff, 111. 
 Fossett v. Bearce, 188. 
 Fossum v. Chicago, etc. Ry. Co., 259. 
 Foster v. Bear V..Ir. Co., 32a 
 u Block Co., 111. 
 v. Elk Fork Oil Co., 291. 
 v. Foss, 194. 
 v. Fowler, 144. 
 v. Holly, 92, 96. 
 v. Master, 35. 
 v. Park Com'rs, 241. 
 v. St. Louis, 271. 
 v. Searsport Spool Co., 110. 
 v. Stafford Bank, 244. 
 v. Wright, 49, 155, 158, 159. 
 Fountain v. Perth Amboy, 354. 
 Fow v. Roberts, 388. 
 Fowle v. New Haven Co., 210, 248a, 
 
 259, 416, 417. 
 Fowler v. Athens Waterworks Co., 
 244. 
 v. Mott, 103, 105, 151. 
 v. Vreeland. 198. 
 Fox, The, 114, 142. 
 Fox v. Cincinnati, 241. 
 v. Fostoria, 349. 
 
 v. Holoomb, 253, 509, 541, 611, 618. 
 Fox River Flour Co. v. Kelley, 225 r 
 
 563. 
 Frailey v. Waters, 328, 354,-548. 
 
CASES CITED. 
 
 xliii 
 
 Fraler v. Sears Water Co., 232, 298. 
 Francis v. Boston & Roxbury Mill Co., 
 382. 
 
 v. Schoellkopf, 125. 
 Francis's Appeal, 354. 
 Francisco R, The, v. The Waterloo, 
 
 114. 
 Franconia, The, 98. 
 Frank v. Evansville R. Co., 241. 
 
 v. Hicks, 305. 
 Frankford v. Lennig, 157, 173. 
 Frankfort Bridge Co. v. Williams, 115. 
 Frankle v. Jackson, 243. 
 Franklin's Succession, 30. 
 Franklin v. Fisk, 265, 269, 277. 
 
 v. Pollard Mill Co., 215, 334, 349. 
 
 v. United States. 40. 
 Franklin Wharf v. Portland, 92, 123, 
 
 140. 
 Frankum v. Falmouth, 204, 227, 478, 
 
 488. 
 Fraser v. Drynan, 146, 193. 
 
 v. Swansea Coal Co., 147. 
 Frazier v. Brown, 204, 280, 288, 290. 
 Freary v. Cooke, 99, 100, 182, 183. 
 Frechette v. La Compagnie Manu- 
 
 facturiere, 218a. 
 Frederick v. Augusta, 118. 
 
 v. Dickey, 333. 
 
 v. Goshon, 13, 146. 
 
 v. Shane, 244. 
 Fredericks v. Pennsylvania Canal 
 
 Co., 248. 
 Freedom v. Norris, 348. 
 
 v. Weed, 115. 
 Free Fishers v. Gann, 4, 9, 18, 20, 21, 26. 
 Freeholders, In re, 41. 
 Freeholders v. New Jersey, 35. 
 Freeland v. Penn. R. Co., 248. 
 Freeman v. Bellegarde, 174, 199. 
 
 v. Leighton, 169. 
 
 v. Reg., 115. 
 
 v. Walghan, 120. 
 
 v. Weeks, 41, 225, 247. 
 Freer v. Cameron, 113. 
 Fremont, The, 96. 
 Fremont v. June, 245a. 
 Fremont, etc. R. Co. v. Bates, 252. 
 
 v. Harlin, 210, 273. 
 
 v. Marley, 271. 
 
 v. Mattheis, 250. 
 Fremont Ferry Co* v. Dodge County, 
 
 146, 349: 
 French v. Bankhead, 61, 178, 194. 
 
 v. Bostdn, 135. 
 
 v. Braintree Manuf. Co., 584. 
 
 v. Camp, 103. 111. 
 
 v. Carhart, 312. 
 
 v. Conn. River Lumber Co., 124, 
 126. 
 
 v. Gapen, 511. 
 
 v. Marstin, 312. 
 
 v. Morris. 299. 
 
 v. Owen,'321, 323, 581, 591. 
 
 French-Glenn Live-stock Co. v. 
 
 Springer. 85. 
 French Hoek Com'rs v. Hugo, 225, 329. 
 Fresno v. Fresno Canal Co., 549. 
 Fresno Canal Co. v. Dunbar, 303. 
 
 v. Rowell, 303. 
 Fresno Milling Co. v. Fresno Canal & 
 
 Ir. Co., 287, 302a. 
 Fretz v. Bull, 33, 67. 
 Freudenstein v. Heine, 268. 
 Frey v. Lowden, 495, 540. 
 Freytag v. Powell, 36, 65, 173. 
 Fricke v. Quinn, 544. 
 Friedman v. Goodman, 39. 
 Friend v. United States, 243. 
 Fries v. Brier, 241. 
 Frink v. Branch, 305. 
 
 v. Hill, 305. 
 
 v. Lawrence, 121, 123, 154, 170, 
 547. 
 Frisbie v. MoClernin, 140. 
 Frith v. Dubuque R. Co., 123. 
 Fritz v. Hobson, 124. 
 Frizzle v. Patrick, 121. 
 Fronim v. Ide, 272. 
 Frost v. Barnes, 614, 621. 
 Frostburg v. Duffy, 261. 
 
 v. Hitchins, 261. 
 Fry v. Campbell's Creek Coal Co., 177. 
 Frye v. Moore, 298. 
 Fryeburg Canal Co. v. Frye, 582, 590. 
 Fryer v. Warne, 263, 323. 
 Fudickar v. East Riverside Ir. Dis- 
 trict, 549. 
 Fuhr v. Dean, 300. 
 Fulda, The, 96. 
 
 Fuller v. Chicopee Manuf. Co., 212, 
 227, 296, 594. 
 
 v. Daniels, 540. 
 
 v. Dauphin, 76. 
 
 v. Edings, 119, 582. 
 
 v. French, 597. 
 
 v. Murphy, 65. 
 
 v. Plymouth, 300. 
 
 v. Rice, 99. 
 
 v. Shedd, 83. 
 
 v. Spear, 187. 
 
 v. Swan River P. M. Co., 229, 237, 
 510. 
 
 v. Williams, 194. 
 Fullerton v. Pool, 505. 
 Fulmer v. Williams, 43, 65, 213. 
 Fulmore v. Jennings, 166. 
 Fulton v. Frandolig, 155. 
 
 v. Greacen, 210, 567. 
 Fulton Fire Ins. Co. v. Baldwin, 114. 
 Funk v. Haldeman, 291. 
 Furbish v. County Com'rs, 244. 
 Furman v. New York, 21, 57, 164, 175. 
 Furman Street. In re, 175. 
 Furner v. Seabury, 286, 318a. 
 Furness Ry. Co. v. Cumberland So- 
 ciety, 124, 
 F. W. Devoe, The, 96. 
 
xliv 
 
 CASES CITED. 
 
 G. 
 
 Gaetano, The, 1. 
 Gage v. Bates, 56. 
 
 v. Hill, 489. 
 
 v. Steinkraus, 84, 191. 
 Galbraith v. Yates, 272. 
 Gale v. Kinzie, 156. 
 
 v. Tuolumne W. Co., 229, 236. 
 Galena R. Co. v. Haslem, 252. 
 Galgay v. Great Southern Ey. Co., 
 
 280. 
 Gallagher v. Kingston W. Co., 414. 
 
 v. Montecito V. W. Co., 238. 
 Gallup v. Tracy, 41, 189. 
 Galveston v. Menard, 4, 16, 18, 27, 30, 
 
 36, 119. 
 Galveston City Surf Bathing Co. v. 
 
 Heidenheimer, 26. 
 Galveston County v. Galveston 
 Wharf Co.. 171. 
 
 v. Tankersley, 194, 197. 
 Galveston, etc. R. Co. v. Becht, 273. 
 
 v. Borsky, 256, 273. 
 
 v. Haas, 213. 
 
 v. Parr, 210. 
 
 v. Seymour, 275. 
 
 v. Tait, 275. 
 
 v. Ware, 211. 
 Galvin t>. Shaw, 534. 
 Gammell v. Com'rs, 4, 9, 13. 
 
 v. Potter, 610, 617. 
 Gandy v. Jubber, 391. 
 Gann v. Whitstable Free Fishers, 4, 
 
 9, 18, 20, 21, 26, 95, 141. 
 Gannon v. Hargadon, 41, 267, 268, 271, 
 
 275. 
 Gans v. St. Paul Ins. Co., 504. 
 Gant v. Drew, 103, 193. 
 Gardiner v. Carhden, 260. 
 
 v. Tisdale, 105. 
 Gardner v. Newburgh, 136, 204, 243, 
 245, 506, 507, 534. 
 
 v. Whitford, 35. 
 Garey v. Ellis, 128, 138, 169. 
 Garfield & P. C. Co. v. Fitchburg R. 
 
 Co., 120. 
 Garitee v. Baltimore, 95, 123, 125, 176. 
 Garland v. Hodsdon, 310, 318. 
 
 v. Towne, 293, 296. 
 Garner's Case, 71. 
 Garnett, In re, 67, 202. 
 Garraty v. Duffy, 292. 
 Garret v. Squarebriggs, 154. 
 Garrett v. Bailey, 583. 
 
 v. Bishop, 323, 530. 
 
 v. Canandaigua, 261. 
 
 v. Com'rs, 211. 
 
 v. Green, 241. 
 
 v. Jackson, 341. 
 
 v. McKie, 210, 214. 
 Garrison v. Hall, 178. 
 
 v. New York, 113. 
 Garston Co. v. Hickie, 4 
 
 Garwood v. New York Cent. R. Co., 
 
 205, 213, 214, 217, 304, 408, 
 
 534 
 Gassert v. Noyes, 231. 
 Gaston v. Mace, 109, 547. 
 Gate City, The, 33. 
 Gately v. Martin, 289. 
 Gates v. Blencoe, 121, 128, 212, 365, 
 
 513. 
 v. McDaniel, 145. 
 v. No. Pao. R. Co., 134 
 Gateward's Case, 24, 85, 184 
 Gath wright v. Gallaway County, 328. 
 Gaved v. Martyn, 225. 
 Gavit v. Chambers, 40, 45, 68, 70, 76, 
 
 133, 196. 
 Gawtry v. Leland, 278. 
 Gayetty v. Bethume, 347, 362. 
 G, C. & S. F. R. Co. v. Donahoo, 273. 
 Gear v. C. C. & D. R Co., 251. 
 Gebhardt v, Saunders, 223. 
 Geddis v. Bann Reservoir, 251. 
 
 v. Parish, 41, 234, 240. 
 Geekie v. Kirby C. Co., 75. 
 Geen v. Newington Vestry, 41. 
 Geer v. Rockwell, 606. 
 Geertson v. Barrick, 228. 
 Gehlen v. Knorr, 216. 
 Gehman v. Erdman, 347. 
 Geiger v. Filor, 117, 177. , 
 Geise v. Green, 112. < 
 
 Gellathy's Case, 160. 
 Gembler v. Echterhoff, 265. 
 General Gass, The, 67. 
 General Iron Co. v. Schurman, i, 11. 
 Genesee Chief, The, 33, 42, 66, 67. 
 Genet v. Delaware & H Canal Co., 
 
 295. 
 Geneva, The, 118, 142. 
 Genin v. Greer, 430, 431, 437. 
 Genni v. Hahn, 280. 
 Gentile v. State, 71, 189. 
 Gentleman v. Soule, 55. 
 Gentry v. Madden, 192. 
 
 v. Richmond, etc. R. Co., 256. 
 George v. Carpenter, 41. 
 
 v. Wabash W. Ry. Co., 256, 410. 
 George and Richard, The, 89. 
 George E. Berry, The, 120. 
 George v. Fisk, 110. 
 
 v. Northern Pacific R. Co., 123. 
 George's Creek Coal Co. v. Detmold, 
 
 176. 
 Georgetown v. Alexandria Canal Co., 
 
 121, 132, 547. 
 Gerenger v. Summers, 335, 344. 
 Gerhard v. Seekonk River Bridge 
 
 Com'rs, 172. 
 German Bank v. United States, 242. 
 German Theol. School v. Dubuque, 
 
 . 262. 
 Gerrish v. Brown, 92, 95, 96, 105, 108, 
 
 121, 123, 126, 218, 220. 
 v. Clough, 155, 159, 160. 
 
CASES CITED. 
 
 xlv 
 
 Gerrish v. Gary, 305. 
 
 v. New Market Manuf. Co., 210, 
 214, 218, 405, 497. 
 
 v. Towne, 195. 
 
 v. Union Wharf. 27, 169, 171. 
 Gervais v. Charlestown, 121. 
 Getchell v. Benton, 254. 
 Getting v. Union Impr. Co., 549. 
 Getty v. Hudson River R. Co., 109, 
 
 151, 175. 
 Geurkink v. Petaluma, 244, 260. 
 Ghen v. Rich, 1. 
 Gherkey v. Haines, 212, 610. 
 Gibbes v. Beaufort, 146. 
 Gibbons v. Ogden, 33, 34, 35i 129, 134. 
 Gibbs v. Liverpool Docks, 113, 114. 
 
 v. Williams, 41, 263, 264. 
 
 v. Wolliscott, 50, 183. 
 Gibson v. Brockway, 305. 
 
 v. Fischer, 211b, 227. 
 
 v. Kelly. 179, 203. 
 
 v. Norwalk, 251. 
 
 v. Puchta, 233. 
 
 v. Smith, 513. 
 
 v. United States, 34, 90, 150, 242, 
 248a. 
 Giddings v. 76 Land Co., 570. 
 Gidney v. Bates, 37. 
 Gifford v. McArthur, 96. 
 
 v. New Jersey R. Co., 115, 121. 
 
 v. Yarborough, 155. 
 Gifford D. District v. Shr6er, 247. 
 Gifford Hosiery Co. v. Pitman Manuf. 
 
 Co., 318a. 
 Gilbert v. Eldridge, 179. 
 
 v. Emerson, 76. 
 
 v. Moline W. P. Co., 64. 
 
 v. Morris Canal Co., 122. 
 
 v. Nagle, 113. 
 
 v. Savannah R. Co., 275. 
 
 v. Trinity House, 115. 
 
 v. Wood, 30. 
 Gilchrist v. Bale, 504. 
 
 v. Strong, 20. 
 
 v. Van Dyke, 510. 
 Gildersleeve v. New York, etc. R Co., 
 
 135. 
 Gilchrist's Appeal, 65. 
 Gile v. Stevens, 579, 587, 589, 594. 
 Gilfeather v. Council Bluffs, 272. 
 Giiailan v. Schmidt, 264. 
 Gilford v. Winnipiseogee Lake Co., 
 
 337, 344. 
 Gilham v. Madison, etc. R. Co., 41, 
 
 266, 273, 296. 
 Gill v. Edouin, 293, 296. 
 
 v. Lydick, 155. 
 Gillan v. Hutchinson, 233. 
 Gillespie v. Forrest, 547. 
 Gillet v. Jones, 579, 599, 621. 
 Gillett v. Johnson, 204, 213, 217, 264. 
 
 v. Kinderhook, 417. 
 Gilliam v. Bird, 60. 
 
 v. Canaday, 579. 
 
 Gillis v. Chase, 204 
 
 v. Nelson, 266, 271. 
 Gillison v. Charleston, 272. 
 Gilluly v. Madison, 272. 
 Gilman v. Laconia, 261. 
 
 v. Philadelphia, 33, 34, 35, 130, 
 
 131, 132. 
 v. Tilton, 209, 227, 350. 
 Gilmer v. Lime Point, 241. 
 Gilmore v. Driscoll, 55, 214 
 Gilmour v. Buck, 102. 
 Gilpin v. Smith, 325. 
 Gilreath v. Gilliland, 528. 
 Gilroy, In re, 584. 
 Gilson v. Delaware & H. Canal Co., 
 
 298. 
 Gilzinger v. Saugerties W. Co., 535. 
 Ginn v. Hancock, 457. 
 Girard Point Storage Co. v. Roy, 113. 
 Giraud v. Hughes, 155, 166, 176. 
 Gladfelter v. Walker, 214, 219, 375, 
 
 398. 
 Glass v. Basin M. Co., 241. 
 
 v. Clark, 574 
 Glassell v. Verdugo, 316, 544 
 Gleason v. Assabet Manuf. Co., 209, 
 
 227. 
 v. Burroughs, 306. 
 v. Gary, 128, 364 
 v. Tuttle, 353. 
 Glick v. Weatherwax, 110. 
 Globe v. Kurtz, 88. 
 Globe Mill Co. v. Bellingham Bay 
 
 Impr. Co., 177. 
 Glossop v. Heston Local Board, 223. 
 Gloucester Ferry Co. v. Pennsylvania, 
 
 35. 
 Glover v. McGaffey. 607. 
 
 v. Powell, 43, 122, 134, 243. 
 Gluck v. Ridgewood Ice Co., 113. 
 Glyn v. Nichols, 402, 476. 
 Gniadck v. Northwestern Impr. Co., 
 
 90, 298. 
 Goddard v. Winchell, 6, 155. 
 Goddin v. Crump, 118. 
 Godfrey v. Alton, 54, 105, 157. 
 
 v. Maberry, 210. 
 Godsell v. Fleming, 128. 
 Goff v. Brainerd, 102. 
 v. Pawtucket, 245. 
 Golconda v. Field, 193. 
 Gold v. Carter, 95, 140. 
 Gold Hill Mining Co. v. Ish, 233, 
 
 240. 
 Golden Canal Co. v. Bright, 145, 234, 
 
 473. 
 Golden Gate M. Co. v. Superior Court, 
 
 566. 
 Goldsmid v. Tunbridge Wells Com'rs, 
 
 152, 219, 223, 346, 512, 527, 544, 
 
 545, 546. 
 Goldsmith v. Elsas, 266, 271. 
 v. Jones, 128. 
 v. White, 194 
 
xlvi 
 
 CASES CITED. 
 
 Gonzales Branch Ry. Co. v. Harvey, 
 
 256. 
 Gooch v. McGee, 144 
 
 v. Sullivan, 323. 
 Good v. Altoona, 262, 545. 
 
 v. Dodge, 209. 
 Goodale v. Portage Lake Bridge Co., 
 135. 
 
 v. Tuttle, 41, 267, 280. 
 Goodard v. Winchell. 6, 155. 
 Goodell v. Jackson, 30. 
 Goodeno v. Hutchinson, 197. 
 Good hart v. Hyett, 354, 548. 
 Goodin v. Kentucky Lumber Co.; 90, 
 
 108. 
 Gooding v. Morgan, 69. 
 Goodman v. Saltash, 24, 184, 189, 
 
 331. 
 Goodnow v. Ewer, 231. 
 Goodrich v. Burbank, 288, 299. 
 
 v. Chicago, 116, 144. 
 
 v. Eastern Railroad, 304a. 
 Goodsell v. Lawson, 58, 155, 159, 176. 
 Goodson v. Mullen, 621. 
 
 v. Richardson, 506, 512, 519. 
 Goodtitle v. Hagan, 4. 
 
 v. Eibbe, 18, 39, 64, 67. 
 Goodwill v. Bossier Police Jury, 108. 
 Goodwin v. Gibbs, 597. 
 
 v. Thompson, 60. 
 
 p. Van Wert County Com'rs, 244. 
 Goodyear v. Shanalian, 196. 
 Goold v. G. W. Deep Canal Co., 310. 
 Gordon v. Baxter, 122. 
 
 v. Pennsylvania R Co., 255. 
 
 v. Taunton, 116. 
 
 v. Winston, 179. 
 Gorgas v. Philadelphia, etc. R. Co., 
 
 252 
 Gorham v. Goss, 296, 297. 
 Gorman v. Trice, 623. 
 Gormley v. Sanford, 266, 268. 
 
 v. Uthe, 36. 
 Gorrell v. Greensboro Water Supply 
 
 Co., 245a, 
 Gorton v. Rice, 162. 
 
 v. Tiffany, 123. 
 Gough v. Bell, 4, 58, 167, 189. 
 
 v. Cougle. 168. 
 Gould v. Booth, 270. 
 
 v. Boston Duck Co., 204, 205, 208, 
 214, 218, 220, 327, 334. 
 
 V. Eaton, 225, 280, 519. 
 
 v. Hudson River R. Co., 32, 57, 
 151, 175. 
 
 v. James, 182, 189. 
 
 v. Langdon, 608. 
 
 v. McKenna, 292, 373. 
 
 v. Partridge, 302. 
 
 v. Rochester, 363. 
 
 v. Stafford, 205. 222, 299, 534. 
 Gouverneur v. National Ice Co., 41, 
 
 83, 191, 198, 203. 
 Gove v. White, 75. 
 
 Grace v. Newton Board of Health, 
 212, 363. 
 v. Zumwalt, 615. 
 Graff v. Baltimore, 241. 
 Graham v. Dahlonega Gold M. Co., 
 511. 
 v. Northern Ry. Co., 214, 509. 
 v. Virgin, 590. 
 Grand Junction Canal Co. v. Petty, 
 101. 
 v. Shugar, 264, 281, 534, 542. 
 Grand Junction R. Co. v. Middlesex 
 
 Com'rs, 136. 
 Grand Junction W. Co. v. Grand 
 
 Junction,- 245a. 
 Grand Rapids v. Powers, 75, 138. 
 Grand Rapids Booming Co. v. Jarvis, 
 75, 90, 103, 108, 110, 243, 253, 
 588. 
 Grand Rapids Ice & Coal Co. v. South 
 G. R. Ice & Coal Co., 75, 82a, 
 85. 
 Grand Rapids & I. R. Co. v. Butler, 
 
 166. 
 Grand Rapids R. Co. v. Grand Rapids 
 Indiana R. Co., 255. 
 v. Heisel, 200. 
 v. Horn, 273. 
 Grand Rapids W. P. Co. v. Bensley, 
 
 477. 
 Grand Tower Co. v. Hawkins, 113. 
 Grand Trunk Ry. Co. v. Backus, 138. 
 Grand Valley Ir. Co. v. Pitzer, 298. 
 Grange v. Gilbert, 213. 
 Granger v. Avery, 166, 202. 
 
 v. Swart, 77, 155, 197. 
 Granite State, The, 95, 96. 
 Grant v. Allen, 275. 
 v. Chase, 306, 313. 
 v. Davenport, 72, 76, 105, 117, 179. 
 v. Hemphill, 85. 
 v. Kuglar, 218a. 
 v. Leach. 146. 
 v. McDonogh, 247. 
 v. Oxford. 52, 91. 
 v. Schmidt, 121. 
 v. Sligo Harbor Com'rs, 115. 
 v. White, 65, 197. 
 Gratz v. Land & R Imp. Co., 169. 
 Gravel v. Little Falls Impr. & Nav. 
 
 Co., 90, 318. 
 Graver v. Sholl, 204, 210, 405. 
 Graves v. Fisher, 163, 194, 200. 
 v. Hebbron, 210. 
 v. Kansas City, etc. R. Co., 210. 
 v. Shattuck, 105, 128. 
 Gray's Case, 340. 
 Gray v. Ay res, 128. 
 
 v. Bartlett, 37, 153, 154, 169, 179. 
 
 v. Bond, 99. 100, 330, 331. 
 
 v. Bradley, 305. 
 
 v. Clinton Bridge, 130. 
 
 v. Deluce, 162, 163, 164, 165, 169. 
 
 v. Harris, 211c, 296, 298. 
 
CASES CITED. 
 
 xlvii 
 
 ■Gray v. Knoxville, 271, 273. 
 'v. Mc Williams, 213, 275. 
 v. Saco W. P. Co., 304. 
 'Gray's Harbor Boom Co. v. McAm- 
 
 mant, 241. 
 Greasely v. Codling, 126. 
 Great Falls Manuf. Co. v. Fernald, 
 253. 
 v. Garland, 242. 
 v. United States, 242. 
 v. Worster, 128, 363, 365, 368, 383, 
 444, 548. 
 Great Falls W. W. Co. v. Great North- 
 ern Ry. Co., 324, 338. 
 Great Laxey Mining Co. v. Clague, 
 
 259. 
 Greatrex v. Hayward, 225, 265, 279, 
 
 340, 352. 
 Great Western Ey. Co. v. Birming- 
 ham Co., 507. 
 v. Braid, 296. 
 v. Reg., 115. 
 v. Sharman, 147. 
 Greater London Prop. Co. v. Foote, 
 
 41. 
 Greelev v. Maine Central R Co., 41, 
 
 * 273. 
 Greeley Ir. Co. v. House, 232, 298. 
 Green v. Ashland W. Co., 245a. 
 v; Carotto, 225, 263. 
 'v. Caulk, 128. 
 
 v. Chelsea, 24, 37, 105, 136, 195. 
 v. Chelsea W. Co., 248. 
 v. Collins, 305. 325, 360, 459. 
 v. Gilbert, 220, 221. 
 v. Goff, 312. 
 
 v. Harrison County, 270. 
 v. Harman. 203. 
 v. Kelley, 300. 
 v. Kleinhaus, 123. 
 v y State, 248. 
 
 v. Steamer Helen, The, 35. 
 v. Swift, 2.48. 
 
 v. Taylor, etc. Ry. Co., 256. 
 v. Turner, 325. 
 v. Weaver, 214. 
 Green Bay Canal Co. v. Hewitt, 305. 
 v. Kaukauna W. P. Co., 143, 207, 
 
 242, 337. 
 v. Patten Paper Co., 252. 
 Green, etc. Nav. Co. v. Chesapeake, 
 etc. R. Co., 35, 126. 
 v. Palmer, 143. 
 Greenbank v. Sanderson, 185. 
 Greencastle v. Hazelett, 41, 288, 542. 
 Greene v. Nunnemacher, 75, 122, 125, 
 
 128, 219. 
 Greenfield Gas Co. v. People's Gas 
 
 Co., 291. 
 Greenleaf v. Birth, 310. 
 
 v. Brooklyn Ry. Co., 194 
 v. Francis, 290. 
 v. Kilton, 56. 166. 
 Greenpoint, The, 89. 
 
 Greenslade v. Haliday, 216, 365. 
 Greenwich Board of Works v. Mauds- 
 ley, 91, 99. 
 Greenwood R. Co. v. New York, etc. 
 
 R. Co., 302. 
 Greer v. Haugabrook, 142, 145, 193. 
 
 v. Johnston, 194. 
 Gregg v. Birdsall, 312. 
 Gregory v. Bridgeport, 117. 
 
 v. Brooks, 120. 
 
 v. Bush, 271. 
 
 v. Forbes, 178. 
 
 v. Harris, 233. 
 
 v. Nelson, 233. 
 
 v. United States, 280. 
 Greta Holme, The, 98. 
 Grey v. Paterson, 171, 206, 545. 
 Greyes's Case, 80, 185. 
 Greifswald, The, 66. 
 Griffin v. Bartlett, 344, 453. 
 
 v. Foster, 329, 621. 
 
 v. Goldsboro Water Co., 245a. 
 
 v. Jacksonville, etc. Ry. Co., 244. 
 
 V. Johnson, 155. 
 
 v. Kirk, 155. 
 
 v. Lawrence, 349. 
 
 v. Mayor, 113. 
 Griffing v. Gibb, 35. 
 Griffith's Case, 161. 
 Griffith v, Jenkins, 263. 
 
 v. Lewis, 388. 
 
 v. McCullum, 128. 
 Griffiths v. Marson, 482. 
 Grigsby v. Chapel, 115. 
 
 v. Clear Lake W. Co., 122, 211c, 
 329, 343, 603. 
 Grill v. Wiswall, 551. 
 Grimshaw v. Belcher, 323. 
 Grimitead v. Marlow, 24, 85, 184. 
 
 v. Sanders, 266. 
 Gring v. Sinking Spring W. Co., 213. 
 Grinnell v. Earner, 113. 
 Griswold v. Allen, 460. 
 
 v. Butler, 339. 
 Groat v. Moak, 46. 311, 318. 
 Groff v. Frederick City, 13. 
 Groner v. Foster, 164, 178. 
 
 v. Portsmouth, 138. 
 Groome v. Ogden City Corp., 303. 
 Gross v. Lampasas, 261. 
 
 v. Portsmouth Water Com'rs,115. 
 Grosvenor's Case, 21. 
 Grote v. Chester Ry. Co., 115. 
 Groton v. Haines, 363, 365. 
 
 v. Hurlburt, 43, 139, 170. 
 Grove v. White, 196. 
 Groves v. Slaughter, 35. 
 Grubb v. Starkey, 569. 
 Grube v. Nichols, 55. 
 Grumley v. Webb, 422. 
 Gue v. Tide Water Canal, 144 
 Guest v. Church Hill Com'rs, 269. 
 Gulf Pond Oyster Co. v. Baldwin, 20, 
 189. 
 
xlviii 
 
 CASES CITED. 
 
 Gulf, etc. Ry. Co. v. Calhoun, 210, 256. 
 
 v. Clark, 160, 376. 
 
 v. Dunlap, 256. 
 
 v. Dunman, 511. 
 
 v. Haskell, 210, 256. 
 
 v. Helsley, 273. 
 
 v. Holliday, 259. 
 
 v. Jones, 243. 
 
 v. Locker, 495. 
 
 v. McGowan, 211a, 257. 
 
 v. Nicholson, 210. 
 
 v. Pomeroy, 258. 
 
 v. Preston, 257. 
 
 v. Reed, 219. 
 Gumbert v. "Wood, 98. 
 Gumbes v. Philadelphia, 173. 
 Gunter v. Geary, 39, 120, 128, 136, 174 
 Gunterman v. People, 193. 
 Gustafson v. State, 189. 
 Gustavel v. State, 145. 
 Guthrie v. McConnel, 125, 133. 
 Guy v. Baltimore. 35, 142. 
 
 v. Hermance, 39, 138, 174. 
 Gwaltney v. Scottish-Carolina Tim- 
 ber Co., 90, 109. 
 
 H. 
 
 Haag v. Delorme, 329, 335. 
 
 v. Mt. Vernon, 363. 
 Haak v. Bi-eidenbach, 505. 
 Haas v. Choussard, 214, 329. 
 Hackett v. Multnomah Ry. Co., 193. 
 Hackley v. Gerahty, 35. 
 Hackstaek v. Keshena Imp. Co., 584. 
 Hadden v. Shoutz, 305. 
 Hadley v. Citizens' Savings Inst'n, 
 599. 
 
 v. Hadley Manuf. Co., 204, 305. 
 Hagan v. Brockie, 114. 
 
 v. Campbell, 4, 27, 39, 64, 74, 86, 
 148, 155, 156, 158. 
 
 v. Gaskill, 171. 
 Hagar v. Reclamation District, 241. 
 
 v. Supervisors, 241. 
 Haggerty v. Lee, 310. ' 
 Hague v . Nephi Irr. Co., 229. 
 
 v. Wheeler, 291. 
 Hahn v. Dawson, 73, 155. 
 
 v. Miller, 263. 
 
 v. Thornberry, 508. 
 Haight v. Hamor, 196. 
 
 v. Keokuk, 36, 40, 45, 72, 105, 106, 
 / 179. 
 
 v. Morris Aqueduct, 530, 532. 
 
 v. Price, 341. 
 
 v. Proprietors, 349. 
 Haiku Sugar Co. v. Birch, 231. 
 Haines u Hall, 108, 110. 
 
 v. People, 472. 584. 
 
 v. Welch, 108. 
 Hair v. Downing, 354. 
 Haisch v. Keokuk Ry. Co., 343. 
 
 Haithcock v. Swift Island Manuf. Co., 
 
 193, 301. 
 Haldeman v. Bruckhart. 280, 290. 
 
 v. Pennsylvania R. Co., 225. 
 Halderman v. Beckwith, 34, 96. 
 Hale v. Kenosha, 118. 
 
 v. McLea, 281. 
 
 v. Oldroyd, 320, 344, 478, 479. 
 Halidav v. Stott, 9. 
 Halkyn D. M. D. Co. v. Holywell 
 
 Union, 113. 
 Hall v. Alford, 46, 86. 
 
 v. Augsbury, 337. 
 
 v. Austin, 211. 
 
 v. Benner, 306. 
 
 v. Boyd, 146, 323. 
 
 v, Chaffee, 300, 323. 
 
 v. Conn. Mut. Life Ins. Co., 157. 
 
 v. De Cuir, 35, 130, 132. 
 
 v. Eaton, 44. 
 
 v. Gale, 303, 458. 
 
 v. Gittings, 32. 
 
 v. Ionia, 245. 
 
 v. Jacobs, 120, 153. 
 
 v. Kitson, 122, 126. 
 
 v. Lawrence, 25. 
 
 v. Lincoln, 238. 
 
 v. Little, 96. 
 
 v. Lund, 308, 354, 357. 
 
 v. McLeod, 105, 338. 
 
 v. Nester, 547. 
 
 v. People, 244. 
 
 v. Reed, 291. 
 
 v. Reid, 41. 
 
 v. Snowden, 304a. 
 
 v. Sterling Iron Co., 304, 318. 
 
 v. Swift, 216, 335, 344, 478. 
 
 v. Tillson, 113. 
 
 v. Tittabawassee Boom Co.,. 102.. 
 
 v. Vernon, 291. 
 
 v. Whillis, 20. 
 
 v. Whitehall W. P. Co., 175- 
 Hallet v. Beebe, 39, 40. 
 
 v. Hunt, 40. 
 
 v. Novion, 33. 
 Hallock v. Dominy, 189. 
 
 v. Suitor, 108, 110, 349. 
 Halm v. Thornberry, 210. 
 Halsey v. Lehigh Val. R Co., 213, 581. 
 
 v. McCormick, 27, 155, 197, 200. 
 Halstead v. Gay, 155. 
 Ham v. Rogers, 426. 
 
 v. Salem, 191. 
 Hamblet v. Francis, 37. 
 Hamelin v. Bannerman, 93a, 225, 305. 
 Hamilton v. Adams, 609. 
 
 v. Annapolis R. Co., 144. 
 
 v. Ashbrook, 218a. 
 
 v. Attorney for Ireland, 25. 
 
 v. Columbus. 212. 
 
 v. Davis, 6, 192. 
 
 v. Donegall, 187. 
 
 v. Eddington, 160. 
 
 v. Farrar, 315, 349, 599. 
 
CASES CITED. 
 
 slix 
 
 Hamilton v. Fond du Lac, 143, 248. 
 
 v. Gould, 163. 
 
 v. Manifee, 148. 
 
 v. Plainwell W. P. Co., 210. 
 
 v. Stow, 141. 
 
 v. Texas & Pac. Ry. Co., 113. 
 
 v. Vioksburg R. Co., 135, 137. 
 
 v. White, 363. 
 
 v. Whitridge, 121. 
 Hamilton Gas Light Co. v. Hamilton, 
 
 146. 
 Hamilton Hydraulic Co. v. Cincinnati 
 
 R. Co., 322. 
 Hamilton Woolen Co. v. Moore, 323. 
 Hamlin v. Pairpoint Manuf. Co., 138, 
 
 169, 194. 
 Hammerton v. Honey, 86. 
 Hammett v. Russ, 365. 
 Hammond v. Fuller, 555. 
 
 v. Hall, 280, 542. 
 
 v. Ingloes, 176. 
 
 v. McLachan, 196, 200. 
 
 v. Port Royal Ry. Co., 301. '■>' 
 
 v. Ridgelv, 196, 201. 
 
 v. Rose, 230. 
 
 v. Vestry of St. Pancras, 115, 261. 
 
 v. Woodman, 306, 312, 354. 
 
 v. Zehner, 341. 
 Hamor v. Bar Harbor W. Co., 245, 
 
 589. 
 Hampton v. Com., 591. 
 Hancock v. York Ry. Co., 98. 
 
 v. Wentworth, 314. 
 Hancock Co. v. Eastern Co., 187. 
 Hand v. Newton, 31. 
 Handforth v. Maynard, 191. 
 Hand Gold Mining Co. v. Parker, 
 
 241. 
 Handly v. Anthony, 27, 41, 62, 64, 71, 
 
 155, 159, 166, 202. 
 Handy Ditch Co. v. South Side Ditch 
 
 Co 233 
 Haney v. Compton, 38, 187, 189. 
 
 v. Kansas City, 262. 
 Hanford v. St. Paul R. Co., 85, 148, 
 
 179, 250. 
 Hanger v. Little Rock Ry. Co., 146, 
 
 193. 
 Hankey v. Clark, 299. 
 Hankins v. Lawrence, 254. 
 Hanlin v. Chicago Ry. Co., 273. 
 Hanlon v. Hobson, 197. 
 Hanna v. Clarke, 539, 540. : 
 
 v. Pollock. 225. 
 Hannefin v. Blake, 334, 337. 
 Hannibal v. Winchell, 140. 
 Hannibal R. Co. v. Missouri River 
 
 Packet Co., 135. 
 Hannum v. Westchester, 305. 
 Hanover W. Co. v. Ashland Iron Co., 
 
 213, 419. 
 Hanscomb v. Rutsell, 189. 
 Hanse v. Cowing, 390. 
 
 Hansen v. Farmers' Coop. Cream- 
 ery, 318. 
 
 v. Hammer, 241. 
 Hanson v. Lafayette, 99. 247. 
 
 v. McCue, 229, 281. 
 
 v. Webb, 193. 
 
 v. Willard, 196, 315. 
 Hapgood v. Brown. 228, 305, 360. 
 Harback v. Boston, 241. 
 Harbison v. Knoxville W. Co., 245a. 
 Harbor Com'rs v. Pashley, 35. 
 Harbor Line Com'rs v. State, 177. 
 Harborough v. Shadlow, 101. 
 Harbottle v. Terry, 41. 
 Hardenburg v. Schoonmaker, 23. 
 Hardestv v. Ball, 210, 620. 
 Hardin v. Jordan, 82a, 198, 203. 
 
 v. Ledbetter, 211. 
 Harding v. Funk, 211, 253. 
 
 v. Goodlett, 253, 254, 590, 622. 
 
 v. Minneapolis N. Ry. Co., 75. 
 
 v. Stamford W. Co., 204, 213, 243, 
 245, 250. 
 
 v. Whitney, 160. 
 Hardt v. Liberty Hill C. M Co., 566. 
 Hardwell, Petitioner, 253. 
 Hardy v. Brooklyn, 261. 
 
 v. McCullough,,138, 178, 355. 
 
 v. McNeil, 585. 
 
 v. Memphis, 105. 
 Hare v. Horton, 304. 
 Harger v. Edmonds, 495. 
 Hargrave v. Cook, 238, 349. 
 Hargreaves v. Diddams, 52, 53, 184. 
 
 v. Kimberly, 206, 276. 
 Harlan v. Moore, 305. 
 Harlan H. Co. v. Paschall, 138. 
 Harlem v. Emmert, 134 
 Harley v. Chicago San. District, 570i 
 
 v. Meshoppen W. Co., 524 
 Harlow v. Fisk, 195. 
 
 v. Humiston, 125. 
 
 v. Rogers, 37, 241. 
 
 v. Thomas, 451. 
 Harmon v. Chicago, 243. 
 Harmond v. Pearson, 98. 
 Harold v. Jones, 110, 206. 
 Harper v. Miller, 621. 
 
 v. Milwaukee, 103, 262. 
 
 v. Mountain W. Co., 213. 
 Harramond v. McGlaughan, 194. 
 Harrelson v. Kansas City & AtL R. 
 
 Co., 250. 
 Harriet, The, 5. 
 Harrigan v. Con. River Lumber Co., 
 
 35. 
 Harrington v. Edwards, 89, 97, 104,. 
 110, 111, 119, 128. 
 
 v. St. Paul R. Co., 255. 
 Harris v. Cohen, 391. 
 
 v. The Franconia, 13. 
 
 v. Harrison, 549. 
 
 v. James, 392. 
 
CASES CITED. 
 
 Harris v. Lloyd, 231. 
 
 v. Mackintosh, 223. 
 
 v. Miller, 322. 
 
 v. Oakley, 194. 
 
 v. Perkins, 280. 
 
 v. Philadelphia, 114 * 
 
 v. Schuylkill, etc. E. Co., 251. 
 
 v. Shoutz, 236. 
 
 v. Social Manuf. Co., 250. 
 
 v. Tarbet, 241. 
 
 v. Thompson, 57, 132, 136, 212, 242. 
 Harrisburg v. Scheck, 146. 
 Harrison v. Great Northern Ry. Co., 
 115, 161. 211c. 
 
 v. Muncaster, 286, 295, 461. 
 
 v. Newton, 121. 
 
 v. Spring Valley, 211a. 
 
 v. Sterrett, 122," 123, 149, 176. 
 
 v. Stipes. 76. 
 
 v. Sulphur Springs, 210, 252. 
 
 v. Young, 142. 
 Harrison Justices v. Holland, 118. 
 Harrop v. Hirst, 214, 223, 404, 552. 
 Barrower v. Eitson, 128. 
 Hart v. Albany, 21, 95, 97, 121, 128, 
 138, 140, 511, 520, 562. 
 
 v, Bassett, 126. 
 
 v. Chalker, 342. 
 
 v. Connor, 55. 
 
 v. Cramer, 362. 
 
 v. Delaware, etc. Ey. Co., 114 
 
 v. Evans, 204, 376, 379, 476. 
 
 v. Hill. 65, 99, 100, 143, 173, 182, 
 183, 185, 187. 
 
 v. Levee Com'rs, 244, 247. 
 
 v. Mayor, 21. 
 
 v. New Orleans, 157. 
 
 v. Plum, 234 
 
 v. Eogers. 13, 62. 
 
 v. Vose, 341. 
 Hartford Bridge Co. v. East Hart- 
 ford, 136, 142, 144, 146. 
 
 v. Union Ferry Co., 36, 142, 145. 
 Hartford Manilla Co. v. Olcutt. 606. 
 Hartford Steamboat Co. v. New York, 
 
 175. 
 Hartlepool Collieries Co. v. Gibb, 547. 
 Hartlepool Gas Co. v. West Hartle- 
 pool Harbor Co., 530, 550, 557. 
 Hartley v. Crawford, 65, 166. 
 Hartlot Paper Co. v. State, 85. 
 Hartman v. Pittsburgh I. P. Co., 293. 
 
 v. Tully P. L. Co., 296. 
 Hartsfield v. Westbrook, 197. 
 Hartshorn v. Chaddock, 218a, 248a. 
 
 v. South Eeading, 121, 122. 
 
 v. Wright, 46, 194 
 Hartwell v. Armstrong, 244. 
 
 v. Mutual Life Ins. Co., 318. 
 Hartzall v. Sill, 213, 214, 218, 227. 
 Harvard College v. Stearns, 122, 123, 
 
 126, 128. 
 Harvey v. Aurora & G. Ey. Co., 242. 
 
 v. Chilton, 236. 
 
 Harvey v. De woody, 128. 
 
 v. Lyme Eegis, 27, 141. 
 
 v. Potter, 142. 
 
 v. Eose, 193. 
 
 v. Eyan, 240. 
 
 v. Walters, 293. 
 Harvie v. Eogers, 348. 
 Harwell v. Bennett, 609. 
 Harwood v. Benton, 287, 290, 452. 
 
 v. West Eandolph, 251. 
 Hasbrouck v. Milwaukee, 117. 
 Haskell v. Gallagher, 291. 
 
 v. New Bedford, 18, 92, 121, 123, 
 
 125, 138, 152, 169, 220, 223, 244, 
 
 261, 545. 
 
 Haskins v. Haskins, 92, 206, 208, 313. 
 
 Haslett v. New Albany, etc. R. Co., 
 
 157. 
 Haslem v. Galena R. Co., 252, 259. 
 Haspurt v. Mills, 141. 
 Hastings v. Grimshaw, 169. 
 
 v. I vail, 21, 22, 28. 
 
 v. Livermore, 379, 410. 
 
 v. Stevenson, 194 
 Hasty v. Johnson, 105. 
 Hatch v. Cincinnati R Co., 255. 
 
 v. Dwight, 56, 199, 200, 210, 211b, 
 227, 319, 381, 419. 
 
 v. Kaighns Point Ferry Co., 154 
 
 v. Pottawattamie Co., 244 
 
 v. Vermont Central R. Co., 122, 
 256, 273, 589. 
 
 v. Wallamet Iron Bridge Co., 68, 
 130. 
 Hathaway v. Mitchell, 318, 517. 
 
 v. Ryan, 120. 
 
 v. Thomas, 189. 
 
 v. Wilson, 27, 29, 195, 199. 
 Hathorn v. Kelley, 601. 
 
 v. Stinson, 198, 200, 203, 322, 599, 
 ■ 602. 
 Hauck v. Tide Water P. L. Co., 291. 
 Haugen v. Albina L. & W. Co., 472. 
 Haugh's Appeal, 288. 
 Haughton v. Roscoe, 194. 
 Haupt's Appeal, 241. 
 Havana Drainage Com'rs v. Kelsey, 
 
 241. 
 Haven v. Seeley, 350. 
 Haverhill v. Groveland, 115. 
 Haversham Free Fishermen, Be, 331. 
 Haward v. Bankes, 294 
 Hawk v. Minnich, 281. 
 
 v. Eawle, 526. 
 Hawkesville v. Lander, 62. 
 Hawkins v. Nye, 194 
 
 v. Rutter, 55. 
 Hawkins Point Light House, 176, 242. 
 Hawks v. Charlemont, 493. 
 
 v. Charlestown, 160. 
 Hawley v. Sheldon, 160, 263. 
 Haxby, The, 33, 304a. 
 Hay v. Cohoes Co., 253, 296. 
 Hayden v. Albee, 211, 414 
 
CASES CITED. 
 
 li 
 
 Hayden v. Long, 148, 214 
 
 v. Noyes, 187, 188, 202. 
 
 v. State, 241. 
 Haydon v. Brown, 391. 
 Hayes v. Bowman, 46, 61, 196, 200. 
 
 v. Bridges, 189. 
 
 v. Fine, 321. 
 
 v. Hioklenian, 266. 
 
 v. Waldron, 208, 220. 
 Hayford v. Spokesfield, 351. 
 Haynes v. Burlington, 260. 
 
 v. Gratt, 204. 
 
 v. Wells, 142, 193. 
 Hays v. Hays, 266. 
 
 v. Merchants' Bank, 177. 
 
 v. State, 112. 
 Hayward r. East London W. Co., 510. 
 
 v. Knapp, 92, 95, 108. 
 
 v. Mason. 205. 
 
 v. United States, 243. 
 Haywood v. Brunswick Building So- 
 ciety, 447. 
 Hazard v. Council Bluffs, 260. 
 
 v. Robinson, 204, 306, 313, 314, 329, 
 349, 356. 
 Hazelip v. Lindsey, 193. 
 Hazeltine v. Case, 205, 219, 412, 414. 
 
 v. Edgmand, 292. 
 Hazelton v. Putnam, 323. 
 
 i?. Webster, 191, 299. 
 Hazen v. Essex Co., 253. 
 Hazlehurst v. Baltimore, 119, 176. 
 Hazman v. Hoboken Land Co., 193. 
 Heacock v. Sherman, 115. 
 
 v. State, 594. 
 Head v. Amoskeag Manuf. Co., 253, 
 586, 592. 
 
 v. Chesbrough, 157. 
 Heald v. Yumisko, 76. 
 Healy v. Joliet R. Co., 54, 67, 121, 134, 
 135 
 
 v. Thorne, 22, 23, 25. 
 
 v. Woodruff, 230. 
 Heaney v. Heeney, 113, 119. 
 Heard v. Talbot, 584, 599. ' 
 Heath v. Williams, 210, 214, 227, 363, 
 
 365. 
 Heather v. Hearn, 364. 
 He bard v. Shaw, 90. 
 Heblethwaite v. Palmer, 476. 
 Hebron Gravel Road -Co. v. Harvey, 
 
 264, 563. 
 Hecker v. New York Balance Dock 
 
 Co., 138, 175, 547. 
 Heckman v. Swett, 159, 182. 
 Hed v. Holcroft, 330. 
 Heddy v. Wheelhouse, 141, 147. 
 Hedges v. London Docks Co., 120. 
 
 v. West Shore R. Co., 151. 
 Heerman v. Beef Slough Manuf. Co., 
 
 121, 132. 
 Heermans v. Schmaltz, 338. 
 Hegne-Hendrum Ditch Co., In re, 
 241. 
 
 Heilbron v. Canal Co., 222. 
 
 v. Fowler Switch Canal Co., 224. 
 
 v. King's River Canal Co., 222. 
 
 v. Land Co., 535. 
 
 v. Last Chance Ditch Co., 228. 
 
 v. 76 Land & W. Co., 231. 
 Heilman v. Union Canal Co., 511. 
 Heinlen v. Fresno Canal Co., 217- 
 Heintzen v. Binninger, 238. 
 Heiser v. Gaul, 367. 
 Heiskell v. Cobb, 212. 
 
 v. Gross, 507, 508, 509, 530. 
 Heissenbuttel v. New York, 163. 
 Helena v. Thompson, 260, 262. 
 Helena Co., In re, 240. 
 Helen R. Cooper, The, 96. 
 Helfenstein v. Reichenbach, 103. 
 Helfrich v. Catonsville W. Co., 544. 
 Heller v. Pine, 505. 
 Helm v. Richmond, 266. 
 Hempstead v. Cargill, 343. 
 Henderson v. -Adams, 579, 590. 
 
 v. Cleveland, 96. 
 
 v. McAllister, 318a. 
 
 v. Maybin, 145. 
 
 v. Minneapolis, 262, 270. 
 
 v. New York, 34, 35, 132, 416. 
 
 v. Nicholas, 231. 
 
 v. Spofford, 34, 134. 
 Henderson Bridge Co. v. Henderson, 
 
 62, 71, 134. 
 Hendrick v. Cook, 58, 214, 218, 227, 
 
 405. 
 Hendricks v. Com., 38, 61. 
 
 v. Hughes, 538. 
 
 v. Johnson, 21, 40, 196, 204, 206, 
 579,583, 585, 586,593,614. 
 
 v. Spring Valley Mining Co., 232. 
 Henley v. Wilson, 585, 589. 
 Henly v. Lyme Regis, 116, 143, 161. 
 Hennessey i>. Andrews, 597. 
 Henning v. Bennett, 159. 
 Henry v. Bridge Co., 135. 
 
 v. Colby, 291. 
 
 v. Newburyport, 153. 160. 
 
 v. Ohio River R Co., 356. 
 
 v. Pindar, 326. 
 
 v. Roberts, 102, 244. , 
 
 v. Thomas, 241. 
 
 v. Vermont Central R. Co., 155, 
 248a. 
 Henry Clay (The) v. O'Brien, 89. 
 Henshaw v. Clark, 233. 
 
 v. Hunting, 139, 169. 
 
 v. Supervisors, 142. 
 Hepburn v. McDowell, 323, 350. 
 Heppingstone v. Mammen, 1. 
 Herbert v. Laughluyn, 471. 
 
 v. Penn. R. Co., 527. 
 Herbertson v. Cunningham, 304a. 
 Hercules, The, 96. 
 Heron v. The Marchioness, 120. 
 Herriman Ir. Co. v. Butterfleld M. 
 Co., 229. 
 
lii 
 
 OASES CITED. 
 
 Herring v. District of Columbia, 362, 
 272. 
 
 v. Fisher, 196. 
 
 v. Metropolitan Board of Works, 
 105. 
 Herrington v. Peok, 276. 
 Herron v. Rathmines Com'rs, 532. 
 Hesketh v. Bray, 160, 161. 
 Hesperia Land Co. v. Rogers, 238. 
 Hess v. Muin 190. 
 
 v. Winder, 236. 
 Hessler v. Drainage Com'rs, 244. 
 Hester v. Broach, 210, 621. 
 
 v. Hunnicutt, 349. 
 Hetfield v. Baum, 26, 192. 
 Hetrich v. Deadlier, 208, 218. 
 Hettrick v. Page, 189. 
 
 v. Skinner, 99, 100. 
 Hewitt v. San Jacinto, etc. Ir. Dis- 
 trict, 241, 503. 
 
 v. Story, 231, 238. 
 Hewlett v. Cock, 23. 
 Hewlins v. Shippam, 300, 324, 478. 
 Heyward v. Farmers' M. Co., 59, 60, 
 
 108. 
 Hext v. Gill, 513, 515. 
 Hey v. Philadelphia, 116. 
 Heyneman v. Blake, 236, 241, 244. 
 Heywood v. Miner, 206. 
 Hibernia Ins. Co. v. St. Louis Trans. 
 
 Co., 96. 
 Hickey v. Hazard, 191. 
 Hickley v. Gildersleeve, 193. 
 Hickok v. Hine, 42, 54, 68, 70, 108, 
 111, 121, 127, 133, 134, 135, 
 255, 547. 
 
 v. Parmelee, 204. 
 Hicks v. Coleman, 197. 
 
 v. Dorn, 114, 128. 
 
 v. Drew, 210. 
 
 v. Silliman, 266, 268, 271, 276, 536. 
 Hickson v. Clarke, 326. 
 Hierkhy v. Loggie, 100. 
 Higbee v. Camden R Co., 197. 
 Higginbotham v. Stoddard, 194. 
 Higgins v. Barker, 231. 
 
 v. Flemmgton W. Co., 208. 
 
 v. Hogan, 193. 
 
 v. Kustener, 191. 
 
 v. Lime, 35. 
 
 v. New York, etc. R Co., 211c, 
 417. 
 High Wycombe Corp. v. Thames Con- 
 servators, 220. 
 Hildreth v. Lowell, 241, 244, 261. 
 Hileman v. Hileman, 222. 
 Hill v. Baker, 579, 597. 
 
 v. Board of Chosen Freeholders, 
 135. 
 
 v. Boston, 115, 116, 260, 261. 
 
 v. Buffalo R. Co., 570. 
 
 v. Cincinnati Ry. Co., 273. 
 
 v. Cock, 365. 
 
 v. Crosby, 335. 
 
 Hill v. Cutting, 310. 
 
 v. King, 229. 
 
 v. Lord, 24, 25, 105, 106, 169, 299, 
 324, 331. 
 
 v. Mason, 195. 
 
 v. Mundy, 191. 
 
 v. National Bank, 305. 
 
 v. Newman, 204, 229, 230, 234. 
 
 v. New York, 212. 
 
 v. Sayles, 520, 539, 556, 584, 586, 
 589. 
 
 v. Smith, 141, 222, 227, 229, 231, 
 233, 237, 329, 398, 543. 
 
 v. Todd, 205. 
 
 v. Tupper, 224 
 
 v. United States, 176, 242. 
 
 v. Wallasey Local Board, 223. 
 
 v. Ward, 208, 210, 214, 583, 616. 
 
 v. Wilson, 325. 
 Hill Manuf. Co. v. Providence Steam- 
 ship Co., 113. 
 Hillary v. Waller, 329, 330, 348. 
 Hilliard v. Thurston, 296. 
 Hilliker v. Coleman, 112, 213. 
 Hillman v. Hardwick, 228. 
 
 v. Newington, 222, 565. 
 Hills v. Dey, 307, 316. 
 
 v. Houston, 76, 197. 
 Hilton v. Granville, 24. 
 Himes v. Johnson, 229, 240. 
 Hinchcliffe to, Kinnoul, 354 
 Hinchey v. Nichols, 194 
 Hinchman v. Paterson R. Co., 121. 
 Hinckel v. Stevens. 191, 302. 
 Hinckley v. Peay. 304a. 
 Hincks v. McKay, 570. 
 Hindman v. Rizor, 322. 
 Hindson v. Ashbv, 122, 155, 183. 
 
 v. Markle, 220. 
 Hine v. New York El. R Co., 30. 
 Hines v. Jarrett, 397. 
 
 v. Robinson, 318, 383. 
 Hinkle v. Avery, 264 
 Hinkley v. Nickerson, 208, 218. 
 Hinman v. Warren, 36, 39, 40. 
 Hinson v. Lott, 34. 
 Hipkins v. Birmingham Gaslight Co., 
 
 219. 
 Hiscox v. Sanford, 584, 599. 
 Hittinger v. Eames, 84, 189, 191. 
 
 v. Westford, 191. 
 Hoadley v. People, 121, 435. 
 
 v. San Francisco, 331. 
 Hoag v. Denton, 617. 
 
 v. Pierce, 281. 
 
 v. Place, 191. 
 Hoagland v. New York Ry. Co., 241. 
 
 v. Sacramento, 260. 
 
 v. Veghte, 420. 
 
 v. Wartz, 247. 
 Hoard v. Des Moines, 160. 
 Hoare v. Dickinson, 476. 
 Hobart v. Ford, 240, 543. 
 
 v. Milwaukee City R. Co., 123. , 
 
CASES CITED. 
 
 liii 
 
 Hobart v. Wicks, 240. 
 
 Hobbs v. Amador Canal Co., 566. 
 
 Hoboken v. Penn. R. Co., 145, 148, 171, 
 
 173. 
 Hoboken Land Co. v. Hoboken, 121, 
 148, 157, 171. 
 
 v. Kerrigan, 197. 
 Hoch v. Manhattan Ry. Co., 388. 
 Hocutt v. Wilmington & W. E. Co., 
 
 210. 
 Hodgdon v. Little. 21. 
 Hodge v. Boothby, 28, 29, 195. ' 
 
 v. Lehigh V. E. Co.. 256. 
 Hodges v. Hodges, 210, 387, 412, 495, 
 590. 
 
 v. Eaymond, 202, 363. ^ 
 
 v. Williams, 83. 
 
 v. Wilmington R. Co., 447. 
 Hodgkinson v. Ennor, 219,. 284, 288, 
 
 296, 375. 
 Hodgman v. St. Paul Ey. Co., 112, 
 
 132. 
 Hodgson v. Field, 306. 
 
 v. Jeffries, 323. 
 
 v. York, 161. 
 Hoeft v. Seaman, 132, 140, 175. 
 Hoehl v. Muscatine, 211a. 
 Hoester v. Hemsath, 274. 
 Hoff v. Tobey, 196. 
 Hoffeditz v. So. Penn. Ey. Co., 256. 
 Hoffer v. Penn. Canal Co., 249. 
 Hoffman v. Bloomsburg & S. E. Co., 
 252. 
 
 v. Savage, 348. 
 
 v. Stone, 229, 238. 
 
 v. Tuolumne Water Co., 298. 
 
 v. Union Ferry Co., 96. 
 Hogan v. Barry, 392. 
 Hogarth v. Jackson, 1. 
 Hogenson v. St. Paul Ry. Co., 271. 
 Hogg v. Bailey, 309, 342. 
 
 v. Beerman, 2, 82a. 
 
 v. Connellsville W. Co., 207. 
 
 v. Zanesville Canal Co., 70, 111, 
 121, 125, 132, 134, 140. 
 Hoggard v. Monroe, 193. 
 Hogwood v. Edwards, 218a. 371. 
 Hoit v. Stratton Mills, 102, 324. 
 Hoke v. Perdue, 241. 
 Holbert v. Edens, 60, 194 
 Holbrook v. Moore, 159. 
 Holden v. Chandler, 196. 
 
 v. Joy, 30. 
 
 v. Lake Co., 204, 206, 211b. 
 
 v. Eobinson Manuf. Co., 56, 108, 
 111. 
 Hole v. Sittingbourne Ry. Co., 134 
 Holford v. Bailey, 183, 185. 
 
 v. George, 183. 
 
 v. Pritchard, 185. 
 Holker v. Porritt, 224, 226; 227. 
 Holladay v. Frisbie, 138. 
 Holland v. Long, 335. 
 
 v. Worley, 561. 
 
 Hollenback v. Dingwell, 589. 
 Hollenbeck v. McDonald, 306. 
 Holleran v. Boston, 579. 
 Hollingsworth u Atkins, 328. 
 v. Dunbar. 465. 
 v. Tensas, 243, 247. 
 Hollins v. Verney, 22. 
 Hollis v. Goldfinch, 101, 104. 
 Hollister v. Union Co., 32, 143, 248, 
 
 248a. ' 
 Holman v. Green, 4, 241. 
 Holmes v. Barclay. 440. 
 v. Buckley, 302, 447. 
 v. Calhoun County, 269, 511. 
 v. Cleveland, etc. R. Co., 157. 
 v. Drew, 597. 
 v. Goring, 306, 314. 
 v. Mallett, 68. 
 v. Moore, 381. 
 
 v. North Eastern Ry. Co., 113. 
 v. O. & C. R. Co., 67. 
 v. Seely, 55, 306. 
 v. Townsend, 122. 127. 
 v. Wilson, 423, 424. 
 Holsman v. Boiling Spring Bleaching 
 Co., 204, 212, 214, 219, 223, 345, 
 346, 506, 507, 508, 510, 525, 532, 
 534, 544 
 Holt v. Follett, 190. 
 
 v. Rochdale, 544, 545, 546. 
 Holton v. Milwaukee, 150, 244 
 Holtz v. Com'rs, 241. 
 Holyoke Water Co. v. Conn. River 
 
 Co., 249, 593. 
 Holyoke Water Power Co. v. Lyman, 
 
 187, 253. 
 Holywell Union v. Halkyh D. Co., 
 
 241. 
 Home v. Eichards, 46, 61, 609. 
 Home El. Light Co. v. Globe Tissue 
 
 Paper Co., 306. 
 Homer Ramsdell Transp. Co. v. Com- 
 pagnie Generale Transatlan- 
 tique, 33. 
 Honenstine v. Vaughan, 610. 
 Honsee v. Hammond, 206, 220. 
 Hood v. Com'rs of Toronto Harbor, 
 115. 
 v. Dighton Bridge Co., 132, 143. 
 Hood River L. Co. v. Wasco County, 
 
 241. 
 Hook v. McQueen, 194 
 
 v. Smith, 583, 615, 621. 
 Hooker v. Cummings, 54, 55, 57, 182, 
 187. 
 v. Greene, 591. 
 v. McLeod, 540. 
 v. New Haven Co., 103, 136, 143, 
 
 252, 256, 588. 
 v. Rochester, 223. 
 Hooksett v. Amoskeag Manuf. Co., 
 
 211c, 222, 227; 255, 580. 
 Hooper v. Hobson, 99, 102, 108. 
 v. Wilkinson, 266. 
 
liv 
 
 CASES CITED. 
 
 Hooten v. Barnard, 293. 
 
 Hope, The, 96. 
 
 Hopkins v. Butte & M. C. Co., 90. 
 
 v. Crombie, 128. 
 
 v. Great Northern Rv. Co., 145. 
 
 v. Kent, 70, 200. 
 
 v. Rush River, 258. 
 
 v. Stockton, 147. 
 
 v. Western Pacific R. Co., 123, 
 
 128. 
 
 Hopkins Academy 'v. Dickinson, 42, 
 
 50, 56, 155, 159, 164, 166, 198. 
 
 Hopkinsville Bank v. Western Ky. 
 
 Insane Asylum, 148. 
 Hopper v. Hopper, 333. 
 
 u.Lutkins, 300. 
 Hoppock v. United New Jersey R. 
 
 Co., 241. 
 Hopwood v. Schofield, 376. 
 Hord v. Montgomery, 115, 447. 
 Horgan v. New York, 367. 468. 
 Horn v. Miller, 208, 302, 447. 
 Home v. Mackenzie, 27, 41, 44. 
 
 v. Munro, 194. 
 
 v. People, 117. 
 
 r. Smith, 194. 
 Horner v. Pleasants, 176. 
 
 v. Stillwell, 329, 343, 348. 
 
 v. Watson, 295. 
 Hornet, The, 96, 114. 
 Horsky v. Helena Cons. W. Co., 538. 
 Horton v. Chevington Coal Co., 194. 
 
 v. Cook, 194. 
 
 v. Hall, 211b. 
 
 v. Hoyt, 247. 
 
 v. Rosooe, 197. 
 
 v. Smith, 35. 
 
 v. Sullivan, 271. 
 Hosher v. Kansas City R. Co., 273. 
 Hoskins v. Brawn, 309. 
 Hospes v. O'Brien, 35. 
 Hostetter v. Los Angeles T. Ry. Co., 
 
 •194. 
 Hostler v. Marlowe, 145. 
 Hot Spring Ry. Co. v. Tyler, 257. 
 Hottell v. Farmers', etc. Protective 
 
 Ass'n, 302, 307. 
 Hotz v. Hoyt, 150. 
 Houck v. Yates, 69. 
 
 v. Wachter, 122, 125. 
 Houte v. Fulton, 121. 
 Hougan v. Milwaukee R. Co., 252. 
 Hough v. Doylestown, 205, 213, 245, 
 
 512, 525. 
 Houghton v. C. D. & M. R. Co., 45, 72, 
 
 151. 
 Housatonic Railroad v. Lee Railroad, 
 
 255. 
 House v. Houston W. W. Co., 245a. 
 
 v. Metcalf, 113, 121. 
 Housmau v. Weir, 190. 
 Houston v. Bryan, 261, 272. 
 
 v. Laffee, 323. 
 
 v. Parr, 210. 
 
 Houston v. Police Jury, 126. 
 
 v. Wheeler, 535. 
 Houston R. Co. v. Knapp, 256, 257. 
 
 v. Parker, 121, 258. 
 Hovey v. Perkins, 605. 
 Howard v. Britton, 305, 348. 
 
 v. Ingersoll, 27, 32, 45, 58, 166, 197, 
 202. 
 
 v. Locks and Can,als, 599. 
 
 v. Mitchell, 504 
 
 v. Moale, 176, 194, 
 
 v. Robbins, 93. 
 
 v. Wadsworth, 311. 
 Howard County v. Chicago & A. R. 
 
 Co., 353. 
 Howard Manuf . Co. v. Water Lot Co., 
 
 302. 
 Howatt v. Laird, 214. 
 Howcott v. Coffield, 621. 
 Howe v. Andrews. 216. 
 
 v. Harding, 280. 
 
 f, Lowell, 286. 
 
 v. Norman, 213, 218, 245, 516, 536,. 
 585, 604. 
 
 v. Ray, 595, 599. 
 
 v. Salisbury, 510. 
 
 v. Stowell, 3, 24, 25. 
 
 v. Weymouth, 245. 
 Howe Scale Co. v. Terry, 204, 207,320;. 
 
 392. 
 Howell v. Johnson, 240. 
 
 v. McCoy, 204. 214, 219, 362, 492. 
 
 v. Robb, 189. 
 Howell Co. v. Charles Pope Glucose- 
 Co., 506. 
 Howes v. Grush, 187, 189, 331. 
 Hoxsie v. Hoxsie, 206, 508; 537, 540. 
 Hoy v. Sterrett, 204, 210, 214, 218, 227,. 
 
 290. 
 Hoye v. Swan, 176. 
 
 v. Sweetman, 543. 
 Hoyt v. Cline, 218a, 535. 
 
 v. Hudson, 41, 263, 265, 270, 275, 
 296. 
 
 v. Kennedy, 55. 
 H. S. Nichols, The, 98. 
 Hubbard v. Bell, 53, 69, 109, 112, 
 547. 
 
 v. Manwell, 162. 
 
 v. Russell, 368, 396. 
 
 v. Toledo, 133. 
 
 v. Webster, 269. 
 Hubert v. Groves, 125. 
 Huddleston v. West Bellevue, 349. 
 Hudson v. Burk, 412. 
 
 v. Cuero Land Co., 132, 193, 255- 
 
 v. Gustier, 9. 
 
 v. McRae, 52, 184. 
 
 v. Maddison, 121, 382. 
 
 v. New York, 261. 
 
 v. State, 142. 
 
 v. Tabor, 24, 91, 161. 
 Hudson Canal Co. v. New York R. 
 Co., 255. 
 
OASES CITED. 
 
 It 
 
 Hudson River Bridge Co. v. Patter- 
 son, 132. 
 Hudson River R. Co. v. Loeb, 32, 121, 
 125, 127, 128, 151, 175, 544, 547. 
 Hiidson Tunnel Co. v. Attorney-Gen- 
 eral. 36. 
 Hueston v. Miss. & R. R. Boom Co., 
 
 90. 
 Huff v. Ky. Lumber Co., 110. 
 Huffman v. Vaughan, 583, 615. 
 Huffmire v. Brooklyn, 241, 243. 
 Hugall v. McKean, 328. 
 Hugg v. Fath, 551. 
 Huggins v. Daley, 291. 
 
 v. Riley, 115. 
 Hughes v. Anderson, 210, 271. 
 
 v. Austin, 210. 211. 
 
 v. Heiser, 126, 249. 
 
 v. Mung, 388^392. 
 
 v. Northern Pacific Ry. Co., 137. 
 
 v. Providence R. Co., 56, 197. 
 Hughesville W. Co. v. Person, 334. 
 Huguenin v. Courtenay, 572. 
 Hull v. Fuller, 318. 
 
 v. Leonard, 311. 
 
 v. Sanctuary, 369. 
 
 v. Westfield, 250. 
 Hull & Selby Ry. Co., In re, A, 21, 49, 
 
 155, 158. 
 Hulme v. Shreve, 214, 320, 323, 343, 
 
 405, 513, 534. 
 Hulsman v. Todd, 549. 
 Humboldt County v. Lander County, 
 
 318a. 
 Humboldt Lumber M. Ass'n, In re, 16. 
 Humboldt Lumber M. Ass'n i\ Chris- 
 
 topherson, 16. 
 Humes v. Shugart, 583, 609. 
 Humphrey v. Berkshire Woollen Co., 
 
 598. 
 Humphreys v. Armstrong, 115. 
 
 v. Cousins, 296. 
 
 v. McCall, 230. 
 Humphries v. Brogden, 289. 
 Huncbliffe v. Kinnoul, 306. 
 Hundhausen v. Bond, 97. 
 Hungaria, The, 2. 
 Hungarian Hill Mining Co. v. Moses, 
 
 234, 543. 
 Huning v. Porter, 233. 
 Hunsicker v. Briscoe, 247. 
 Hunt v. Burn, 17. 
 
 v. Card, 35. 
 
 v. Chicago Ry. Co., 21. 
 
 v. Iowa Cent. R. Co., 334. 
 
 v. Kansas Bridge Co., 132. 
 
 v. Raplee, 194. 
 
 v. Sain, 41, 565. 
 
 v. Whitney, 253, 590, 599. 
 Hunter v. Gibbons, 281. 
 
 v. Howard, 65. 
 
 v. Matthews, 609, 615. 
 
 v. Middleton, 69. 
 
 v. Moore, 193. 
 
 Hunter v. Northern M. Ins. Co., 4. 
 
 v. Pelham Mills, 298. 
 
 v. Perry, 147. 
 
 v. St. Louis Trans. Co., 35. 
 
 V. Sandy Hill, 105. 
 
 v. Witt, 194. 
 Hunting v. Curtis, 610, 617. 
 
 v. Waterman, 585. 
 Huntington v. Asher, 191, 301, 328. 
 
 v. Attrill, 493. 
 Huntley, In re, 231. 
 Huntress, The, 66. 
 Huntsman v. Hendricks, 85. 
 Huntsville v. Ewing, 260. 
 Hurd v. Curtis, 302, 304, 310, 312, 351, 
 
 448. 
 Hurdman v. North Eastern Railway, 
 
 265, 267, 294, 296. 
 Hurlburt v. Leonard, 214, 343. 
 Hurley v. Miss. Boom Co., 105. 
 
 v. Morgan, 195. 
 Hurst v. Warner, 363. 
 Hurxthal v. Hurxthal, 302. 
 Huse v. Amesbury Board of Health, 
 363. 
 
 v. Glover, 133, 142. 
 Hussner v. Brooklyn City R, Co., 
 
 257. 
 Hustede v. Atlantic Ref. Co., 113. 
 Huston v. Bybee, 231, 238. 
 
 v. Leach, 286. 
 Hutchings v. Talbott, 32. 
 Hutchins v. Smith, 368. 
 Hutchinson v. Chase, 383. 
 
 v. Chicago Ry. Co., 256, 305. 
 
 v. Coleman, 204, 210. 
 
 v. Delano, 545, 546. 
 
 v. Granger, 211, 211b, 484, 486. 
 
 v. Thompson, 133. 
 Huttemeier v. Albro, 355. 
 Hutton v, Frisbie, 240. 
 
 v. Webb, 241. 
 Huyck v- Andrews, 303. 
 Huzzey v. Field, 193. 
 Hyatt v. Albro, 218a. 
 Hyde v. French, 532. 
 
 v. Russell, 187, 189. 
 Hyde Park v. Washington Ice Co., 
 
 191. 
 Hyman v. Reed, 36. 
 Hyslop v. Finch, 244. 
 
 lams v. Carnegie Nat. Gas Co., 291. 
 
 Idaho Imp. Co. v. Bradbury, 478. 
 
 Idlewild, The, 120. 
 
 Ilchester v. Raishleigh, 43, 100. 
 
 Iliff v. School Directors, 288. 
 
 Illinois, The, 67. 
 
 Illinois v. Illinois Central R. Co., 13,. 
 
 69, 179, 257. 
 Illinois Canal Co. v. St. Louis, 118. 
 
lvi 
 
 CASES CITED. 
 
 Illinois Cent. R. Co. v. Chicago, 82a, 
 180. 
 
 v. Illinois, 82a, 157, 179. 
 
 v. Miller, 268. 
 
 v. Wilbourn, 210, 256. 
 Illinois, etc. R. Co. v. Allen, 349. 
 
 v. Bethel, 258, 588. 
 
 v. Fehringer, 481. 
 
 v. Grabill, 419. 
 
 v. Switzer, 257. 
 
 v. Wren, 305. 
 Illinois River Packet Co. v. Peoria 
 
 Bridge Co., Ill, 132, 133. 
 Ilwaco v. Ilwaco Ry. & Nav. Co., 181. 
 Imboden v. Etowah M. Co., 349. 
 Itnler v. Springfield, 41, 269. 
 Imperial Gas Co. v. Broadbent, 223. 
 Indemaur v. Dames, 113, 114. 
 Inderlied v. Whaley, 210. 
 Indian Canyon Road Co. v. Robin- 
 son, 145. 
 Indiana, The, 96. 
 Indiana v. Kentucky, 71, 158, 159. 
 
 v. Milk, 31. 
 Indiana, etc. R. Co. v. Adamson, 258. 
 
 v. Allen, 549. 
 
 v. Patchette, 353. 
 Indiana Central Canal Co. v. State, 
 
 101. 
 Indianapolis v. Huffer, 261, 270. 
 
 v. Lawyer. 272. 
 Indianapolis Ry. Co. v. Smith, 273. 
 Indianapolis W. Co. v. American 
 Strawboard Co., 148, 509, 544. 
 
 v. Burkhart, 191, 241, 242, 468. 
 
 v. Nulte, 468. 
 Indus, The, 96. 
 Industrie, The, 96. 
 Industry, The, 96. 
 Ingalls v. Newhall, 338, 383, 470. 
 Inge v. Police Jury, 249. 
 Ingraham v. Camden W. Co., 205. 
 
 v. Chicago R. Co., 33, 132, 133, 
 151. 
 
 v. Dunnell, 507. 525. 
 
 v. Hough, 333, 338. 
 
 v. Hutchinson, 217, 329, 334, 374. 
 
 v. Wilkinson, 4, 54, 55, 56, 78, 155, 
 166, 195. 
 Ingram v. C. D. & M. R. R. Co., 121. 
 
 v. Morecraft, 538, 569. 
 
 v. Police Jurv, 121. 
 
 v. Threadgilf, 46, 60, 76, 182. 
 
 v. United States, 242. 
 Inland Coasting Co. v. The Commo- 
 dore, 98. 
 Inman v. Funk, 92. 
 
 v. Tripp, 243, 272. 
 Inman S. S. Co. v. Tinker, 34, 35, 134. 
 Innis v. Cedar Rapids Ry. Co., 146. 
 Insley, Ex parte, 35. 
 Insurance Co. v. Dunham, 4, 66, 67. 
 Integral Q. M. Co. v. Altoona Q. M. 
 Co., 238, 471. 
 
 International, The, 120. 
 International Bridge Co. v. Canada 
 
 Southern Ry. Co., 99, 242. 
 International, etc. R. Co. v. Davis, 
 210, 256. 
 
 v. Pape, 210, 211a, 421. 
 Iowa v. Illinois, 202. 
 Ipswich, Petitioners, 162, 197, 202. 
 Ipswich v. Browne, 193. 
 Ipswich Dock Com'rs v. St. Peter, 14, 
 
 18, 52. 
 Ipswich Grammar School v. Proprie- 
 tors, 362. 
 Ipswich Mills v. County Com'rs, 245. 
 Ipswich Proprietors v. Herrick, 169. 
 Iron Railroad Co. v. Ironton, 244 
 Irvine v. Wood, 113, 394. . 
 Irving v. Media, 205, 245, 342. 
 Irwin v. Brown, 60. 
 
 v. Dixion, 105, 121. 
 
 v. Phillips, 229, 543. 
 
 v. Richardson, 601. 
 
 v. Sprigg, 125. 
 
 v. Strait, 236. 
 
 v. Towne, 162, 164 
 Isaacs v. Barber, 240. 
 Isele v. Arlington S. Bank, 303, 455. 
 
 v. Sohwamb, 243, 599. 
 Iselin v. Starin, 334. 
 Isle of Ely, Case of the, 91, 161. 
 Ison v. Nelson M. Co., 240. 
 Iszard v. Mays Landing W. P. Co., 
 
 320. 
 Ives v. Cress, 385. 
 Iveson v. Moore, 126. 
 Ivimey v. Stocker, 225, 313. 
 
 Jackel v. Reiman, 76. 
 Jackman v. Arlington Mills, 418a, 
 271 391 
 
 v. Mo. Pac. R. Co., 256. 
 Jackson v. Allegheny City, 116. 
 
 v. Babcock, 324 
 
 v. Boston & Worcester R Co., 195. 
 
 v. Bradt, 121. 
 
 v. Buel, 471. 
 
 v. Camp, 194. 
 
 v. Halson, 200. 
 
 v. Halsted, 166, 304a. 
 
 v. Harrington, 344, 599. 
 
 v. Harvey, 329. 
 
 v. Hathaway, 196. 
 
 v. Hudson, 30. 
 
 v. Ingraham, 30. 
 
 v. Johnson, 331. 
 
 v. Joy, 194. 
 
 v. Lewis, 59, 186, 189. 
 
 v. Litch, 321. 
 
 v. Louw, 46, 57, 196, 197, 201, 305. 
 
 v. Lunt, 194 
 
 v. McCall, 329. 
 
OASES CITED. 
 
 lvii 
 
 Jackson v. Michie, S98. 
 
 v. The Magnolia, 33, 67. 
 
 v. Pesked, 373, 376, 378, 479. 
 
 v. Porter, 30. 
 
 v. Portland, 589. 
 
 v. Roby, 240. 
 
 v. Savage, 476. 
 
 v. Snow, 197. 
 
 v. State, 202. 
 
 v. Trullinger, 305. 
 
 v. United States, 242. 
 
 v. Van Buren, 300. 
 
 v. Vermilyea, 312. 
 
 v. Waters, 30. 
 
 v. Wood. 30. 
 Jackson M. Co. v. Chandos, 317. 
 Jacksonville v. Doan, 261. 
 
 v. Lambert, 219, 261, 272, 278. 
 Jacksonville R. Co. v. Cox, 256, 273. 
 Jacob v. Day, 228, 240, 289. 
 
 v. Lorenz, 237, 240. 
 
 v. Louisville, 244. 
 Jacobs v. Allard, 220. 
 
 v. Davis, 300, 467. 
 
 v. Supervisors, 474. 
 
 v. Worrell, 288. 
 Jacobson v. Fountain, 99, 100, 189. 
 
 v. "Van Boening, 271, 536. 
 Jacob Towne Institute v. Crothers, 
 176. 
 
 v. Davis, 176. 
 Jacox v. Clark, 349. 
 Jakeway v. Barrett, 56, 82, 82a, 203. 
 Jamaica Pond Aqueduct Corp. v. 
 Chandler, 304a, 305, 310, 314, 
 348, 354. 
 James v. Carter, 90. 
 
 v. Freeland, 326. 
 
 v. Goodenough, 229. 
 
 v. Hayvvard, 128. 
 
 v. Howell, 70, 76, »155. 
 
 v. Johnson, 120. 
 
 v. Kansas City, etc. R. Co., 256. 
 
 v. Plant, 314. 
 
 v. Sterrett, 590, 608. 
 
 v. Williams, 229, 231. 
 
 v. Worcester, 419. 
 James Gray, The, v. The John Fraser, 
 
 35. 
 James G. Swan, The, 5. 
 James Jackson, The, 114 
 James River Co. v. Anderson, 255. 
 
 v. Early, 144. 
 
 v. Thompson, 143. 
 
 v. Turner, 244. 
 Jamieson v. Russell, 114 
 Jamison v. Cornell, 194 
 
 v. McCredy, 302, 447. 
 
 v. New Orleans, 247. 
 Jane Gray, The, 5. 
 Janes v. Jenkins, 357, 454. 
 Janesville v. Carpenter, 75, 139, 243, 
 512. 
 
 Janesville Bridge Co. v. Stoughton, 
 
 145. 
 Janesville Cotton Manuf. Co. v. Ford, 
 
 315, 317, 601. 
 Jansen v. Varnum, 391. 
 Janssen v. Lammers, 211c, 594 
 Janvrin, Petitioner. 245a. 
 Jaqui v. Johnson, 318a. 
 Jarvis v. Lynch, 175, 195. 
 
 v. Santa Clara Valley R. Co., 121, 
 123. 
 
 v. Seele Milling Co., 305. 
 
 v. State Bank, 228, 240. 
 Jasper v. Hamilton, 326. 
 Jatunn v. O Brien, 237. 
 
 v. Smith, 238. 
 Jeanu Holland, 91. 
 
 v. Penn, 213. 
 Jeflferies v. East Omaha Land Co., 
 
 76, 155. 
 JeSters v. JefEers, 263. 
 Jefferson ville v. The John Shallcross, 
 116, 193. 
 
 v. Louisville Ferry Co., 116, 117, 
 120, 140. 
 Jegon v. Vivian, 294. 
 Jellett v. Anderson, 193. 
 Jenal v. Green Island Co., 241. 
 Jenkins v. Conley, 343. 
 
 v. Cooke. 147. 
 
 v. Cooper, 194, 195, 220. 
 
 v. Harvey, 4, 23, 141, 330. 
 
 v. Hooper Ir. Co., 298. 
 Jenks v. Miller, 96, 110, 129, 153. 
 Jennings, Ex parte, 18, 57, 108, 196, 
 
 200, 243, 246. 
 Jennings v. Athens Bank, 194. 
 
 v. Fitchburg Railroad Co., 
 135. 
 Jennison v. Kirk, 233, 240. 
 
 v. Walker, 318, 348, 351. 
 Jensen v. Hunter, 339. 
 Jeremiah Godfrey, The, 96. 
 Jeremy v. Elwell, 111, 161. 
 Jerome v. Floating Dock, 96. 
 
 v. Ross, 510, 520, 562. 
 Jersey City v. American D. & I. Co., 
 171. 
 
 v. Morris Canal Co., 157, 532. 
 Jessup v. LoucUs, 331, 332. 
 Jessup, etc. Co. v. Ford, 544. 
 Jewell v. Gardiner, 211b, 363. 
 
 v. Lee, 148. 
 
 v. Rochester, 250. 
 Jewett v. Jewett, 351. 
 
 v. Ricker, 312. 
 
 v. Sweet, 272. 
 
 v. Whitney. 320. 
 Jex v. McKinney, 30. 
 Johannes, The, 96. 
 John v. Bacon, 115. 
 John A. Berkman, The, 114. 
 John Fenwick, The, 96. 
 
lviii 
 
 CASES CITED. 
 
 John Hancock Mut. L. Ins. Co. v. 
 
 Patterson, 357. 
 John Kyle S. S. Co. v. New Orleans, 
 
 35. 
 John M. Welch, The, 35. 
 John Young & Co. v. Bankier Distil- 
 lery Co., 220. 
 Johns v. Davidson, 65, 166. 
 
 v. Stevens, 204, 210. 327. 
 Johnson v. Anderson, 196. 
 
 v. Atlantic E. Co., 258. 
 
 v. Barnes, 184. 
 
 v. Barrett, 18. 
 
 v. Belden, 114. 
 
 v. Belmar, 507. 
 
 v. Bloomfield, 183. 
 
 v. Boorman, 344, 601. 
 
 v. Boston, 245, 245a. 
 
 v. Brown, 197, 200. 
 
 v. Chambers, 133. 
 
 v. Chicago, etc. R. Co., 268. 
 
 v. Chicago Elevator Co., 33. 
 
 v. Crow, 146., 
 
 v. Cunningham, 225. 
 
 v. District of Columbia, 261. 
 
 v. Drummond, 38. 
 
 v. Dunn, 363. 
 
 v. Erskine, 193. 
 
 v. Gorham, 339. 
 
 v. Irwin, 121. 
 
 v. Jaqui, 318a. 
 
 v. Jordan, 204, 306, 313, 354, 359. 
 
 v. Kittredge, 584, 594. 600. 
 
 v. Knapp, 338, 355, 451. 
 
 v. Knott, 76, 177. 
 > v. Lewis, 215, 322, 392, 394. 
 
 v. Loper, 38, 190. 
 
 v. Mcintosh, 30. 31, 40. 
 
 v. Milwaukee, 118. 
 
 v. Pannell, 197. 
 
 v. Rand, 344. 
 
 v. Rayner, 286, 304a. 
 
 v. Rea, 272. 
 
 v. Skillman, 299, 324. 
 
 v. State, 44. 
 
 v. Stayton, 55. 
 
 v. Superior Court, 534, 555. 
 
 v. Twenty-one Bales, 1, 4, 66. 
 
 v. United States, 244. 
 
 v. Utica W. W. Co., 244. 
 
 v. Wyard, 24. 
 John Spry Lumber Co. v. The C. H. 
 
 Green, 89, 96, 305. 
 Johnston v. District of Columbia, 261. 
 
 v. Hyde, 318, 320, 349, 351, 538. 
 
 v. Johnston, 321. 
 
 v. Jones, 148, 156, 163, 164. 
 
 v. Roane, 210, 615, 621. 
 Johnstone v. Hall, 376. 
 Johnstown Cheese Manuf. Co. v. 
 
 Veghte, 281. 
 Joint Committee v. Croston U. D. 
 
 Council, 41. 
 Joliet R Co. v. Healy, 41, 132. 
 
 Jolliffe v. Wallasey Local Board, 11,1 
 Jolly v. Terre Haute Bridge Co., 35,. 
 
 Ill, 126, 132, 133. 135. 
 Jones v. Adams, 240, 328, 349, 355, 358, 
 
 v. Andover, 121. 
 
 v. Baltimore R. Co., 135. 
 
 v. Boston Mill Co., 162. 
 
 v. Burgett, 195. 
 
 v. Cardwell, 121. 
 
 v. Chantry, 134. 
 
 v. Clancy, 185. 
 
 v. Clarke, 621. 
 
 v. The Coal Barges, 67. 
 
 v. Crow, 220, 345. 
 
 v. De Coursey, 328. 
 
 v. Fanning, 35. 
 
 v. Fisher, 583. 
 
 v. Forest Oil Co., 291. 
 
 v. Hannovan, 41, 263, 266, 274. 
 
 v. Jackson, 235, 239. 
 
 v. Janney, 65, 173. 
 
 v. Johnson, 108, 185. 
 
 v. Johnston, 35, 148, 156, 163. 
 
 v. Jones, 60, 330. 
 
 v. Keeling. 87, 
 
 v. Keith, 255. 
 
 v. Lavender, 210. 
 
 v. Lee, 75, 82a, 165, 179. 
 
 v. Loomis, 483. 
 
 v. Martin, 27, 174. 
 
 v. Oemler, 511. 
 
 v. Parker, 200. 
 
 v. Parsons, 231. 
 
 v. Percival, 55, 318. 
 
 v. Peskett, 293. 
 
 v. Pettibone, 75, 76, 85, 112, m, 
 197, 299. 
 
 v. Phillips, 141. 
 
 v. Pierce, 597. 
 
 v. Proprietors, 349. 
 
 v. Robinson, 295. 
 
 v. Royal Canal Co., 323, 530. 
 
 v. St. Louis Ry. Co., 252. 
 
 v. St. Paul, etc. R Co., 125, 126. 
 
 v. Skinner, 253, 598. 
 
 v. Soulard. 73, 76, 157, 160, 196, 
 197, 199. 
 
 v. Turner. 160. 
 
 v. United States, 1, 222, 243, 599. 
 
 v. Van Zandt, 133. 
 
 v. Wabash Ry. Co., 263. 
 
 v. Wagner, 295. 
 
 v. Waterlot Co., 58. 
 
 v. Weathersbee, 383. 
 
 v. Westerhausen, 148, 296, 392. 
 
 v. West Vermont R. Co., 256. .' 
 
 v. Williams, 333, 392, 394, 493. 
 Joplin Cons. M. Co. v. Joplin, 261, 545. 
 Jordan v. Benwood, 269, 271. 
 
 u Lang, 344. 
 
 v. Mayo, 320. 
 
 v. Mt. Pleasant, 262. 
 
 v. St. Paul Ry. Co., 267. 
 
 v. Woodward, 253. 
 
CASES CITED. 
 
 lix 
 
 Jordan Ditching Ass'n v. Wagoner, 
 
 69. 
 Jorden v. Atwood, 314. 
 Jordeson v. Sutton, etc. Gas Co., 289. 
 Joseph v. Ager, 234. 
 Joseph Schlitz B. Co. v. Compton, 
 
 292, 412. 
 Josephine, The, 67. 
 Josh v. Marshall, 38, 112. 
 Joslin v. Sones, 468. 
 Jourdain v. Wilson, 302, 447. 
 Joy v. Grindstone Neck W. Co., 251. 
 
 v., St. Louis, 441. 
 Joyce v. Martin. 113. 
 Judd v. Hartford, 261. 
 
 v. Wells, 312. 
 Judge v. Meriden, 272. 
 Judkins v. Elliott, 228, 240. 
 Julia, The, 96. 
 Julien v. Woodsmall, 191. 
 Junction R. Co. v. Sayers, 256, 300. 
 June v. Purcell, 70, 76, 93a. 
 Jungblum v. Minneapolis, etc. R. Co., 
 
 273. 
 Junkans v. Bergin, 229. 
 Jupiter Mining Co. v. Bodie Consoli- 
 dated Co., 240. 
 Jurisdiction over Provincial Fisher- 
 ies, In re, 66, 82. 
 Justice v. Com., 146. 
 Jutte v. Hughes, 271, 272, 278, 293. 
 Juxon v. Thornhill, 141. 
 J. W. French, The, 38. 
 
 K. 
 
 Kain v. Young, 194 
 Kaler v. Beaman, 105, 318. 
 Kane v. Baltimore, 241. 
 
 v. New York El. R. Co., 151. 
 
 v. Parker, 315. 
 
 v. State, 188. 
 Kankakee District v. Lake Fork S. D. 
 
 District, 271. 
 Kankakee R. Co. v. Horan, 211a, 252, 
 
 258. 
 Kanouse v. Stockbower, 200. 
 Kansas, etc. R. Co. v. Le Flore, 255. 
 
 v. Payne, 255. 
 Kansas City v. Brady, 256. 
 
 v. Swope, 41, 263. 
 Kansas City, etc. R. Co. v. Cook, 
 256. 
 
 v. Smith, 45. 
 Kansas Pacific Ry. v. Mihlman, 259, 
 421, 424. 
 
 v. Miller, 98. 
 
 v. Lundin, 98. 
 Karns v. Tanner, 291. 
 Kaskaskia Commons v. McClure, 69, 
 
 , 75, 202. 
 Kastor v. Newhouse, 391. 
 Kate Tremaine, The, 33, 67. ' 
 
 Katie. The, 67. 
 
 Kauffman v. Griesemer, 41, 264, 266, 
 
 271. 
 Kaukauna W. P. Co. v. Green Bay 
 
 Co., 75, 245a. 
 Kavanagh v. Brooklyn, 143, 270. 
 
 v. Coal Mining Co., 314. 
 Kaveney v. Troy, 293. 
 Kay v. Kirk, 218a. 
 Kaylor v. Campbell, 205, 240. 
 Kean v. Rice, 189. 
 
 v. Stetson, 27, 37, 104, 105, 106, 
 
 139, 169. 
 
 Kearney v. Thoemason, 270, 271, 272. 
 
 Kearney Canal Co. u Akeyson, 232. 
 
 Kearns v. Cordwainers' Co., 123, 124, 
 
 135, 149. 
 
 v. Thomas, 601. 
 Keating v. Pittson, 271. 
 Keble v. Hickringill, 1. 
 Keeler, Ex parte, 363. 
 Keeler v. Wood, 310. 
 Keene v. Gifford, 190. 
 Keeney v. Carillo, 236, 281, 542, 543. 
 Keeney Manuf. Co. v. Union Manuf. 
 
 Co., 204, 214, 227, 334. 
 Kehr v. Snyder, 163. 
 Keighley's Case, 161. 
 Keiser v. Lovett. 542. 
 Keith v. Brockton, 269. 
 
 v. Corey, 218. 
 
 v. Reynolds, 194. 
 Keithsburg v. Simpson, 260, 269, 271. 
 Keller v. Fink, 232. 
 
 v. Stoltz, 210. 
 Kelley v. New York, 244, 345. 
 
 v. Ohio Oil Co., 291. 
 Kellogg v. New Britain, 261. 
 
 v. Thompson, 121, 212. 
 
 v. Union Co., 35, 130, 143, 144, 147. 
 Kelly v. Dunning, 263, 264, 271, 30&. 
 
 v. Lett, 218a, 371. 
 
 v. Natoma Water Co., 231, 235, 
 236. 
 Kelsey v. King, 105. 
 
 v. Murry, 120. 
 Kemp v. Thorp, 39. 
 Kemper v. Louisville, 270. 
 Kendrick v. Bartland, 364. 
 Kennard ■;;. Burton, 96, 125. 
 Kennebec Ferry Co. v. Bradstreet, 
 
 162, 164 
 Kennebeck Purchase v. Springer, 37. 
 Kennedy v. Indianapolis, 251. 
 
 v. Jones, 148, 157. 
 
 v. Municipality No. 2, 157. 
 
 v. New York, 116. 
 
 v. Portland, 195. 
 
 v. Scovil, 302, 307, 319, 447, 540. 
 Kennerty v. Etiwan Phosphate Co., 
 
 506. 
 Kenney v. Kansas City, etc. R. Co., 
 
 256, 273. 
 Kenniston v. Beverly, 270, 272. 
 
Ix 
 
 CASES CITED. 
 
 Kensit v. Great Eastern Ry. Co., 224, 
 
 534. 
 Kent v. Atlantic Delaine Co., 159. 
 
 v. Waite, 306, 335, 336. 
 Kentucky Lumber Co. v. Green, 62. 
 
 v. Miracle, 102, 192, 298. 
 Kenyon v. Knipe, 40. 
 
 v. Nichols, 25, 355. 
 
 v. Squire. 40. 
 Keokuk v. Keokuk Packet Co., 35, 
 
 117, 118. 
 Keokuk Co. v. Quincy, 120. 
 Keokuk & H. Bridge Co. v. People, 
 
 202. 
 Kepley v. Taylor, 587. 
 Keppell v. Bailey, 302. 
 Kern v. Myll, 295, 391. 
 Kernan v. Bahani, 194, 
 Kerns v. Perry, 325. 
 Kerr v. Chess, 504. 
 
 v. Joslin, 256. 
 
 v. West Shore R. Co., 151. 
 Ker whacker v. Cleveland R. Co., 89, 
 
 128. 
 Kestler v. Verble, 307. 
 Ketchum v. Mighton, 341. 
 Kewanee v. Gmlfoil, 219. 
 
 v. Ladd, 222. 
 Keyes v. Little York Gold Washing 
 
 Co.. 398, 565, 566. 
 Keymer v. Summers, 330. 
 Keyport Steamboat Co. v. Farmers' 
 
 Transp. Co., 153, 171. 
 Keysar v. Covell, 302a. 
 Keyser v. Coe, 5, 13. 
 Kidd v. Laird, 204, 228, 236, 237. 
 Kidder v. Boom Co., 147. 
 
 v. George, 303, 453. 
 Kidgill v. Moor, 376. 
 Kiefer v. Graham, 546. 
 Kieffer v. Imhoffi, 313, 355. 
 Kiel v. Chartiers Gas Co., 210. 
 Kier v. Peterson, 291. 
 Kiesel v. Ogden City, 261 
 Kiflf v. Youmans, 290. 
 Kilburn v. Adams, 334, 338. 
 Kilgore v. Hascall, 304 
 Kilgour v. Ashcom, 307, 359. 
 Kilheffer v. Herr, 504. 
 Kilmorey v. Att. Gen., 21. 
 Kimball v. Gearhart, 231, 234, 235, 236. 
 
 v. Kenosha, 75, 197. 
 
 v. Ladd, 332. 
 
 v. Macpherson, 36. 
 
 v. Mobile, 117. 
 
 v. Schorl, 56, 166. 
 Kimberly Co. v. Hewitt, 213, 512. 
 Kimble v. Whitewater Canal Co., 582. 
 Kimbrall v. Walker, 338, 377. 
 Kimel v. Kimel, 621. 
 Kinealy v. St. Louis Ry. Co., 123. 
 King, The (See Rex or Reg.). 
 King, Petitioner, 162. 
 King v. American Transp. Co., 33. 
 
 King v. Brigham, 318a. 
 
 v. Chicago, etc. R. Co., 259, 620. 
 
 v. Edwards, 236. 
 
 v. Granger, 272. 
 
 v. Iowa Midland R. Co., 256, 589. 
 
 v. Kansas City, 261. 
 
 v. King, 46, 56, 196, 315. 
 
 v. Miles City Ir. Ditch Co., 298. 
 
 v. Oahu Ry. & Land Co., 40. 
 
 v. Parish, 9. 
 
 v. Sanders, 128. 
 
 v. Shuford, 579. 
 
 v. Tarlton, 377. 
 
 v. Tiffany, 204, 227. 
 
 v. United States, 243, 353. 
 
 v. Young, 166, 169, 195. 
 Kingman v. Sparrow, 57, 82, 200, 241. 
 Kingsland v. Chittenden, 196, SOO. 
 
 v. New York, 138, 154, 175. 
 Kingsley v. Gouldesborough Land 
 
 Impr. Co., 314. 362. 
 Kingston v. Horner, 22, 329. 
 Kingston Docks v. La Marche, 141, 
 
 142. 
 Kinlock v. Neville, 101, 104 
 Kinnaird v. Standard Oil Co., 219. 
 Kinnersley v. Orpe, 183. 
 Kinnev v. Watts, 303. 
 Kinsell v. Daggett, 197. 
 Kinson Pottery Co. v. Poole Corp., 41. 
 Kintz v. McNeal, 368. 
 Kinzie v. Winston, 156. 
 Kipp v. Den, 113. 
 Kirby v. Lewis, 35, 112. 
 Kirk v. Bartholomew, 228, 229. 
 
 v. Kansas City, etc. R Co., 273. 
 Kirkendall v. Hunt, 586, 611. 
 Kirkheaton Local Board v. Ainley, 
 
 223. 
 Kirkpatrick v. Yates Ice Co., 203. 
 Kirman v. Hunnewill, 238. 
 Kirwan v. Murphy, 76, 85. 
 Kisling v. Johnson, 138. 
 Kissam v. The Albert, 89. 
 Kittle v. Tremont, 121. 
 Kivett v. McKeithan, 323. 
 Kleeb v. Barb, 300. 
 Kleinschmidt v. Greiser, 238. 
 Kleyenstuber v. Robinson, 532. 
 Klingensmith v. Ground, 173, 194. 
 Klix v. Nieman, 216. 
 Klock v. New York Cent. R Co., 57. 
 Knapheide v. Eastman, 296, 298. 
 "Knapp v. Douglass Axe Co., 351, 537, 
 556. 
 
 v. White, 303. 
 Knappman Whiting Co. r. Middlesex 
 
 W. Co., 245a. 
 Knauss v. Brua, 388. 
 Knickerbocker Ice Co. v. Forty-Sec- 
 ond Street Ferry R Co., 547. 
 
 v. Shultz, 82, 191. 
 Knight u Albemarle & R R Co., 256. 
 
 v. Brown, 271. 
 
OASES CITED. 
 
 lxi 
 
 Knight v. Haight, 402. ' 
 
 v. Moore, 301. 
 
 v. Portland, 113. 
 
 v. Wilder, 46, 56, 108, 162, 163, 164, 
 197. 
 Knoll v. Light, 211c, 363, 374. 
 
 v. Mayer, 268. 
 Knostman & P. F. Co. v. Davenport, 
 
 261. 
 Knoth v. Barclay, 234. 
 Knott v. Frush, 193. 
 
 v. Jefferson Street Ferry Co., 193. 
 Knotts v. McGregor, 291. 
 Knowles v. Dow, 24, 25, 105. 
 
 v. Knowles, 25. 
 
 v. Lancashire, etc. Ey. Co., 289, 
 296. 
 
 v. Leggett, 211a. 
 
 v. Nichols, 25. 
 Knowlton v. New York, etc. E. Co., 
 310. 
 
 v. Sanford, 92, 96. 
 Knox v. Chaloner, 56, 92, 108, 110. 121, 
 128, 132, 134, 140, 143, 584. 
 
 v. Mayor. 368, 555. 
 
 v. New York, 93, 121, 123. 
 
 v. Pickering, 169. 
 
 v. Silloway, 310.* 
 Knudsen v. Omanson, 85. 
 Knupp v. Bright, 291. 
 Kobs v. Minneapolis, 261, 272. 
 Koch v. Delaware, etc. E. Co., 161, 256. 
 
 v. Williamsport Water Co., 244. 
 Kodiak, The, 5. 
 Koenig v. Watertown, 538. 
 Koenigshof v. Spaulding, 618. 
 Koerberu. New Orleans Levee Board, 
 
 298. 
 Kohl v. United States, 242. 
 Koopman v. Blodgett, 241, 534 
 Korah v. Ottawa, 134. 
 Kosmak v. New York, 262. 
 Kostendader v. Pierce, 252. 
 Kountze v. Morris Aqueduct, 241. 
 Kownslar v. Ward, 212, 610. 
 Krall v. United States, 233. 
 Kranz v. Baltimore, 261. 
 Krause v. Busacker, 326. 
 Kraut v. Crawford, 72, 76. 
 Kray v. Muggli, 340. 
 Kreamer v. Chicago E. Co., 133. 
 Kreiter v. Bigler, 162. 
 Krekeler v. Eitter, 504. 
 Kretzschmar v. Meehan, 110. 
 Kroll v. Nester, 90, 95. 
 Krug v. St. Mary's Borough, 256. 
 Kucheman v. C. C. & D. E. Co., 151. 
 Kuehn v. Milwaukee, 92, 547. 
 Kutz v. McCune. 303, 355, 454. 
 Kyner v. Upstill, 619 
 
 Laberee v. Carleton, 302a. 
 La Bourgogne, 96. 
 
 La Branch v. Montegut, 194. 
 Lackland v. North Missouri E. Co., 
 
 123 
 Lacy v. Ariiett. 322, 324, 343, 599. 
 
 v. Green, 27, 41, 45, 65. 
 Lacy's Case, 4. 
 Ladd v. Osborne, 76, 203. 
 Ladies' Seamen's Friend Society v. 
 
 Halstead, 170, 181. 
 Ladner v. Balsley, 327. 
 Lady Brown's Case, 293, 313. 
 Lady Franklin, The, 96. 
 Lady Pike, The, 33. 
 Lafayette Plank Eoad v. New Albany 
 
 E Co.. 145, 250, 252. 
 Lafayette E. Co. v. Murdock, 255. 
 Lafferty v. Girardville, 271. 
 Laing v. Whaley, 475. 
 Laird v. Briggs, 26. 
 La Junta Canal Co. v. Hess, 234. 
 Lake v. Loysen, 598, 601. 
 
 v. Tolles, 230. 
 
 v. Virginia E. Co., 145, 146. 
 Lake Erie & W. R Co. v. Fremont, 
 507. 
 
 v. Purcell, 210, 211. 
 
 v. Young, 562. 
 Lake Shore, etc. E. Co. v. Franklin, 
 472. 
 
 v. Ohio, 110, 129. 
 
 v. Piatt, 70. 
 Lakeman v. Burnham, 20, 32, 169, 189. 
 
 v. Butler, 29, 183. 
 Lakeside Ditch Co. v. Crane, 228, 238. 
 Lake Superior E Co. v. Greve, 252. 
 Lallande v. The C. D, Jr., 96. 
 Lally v. Eossman, 76. 
 Lamar v. Charlotte E. Co., 258. 
 Lamb v. Crossland, 331. 
 
 v. Danforth, 303, 451. 
 
 v. Eeclamation District, 247. 
 
 v. Eicketts, 70, 155, 200. 
 
 v. Schottler, 244. 
 
 v. Walker, 412. 
 Lambe v. Manning, 338. 
 Lambert v. Alcorn, 264, 271, 551. 
 
 ti. Bennett, 312. 
 
 v. Mills County, 247. 
 
 v. Staten Island E. Co., 96. 
 
 v. Stees, 22. 
 Lamborn v. Bell, 241. 
 
 v. Covington Co., 508, 534, 555. 
 Lambton v. Mellish, 222. 
 Lamme v. Buse, 76. 
 Lammers v. Brennan, 98. 
 
 v. Nissen, 76, 77, 148. 
 Lammott v. Ewers, 556. 
 Lampe v. San Francisco, 269, 272. 
 Lampman v. Milks, 305, 314, 355, 356, 
 360. 
 
 v. Van Alstyne, 194, 349. 
 Lamprey v. Nelson, 108. 
 
 v. State, 76, 85. 
 Lamson v. Vailes, 228. 
 
 v. Worcester, 470. 
 
lxii 
 
 CASES CITED. 
 
 Lancaster v. Eve, 105. 
 
 v. Kennebeck Co., 241. 
 Lancaster Ave. Impr. Co. v. Hum- 
 phreys, 349. 
 Lancaster Canal Co. v. Parnaby, 114. 
 Lancey v. Clifford, 92, 96, 108, 110, 
 204, 584. 
 
 v. King County, 241. 
 Lands v. A Cargo, 112. 
 Lane v. The A. Denike, 92. 
 
 v. Harbor Com'rs, 138, 170. 
 
 v. Jones, 74. 
 
 v. McDonald, 102. 
 
 v. Miller, 323, 344, 616. 
 
 v. Newdigate, 552, 554. 
 
 v. Salter, 114. 
 
 v. Smith, 189. 
 Laney v. Jasper, 508, 536. 
 Langdeau v. Hanes, 30. 
 Langdon v. G, B. & Q. R. Co., 210. 
 
 v. New York, 21, 31, 32, 120, 151, 
 175, 255, 304a. 
 Langford v. Com'rsj 244. 
 
 v. Owsley, 412. 
 
 v. Poppe, 333. 
 Langley v. Hammond, 353. 
 Langly v. Norris, 368. 
 Langstaff v. McRae, 160. 
 La Nint'a, The. 5. 
 Lanoue v. McKinnon, 305. 
 Lansdale v. Daniels, 236, 240. 
 Lansing v. Smith, 33, 36, 122, 123, 125, 
 128, 143, 151, 175. 
 
 v. Wiswall, 122, 125. 
 Lapham v. Curtis, 298. 
 Lapish v. Bangor Bank, 31, 44, 169, 
 
 195, 199. 
 La Plaisance Bay Harbor Co. v. Mon- 
 roe, 36, 68, 75. 82a, 133, 143. 
 Laramie Co. v. Albany Co., 13. 
 Laredo v. Martin, 193. 
 Large v. Orvis, 579. 583, 597. 
 Larimer County Ditch Co. v. Zimmer- 
 man, 296. 
 Larimer County Res. Co. v. People, 
 
 229, 234. 
 Larimer & W. R. Co. v. Cache La 
 Poudre Ir. Co., 234. 
 
 v. Water Supply Co., 231. 
 Larsen v. Peterson, 314, 359. 
 Larsh v. Test, 213, 383. 
 Larson v. Furlong, 97. 128, 179, 365. 
 Lasbury v. McCague, 363. 
 Lassater v. Garrett, 212. 
 Last Chance M. Co. v. Bunker Hill 
 
 Co.. 228. 
 Last Chance W. D. Co. v. Heilbron, 
 
 238. 
 Lathrop v. Grosvenor, 250. 
 
 v. Haley, 208. 
 Lattimore v. Davis, 266. 
 Laughlin v. Lamasco City, 179. 
 Laumier v. Francis, 266, 276. 
 Laura Simpson, The, 5. 
 
 Lavalle v. Strobel, 69. 
 
 Laverty v. Moore, 164, 576. 
 
 Lavery v. Arnold, 235, 323. 
 
 Law v. McDonald, 339, 341, 423. 
 
 Lawe v. Kaukauna, 471. 
 
 Lawler v. Boom Co., 103, 108, 211c, 
 
 241. 
 Lawrence v. Fairhaven, 122, 260, 
 333. 
 
 v. Great Northern Ry. Co., 256, 
 286. 
 
 v. Hempstead. 36. 
 
 V. Springer. 300, 323. 
 
 v. Whitney, 302. 
 Lawson v. Langley, 500. 
 
 v. Menasha Wooden- ware Co.. 
 511. 
 
 v. Mowry, 196. 213. 
 
 v. Price, 206, 220, 395. 
 Lawton v. Reed, 120. 
 
 v. Rivers, 104. 
 
 v. Steele, 185, 189, 244 
 Lay v. King, 100, 189. 
 Laybourn v. Gridley, 352. 
 Lazaretto Road, In re, 148. 
 Lazzell v. Garlow, 509. 
 Lea Conservancy Board v. Gotten- 
 ham Local Board, 223. 
 
 v. Hartford, 223. 
 Lean v. Burbank, 193. 
 Learned v. Castle, 211c, 213, 509. 
 
 v. Hunt, 506. 
 
 v. Tangeman, 217. 
 Learoyd v. Godfrey, 113. 
 Leary v. Woodruff, 113. 
 Leathers v. Aiken, 35. 
 Leavenworth v. Casey, 270. 
 
 v. Laing, 121. 
 
 v. Prospect Rock W. Co., 281. 
 Leavenworth R. Co. v. United States, 
 
 30. 36. 
 Leavitt v. Towle, 318. 
 Lebanon v. Olcott, 143, 582, 605. 
 
 v. Twiford, 253. 261. 
 Le Barron v. East Boston Ferry Co., 
 
 193. 
 Le Beau v. Gavin. 73, 157. 
 Lebeaume v. Poctlington, 157. 
 Leblanc v. Pittman, 161. 
 Lebus i'. Boston, 362. 
 Leconfield v. Lonsdale, 54, 187. 
 Leda, The, 4, 9, 11. 
 Ledu v. Jim Yet Wa, 238. 
 Ledyard v. Ten Eyck, 82, 83, 99, 155, 
 
 198. 
 Lee n Brown, 23. 
 
 v. McLeod, 323. 
 
 v. Minneapolis, 272. 
 
 v. Pembroke Iron Co., 132. 243, 
 250, 581, 583. 
 
 v. Springrield W. Co., 243, 495. 
 
 v. Stevenson, 363. 
 Lee Conservancy Board v. Button, 
 101. 
 
CASES CITED. 
 
 lxiii 
 
 "Leech v. Schweder, 223. 
 Leeds v. Richmond, 262. 
 
 v. Shakerley. 475. 
 Leeds Canal v. Huster, 36. 
 Le Fevre v. Le Fevre, 322, 323. 
 'Leffingwell v. Warren, 37. 
 Le Franc v. Richmond, 194. 
 Lefrois v. Monroe County, 262. 
 Lefurgy v, ,N. T. R. Co., 214. 
 Legg v. Horn, 338, 367, 508, 510, 535. 
 Legge v. Boyd, 6, 192. 
 Leggett v. Kerton, 305. 
 Lehi Irr. Co. v. Moyle, 229, 233, 349, 
 
 399. 
 Lehigh Bridge Co. v. Lehigh Coal 
 
 Co., 90, 98, 143, 298. 
 Lehigh Coal Co. v. Scranton Gas Co., 
 
 213. 
 Lehigh Coal & Nav. Co. v. Brown, 
 143, 147. 
 v. Lehigh Nav. Co., 211c. 
 Lehigh Valley R Co. v. McFarlan, 
 257, 329, 330, 331, 532, 549, 
 563, 564, 567, 568, 581. 
 v. Society, 537, 540. 
 , v. Trone, 65, 150, 173, 211. 
 Lehigh Water Co.'s Appeal, 146. 
 Lehn v. San Francisco, 260. 
 Leidlein v. Meyer, 279. 
 Leigh v. Burleigh, 5, 66. 
 v. Holt, 179. 
 v. Independence Ditch Co., 229, 
 
 230, 233. 
 v. Jack, 197. 
 Leighy v. Ashland Lumbering Co., 
 
 112. 
 Leisse v. St. Louis R. Co., 244 
 Leitzsey v. Columbia W. P. Co., 243. 
 Leka v. Baker, 323. 
 Leland v. Woodbury, 579, 581. 
 Leloup v. Mobile, 35. 
 Lembeck v. Nye, 85. 509. 
 Lemon v. Newton, 262. 
 Lennig v. Ocean City Ass'n, 128. 
 Lennon, In re, 528. 
 Lenox v. Winnissimmet Co., 96. 
 Lentz v. Carnegie, 345. 
 Lenzen v. New Braunfels, 245a. 
 Leo, The, 96. 
 Leon v. Garcelan, 33, 67. 
 Leona, The, 144. 
 Leonard, The, 67. 
 
 Leonard v. Baton Rouge, 99, 157, 158. 
 v. Decker, 113. 
 
 v. Leonard, 306, 335, 338, 362. 
 v. Rutland, 251. 
 v. Schenck, 584, 594, 600. 
 v. Shatzer, 280. 
 v. Spencer, 349. 
 v. Storer, 113, 293. 
 v. Wading River Reservoir Co., 
 
 580, 584, 590. 
 v. White, 305. 
 .«. Young, 461. 
 
 Leopold v. Chesapeake Canal Co., 101. 
 Leovy v. United States, 110, 178. 
 Lepretre v. General Council, 247. 
 Le Roy v. Bradley, 305. 
 
 v. Duhkerly, 39. 
 Leslie v. St. Louis, 104. 
 Lessard v. Stram, 264, 275. 
 Le Strange v. Rowe, 22, 23, 24, 28. 
 Letton v. Gooden, 193. 
 Levaroni v. Miller, 220, 233. 
 Levee Com'rs v. Allen, 247. 
 v. Harkleroads, 247. 
 v. Johnson, 247. 
 v. Lorio, 247. 
 Levee Inspectors v. Crittenden, 247. 
 Leveridge v. Hoskins, 369, 428, 430. 
 Levett v. Wilson, 19, 23. 
 Levy v. Ortega, 233. 
 Lewen v. Smith, 74. 
 Lewenthal v. Mayor. 261. 
 
 v. New York, 261. 
 Lewin v. Simpson, 210. 
 Lewis v. Baird, 133. 
 
 v. Coffee County, 108, 109. 
 v. Fox, 478. 
 v. Gainesville, 193. 
 v. Hartford D. Co., 190. 
 v. Johnson, 150, 174. 
 v. Keeling, 60, 99, 182. 
 v. Lewis, 194. 
 v. McClure, 240. 
 v. Portland, 177. 
 v. Price, 329. 
 
 v. Springfield W. Co., 218, 495. 
 v. State, 189, 253. 
 v. Stein, 121, 219, 223. 
 Lewis County v. Gordon, 241. 
 Lewiston Steam Mill Co. v. Richard- 
 son Lake Dam Co., 144. 
 Lexington Print Works Co. v. Can- 
 ton, 511. 
 Libby v. Johnson, 102. 
 License Cases, The, 35, 129. 
 Lick v. Madden. 228. 
 Liddon v. Hodnett, 335. 
 Liffey, The, 98. 
 Ligare v. Chicago, 132. 
 
 v. Chicago, etc. R. Co., Ill, 114. 
 Liggins v. Inge, 227, 322, 351, 496. 
 Lillis v. Emigrant D. Co., 228, 505, 
 
 534 
 Lillywhite v. Trimmer, 223, 509, 512, 
 
 546. 
 Limerick Co.'s Appeal, 277. 
 Lincks v. Amend, 242. 
 Lincoln v. Chadbourne, 121, 128, 227, 
 377, 583. 
 v. Com., 241, 243. 
 v. Davis, 75, 82a, 179, 182, 203. 
 v. Rogers, 233. 
 v. Taunton Copper Manuf. Co., 
 
 211, 219. 
 v. Wilder, 56, 194, 200. 
 Lincoln St. Ry. Co. v. Adams, 271. 
 
lxiv 
 
 CASES CITED. 
 
 Lincoln, etc. R Co. v. Sutherland, 
 
 268, 273. 
 Lind v. San Luis Obispo, 123. 
 Lindeman v. Lindsey, 302, 365, 447. 
 Lindrup, The, 13. 
 Lindsay v. Lindley, 193. 
 
 v. Sherman, 261. 
 Lindsay & Phelps Co. v. Mullen, 90, 
 
 102. 
 Lindsay Ir. Co. v. Mehrtens, 241. 
 Lindsey v. Leighton, 113. 
 Linen v. Maxwell, 37. 334. 
 Lingwood v. Stowmarkefc Co., 219, 
 
 544, 558. 
 Linn-Regis v. Taylor, 24. 
 Linthioum v. Coan, 155. 
 
 v. Ray, 120, 301. 312. 
 Liaton v. Wilson, 383. 
 Lion, The, 96. 
 Lion v. Baltimore City Pass. Ry. Co., 
 
 273. 
 Lippinoott v. Lasker, 290. 
 Liskeard Union v. Liskeard Water 
 
 Works Co., 241. 
 Lisley v. Lobley, 244. 
 Lisonbee v. Monroe Ir. Co., 296, 298. 
 Lister v. Newark Plank Road Co., 88, 
 
 132, 135. 
 Litchfield v. Ferguson, 22, 199. 
 
 v. Int'l Paper Co., 426. 
 
 v. Scituate, 169, 195. 
 
 v. Whitenack, 261. 
 Litchfield Coal Co. v. Taylor, 617. 
 Little v. Dublin Ry. Co., 250. 
 
 v. Dundas Road Co., 147. 
 
 v. Ince, 128, 365. 
 
 v. Pherson.' 76. 
 
 v. Stanback, 204, 210, 603, 615. 
 
 v. Wingfield, 22. 
 Littledale v. Lonsdale, 289. 
 
 v. Smith, 1. 
 Littlefield v. Littlefield, 28. 
 
 v. Maxwell, 24, 105. 
 Little Miami Elevator Co. v. Cincin- 
 nati, 241. 
 Little Miami R Co. v. Dayton, 255. 
 Littlepage v. Fowler, 146, 197. 
 Little Rock v. Willis, 262. 
 Little Rock Ry. Co. v. Brooks, 42, 67, 
 125, 137. 
 
 v. Chapman, 210, 266, 273. 
 
 v. McGehee. 249, 251. 
 Little Schuylkill Nav. Co. v. French, 
 222 
 
 v. Richards, 222, 375, 398. 
 Littrell v. Wilcox, 280. 
 Livermore v. Jamaica, 244. 
 Livett v. Wilson, 105, 330, 334. 
 Livezey v. Gorgas, 368. 
 
 v. Philadelphia, 90, 98, 102. 
 
 v. Schmidt, 278. 
 Livingston v. Adams, 298. 
 
 v. Heerman, 155. 
 
 v. Jefferson, 426, 436. 
 
 Livingston v. McDonald, 263, 266, 268, 
 271, 276. 
 v. New York, 244 
 v. Ogden, 175. 
 v. Van Ingen, 35. 
 Livingston County v. Graves, 328. 
 Livisay v. Delp, 103. 
 Lizzie E., The, 120,138. 
 Llandudno Urban Council v. Woods, 
 
 26. 
 Lloyd v. Guibert, 1. 
 
 v. Jones, 24, 184, 211a. 
 v. New York, 261. 
 v. Thomson, 218a. 
 Lobdell v. Hall. 234. 
 
 v. Simpson, 229, 231, 543. 
 Lock v. Cleveland, 199. 
 Locke v. Motley, 99, 100, 169, 189. 
 Lockhart v. Geir, 489. 
 Locks and Canals v. Lowell, 123, 255, 
 261, 375. 
 v. Nashua & Lowell R. Co., 37, 
 256, 273, 348, 588. 
 Lockwood v. New York R. Co., 157, 
 1.70. 
 v. Wood, 24. 
 Lockwood Co. v. Lawrence, 226< < 
 Locust Mountain Coal Co. v. Gorrell, 
 
 295. 
 Lodge v. Lee, 166. 
 Logan v. Driscoll, 233. 
 Logansport v. Shirk, 241, 251.. 
 v. Uhl, 530. 
 v. Wright, 270. 
 Lohmiller v. Indian Ford W. P. Co., 
 
 601. 
 Loker v. Simpson, 512. 
 Lomax v. Stott, 295. 
 Lombard v. Kinzie, 156. 
 Lond v. Murray, 506. 
 London, The City of, 96. 
 London v. Hunt, 141. 
 
 v. Richmond, 302, 445. 
 London & Birmingham Ry. Co. v. 
 Grand Junction Canal Co., 
 547, 560. 
 London & N. W. Ry. v. Evans, 289, 
 547. 
 v. Fobbing Levels Com'rs, 161. 
 v. Runcorn Rural Council, 31. 
 London & S. W. Ry. Co. v. Gomm, 447. 
 London Wharfs, Case of, 4. 
 Londonderry Bridge Com'rs v. Mc- 
 
 •Keever, 142, 193. 
 Lonergan v. Mississippi River Bridge. 
 
 Co., 146, 249. 
 Long r. Beard, 193. 
 
 v. Boone County, 41. 
 v. Long, 504. 
 v. Merrill, 193. 
 v. Swindell, 222. 
 v. Weller, 325. 
 Long Beach L. & W. Co. v. Richard- 
 son, 27, 174. 
 
CASES CITED. 
 
 lxv 
 
 Long Island W. S. Co. v. Brooklyn, 
 
 241. 
 Longstreet v. Harkrader, 160, 214. • 
 Long Wharf v. Palmer, 120. 
 Longwood Valley R. Co. v. Baker, 
 
 537, 552. 
 Lonsdale Co. v. Moies, 299. 
 
 v. Revere, 222. 
 Lopez v. Andrews, 4, 19, 23. 
 Lord v. Carbon Iron Manuf. Co., 289, 
 295. 
 v. Commissioners of Sidney, 27, 
 
 124, 148, 196. 
 v. MiSadville W. Co., 205. 
 v. Oconto, 118. 144. 
 v. Steamship Co., 1, 34, 35, 129. 
 v. Turner, 87. 
 Lord Advocate v. Blantyre, 4, 18, 23. 
 v. Clyde Nav. Trustees, 4. 
 v. Hamilton, 4, 21, 52. 
 v. Lovat, 4. 
 v. Sinclair, 21. 
 v. Wemyss, 10. 
 v. Young, 4, 22. 
 Lord Warden v. The King, 6. 
 Lorenz v. Jacobs, 241, 316. 
 
 v. Jones, 231. 
 Loring v. Norton, 194. 
 Lorman v. Benson, 54, 68, 75, 99, 108, 
 
 133, 150, 191, 203. 
 Lorson v. Met. St. Ry. Co., 289. 
 Lorton y. New York, 175. 
 Los Angeles v. Baldwin, 240. 
 
 v. Los Angeles City W. Co., 46, 
 
 245a. 
 v. Pomeroy, 252. 
 Los Angeles C. Ass'n v. Los Angeles, 
 
 272, 507. 
 Losee v. Buchanan, 296, 588. 
 Losh v. Penn. Canal Co., 322. 
 Lostutter v. Aurora, 255. 
 Lotta wanna, The, 33, 35, 67. 
 Lotz v. Scott, 292. 
 Loud Gold Mining Co. v. Blake, 213, 
 
 349. 
 Louden Ir. Canal Co. v. Handy Ditch 
 i Co., 228. 
 
 Lough v. Machlin, 200. 
 Loughbridge v. Harris, 253, 623. 
 Loughran v. Des Moines, 211c. 
 Louisiana. The, 89, 96. 
 Louisiana Ice Manuf. Co. v. New Or- 
 leans, 247. 
 Louisiana Land & P. Co. v. Gasquet, 
 
 190. 
 Louisville v. O'Malley, 211a. 
 v. Seibert, 267. 
 
 v. United States Bank, 62, 105, 
 147. 
 Louisville Bridge Co. v. Louisville, 
 
 62, 68. 
 Louisville, etc. R. Co. v. Daugherty, 
 349. 
 v. Hays, 210, 266, 273, 276, 346. 
 
 Louisville, etc. R. Co. v. Hodge, 256. 
 
 v. Koelle, 301. 
 
 v. McAfee, 256, 273. 
 
 v. Mossman, 279. 
 
 v. Ryan, 251. 
 
 v. Simpson, 288. 
 
 v. Sparks, 210. 
 Louisville Water Co. v. Hamilton, 
 
 144. 
 Love v. Montgomery, 96. 
 
 v. Morrill, 318a. 
 
 v. Schenok, 13. 
 Lovejoy v. Willamette El. Co., 194 
 Lovell v. Smith, 335. 
 Loverin v. Walker, 320. 
 Lovett v. Salem R. Co., 128. 
 Lovington v. County of St. Clair, 76, 
 
 155 
 Low v. Grand Trunk Ry. Co., 113. 
 
 v. Knowlton, 122, 126, 169. 
 
 v. Mumford, 396. 
 
 v. Pew, 1. 
 
 v. Rizor, 229. 
 
 v. Schaffer, 229. 
 
 v. Tibbetts, 197. 
 Lowber v. Wells, 97. 
 Lowden v. Frey, 540. 
 Lowe v. Govett, 4, 21, 25, 27, 189, 
 
 v. Lambeth W. W. Co., 205. 
 
 v. Prospect Hill Cem'y Ass'n, 288, 
 544. 
 Lowell v. Boston, 215, 227, 241, 243, 
 243. 
 
 v. County Com'rs, 203. 
 
 v. Locks & Canals, 260. 
 
 v. Robinson, 195, 196, 203. 
 
 v. Shaw, 597, 599. 
 
 v. Spring, 599. 
 Lower Chatham, Be, 241. 
 Lower King's River Water Co. v. 
 King's River & Fresno Canal 
 Co., 429. 
 Lower Latham Ditch Co. v. Louder* 
 
 Ir. Canal Co., 349. 
 Loweree v. Newark, 38, 244. 
 Lowestoft, Be, 21. 
 Lowndes v. Bettle, 519, 
 
 v. Dickerson, 57, 189. 
 
 v. Huntington, 31, 36. 
 
 v. Wicks, 163, 164, 170. 
 Lownsdale v. Gray's Harbor Boonji 
 
 Co., 85. 99. 
 Lowther v. Curwen, 115. 
 L. T. Co. v. S. & W. R. Co., 122. 
 Lucas v. Bishop. 219. 
 Luce v. Carley, 57, 166, 197. 
 Ludeling v. Stubbs, 278. 
 Ludlow v. Gierhon, 9. 
 Lufkin v. Haskell, 169, 195, 199. 
 Luhrs v. Sturtevant, 127. 
 Luke v. Brooklyn, 175. 
 Lull v. Fox Impr. Co., 222, 599. 
 Lumbard v. Stearns, 144, 241, 245.. 
 Luming v. State, 580. 
 
lxri 
 
 CASES CITED. 
 
 Luminary v. Braddy. 579. 
 
 Lund v. New Bedford, 214, 245, 331, 
 
 410. 
 Luning v. State, 212, 581. 
 Lunt v. Holland, 46, 166, 194, 196. 
 
 v. Hunter, 187. 
 Luther v. Winnisimmet Co., 41, 263, 
 
 * 267. 
 Luttrell's Case, 320. 344, 346, 584. 
 Lux v. Haggin. 76, 217, 228, 240, 263, 
 
 349, 506. 
 Luxford v. Large, 96. 
 Luxton v. North River Bridge Co., 
 
 34, 132, 242. 
 L. W. Eaton, The, 75. 
 Lybe's Appeal, 280, 281. 
 Lycoming Gas Co. v. Moyer, 249, 255. 
 Lyle v. Richards. 368. 
 Lyman v. Snarr, 154. 
 Lyme Regis v. Henley, 113. 126. 
 Lynch v. Allen, 159, 195, 260, 269. 
 
 v. Forbes, 241. 
 
 v. Mayor, 270. 
 Lynn v. Mount Savage Iron Co., 302. 
 
 v. Nahant, 30, 37. 
 
 V. Thomson, 339, 493. 
 
 v. Turner, 43, 116, 161. 
 Lyon v. Fishmongers' Co., 148, 149, 
 151, 204, 404, 547. 
 
 v. Green Bay Ry. Co., 258. 
 
 v. McLaughlin, 513, 520, 540. 
 
 v. Parker, 302. 
 
 v. Ross, 506. 
 Lyons v. Hinckley, 247. 
 
 v. United States, 243. 
 Lytle Creek W. Co. v. Perdew, 231, 
 
 240. 
 Lytton v. Stewart, 512. 
 
 M. 
 
 Mabie v. Matteson, 218. 
 Mabire v. Canal Bank. 243. 
 McAfee v. Kennedy, 254, 609. 
 Macalister v. Campbell, 4. 
 McAllilly v. Horton, 611, 614 
 McAllister v. Devane, 313. 
 
 v. HendersQn, 225. 
 McArthur v. Green Bay Canal Co., 
 298. 
 
 v. Kelly, 241, 513, 516. 
 
 v. Morgan, 606. 
 
 v. United States, 243. 
 McAuley v. Roberts, 521. 
 
 v. Western Vermont R. Co., 244. 
 JJIcBaine v. Johnson, 155. 
 McBride v. Akron, 261. 
 McBroom v. Thompson, 225, 323. 
 McBryan v. Canadian Pac. Ry. Co., 
 , 275. 
 
 .McBurney v. Young, 82. 
 McCabe v. Hood, 347. 
 McCaldin- v. Parke, 114. 
 
 McCallum v. Germantown W. Co., 
 
 345, 507, 524, 534. 
 McCalmont v. Whitaker, 204, 209, 210, 
 
 227. 
 McCandish v. Com., 38, 189. 
 McCann v. Oregon Ry. Co., 524. 
 v. Otoe County Com'rs, 250. 
 McCannon v. Sinclair, 14 
 
 v. Stagg, 155. 
 McCarthy v. Far Rockaway, 261. 
 v. Nicrosi, 458. 
 v. Syracuse, 261. 
 McCartney v. Chicago, etc. R. Co., 118. 
 McCarty v. Boise City Canal Co., 232. 
 
 v. Kitchenman. 355. 
 Macauley v. New York, 113, 116. 
 McCauley v. Logan, 96. 
 v. McKeig, 232, 238. 
 v. Weller, 244. 
 McClain v. Tillson, 4, 5. 
 McClain's Appeal, 506. 
 McClary v. Hartwell, 253. 
 McClellan v. Fisher, 599. 
 v. Hurdle, 229. 
 v. Taylor, 324. 
 McCleneghan v. Omaha R. Co., 211a, 
 
 258. 
 McClinton v. Pittsburgh R. Co., 244 
 McClure v. Red Wing, 264, 
 McCombs v. Stewart, 209, 241. 
 McConnaughy v. Pennoyer, 540. 
 McConnell v. Am. B. P. Co., 348. 
 v. Denver, 231. 
 v. Kibbe, 412. 
 McCord v. High, 204, 245, 363. 
 v. Sylvester, 250. 
 v. The Tiber, 96. 
 McCormick v. Hora^n, 216, 271, 274 
 v. Huse, 69. 
 v. Ives, 67. 
 v. Kansas City R Co., 266, 273, 
 
 589. 
 v. Winters, 353. 
 McCowan v. Whitesides, 125. 
 McCoy v. Com.. 38. 
 
 v. Danley, 200, 210, 211c, 298. 
 McCready v. Virginia, 20, 32, 38, 189. 
 McCulley v. Cunningham, 614 
 McCulloch v. Aten, 70, 200. 
 McCullough v. Denver, 272. 
 v. Wain wright, 41, 45. 
 v. Wall, 46, 55, 59, 76, 166, 197. 
 McCune v. Norwich City Gas Co., 290. 
 McCuthen v. McCuthen, 195. 
 McDaniel v. Cummings, 6, 229, 266, 
 276. 
 v. Walker, 310, 316. 
 McDiarmid v. McMillan, 194 
 McDonald v. Askew, 204, 234, 543. 
 v. Bear River Co., 329, 333, 334, 
 
 336, 337, 344, 543. 
 v. Lake Simcoe Ice Co., 191. 
 v. Lannen, 229. 
 v. Mallory, 1. 
 
GASES CITED. 
 
 lxvii 
 
 T\lcDonald v. Whitehurst, 155. 
 Macdonald v. Morrill, 159. 
 Macdonnell v. Int'l Ry. Co., 117. 
 -McDonough, In re. 202, 242. 
 McDonough v. Gilman, 392, 393. 
 
 v. Virginia City, 121. 
 MoDougall v. McDonald, 113. 
 McDougle v. Clark, 611, 612. 
 McDowell v. Langdon, 210. 
 Mace v. Philcox, 26. 
 McElear v. Elliot, 65. 
 McElroy v. Goble, 205, 214, 410. 
 
 v. McLeay, 355. 
 M'Evoy v. Gt. Northern Ry. Co., 225. 
 Macey v. Met'n Board, 547. 
 McFadden v. Haynes, etc. Co., 190. 
 McFall v. Com., 62, 71. 
 McFarlan v. Morris Canal Co., 581. 
 McFarland v. McKnight, 62. 
 
 v. Stone, 331. 
 McFarlin v. Essex Co., 56, 182, 183, 
 
 184, 187, 335, 342. 
 McGavin v. Mclntyre, 198. 
 McGee v. Fox, 210. 
 McGehee Ir. Ditch Co. v. Hudson, 
 
 241. 
 McGenness v. Adriatic Mills, 219. 
 McGeorge v. Hoffman, 335. 
 McGillivray v. Evans, 213, 316. 
 McGinness v. Stanfield, 228. 
 McGinnis v. Blackman, 126. 
 
 v. The Pontiac, 67. 
 McGlone v. Smith. 214, 403. 
 McGowan v. Mo. Pac. Ry. Co., 387. 
 McGregor v. Boyle, 128, 363. 
 
 v. Camden, 291. 
 
 v. Equitable Gas Co., 291. 
 
 v. Wait, 331. 
 McGuiness v. New York, 110. 
 McGuire v. Brown, 237, 240. 
 
 v. Wright, 291. 
 McHardy v. Ellice, 41. 
 McHugh v. Curtis, 293. 
 Mcllvaine v. Marshall, 415, 623. 
 Mclndoe v. Jutland Flat G. M. Co., 
 
 205. 
 Mclntire r. State, 244, 251. 
 
 v. Storey. 105. 
 
 v. Western Railroad, 250. 
 Mcintosh v. Gastenhofer, 112. 
 
 v. Rankin, 615. 
 M'Intyre v. M'Gavin, 345. 
 Mclntyre v. United States, 243. 
 Mclver v. Walker, 194. 
 Mack v. Bensley, 194, 209, 305, 311, 601. 
 
 v. Jackson, 211a. 
 McKay v. Carrington, 574. 
 McKee v. Delaware Canal Co., 208, 
 582. 
 
 v. Grand Rapids Ry. Co., 142. 
 
 v. St. Louis, etc. R. Co., 210. 
 McKeen v. Delaware Canal Co., 65, 
 143, 246, 249.' 
 
 v. Kurfurt, 99. 
 
 McKeesport Gas Co. v. Carnegie Steel 
 
 Co., 173. 
 McKellip v. Mcllhenny, 210, 323, 496. 
 MoKelway v. Cook, 570. 
 
 v. Seymour, 320. 
 McKenna v. Edmundstone, 146. 
 Mackenzie v. Banks, 79, 81. 
 McKenzie v. Ballard, 534. 
 
 v. Hulet, 60, 189. 
 
 v. Miss. Boom Co., 103, 211c, 243. 
 
 v. Woodin, 177. 
 McKernan v. Indianapolis. 248, 260. 
 McKinley v. Union Co., 263. 
 McKinney v. Monongahela Nav. Co., 
 244, 582. 
 
 v. Smith, 231, 235, 236, 237, 239. 
 Mackintosh v. United States, 233. 
 McKnight v. Ratcliff, 294. 
 McLaren v. Caldwell, 108, 507, 547. 
 McLaughlin v. Charlotte R. Co., 122, 
 123, 126. 
 
 v. Dorsey, 381. 
 
 v. Hope Mills Manuf. Co., 110. 
 
 v. Sandusky, 79. 
 
 v. Stevens, 148. 
 
 v. Whiteside, 570. 
 McLean v. Crosson, 297. 
 
 v. Mathews. 97, 128. 
 McLear v. Hapgood, 238. 
 McLellan v. Jenness, 383. 
 McLeod v. Burroughs, 146. 
 
 v. Dial, 323. 
 
 v. Lee. 209, 386. 
 
 v. Savannah R. Co., 145. 
 McLure v. Koen, 233. 
 McMahon v. Council Bluffs, 123, 248. 
 McMakin v. Magee, 354. 
 McManus v. Carmichael, 4, 18, 26, 36, 
 53. 68, 71. 72, 151, 198. 
 
 v, Cooke, 323. 
 McMaster v. Com., 244 
 McMillan v. Southwest Boom Co., 
 
 296. 
 McMillian v. Lauer, 117, 244, 301. 
 McMullen v. Hodge, 30. 
 McMullin v. Wooley, 299, 451, 458. 
 McMurray v. Baltimore, 106. 
 M'Nab v. Robertson, 281. 
 McNairy v. Paine, 120. 
 McNally v. Smith, 594. 
 Macnamana v. Higgins, 24. 
 McNaughton v. Frazer, 399. 
 McNeal v. Assicunk Creek Meadow 
 
 Co., 545. 
 McNeil, Ex parte, 1, 34, 35, 134. 
 McOsker v. Burrell. 248a, 250. 
 Macomber v. Godfrey, 264, 309. 
 Macon v. Owen, 610. 
 Macon Railroad v. Pate, 140. 
 McPhaul v. Gilchrist, 197. 
 McPheeters v. Merimac Bridge Co., 
 
 142. 
 Macpherson v. Frederickton Boom 
 Co., 102. 
 
lxviii 
 
 CASES CITED. 
 
 McPherson v. San Joaquin County, 
 280. 
 
 v. St. Louis Ry. Co., 262. 
 McPheters v. Moose River L. D. Co., 95. 
 McQuillen v. Hatton, 241. 
 MoEee v. Wilmington E. Co., 145. 
 McReynolds v. Smallhouse, 35, 143. 
 McEoberts v. Washburne, 142, 146, 
 
 193. 
 McShane v. Carter, 305. 
 McSwiney v. Haynes, 366, 513, 548, 
 
 553. 
 McTairsh v. Carroll, 362. 
 Maddock v. Wallasey Local Board, 55. 
 Maddox v. Cunningham, 105. 
 
 v. Goddard, 305, 306, 384. 
 Madison v. Abbott, 35. 
 
 v. Daley, 117. 
 
 v. Hildreth, 71. 
 
 v. Mayers, 118,149, 168. 
 
 v. Eoss. 262. 
 Madore's Appeal, 318. 
 Madras Ey. Co. v. The Zemindar, 296. 
 Maenner v. Carroll, 113. 
 Maeris v. Bicknell, 229, 235, 236, 237. 
 Maffet v. Quine, 241, 323. 
 Magee v. Brooklyn, 261. 
 
 v. Hallett, 74. 
 
 v. St. John, 164, 323. 
 Magee Furnace Co. v. Com., 251, 252, 
 
 579. 
 Mager v. Grima, 35. 
 Maggie P., The, 98. 
 Magnolia, The, v. Marshall, 55, 63, 99, 
 
 120, 196. 
 Magoon v. Harris, 286. 
 Magor v. Chadwick, 225, 340. 
 Magoric v. Little, 193. 
 Magoun v. Lapham, 194. 
 Magraw v. Hailman, 157. 
 Maguire v. Baker, 344, 348, 351. 
 
 v. Card, 33. 67. 
 
 v. Cartersville, 278. 
 
 v. Sturtevant, 194. 
 Mahan v. Brown, 281, 290. 
 Mahler v. Norwich Transp. Co., 5, 13, 
 
 16, 32, 64. 
 Mahon v. McCully, 155. 
 Mahoney v. Libbey, 297. 
 
 v. Neiswanger, 229. 
 Mailhot v. Pugh, 160. 
 Main and Hamburgh Street Canal, 
 
 Matter of, 255. 
 Maine W. Co. v. Waterville, 245a. 
 Maine Wharf v. Custom House 
 
 Wharf, 154. 
 Mairs v. Gallahue, 212, 609. 
 
 v. Manhattan Real Estate Ass'n, 
 272. 
 Maish v. Arizona, 228. 
 Major v. Taylor, 580, 610. 
 Makepeace v. Bancroft, 318. 
 Malcomson v. O'Dea, 21, 23, 50, 183, 
 189. 
 
 Maldon v. Woolvet, 24. 
 
 Malloy v. Staten Island E. T. E. Co., 
 
 118. 
 Malone v. Philadelphia, 92. 
 
 v. Toledo, 241, 255. 
 Malony v. Milwaukee, 33. 
 Maloon v. White, 24. 
 Malster v. Humphreys, 96. 
 Man v. Drexel, 504. 
 Manchester v. Hudson, 138. 
 
 v. Massachusetts, 2, 4, 5, 13, 16, 
 
 33, 38. 
 v. Point Street Iron Works, 165. 
 v. Vale, 423. 
 Manchester, etc. Ey. Co. v. Doncaster 
 Union, 113. 
 v. Kingston-upon-Hull Guard- 
 ians, 37. 
 v. Worksop Board, 219. 513, 516, 
 544, 545, 546, 552, 559. 
 Manchester Ship Canal Co. v. Roch- 
 dale Canal Co., 225, 243. 
 Mandell v. San Diego Land Co., 233. 
 Manderbach v. Bethany Orphans' 
 
 Home, 302. 
 Manderson, In re, 244. 
 Mandlebaum v. Eussell, 35. 
 Maney v. State, 189. 
 Mangold v. St. Louis E Co., 210. 
 Mangum v. Farrington, 120, 147. 
 Manhattan Co., Ex parte, 255. 
 Manhattan Gaslight Co. v. Barker, 
 
 121, 123, 127, 151, 175. 
 Manhattan Manuf. Co. t'.VanKeuren, 
 
 128. 
 Manhattan Trans. Co. v. Mayor, 114. 
 Manier v. Myers, 329, 344. 
 Manion v. Creigh, 24 
 Manistee Eiver Impr. Co. v. Lam- 
 port, 147. 
 v. Sands. 133, 143. 
 Mankato v. Meagher, 105. 
 
 v. Willard, 76, 105. 
 Manley t\ People, 13. 
 4 Ealeigh, 13. 
 
 v. St. Helen's Canal Co., 115. 
 Mann v. Brodie. 351. 
 
 v. Retsoff Mining Co., 219. 
 v. Tacoma Land Co., 40, 17?. 
 v. United States, 242. 
 v. Wilkinson. 555, 5G0. 
 v. Willey, 221. 
 Mannail v. Fisher, 183. 
 Manning v. Fife, 235. 
 v. Lowell, 261, 271. 
 v. Smith, 313, 314. 
 v. Wasdale, 299. 
 Mannville Co. v. Worcester, 213, 439; 
 Manser v. Northern Counties Ry. Co., 
 
 256, 535. 
 Mansfield v. Shepard, 354. 
 Mansford v. Ross, 263. 
 Manson v. Maffra, 259. 
 Mansur v. Blake, 196, 203, 335. 
 
CASES CITED. 
 
 lxix 
 
 Marble v. Adams, 213, 215. 
 Marblehead v. Essex Com'rs, 139. 
 March v. Portsmouth R Co., 256. 
 Maroia Tribou, The, 96. 
 Marcly v. Shults, 337, 599. 
 Maroy v. Darling, 21. 
 
 v. Fries, 210. 
 Margaret J. Sandford, The, 96. 
 Maria, The, 4. 
 Mariner v. Schulte, 75, 85, 111, 148, 
 
 203. 
 Maris v. Parry. 368. 
 Mark v. Buffalo, 210. 
 
 v. Hudson River Bridge Co., 89. 
 v. State, 249. 
 v. West Troy, 105, 157. 
 Markt v. Dairs. 210. 
 Marlborough Manuf. Co. v. Smith, 
 
 204. 
 Marpesia, The. 96. 
 Marriott v. Stanley, 125. 
 Marsh, Ex parte, 61. 
 Marsh v. Brooks, 365. 
 v. Burt, 197. 
 v. Colby, 85. 
 v. Delaware R. Co., 213. 
 v. Haverhill Aqueduct Co., 318a. 
 v. McNider, 191. 
 v. Pier, 504. 
 
 v. Port Hope Harbour Co., 147. 
 v. Trullinger, 211, 368, 419, 555. 
 Marshall v. Cohen, 296, 391. 
 v. Grimes, 35, 133. 
 v. Guion, 175. 
 v. Hershey. 304. 
 v. Mellon, 291. 
 v. Niles, 173. 
 v. Peters, 191. 
 v. Taylor, 196, 348. 
 v. Ulleswater Steam Nav. Co., 26, 
 
 52, 80, 81, 86, 154, 175, 183. 
 v. Vicksburg, 117. 
 v. Vultee, 175. 
 v. Welwood, 296. 
 Marston v. Gale, 323. 
 Martha Anne, The, 4. 
 Martha Davis, The, 96. 
 Martin, Ex parte, 243, 545. 
 Martin v. Beverley, 61, 609. 
 v. Bigelow, 204, 227, 374 
 v. Bliss, 54. 126. 
 v. Boon, 194. 
 v. Carlin, 194. 
 v. Cooper, 155. 
 v. Evansville, 71, 138. 
 v. Gainesville R Co., 271. 
 v. Gleason. 223, 339. 
 v. Jett, 204, 266. 
 v. Leavers, 99. 
 v. Martin, 316. 
 v. Mason, 102. ■ 
 v. Nance, 60, 197, 198. 
 v. O'Brien, 27, 32, 104, 138, 140, 
 145. 
 
 Martin v. Riddle, 204, 266, 271, 275. 
 v. Rushton, 610. 
 v. Simpson, 292. 
 v. Styles, 534. 
 v. Tyler, 241. 
 
 v. Waddell, 4, 18, 20, 30, 31, 32, 
 38, 58, 64, 67, 73, 166, 189. 
 Martino Cliento, The, 96. 
 Martinowsky v. Hannibal, 222. 
 Martley v. Carson, 224. 
 Martvn v. Knowllys, 383. 
 Mary K. Campbell, The, 119, 120. 
 Maryland. The, 96. 
 Maryland R Co. v. Stump, 547. 
 Mary Powell, The, 96. 
 Mary Stewart, The, 33. 
 Mary Washington, The, 67. 
 Mason v. Boom Co., 35, 135. 
 v. Calumet Canal Co., 203. 
 v. Cotton, 508, 534. 
 v. Harper's Ferry Bridge Co., 145, 
 
 146, 193. 
 v. Hill, 204, 214, 219, 226, 227, 330, 
 
 374, 402, 544. 
 v. Horton, 354. 
 v. Hoyle, 208, 540. 
 v. Kennebec Railroad, 258. 
 v. Lake Erie Ry. Co., 213, 255. 
 v. Mansfield, 87. 
 v. New Haven, 241. 
 v. Police Jury. 247. 
 v. Rhinelander, 114. 
 v. Shrewsbury Ry. Co., 160, 340, 
 
 388, 389. 
 v. Turner, 440. 
 Masonic Temple Ass'n v. Banks, 212. 
 Massachusetts. The, 89. 
 Massengill v. Boyles, 197, 201. 
 Massot v. Moses, 145. 
 Massy v. Cassidy, 185. 
 Masten, The, 96. 
 Mastenbrook v. Alger, 205. 
 Master v. Prats, 35. 
 Mather v. Chapman, 25, 27, 28, 29, 155, 
 
 170. 
 Mathews v. Metcalf, 534. 
 Mathewson v. Hoffman, 340. 
 
 v. Phoenix Iron Foundry, 169. 
 Mathis v. Assessors, 156. 
 Matson v. Scobell, 141. 
 Matteson v. Wilbur, 316. 
 Matthews v. Alexandria, 118. 
 v. Ferrea, 240, 330. 
 v. Kinsell, 232. 
 v. Treat, 169, 182. 
 v. Ward, 32. 
 Matthias v. Cramer, 241. 
 Mattlage v. Board of Chosen Free- 
 holders, 134 
 Mattson, In re, 177. 
 Maud Webster, The, 33. 
 Maverick, The, 96, 193. 
 Maximilian v. Mayor, 115. 
 Maxon v. Lane, 302. 
 
lxx 
 
 CASES CITED. 
 
 Maxwell v. Bay City Bridge Co., 75, 
 127,324. 
 
 v. The City, 116. 
 Maxwell L. G. Co. v. Dawson, 22. 
 May v. Hanson. 193. 
 
 v. Parker, 206, 382, 383, 540, 550, 
 595. 
 Mayberry v. Alhambra Addition W. 
 
 Co., 233, 318a. 
 Maybury v. Louisville & J. Ferry Co., 
 
 193. 
 Mayhew v. Norton, 169, 195. 
 Maynard v. Weeks, 197. 
 Maynell v. Saltmarsh, 126. 
 Mayo v. Quimbv, 197. 
 
 v. Turner, 212, 610. 
 Mayor v. Bailey, 261. 
 
 v. Com'rs, 204, 246, 304, 415, 538. 
 
 v. CunlifC, 390. 
 
 v. Hart, 30, .195. 
 
 v. New England Transp. Co., 146. 
 
 v. Pemberton, 512. 
 
 v. Rice, 175. 
 
 v. Sheffield, 121. 
 
 v. State, 104, 140. 
 
 v. Whitney, 175. 
 Maysville, etc. R Co. v. Ingram, 273. 
 Mayville v. Wilcox, 334. 
 Maywood v. Logan, 219. 
 Mead v. Haynes, 61, 609. 
 
 v. Hein. 595. 
 Meader v. West Cowles Local Board, 
 
 41. 
 Meagher v. Hardenbrook, 231. 
 Meanatchy, The, 96. 
 Mears v. Dole, 24, 160, 216, 416. 
 Mebane v. Patrick, 331, 338. 
 Mecca, The, 5. 
 Mechling v. Kittanning Bridge Co., 
 
 121. 
 Medway Nav. Co. v. Romney, 92, 213, 
 
 404. 
 Megerle v. Ashe, 236, 240. 
 Meigs v. The Northerner, 96. 
 Meiners v. Frederick Miller Brewing 
 
 Co., 219. 
 Meir v. Kroft, 225. 
 Meisner v. Fanning, 21. 
 Meister v. Lang, 292. 
 Mellen v. Western Railroad, 250, 256, 
 
 258, 259. 
 Mellon v. Smith, 96. 
 Mellor v. Pilgrim. 268. 
 
 v. 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. 
 
 v. Overton, 54, 60, 99, 103. 
 
 v. Wright, 104. 
 Memphis, etc. Co. v. Pikey, 71. 
 Memphis Land Co. v. St. Francis 
 Levee District, 247. 
 
 Memphis Packet Co. v. Grey, 120; 
 
 310, 311. 
 Memphis R. Co.?;. Hicks, 122, 126, 135- 
 
 v. Railroad Com'rs, 144. 
 Menard v. Aspasia, 133. 
 Menasha Woodenware Co. v. Law- 
 son, 76, 194. 
 Mendenhall v. Harrisburgh W. Co.,. 
 
 510. 
 Mendota Club v. Anderson, 182, 199. 
 Meneley v. Carson, 323. 
 Menzies v. Breadalbane, 41, 160, 208. 
 Meranda v. Spurlin,'241, 426. 
 Mercer v. Selden. 331. 
 v. The Florida, 96. 
 Merchants' Ins. Co. v. Allen, 5. 
 Merchant Prince, The, 96. 
 Merchants' Wharf-Boat Ass'n v. 
 
 Wood, 98. 
 Meredith v. Frank, 355. 
 Merle, The, 96. 
 
 Merriam v. United States, 242. 
 Merrick v. Avery, 67. 
 v. Baltimore, 472. 
 Merrick W. Co. v. Brooklyn, 285. 
 Merricks v. Cadwallader, 41. 
 Merrifield v. Lombard, 206, 219, 223, 
 544. 
 v. Worcester, 204, 206. 220, 375. 
 Merrill v. Calkins. 318, 320, 539. 
 v. Kalamazoo, 260. 
 v. Southside Ir. Co., 228. 
 v. Tobin, 337. 
 Merriman v. Bowen, 108. 
 
 v. Russell, 302. 
 Merritt v. Brinckerhoff, 214, 218, 227;. 
 374. 
 v. Judd, 224 
 
 v. Knife Falls Boom Co., 147. 
 v. Parker, 204, 213, 218a. 
 Merritt & Chapman Derrick & W. 
 
 Co. v. Schermerhorn, 114. 
 Mersey Docks v. Cameron, 115. 
 • v. Gibbs, 113, 114, 115, 141. 
 v. Llaneilian Overseers, 115. 
 v. Penhallow, 113. 
 Mersey & Irwell Nav. Co. v. Douglas, 
 
 426, 481. 
 Mertz v. Dorney, 336, 343. 
 Merwin v. Wheeler, 24, 28. 
 Mesnager v. Engelhardt, 528. 
 Messinger's Appeal, 217. 
 Metcalf v. Hart, 323. 
 
 v. Nelson, 281, 285. 
 Meth. E. Church v. Old Columbia P. 
 
 G. Co., 348. 
 Met. Board v. London Ry. Co., 544, 
 545, 546. 
 v. McCarthy, 124, 149, 150, 151, 
 251. 
 Met. Building Ass'n v. Petch, 376, 479. 
 Metzger v. Post, 189. 
 Mexborough v. Bower, 295, 548, 552. 
 Meyer v. Horst, 330, 374. 
 
CASES CITED. 
 
 Ixxi 
 
 Meyer tt Phillips, 111. 121, 342. 
 
 «. Taooma L. & W. Co., 280. 
 Meyers v. Mathis, 148. 
 
 u St. Louis, 45, 73, 76, 148, 149, 
 151, 179, 204, 245, 246. 
 Michaud v. Grace Harbor Lumber 
 
 Co., 114. 
 Michel 17. Monroe County Supervisors, 
 
 220. 
 Michell v. New York R. Co., 273. 
 Michon tt Gvavier, 163. 
 Micklethwait v. Newlay Bridge Co., 
 46, 52/195, 196. 
 v. Vincent, 43, 86. ' 
 Midas, The, 96. 
 Middle Bridge Co. 17. Brooks, 147. 
 
 v. Marks, 132, 142, 147. 
 Middlebrooks v. Mayne. 323. 
 Middlebury El. Co. tt Tupper, 470. 
 Middle Creek Ditch Co. v. Henry, 233, 
 
 234. 
 
 Middlekauff 17. Smith, 328. 
 
 Middlesex Co. v. Lane, 348. 
 
 17. Lowell, 342, 346. 
 
 17. McCue, 216, 268. 
 
 Middlesex Railroad v. Wakefield, 88, 
 
 132, 135. 
 Middlesex Turnpike Co. v. Freeman, 
 
 143. 
 Middlestadt tt Waupaca Starch Co., 
 
 544. 
 Middleton 17. Flat River Booming Co., 
 108, 109, 110, 121, 206. 
 tt Franklin, 121. 
 17. Gregorie, 225, 340. 
 tt Griffiths, 339. 
 17. La Compagnie Generale Trans- 
 
 atlantique, 171. 
 17. Perry, 195. 
 
 v. Pritchard, 69, 76, 99, 196. 
 Middletown, Matter of, 241. 
 Middletown 17. Newport Hospital, 36. 
 
 17. Sage, 30, 31, 36, 37, 42, 166. 
 Midland G. Co. 17. Wilson, 146. 
 Midland Terminal & Ferry Co. 17. 
 
 Wilson, 193. 
 Milan County 17. Bateman, 255. 
 Milan Steam Mills v. Hickey, 511. 
 Miland v. Meiswinkel, 459. 
 Milarkey 17. Foster, 126. 
 Miles 17. Knott, 194. 
 17. Rose, 43, 504. 
 Milford v. Holbrook, 293. 
 MilljBoy, The, 105. 
 
 Mill-dam Foundry 17. Hovey, 300, 469. 
 Mille Lacs Impr. Co. 17. Bassett, 144. 
 Miller & Great Western Ry. Co., In 
 
 re, 150. 
 Miller's Case, 4, 310. 
 Miller 17. Auburn R. Co., 300, 323. 
 17. Bristol, 305. 
 17. Burch, 363. 
 17. Chatterton, 98. 
 v. Chicago, etc. R. Co., 252. 
 
 Miller 17. Church, 394. 
 
 tt Cornwell, 210. 
 
 17. Craig, 212, 244. 
 
 17. Douglass, 238. 
 
 17. Garlock, 329, 341. 
 
 17. Greenwich Tp., 324. 
 
 17. Hare. 122. , 
 
 1;. Hayden, 210. 
 
 17. Hepburn, 62, 76, 162, 163. 164. 
 
 1;. Highland Ditch Co., 222. 
 
 17. Keokuk Ry. Co.. 210. 
 
 17. Lapham, 299, 318, 320, 324. 
 
 17. Laubaoh, 266, 271, 274. 
 
 tt Little, 52, 159,183. 
 
 17. Mann, 166. 
 
 17. Mayor, 34. 
 
 17. Mendenhall, 138. 
 
 17. Miller, 194, 208, 217, 305, 315, 
 405. 
 
 17. Milwaukee, 117, 118. 
 
 17. Morristown, 272, 536. 
 
 17. New York, 34, 129, 130, 132. 
 
 17. Perris Ir. District, 233, 241. 
 
 17. Prairie Du Chien Ry. Co., 137, 
 
 tt Scolfield, 328. 
 
 tt Stfenandoah Pulp Co., 310. 
 
 17. Sherry, 90. 
 
 17. Stowman, 341, 583, 610. 
 
 17. Troost, 253, 583, 620. 
 
 17. Trueheart. 212, 587. 
 
 tt Windsor W. Co., 241, 251. 
 
 17. Wisenberger, 254. 
 
 17. Young, 369. 
 Millheiser 17. Long, 228. 
 Millington 17. Griffiths, 219. 
 
 17. Vaughn, 305. 
 Mill River Woollen Manuf. Co. 17. 
 
 Smith, 56, 191, 196, 203. 
 Mills tt Brooklyn, 144. 261, 262, 270. 
 
 17. Chicago & N. W. Ry. Co., 213. 
 
 tt Colchester, 184, 322. 
 
 17. Com'rs, 103, 193. 
 
 tt Evans, 16S. 
 
 17. Greenville R. Co., 258.' 
 
 v. Hall, 121, 128, 375, 532, 533. 
 
 17. Learn, 103, 193. 
 
 tt St. Clair County, 36, 142, 193. 
 
 17. United States, 242, 248a. 
 Millsaps 17. Monroe, 118. 
 Milne tt Girodeau, 155, 195. 
 Milor tt New Jersey R. Co., 130, 131. 
 Milwaukee v. The Curtis, 33. 
 Milwaukee Gas Light Co. tt The 
 
 Gamecock, 88, 133. 
 Minard v. Currier, 280. 
 Mincke v. Skinner, 198. 
 Miner v. Gilmour, 124, 148, 204, 205^ 
 
 206, 225, 402, 409. 
 Mining Co. v. Tarbet, 240. 
 Minneapolis, etc. Ry. Co. tt Milner^ 
 
 35. 
 Minneapolis Mill Co. tt St. Paul W- 
 Works, 84, 205, 249. 
 
 tt Wheeler, 113. 
 
Lxxii 
 
 CASES CITED. 
 
 Minneapolis Trust Co. v. Eastman, 
 
 156. 
 Minnequa Spring Co. v. Coon, 419. 
 Minnetonka Lake Imp., In re, 41, 45. 
 
 582. 
 Minnie (The) v. Reg., 5. 
 Minnie L. Gerow, The, 119. 
 Minor v. Harris, 621. 
 
 v. Wright, 266. 
 Minot v. Philadelphia E. Co., 133. 
 Minter v. Shirley, 30. 
 Minto v. Delaney, 76, 77. 
 Minton v. Steele, 155. 
 Minturn v. Larue, 36. 
 
 v. Lisle, 135. 
 Miss. & Bum River Boom Co. v. 
 
 Prince, 146. 
 Mississinewa M. Co. v. Andrews, 291. 
 Mississippi, etc. R. Co. v. Archibald, 
 211c. 
 
 v. Caruth, 256. 
 
 v. Mason, 351, 356. 
 
 v. Ward, 64, 93, 95, 121, 132, 442, 
 446, 547. 
 Mississippi Bridge Co. v. Ring, 252. 
 Mississippi Mills Co. v. Smith, 219. 
 Mississippi River Bridge Co. v. Lon- 
 
 ergan, 132, 133, 146, 193. 
 Mississippi Valley Trust Co. v. Hofius, 
 
 111. 
 Missouri v. Iowa, 166, 202. 
 
 v. Kentucky, 64, 159, 166. 
 Missouri, etc. Ry. Co. v. Bishop, 273. 
 
 v. Graham, 211, 353. 
 Missouri Pac. Ry. Co. v. Carter, 426. 
 
 v. Keys, 213', 225. 
 
 v. Webster, 256. 
 Missouri River Packet Co. v. Hanni- 
 bal R. Co., 98, 128, 135. 
 Mitchell v. Bain, 275. 
 
 v. Barry, 219, 405. 
 
 v.'Bridgers, 333. 
 
 v. Darley Maine Colliery Co., 295. 
 
 v. Hart, 190. 
 
 v. Mayor, 55, 214. 
 
 v. Mitchell, 176. 
 
 v. Parks, 204, 342. 
 
 v. Seipel, 354, 358. 
 
 v. Smale, 82a. 
 
 v. Small, 198. 
 
 v. Stanley, 327. 
 
 v. United States, 30. 
 
 v. Walker, 329, 339, 340. 
 
 v. Warner, 302, 448, 451, 460. 
 Mithoff v. Carrollton, 247. 
 Mixer v. Reed, 286, 304a. 
 Mize v. Glenn, 210, 
 Mizell v. McGowan, 213. 
 
 v. Ruffin, 194. 
 Mobile v. Emanuel, 39, 40, 195. 
 
 v. Eslava, 39, 40,74, 86.' 
 
 v. Hallett, 27, 39, 40. 
 
 v. Kimball, 34, 35, 130, 131, 132. 
 
 v. Moog, 118, 
 
 Modoc, The, 98. 
 Modoc Land Co. v. Booth, 224 
 Moffet v. Brewer, 72, 78, 128, 204, 365. 
 Mohawk Bridge Co. v. TJtica R. Co., 
 
 121, 137, 145, 506, 512. 
 Mohawk Railroad v. Utica R. Co., 21. 
 Mohler, The, 33. 
 Mohr v. Gault. 128. 
 Mokelumne Hill Co. v. Woodbury, 
 
 229. 
 Molenbrock v. St. Louis Packet Co., 
 
 114. 
 Moline W. P. Co. v. United States, 
 244. 
 v. Waters, 301, 468, 486. 
 Molineaux v. Molineaux, 185, 471. 
 Mollandin v. Union Pac. Ry. Co., 255. 
 Monarch, The, 96. 
 Monatiquot River Mills v. Com., 355. 
 
 v. Randolph, 251. 
 Moncan, In re, 1. 
 Monkton v. Pashley, 423. 
 Monmouth v. Gardiner, 211c, 313, 579, 
 594. 
 v. Plimpton, 305. 
 Monmouth M. Co. v. Regmier, 386. 
 Monmouthshire Canal Co. v. Harford, 
 
 101, 104, 335, 339. 
 Monnett v. Turpie, 441. 
 Monongahela Bridge Co. v. Kirk, 35, 
 
 65, 111, 133, 135, 349. 
 Monongahela Nav. Co. v. Coons, 111, 
 132, 143, 173, 211o, 234, 246, 
 249, 259, 298, 588, 591, 608. 
 v. The Bob Connell, 33. 
 v. United States, 130, 242. 
 v. Wood, 142. 
 Monroe v. Conn. River Lumber Co., 
 
 110. 
 Monsey v. Ismay. 399. 
 Monson v. Brimfield Manuf. Co., 211. 
 Montague v. Jefferson County Com'rs, 
 
 313. 
 Montana Co. v. Gohring, 229. 
 Montello, The, 34, 35, 67, 68, 86, 109, 
 
 111, 130. 
 Montezuma v. Minor, 219. 
 Montgomery, In re, 242. 
 Montgomery v. Capital City W. Co., 
 472. 
 v. Henry, 9, 13. 
 v. Locke, 218. 
 v. Montgomery Plankroad Co., 
 
 112. 
 v. Multnomah Ry. Co., 146. 
 v. Reed, 27, 28, 169, 199. 
 v. Savage, 193. 
 Montjoy v. Pillow, 193. 
 Montreal v. Drummond, 124. 
 Moody v. Jacksonville R. Co., 244 
 v. King, 371, 479. 
 v. New York, 113, 116. 
 v. Saratoga Springs, 261. 
 Moor v. Lang, 105. 
 
CASES CITED. 
 
 lxxiii 
 
 Moor v. Shaw, 595, 597. 
 
 v. Veazie, 34, 35, 54, 56, 111. 132, 
 143. 
 Moorcock, The, 114, 115. 
 Moore v. American Transp. Co., 35. 
 
 v. Auge, 71. 
 
 v. Brown. 387. 
 
 v. Brownfield, 203, 349. 
 
 v. Chicago Ry. Co., 41, 495. 
 
 v. Clear Water Lake Co., 214, 543. 
 
 v. Coburn, 583. 
 
 v. Coni'rs, 140, 175. 
 
 v. Dame Browne, 392. 
 
 v. Erie Ry. Co., 102. 
 
 v. Farmer, 73, 155. 
 
 r. Fletcher, 207, 319. 
 
 v. Great Southern Ry. Co., 124, 
 150. 
 
 ■v. Griffin, 24, 25, 195. 
 
 v. Jackson, 92, 97, 120. 
 
 v. Jennings, 291. 
 
 v. Kinzie, 153. 156. 
 
 v. Langdon, 220. 
 
 ■v. Los Angeles, 298. 
 
 v. Mundorff, 65. 
 
 v. Oceanic Steam Nav. Co., 113. 
 
 v. Railway Co., 258. 
 
 v. Sanborne, 54, 68, 75, 108. 
 
 v. Sanford, 242. 
 
 v. Webb, 219, 345, 491. , 
 
 v. Wilder, 311. 
 
 v. Willamette Transp. Co., 76, 77. 
 Moorman v. Seattle & M. Ry. Co., 256. 
 Mootry v. Danbury, 260. 
 Moran v. Lezotte, 144. 
 
 v. McClearns, 260, 272, 290. 
 
 v. United States, 35. 
 More v. Massini, 27, 36, 195. 
 Morey v. Fitzgerald, 103. 
 Morgan's Appeal, 223. 
 Morgan v. Banta, 611. 
 
 v. Bass, 101, 196. 
 
 v. Burr, 504, 505. 
 
 v. Danbury, 219, 220. 
 
 v. Graham, 122. 
 
 v. King, 54, 55, 57, 108, 109, 110, 
 111, 547. 
 
 v. Livingston, 155, 157, 197. 
 
 v. Mason, 299, 307. 
 
 v. Reading, 55, 63, 68, 99, 196. 
 
 v. Scott, 155. 
 
 v. Smith, 451. 
 Morgan's S. Co. v. La. Board of 
 
 Health, 35. 
 Morganton Land Co. v. Webb, 511. 
 Morin v. The F. Sigel, 33. 
 Morland v. Cook, 161. 358, 447. 
 Morning Light, The, 96. 
 Morrill v. Hurley, 41, 267, 268. 
 
 v. Mackman, 322, 348, 373. 
 
 v. Morrill, 196, 315. 
 
 v. St. Anthony Falls Co., 148, 149, 
 179, 246. 
 Morris v. Beardsley, 162. 
 f 
 
 Morris v. Brooke, 158. 
 
 v. Commander, 343. 
 
 v. Council Bluffs, 272. 
 
 v. Edginton, 306, 313. 
 
 v. Graham, 125, 126. 
 
 v. McCamey, 212, 377. 
 " v. McNamee, 484. 
 
 v. Receivers, 259. 
 
 v. Remington, 444. 
 
 v. State, 142. 
 
 v. United States, 31, 176, 243. 
 Morris Canal Co. v. Central Railroad, 
 36, 118, 144, 157, 171, 507, 509, 
 524. 
 
 v. Ryerson, 211a, 257, 392, 395. 
 
 v. Seward, 495. 
 
 v. Society, 538, 548. 
 Morris County v. Hinchman, 13. 
 Morris R. Co. v. Prudden, 121, 547. 
 Morrisania, The, 89. 
 Morrissey v. C, B. & Q. R. Co., 263. 
 Morrison v. Bucksport R. Co., 41, 108, 
 263, 273. 
 
 v. Coleman, 523. 
 
 v. Fisst Nat. Bank, 197. 
 
 v. Howe, 290. 
 
 v. Keen, 56, 197. 
 
 v. Koch, 326. 
 
 v. Marquardt, 128, 354 
 
 v. Morey, 247. 
 
 v. Thurman, 62, 98, 99, 140, 179. 
 
 v. Winn, 349. 
 Morrow v. Benson, 76. 
 
 v. Willard, 197. 
 Morse v. Aldrich, 447. 
 
 v. Copeland, 322, 323, 331, 351. 
 
 v. Fair Haven East, 394 
 
 v. Home Ins. Co., 34, 67, 76. 
 
 v. Maddox, 328. 
 
 v. Marshall, 24, 307, 373. 
 
 v. O'Connell, 177. 
 
 v. Williams, 334 
 
 v. Worcester, 261, 545. 
 Mortimer v. New York EL R. Co., 30. 
 Mortlock v. Buller, 574 
 Morton v. Moore, 121. 
 
 v. New York, 249. 
 
 v. Pacific Coast S. Co., 138. 
 
 v. Solambo Copper M. Co., 240. 
 Morton B. Co. v. Morton, 323. 
 Moses v. Eagle Manuf. Co., 58. 
 
 v. Morse, 194 
 
 v. Sanford, 119. 
 
 v. Taylor, The, 33, 67. 
 Mosier v. Caldwell, 280, 543. 
 Moss v. Gibbs, 159. 
 
 v. Rose, 231. 
 
 v. St. Louis Ry. Co., 252. 
 Mosser v. Seeley, 12. 
 Mossman v. Forrest, 112. 
 Mostyn v. Atherton, 285. 
 
 v. Fabrigas, 426, 436, 441. 
 Motley v. Sargent, 197. 
 Mott v, Cherryvale W. Co., 245a. 
 
lxxiv 
 
 CASES CITED. 
 
 Mott v. Consumers' W. Co., 405. - J 
 
 v. Ewing, 513. 
 
 v. Mott, 57, 197. 
 
 v. Underwood, 190. 
 Moulton v. Faught, 321, 323. 
 
 v. Libbey, 20, 24, 26, 32, 87, 169, 
 180, 188, 187, 189. 
 
 v. Newburyport Water Co., 206, 
 207, 251. 
 
 V. Parks, 241. 
 
 v. Trafton, 305, 313. 
 
 v. Wilby, 186. 
 Mounsey v. Ismay, 299. 
 Mount v. Hambley, 310. 
 Mountjoy v. Oldham, 180, 610. 
 Mount Washington R. Co., Petition 
 
 of, 244. 
 Mowat v. MoFee, 4. 
 Mow day v. Moore, 288. 
 Mower v. Hutchinson, 310. 
 
 v. Leicester, 116. 
 Mowey v. Providence, 33. 
 Mowry, Ex parte, 35. 
 Mowry v. Sheldon, 349, 583. 
 Moxham, M., The, 441. 
 Moyer v. Chesapeake Canal Co., 114. 
 
 v. New York Central R. Co., 258, 
 588. 
 
 v. Preston, 228, 234. 
 Mud Creek Ir. Co. v. Vivian, 205, 217, 
 
 250. 
 Mueller v. Fruen, 214. 
 Muir v. Louisville Canal Co., 114 
 Muire v. Falconer, 104. 
 Mulberger v. Koenig, 271, 315. 
 Mulholland v. Killen, 23, 25. 
 Mullanply v. Daggett, 73. 
 Mullarky % Cedar Falls, 118. 
 Mullen v. Penobscot L. D. Co., 36, 131, 
 327 
 
 v. St. John, 114. 
 Muller v. Landa, 76, 196, 561. . t , 
 
 v. Spreckels, 120. 
 Mullett v. Bemis, 328, 469. 
 
 v. Bradley, 1. 
 Mullis v. Cavins, 193. 
 Mulry v. Norton, 155, 158, 511. 
 Mulville v. Fallow, 348. 
 Mumford v. Oxford Rv. Co., 376. 
 
 v. Terry, 579, 621. " 
 
 v. Wardwell, 32, 39. 
 
 v. Whitney, 321, 323. 
 Mumpower v. Bristol, 534 
 Muncey v. Joest, 213. 
 Muncie Pulp Co. v. Martin, 219. 
 Mundy v. New York, etc. R. Co., 211c. 
 Municipality No. 1 v. Kirk, 117. 
 Municipality No. 2 v. Orleans Cotton 
 
 Press, 45, 76, 99, 155, 157. 
 Munk v. Watertown, 261. 
 Munkers v. Kansas City R. Co., 263, 
 
 264, 273, 481. 
 Munkwitz v. Chicago Ry. Co., 253. 
 Munn v. Illinois, 18, 119, 143. 
 
 Munn v. People, 143. 
 
 v. Pittsburgh, 92. 
 Munro v. Ivie, 333. 
 
 v. Meech, 399. 
 Munroe, The, 6. 
 Munroe v. Gates, 304, 310, 315. 
 
 v. Stickney, 314, 405. 
 Munsion v. Reed, 308, 354 
 Munson v.. Baldwin, 99, 100, 183. 
 
 v. Hungerford, 24, 54, 57, 105, 108, 
 109, 111, 547. 
 
 v. People, 143. 
 Murchie v.. Gates, 225. 
 Murdock's Case, 552. 
 Murdock v. Stickney, 42, 86, 109, 216, 
 
 253, 579, 580, 589, 594 603. 
 Murgatroyd v. Law, 491. 
 
 v. Robinson, 24, 55, 214 230, 345, 
 346, 491. 
 Murphy v. Brooklyn, 36. 
 
 v. Bullock, 172. 
 
 v. Copeland, 200. 
 
 v. Dunham, 6, 13. 
 
 v. Gillum, 296. 
 
 v. Hendricks, 69. 
 
 v. Indianapolis, 262, 373. 
 
 v. Kelley. 275. 
 
 v. Lally, 393. 
 
 v. Montgomery, 117. 
 
 v. Norton, 158. 
 
 v. Ryan, 18, 24, 48, 51, 52, 53, 85> 
 184, 189. ' 
 
 v. Stanford W. Co., 534 
 
 v. Welch. 331. 
 
 v. Welder, 37. 
 
 v. Wilmington, 241, 244, 263, 562. 
 Murray v. Allred, 291. 
 
 v. Ferry Boat, 33. 
 
 v. Hay, 121. 
 
 v. Jayne, 577. 
 
 v. Manefee, 142. 
 
 v. New York, 135, 175. 
 
 v. Preston, 62. 
 
 v. Scribner, 343, 601. 
 
 v. Sharp, 113, 119, 175. 
 
 v. Tingley, 236. 
 Murry v. Sermon, 155, 158. 
 Muscatine v. Keokuk Northern Line 
 Packet Co., 117, 118. 
 
 v. Wallace, 269. 
 Musgrave v. Smith, 213, 295, 296. 
 Muskego v. Drainage Com'rs, 241. 
 Muskegon Booming Co. v. Evart 
 
 Booming Co., 143. 
 
 Muskingum County Commissioners 
 
 v. Board of Public Works. 35. 
 
 Muskoka Mill Co. v. The Queen, 218. 
 
 Musser v. Hershey, 45, 72, 76, 121, 138, 
 
 151, 157, 179, 547. 
 Mussett v. Burch, 52, 184. 
 Mussumat Imam Bandi v. Hurgovind 
 
 Ghose, 158. 
 Mutual Life Ins. Co. v. Voorhis, 175. 
 Myer v. Phillips, 54#. 
 
CASES CITED. 
 
 lxxv 
 
 Myer v. Whitaker, 191. 
 
 Myers v. Allspruce Meadow Co., 507. 
 
 v. Baker, 362. 
 
 v. Bolton, 191. 
 
 v. Myrrell, 118. 
 
 v. Nelson, 161. 
 
 v. Perry, 64. 
 
 v. St. Louis, 149, 194, 246. 
 Myers & E. Co. v. Phila. etc. Ey. Co., 
 
 205. 
 Myton v. Wilson, 505. 
 
 K 
 
 Nachitoches v. Coe, 99. 
 
 Naegely v. Saginaw, 264 
 
 Naglee v. Ingersoll, 65, 173. 
 
 Nalle v. Austin, 241. 
 
 Napa v. Howland, 105. 
 
 Nash v. Minneapolis Mill Co., 113. 
 
 v. Peden, 329. 
 
 v. Upper Appomatox Co., 143. 
 Nashville v. Comer, 261. 
 
 v. Sutherland, 211, 261, 262. 
 Nashville Bridge Co. v. Shelby, 142, 
 
 193. 
 Nathan v. Louisiana, 35. 
 National Bank v. Yankton, 40. 
 National Copper Co. v. Minnesota 
 
 Mining Co., 210. 
 National Manure Co. v. Donald, 331. 
 National W. W. Co. v. Kansas City, 
 
 323. 
 Natoma Water Co. v. Clarkin, 231, 
 233, 241. 
 
 v. Hancock, 235. 
 
 v. McCoy, 231, 233. 
 Nautilus, The, 96. 
 Navigation Co. v. Dwyer, 34 
 Naylor v. Cox, 73, 155, 157. 
 Neaderhouse v. State, 108, 112, 132, 
 
 133, 136. 212, 305. 
 Neal v. Henry, 211, 212. 
 
 v. Ohio River R. Co., 85. 
 
 v. Rochester, 213. 
 Neale v. Cogar. 609, 610. 
 Neallv v. Bradford, 248, 363. 
 Nebraska, The, 96. 
 Nebraska v. Iowa, 155, 159. 
 Nebraska Land Co. v. Burris, 495. 
 Needham v. N. Y. & N. E. R., 121. 
 Neel v. Blythe, 96. 
 Neff v. Reed, 241. 
 Neill v. Devonshire, 4, 22, 184 
 Neilson v. Garza, 35. 
 Nellis v. Munson, 299. 
 Nelms v. Morgan, 212. , 
 
 Nelson v. Butterfield, 203, 322, 334, 
 343, 353, 594, 597, 602. 
 
 v. Cheboygan Slack-water Nav. 
 Co., 35, 143. 
 
 v. Fleming, 241. 
 
 v. Hoch, 289.' 
 
 Nelson v. Leland, 67, 96. 
 v. O'Neal, 233. 
 
 v. Phoenix Chemical Works, 114 
 v. St. Croix Boom Co., 135. 
 Nemasket Mills v. Taunton, 243. 
 Ne-pee-nauk Club v. Wilson, 85, 263. 
 Nephi Ir. Co. v. Vickers, 233. 
 Neponset Meadow Co. v. Tileston, 
 
 594 
 Nettie Sundberg, The, 96. 
 Netzer v. Crookston City, 262." 
 Nevada, The, 35. 
 Nevada County Canal Co. v. Kidd, 
 
 230, 235, 236. 
 Nevada Ditch Co. v. Bennett, 228, 
 
 229. 
 Nevada Sierra Oil Co. v. Miller, 291. 
 Nevada Water Co. v. Powell, 229, 231. 
 Nevins v. Peoria. 245, 261, 272, 588. 
 New Albany v. Lines, 261, 272. 
 New Albany R. Co. v. Higman, 160. 
 
 v. Peterson, 41, 280, 285. 
 Newark Aqueduct Board v. Passaic, 
 
 223. 
 Newark Lime Co. v. Newark, 157. 
 Newark Plank Road Co. v. Elmer, 
 
 115, 121, 134, 135, 140. 
 Newbold v. Mead, 110, 126, 608. 
 New Boston Coal Co. v. Pottsville 
 
 Water Co., 220, 223, 512, 544 
 New Britain v. Sargent, 210, 251, 606. 
 New Brunswick S. Co. v. Tiers, 114. 
 Newburgh Turnpike Road v. Miller, 
 
 146, 193. 
 Newcastle v. Clark, 21, 91, 101. 
 v. Haywood, 105. 
 v. Johnson, 21. 
 Newcastle Pilots v. Bradley, 23. 
 Newcastle R. Co. v. McChesney, 255. 
 New Central Coal Co. v. George's 
 
 Creek Coal Co., 144 
 Newcomb v. Royce, 234, 619. 
 v. Smith, 133, 253. 
 v. Tisdale, 160, 298. 
 Newell v. Bartlett, 113. 
 v. Hill, 310. 
 v. Leathers, 162. 
 v. Smith, 222, 244, 586, 595. 
 New England Oyster Co. v. McGar- 
 
 vey, 38, 185. 
 New England Trout Club v. Mather, 
 
 188, 241. 
 Newfoundland, The, 9. 
 Newgass v. St. Louis, etc. Ry. Co., 
 
 252 
 Newhall v.'lreson, 196, 197, 203, 214, 
 
 217, 334, 405, 410. 
 New Haven S. Co. v. Sargent, 170. 
 New Haven Toll Bridge Co. v. Bun- 
 nell, 132, 135. 
 New Haven W. Co. v. Wallingford, 
 
 213. 
 New Ipswich Factory v. Batchelder, 
 
 305, 307, 356, 362. 
 
Ixxvi 
 
 CASES CITED. 
 
 New Jersey Steam Nav. Co. v. Mer- 
 chants' Bank, 83, 66. 
 New Jersey Zinc Co. v . Morris Canal 
 
 Co., 28, 171. 
 Newland v. Hudson Eiver W. P. Co., 
 
 535. 
 New London W. Board v. Perry, 
 
 248a. 
 Newmarket Manuf. Co. v. Pender- 
 
 gast, 310. 
 New Moss Colliery Co. v. Manchester, 
 
 etc. Ry. Co., 289. 
 New Orleans v. Carondelet Canal Co., 
 247. 
 v. Eclipse Tow-boat Co., 35. 
 v. Henderson, 160. 
 v. Morris, 245. 
 
 v. New Orleans E. Co., 99, 117. 
 v. United States, 32, 105, 138, 155, 
 
 157, 353, 354. 
 v. Wilmot, 142. 
 New Orleans Draining Co., Matter of, 
 
 247. 
 New Orleans Packet Co. v. James, 35. 
 New Orleans, etc. R. Co. v. Ellerman, 
 142, 146. 
 v. McEwen, 98. 
 v. Mississippi, 135. 
 New Orleans W. Co. v. Ernst, 148. 
 v. Louisiana Sugar Refinery Co., 
 
 146. 
 v. Rivers, 146. 
 v. Tammany W. Co.. 146. 
 Newport v. Batesville, etc. R. Co., 117. 
 
 v. Taylor, 105, 106, 344. 
 Newport Bridge Co. v. Foote, 143. 
 Newport Hospital v. Carter, 37. 
 New River Co. v. Johnson, 251, 280, 
 
 284. 
 New River Harbour Board v. McLeod, 
 
 115. 
 New Rochelle Water Co., Re, 241. 
 New Rochelle W. Co. v. Brush, 241. 
 New Salem v. Eagle Mill Co., 123, 365, 
 
 395. 
 New Sharon W. P. Co. v. Fletcher, 470. 
 New Shoreham v. Ball, 22, 37. 
 New Shoreham Harbor Com'rs v. 
 
 Lansing, 101. 
 Newsom v. Davis, 570. 
 
 v. Prior, 194. 
 Newton v. Allis, 210, 579, 581, 599. 
 v. Cubitt, 103, 193. 
 v. Eddy, 56, 163, 197. 
 v. Newton, 383. 
 New World, The, 67. 
 New York, The, 89. 
 New York, The, v. Rhea, 35. 
 New York, In re, 175, 334. 
 New York v. Bailey, 298. 
 v. Baumberger, 121, 127. 
 v. Furze, 261. 
 r. Hart, 175, 195. 
 v. Hill, 175. 
 
 New York v. Huntington, 175. 
 
 v. Independent S. Co., 146. 
 
 v. Law, 175, 338, 414. 
 
 v. Miln, 34, 35, 129. 
 
 v. Mott, 339. 
 
 v. New York Cent. R. Co., 310. 
 
 v. New York Ferry Co., 103, 193. 
 
 v. Rice, 175. 
 
 v. Ryan, 117, 175. 
 
 v. Scott, 175. 
 
 v. Starin, 175. 
 
 v. Tucker, 175. 
 
 v. Whitney, 175. 
 New York & L. I. Bridge Co. v. 
 
 Smith, 112, 175. 
 New York & T. Land Co. v. Thom- 
 son, 194. 
 New York & W. S. R. Co., Re, 137, 
 
 151. 
 New York, L. E. & W. R Co., In re, 
 
 255. 
 New York Cent. R. Co., In re, 175, 
 
 255. 
 New York Cent. R. Co. v. Aldridge, 
 
 148, 151. 
 New York Co. v. Brooklyn, 112. 
 New York, etc. R Co. v. Hamlet Hay 
 Co., 256. 
 
 v. Hughes, 171. 
 
 v. Long, 170. 
 
 v. Met'n Gaslight Co., 255. 
 
 v. New York, 129. 
 
 v. Railroad Com'rs, 362. 
 
 v. Scovill, 510. 
 
 v. Speelman, 213, 256, 264 
 
 v. Yard, 171. 
 
 v. Young, 257, 591, 608. 
 New York Rubber Co. v. Rothery, 
 
 213, 349. 
 New York S. Co. v. Calderwood, 67. 
 Niagara Falls R. Co., Re, 241. 
 Niantic, The, 114. 
 Nicholas v. Chamberlain, 313, 356. 
 Nicholl v. Allen, 115. 
 
 v. Gardner, 147. 
 
 v. Huntington, 194. 
 Nichols v. Aylor, 105, 332, 611. 
 
 v. Boston, 18, 21, 32, 37, 93, 123, 
 164, 392, 393. 
 
 v. Howland, 194. 
 
 v. Lantz, 238. 
 
 v. Lewis, 170, 171, 179, 471. 
 
 v. Luce, 306, 362. 
 
 v. Molntosh, 229. 
 
 v. Marsland, 297. 
 
 v. New England F. Co., 196. 
 
 r. Somerset Railroad, 244. 
 
 v. Suncook Manuf. Co., 56, 166. 
 Nicholson, The, 96. 
 Nicholson v. Getchell, 248a. 
 
 v. New York, etc. R. Co., 256. 
 
 v. Williams, 4, 24. 
 Nickerson v. Brackett, 184, 187, 188, 
 189. 
 
CASES CITED. 
 
 lxxvii 
 
 Nickerson v. Crawford, 56, 169, 195, 
 200. 
 
 v. Tirrell, 113, 114. 
 Nicodemue v. Nicodemus, 319, 508, 
 
 509, 510. 
 Nicol v. Tackaberry, 323. 
 Nicolai v. Wilkins, 271. 
 Niehaus v. Shepherd, 70, 155, 159, 198. 
 Meld v. London Ry. Co., 161, 225. 
 Nigh v. Sowerwine, 392. 
 Niles v. Burke, 203. 
 
 v. Cedar Point Club, 76, 77, 85. 
 
 v. Patch, 28, 29, 199. 
 Niles Works v. Cincinnati, 160, 208, 
 
 261. 
 Nimmo v. Com., 121. 
 Nims v. Mayor, 261. 
 Nininger v. Norwood, 266. 
 Nippel v. Forker, 234, 240. 
 Nitro-G-lycerine Case, The, 296. 
 Nitro-Phosphate Co. v. London Docks 
 
 Co., 161, 248. 
 Nitzell v. Paschall, 348, 351. 
 Nixon v. Tynemouth Rural S. Au- 
 thority, 222. 
 
 v. "Walter 199. 
 N. K. Fairbank Co. v. Nicolai, 220. 
 Noah v. Angle, 208, 210. 
 Noble v. Cunningham, 46, 59. 
 
 v. St. Albans, 272. 
 Nobles v. Langley, 260. 
 Noe v. Chicago R Co., 256, 258. 
 Noel v. Sale, 609. 
 Nolan v. New Britain, 220, 261. 
 
 v. Rockaway Park Impr. Co., 151. 
 Noll v. Dubuque, etc. Railroad, 351. 
 Noonan v. Albany, 271, 272, 274. 
 
 v. Orton, 302, 576. 
 Norbury v. Kitchin, 160, 205, 208. 
 Norcross v. Fisher, 511. . 
 
 v. Griffiths, 75. 
 Norfleet v. Cromwell, 241, 301, 447. 
 Norfolk City v. Cooke, 36, 61, 138, 149, 
 
 178, 179. 
 Norfolk & W. R. Co. v. Carter, 273. 
 Norma, The, 175. 
 Norman v. Wells, 302, 447. 
 Normand v. St. Lawrence Steam 
 
 Nav. Co., 31. 
 Norris v. Baker, 364. 
 
 v. Boston, 35, 130. 
 
 v. Farmers' Co., 142, 145, 146. 
 
 v. Glen, 214, 377. 
 
 v. Hall, 196. 
 
 v. Harris, 30. 
 
 v. Hill, 75, 512, 540. 
 
 v. Litchfield, 128. 
 
 v. Pillsbury, 602. 
 
 v. Showerman, 317. 
 
 v. United States, 102. 
 
 v. Vermont Central R. Co., 248a, 
 256. 
 Northam, The C. H., 89. 
 
 Northam v. Hurley, 214, 286, 300, 404, 
 
 476. 
 North Am. Com'l Co. v. United 
 
 States, 5. 
 North and South Shields Ferry v. 
 
 Barker, 193. 
 North Bloomfield Gravel Mining Co., 
 
 Be, 566. 
 North Bloomfield G. M. Co. v. United 
 
 States, 566. 
 Northborough v. County Com'rs, 245. 
 North British Ry. v. Perth, 134. 
 North Cape, The, 35. 
 North Cent. Ry. Co. v. Baltimore, 131. 
 North Eastern Ry. Co. v. Elliott, 340. 
 North Fork W. Co. v. Edwards, 213. 
 North Haverhill W. Co. v. Metcalf, 
 
 470. 
 North London Ry. Co. v. Metropoli- 
 tan Board of Works, 545. 
 North Noonday Mining Co. v. Orient 
 
 Mining Co., 236, 240. 
 North Platte W. W. Co. v. North 
 
 Platte, 112. 
 North Point Cons. Ir. Co. v. Utah, etc. 
 
 Co., 241. 
 Northport Brewing Co. v. Perrott, 
 
 228. 
 North Powder M. Co. v. Coughanour, 
 
 238, 489. 
 North Providence v. Dyerville Manuf. 
 
 Co., 299. 
 North River Boom Co. v. Smith, 243. 
 North River S. Co. v. Livingston, 35. 
 North Shore Railway v. Byon, 124, 
 
 149. 
 North Springs W. Co. v. Tacoma, 
 
 245a. 
 North Staffordshire Ry. Co. v. Tun- 
 
 stall Local Board, 546. 
 Northern Pacific R. Co. v. Barnes- 
 
 ville R. Co., 35, 129. 
 v. Scott & Holston L. Co., 179. 
 v. Whalen, 547. 
 Northern Pine Land Co. v. Bigelow, 
 
 163. 
 Northrop v. Burrows, 128. 
 Northumberland v. Houghton, 183, 
 
 184, 189. 
 North Vernon v. Voegler, 270, 271. 
 Northwestern Co. v. St. Paul, 35. 
 Northwestern Fertilizing Co. v. Hyde 
 
 Park, 36. 
 Northwestern Ohio N. G. Co. v. Tiffin, 
 
 291. 
 Northwestern Packet Co. v. Atlee, 33. 
 
 v. St. Louis, 35, 142. 
 Norton v. Hodges, 594, 597. 
 v. Scholefield, 219, 375, 488. 
 v. Volentine, 213, 214, 329. 
 Norway, The, v. Jensen, 13. 
 Norway Plains Co. v. Bradley, 56, 160, 
 
 208, 214, 343. 
 
Ixxviii 
 
 CASES CITED. 
 
 Norwich Gas Light Co. v. Norwich 
 
 Gas Co.. 121, 245. 
 Norwood v. Dickey, 537, 541. 
 Nosser v. Seeley, 583. 
 Nostrand v. Durland, 146. 
 
 v. Knight. 194. 
 Noteware v. Sterns, 240. 
 Nott v. Thayer, 164, 175. 
 Nottingham v. Lambert, 141. 
 Nourse v. Lloyd, 195. 
 Nqyes v. Collins, 166. 
 
 v. Hemphill, 317. 
 
 v. Shepherd, 298. 
 
 v, Stillman, 337, 392, 395, 412, 479. 
 
 v. Supervisors, 85. 
 Nudd v. Hobbs, 24, 25, 169. s . 
 
 v. Lamprey, 184. 
 Nugent v. Levee Com'rs, 116. 
 
 v. Smith, 296. 
 Null v. Whitewater Canal Co., 582. 
 Nuneaton Local Board v. General 
 
 Sewage Co., 223. 
 Nunnamaker u. Columbia W. P. Co., 
 
 241. 
 Nunnelly v. Southern Iron Co., 299, 
 
 324. 
 Nuttall v. BraceweU, 204, 205, 214, 
 
 224, 225, 373. 
 Nutter v. Gallagher, 107, 111. 
 Nutting v. Page, 599. 
 Nye v. Alfter, 37. 
 
 v. Hoyle, 302. 
 
 o. 
 
 Oakes v. De Lancey, 175, 199. 
 
 v. Miller, 325. 
 Oakland v. Carpentier, 118. 
 
 v. Oakland W. F. Co., 14, 36, 43, 
 174. 
 Oakley v. Kensington Canal Co., 421. 
 
 v. Packet Co., 114. 
 
 v. Stanley, 354. 
 Oakley Manuf. Co. v. Neese, 209. 
 O'Bannon v. Jackson, 609, 612. 
 Oberich v. Oilman, 112, 189. 
 Oblenis v. Creeth, 175. * 
 
 O'Brien v. Enright, 343. 
 
 v. Norwich E. Co., 121, 123, 248a. 
 
 v. St. Paul, 218, 271, 272, 482. 
 
 v. Worcester, 261. 
 Obstruction of French Creek, In re, 
 
 608. 
 Occum Co. v. Sprague Manuf. Co., 
 
 220, 253, 583, 606. 
 Ocean Beach Ass'n v. Yard, 23. 
 Ocean City Ass'n v. Shriver, 333. 
 Ocean Grove C. M. Ass'n v. Asbury 
 
 Park Com'rs, 280. 
 Oceanic S. N. Co. v. Campania Transat. 
 
 Espanola, 386. 
 Ockerhausen v. Tyson, 170. 
 O'Conley v. Natchez, 120. 
 
 O'Connell v. East Tenn. etc. Ey. Co., 
 
 256. 
 O'Connor v. Bigler, 65. 
 
 v. Fond du Lac Ey. Co„ 273. 
 
 v. North Truckee Ditch Co., 231. 
 
 v. Stewart, 161. 
 Octavia Stella, The, 87. 
 Odell v. Nyack W. W. Co., 287. 
 Odiorne v. Lyford, 121, 227, 365, 38a 
 O'Donnell v. Brown, 489. 
 
 v. Farrar, 528. 
 
 v. Kelsey, 164, 171. 
 O'Dougherty v. Eemington Paper Co., 
 
 466. 
 Oebricke v. Pittsburg. 117. 
 O'Fallon v. Daggett, 99. 
 O'Farrall v. Simplot, 68. 
 Offield v. Ish, 235. 
 Oftelie v. Hammond, 266. 
 Ogburn v. Connor, 240, 266, 276. 
 Ogden v. Gibbons, 35. 
 
 v. Jennings, 356. 
 
 v. Lund, 35. 
 Ogdensburg v. Lovejoy, 117, 121. 
 
 v. Lyon, 117. 
 Ogilvie v. Blything Sanitary Author- 
 ity, 223, 364. 
 Ogle v. Dill, 210, 341, 344, 530, 532. 
 Ogletree v. McQuaggs, 212, 541. 
 Ogston v. Stewart, SI. 
 Ohio Oil Co. n, Indiana, 291. 
 
 v. Lane, 291. 
 Ohio, etc. E. Co. v. Combs, 429. 
 
 v. Dooley, 210. 
 
 v. Long, 256. 
 
 v. Nuetzei, 256, 353. 
 
 v. Thillman, 256. 
 
 v. Wachter, 258. 
 
 v. Webb, 256. 
 
 v. Wheeler, 132. 
 Okeson v. Patterson, 335. 
 Olcott v. Banfill, 142. 
 
 v. Thompson, 344. 
 Old v. Keener, 232. 
 Oldaker v. Hunt, 185, 219, 512, 521, 
 
 544, 545, 546. 
 Oldbury v. Stafford, 91. 
 Old Colony R Co. v. Framingham 
 W. Co., 244. 
 
 v. Miller, 258. 
 Old Town v. Dooley, 93a. 
 Oler, The, 33, 89. 
 Olin v. Henderson, 194. 
 Oliphant v. Atchison Co., 55. 
 
 v. Smith, 427, 429. 
 Olive v. State, 74, 121. 
 Oliver v. Bailey, 187. 
 
 v. Dickinson, 306. 
 
 v. Dupee, 177. 
 
 v. N. Y. Bay Cemetery Co., 210, 
 553. 
 
 v. Olmstead, 191. 
 
 v. Pitman, 306. 
 
 v. Worcester, 114, 116. 
 
CASES CITED. 
 
 lxxix 
 
 Olmstead v. Abbott. 304, 323, 570. 
 
 v. Camp, 253, 606. 
 
 v. Loomis, 357, 521, 538, 557, 558. 
 Olmsted v. Proprietors, 241. 
 Olney v. Fenner, 56, 213, 329. 
 
 v. Gardiner, 335, 336. 
 
 v. Moore, 177. 
 Olson v. Huntamer, 155. 
 
 v. Merrill, 63, 75, 85, 108, 109, 140, 
 160, 493. 
 
 v. Thorndike, 76. 
 Olsson v. Topeka, 191. 
 Omaha v. Kramer, 252. 
 Omaha R. Co. v. Brown, 210, 256, 273, 
 493. 
 
 v. Standen, 257. 
 Omaha So. Ry. Co. v. Todd, 252. 
 Omelvany v. Jaggers, 204. 
 Omslaer v. Philadelphia Co., 88. 
 Onderdonk v. Smith, 113, 114. 
 O'Neil v. Blodgett, 337. 
 
 v. Sears, 96. 
 O'Neill v. Allen, 21, 189. 
 
 v. Annett, 119, 120, 171. 
 Oneto v. Restano, 238, 328. 
 Onions v. Cohen, 572. 
 Only v. Gardiner. 491. 
 Onthank v. Lake Shore R. Co., 318. 
 Open Boat, An, 64. 
 Openshaw v. Evans, 328, 468. 
 Ophir Silver Mining Co. v. Carpenter, 
 
 229, 236, 543. 
 Opinion of Justices, 13, 242. 
 Opinion of Supreme Court, 13. 
 Opsahl v. Judil, 75. 
 Orchard P. L. Co. v. Brady, 210. 
 O. R Co. v. O. B. Co., 144. 
 Orcutt v. Kittery Point Bridge Co., 
 
 115. 
 Ordway v. Canisteo, 211c. 
 Oregon City Transp. Co. v. Columbia 
 
 St. Bridge Co., 33, 132. 
 Oregon Iron Co. v. Trullenger, 210, 
 
 218. 
 Oregon R. Co. v. Baily, 241. 
 
 v. Barlow, 256, 589. 
 
 v. Portland, 255. 
 Oregon Steam Nav. Co. v. Hale, 
 
 35. 
 O'Reiley v. Kankakee Valley Drain- 
 ing Co., 241. 
 O'Reilly v. New Brunswick, A. & 
 N. Y. S. Co., 98. 
 
 v. Oakey, 247. 
 Organ v. Memphis, 151, 244. 
 
 v. State, 189. 
 Original Co. v. Winthrop Mining Co., 
 
 240. 
 Original Hartlepool Co. v. Gibb, 26, 
 
 95, 96, 154. 
 O'Riley v. McChesney, 219, 220, 222, 
 
 375. 
 Orleans, The, v. Phoebus, 66. 
 Ormerod v. New York Ry. Co., 130. 
 
 Ormerod v. Todmorden Joint-Stock 
 
 Mill Co., 224» 
 O'Rorke v. Smith, 355. 
 O'Rourke v. New York, etc. Co., 114 
 
 v. Peck, 113. 
 Orr v. Brooklyn, 175. 
 
 v. Haskell, 240. 
 
 v. O'Brien, 204. 
 
 v. Quimby, 143, 244. 
 Orr Ewing v. Colquhoun, 46, 52, 53, 55, 
 86, 93a, 149, 160, 208, 210, 213, 
 404. 
 Ortiz, Ex parte, 30. 
 Ortman v. Dixon, 229, 231, 233. 
 Orton v. Harvey, 97. 
 Ortwine v. Baltimore, 386. 418. 
 Orvis v. Elmira, etc. R. Co., 256. 
 Osborn v. Charlevoix Circuit Judge, 
 189, 253. 
 
 v. Union Ferry Co., 122. 
 
 v. Wise, 306. 
 Osborne v. Adams County, 254. 
 
 v. Knife Falls Boom Co., 95, 133, 
 
 143, 144. 
 v. Mobile, 35. 
 v. Rice, 194. 
 
 v. San Diego Land Co., 245a. 
 Oscar and Hattie, The. v. Reg., 5. 
 Oscar Townsend, The, 96. 
 Osgood v. Eldorado Water Co., 236, 
 
 239, 240. 
 Ostrander v. Lansing, 261. 
 Ostrom v. Sills, 275. 
 Oswego Falls Bridge Co. v. Fish, 145. 
 Otis v. De Boer, 241. 
 Ottaquechee Woolen Co. v. Newton, 
 
 144, 540. 
 Ottawa, The, 33. 
 Ottawa v. People, 134. 
 
 Ottawa Gaslight Co. v. Graham, 219, 
 288, 418. 
 v. Thompson, 321. 
 
 Otter, The, 96. 
 
 Ottumwa Woolen Mill Co. v. Hawley, 
 305. 
 
 Ouachita Packet Co. v. Aiken, 35, 
 120. 
 
 Oursler v. Baltimore R Co., 256. 
 
 Oury v. Goodwin, 241. 
 
 Outcalt v. George W. Helme Co., 506, 
 532. 
 
 Outerson v. Gould, 90. 
 
 Outrarn v. Maude, 339. 
 v. Morewood, 504. 
 
 Overholt v. Vieths, 216. 
 
 Overman v. May, 46, 93a. 
 
 Overman Silver Mining Co. v. Corco- 
 ran, 241. 
 
 Overton v. Cannon, 194. 
 
 v. Sawyer, 204, 266, 276, 363. 
 
 Owen v. Bartholomew, 23. 
 v. Da vies, 245. 
 
 v. Field, 204, 209, 304a, 324, 348, 
 351, 535. 
 
lxxx 
 
 CASES CITED. 
 
 Owen v. Jordan. 610. 
 Owens v. Lancaster, 219, 262. 
 
 v. Mo. Pac. Ry. Co., 211. 
 
 v. State, 128. 
 O wings v. Jones, 113, 125. 
 
 v. Norwood, 32. 
 Oxenford v. Palmer, 24. 
 Oxford v. Richardson, 189. 
 
 Pace v. Freeman, 621. 
 
 Pacific Bridge Co. v. Kirkham, 225. 
 
 Pacific Coast S. S. Co. v. Kimball, 120. 
 
 v. Railroad Com'rs, 35. 
 Pacific Gas Impr. Co. v. Ellert, 78. 
 Pacific Live-Stock Co. v. Hanley, 540. 
 Pacific M. Tel. Co. v. Chicago Bridge 
 
 Co., 132. 
 Packard v. Ames, 302a. 
 
 v. Ryder, 26, 169. 
 Packer v. Bird, 76, 166. 203. 
 Packet Co. v. Keokuk, 35, 143. 
 
 v. St. Louis, 142. 
 Packwood v. Walden, 151. -J 
 Paddock v. Forrester, 340. 
 
 v. Somes, 271, 412. 
 Paducah Lumber Co. v. Paducah W. 
 
 S. Co.. 245a. 
 Padwick v. Knight, 24 
 Page v. Baltimore, 119, 176. 
 
 v. Esty, 305. 
 Page v. Mille Lacs L. Co., 95, 547. 
 
 v. O'Toole, 241. 
 
 v. Young, 540. 
 Paige v. Rocky Ford Ir. Co., 229. 
 Pain v. Patrick, 125. 
 Paine v. Chandler, 286, 290, 317. 
 
 v. Consumers' Co., 194. 
 
 v. Delhi, 261. 
 
 v. Hutchins, 338. 
 
 v. Woods, 80, 84, 189, 191, 196, 
 197, 198, 203, 216, 217, 595, 
 598. 
 Paine Lumber Co. v. United States, 
 
 41, 120, 242. 
 Painter v. Pasadena L. & W. Co., 305. 
 Pajewski v. Carondelet Canal Co., 
 114. ,-iju. 
 
 Palmer v. Angel, 318. 
 
 v. Cuyahoga County, 35, 133. 
 
 v. Dodd, 76. 
 
 v. Farrell, 65. 
 
 v. Fletcher, 156, 354. 
 
 v. Heblethwaite. 204, 402. 
 
 v. Hicks, 36, 37, 189, 195. 
 
 v. Mulligan, 4. 53, 54, 57, 108, 214, 
 220, 227, 374. 
 
 v. O'Donnell, 277. 
 
 v. Rouse, 6, 192. 
 
 v. Waddell, 41, 263, 264, 275. 
 
 v. Wellington, 252. 
 Palmer Co. u Ferrill, 244, 587, 594, 599. 
 
 Panama, The, 35. 
 
 Panama R. Co. v. Napier Shipping: 
 
 Co., 114. 
 Panton v. Holland, 290. 
 
 v. Norton, 220. 
 Para Rubber Shoe Co. v. Boston, 205. 
 Paris v. Allred, 210. 
 
 v. Cracrart, 270. 
 Parish v. Municipality No. 2, 157. 
 Park v. C. & S. W. R. Co., 121, 123. 
 Park Com'rs v. Detroit, 474. 
 Parkdale v. West, 149. 
 Parke v. Kilham, 231, 236. 
 Parke County Com'rs v. Wagner, 263. 
 Parker v. Atchison, 248, 334. 
 
 v. Bennett, 306, 360. 
 
 v. Boston & Maine Railroad, 257, 
 285, 290. 
 
 v. Byrnes, 1. 
 
 v. Cutler Mill-dam Co., 20, 132, 
 135, 143. 169, 187, 189. 
 
 v. Elliott, 100. 
 
 v. Fairbanks, 461. 
 
 v. Foote, 329. 
 
 v. Framingham, 331. 
 
 v. Griswold. 204, 213, 214, 215, 405. 
 
 v. Hastings, 110. 
 
 v. Hotchkiss. 208, 214, 227, 329,. 
 334, 603. 
 
 v. Larsen, 543. 
 
 v. Lowell, 260, 486. 
 
 v. Nashua, 270. , 
 
 v. Norfolk & C. R Co., 273. 
 
 v. People, 339, 609. 
 
 v. Rogers, 177. 
 
 v. Smith, 31, 169, 199. 
 
 v. Taylor, 177, 547. 
 
 v. West Coast P. Co., 177. 
 
 v. Wilson, 321. 
 
 v. Winnipiseogee Lake Co., 121,. 
 507, 508. 
 Parkins v. Dunham, 348. 
 Parmlee v. The Charles Mears, 67. 
 Parmoli v. First Municipality, 133. 
 Parnaby v. Lancaster Canal Co., 113, 
 
 114, 115. 
 Parks v. Barkley, 230. 
 
 v. Boston, 251. 
 
 v. Morse, 108, 110, 584. 
 
 v. Newburyport, 41, 267, 268, 279. 
 Parks Canal Co. v. Hoyt, 236. 
 Parrett Navigation Co. v. Robins, 115, 
 
 161. 
 Parrish v. Stephens, 121, 148, 547. 
 Parrot v. Barney, 296. 
 Parrott v. Lawrence, 145, 146. 
 Parry v. Citizens' W. W. Co., 510. 
 Parsons v. Clark, 43, 100, 103, 169. 
 
 v. Miller, 25. 
 
 v. Smith, 6, 25. 
 Partheriche v. Mason, 183. 
 Partridge v. Eaton, 111. 
 
 v. Luce, 169, 195. 
 
 v. McKinney, 238. 
 
OASES CITED. 
 
 lxxxi 
 
 Partridge v. Scott.. 2?C. 
 Paschall v. Passmore. 317. 
 Passaic Bridges, The, 34, 35, 130, 132. 
 Passano v. The New Brunswick, 89. 
 Passenger Cases, The, 34, 130, 134. 
 Pastorius v. Fisher, 214, 405, 486. 
 Patrick v. Beaufort, 101. 
 
 v. Greenway, 404. --" 
 
 v. Ruffner, 103, 377, 480. 
 Patten v. Marden, 206, 208, 539, 558. 
 Patten Paper Co. v. Kaukauna W. P. 
 
 Co., 540, 564. 
 Patterson, The, 96. 
 Patterson v. Baumer, 241. 
 
 v. Boom Co., 241, 259. 
 
 v. Gelston, 155, 176. 
 
 v. Kentucky, 35. 
 
 v. Mississippi Boom Co., 103. 
 
 v. Proprietors, 134. 
 
 v. Sweet. 451. 
 
 v. Tatum, 28. 
 
 v. Trask, 194. 
 Paul v. Blackwood, 570. 
 
 v. Carver, 200. 
 
 v. Hazelton, 20, 32, 188, 189. 
 Pauline, The, 4, 46, 192. 
 Paxton v. Barrow, 193. 
 Paxton, etc. Co. v. Farmers', etc. Co., 
 
 241. 
 Payne v. English, 141, 154. 
 
 v. Kansas City, etc. Ey. Co., 248a, 
 256. 
 
 v. MoKinley, 122. 
 
 v. Shed don, 335. 
 
 v. Taylor, 211, 611. 
 Payton v. People, 241. 
 Peables v, Hannaford, 187, 188. 
 Pearce v. Bunting, 27, 42. 
 
 v. McGlenaghan, 313. 
 
 v. Olney, 144. 
 
 v. Scotcher, 51, 183, 184. 
 Pearcy v. Bybee, 318. 
 Pearsall v. Hewlett, 105. 
 
 v. Post, 24, 105, 121. 
 Pearson v. Duluth, 261. 
 
 v. Rolfe, 110. Ill, 584. 
 
 v. Spencer, 314, 354, 357, 362. 
 Peart v. Meeker, 247. 
 Peaslee v. Tower, 299. 
 Peavey v. C. R. Co., 140. 
 Peay v. Salt Lake City, 323. 
 Peck v. Clark, 194. 
 
 v. Conway, 310, 320. 
 
 v. Elder, 121. 
 
 v. Ellsworth, 260. 
 
 v. Goodberlett, 268. 
 
 v. Harrington, 276. 
 
 v. Lockwood, 20, 25, 26, 28, 170, 
 189. 
 
 v. Louisville Ry. Co., 241. 
 
 v. Michigan City, 92. 
 
 v. Providence Steam Engine Co., 
 157. 
 
 v. Randall, 331. 
 
 Peck v. Smith, 197. 
 
 v. Van Rensselaer, 616. 
 Peckman v. Henderson, 22. 
 Peden v. Chicago Ry. Co., 256, 301, 
 
 412. 
 Peebles v. Oswaldistwistle TJ. D. 
 
 Council, 223. 
 Peers v. Lambert, 574. 
 Peete v. Morgan, 35. 
 Peik v. Chicago Ry. Co., 143. 
 Pejepscot Proprietors v. Cushman, 36. 
 Pekin v. McMahon, 278. 
 Pelham v. Pickersgill, 141. 
 
 v. The B. F. Woolsey, 33. , 
 v. Woolsey, 120, 142, 145. 
 Pell v. Newark, 13. 
 
 v. Towers, 37. 
 Pender v. Coor, 197. 
 Pendervis v. Gray, 325. 
 Penfield v. New York W. Co., 210. 
 Pengra v. Wheeler, 327. 
 Penley v. Maine Central R. Co., 256. 
 Penn v. Baltimore, 30. 
 Penney v. Com., 252. 
 Penniman v. New York Balance Dock 
 
 Co., 121, 547. 
 Pennington v. Brinsop Hall Coal Co., 
 219, 221, 223, 226. 346. 404, 520, 
 525, 528, 544, 559, 561. 
 v. Townsend, 121. 
 Pennoyer v. Allen, 542. 
 Pennsylvania, The, 96. 
 Pennsylvania v. Wheeling Bridge 
 Co., 34/35. 95, 112. 121, 128, 
 129, 130, 132, 134, 136, 152. 555. 
 Pennsylvania Canal Co. v. Billings, 
 241. 
 v. Burd, 114. 
 v. Graham, 115. 
 v. Harris, 243. 
 Pennsylvania Coal Co. v. Delaware 
 Coal Co., 569. 
 v. Sanderson, 220, 560. 
 v. Winchester, 65. 
 Pennsylvania College Cases, 145. 
 Pennsylvania R. Co.'s Appeal, 310, 
 
 530. 
 Pennsylvania R. Co. v. Atha, 113, 114. 
 v. Baltimore, etc. R. Co., 110, 112, 
 
 129. 
 v. Burnell. 251. 
 v. Central R. Co., 134 
 v. Miller, 205, 206. 
 v. National Docks Co., 244. 
 v. National Ry. Co., 142. 
 v. New York R. Co., 130, 132, 136, 
 
 171. 
 v. Patterson, 115. 
 Penny Pot Landing, 105, 121. 
 Penobscot Boom Co. v. Baker, 144, 
 147. 
 v. Lamson, 147. 
 
 v. Penobscot Lumber Ass'n, 147. 
 Penobscot Co. v. Treat, 187. 
 
lxxxii 
 
 CASES CITED. 
 
 Penobscot Co. v. Wadleigh, 144. 
 Penobscot Tribe v. Veazie, 30, 166. 
 Penrhyn v. Holme, 4, 10, 27. 
 Penruddock's Case, 368, 375, 381, 385, 
 
 388, 392, 394, 499. 
 Pensacola, etcr R. Co. v. Hyer, 114 
 Pensacola Gas Co. v. Pebley, 219. 
 Pensacola Tel. Co. v. Western Union 
 
 Tel. Co., 34. 
 Pentley v. Lynn Paving Com'rs, 124, 
 
 250. 
 People v. Albany, 248. 
 
 v. Allen, 57, 112, 241. 
 
 v. Assessors, 175. 
 
 v. Babcock, 35. 
 
 v. Baltimore, etc. E. Co., 175. 
 
 v. Board of Health, 363. 
 
 v. Borda, 219. 
 
 v. Bostwick, 175. 
 
 v. Bouchard, 14. 
 
 v. Bridges, 189. 
 
 v. Broadway Wharf Co., 118, 120, 
 138, 174. 
 
 v. Brooklyn Assessors, 175. 
 
 ■v. Brooks, 34, 112, 134. 
 
 v. Bryan, 117. 
 
 v. Burtleson, 219. 
 
 v. Buffalo Fish Co., 189. 
 
 v. Canal Appraisers, 36, 48, 57, 
 111, 151, 166, 175, 187, 196, 246, 
 249. 
 
 v. Carpenter, 93. 
 
 v. Central R. Co., 24, 175. 
 
 v. Coleman, 38. 
 
 ■v. Colgate, 148, 175. 
 
 v. Collison, 82a, 85. 
 
 v. Commissioners, 35, 148, 175, 267. 
 
 v. Compagnie Generale Transat- 
 lantique, 35. 
 
 v. Cowell, 174. 
 
 v. Crounse, 212. 
 
 v. Cunningham, 97, 105, 121. 
 
 v. Dalton, 474. 
 
 v. Davidson, 4, 28, 39, 167, 168, 174. 
 
 v. Decker, 189. 
 
 <v. Deming, 175. 
 
 v. Doxtater, 187. 
 
 v. Duncan, 144. 
 
 v. Elk River M. & L. Co., 108, 111, 
 219, 228. 
 
 v. Farmers' High-Line Canal Co., 
 473. 
 
 v. Featherly, 82a. 
 
 v. Forrest, 245. 
 
 v. Gage, 305. 
 
 v. Gillette, 58. 
 
 v. Gold Run Ditch Co., 206, 566. 
 
 v. Green Island Water Co., 472. 
 
 v. Gutchess, 57, 111, 140. 
 
 v. Hagar, 241. 
 
 v. Haines, 241. 
 
 v. Hazen, 190. 
 
 v. Henderson, 197. x 
 
 v. Hill, 13. 
 
 People v. Horton, 95, 97, 121. 
 v. Illinois Cent. R. Co., 179. 
 v. Jenkins, 35. 
 v. Jessup, 36, 175. 
 v. Jones, 82, 203. 
 
 v. Kankakee Impr. Co., 144, 225. 
 v. Kelly, 34, 129, 132. 
 v. Kelsey, 118, 175. 
 v. Kirk, 82. 
 v. Klumpke, 138. 
 v. Knickerbocker Ice Co., 191. 
 v. Lambier, 157. 
 v. La Rue, 241. 
 v. Law, 136, 196, 212. 
 v. Linda Vista Ir. District, 233. 
 v. Lowndes, 37, 184, 190. 
 v. McCune, 219. 
 v. Mallory, 175. 
 v. Mauran, 136, 471. 
 v. Meach, 139. 
 v. Morrill, 27, 28, 36, 39, 174. 
 v. Mould, 175. 
 v. Nearing, 241, 244. 
 v. Nelson, 247. 
 v. New York, 151, 175. 
 v. New York Ferry Co., 21, 32, 
 
 36, 138, 143, 151, 168, 175. 
 v. New York Gaslight Co., 132. 
 v. New York Suburban W. Co., 
 
 474. 
 v. O'Hair, 241. 
 
 v. Pacific Mail S. S. Co., 35, 138. 
 v. Pacific Rolling Mills Co., 35. 
 v. Page, 57, 92, 121, 300. 
 v. Parks, 145. 
 v. Pelton, 219, 392, 532. 
 v. Piatt, 54, 57, 182, 187. 
 v. Pope, 121. 
 v. Potrero R. Co., 39. 
 v. Reclamation District, 144. 
 v. Reed, 187. 
 
 v. Rensselaer R Co., 35, 130, 132. 
 v. Roberts, 35, 118. 
 v. Rogers, 220. 
 v. St. Louis, 21, 33, 54, 69, 95, 132, 
 
 133, 140/ 168, 248. 
 v. San Francisco G. L. Co., 120, 
 
 138. 
 v. San Francisco, etc. R Co., 138. 
 v. San Luis Obispo, 219. 
 v. Saratoga R Co., 137. 
 v. Saxton, 36, 175, 194. 
 v. Schermerhorn, 31, 36, 162. 
 v. Schuyler, 252. 
 v. Seymour, 57. 
 v. Sheriff, 4. 
 v. Silberwood, 82. 
 v. Sperry, 35. 
 v. Stephens, 241. 
 v. Stratton, 263. 
 v. Supervisors, 69, 119, 129, 138. 
 v. Thompson, 36, 190. 
 v. Third Avenue R. Co., 168. 
 v. Tibbets, 32, 44, 57, 151, 175. 
 
CASES CITED. 
 
 lxxxiii 
 
 People v. Townsend, 312, 478. 
 
 v. T. R. Co., 35. 
 
 v. Truckee Lumber Co., 219. 
 
 v. Utica Cement Co., 211c, 216, 
 220. 
 
 v. Valentine, 368. 
 
 v. Vanderbilt, 21. 32, 95, 97, 121, 
 134, 138, 140, 151, 168, 175. 
 
 v. Warner, 77, 82. 
 
 v. Welch, 130, 175. 
 
 v. Williams, 36, 105, 138, 241. 
 
 v. Wilson, 4. 
 
 v. Woodruff, 162, 163, 175. 
 People's Gas Co. v. Tyner, 291. 
 People's Ice Co. v. Davenport, 191. 
 
 v. The Excelsior, 89, 191. 
 Peoria v. Ballance, 148. 
 
 v. Eisler, 261. 
 Peoria, etc, Ry. Co. v. Barton, 256. 
 
 v. Bryant, 252, 257. 
 Peotone, etc. District v. Adams, 474. 
 Percival v. Hickey, 33. 
 Percy Summer Club v. Welch, 84. 
 Pere Marquette Boom Co. v. Adams, 
 
 72, 76. 
 Peregoy v. McKissick, 217. 
 
 v. Sellick, 217. 
 Perkins v. Adams, 76, 155. 
 
 v. Collins, 521. 
 
 v. Dow, 205. 
 
 v. Foye, 536. 
 
 v. Lawrence, 261, 582. 
 
 v. Oxford, 202. 
 Perley v. Chandler, 256, 260. 
 
 v. Hilton, 333. 
 
 v. Langley, 24. 
 
 v. Marshall, 208. 
 Peroux v. Howard, 44, 66. 
 Perrin v. Garfield, 307, 333, 334, 335, 
 
 337, 339, 341. 
 Perrine v. Bergen, 203, 210. 
 
 v. Chesapeake Canal Co., 142, 144. 
 
 v. Taylor, 288. 
 Perrott v. Bryant, 14, 22. 
 Perry v. Binney, 209. 
 
 v. Carleton, 189. 
 I v. Eames, 22. 
 
 v. Parker, 313. 
 
 v. Penn. R. Co., 304a. 
 
 v. Pratt, 155, 164. 
 
 v. Wilson, 103. 143, 243, 585. 
 
 v. Worcester, 260, 582. 
 Peru v. Brown, 261. 
 Pery v. Thornton, 85, 183. 
 Peter v. Caswell, 225, 340. 
 , v. Daniel, 346, 491, 548. 
 
 v. Kendal, 103, 193. 
 Peterhoff, The, 16. 
 Peterkin v. Ingloes, 176. 
 Peters v. Bowman, 297. 
 
 v. Grubb, 456, 457, 460. 
 
 v. Hansen. 506. 
 
 v. New Orleans R. Co., 53, 74, 109, 
 133. 
 
 Peters v. State, 83. 
 Petersburg v. Applegarth, 116. 
 Peterson v. Great Neck Dock Co., 
 114. 
 
 v. McCullough, 342. 
 
 v. Santa Rosa, 509, 546. 
 Petrel v. Dumont, 67. 
 Petrel Guano Co. v. Jarnett, 4. 
 Petrie v. Hamilton College, 214 
 
 v. Rostrevor, 87. 
 Pettee v. Hawes, 303, 305, 312. 
 Pettibone v. Hamilton, 121, 196. 
 
 v. Smith, 213. 
 Pettigrew v, E-sansville, 109, 133, 243, 
 
 261, 272, 273, 296, 536, 588. 
 Pettingell v. Boynton, 23. 
 Pettingill v. Porter, 306, 354, 360. 
 Pettis v. Johnson, 121. 
 Pettit v. Board of Chosen Freehold- 
 ers, 134. 
 Petunia, The, 96. 
 Pewaukee v. Savoy, 85, 111. 
 Pfeiffer v. Brown, 218a. 
 Pflegar v. Hastings Ry. Co., 260. 
 Phair v. Venning, 185. 
 Phelps v. City of Panama, The, 40. 
 
 v. Grand River Nav. Co., 248. 
 
 v. Nowlen, 290. 
 
 v. Tourtellot, 319. 
 Pheysey v. Vicary, 314, 355. 
 Philadelphia's Appeal, 121. 
 Philadelphia v. Collins, 92, 126, 246. 
 
 v. Field, 117. 
 
 v. Gilmartin, 92, 116, 126, 246. 
 
 V. Linnard, 251. 
 
 v. Philadelphia R. Co., 121. 
 
 v. Scott, 36, 65, 161, 173, 244, 247. 
 Philadelphia Coal & Iron Co. v. 
 
 Mayor, 147, 175. 
 Philadelphia R. Co., In re, 150. 
 Philadelphia, etc. R. Co. v. Anderson, 
 262. 
 
 v. Cooper, 244. 
 
 v. Irwin, 113. 
 
 v. Morris, 173. 
 
 v. New York, 175. 
 
 v. Philadelphia, 135, 570. 
 
 v. Philadelphia S. Co., 114. 
 
 v. Pottsville W. Co., 205. 
 
 v. Smith, 232. 
 
 v. State, 121. 
 Philadelphia S. Co. v. Com., 35. 
 Philadelphia Towboat Co., 67, 98. 
 Philbrick v. Ewing, 313, 355, 356. 
 Philiber v. Matson, 128. 
 Philipps v. Halliday, 329. 
 Philips v. Stocket, 507, 524, 551, 555. 
 Phillips v. Ayres, 76, 194. 
 , v. Bowers, 203. 
 
 v. Com'rs, 599. 
 
 v. Homfray, 561. 
 
 v. People, 64. 
 
 v. Phillips, 211a. 
 
 v. Rhodes, 25, 29, 155. 
 
lxxxiv 
 
 CASES CITED. 
 
 Phillips v. Schlesinger, 116. 
 
 v. Sherman, 208, 218, 374, 595. 
 
 v. Terry, 412. 
 
 v. Waterhouse, 277. 
 Phillipsburg W. Co. v. Citizens' W. 
 
 Co., 548. 
 Philps v. St. John Water Co., 302. 
 Phinizy v. Augusta, 206, 211, 261, 268, 
 
 272, 329. 
 Phinney v. Watts, 79, 196, 203. 
 Phipp's Appeal, 140. 
 Phipps v. State, 189. 
 Phoebe v: Jay, 133. 
 Phoenix v. Com'rs, 132. 
 Phoenix Water Co. v. Fletcher, 231, 
 
 233, 512, 543. 
 Pick v. Rubicon Hydraulic Co., 254, 
 
 591, 595, 599. 
 Pickering v. Stapler, 306, 356. 
 Pickles v. McLellan Dry Dock Co., 
 
 247. 
 Pickman v. Peabody, 241, 246. 
 Pico v. Colimas, 328, 366. 
 Picton's Case, 30. 
 
 Pictou Municipality v. Geldert, 113. 
 Pidler v. Berry, 185, 189. 
 Piedmont, etc. Ry. Co. v. McKenzie, 98. 
 Pierce v. Cloud, 332, 339. 
 
 v. Dart, 126, 128. 
 
 v. Fauconberg, 99. 
 
 v. German S. Society, 387. 
 
 v. Kennedy, 28, 177, 471. 
 
 v. Kinney, 160. 
 
 v. Selleck, 306, 314, 362. 
 
 v. Travers, 337. 
 Pierce Mill Co. v. Koltermann, 211c, 
 
 619. 
 Pierre v. Fernald, 329. 
 Pierrepont v. Loveless, 57, 108, 547. 
 Pierson v. Elgar, 121. 
 
 v. Glean, 392. 
 Pifer 0. Brown, 321, 324. 
 Pike v. Hood, 196. 
 
 v. Monroe, 169, 195. 
 
 v. Moulton, 197. 
 
 v. Rossiter, 187. 
 Pilcher v. Hart, 92, 95, 97, 128, 364. 
 Pilgrim v. Mellor, 429. 
 Pillsbury v. Moore. 204, 207, 227, 330, 
 
 348, 383, 394. 
 Pirn v. St. Louis, 335. 
 Pine v. New York, 506, 524. 
 Pinkum v. Eau Claire, 302a, 471. 
 Pinney v. Berry, 394. 
 
 v. Luce, 206, 512. 
 Pioneer, The, 120. 
 Pioneer Wood Pulp Co. v. Chandos, 
 
 338, 342. 
 Piper v. Connelly, 69. 
 
 v. Richardson, 162, 164, 169. 
 Pipkin v. Wynns, 103, 142. 
 Piqua v. Geist, 584. 
 Piscataqua Bridge Co. v. New Hamp- 
 shire Bridge Co., 146, 244. 
 
 Piscataqua Nav. Co. v. New York, etc. 
 
 R. Co., 134. 
 Pitkin v. Olmstead, 32, 99, 100, 186. 
 Pitman v. Poor, 323. 
 Pitt v. Dacre, 30. 
 Pitts v. Holmes, 211a. 
 
 v. Kingsbridge Board, 24. 
 v. Lancaster Mills, 207, 218. 
 v. Sullivan, 27, 37. 
 Pittsburg v. Epping-Carpenter Co., 
 
 105. 
 Pittsburgh v. Grier, 113, 114, 115, 116. 
 v. Scott, 125, 126, 150, 244, 249, 
 250, 251. 
 Pittsburgh & C. Dock Co. jo. Detroit 
 
 Transp. Co., 114. 
 Pittsburgh & L. A. Iron Co. v. Lake 
 
 Superior Iron Co., 318a. 
 Pittsburgh, etc. R. Co. v. Bruce, 241, 
 255 
 v. Gille'land, 116, 258, 589. 
 v. Jones, 127, 193. 
 v. Swinney, 244. 
 
 v. West Virginia Board of Pub- 
 lic Works, 132. 
 Pitzer v. Williams, 609. 
 Pixley v. Clark, 204, 209, 211, 211c, 
 280, 289, 296. 
 v. Roanoke Nav. Co., 144. 
 Place v. Proctor, 318a. 
 Planet, The, 96. 
 Planters' Oil Mill v. Monroe W. W. 
 
 & Light Co., 245a. 
 Plant Inv. Co. v. Cook, 113. 
 Plate v. New York Central Railroad, 
 
 210. 
 Piatt v. Johnson, 214, 226, 334 > 
 v. Jones. 195. 
 v. Sheriffs of London, 4. 
 v. Waterbury, 261. 
 Platte Water Co. v. Northern Colo- 
 rado Ir. Co., 238. 
 Platte & Denver Ditch Co. v. Ander- 
 son, 219. 
 Platte Valley Ir. Co. v. Buckers Ir. 
 
 Co., 229, 238. 
 Plattsmouth W. Co. v. Smith, 204. 
 Pleasanton W. Co. v. Contra Costa 
 
 W. Co., 241. 
 Plecker v. Rhodes, 132, 143. 
 Pleydell v. Dorchester, 495. 
 Plimpton v. Converse, 55, 335. 
 
 v. Gardiner, 211b, 486. 
 Plowman v. Foster, 488. 
 Plum v. Morris Canal Co., 257. 
 Plumb v. McGannon, 45, 214. 
 Plumer v. Alexander, 126, 135. 136, 
 608. 
 v. Harper, 368, 385, 388, 389, 392. 
 Plumleigh v. Dawson, 204, 209, 213, 
 
 214, 215, 405. 
 Plummer v. Penobscot Lumber Ass'n, 
 135, 211c. 
 v. Sturtevant, 272. 
 
CASES CITED. 
 
 lxxxv 
 
 Plymouth, The, 33, 66, 67. , 
 Plymouth v. Carver, 302. 
 
 v. Holderness, 198, 202. 
 Pocantino W. W. Co. v. Bird, 241. 
 
 v. Brombaoher, 244. 
 Podhaisky v. Cedar Rapids, 266. 
 Poignand v. Smith, 37. 
 Point Breeze Ferry Co. v. Bragaw, 
 
 171. 
 Polack v. Pioche, ?32. 
 Polden v. Bastard, 355, 358. 
 Polhamus v. State, 171. 
 Police Jury v. Bozman, 247. 
 
 v. Britton, 138. 
 
 v. Huie, 247. 
 
 v. McDonogh, 247. 
 Pollard v. Barnes, 335, 337. 
 
 v. Files, 39, 40. 
 
 v. Greit, 40. 
 
 v. Hagan, 3, 5, 18, 27, 30, 32, 34, 39, 
 40, 64, 67, 72, 166. 
 
 v. Kibbe, 39, 40. 
 
 v. Moore, 605. 
 Pollet v. Long, 204, 298, 537. 
 Pollexfen v. Crispin, 80, 183. 
 Polley v. McCall, 335, 412. 
 Pollock v. Cronise, 306. 
 
 v. Harris, 194. 
 
 v. Wilson, 326. 
 Pomeroy v. Chicago R. Co., 454. 
 Pomfret v. Ricroft, 306, 328, 366. 
 Pontchartrain R. Co. v. Levee Com'rs, 
 247. 
 
 v. Orleans Nav. Co., 140. 
 Pontiac v. Carter, 272. 
 Ponting v. Noakes, 296. 
 Pool v. Lewis, 208, 218, 227. 
 
 v. Trexler, 241. 
 Poole v. Johnson, 141. 
 Poor v. McClure, 36, 46, 65. 
 Pope v. Bell, 310. 
 
 v. Boyle, 288. 
 
 v. Devereux, 351. 
 
 v. Kinman, 230, 240. 
 Popple, In re. 194. 
 Popplewell v. Hodkinson, 289. 
 Port Credit Harbor Co. v. Jones, 144. 
 Porter v. Allen, 86, 89, 125, 140. 
 
 v. Durham, 176, 213, 266, 271, 276, 
 342. 
 
 v. Hooper, 384, 470. 
 
 v. Newton, 223. 
 
 v. Pequonnoc Manuf. Co., 298. 
 
 v. Sheehan, 20, 24. 
 
 v. Sullivan, 24, 27, 37, 162, 163, 
 169. 
 
 v. Witham, 507. 
 Port Henry v. Kidder, 250. 
 Portland & W. Valley R. Co. v. Port- 
 land, 255. 
 Portman v. Fish Com'rs, 474. 
 Portmore v. Bunn, 449. 
 Port Royal R. Co. v. Hammond, 441. 
 Port Warden's Line, Be, 138. 
 
 Portwardens v. The M. J. Ward, 35. 
 Posachane W. Co. v, Standart, 229. 
 Posey v. James, 155, 194. 
 Post v. Kreisher, 190. 
 
 v. Munn, 87, 89. 
 Postlethwaite v. Payne, 329, 333. 333, 
 
 343. 
 Potier v. Burden, 217, 534. 
 Potomac S. Co. v. Upper Potomac S. 
 
 Co., 105, 148. 
 Potter v. Froment, 211b, 219, 486. 
 
 v. Howe, 84, 561. 
 Potter v. Indiana, etc. Ry. Co., 121. 
 
 v. Menasha, 121, 123, 134 
 
 v. Pettis, 96.' 
 Pottner v. Minneapolis, 261. 
 Potts v. Clark, 211a, 376, 379, 479. 
 
 v. Park, 193. 
 Pottstown Gas Co. v. Murphy, 219, 
 
 288. 
 Potwin Place v. Topeka Ry. Co., 
 
 474. 
 Poulsom v. Thirst, 260. 
 Pound v. Turck, 33, 34, 35, 54, 103, 
 
 130, 131, 132. 134, 135. 
 Poundstone v. Baldwin, 241. 
 Powell v. Allen, 421. 
 
 v. Bagg, 332. 
 
 v. Butler, 225. 
 
 v. Heffernan, 48. 
 
 v. Lash, 211, 329, 343. 
 
 v. Maguire, 144. 
 
 v. Mills, 193. 
 
 v. Pennsylvania, 243. 
 
 v. Steam-Tug Willie, 114 
 
 v. Wilson, 43. 
 Power v. Athens, 193. 
 
 v. Switzer, 235, 238. 
 
 v. Tazewells, 189. 
 Powers v. Ames, 429. 
 
 v. Bald Eagle Boom Co., 136, 349. 
 
 v. Bears, 244, 253. 
 
 v. Council Bluffs, 259, 262, 416. 
 
 v. Harlow, 362. 
 
 v. Hibbard, 304, 538. 
 
 v. Irish, 122, 126. 
 
 v. Larrabee, 13. 
 
 v. Osgood. 344. 
 
 v. St. Louis, etc. Ry. Co., 273. 
 Poyer v. Desplaines, 145. 
 Poynder's Settled Estates, Re, 241. 
 Poynter v. Chipman, 155, 349. 
 Prather v. New Orleans, 35. 
 Pratt, In re, 135. 
 Pratt v. Brown, 110, 145, 253, 591. 
 
 v. Covington Bridge Co., 145, 146. 
 
 v. Lamson, 195, 204, 207, 227, 304, 
 318, 323, 334, 502, 532, 560. 
 
 v. State, 202. 
 
 v. Sweetser, 348. 
 Pray v. Great Falls Manuf. Co., 303. 
 
 v. Jersey City, 116. 
 Preble v. Brown, 183, 189. 
 
 v. Reed, 307. 
 
lxxxvi 
 
 CASES CITED. 
 
 Pre-emption H. Com'rs v. Whitsitt, 
 
 277. 
 Prentice v. Geiger, 206, 208, 220, 342. 
 
 v. Wallis, 244. 
 Prentiss v. Larned, 507. 
 
 v. Wood, 210. 319, 388, 389, 530. 
 Prerogative, Case of, 24. 
 Presoott v. Curtis, 598, 599. ; 
 
 v. Duquesne. 115, 120, 367. 
 
 v. McNamara, 247. 
 
 v. Phillips, 330. 
 
 v. Trueman, 451. 
 
 v. White, 305, 328, 451. 
 
 v. Williams, 138, 303, 363, 365, 366, 
 451. 
 Presoott Ir. Co. v. Flathers, 241. 
 President v. Clark, 194. 
 
 v. Dusouehett, 125. 
 
 v. Trenton City Bridge Co., 132. 
 Preston v. Bowman, 194 
 
 v. Fulwood Local Board, 381. 
 
 v. Hull, 213, 329. 
 
 v. Norfolk Ry. Co., 391. 
 Pretty v. Bickmore, 113, 391. 
 Prevost v. Gorrell, 427. 
 Price v. Atchison W. Co., 297. 
 
 v. Hallett, 155. 
 
 v. Knott, 123, 193. 
 
 v. Lagroue, 585. 
 
 v. Lavvson, 310. 
 
 v. Livingston, 4. 
 
 v, Methodist Ep. Church, 105. 
 
 v. Milwaukee Ry. Co., 494. 
 
 v. Oakland H. Creamery Co., 272. 
 
 v. Price, 299. 
 
 v. Riverside Co., 241, 474. 
 Prickman v. Tripp, 374, 481. 
 Pride v. Lunt, 195. 
 Prieger v. Exchange Ins. Co., 69. 
 Priest v. Union Canal Co., 236. 
 Priewe v. Wisconsin Land & Impr. 
 
 Co., 85, 155, 241, 527. 
 Primm v. Raboteau, 196. 
 
 v. Walker, 73, 198, 203. 
 Prince's Case. The, 10. 
 Prince v. McCoy, 121. 
 Prince Manuf. Co. v. Prince's Metal- 
 lic Paint Co., 444. 
 Princeton v. Gieske, 270. 
 Prior v. Comstock, 156. 
 
 v. Swartz, 170. 
 Prior of Southwards Case, 376, 378. 
 Proctor v. Adams, 90, 192. 
 
 v. Hodgson, 314. 
 
 v. Jennings, 211c, 231, 296, 543. 
 
 v. Wells, 20, 169, 188, 189. 
 Professor Morse, The, 33. 
 Proprietors v. Abbott, 147. 
 
 v. Braintree Water Supply Co., 
 84, 286, 510. 
 
 v. Hahn, 144, 147. 
 
 v. Hoboken Land Co., 135. 
 
 v. Tiffany, 194. 
 
 v. Tower, 25. 
 
 Prospect Park R. Co. v. Williamson, 
 255. 
 
 Prosser v. Davis, 103. 
 
 v. No. Pac. R. Co., 138. 
 
 v. Ottumwa, 121, 126. 
 
 v. Wapello County, 103, 142, 193. 
 
 Proulx v. Tremblay, 218. 
 
 Providence Steam Engine Co. v. Prov- 
 idence Steamship Co., 4, 19, 
 27, 32, 138, 150, 168, 172. 
 
 Providence Tool Co. v. Corliss Steam 
 Engine Co., 355. 
 
 Provident Inst. v. Jersey City, 243, 
 245. 
 
 Provins v. Lovi, 76. 
 
 Provost v. Calder, 319. 
 
 Pruner v. Brisbin, 194. 
 
 Pryzbylowicz v. Missouri River R. Co., 
 244. 
 
 Public Opinion, The, 5. t 
 
 Public Schools v. Risley, 157. 
 
 Pue v. Pue, 351. 
 
 Pugh v. Golden Valley Ry. Co., 256. 
 v. Wheeler, 204, 211c, 214, 227, 
 330. 621. 
 
 Pullan v. Roughfort Bleaching Co., 
 214. 
 
 Pulley v. Municipality No. 2, 99. ■ 
 
 Pumpelly v. Green Bay Co., 222, 243, 
 246, 249, 257, 588. 
 
 Purcell v. McCallum, 621. 
 v. Potter, 122. 
 
 Purinton v. Ladd, 185. 
 
 Pursell v. Stover, 65, 173, 322. 
 
 Putnam v. Curtis, 228. 
 
 Pye v. Mankato, 272. 
 v. Peterson, 149. 
 
 Pyer v. Carter, 313, 314, 356, 357, 358. 
 
 Pyle v. Richards, 263. 
 
 Q. 
 
 Quackenbush v. Van Riper, 509. 
 Queen, The. See Rex or Reg. 
 Queen City, The, 33. 
 Queen of the East, The, 96. 
 Quicksilver Mining Co. v. Hicks, 76. 
 Quigley v. Birdseye, 231. 
 Quimby v. Hazen, 241. 
 Quincy Bridge Co. v. Adams Co., 132. 
 Quincy Canal v. Newcomb, 114, 122, 
 
 144, 147. 
 Quinlan v. Noble, 299. 
 Quinlin v. Bratley, 155. 
 Quinn v. Besse, 590. 
 
 v. Chicago R Co., 296. 
 Quintini v. Bay St. Louis, 128. 
 Quirk v. Falk, 234. 
 
 R. 
 
 Raab v. State, 176. 
 
 Rabun County v. Habersham County, 
 202. 
 
CASES CITED. 
 
 lxxxvii 
 
 Race v. Ward, 24, 184, 299. 
 Eackley v. Sprague, 306. 
 Radcliffe v. Brooklyn, 143, 248, 280, 
 290. 
 
 v. Mayor, 290. 
 Radford v. Edwards, 194. 
 Radway v. Briggs, 113, 115, 116, 120, 
 
 175. 
 Rady v. London Ry. Co., 128. 
 Ragan v. Aiken. 144. 
 
 v. Kansas City & S. E. R. Co., 349. 
 Raikes v. Townsend, 363. 
 Railroad Co. v. Carr, 160, 225. 
 
 v. Colwell, 144. 
 
 v. Fuller, 35, 181. 
 
 v. Hanning, 113, 119. 
 
 v. Husen, 35. 
 
 v. Maryland, 35. 
 
 v. Richmond, 34, 129. 
 
 v. Schurmeir, 68, 69, 73, 76, 77, 78, 
 179, 255, 257. 
 Railway Co. v. Renwick, 151. 
 Raleigh, v. Hunter, 212. > 
 
 Raleigh R Co. v, Davis, 244. 
 
 v. Wicker, 256, 273, 555. 
 Ralston v. Plowman, 232, 240. 
 Ramelli v. Irish, 237. 
 Rameshur Pershad Narain Singh v. 
 
 Koonj Behari Pattuk, 225. 
 Ramez v. Southend Local Board, 123. 
 Ramgren v. MoDermott, 90. 
 Ramsay v. Allegre, 66. 
 
 v. Chandler, 212, 233. 
 
 v. Riddle, 121. 
 Ramsdale v. Foote, 210, 264, 265, 387, 
 
 481. 
 Randall v. Christiansen, 272. 
 
 v. Latham, 569. 
 
 v. McLaughlin, 358. 
 
 v. Silverthorn, 204, 206, 216, 217, 
 319. 
 Randolph v. Bloomfield, 261. 
 
 v. Braintree, 20, 187, 188. 
 Rankin v. Wever, 280. 
 Ranlet v. Cook, 540. 
 Ranlett v. Lowell, 289. 
 Ransted v. Fahey, 96. 
 Raphael v. Thames Valley Ry. Co., 
 
 571. 
 Rapho v. Moore, 116. 
 Rarey v. Lee, 210, 271. 
 Rarick v. Smith, 544. 
 Raritan W. P. Co. v. Veghte, 323, 530. 
 Rasicot v. Little Falls Impr. Co., 90. 
 Ratata, The, 115. 
 Rath v. Zembleman, 271. 
 Rathbone v. McConnell, 489. 
 Rathbun v. Payne, 96. 
 Rathke v. Gardner, 273. 
 Rau v. Minnesota Valley R Co., 377. 
 Ravenswood v. Fleming, 62, 71. 
 Ravesis v. United States. 28. 
 Rawstron v. Taylor. 41, 204, 265, 267, 
 279, 280, 283, 290, 300, 352. 
 
 Rawstrone v. Backhouse, 186. 
 Ray v. Fletcher, 344, 599, 600, 602. 
 ,Rayburn v. Winant, 76. 
 Rayburn W. Co. v. Armstrong W. 
 
 Co., 245a. 
 Raymond v. Fish, 363. ' 
 
 v. The Ellen Stuart, 67. 
 
 v. Wimsette, 534. 
 Razzo v. Varni, 280, 281. 
 Read v. Cornelius, 511. 
 
 v. Erie Ry. Co., 304, 340. 
 
 v. Smith, 102. 
 Reading v. Althouse, 225, 249. 
 
 v. Com., 473. 
 Reardon v. St. Louis Co., 363. 
 Rebekah, The, 36. 
 Rechel v. Sweet, 243. 
 Reclamation District v. Evans, 244 
 
 v. Hagar, 241, 244 
 
 v. Kennedy, 47. 
 
 v. Turner, 247. 
 Reddall v. Bryan, 523. 
 Redman v. Forman, 281, 542. 
 Red River Roller Mills v. Wright, 208,. 
 
 220, 299. 
 Reece v. Miller, 44. 
 Reed v. Cheney, 268. 
 
 v. Earnhart, 335. 
 
 v. Eldredge, 30. 
 
 v. Erie, 117, 244 
 
 v. Rich, 349. 
 
 v. Spicer, 231, 234 
 
 v. State, 296. 
 
 v. Wright, 68. 
 Reed's Petition, 300. 
 Reedy v. Smith, 323. 
 Reelfoot L. L. District v. Dawson r 
 
 247. 
 Rees v. Chicago, 105. 
 
 v. McDaniel, 155. 
 Reeves v. Wood County, 241. 
 Reichert v. Backenstross, 210. 
 Reg. See Rex. 
 Reid v. Atlanta, 223. 
 
 v. Gifford, 121, 506, 527, 534 
 
 v. Langford, 194. 
 
 v. Reid, 280. 
 Reighard v. Flinn, 104, 157. 
 Reimer v. Stuber, 331. 
 Reimold v. Moore, 99, 103. 
 Reinhardt v. Mentasti, 296. 
 Reinhart v. Sutton, 273. 
 Reitenbaught;. Chester Valley R. Co., 
 
 249. 
 Remf ry v. Surveyor General of Natal, 
 
 36, 241. 
 Remington v. Foster, 121. 
 Remy v. Municipality No. 2, 157. 
 Reney v. Kirkcudbright, 96. 
 Reno Smelting Works v. Stevenson, 
 
 228. 
 Reno Water Co. v. Leete, 299, 323. 
 Renwick v. D. & N. W. R. Co., 64, 72,. 
 151. 
 
lxxxviii 
 
 OASES CITED. 
 
 Eenwick v. Morris, 121, 128, 134, 533, 
 
 584 
 Repair of Bridges. 114. 
 Eerick v. Kern, 323, 578. 
 Eespublica v. Caldwell, 95. 
 
 v. Davidson, 66. 
 Eesser v. Davis, 271. 
 Eeusch v, C, B. & Q. E. Co., 241. 
 Eevell v. People, 21, 82a, 155, 167, 179. 
 Ee venue Cutter No. 1. 67. 
 Eex or Eeg. v. Aire Navigation, 101. 
 
 v. Allen, 1. 
 
 v. Anderson. 1. 
 
 v. Archbishop of York, 101. 
 
 v. Baker, 91, 161. 
 
 v. Barrow, 81. 
 
 v. Berwick As. Committee, 115. 
 
 v. Betts, 18, 21, 93, 94, 121, 134 
 
 v. Bjornsen, 1. 
 
 v. Bradford Nav. Co., 223. 
 
 v. Brecon, 115. 
 
 v. Brewster, 219, 532. 
 
 v. Bristol Dock Co., 21, 248. , 
 
 v. Bruce, 5, 284 
 
 v. Bucknall, 115. 
 
 v. Buffalo & Lake Huron Ey. Co., 
 150. 
 
 v. Cambrian Ey. Co., 193. 
 
 v. Carleton, 166. 
 
 v. Carr, 11. 
 
 v. Carrodice, 1. 
 
 v. Charlesworth, 94. 
 
 v. Chorley, 349, 351. 
 
 V. City Court, 5. 
 
 v. Clark, 21, 91. 
 
 v. Clinton, 25. 
 
 ■o. Cluworth, 99. 
 
 v. Coke, 141. 
 
 v. Com'rs, 115. 
 
 v. Com'rs of Sewers, 160, 161, 472. 
 
 v. Coombes, 11. 
 
 v. Cross, 95, 121. 
 
 v. Crunden, 26. 
 
 v. Cubitt, 4. 
 
 v. Cunningham, 4, 5. 
 
 v. Darlington Board of Health, 
 250, 473. 
 
 v. Davenport, 35. 
 
 v. Derbyshire, 41, 115. 
 
 v. Devonshire, 115. 
 
 v. Douglas, 43. 
 
 v. Dowling, 145. 
 
 v. Durham, 141. 
 
 v. Ecclesfield, 115. 
 
 v. Ellis, 6, 183. 
 
 v. Ely, 115. 
 
 v. Essex, 124, 252. 
 
 v. Forty-nine Casks of Brandy, 4, 
 6, 11, 13, 192. 
 
 v. Gee, 14. 
 
 v. Gloucestershire, 115. 
 
 v. Great Northern Ey. Co., 193. 
 
 v. Grosvenor, 21, 94, 121. 
 
 v. Hastings, 41. 
 
 Eex or Eeg. v. Hendon, 115. 
 
 v. Hide, 91. 
 
 v. Inspectors, 185. 
 
 v. Jameson, 30. 
 
 v. Johnson, 56. 
 
 v. Jones, 141. 
 
 v. Justices, 25, 185. 
 
 v. Kent, 115, 143. 
 
 v. Kerrison, 115. 
 
 v. Keyn, 1, 3, 4, 5, 7, 9, 10, 11, 12, 
 13, 15, 16, 27, 49, 64, 148. 
 
 v. Landulph, 14, 202. 
 
 v. Leake, 101. 
 
 v. Leigh, 161. 
 
 v. Lesley, 1. 
 
 v. Lewis, 11. 
 
 v. Lincoln, 115. 
 
 v. Lindsey, 115, 143. 
 
 v. Liverpool, 121. 
 
 v. London, 91, 141. 
 
 v. Lord, 25, 56, 189. 
 
 v. McCormick, 22, 166. 
 
 v. Medley, 219. 
 
 v. Mersey Navigation, 101. 
 
 v. Met'n Board of Public Works, 
 41, 284. 
 
 v. Montague, 21, 22, 43, 53, 121, 
 
 189. 
 v. Moore, 11. 
 v. Morris, 94, 121. 
 v. Musson. 4, 14, 202. 
 v. Newport, 14 
 v. North Midland Railway, 208, 
 
 494. 
 v. Old Alresford, 183, 185, 471. 
 v. Oswestry, 115. 
 v. Oxfordshire, 41, 115. 
 v. Pagham, 91, 143, 160, 248. 
 v. Paul, 161. 
 v. Pedly, 113, 391. 
 v. Property Derelict, 192. 
 v. Eandall, 21, 94, 121. 
 v. Eebowe, 141. 
 v. Eobertson, 46, 56, 189, 256. 
 V. Eobinson, 121. 
 v. Eussell, 21, 26, 94 121, 124 
 v. Eynd, 150. 
 
 v. St. George the Martyr, South- 
 walk, 474 
 v. St. Matthew Vestry, 41. 
 v. Salisbury, 142. 
 v. Sattler, 1. 
 v. Serva, 11. 
 
 v. Severn Nav. Co., 101. 
 v. Sharpe, 67. 
 v. Smith, 4, 44, 50, 91. 
 v. Soleguard, 5. 
 v. Somerset, 115. 
 v. Southampton, 115. 
 v. Staines Local Board, 223. 
 v. Steer, 183. 
 
 v. Strand Board of Works, 202. 
 v. Stratford-on-Avon, 115. 
 v. Surrey, 115. 
 
OASES CITED. 
 
 lxxxix 
 
 ■Rex or Reg. v. Sutton, 37. 
 
 v. Thomas, 101. 
 
 v. Tindal, 92, 94, 121. 
 
 v. Tippett, 346. 
 
 v. Trafford, 41, 115, 160, 204, 211c, 
 264, 499. 
 
 v. Trinity House, 42, 50. 
 
 v. Two Casks of Tallow, 4, 192. 
 
 v. Tynemouth, 141. 
 
 v. Ward, 18, 20, 21, 94, 121. 
 
 u Warde, 609. 
 
 v. Wardroper, 330. 
 
 v. Watts, 98. 
 
 v. Westham, 21, 91. 
 
 ». West Riding, 115. 
 
 17. Wharton, 46, 50, 151, 212, 364 
 
 v. Whitney, 41, 115. ' 
 
 v. Williams, 115. 
 
 17. Wilts, 115. 
 
 i>. Yarborough, 6, 18, 47, 49, 76, 
 155, 158. 
 
 17. Yorkshire, 115. 
 Rexford 17. Knight, 244 
 Reynold v. Edward, 335. 
 Reynolds 17. Chandler River Co., 210, 
 211a. 
 
 17. Clarke. 123, 210, 293, 369. 
 
 17. Com., 83. 
 
 17. Cox, 325. 
 
 v. Favorite, The, 33. 
 
 t>. Holland, 13. 
 
 17. Hosmer, 234. 
 
 v. MoArthur, 264 
 
 v. Milk Grove D. District, 241. 
 
 «7. People, 40. 
 
 17. Swain, 30. 
 
 17. United States, 40. 
 Reysen 17. Roate, 191. 
 Rhea 17. Newport News, etc. R. Co., 
 
 129, 135. 
 Rhines v. Clark, 126, 592. 
 Rhoades u Raymer, 156. 
 Rhode Island, The, 89. 
 Rhodes v. Otis, 53, 54, 74, 109, 112, 140, 
 3^2 
 
 17. Whitehead, 76, 204, 205, 206, 
 209, 212, 532, 533. 
 Rialto Irr. District 17. Brandon, 241. 
 Ribble Nav. Co. u Hargreaves, 141. 
 Ribordy 17. Murray, 241, 268. 
 
 17. Pellachoud, 279. 
 Ricard v. Williams, 329, 331. 
 Rice u Flint. 272. 
 
 17. Railroad Co., 36. 
 
 17. Ruddiman, 75, 76, 79, 82a, 150, 
 163, £03. 
 
 17. United States. 36. 
 Rich 17. Brantford, 527. 
 
 17. Keshena Impr. Co., 298, 589. 
 Richard's Appeal, 220. 
 Richard v. Hupp, 238. 
 Richards 17. Bennett, 141. 
 
 v. Fuqua, 193. 
 
 17. Gauffret, 196, 300. 
 
 g 
 
 Richards v. Hill, 486. 
 v. Hoome, 61, 609. 
 17. Koenig, 320. 
 17. Peter, 218. 
 17. Stark County, 145. 
 Richardson 17. Bigelow, 305. 
 v. Boston, 124, 149, 269. 
 17. Curtis, 599. 
 u Emerson. 222, 365. 
 17. Eureka, 210. 
 17. Gray, 189. 
 17. Kier, 222, 232. 
 17. Levee Com'rs, 247. 
 17. Locklin, 427. 
 v. Louisville & N. R Co., 177. 
 17. Prentiss, 194, 196. 
 17. Sullivan, 177. 
 17. United States, 178. 
 Richart 17. Scott, 214 
 Riche 17. Bar Harbor Water Co., 241, 
 
 244. 
 Richison 17. Mead, 280. 
 Riohman 17. Muscatine County, 247. 
 
 17. Supervisors, 145, 241, 244. 
 Richmond v. Dubuque R. Co., 132, 
 507, 524 
 17. Long, 116. 
 u Test, 261. 
 Richmond Manuf. Co. w Atlantic De- 
 laine Co., 219, 544. 
 Richmond, etc. R. Co. 17. Louisa R. Co., 
 145. 
 17. Rogers, 145. 
 Richwine 17. Jones, 194. 
 Ricket 17. Met'n Ry. Co., 150, 251. 
 Riddle 17. Delaware County, 210. 
 17. Locks & Canals, 114, 115, 116, 
 144 
 Rider 17. Amsterdam, 223. 
 17. New York R. Co., 258. 
 17. Thompson, 162. 
 Ridge u Midland Railway, 160, 220. 
 Ridgely u Johnson, 58, 155, 166, 196. 
 Ridgway 17. Ludlow, 71, 78, 85, 148, 
 
 155, 333. 
 Ridgway Light Co. v. Elk County, 
 
 241. 
 Ridley v. Seaboard & R. R. Co., 210, 
 
 211a, 256, 353. 
 Rigg 17. Hancock, 210, 524 
 Rigley u Chicago, 255. 
 Rigney 17. Tacoma L. & W. Co., 205, 
 
 264, 349. 
 Ring 17. Pugsley, 330, 341. 
 
 17. Walker, 299. 
 Rio Grande Land Co. v. Prairie Ditch 
 
 Co., 228. 
 Rio Grande W. Ry. Co. 17. Telluride 
 
 P. & T. Co., 240. 
 Ripka 17. Sergeant, 214, 376, 379, 380, 
 
 405. 
 Ripley 17. Great Northern Ry. Co., 
 211b, 252. 
 17. Knight, 25, 29. 
 
xo 
 
 OASES CITED. 
 
 Eipon v. Hobart, 121, 506, 507, 512, 
 
 514, 517, 520, 524, 557. 
 Eippe v. Chicago R. Co., 179, 181. 
 Eisien v. Brown, 300, 323. 
 Eisley v. Farwell, 143. 
 Ritchie v. Drain, 570. 
 Ritger v. Parker, 313, 314, 329. 
 Rival, The, 96. 
 Eivas v. Solary, 177. 
 Eiver Mersey, The, 98. ' 
 River Ribble Joint Committee v. 
 
 Halliwell. 219. 
 Riverdale Park Co. v. Westcott, 305. 
 Rivers v. Adams, 24. 
 
 v. Burbank, 244. 
 Riverside Lan d & Ir. Co. v. Jansen, 549. 
 Riverside Park Extension, In re, 175. 
 Riverside W. Co. v. Gage, 230. 
 Riverton v. McKeesport Bridge Co., 
 
 135. 
 River Wears Com'rs v. Adamson, 96, 
 
 161, 297. 
 Rix v. Johnson, 160, 196, 197. 
 Roach v. Damron, 426. 
 Eoath v. Driscoll, 227, 280, 290, 542. 
 Robb v. La Grange, 525. 
 Eobbins v. Jones, 391. 
 
 v. Milwaukee R. Co., 252. 
 
 v. Webb, 302. 
 
 v. Willmar, 260. 
 Roberts v. Arthur, 543. 
 
 v. Baumgarten, 22, 57. 
 
 v. Brooks, 155, 171. 
 
 v. Cunningham, 60. 
 
 v. Gwyrfai Rural Council, 204, 
 245. 
 
 v. Harrison, 278, 363. 
 
 v. Holland, 382. 
 
 v. Richards. 162, 205, 225. 
 
 v. Roberts, 328, 360. 
 
 v. Rose, 128, 364, 491. 
 
 v. Rust, 85. 
 
 v. Skoiaeld, 67. 
 
 v. Smith, 241. 
 Robertson v. Com., 35. 
 
 v. Johnson. 190. 
 
 v. Miller, 206, 583. 
 
 v. Smith, 240. 
 
 v. Steadman, 46, 182. 
 
 17. Wilder, 119. 
 
 v. Wood worth, 211b. 
 Eobeson v. Hornbaker, 194 
 Robin, The, 114. 
 Robins v. Ackerly, 31. 36, 188, 189. 
 
 v. Barnes, 314, 356. 
 
 v. Warwick, 101. 
 Robinson v. Baugh, 121. 
 
 v. Black Diamond Coal Co., 220, 
 232, 233. 
 
 v. Byron, 295, 534, 552. 
 
 v. Chamberlain, 114. 
 
 v. Davis, 85. 
 
 v. Imperial Silver Mining Co., 
 230, 235, 304. 
 
 Robinson v. N. Y. & Erie E. E Co., 
 256, 582. 
 
 17. Shanks, 211a, 213. 
 
 v. Wareham, 188. _ 
 
 v. West Pennsylvania R. Co., 241. 
 
 v. White. 97, 203. 
 Robson v. Robinson, 21, 91. 
 
 v. The Kate, 59. 
 Rochdale Canal Co. v. King, 403, 512, 
 520, 527, 530, 534. 
 
 v. Radoliffe, 214, 223, 225, 264, 331, 
 491. 
 Rochester, In re, 200. 
 Eochester v. Curtiss, 121. 
 
 v. Erickson, 121, 512, 513, 532, 533. 
 
 v. Osborn, 117. 
 
 v. Eust, 245. 
 
 v. Simpson, 363. 
 
 v. White Lead Co., 261. 
 Eochester & G. H. R. Co., Be, 241. 
 Eochester Water Com'rs, Matter of, 
 
 255. 
 Eochett v. Chicago Ry. Co., 124 
 Rockford E. Co. v. McKinley, 252, 273, 
 Eock Island Bridge, The, 33, 67. 
 Rock Island County i>. Sage, 77. 
 Rock Island & P. Ry. Co. v. Krapp, 
 
 225. 
 Rockland v. Rockland W. Co., 511. 
 Rockland Water Co. v. Tillson, 368, 
 
 390, 416. 
 Rock Manuf. Co. v. Hough, 218. 
 Rockport v. Webster, 191, 245. 
 Rockwell v. Baldwin, 69, 200. 
 
 v. Graham, 238. 
 
 v. Highland Ditch Co., 318. 
 
 v. Langley. 505. 
 Rockwood v. Wilson, 225, 267. 
 Rodgers v. Pitt, 233, 564 
 Roe u Strong. 28, 36, 37. 
 Roeder v. Stein, 231. 
 Roemer v. Conlon, 326. 
 Rogers, Ex parte, 57. 
 Rogers v. Allen, 23, 189. 
 
 v. Bancroft, 320, 329. 
 
 v. Barker, 212. 
 
 v. Bemis, 327. 
 
 v. Brenton, 24. 
 
 v. Bruce, 334, 343. 
 
 v. Canal River B. Co., 349. 
 
 v. Central Pac. E Co., 298. 
 
 v. Cincinnati, 34. 
 
 v. Coal River Boom Co., 90, 210- 
 
 v. Cooney, 239. 
 
 v. Jones, 21, 32. 183, 189, 195. 
 
 v. Judd, 102, 192. 
 
 v. Kennebeck R. Co., 132, 248. 
 
 v. Mabe, 197, 329. 
 
 v. Page, 329. 
 
 v. Peck, 105. 
 
 v. Prattsville Manuf. Co., 305. 
 
 v. Rogers, 128. 
 
 v. Soggs, 233. 
 Rohn v. Harris, 193, 315. 
 
OASES CITED. 
 
 XC1 
 
 Rolf v. Rolf, 373, 394 
 Roll v. Augusta, 269, 270. 
 
 v. Harrington, 156. 
 Rolle v. Whyte, 21, 187. 
 Rollins v. Breed, 190. 
 
 v. Clay, 144. 
 Roman v. Strauss, 121. 
 Rominger v. Squires, 231, 238. 
 Romney Marsh v. Trinity House, 89. 
 Ronayne v. Loranger, 210. 
 Rondell v. Fay, 27, 28, 174. 
 Ronnow v. Delmue, 206, 230. 
 Rood v. Johnson, 160, 206, 299, 320. 
 
 v. Wallace, 85. 
 Rooke's Case, 161. 
 Rooker v. Perkins, 211, 212, 329, 587, 
 
 594. 
 Roosevelt v. Frost, 175. 
 Root v. Com., 193, 338. 
 
 v. Wadhams, 324, 354- 
 Roper v. McWhorter, 144. 
 Rorke v. Dayrell, 20. 
 Rosamund v. Forgie, 521. 
 Rosborough v. Piston, 177. 
 Rose v. Belyea, 42. 
 
 v. Groves. 123, 124, 404 
 
 v. Miles, 20, 21, 126. 
 
 v. St. Charles, 260. 
 Roseburg v. Abraham, 122. 
 Rosenthal v. Taylor, etc. Ry. Co., 259, 
 
 364. 
 Rosewell v. Prior, 113, 388, 389. 
 Rosina, The, 138. 
 Ross v. Clinton, 270. 
 
 v. Davis, 241. 
 
 v. Faust, 46, 68, 71, 76, 78, 93a, 
 112. 
 
 v. Fedden, 296. 
 
 v. Horsey, 415, 623. 
 
 v. Maokeney, 266. 
 
 v. Maokey, 160. 
 
 v. New York, 175. 
 
 v. Rugge Price, 250. 
 Rosser v. Randolph, 121, 611. 
 Rossiter v. Chester, 66. 
 Roth v. Roth, 1. 
 
 Rothery v. N. Y. Rubber Go., 210. 
 Rothes v. Kircaldy, 296. 
 
 v. Kircaldy W. W. Com'rs, 244 
 Roundtree v. Brantley, 335, 345. 
 
 v. Galveston, 118. 
 Rouse v. Hampton, 246, 247. 
 Roush v. Walter, 98, 110, 136, 211c. 
 Rowan v. Johnson, 122. 
 
 v. Portland. 105, 148. 
 Rowe v. Granite Bridge Co., 42. 43, 
 86, 108, 109, 111, 121, 152, 256, 
 547. 
 
 v. Luddington, 140, 148, 190. 
 
 v. Portsmouth, 116, 261. 
 
 v. Smith, 4, 16, 188, 198, 202. 
 
 v. St. Paul Ry. Co., 265, 273. 
 
 v. Titus, 54, 108, 210, 547. 
 Rowell v. Doyle, 84, 191. 
 
 Rowland v. Charmichael, 161. 
 Royal Fishery of the Banne, 3, 4, 7, 
 19, 23, 27, 31, 36, 158, 182, 183, 
 189. 
 Rozell v. Anderson, 262, 270. 
 Rubottom v. McClure, 241. 
 Ruch v. New Orleans, 205. 
 Ruck v. Williams, 115. 
 Ruckman v. Green, 438. 
 Rudd v. Williams, 206, 227, 330. 
 Ruddiman v. A Scow Platform, 120. 
 Rudel v. Los Angeles County, 271, 
 
 274 „ 
 
 Rudolph v. Penn. S. V. R. Co., 220, 
 
 252. 
 Ruge v. Ajpalachicola Oyster Co., 36, 
 
 j 137, 177. 
 Ruggles v. Lesure, 324 
 Rumsey v. New York & N. E. R. Co., 
 
 82, 83, 151. 
 Rundle v. Delaware Canal Co., 58, 65, 
 
 171, 246, 439, 445, 591. 
 Rung v. Shoneberger, 128. 
 Runion v. Alley, 196. 
 Runnels v. Bullen, 215, 328. 
 Rupley v. Welch, 233. 
 Rush v. Jackson, 140, 165. 
 Rushton v. Martin, 614 
 Russell u.Asa R. Swift, The, 120. 
 
 v. Brawn, 424. 
 
 v. Burlington, 123, 269, 272. 
 
 v. Empire State, The, 118, 120. 
 
 v. Hanford, 476. 
 
 v. Jackson, 362. 
 
 v. Men of Devon, 116. 
 
 v. Page, 590. 
 
 v. Russell, 185. 189. 
 
 v. Scott, 300, 312. 342, 343. 
 
 v. Shenton, 391, 476. 
 
 v. Stocking, 185. 
 
 v. Turnpike Co., 147. 
 
 v. Watts, 354, 358. 
 Russell & Handford's Case, 381, 476. 
 Rust v. Boston Mill Corp., 23, 37, 162, 
 164, 169, 199. 
 
 v. Low, 331. 
 
 v. Victoria G. Dock Co., 211c, 
 376. 
 Rutherford's Case, 241. 
 Rutherford v. Holley, 272. 
 
 v. Maynes, 247. 
 Rutland v. Bowler, 204, 214, 226, 476. 
 Rutz v. Kehn, 156. 
 
 v. St. Louis, 132, 248a. 
 
 v. Seeger, 155. 
 Ryan v. Brown, 75, 108, 143, 167, 179. 
 
 v. Miss. Valley R. Co., 273. 
 Rychlicki v. St. Louis, 271, 272. 
 Ryers, In re, 241, 244. 
 Ryerson v. Brown, 227, 253, 580, 61'8. 
 
 v. Utlev, 143. 
 Rylands v. Fletcher, 288, 294, 395, 29& 
 Rynd v. Rynd Farm Oil Co., 291. 
 Ryppon v. Bowles, 387. 
 
xcn 
 
 OASES CITED. 
 
 S. 
 
 Sabine v. Johnson, 211c, 305, 343, 344, 
 
 454, 595, 597, 599. 
 Sabine Ry. Co. v. Broussard, 273. 
 
 v. Hadnot, 258. 
 
 v. Joaohimi, 211. 
 
 v. Johnson, 211. 
 
 v. Smith, 211a. 
 
 v. Wood, 257. 
 Sackrider v. Beers, 210, 218, 374 
 Sacramento v. Central Pac. R. Co., 
 206. 
 
 v. Confidence, 118. 
 
 v. New World, 118. 
 Saddler v. Lee, 281. 
 Sadler v. Great W. Ry. Co., 222. 
 
 v. Langham, 253, 254. ." 
 SaflFord v. Gaysville Manuf. Co.,«807. 
 Sage v. New York, 36, 151, 175.- "" 
 Sainsbury v. Jones, 572. t 
 
 Saint v. Guerrerio, 229. 
 St. Anthony Falls W. P. Go. V. East- 
 man, 298. 
 
 v. Minneapolis, 318. 
 
 v. Morrison, 121. 
 
 v. St. Paul Water Com'rs, 76, 84, 
 111, 205, 255. 
 St. Clair v. Lovingston, 39, 76, 155, 
 
 194, 197. 
 St. Cloud W. P. Co. v. Miss. River 
 
 Boom Co., 90. 
 St. Croix Land Co. v. Ritchie, 342. 
 St. Helena Water Co. v. Forbes, 241. 
 St. Helens Chemical Co. v. St. Hel- 
 ens, 219. 
 St. John v. Brown, 533. 
 
 v. Smith, 302. 
 St. Joseph R. Co. v, Devereux, 73. 
 St. Joseph Valley Ry. Co. v. Galligan, 
 
 359 
 St. Lawrence, The, 67, 96. 
 St. Leonard Vestry v. Phelan, 41. 
 St. Louis v. Gurno. 270. 
 
 v. Knapp Co., 129, 512. 
 
 v. Mo. Pac. Ry. Co.. 157. 
 
 v. Myers, 68, 73, 179. 
 
 v. Rutz, 69, 155, 159, 196, 202, 248. 
 
 v. Schulenberg Lumber Co., 118. 
 
 v. Waterloo Ferry Co., 35. 
 
 v. Waterloo-Carondelet Tp. Co., 
 35. 
 St. Louis & M. V. Transp. Co. v. 
 
 United States, 87, 96. 
 St. Louis Packet Co. v. Keokuk Bridge 
 
 Co., 135, 198. 
 St. Louis Public Schools v. Ham- 
 mond, 148. 
 St. Louis, etc. R. Co. v. Anderson, 273. 
 
 v. Biggs, 210. 
 
 v. Brown, 256. 
 
 v. Capps, 273. 
 
 v. Claunch, 256. 
 
 v. Ellis, 273. 
 
 St. Louis, etc. R. Co. v. Foltz, 245a. 
 v. Harris, 256. 
 v. Meese, 114, 135. 
 v. Mollet, 252. 
 v. Morris, 256, 589. 
 v. O'Baugh, 301. 
 v. Ramsey, 76, 158. 
 v. St. Louis U. Stock- Yards Co., 
 
 251 
 v. Schneider, 263. 
 v. Thomas, 103. 
 v. Trigg, 211. 
 v. Walbrink, 248, 257. 
 v. Weaver, 498. 
 v. Winklemann, 211c. 
 v. Yarborough, 256, 353. 
 St. Louis Merchants' Bridge T. Ry. 
 
 Co. *. Pepper, 266. 
 St. Louis T. Ry. Co. v. Heiger, 251. 
 St. Louis Trust Co. v. Bambrick, 211a. 
 St. Martin's in the Fields Vestry v. 
 
 Bird, 41. 
 St. Martinsville v. The Mary Lewis, 
 
 142. 
 St. Matthew Vestry v. London School 
 
 Board, 41. 
 St. Paul v. Chicago, etc. Ry. Co.. 119. 
 St. Paul, etc. R. Co. v. Duluth, 545. 
 v. First Division R. Co., 76, 77. 
 St. Tammany Water Works Co. v. 
 New Orleans Water Works 
 Co., 146. 
 St. Vincent Orphan Asylum v. Troy, 
 
 121. 
 Salado College v. Davis, 318. 
 Salazar v. Smart, 236. 
 Sale v. Pratt, 24, 37, 169. 
 Salem Capital F. M. Co. v. Stay ton W. 
 
 D. Co., 299, 318, 511. 
 Salem Co. v. Salem F. M. Co., 540. 
 Salem Impr. Co. v. McCourt, 155, 158, 
 
 318a. 
 Salem Turnpike Co. v. Lyme, 145. 
 Salina Creek Ir. Co. v. Salina Stock 
 
 Co., 229. 
 Salisbury v. Herchenroder, 211c. 
 v. Western N. O. R. Co., 214. 
 Salisbury Mills v. Forsaith, 253, 438, 
 
 593. 
 Salmon v. Bensley, 392, 394. 
 Salmon Falls Manuf. Co. v. Ports- 
 mouth Co., 319, 575. 
 Saltash v. Goodman, 24, 184, 189, 331. 
 Saltonstall v. Long Wharf, 28, 29, 195, 
 
 199. 
 Sampson v. Bradford, 597. 
 
 v. Goochland Justices, 115. 
 
 v. Hoddinott, 204, 214, 216, 227, 
 
 404. 
 v. Smith, 121. 
 Samuels v. Blanchard, 320, 382. 
 San Antonio, etc. Ry. Co. v. Gwynn, 
 256, 260. 
 v. Horkan, 211a. 
 
OASES CITED. 
 
 XC111 
 
 San Antonio, etc. R. Co. v. Mohl, 373. 
 Sanborn v. Braley, 540. 
 
 v. Gunter, 194. 
 Sand Creek L. Ir. Co. v. Davis, 241. 
 Sanderlin v. Baxter, 535. 
 Sanders v. McCraoken, 199, 200. 
 v. Morrison, 197. 
 v. St. Louis Line, 202. 
 Sanderson v. Berwick-upon-Tweed, 
 461. 
 v. Pennsylvania Coal Co., 219, 220, 
 222, 375. 
 Sandgate Local Board v. Leney, 548. 
 Sandgate Urban Council v. Kent 
 
 County Council, 160, 161. 
 San Diego v. Granniss, 36. 
 San Diego Flume Co. v. Chase, 304 
 
 v. Souther, 233, 241. 
 San Diego Land Co. v. Jasper, 233. 
 San Diego L. & T. Co. v. Neale, 244, 
 251. 
 v. Sharp, 233. 
 San Diego W. Co. v. San Diego Flume 
 
 Co., 241. 
 Sandifer v. Foster, 197. 
 San Joaquin Valley Bank v. Dodge, 
 
 362. 
 Sands v. Gambs, 304a. 
 
 v. Manistee River Imp. Co., 68, 
 
 133, 143. 
 v. Trefuses, 214, 476. 
 Sandwich v. Great Northern Rail- 
 way, 205, 213, 214, 216. 
 Sanford v. Felt, 534 
 V. Lyon, 507. 
 v. Martin, 146. 
 v. Nyman, 326. 
 San Francisco v. Calderwood, 105, 174 
 v. Canavan, 13. 
 v. Ellis, 174 
 v. Le Roy, 28, 36. 
 v. Scott, 244. 
 v. Spring Valley "Waterworks, 
 
 241. 
 v. Straut, 138. 
 San Francisco S. Union v. Irwin, 23, 
 
 195. 
 Sanitary Com'rs v. Orfila, 113, 115. 
 Sanitary District v. Adams, 157. 
 San Joaquin, etc. Co. v. Stanislaus 
 
 County, 233. 
 San Luis W. Co. v. Estrada, 237. 
 San Pedro v. S. Pac. R. Co., 117. 
 Santa Cruz v. Enright, 245a, 338. 
 Santa Paula W. Works v. Peralta, 228. 
 Sapp v. Frazier, 155. 
 
 v. Northern Central Ry. Co., 331. 
 Sapphire, The, 96. 
 Sappington v. Little Rock R. Co., 252, 
 
 392. 
 Sarah E. Kennedy, The, 175. 
 Sarah Jane, The, 67. 
 Sargent v. Ballard, 329, 335. 
 v. Gutterson, 325, 330. 
 
 Sargent v. New Haven S. Co., 386. 
 
 v. Reed, 120, 141. 
 Sarpy v. New Orleans, 157. 
 Satterfield v. Rowan, 219. 
 Satterlee v. United States, 242. 
 Satterly v. Hallock, 89, 244 
 Saucer v. Keller, 323. 
 Saugatuck Bridge Co. v. Westport, 
 
 134 137, 139. 
 Saulet v. Shepard, 155, 157. 
 Saulter v. New York S. S. Co., 89. 
 Saunders v. Annesley, 331. 
 
 v. Bluefield W. W. Co., 205, 245a, 
 
 253 
 v. Newman, 204, 227, 327, 344 
 v. New York Cent. R. Co., 151, 
 155, 175. 
 Sauntry v. Laird-Norton Co., 143. 
 Savannah v. Cleary, 211c, 261. 
 v. Georgia, 35, 130. 
 v. Spears, 261. 
 v. State, 138. 
 Savannah & O. Canal Co. v. Sub- 
 urban, etc. Ry. Co., 509. 
 Savannah Canal Co. v. Bourquin, 210i 
 
 412, 424 
 Savannah, etc. R. Co. v. Buford, 273. 
 
 353. 
 Savannah R. Co. v. Lawton, 161. 
 
 v. Shields, 121. 
 Sawyer, In re, 242. 
 Sawyer v. Eastern Steamboat Co., 95. 
 v. Kendall, 335. 
 v. Oakman, 114. 
 Saxby v. Manchester Ry. Co., 399. 
 Saxonia, The, 4, 11, 96. 
 Sayers v. Collyer, 552, 561. 
 Saylor v. Penn. Canal Co., 126. 
 Sayre v. Newark, 545. 
 
 v. Northwestern Turnpike Road, 
 115. 
 Sayward, The, 5. 
 Schaefer v. Marthaler, 263. 
 Schall v. Nusbaum, 122. 
 Scheetz's Appeal, 553. 
 Scheetz v. Fitzwater, 302a. 
 Schenck v. Wood, 23. 
 Schenectady v. Furman, 579. 
 Schenley v. Com., 331. 
 
 v. Pittsburgh, 148, 194 
 Schermerhorn v. New York, 105, 175. 
 Scheurer v. Columbia Street Bridge 
 
 Co., 39. 
 Schieble v. Law, 211. 
 
 v. Slagle, 325. 
 Schiffer v. Eau Claire, 601. 
 Schilling v. Rominger, 229, 234. 
 Schillinger v. United States, 242. 
 Schlichter v. Phillipy, 211, 263, 275. 
 Schlosser v. Cruickshank, 72, 83, 194 
 Schmidt v. Rowse, 270. 
 Schneider v. Brown, 508. 
 v. Mo. Pac. Ry., 273, 275. 
 v. Staples, 146. 
 
XC1V 
 
 CASES CITED. 
 
 Schnitzius v. Bailey, 268, 279. 
 
 Schoch v. Foreman. 210. 
 
 Schoff v. Upper Connecticut River 
 
 Co.. 103, 210. 
 Scholle v. New York, 195. 
 School Trustees v. Schroll, 83. 
 Schools v. Eisley, 73, 78, 157. 
 Schreiber v. New York, 261. 
 
 v. New York Driving Club, 387. 
 Schriver v. Johnstown, 220. 
 Schroeder v. Baraboo, 261. 
 Schrope v. Pioneer Tp., 266. 
 Schuffletown Fence Co. v. McAllister, 
 
 244. 
 Schulte v. North Pacific Transp. Co., 
 123. 
 . Schulz v. Sweeny, 238, 239. 
 v. Tessman, 280. 
 v. Winter, 121. 
 Schurrneir v. St. Paul R Co., 68, 76, 
 
 78, 149. 
 Schuster v. Albrecht, 271. 
 Schuylkill Nav. Co. v. Freedley, 143. 
 v. McDonough, 115, 220, 589. 
 v. Moore, 304. 
 v. Stoever, 333. 
 Schuylkill River R Co. v. Kersey, 
 
 252 
 Schwab v. Beam, 234, 237, 240. 
 
 v. Cleveland, 293. 
 Schwan, The, 96. 
 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. Michael, 305. 
 v. Napier, 79. 
 v. Provo City, 262. 
 v. Shepard, 369. 
 v. Toomey, 238, 240. 
 v. Wilson, 35, 53, 56, 108, 192, 193. 
 io. Young America, The, 33, 67. 
 Scow No. 15, 120. 
 Scranton, The E. C, 96. 
 Scratton v. Brown, 4, 6, 18, 21, 22, 28, 
 158, 189. 
 v. Wheeler, 76, 90, 172. 
 Scriver v. Smith, 303, 461. 
 Scroggie v. G-uelph, 261. 
 Scudder v. Trenton Falls Co., 21, 121, 
 
 253, 508, 510, 534. 
 Scull v. Pruden, 194 
 Scurry v. Jones, 177. 
 Seabolt v. Com'rs, 241. 
 Seabrook v. King, 104. 
 
 v. Raft, 96. 
 Seal v. Donnelly, 193. 
 Seaman v. Lee, 185, 219, 544 
 v. Marshall, 261. 
 
 Seaman v. New York, 113, 114, 116, 
 
 118. 
 Seamen v. Smith, 27, 203. 
 Searing v. Saratoga Springs, 349. 
 Sears v. Street Com'rs. 118. 
 
 v. Warren Co., 130. 
 Seattle & M. Ry. Co. v. Carraher, 177. 
 
 v. State, 157, 177. 
 Seavey *. Jones, 305. 
 Secombe v. Railroad Co., 242. 
 Secretary of the Treasury, In re, 242. 
 Sedalia Brewing Co. v. Sedalia W. 
 
 W. Co., 511. 
 Seebkristo v. East India Co., 21, 155. 
 Seeley v. Bishop, 121, 123, 306, 314 
 v. Bridges, 313, 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, 22o, 357. 
 Seidensparger v. Spear, 300, 322, 353, 
 
 599, 602. 
 Seifert v. Brooklyn, 260, 261. 
 Seigbert v. Stiles, 112. 
 Selby v. Levee Conirs, 247. 
 
 v. Robinson, 24. 
 Selden v. Delaware Canal Co., 296, 
 
 323, 582, 588. 
 Self v. Dunn, 193. 
 Sellers v. Texas Cent. Ry.' Co., 256. 
 
 v. Union Lumbering Co., 108, 143. 
 Sellick v. Hall, 222, 278. 389, 397. 
 Selma R Co. v. Keith, 256, 589. 
 Selman v. Wolfe, 54, 128, 133, 135, 140. 
 Selsby Manuf. Co. v. State, 210. 
 Senate Resolution, Re, 234 
 Seneca Nation v. Knight, 46, 197, 200. 
 Seneca Woollen Mills v. Tillman, 506, 
 
 507, 534, 539. 
 Senior v. Anderson, 229. 
 Sentman v. Baltimore & O. R Co., 
 
 273. 
 Sentner v. Tees, 277. 
 Sessions v. Crunkilton, 241. 
 Settlers' Ditch Co. v. Hayes, 228. 
 Severy v. Central Pacific R Co., 123. 
 
 v. Nickerson, 113. 
 Seveys Case, 105. 
 Sewall & Day Cordage Co. v. Boston 
 
 Water Power Co., 155, 169. 
 Sewell's Fall Bridge v. Fisk, 108, 110, 
 
 135. 
 Seymour v. Carpenter, 596, 601. 
 v, Carter, 300, 599. 
 v. Courtenay, 183. 
 v. Creswell, 290. 
 v. Cummins, 261. 
 v. Lewis, 299, 356, 361. 
 v. Sage, 313. 
 Shaber v. St. Paul Water Co., 302, 
 
 447. 
 Shackleford v. Coffee, 254, 610. 
 Shadwell v. Hutchinson, 378, 380. 
 
OASES CITED. 
 
 XCV 
 
 Shady Side, The, 120. 
 
 Shafer v. Stonebraker, 310. 
 
 Shaffer v. Lee, 466. 
 
 Shahan v. Ala. Gt. So. R. Co., 273. 
 
 Shamleffer v. Peerless Mill Co., 204, 
 
 215. 
 Shand v. Gage, 144. 
 
 v. Triplett, 59. 194. 
 Shane v. Kansas R Co.; 273, 275. 
 Shanklin v. Evansville, 255. 
 Shannon v. State, 210. 
 
 v. Wisconsin, 252, 255. 
 Sharon Railway's" Appeal, 255. 
 Sharp v. Hoffman, 217. 
 
 v. Parker, 328. 
 
 v. Waterhouse, 300, 302, 447. 
 Sharpe v. Levert, 266. 
 
 v. Soheibel, 271. 
 Sharpless v. Philadelphia, 143. 
 Shaubut v. St. Paul R Co., 122. 
 Shaugnessey v. Leary, 342. 
 Shaver v. Eldred, 136. 137. 
 Shaw v. Crawford, 53, 57, 108, 111, 
 121, 187. 
 
 v. Cummiskey, 208, 213. 
 
 v. Etheridge, 210, 356, 360, 412. 
 
 v. Oswego Iron Co., 107, 108. 
 
 v. Stenton, 295. 
 
 v. Susquehanna Boom Co., 179, 
 211o. 
 
 v. "Wells, 579. 594 
 Shawneetown v. Mason, 272. 
 Shearer v. Middleton, 342. 
 Shears v. Wood, 218, 482. 
 Sheboygan v. Sheboygan R Co., 103, 
 
 507. 
 Shed v. Hawthorn, 121, 125. 
 
 v. Leslie, 320. 
 Sheehan v. Flynn, 271. 
 Sheehy v. Kansas City Cable Ry. Co., 
 
 243. 
 Sheets v. Selden. 304a, 328, 468. 
 Sheffield v. Collier, 323. 
 Sheffield Waterworks v. Yeomans, 
 
 567. 
 Shelby v. Chicago, etc. R Co., 312. 
 Shelbyville Turnpike Co. v. Green, 
 
 160. 
 Sheldon v. Cole, 266. 
 
 v. New Orleans Canal Co., 142. 
 
 v. Rockwell, 210, 349, 530. 
 
 v. Sherman, 90, 98, 102, 192. 
 Shelfer v. London El. L. Co., 552. 
 Shelling v. Farmer, 426. 
 Shelton v. Maupin, 73, 76, 194. 
 Shenandoah M. Co. v. Morgan, 228. 
 Shepard v. Gates, 133. 
 
 v. Gosnold, 4. 
 
 v. Leverson, 189. 
 
 v. People, 556. 
 Shepardson v. Perkins, 225, 340. 
 Shephard v. Barnett, 127. 
 Shepherd v. Com., 65. 
 
 v. Lincoln, 115. 
 
 Shepherd v. Nave, 194. 
 
 v. Third Municipality, 117. 
 
 v. Willis, 495. 
 Sheridan v. Salem, 262. 
 Sherlock v. Ailing, 1, 5, 34, 35, 71, 134. 
 
 v. Bainbridge, 71, 76, 95, 96, 99, 
 140, 179. 
 Sherman v. Fall River Iron Works, 
 219, 222, 288. 
 
 v. Sherman, 138. 
 
 v. Simpson, 194. 
 
 v. Tobey, 123. 
 Sherry v. Frecking, 373. 
 Sherwood v. Burr, 329, 330. 
 
 v. Com'r, 82. 
 
 v. Judge, 261. 
 
 v. Vliet, 329, 532. 
 Sherzer v. Buckholz, 280. 
 Sheuber v. Held, 329. 
 Shey v. McHeffey, 155. 
 Sheyenne Island, Case of, 158. 
 Shields v. Arndt, 41, 263, 348, 508, 513, 
 532, 534. 
 
 v. The Mayor, 96. 
 
 - v. Orr E. D. Co., 510. 
 
 Shindlebeck v. Moon, 113. 
 
 Shinkle v. Covington, 116. 
 
 Shipley v. Caples, 125. 
 
 v. Fifty Associates, 293, 39L 
 Shipp v. Miller, 194. 
 Shirley v. Benicia, 150. 
 
 v. Bishop, 148. 
 
 v. Crabb, 300. 
 
 v. The Richmond, 96. 
 Shively v. Bowlby, 39. 40, 58, 82, 151, 
 169, 177, 178. 
 
 v. Hume, 41, 281, 330. 
 
 v. Pennoyer. 177. 
 
 v. Welch, 39, 177. 
 Schnurr v. Huntington County 
 
 Com'rs, 261. 
 Shoebottom v. Egerton, 115. 
 Shoemaker v. Hatch, 76, 77, 240. 
 
 v. State, 189. 
 
 v. United States, 242. 
 Shook v. Colohan, 205. 
 Shore v. Miller, 199. 
 Short v. Baltimore City Passenger 
 Ry. Co., 296. 
 
 v. Woodward, 300, 322, 344, 599. 
 Shorter v. Smith, 145, 146. 
 Shortridge v. Lampleigh, 424. 
 Shotwell v. Dodge, 214, 231. 
 Shreve v. Voorhees, 204, 329, 334, 509, 
 
 512, 534. 
 Shreveport v. Red River Line, 118. 
 Shreves v. Liveson, 190. 
 Shrewsbury v. Brown, 211c, 329, 342. 
 
 v. Smith, 298. 
 
 Shrewsbury & Chester Ry. Co. v. 
 
 Shrewsbury & Birmingham 
 
 Ry. Co., 507. 
 
 Shrunk v. Schuylkill Nav. Co., 65, 99, 
 
 100, 143, 173, 182, 187, 246, 249. 
 
SCY1 
 
 CASES CITED. 
 
 Shubrook v. Tufnell, 306. 
 Shufeldt v. Spaulding, 85, 194 
 Shumway v. Simons, 329. 
 Shury v. Piggot. 204. 
 Shuter v. City, 288. 
 Shuttleworth v. Le Feming, 299. 
 Sibley v. Ellis, 338. 
 
 v. Hoar, 320. 
 Side Booms v. Weld, 144 
 Sidelinger v. Hagar, 596. 
 Sidney v. Lord Com'rs, 27. 
 Sidwell v. Greig, 100, 299. 
 Sieber v. Frink, 236, 237. 
 Sierra Union W. Co. v. Baker, 234 
 Sigler v. State. 54, 60, 110. 
 Silliman v. Hudson River Bridge 
 Co., 34, 35, 132, 134. 
 
 v. Lewis, 96. 
 
 v. Troy Bridge Co.. 35, 130, 182. 
 Silsby Manuf. Co. v. State, 92. 
 Silva v. Spangler, 122. 
 Silver v. Conn. River Lumber Co., 
 110. 
 
 v. Mo. Pac. Ry. Co., 135. 
 
 v. Tobin, 120. 
 Silver Creek Co. v. Hayes, 230. 
 
 v. Mangum, 211a. 
 Silver Peak Mines v. Valoalda, 240. 
 Silver Spring Co. v. Wanskuck Co., 
 
 544. 
 Siman v. Rhodes, 110, 112, 620. 
 Simmer v. St. Paul, 261. 
 Simmons v. Baker, 194 
 
 v. Brown, 211b. 
 
 v. Cloonan, 305, 360. 
 
 v. Cornell, 121. 
 
 v. Lillystone, 123, 426, 427, 430. 
 
 v. Mumford, 138, 139. 
 
 v. Paterson, 223. 
 
 v. Winters, 229, 263, 305. 
 Simon v. Atlanta, 94. 
 Simonds v. Haithoook, 519. 
 
 v. Pollard, 292, 373. 
 Simons v. French, 32, 170. 
 Simonton v. Loring, 296. 
 Simpson's Appeal, 35. 
 Simpson v. Blaisdell, 318a. 
 
 v. Godmanohester, 224 225, 329, 
 330, 366. 
 
 v. Hand, 96. 
 
 v. Keokuk, 211a, 269, 272. 
 
 v. Neill, 65, 173. 
 
 v. Savage, 376. 
 
 v. Seavey, 86, 92. 121, 222, 396, 397. 
 
 v. Staffordshire W. Co., 101, 250. 
 
 v. State, 58, 202. 
 
 v. Stillwater W. Co., 275. 
 
 v. Wabash R. Co., 318a. 
 
 v. Williams, 237. 
 Simpson County Court v. Arnold, 143. 
 Sims v. Ohio River & C. Ry. Co., 259. 
 
 v. Smith, 229. 
 Sinai v. Louisville, etc. Ry. Co., 273. 
 Sinclair v. Roush, 495. 
 
 Singer v. Carondelet Canal Co., 103., 
 Singleton v. Whiteside, 194. 
 Sinking Fund Com'rs v. Green Nav. 
 
 Co., 146. 
 Sinnickson v. Johnson, 103, 122, 136, 
 
 243, 250. 
 Sinnott v. Davenport, 34, 35 
 Sisson v. Cummings, 26. 
 
 v. Kaper, 325. 
 Sizer v. Devereux, 197, 200. 
 Sizor v. Logansport, 76. 
 Skagit County v. McLean, 145. 
 Skaneateles W. W. Go. v. Skaneateles,. 
 
 245a. 
 Skinner v. Chapman, 1. 
 
 v. Hettrick, 60, 99, 100, 183, 189. 
 Skull v. Glenister, 354 
 Slack v. Lawrence, 562. 
 
 v. Lawrence Township, 272. 
 
 v. Lyon, 598. 
 
 v. Marsh, 205. 
 
 v. Walcott, 438, 445. 
 Slade v. Green, 195. 
 
 v. Neal, 193, 194 
 Slater v. Fox, 108, 160. 
 
 v. Gunn, 84, 104 511. 
 Slattery v. Harley, 227. 
 Slaughter v. Com., 38. 
 Slauson v. Goodrich Transp. Co., 203. 
 Slavin v. State, 289. 
 Sleeper v. Laconia, 200. 
 Sleight v. Kingston, 92. 272. 
 Slingerland v. Int'l C. Co., 96, 191, 252. 
 Sloan v. Beimiller, 70, 82a, 179, 182, 
 198, 203. 
 
 v. Glancy, 305. 
 Sloane v. McConahy, 105. 
 Slocumb v. C, B. & Q. R. Co., 213. 
 Sly v. Mordant, 476. 
 Small v. Grand Trunk R. Co., 122. 
 
 v. Wright, 194 
 Smallman v. Onions, 511. 
 Smallwood v. Hatton, 197, 201. 
 Smart v. Com., 128. 
 
 v. Dundee, 155. 
 
 v. Suva Town Board, 14 
 Smeaton v. Martin, 241, 244. 
 Smidt v. People, 556. 
 Smith v. Adams, 280, 281, 285, 509. 
 
 v. Agawam Canal Co., 209, 211c; 
 227, 298, 583. 
 
 v. Alexandria, 272. 
 
 v. Andrews, 86. 
 
 v. Ankrim, 102. 
 
 v. Atlanta, 261. 271. 
 
 v. Atlantic R. Co., 138. 
 
 v. Athern, 236, 240. 
 
 v. Auldridge, 197. 
 
 v. Baker, 363. 
 
 v. Bank of New England, 563^ 
 
 v. Barnham, 220. 
 
 v. Barret, 471. 
 
 v. Beach, 318a. 
 
 v. Beaupied, 354 
 
CASES CITED. 
 
 XCVH 
 
 Smith v. Boston, 122, 127. 
 
 v. Brooklyn, 213, 245, 285, 290. 
 v. Brown, 30. 
 v. Buhler. 247. 
 v. Burnett, 113, 114. 
 v. Carlow, 247. 
 v. Chicago, etc. Ry. Co., 299. 
 v. Clifford, 112. 
 v. Camptroller, 114. 
 v. Concord, 84, 245. 
 v. Connelly, 609, 610. 
 v. Corbit, 205. 
 v. Cornell Uni., 310. 
 v. Cranford, 219. 
 v. Dean, 194. 
 v. Denniff, 234. 
 v. Elliot, 504. 
 v. Evans, 194. 
 v. Fletcher, 296, 372. 
 v. Flora, 55, 105. 
 v. Floyd, 105. 
 v. Fonda, 108. 
 v. Ford, 196, 200, 299. 
 v. Furbish, 310. 
 v. Gould, 241, 243. 
 v. Goulding, 300, 322, 599. 
 v. Green, 335. 
 v. Harkins, 193. 
 v. Havemeyer, 114 
 v. Hawkins, 228, 229, 238, 240. 
 v. Holloway, 280, 322. 
 v. Hope M. Co., 238, 334. 
 v. Hughes, 454. 
 " v. Ingram, 36, 46, 60, 136. 
 v. Johnson, 155. 
 v. Kemp, 183, 185. 
 v. Kenrick, 280, 288, 294. 
 v. King, 510. 
 v. Langewald, 212, 348. 
 v. Larrabee, 444. 
 v. Levinus, 32. 
 v. Lincoln, 241, 245a. 
 v. Lockwood, 121. 
 v. Logan, 213, 224, 238. 
 v. London Dock Co., 113, 114, 115. 
 v. Look, 189. 
 v. Louisville R. Co., 134. 
 v. McConathy, 122, 214, 219. 
 v. Margerum, 323. 
 v. Maryland, 32, 38, 189. 
 v. Mayor, 262. 
 v. Miller, 105, 182, 203, 234, 332, 
 
 334, 341. 
 v. Milwaukee, 261, 272. 
 v. Modus Water Power Co., 305. 
 v. Musgrove, 340. 
 v. New York, 304a. 
 v. North C. W. Co., 231. 
 v. Officers of State, 4. 
 v. O'Hara, 231, 234, 543. 
 v. Olmstead, 520, 534, 580, 581, 585, 
 
 587, 615. 
 v. Phillips, 553. 
 v. Power, 148. 
 
 Smith v. Public Schools, 73, 155, 157. 
 
 v. Rochester, 30, 51, 54. 83, 151. 
 
 v. Rogers, 610. 
 
 v. Russ, 211c, 329, 343, 344, 599. 
 
 v. Sabine, 495. 
 
 v. St. Louis, 211c, 73, 157. 
 
 v. Scott, 322. 
 
 v. Sedalia, 212, 261. 
 
 v. Simmons, 105. 
 
 v. Smith, 125, 196, 315, 316, 354, 
 506. 
 
 v. Sprague, 451. 
 
 v. Stair, 4, 27. 155. 
 
 v. Thayer, 319. 
 
 v. Turner, 34, 35. 
 
 v. United States, 4, 242. 
 
 v. Waddill, 610. 
 
 v. Wallbridge, 210. 
 
 v. Williams, 234. 
 
 v. Wilson, 98. 
 
 v. Yates, 175. 
 
 v. Youmans, 581. 
 Smithett v. Blythe, 141. 
 Smyles v. Hastings 348, 351, 362. 
 Smyth v. Neal, 235. 
 Snark, The, 98. 
 Snarr v. Baldwin, 456. 
 Snohomish County v. Hayward, 24L 
 Snow v. Cowles, 210, 395, 409. 
 
 v. Morton, 118. 
 
 v. Mt. Desert, etc. Co., 169. 
 
 v. Moses, 599. 
 
 v. Parsons, 220, 227, 375. 
 
 v. Whitehead, 288, 296. 
 Snowden v. Wilas, ,823, 580, 581, 588. 
 Snure v. Great Western Ry. Co.,. 
 
 135. 
 Snyder v. Foster, 85. 
 
 v. Philadelphia, 116. 
 
 v. Proudfoot, 194. 
 
 v. Rockport, 140. 
 Society v. Butler, 223. 
 
 v. Holsman, 304, 527. 
 
 v. Lehigh Valley R. Co., 349, 530.. 
 
 v. Low, 58. 
 
 v. Morris Canal Co., 213, 511; 512,. 
 520. 
 Soens v. Racine, 117, 118. 
 Sollers v. Sollers, 176, 182. 
 Solliday v. Johnson, 65, 93a. 
 Solms v. Lias, 486, 494. 
 Solomon v. Vintner's Co., 337. 
 Soltau v. De Held, 125. 
 Some v. Barwish, 381. 
 Somers v. Com., 189. 
 Somerset v. Fogwell, 4, 18, 23, 27, 31,, 
 
 36. 123, 183, 189. 
 Somerset Canal v. Harcourt, 101. 
 Somerville v. Wimbish, 103. 
 Soule v. Russell, 218, 299. 
 Southampton Bridge Co. v. South- 
 ampton, 115. 
 Southampton Trustees v. Bette, 199.. 
 
 v. Jessup, 31. 
 
SCV111 
 
 CASES CITED. 
 
 Southard v. Brooklyn, 210. 
 
 v. Hill, 396. /• 
 
 v. Morris Canal Co., 121. 
 .South Bend v. Paxton, 261. 
 South Carolina v. Georgia, 34, 122, 
 
 129, 132, 134 
 South Carolina R. Co. v. Jones, 142. 
 
 v. Moore, 122, 126, 140. 
 South Carolina S. Co. v. South Caro- 
 lina Ry. Co., 125. 
 v. Wilmington, etc. R. Co., 126. 
 Southcoat v. Stanley, 113. 
 Southeastern Ry. Co. v. Darling, 26. 
 . South End M Co. v. Liphart, 222. 
 Southern Marble Co. v. Darnell, 204, 
 
 527. 
 So. Pao. R. Co. v. Dufour, 229, 280. 
 Southern S. S. Co. v. Sparks, 120. 
 Southfield, The, 89. 
 South Ford Canal Co. v. Gordon, 234. 
 South Royalton Bank W.Suffolk Bank, 
 
 290. 
 :South School District v. Blakeslee, 
 
 339. 
 'South Shields W. W. Co. v. Cookson, 
 
 488. 
 South Shore Lumber Co. v. C. C. 
 Thompson Lumber Co., 163. 
 Southside R. Co. v. Darnel, 589. 
 South Staffordshire Water Co. v. 
 
 Sharman, 6. 
 Southwalk & V. W. Co. v. Hampton 
 
 Urban D. Council, 296. 
 Southwestern R. Co. v. Lee, 222. 
 
 v. Mitchell, 324, 349. 
 South Yuba Water Co. v. Rosa, 240. 
 Sowers v. Schiff, 271. 
 Spangler's Appeal, 244, 511, 582. 
 Spangler v. Eicholtz, 617. 
 v. San Francisco, 272. 
 Spargur v. Heard, 238. 
 Sparhawk v. Bullard, 23, 27, 37, 162, 
 163, 164, 169, 195. 
 v. Union Passenger Car Co., 121. 
 Sparks v. Hess, 145. 
 
 v. Saladin, 96. 
 Sparks Manuf. Co. v. Newton, 205, 
 
 213, 240, 244, 274. 
 Sparlin v. Gotcher, 534. 
 Sparrow v. Strong, 240. 
 Spaulding v. Abbott, 305, 354, 355. 
 Speake v. Hamilton, 240. 
 Spear v. Drainage Com'rs, 495. 
 
 v. Robinson, 188. 
 Spears v. State, 64. 
 Speed v. Wilson, 194. 
 Speigelmoyer v. Walter, 121, 579. 
 Spelman v. Portage, 260. 
 Spence v. MoDonough, 544. 
 Spencer's Case, 300. 302, 460. 
 Spencer v. Hamilton, 328. 
 
 v. Hartford R. Co., 248a, 589. 
 
 v. Kilmer, 301, 305. 
 
 v. London Ry. Co., 121, 547. 
 
 Spencer v. Patten, 187. 
 
 v. Spencer. 301. 
 Spencer Creek Water Co. v. Vallejo, 
 
 241. 
 Spengler v. Trowbridge, 117. 
 Spensley v. Janesville Cotton Manuf. 
 Co., 315. 
 v. Valentine, 301. 
 Sphung v. Moore, 71, 76, 194 
 Spier, Re, 45, 115, 202. 
 Spigener v. Cooner. 155, 159. 
 S piker v. Banbury, 223. 
 Spilmanu Roanoke Nav. Co., 210, 211. 
 Spindler v. Atkinson, 176. 
 Spinney v. Marr, 28. 
 Spokane Mill Co. v. Post, 128. 
 Spokes v. Banbury Board, 182, 219, 
 
 528, 529, 552, 560. 
 Spooner v. MoConnell, 111, 121, 133. 
 Sprague v. Birdsall, 145. 
 
 v. Rhodes, 506, 507, 521, 524, 527, 
 
 534 
 v. Snow, 312. 
 v. Steere, 530. 
 v. Waite, 504 
 
 v. Worcester, 211c, 258, 260. 
 Spraigue v. Thompson, 35. 
 Spring v. Chase, 53. 
 v. Hewston, 194. 
 v. Russell, 54, 56, 108, 143, 241, 248, 
 
 250, 582. 
 v. Seavey, 56. 
 Springdale M. E. Church v. Shoop, 
 
 527. 
 Springer v. Lawrence, 212. 
 Springfield v. Connecticut River R. 
 Co., 137, 139, 255. 
 v. Harris, 205, 208. 
 v. Spence, 270. 
 Springfield F. & M. Ins. Co. v. Keese- 
 
 ville* 245a. 
 Springfield Ry. Co. v. Henry, 210, 252, 
 273. 
 v. Rhea, 210, 252. 
 Springfield W. W. Co. v. Jenkins, 290. 
 Spring Valley W. Works v. Drink- 
 house, 241. 
 v. San Mateo Water Works, 241. 
 Springville v. Fullmer, 228. 
 Sproul v. Hemingway, 35, 96. 
 Spruell v. Davenport, 196. 
 Squire, In re, 252. 
 S. Shaw, The, 96. 
 Stack v. Bangs, 115. 
 
 v. East St. Louis, 272. , 
 
 Stackpole v. Curtis, 305, 344 
 Stackpoole v. The Queen, 6, 193. 
 Stafford v. Hornbuckle, 229. 
 v. Ingersoll, 121. 
 v. Maddox, 303. 
 v. Providence, 251. 
 Staffordshire Canal v. Birmingham 
 . Canal, 225, 264, 331, 499. 532. 
 Stain ton v. Woolrych, 245. 
 
CASES CITED. 
 
 XC1X 
 
 'Stalling v. Ferrin, 228. 
 
 
 State 
 
 Stamford Water Co. v. Stanley, 
 
 241, 
 
 
 436. 
 
 
 v. 
 
 Stanberry v. Mallory, 37, 62. 
 
 
 v. 
 
 Stanchfield v. Newton, 210, 263, 
 
 271. 
 
 v. 
 
 Standard P. G. Co. v. Butler W. 
 
 Co., 
 
 v. 
 
 207. 
 
 
 v. 
 
 13tandart v. Round Valley W. Co., 
 
 305. 
 
 v. 
 
 v. Vivion, 524. 
 
 
 v. 
 
 Standen v. New Rochelle W. Co., 
 
 226. 
 
 v. 
 
 :Standish v. Washburn, 211. 
 
 
 v. 
 
 Standly v. Perry, 103, 155, 157. 
 
 
 V. 
 
 Stanford v. Pelt, 228. 
 
 
 V. 
 
 v. Mangin, 58, 166, 196. 
 
 
 V. 
 
 v. San Francisco, 269. 
 
 
 V. 
 
 Stanley v. White, 101. - 
 
 
 V. 
 
 Stannard v. Hubbard, 28, 185. 
 
 
 V. 
 
 Stannaries Case, 10. 
 
 
 V. 
 
 Stanton v. Sauk Rapids Co., 301. 
 
 
 V. 
 
 Staple v. Spring, 210, 599, 600. 
 
 
 V. 
 
 Stapleford v. Brinson, 196. 
 
 
 V. 
 
 Staples v. Smith, 387. 
 
 
 V. 
 
 Stapp v. The Clyde, 67, 85. 
 
 
 V. 
 
 Star Manuf. Co. v. Fairbanks, 320. 
 
 V. 
 
 Starin v. Staten Island R. Co., 175. 
 
 V. 
 
 Stark v. Coffin, 203. 
 
 
 V. 
 
 v. McGowen, 193. 
 
 
 
 v. Miller, 142, 148. 
 
 
 V. 
 
 Starkie v. Richmond, 55. 
 
 
 V. 
 
 Starr v. Child, 41, 57. 
 
 
 V. 
 
 'State v. Adams, 192. 
 
 
 V. 
 
 v. Adams County, 254. 
 
 
 V. 
 
 v. Administrator of Public 
 
 Ac- 
 
 
 counts, 294. 
 
 
 V. 
 
 v. Anthoine, 92, 128, 139. 
 
 
 V. 
 
 v. Arledge, 21. 
 
 
 V. 
 
 v. Armell, 252, 256. 
 
 
 V. 
 
 v. Atlantic City W. Co., 241. 
 
 
 V. 
 
 v. Babcock, 86, 175, 443. 
 
 
 V. 
 
 v. Bayonne, 36 
 
 
 V. 
 
 v. Beal, 187. 
 
 
 V. 
 
 v. Beardsley, 187. 
 
 
 - V. 
 
 v. Bell, 134, 392, 590. 
 
 
 V. 
 
 v. Bennett, 185. 
 
 
 V. 
 
 v. Bergen Freeholders, 545, 
 
 546. 
 
 V. 
 
 v. Black River P. Co., 58, 177 
 
 
 V. 
 
 v. Blake. 241. 
 
 
 V. 
 
 v. Blount, 185. 
 
 
 V. 
 
 ■v. Board of Public Works, 241. 
 
 V. 
 
 v. Boone, 189. 
 
 
 V. 
 
 v. Boston R. Co., 132. 
 
 
 V. 
 
 v. Boyce, 113. 
 
 
 V. 
 
 v. Branin, 13. 
 
 
 V. 
 
 v. Bridges, 122, 138, 149, 177. 
 
 
 V. 
 
 v. Brown, 148, 171. 
 
 
 V. 
 
 v. Buck, 155, 157. 
 
 
 V. 
 
 v. Bunker, 92. 
 
 
 V. 
 
 v. Burdick, 171, 185. 
 
 
 V. 
 
 v. Bush, 212. 
 
 
 V. 
 
 v. Cameron, 13. 
 
 
 V. 
 
 v. Canterbury, 56, 203. 
 
 
 V. 
 
 v. Carpenter, 43. 
 
 
 V. 
 
 v. Carragan, 171. 
 
 
 V. 
 
 v. Cass County Com'rs, 202. 
 
 
 V- 
 
 v. Cincinnati Central R. Co., 
 255 
 
 Clay County, 254. 
 
 Clinton, 212, 247. 
 
 Close, 212, 617. 
 
 Collector, 171. 
 
 Commissioners, 115, 474. 
 
 Conner, 186. 
 
 Cooper, 194. 
 
 Cozzens, 185. 
 
 Crawford, 5. 
 
 Cullum, 110, 111. 
 
 Dearborn, 147. 
 
 Delesdenier, 166. 
 
 Dibble, 60, 121, 130, 134, 140. 
 
 Digby, 251. 
 
 Diggs Drainage Co., 241. 
 
 Dodge, 187. 
 
 Dover R. Co., 55. 
 
 Duffel, 247. 
 
 Duplin Canal Co., 135. 
 
 Eason, 60, 302. 
 
 Eau Claire, 131, 133. 
 
 Elk Island Boom Co., 110. 
 
 Forrest, 157, 177. 
 
 Franklin Falls Co., 82a, 121, 
 182, 187. 
 
 Freeholders, 474. 
 
 Freeport, 121, 132, 134, 135, 140. 
 , Frieberg, 219. 
 
 Gainer, 212. 
 
 Gilmanton, 41, 53, 56, 79, 82a, 
 
 108, 110, 198, 203. 
 . Gilmore, 187. 
 
 Glen, 60, 111, 136, 183, 188, 189. 
 
 Godfrev, 121, 135, 140, 434. 
 
 Goodwill, 244. 
 
 Goodwin, 187. 
 
 Graham, 105. 
 
 Griffin, 187, 219, 220, 345a„ 609. 
 
 Griftner, 254. 
 
 Gross, 188. 
 
 Hanna, 260, 473. 
 
 Hannibal R. Co., 147. 
 
 Harbor Line Com'rs, 86, 638. 
 
 Harrub. 189. 
 
 Hasbrouck, 117. 
 
 Haskell, 144. 
 
 Haug, 83. 
 
 Herring, 438. 
 
 Hickson, 59. 110. 
 
 Higgins, 190. 
 
 Hookett, 189. 
 
 Holman, 95, 121, 587. 
 
 Hoofman, 61. 
 
 Hudson Tunnel Co., 29. 
 
 Insley, 189, 190. 
 
 Jersey City, 28, 171, 195, 223. 
 
 Kansas City Ry. Co., 55. 
 
 Kaster, 94. 
 
 Keeran, 128. 
 
 Keith County, 117. 
 . Kendall. 219. 
 
 Knotts, 212. 
 
CASES CITED. 
 
 State v. Krider, 1. 
 v. Kroenert, 219. 
 v. Lake, 142. 
 v. Laveraok, 255. 
 v. Leighton, 129. 
 v. Lewis, 189. 
 v. Lord, 443. 
 v. Mack, 242. 
 V. Maginnis, 247. 
 v. Main, 443. 
 v. Medbury, 32, 38, 189. 
 v. Merchants' Ins. Co., 247. 
 v. Merrit, 140. 
 v. Milk, 64, 203. 
 
 v. Milwaukee Gas Light Co., 245. 
 v. Mister, 189. 
 v. Mitchell, 220. 
 v. Moffett, 121, 128. 
 v. Montclair Ry. Co., 255. 
 v. Morris, 135, 241. 
 v. Mrozinski, 253. 
 V. Mullen, 64. 
 v. Murray, 5, 189. 
 v. Mutchler, 132. 
 v. Narrows Island Club, 135. 
 v. Newark, 244, 245a, 255. 
 v. New Orleans Nav. Co., 133, 144 
 v. New Orleans R Co., 472. 
 v. Norris, 145. 
 v. Norton, 189. 
 v. Noyes, 255, 473. 
 v. Nudd, 157. 
 v. Ohio Oil Co., 291. 
 v. O'Laughlin, 55. 
 v. Olcott, 142. 
 v. Omaha, 105. 
 v. Ousatonic W. Co., 211c, 474, 
 
 606. 
 v. Owen, 189. 
 v. Pacific Guano Co., 178. 
 v. Parrott, 121, 128, 134 
 v. Patrick, 147. 
 v. Paul, 128. 
 v. Penny, 35. 
 v. Penobscot R Co., 121. 
 v. Phipps, 212. 580, 581. 
 v. Pinkney, 178. 
 v. Plants, 71. 
 v. Pool, 60, 111. 
 v. Portland, 92, 261. 
 v. Portland R Co., 121, 132. 
 v. Portsmouth S. Bank, 85. 
 v. Pottmeyer, 191. 
 v. Prosser, 138. 
 v. Purse, 212. 
 v. Randall, 105. 
 v. Rankin, 212. 
 v. Raypholtz, 212. 
 v. Real Estate Bank, 142. 
 v. Reed, 250. 
 v. Republican River Bridge Co., 
 
 473. 
 v. Rivers, 144. 
 v. Roberts, 187, 434 
 
 State v. Rush County Com'rs, 528. 
 
 v. St. Croix Boom Co., 68. 143. 
 
 v. Salem W. Co., 241. 
 
 v. Sargent, 4, 27, 31, 32, 138, 1,70. 
 
 v. Schlemmer, 243. 
 
 v. Shannon, 70. 
 
 v. Shortridge, 13. 
 
 v. Skolfleld, 186, 187. 
 
 v. Smith, 94, 188, 212, 241. 
 
 v. South Carolina Ry. Co., 121. 
 
 v. Stunkle, 76. 189. 
 
 v. Sturgess, 146, 202. 
 
 v. Sturtevant. 140. 
 
 v. Suttle, 310, 355. 
 
 v. Sutton, 187, 189. 
 
 v. Taylor, 20, 92, 128, 189, 219, 365. 
 
 v. Theriault, 189. 
 
 v. Thompson, 53, 95, 122, 189. 
 
 v. Tomlinson, 60. 
 
 v. Tucker, 55, 161. 
 
 v. Useful M. Society, 581. 
 
 v. Wabash Paper Co., 71, 112, 219. 
 
 v. Wagner, 13, 434 
 
 v. Wahl. 219. 
 
 v. Welch, 84 
 
 Mi Welpton, 55. 
 
 v. Wheeler, 219, 243. 244 
 
 v. White Oak River Corp., 121. 
 
 v. Willis, 190, 193. 
 
 v. Wilson, 24, 26, 37, 103, 105, 111, 
 139. 169. 
 
 v. Woodard, 189. 
 
 v. Wood Co., 115. 
 
 v. Woodward, 94 
 
 v. Yard, 171. 
 
 v. Young, 158, 159. 
 
 v. Zanesville Turnpike Co., 473. 
 State Bridge Co. v. Metz, 132. 
 State Freight Tax Case, 130. 
 State Reservation Com'rs, Re, 148. 
 State, Tonnage Tax Cases, 35. 
 Staton v. Norfolk & C. R C6., 245 7 
 
 256. 
 Stauffer v. Miller Soap Co., 191. 
 Stead v. Worcester, 495. 
 Steadman v. Robertson, 189. 
 Steamboat v. McCraw, 92, 96. 
 Steamboat Co. v. Chase, 1, 5, 35, 67. 
 Steamship Co. v. Joliffe, 35. 
 
 v. Portwardens, 35. 
 Stearns v. Hooper, 96. 
 
 v. Janes, 338. 
 
 v. Richmond Paper Manuf. Co., 
 302. 
 
 v. Woodbury, 37. 
 Steele v. Empson, 241. 
 
 v. Sanchez, 78. 
 
 v. South Eastern Ry. Co., 260. 
 
 v. Sullivan, 105. 
 
 v. Todd, 286. 
 
 v. Western Island Co., 250. 
 
 v. Western Nav. Co., 115, 122, 136, 
 143, 589. 
 Steelsmith v. Fisher Oil Co., 563. 
 
OASES CITED. 
 
 CI 
 
 Steere v. Tiffany, 348. 
 
 Steers v. Brooklyn, 157. 
 
 Steffy v. Carpenter, 341. 
 
 Stein v. Ashby, 74, 213, 214, S45, 481. 
 
 v. Bienville Water-Supply Co., 
 245a, 458. 
 
 v. Burden, 204, 205, 213, 214, 217, 
 245, 342, 405, 412, 483. 
 Steinbuchel v. Lane, 75. 
 Stein Canal Co. v. Kern Island Ir. 
 
 Canal Co., 236. 
 Steinke v. Bentley, 387. 
 Stendal v. Boyd, 297. 
 Stennel v. Hogg, 477, 483. 
 Stephen v. Com., 212. 
 Stephens v. Benson, 323. 
 
 v. Coster. 20, 120. 124. 
 
 v. Marshall, 579, 591. 
 Stephens Co. v. Central R. Co., 132, 
 
 135. 
 Stephens Transp. Co. v. Western 
 
 Union Tel. Co., 92. 
 Stephenson v. Goff, 76. 
 Sterling v. Jackson, 36, 184. 
 
 v. The Jennie Cushman, 96. 
 
 v. Warden, 323. 
 Sterling Hydraulic Co. v. Gait, 211a. 
 
 v. Williams, 299, 302, 447. 
 Sterling Iron Co. v. Sparks Manuf. 
 
 Co.. 219, 544. 
 Sterrett v. Houston, 35, 144. 
 Stetson v. Bangor, 105, 110, 148, 157. 
 
 v. E. Carver Co., 597. 
 
 v. Faxon, 122, 126, 127. 
 
 v. French, 148. 
 
 v. United States, 5. 
 
 v. Veazie, 37, 458. 
 Stevens v. Danbury, 241. 
 
 v. Dennett, 300, 313. 
 
 v. Erie Ry. Co., 36, 132, 135. 
 
 v. Fitch, 600. 
 
 v. Jeacocke, 1. 
 
 v. Kelley, 191, 601, 602. 
 
 v. King, 203, 602. 
 
 v. Lafayette Gravel Road Co., 
 298. 
 
 v. Middlesex Canal, 250, 582. 
 
 v. Morse, 322. 
 
 v. Paterson R. Co., 4, 31, 32, 36, 
 121, 130, 135, 136, 151, 155, 168, 
 171, 189. 
 
 v. Rhinelander, 113, 118, 175. 
 
 v. Rverson, 509, 575. 
 
 v. Stevens, 300, 531, 599. 
 
 v. Taft, 341. 
 
 v. Thatcher, 202. I 
 
 v. Wadleigh, 461, 468. \ 
 
 v. Walker, 117, 140. 
 Stevens Point Boom Co. v. Reilly, 75, 
 103, 108, 135, 143, 148, 179, 
 181, 547. 
 Stevenson v. Wiggin, 317. 
 Steward v. Stevens, 231. 
 Stewart v. Baker, 120. 
 
 Stewart v. Clinton, 270. 
 
 v. Fitch, 99, 153, 171. 
 
 v. Greenock Harbor Trustees, 
 155. 
 
 v. Newport News, etc. Co., 113. 
 
 v. Schneider, 216. 
 
 v. Supervisors, 592. 
 Stickney v. Monroe, 215, 583. 
 Stiles v. Curtis, 197. 
 
 v. Davis, 229. 
 
 v. Hooker, 121, 209. 
 Stillman v. Burfeind. 28. 
 
 v. White Rock Manuf. Co., 64, 
 207, 332, 444, 445. 
 Stillwell v. Glasscock, 247. 
 
 v. Raynor, 35. v 
 
 Stimmel v. Brown, 289. 
 Stinson v. Butler, 71. 
 
 v. Fishel, 271. 
 
 v. Gardner, 463. 
 Stitler v. Winlack, 96. 
 Stock v. Boston, 261, 421. 
 
 v. Jefferson Tp., 530. 
 Stocker v. Kirtley, 238. 
 Stockham v. Browning, 151, 164, 165, 
 
 171, 179. 
 Stockman v. Riverside Land Co., 349, 
 
 350. 
 Stockport Ry. Co., Re, 252. 
 Stockport Water Works Co. v. Pot- 
 ter, 204, 219, 224, 375. 
 Stockton v. Am. Lucol Co., 171. 
 
 v. Baltimore R. Co., 34,171. 
 
 v. Powell, 129. 
 Stockton R. Co. v. Stockton, 242. 
 Stockwell v. Brewer, 120. 
 
 v. Couillard, 310. 
 Stoddard v. Filgur, 279. 
 
 v. Saratoga Springs, 261, 262. 
 Stodghill ti. C, B. & Q. R. Co., 210, 
 
 250, 256, 259, 416. 
 Stofflet v. Estes, 111. 
 Stokes v. Barrett, 233. 
 
 v. Upper Appomattox Co., 92, 334. 
 Stokoe v. Singers, 204, 349, 351. 
 Stolp v. Hoyt, 166, 507. 
 Stondinger v. Newark, 255. 
 Stone v. Augusta, 41, 44, 45, 169, 200, 
 248a, 260. 
 
 v. Boston Steel & Iron Co., 162, 
 164. 
 
 v. Bromwich. 382, 477. 
 
 v. Bumpus, 233. 
 
 v. Charlestown, 13. 
 
 v. Clark, 23. 
 
 v. Elkins, 138. 
 
 v. Marshall Oil Co., 291. 
 
 v. Peckham, 149, 509, 555, 556, 583. 
 
 v. Roscommon Lumber Co., 506. 
 
 v. State, 225. 
 
 v. Yeovil, 243. 
 Stonehewer v. Farrar, 219. 
 Stonehouse v. Enniskillen, 261. 
 Stoner v. Rice, 285. 
 
en 
 
 CASES CITED. 
 
 Storer v. Freeman, 27, 28, 31, 32, 56, 
 
 169, 195, 199. 
 Storey v. Casey, 41. 
 Storm v. Manohaug Co., 216, 227, 253, 
 
 603. 
 Story v. Hammond, 212, 375. 
 
 v. New York Elevated R. Co., 151. 
 Stoughton's Appeal, 291. 
 Stoughton v. Baker, 121, 183, 187, 532, 
 533. 
 
 v. Paul, 245. 
 
 v. State, 132, 133, 136, 212. 
 Stourbridge Canal w. Wheeley, 36, 147. 
 Stout v. McAdams, 210, 227. 
 Stoutenburgh v. Murray, 23. 
 Stover v. Jack, 27, 32, 45, 65, 166. 
 Stowell v. Flagg, 579, 580, 586, 601, 
 603. 
 
 v. Johnson, 217, 543. 
 
 v. Lincoln, 214, 405, 410. 
 Strader v. Graham, 39, 133. 
 Strait v. Brown, 229, 280. 
 Strange v. Spalding, 22, 37, 166. 
 Strattan v. Elliott, 118. 
 Stratton v. Currier, 111. 
 
 v. Staples, 113. 
 Strauss' Case, 123. 
 Street v. Andrews, 268. 
 Strelley v. Pearson, 295. 
 Stretton's D. B. Co. v. Derby, 250. 
 Strickler v. Colorado Springs, 228, 234. 
 
 v. Midland Ry. Co., 582. 
 
 v. Todd, 227, 307, 329. 
 Strohecker v. Alabama R. Co., 257. 
 Strohl v. Ephrata, 261. 
 Stroma, The, 114. 
 Strong v. Benedict, 320, 364. 
 Strouss v. Wabash Ry. Co., 258. 
 Strout v. Foster, 96. 
 
 v. Millbridge Co., 56, 209, 584. 
 Strutt v. Bovington, 216, 342, 504. 
 Stryker v. New York, 175. 
 Stuart v. Clark, 54, 60, 68, 78, 110, 197. 
 Stubbs v. Hilditch, 96. 
 Stumbo v. Seeley, 528. 
 Stump v. McNairy, 109. 
 Stupp, Re, 1. 
 
 Sturgeon River Boom Co. v. Nester, 95. 
 Sturges v. Bridgman, 55, 214. 
 
 v. Theological Education Society, 
 
 Sturgis v. Spofford, 34, 134, 
 
 Sturr v. Beck, 228, 240. 
 
 Stuttsman v. State, 189. 
 
 Sublett v. Kerr, 478. 
 
 Submarine Tel. Co. v. Dickson, 92. 
 
 Success, The, 11. 
 
 Sudbury Meadows v. Middlesex Ca- 
 nal, 582. 
 
 Suffield v. Brown, 356, 358. 
 
 Suffolk G. M. Co. v. San Miguel Co., 
 , 211a, 231. 
 
 Sugar Refining Co. v. Jersey City, 
 134, 135, 143. 
 
 Sullens v. Chicago Ry. Co., 41. 
 
 v. Railroad Co., 258. 
 Sullivan v. Beardsley, 229. 
 
 v. Cline, 241. 
 
 v. Jernigan, 110. 
 
 v. Lake Superior EL Co., 114. 
 
 v. Moreno, 148, 177. 
 
 v. Northern Spy M. Co., 280. 
 
 v. Phillips, 222, 271. 
 
 v. Pittsburgh, 262. 
 
 v. Spotswood, 43. 
 
 v. Supervisors, 193. 
 
 v. Webster, 123. 
 Summers v. People, 189. 
 Summy v. Mulford, 585, 616. 
 Sumner v. Finegan, 431. 
 
 v. Foster, 320. 
 
 v. Miller, 621. 
 
 v. Richardson Lake Co., 248. 
 
 v. Stevens, 338. 
 
 v. Tileston, 211b, 330, 337, 376, 396, 
 479. 
 Sunflower River P. Co. v. Georgia P, 
 
 R. Co., 129. 
 Sun M. Ins. Co. v. Miss. V. Transp. 
 
 Co., 73. 
 Supervisors v. McFadden, 193. 
 
 v. 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. 
 Sutherland v. Heathcote, 184, 299. 
 
 v. Ross, 187. 
 
 v. Watson, 4 
 Sutliff v. Johnson, 252, 619. 
 Sutter v. Van Derveer, 185, 188. 
 Sutton v. Buck, 6, 192. 
 
 v. Clarke, 396, 412, 428. 
 Sutton Harbor Co. v. Hitchins, 547; 
 567. 
 
 v. Plymouth Guardians, 23. 
 Sutton Marsh, Case of, 19. 
 Suydam v. Dunton, 349. 
 Swamp Land District v. Haggin, 247. 
 Swan, The, 96, 98. 
 Swan v. Adams, 22Q. 
 
 v. Goff, 37. 
 
 v. Munch, 336. 
 
 v. Williams, 40. 
 Swans, The Case of, 8. 
 Swansborough v. Coventry, 354. 
 Swanson v. Mississippi Boom. Co., 122. 
 
 127. 
 Swanton v. Crooker, 194. 
 Swantz v. Muller, 210. 
 Swanwick v. Varney, 185, 189. 
 Swanzey v. Brooks, 355. 
 
 v. Somerset, 132. 
 
CASES CITED. 
 
 cm; 
 
 Swartz v. Swartz, 306, 332. 
 Swasey v. Brooks, 305, 458. 
 Sweaney v. United States, 243. 
 Swearingen v. The Lynx, 76. 
 Sweatman v. Holbrook, 155, 158. 
 Sweeney v. Old Colony R. Co., 113, 
 114. 
 
 v. Chicago Ry. Co., 18, 131. 
 
 v. Shakspeare. 99, 158. 
 Sweeny v. Montana Cent. Ry. Co., 
 216. 
 
 v. Otis,-35. 
 Sweet v. Buffalo Ry.Co., 118. 
 
 v. Conley, 365. 
 
 v. Rechel, 243. ■> 
 
 v. Syracuse, 145, 241. ■ - 
 
 v. Troy, 143. 
 Sweetlanak «• Olsen, 235. 
 Swenson v. Lexington, 250, 372. 
 Sweringen v. St. Louis, 85, 148. 
 Swett v. Cutts, 41, 363, 265, 379, 280, 
 
 281, 296. 
 Swift v. Falmouth, 188. 
 
 v. Gifford, 1. 
 
 v. Goodrich, 304. 205, 471. 
 Swift River Imp. Co. v. Brown, 144 
 Swindon W. W. Co, v. Wilts & Berks 
 
 Canal, 205, 333, 345. 
 Swineford v. Franklin, 615. 
 
 v. Franklin Co., 115, 36a 
 Swisher v. Grumbles, 194. 
 Switzer v. McCulloch, 506, 534, 540. 
 Sword v. Allen, 511, 530. 
 Swords v. Edgar, 113, 119, 175. 
 Sykes v. Sowerby U. D. Council, 41. 
 Sylvester v. Jerome, 396. 
 Symonds v. Cincinnati, 133, 344 
 Syracuse v. Glenside W. Mills, 341. 
 
 v. Stacey, 85, 341. 
 
 Taber v. Jenny, 1. 
 Tabor v. Bradley, 305. 
 
 v. Com'r, 166. 
 Table Mt. W. Co. v. Chavanne, 303. 
 Taft v, Tarpey, 105. 
 Talbot, The, 96. 
 Talbot v. Commanders, The, 66. 
 
 ix Grace, 99, 105. 
 
 v. Hudson, 241, 242, 253. 
 
 v. Lewis, 6, 192. 
 
 v. Richmond R. Co., 157. 
 
 v. Whipple, 210. 
 Talbot County v. Queen. Anne's 
 
 County, 132. 
 Tamor Nav. Co. v. Wagstaff, 144. 
 Tampa W. W. Co. v. Cline, 280. 
 Tanner v. Volentine, 292, 300, 321. 
 Tappan v. Boston W. R Co., 163, 169. 
 
 v. Burnham, 37, 169, 199. 
 Tappendorf v. Downing, 148, 155. 
 Tardos v. Jefferson, 247. 
 
 Target v. Lloyd, 303, 447. 
 Tarrar v\ Nunamaker, 128. 
 Tarry v. Ashton, 113. 
 Tarter v. Spring Creek Co., 333. 
 Tate v. Parrish, 319, 364, 368. 
 
 v. St. Paul, 545. 
 Tatnall v. Shallcross, 633. 
 Tatum v. Sawyer, 36, 60. 
 
 v. St. Louis, 155. 
 Taubert v. St. Paul, 363. 
 Taunton v. Caswell, 188. 
 Taylor v. Abbot.t, 235. 
 
 v. Albemarle Steam Nav. Co., 147. 
 
 v. Atlantic Ins. Co., 98, 118, 175, 
 431. - 
 
 v. Austin, 261. 
 
 v. Baltimore & Ohio R. Co., 211,. 
 256. 
 
 v. Beebe, 120, 175. 
 
 v. Bennett, 374 
 
 v. Browning, 357. 
 
 v. Chicago, etc. Ry. Co., 345. 
 
 v. Dustin, 211. 
 
 v. Fickas, 41, 193, 304, 375, 380,. 
 
 v. Gerrish, 334, 338. 
 
 v. Hampton, 349, 351. 
 
 v. Keeler, 482. 
 
 v. McConigle, 200. 
 
 v. Monroe, 122. 
 
 v. Newbern, 117. 
 
 v. New York, 113, 116. 
 
 v. Porter, 241. 
 
 v. St, Helen's Co., 41, 304a. 
 
 v. Stendall, 394 
 
 v. Underhill, 36, 156, 174, 380. 
 
 v. Waters, 322. 
 
 v. Welch, 281. 
 
 v. Whitehead, 366. 
 
 v. Wilmington R. Co., 193. 
 Teakle v. Nace, 351. 
 Tearney v. Smith, 590. 
 Tebbutt v. Selby, 475, 481. 
 Tedens v. Chicago San. District, 241. 
 Teegarden v. Racine, 247. 
 Tempest, The, v. Com'rs, 135. 
 Templeton v. Coburn, 140. 
 
 v. Voshloe, 268. 
 Tenant v. Goldwin, 219, 294, 354 
 Tenem Ditch Co. v. Thorpe, 240. 
 Ten Eyck v, Delaware Canal Co., 103, 
 136, 143, 160, 210, 243. 
 
 «. Runk, 400. 
 
 v. Warwick, 111. 
 Tenham v. Herbert, 568. 
 Tennessee & C. R Co. v. Danforth,. 
 
 86, 92. 
 Tennessee Coal Co. v. Hamilton, 220. 
 Tenny v. Miners' Ditch Co., 232, 298. 
 Terre Haute v. Hudnut, 261.. 
 Terre Haute Bridge Co. v. Halliday, 
 
 132, 133, 134 
 Terre Haute, etc. R. Co- v. McKinley,- 
 250, 589. 
 
 v. Soice, 241. 
 
CIV 
 
 CASES CITED. 
 
 Terre Haute, etc. R. Co. v. Zehner, 
 
 333. 
 Terrell v. The B. F. Woolsey, 33. 
 
 v. Marietta P. M. Co., 525. 
 Terrett v. Mahan, 228. 
 Territory v. Lee, 40, 240. 
 Terry v. New York, 262. 
 
 v. Smith, 311, 320. 
 Teschemacher v. Thompson, 4, 27, 30, 
 
 39, 174. 
 Tewlisbury v. Schulenberg, 112, 132, 
 
 133, 143. 
 Texarkana, etc. Ry. Co. v. Parsons, 
 
 135. 
 Texas Nav. Co. v. Galveston Co., 103. 
 Texas, etc. R. Co. v. Baton Rouge, 146. 
 v. Best, 113. 
 
 i\ Interstate Transp. Co., 135. 
 v. Meadows, 252. 
 v. O'Mahoney, 296. 
 v. Padgett, 273. 
 v. Rust, 570. 
 v. Sutor, 256. 
 Thames Bank v. Lovell, 130, 143. 
 Thatcher v. Baker, 318a. 
 v. Cobb, 37. 
 
 v. Dartmouth Bridge Co., 136, 143, 
 250. 
 Thayer v. Boston, 122. 
 
 v. Brooks, 213, 412, 414, 437, 439. 
 v. New Bedford R. Co., 122, 132, 
 
 135, 248a. 
 v. Payne, 360, 362. 
 v. Wheelock, 460. 
 Theresa D. District, In re, 241. 
 Thibodaux v. Thibodaux, 211c. 
 Thiebaud v. Union Furniture Co., 367. 
 Thien v. Voegtlander, 136, 253, 599. 
 Thoemke v. Fiedler, 300, 323, 338. 
 Thomas v. Birmingham Canal Co., 
 211c. 
 v. Blaisdell, 232. 
 v. Brackney, 214, 220, 375. 
 v. Calhoun, 212. 
 v. Concordia C. Co., 278. 
 v. County Com'rs, 241. 
 v. Godfrey, 197, 201. 
 v. Grand Junction, 146, 245a. 
 v. Guiraud. 234. 237. 
 v. Hatch, 195, 196, 197. 
 v. Henges, 113. ' 
 v. Hill, 583. 
 
 v. Junction City Ir. Co., 323, 324. 
 v. Kenyon, 368. 
 v. Lane, 66. 
 v. Marshfield, 37. 
 v. St. Louis R. Co., 193. 
 v. Sorrell, 609. 
 
 v. Thomas, 293, 313, 314, 491. 
 v. Utica R. Co., 373, 487. 
 v. Wabash Rj'. Co., 145. 
 v. Woodman. 349. 
 Thomas A. Scott, The, 96. 
 Thomas Carroll, The, 96. 
 
 Thomas Xron Co. v. Allentown Min- 
 ing Co., 295. 
 Thomas Jefferson, The, 66. 
 Thomaston v. St. George, 202. 
 Thompson, Be, 241, 243, 250. 
 Thompson v. Allen, 363. 
 
 v. Androscoggin Co., 21, 54, 56, 
 90, 102. 105, 108, 110, 112, 136, 
 143, 243, 248, 308, 333. 
 v. Banks, 308. 
 
 v. Crocker, 213, 214, 218, 429. 
 v. De Weese-Dye Ditch Co., 250. 
 v. Gregory, 310, 311, 321. 
 v. Hoskins, 382. 
 v. Lee, 235. 
 
 v. London County Council, 222. 
 v. McElarney, 324 
 v. Mayor, 113. % 
 
 v. Milwaukee, etc. Ry. Co., 494 
 v. Miner, 355. 
 v. Moore, 374, 589. 
 v. New York, 120. 175. 
 v. New York R. Co., 145. 
 v. North Eastern Ry. Co., 113, 
 
 114, 115. 
 v. Penn. R. Co., 495. 
 v. Proprietors. 105. 
 v. River Co., 36. 252. 
 v. Shattuck, 302, 447, 450. 
 v. Smith, 185. 
 v. Whitman, 38. 
 v. Woods Co., 241. 
 Thomson, In re, 99. 
 Thomson v. Longard, 570. 
 
 v. Waterlow, 355. 
 Thorn v. Sweeney, 251. 
 Thornley, The, 89. 
 Thornton v. Foss, 37, 163, 169. 
 
 v. Grant, 93, 95, 121, 154, 162, 164 
 
 165, 171, 172, 509, 547. 
 v. Turner, 412, 603, 620. 
 v. Webb, 532, 620. 
 Thorntown v. Fugate, 272. 
 Thorp v. Freed, 240. 
 
 v. Woolman, 229. 
 Thorpe v. Brumfitt, 222. 
 Thorson v. Peterson, 13, 113. 
 Threatt v. Brewer M. Co., 219. 
 Thrift v. Elizabeth City, 245a. 
 Throop v. Griffin, 266. 
 Thum v. Rhodes, 296. 
 Thunder Bay Booming Co. v. 
 Speedily, 75, 103, 108, 109, 
 110, 111, 263. 
 Thurber v. Martin, 208, 214, 227, 334 
 Thurlow v. Bogart, 88. 
 Thurman v. Morrison, 62, 179. 
 Thurston v. St. Joseph, 261. 
 Tiago Manuf. Co. v. Stimson, 103. 
 Tibbetts v. Blade, 122. 
 Tibbits, Ex parte, 57. 
 Tickle v. Brown, 339. 
 Tide Water Canal Co. v. Archer, 241. 
 Tide Water Co. v. Coster, 241, 247. 
 
CASES CITED. 
 
 CV 
 
 Tiede v. Sohneidt, 219, 544. 
 Tifft v. Jones, 115. 
 Tiger Lily, The, 89. 
 Tighe v. Sinnott, 183, 331. 
 Tilbury v. Silva, 46, 51, 184, 331. 
 Tillotson v. Smith, 204, 208, 210, 214, 
 
 218a, 405, 497. 
 Tilton, The, 6. 
 
 Timm v. Bear, 206, 208, 218, 227. 
 Timpson v. New York, 175. 
 Tinder v. Duck Pond Co., 241. 
 Tinicum Fishing Co. v. Carter. 24, 32, 
 44, 64, 65, 99, 100, 173, 182, 184, 
 189, 249, 329. 
 Tinker v. Forbes, 306. 
 Tinkham v. Arnold, 227, 322, 353, 602. 
 Tinsman v. Belvidere Delaware R. 
 Co., 127, 143. 151, 160, 331, 376, 
 380, 479. 
 Tipping v. Eokersley, 219, 300, 519, 
 534, 538. 544. 
 
 v. St. Helen's Smelting Co., 222. 
 Tippits v. Walker, 144. 
 Titan, The, 96. 
 
 Titohmarsh v. Royston W. Co., 362. 
 Titoomb v. Kirk, 240. 
 Titus v. Boston, 241, 243, 261. 
 Tobin v. Portland R. Co., 113. 
 Todd v. Austin, 253, 431, 599, 606. 
 
 v. Cochell, 232, 298. 
 
 v. Dunlap, 155. 
 
 v. Flight. 113, 388. 
 
 v. Lunt, 194. 
 Toledo v. Lewis, 212, 267. 
 Toledo, etc. Ry. Co. v. Chicago, etc. 
 Ry. Co., 527. 
 
 v. Hunter, 256, 273, 386. 
 Toledo Liberal S. Co. v. Erie Shoot- 
 ing Club, 82a, 179. 
 
 v. Morrison, 273. 
 Toll Bridge Co. v. Osborn, 145. 
 Tolle v. Correth, 205, 217. 
 Tolleston Club v. Clough, 76. 
 
 v. State, 203. 
 Tolman v. Casey, 238. 
 Tome v. Dubois, 192. 
 
 v. Four Cribs of Lumber, 192. 
 Tomin v. Dubuque R. Co., 72, 151. 
 
 v. Fuller, 306, 392, 394. 
 Tomlinson v. Derby, 122. 
 
 v. Ousatonic Water Co., 463. 
 Tompkins v. Kanawha Board, 144. 
 Tone v. Columbus. 241. 
 Toney v. Johnson, 580. 
 Toohey v. Campbell, 228. 
 Tooms v. Hornbuckle, 236. 
 Toothacker v. ■ Winslow, 111, 222. 
 Toothe v. Bryce. 355. 
 Tootle v. Clifton, 266, 276, 329, 405. 
 Topeka v. Topeka W. Co., 474. 
 Topeka W. S. Co. v. Potwin Place, 
 
 219, 545, 546. 
 Topp v. White, 441. 
 Topsell v. Ferrers, 141. 
 h. 
 
 Topsham v. Lisbon, 248a. 
 Torpey v. Independence, 273. 
 Torrey v. Scranton City. 272. 
 Totel v. Bounefoy, 268, 321, 324. 
 Tottenham U. D. Council v. William- 
 son, 121. 
 Tourne v. Lee, 117. 
 Tourson v. Tourson, 4. 
 Tourtellot v. Phelps, 204, 207, 318, 320, 
 
 354, 399, 497. 
 Tower v. Boston, 582. 
 Towle v. Palmer, 175. 
 
 v. Remsen, 32, 175. 
 .u Smith, 175. 
 Town v. Faulkner, 599, 605. 
 
 v. Mo. Pac. Ry. Co., 264. 
 Towner v. Thompson. 307. 
 Townes v. Augusta, 2ila, 380, 392. 
 Townsend, Matter of, 243, 250. 
 Townsend v. Bell, 219, 544 
 
 v. Brown, 171. 
 
 v. Downer, 341. 
 
 v. McDonald, 204, 209, 225, 329, 
 348, 351. 
 
 v. Reeves, 22. 
 
 v. State, 291. 
 
 v. Susquehanna Tp. Co., 114. 
 Townsend S. Bank v. Epping, 44. 
 Towson v. Debow, 622. 
 Toyaho Creek Ir. Co. v. Hutchins, 
 
 241. 
 Trabue v. Macklin, 610, 011. 
 Tracey v. Baltimore & O. R. Co., 114. 
 Tracy, In re, 251. 
 Tracy v. Atherton, 330, 331, 332, 339. 
 
 v. Le Blanc, 509. 
 
 v. Norwich R. Co., 37, 42, 155, 166. 
 Traill v. M'Alister, 339. 
 Trambley v. Luterman, 205. 
 Trammell v. Trammell, 321. 
 Transportation Co. v. Chicago, 116, 
 123, 248a. 
 
 v. Parkersburg, 35, 118, 120, 131. 
 
 v. Wheeling, 35. 
 Trask v. Ford, 333, 334. 
 
 v. Patterson, 362. 
 Traster v. Snelson, 458. 
 Travelers' Ins. Co. v. Childs, 549. 
 Traveller, The, 35. 
 Traver v. Merrick Co., 254 
 Travis Placer M. Co. v. Mills, 233. 
 Treadwell v. Inslee, 354. 
 Treat v. Bates, 121, 210, 274 
 
 v. Chipman, 37, 162, 164. 
 
 v. Lord, 35, 36, 99. 102, 108, 109, 
 111, 121, 132, 584. 
 
 v. Parsons, 182. 
 
 v. Strickland, 169. 
 Trees v. Eclipse Oil Co., 291. 
 Treichel v. Gt. Northern Ry. Co., 256. 
 Trematon Case, 10. 
 Trent v. Cartersville Bridge Co., 145, 
 
 193. 
 Trent Nav. Co. v. Wood, 114 
 
CV1 
 
 CASES CITED. 
 
 Trent Valley Canal. Re, 56. 
 Trenton Banking Co. v. McKelway, 
 
 530. 
 Trenton Board of Health v. Hutchin- 
 son. 222. 
 Trenton "Water Power Co., Re, 255. 
 Trenton Water Power v. Chambers, 
 530. 
 
 v. Eaff, 132, 136, 243, 257, 588. 
 Trim v. Vallejo St. Wharf Co., 113. 
 Trimble v. Gilbert, 211. 
 Trinidad Asphalt Co. v. Ambard, 289. 
 Trinity House v. Clark, 141. 
 
 v. Sorsbie, 141. 
 
 v. Staples, 141. 
 Trinity Ry. Co. v. Schofield, 211c, 257. 
 Tripp v. Overocker, 244. 
 
 v. Spring, 40. 
 Troe v. Larson, 509. 
 Trotter v. Harris, 329. 
 Trout v. McDonald, 280, 295. 
 Trouzeauu Slough U. D. Council, 223; 
 Trowbridge v. Brookline, 280. 
 Trower v. Chadwick, 294. 
 Troy v. Cheshire R. Co., 416, 582. 
 
 v. Coleman, 207. 
 
 v. Norment, 507, 524. 
 Trudeau v. Field, 299, 468, 570. 
 Trull v. Wheeler, 195. 
 Truman v. London Railway, 545. 
 Trump v. McDonnell, 362. 
 Trustees v. Betts, 36. 
 
 v. Brett, 328. 
 
 v. Dennett, 82, 251. 
 
 v. Hutchinson, 296. 
 
 v. Loundes, 36. 
 
 v. Schroll, 69. 
 
 V. Strong, 182. 183. 
 
 v. Tatman, 193. 
 
 v. Tuttle, 581. 
 
 v. Wagnon, 62, 194. 
 Tubbs v. Wilhoit, 36, 328. 
 Tuck v. Olds, 179. 
 
 Tuckahoe Canal Co. v. James River 
 R. Co., 145. 
 
 v. Tuckahoe Railroad, 255. 
 Tucker v. Burlington Co., 132, 139,140. 
 
 v. Campbell, 595. 
 
 v. Jewett, 227, 313. 
 
 v. Jones, 305. 
 
 v. Newman, 376, 378. 
 
 v. Salem Flouring Mills Co., 213, 
 342. 
 
 v. Smith, 194. 
 Tuckerman v. Newman, 291, 373. 
 Tudor v. Cambridge Water Works, 
 
 84, 191. 
 Tufts v, Charlestown, 37, 164 
 Tugwell v. Eagle Pass Ferry Co., 35, 
 
 146. 
 Tullar v. Baxter, 328, 540. 
 Tullis v. Tacoma Land Co., 121, 177. 
 Tuolumne County Co. v. Columbia 
 Water Co., 232, 235, 236, 298. 
 
 Tuolumne Water Co. v. Chapman, 
 
 506, 512, 534. 
 Turlock Irr. District v. Williams, 228. 
 Turnage v. Kenton, 194. 
 Turnbull v. Rivers, 104. 
 Turner v. Blodgett, 122, 136. 
 
 v. Cape Fear Nav. Co., 326. 
 
 v. Cole, 238. 
 
 u Dartmouth, 269, 272. 
 
 v. Hart, 344, 
 
 v. Hebron, 86, 185. 
 
 v. Holland, 75, 148, 196. 
 
 v. Holleran, 620. 
 
 v. Holtzman, 128. 
 
 v. Locy, 230. 
 
 v. Mirfield, 288. 
 
 v. Parker, 200. 
 
 v. People's Ferry Co., 36, 121, 148, 
 175, 193. 
 
 v. Revere Water Co., 245a. 
 
 v. Seabury, 304. 
 
 v. Stewart, 510. 
 
 v. Strange, 469. 
 
 v. Tuolumne Water Co., 232. 
 
 v. Whitehouse, 595, 597. 
 Turnpike Co. v. Brown, 147. 
 
 v. Campbell, 135, 142. 
 
 v. Illinois, 142. 
 
 v. State, 145. 
 
 v. Van Dusen, 147. 
 Turpin v. Eagle Creek Co., 69. 
 Tuthill, In re, 241. 
 Tuthill v. Scott, 209, 364, 405. 
 Tuttle v. Harry, 299. 
 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. 
 Tye v. Catching, 227. 
 Tyler v. Beecher, 253, 254, 598, 607. 
 
 v. Bennett, 299. 
 
 v. Hammond, 37, 203, 314, 348. 
 
 v. Hudson, 84. 
 
 v. Mather, 335, 407, 493, 497, 498, 
 499, 503, 599. 
 
 v. People, 9, 13. 
 
 v. State, 242. 
 
 v. Wilkinson, 56, 196, 204, 206, 214, 
 227, 330, 331, 332, 335, 534. 
 Tyler M. Co. v. Last Chance M. Co., 
 
 295 
 Tynon v. Despain, 228, 240, 323. 
 Tyrrell v. Lockhart, 53, 126, 133. 
 Tyson v. Com'rs, 248. 
 
 TJ. 
 
 Udall v. Brooklyn, 175. 
 Ueberoth v. Lehigh Coal Co., 249. 
 Uhl v. Ohio R. Co., 362. 
 Ulbricht v. Eufaula Water Co., 206, 
 208, 210, 214, 540. 
 
OASES CITED. 
 
 CV11 
 
 Ulrioh v. Hull, 555, 571. 
 Umatilla Ir. Co. v. Barnhart, 241. 
 Underhill v. Saratoga R. Co., 464. 
 Underwood v. North Wayne Scythe 
 Co., 353, 579, 602. 
 
 v. Waldron, 292, 293. 
 Union v. Durkes, 272. 
 Union Bridge Co. v. Spaulding, 146. 
 Union Canal Co. v. Landis, 65, 132. 
 
 v. Stump, 243. 
 
 v. Young, 302a. 
 Union Depot' Co. v. Brunswick, 76, 
 
 85, 181. 
 Union Ferry Co., Re, 138, 145. 
 Union Ice Co. v. Crowell, 114 
 Union Mill Co. v. Dangberg, 205, 206, 
 214 217 231 
 
 v. Ferris, 40, 204, 205, 207, 208, 
 217, 229, 230, 240, 334. 
 
 v. Shores, 95. 
 Union Mining Co. v. Ferris, 40. 
 Union Pacific R. Co. v. Chicago, etc. 
 Ry. Co., 441. 
 
 v. Cook, 456. 
 
 v. Dyche, 264. 
 
 v. Hall, 137, 176. 
 Union Petroleum Co. v. Bliven Petro- 
 leum Co., 291. 
 Union Springs v. Jones, 300. 
 Union Steamship Co. v. New York 
 Steamship Co., 96. 
 
 v. Nottinghams, 96. 
 Union Transp. Co. v. Bassett, 35, 130. 
 Union Trust Co. v. Cuppy, 214, 256. 
 Union Water Co. v. Crary, 238. 
 Union W. P. Co. v. Auburn, 203. 
 
 v. Pingree, 328. 
 United Alkali Co. v. Simpson, 24. 
 United Companies v. Long Dock Co., 
 
 453. 
 United Land Co. v. Great Eastern 
 Ry. Co., 500. 
 
 v. Knight, 174, 228. 
 United N. J. R. Co. v. Long Dock Co., 
 
 315. 
 United States Petition, Re, 242. 
 United States v. Alaska Packers' 
 Ass'n, 38, 189. 
 
 v. Alexander, 242. 
 
 v. Ames, 255, 593. 
 
 v. Appleton, 306, 354, 356. 
 
 v. Bain, 35, 154, 178. 
 
 v. Bateman, 242. 
 
 v. Beef Slough Manuf. Co., 129. 
 
 v. Bellingham Bay Boom Co., 90, 
 110. 
 
 v. Bennett, 1. 
 
 v. Bevans, 5, 13, 33. 
 
 v. Breen, 110, 129. 
 
 v. Burlington Ferry Co., 33, 67. 
 
 v. Burns, 110. 
 
 v. Castillero, 166. 
 
 v. Compagnie Francaise, 512. 
 
 v. Cook, 30. 
 
 United States v. Coombs, 33. 
 v. Davis, 4, 9. 
 
 v. Des Moines River Na v. Co., 143. 
 v. Duluth, 34, 129, 134, 507, 524, 
 
 526. 
 v. Engeman, 242. 
 v. Forty-three Gallons of Whis- 
 key, 30. 
 v. Gettysburg EL Ry. Co,, 242. 
 v. Gordon, 7. 
 v. Gratiot, 40. 
 v. Great Falls Manuf. Co., 242, 
 
 244. 
 v. Grush, 4, 5. 
 v. Hall, 98, 110. 
 v. Hamilton, 4. 
 v. Holliday, 34. 
 v. Jackson, 35. 
 v. Jones, 241, 242. 
 v. Keokuk Bridge Co., 110, 129. 
 v. Kessler, 4, 9. 11. 
 v. Lawrence, 566. 
 v. Marthinson, 110. i 
 v. Milwaukee R. Co., 134. 
 v. Mississippi River Boom Co., 
 
 129. 
 v. Moline, llO, 129. 
 v. Morel, 4. 
 v. Morris, 61. 
 v. Morrison, 35. 
 v. New Bedford Bridge, 5, 27, 35. 
 
 43, 126, 130, 132, 135, 139. 
 v. North Bloomfield G. M. Co., 34, 
 
 566. 
 v. Oregon Ry. & Nav. Co., 129, 
 
 242. 
 v. Ormsbee, 129. 
 v. Osio, 166. 
 v. Pacheco, 27. 
 v. Percheman, 30. 
 v. Peters, 21. 
 v. Peterson, 202. 
 v. Pirates, 4. 
 v. Pitman, 9. 
 
 v. Pittsburgh R. Co., 110, 129. 
 v. Railroad Bridge Co., 34, 35, 121, 
 
 132, 134 
 v. Rider, 110, 129. 
 v. Rio Grande Dam & Ir. Co., 110, 
 
 240. 
 v. Robinson, 4, 5. 
 v. Rodgers, 66, 202. 
 v. Romard, 92. 
 v. Ross, 5. 
 v. Ruggles, 136. 
 v. Rum River Boom Co., 129. 
 v. St. Louis, 96. 
 v. St. Louis, etc. R. Co., 135. 
 v. Schwalby, 242. 
 v. Seagrist, 4. 
 
 v. Seufert Bros. Co., 251, 254 
 v. Smiley, 1, 9. 
 v. Smith, 4. 
 v. Taff e, 252. 
 
CVU1 
 
 CASES CITED. 
 
 United States v. The Sadie, 92. 
 
 v. The William Pope, 35. 
 
 v. Truesdell, 242. 
 
 v. Vigil, 40. 
 
 v. Wilson, 4, 67. 
 
 v. Wiltberger, 4, 5, 66. 
 U. S, Freehold Land Co. v. Gallegos, 
 
 534, 540. 
 U. S. Life Ins. Co. v. Oswego Canal 
 
 'Co., 349. 
 Universities v. Richardson, 534. 
 Updike v. Wright, 247. 
 Upham v. Hosking, 36, 144, 174, 304a. 
 Upjohn v, Richland Township, 288. 
 Upper Platte & Beaver Canal Co. v. 
 
 Ft. Morgan Res. Co., 228. 
 Upper S. Co. v. Blake, 113. 
 Upper Ten Mile P. R. Co. v. Braden, 
 
 252. 
 Upton v. Dawkin, 183. 
 Urch v. Portsmouth, 594 
 Ure v. Coffinan, 67, 96. 
 Utopia, The, v. The Primula, 98. 
 Utt v. Frey, 228. 
 
 V. 
 
 Vail v. Attica, 241. 
 
 v. Mix, 329, 541. 
 Vale Mills v. Nashua, 277. 
 Valentine v. Central R. Co., 257. 
 
 v. Piper, 37. 162 s 164, 169, 195. 
 
 v. Sloss, 199. 
 Vallego v. Wheeler, 141. 
 Valley Pulp & Paper Co. v. West, 305. 
 Valley R. Co. v. Franz, 210. 
 Valparaiso v. Hagan, 223, 243. 
 
 v. Moffitt, 222. 
 Valparaiso City W. Co. v. Dickover, 
 
 581. 
 Van Alstine v. Belden, 252. 
 Van Auken v. Decker, 185. 
 Van Bergen v. Van Bergen, 507, 534, 
 
 537, 552, 555. 
 Van Bibber v. Hilton, 228, 535. 
 Vanblaricum v. State, 251. 
 Van Breda v. Silberbauer, 225. 
 Van Brunt v. Ahearn, 368, 555. 
 Van Buren v. Fishkill W. Co., 252. 
 Vancouver, 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. 
 Vanderlip v. Grand Rapids, 243. 
 Vanderplank v. Miller, 96. 
 Vandersliee v. Philadelphia, 261. 
 Vanderwater v. New York, 113, 175. 
 Vanderwere v. Delaware Canal Co., 
 
 210. 
 Vanderwiele v. Taylor, 268. 
 Van Dolsen v. New York, 149, 152, 175. 
 
 Vandusen v. Comstock, 599, 600. 
 Van Duzer v. Elmira, etc. R. Co., 
 
 211c. 
 Van Gordon v. Jackson, 194. 
 Van Hoesen v. Coventry, 213, 214. 
 Van Hoozier v. Hannibal R. Co., 210. 
 Van Horn v. Clark, 304, 355. 
 
 v. Richardson, 305. 
 Van Home v. Dorrance, 21, 244. 
 Van Maren v. Johnson, 30. 
 Vannest v. Fleming, 276. 
 Van Nest Land Co. v. New York & 
 
 W. W. Co., 524 
 Van Ohlen v. Van Ohlen, 323. 
 Van Orsdol v. B., C. R & N. R Co., 
 
 256, 412, 416. 
 Van Pelt v. Davenport, 211a, 262. 
 Van Rensselaer v. Albany, 261. 
 
 v. Read, 302. 
 Van Schoick v. Delaware & Raritan 
 
 Canal Co., 416. 
 Van Sickle v. Haynes, 36, 40, 204 206, 
 
 214, 230, 240. 
 Van Wagenen v. Newark Plank Road 
 
 Co., 134, 135. 
 Vanwinkle v. Curtis, 509, 513, 517. 
 Van Wicklyn v. Brooklyn, 213, 495. 
 Van Zandt v. New York, 120, 175. 
 Varick v. Smith, 55, 57. 108, 196, 200, 
 
 241, 242, 534, 535. 
 Varner v. Martin. 242. 
 Varney v. Pope, 507, 518. 
 Vasser v. George, 138. 
 Vaugh v. Wetherell, 595. 
 Vaughan v. Rupple, 338. 
 Vaughn v. Foster. 159, 197. 
 
 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. 
 Velte v. United States, 242. 
 Venard v. Cross, 123, 253, 255, 581, 584, 
 
 620. 
 Vennall v. Garner, 96. 
 Vermont Central R. Co. v. Hills, 304 
 Vermont R. Co. v. Vermont C. R. Co., 
 
 444. 
 Vernon Ir. Co. v. Los Angeles, 229. 
 Vernum v. Bird, 213. 
 v. Wheeler, 160. 
 Verplanck v. New York, 175. 
 Verplank v. Hall, 82a, 194 
 Vessel Owners' Towing Co. v. Willson, 
 
 114 
 Vestry of St. Pancras v. Batterburv, 
 
 147. 
 Viall v. Carpenter, 306, 314 
 Vickery v. Providence, 603. 
 Vienna, The, 96. 
 
OASES CITED. 
 
 C1X 
 
 Vick v. Rochester, 507, 532. 
 Vickerie v. Buswell, 310, 312, 344, 599. 
 Vicksburg v. Tobin, 142. 
 Victoria, The, 96. 
 Victoria v. Schott, 155. 
 Victory, The, 96. 
 Vigilantia, The, 11. 
 Vincennes v. Richards, 261. 
 Vineland Ir. District v. Azuna Ir. Co., 
 
 287, 542. 
 Vinkersterne v. Ebden, 141, 147. 
 Vinton v. Welsh, 187, 188. 
 Violett v. Blake, 4. 
 Viterbo v. Friedlander, 298, 451. 
 Vliet v. Sherwood, 218, 334. 
 Vogel v. New York, 269, 272. 
 Vogelsmeier v. Prendergast, 158. 
 Voligny v. Stillwater W. Co., 210. 
 Volk v. Eldred, 111, 135. 
 Volusia, The, 120. 
 
 Vooght v. Winch, 21, 43. 121, 504, 532. 
 Voorhees v. Burchard, 305. 
 Vose v. Cockcroft, 67. 
 Voter v. Hobbs, 599, 602. 
 Vought v. Columbus, etc. R. Co., 225, 
 
 254. 
 Vowles v. Miller, 477. 
 Vroman v. Rogers, 114. 
 Vyner v. Mersey Docks, 21. 
 
 w. 
 
 Wabash v. Erie Canal Co., 241, 243, 
 
 252, 588. 
 Wabash R. Co. v. Rector, 210. 
 
 v. Sanders, 256, 257. 
 Waco Artesian W. Co. v. Cauble, 245a. 
 Waddell's Appeal, 241. 
 Waddell v. De Jet, 161. 
 
 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. Richmond, 13. 
 Wadham v. N. E. Ry. Co., 124. 
 Wadham Ry. Co., Be, 252. 
 Wadsworth v. Smith, 46, 54, 56, 108, 
 111, 114, 142, 263. 
 
 v. Stewart, 621. 
 
 v. Tillotson, 204, 205, 213, 214, 217, 
 410. 
 Waffle v. Barber, 274. 
 
 v. New York R. Co., 271, 274 
 Waggonen v. Jermaine, 368, 390. 
 Wagner v. Chaney, 274. 
 
 v. Long Island Railroad, 253, 273. 
 
 v. Mallory, 291. 
 Wahle v. Reinbach, 238. 
 Wahls v. Brandt, 334. 
 Wainwright v. McCullough, 36, 45, 65. 
 Wait v. May. 157. 
 Wakefield v. Newell, 269. 
 
 Wakely v. Davidson, 539. 
 Wakeman v. West, 501. 
 Waldrop v. Greenwood R. Co., 266. 
 Wales v. Stetson, 128, 139. 
 Walker v. Allen, 74, 108, 112, 127. 
 
 v. Armstrong, 103. 
 
 v. Baird, 20, 185. 
 
 v. Board of Public Works, 70, 93a, 
 111, 143, 166, 243. 
 
 v. Boston & Maine R. Co., 162, 
 164, 169, 195. 
 
 v. Boynton, 194. 
 
 v. Butz, 415. 
 
 v. Columbus, 105. 
 
 v. Cronin, 290. 
 
 v. Emerson, 510. 
 
 v. Goe, 115. 
 
 v. Jackson, 142, 193. 
 
 v. Marks, 27, 28. 
 
 v. New Mexico & S. P. Ry. Co., 
 265, 266, 273. 
 
 v. Old Colony R. Co., 265, 273. 
 
 v. Orr, 194. 
 
 v. Oxford Woollen Manuf. Co., 
 539, 579, 580, 595, 597. 
 
 v. St. John, 1 145. 
 
 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. 
 
 v. Pittsburgh Harbor Co., 95, 96, 
 124. 
 Wallace, The, 96. 
 Wallace v. Columbia R. Co., 216. 
 
 v. Driver, 155. 
 ■ v. Fletcher, 329, 330, 331. 
 
 v. Headley, 211c. 
 
 v. Kansas City & S. Ry. Co.,'273. 
 
 v. Merrimack River Nav. Co., 98. 
 
 v. New York, 113. 
 
 v. Sheldon, 247. 
 
 v. State, 92. 
 
 v. Trustees, 13. 
 Wallamet Iron Bridge Co. v. Hatch, 
 
 34, 39, 68. 
 Walla Walla v. Walla Walla W. Co., 
 
 548. 
 Waller v. McConnell, 110, 112, 598. 
 
 v. State, 85, 241. 
 Wallesley Local Board v. Gracey, 121. 
 Wallesley U. D. Council v. William- 
 son, 212. 
 Walley v. Platte & D. Ditch Co., 212. 
 Wallis v. Harrison, 351. 
 Walpole v. City Council, 78. 
 Walsh v. Columbus, etc. R. Co., 254. 
 
 v. Mead, 113, 293, 390. 
 
 v. New York Dry Dock Co., 95, 
 175. 
 
 v. Rogers, 67. 
 Walter v. County Com'rs, 122. 
 
■ex 
 
 CASES CITED. 
 
 "Walters v. Houok, 610. 
 
 v. The Mollie Dozier, 67. 
 Waltham v. Kemper, 116. 
 Walton Cum Trimley Manor, Be, 22. 
 Walton v. Dickerson, 504. 
 
 v. Mills, 512. 
 
 v. TifEt, 57, 166, 196. 
 Wamesit Power Co. v. Sterling Mills, 
 
 O-j Q 
 
 Ward v. Albemarle & R. R Co., 250, 
 259. 
 v. Creswell, 189. 
 v. Higgs, 554 
 v. Lee, 115. 
 v. Mulford, 27, 30, 39. 
 v. Peck, 244 
 v. Robins, 335, 491. 
 v. Severance, 145. 
 v. Ward, 210, 348. 
 v. Willis, 32, 60. 
 Warden v. Balch, 304 
 Wardens, Board of, v. Philadelphia, 
 
 135. 
 Wardle v. Brocklehurst, 354, 360. 
 Wardwell v. Watson, 312. 
 Ware v. Allen, 210, 214. 
 
 v. Regent's Canal Co., 527. 
 v. Walker, 240, 363. 
 Waring v. Clarke, 33, 66. 
 Warmack v. Brownlee, 263. 
 Wame v. Morris Canal Co., 511. 
 Warner v. Bacon, 415. 
 v. Cushman, 318. 
 v. Southworth, 56, 196. 
 Warner Valley Stock Co. v. Calder- 
 
 wood. 85.. 
 Warrand v. Macintosh, 189. 
 Warren v. Blake, 358, 360. 
 
 v, Carey, 299. • 
 
 v. Chambers, 76, 155. 
 v. Hunter, 345. 
 v. Jacksonville, 105. 
 v. McDiarmid, 147. 
 v. Matthews, 4, 21, 48, 50, 186, 189. 
 v. Munroe, 447. 
 v. Prideaux, 91, 141. 
 v. Spencer Water Co., 84, 581. 
 v. Syme, 351. 
 v. Thomaston, 202. 
 v. Webb, 426, 427. 
 v. Westbrook M. Co., 75, 166, 207, 
 315. 
 Warren Manuf. Co. v. Hoffman, 318. 
 Warrick v. Queen's College, 184. 
 Warrington v. Morley, 120. 
 Warsaw W. W. Co. v. Warsaw, 245a. 
 Warwick & B. Nav. Co. v. Burman, 
 
 223. 
 Washabaugh v. Oyster, 320. 
 Washburn v. Oilman, 92, 220, 298, 375. 
 Washburn & Moen Manuf. Co. v. 
 Salisbury, 304, 468. 
 v. Worcester, 92, 261. 
 Washer v. Bullitt County, 242. 
 
 Washington v. Staten Island, etc. R. 
 
 Washington Bridge Co. v. State, 130, 
 
 Washington Ice Co. v. Shortall, 191. 
 Washington Toll Bridge v. Beaufort, 
 
 145. 
 Wasmer v. Delaware R. Co., 394 
 Wason v. Sanborn, 521, 525. 
 Waterbury v. Laredo, 35, 117. 
 Water Com'rs, Re, 133, 252, 341. 
 Water Com'rs v. Clark, 250. 
 Watercourses, Case of the, 349. 
 Waterford & Whitehall Turnpike v. 
 
 People. 121, 582. 
 Waterloo, The, 96, 114. 
 Waterloo v. Union Mill Co., 260, 307, 
 
 532. 
 Waterloo Bridge Co. v. Cull, 14 
 Waterloo Turnpike Road Co. v. Cole, 
 
 147. 
 Waterloo W. M. Co. v. Shanahan, 241. 
 Waterman v. Buck, 220. 
 
 v. Connecticut R. Co., 273, 589. 
 v. Johnson, 27, 56, 79, 196, 198, 203, 
 318. 
 Waterpark v. Fennell, 23. 
 Waters v. Bay View, 270. 
 
 v. Lilley, 24, 42, 85, 182. 184, 187, 
 
 188, 499. 
 v. Ross, 30. 
 v. Travis, 574. 
 Water Supply & S. Co. v. Larimer & 
 Weld Ir. Co., 228, 233, 235, 
 238. 
 v. Tenney, 228. 
 Watertown v. Cowen, 21, 121. 
 v. Draper, 187, 189. 
 v. White, 185, 188. 
 Watkins v. Holman, 37. 
 v. Milton, 91. 
 
 v. Peck, 322, 329, 331, 339, 340. 
 Watrous v. Watrous, 300. 
 Watson v. Bartlett, 311. 
 v. Kingston, 262, 272. 
 v. Knowles, 6, 192. 
 v. Marshall, 161. 
 v. Needham, 205, 243. 
 v. New Milford, 261, 278, 534 
 v. Peters, 75, 77, 157, 166, 196. 
 v. Toronto Gas Light Co., 219. 
 v. Troughton, 354 
 v. Van Meter, 212, 214, 587, 617. 
 Watterson v. Saldunbehere, 228. 
 Wattier v. Miller, 230, 521. 
 Watts v. Kelson, 320, 357. 
 v. Kinney, 319, 436. 
 v. Norfolk, etc. R. Co., 134, 210, 
 
 547. 
 v. Tittabawassee Boom Co., 90, 
 95, 97. 
 Watuppa Reservoir Co. v. Fall River, 
 84, 521. 
 v. Mackenzie, 299. 
 
CASES CITED. 
 
 CXI 
 
 Waugh v. Leech. 105. 
 Wausau Boom Co. v. Dunbar, 147. 
 Waverly v. Page, 266, 559. 
 Waverly Water Front Impr. Co. v. 
 
 White, 17, 167, 194 
 Wayland v. County Com'rs, 245. 
 v. Middlesex. 241. 
 v. St. Louis Ry. Co., 394. 
 Wayzata v. Great Northern Ey. Co., 
 
 157. 
 Weakly v. Legrand, 197. 
 Weare v. Chase, 218, 321. 
 Weatherby v. Meiklejohn, 102, 108, 
 
 143, 225. 
 Weatherly Water Co., In re, 244. 
 Weathersfield v. Humphrey, 43, 139. 
 Weaver v. Conger, 236. 
 
 v. Eureka Lake Co., 231, 235, 236. 
 v. Mississippi Boom Co., 103, 243, 
 244 
 Webb, The, 114 
 Webb's Case, 368. 
 Webb v. Bird, 55, 334 
 
 v. Demopolis, 58, 74, 117. 
 v. Dunn, 35. 
 v. Laird, 328. 
 v. New York, 145. 
 v. Port Bruce Harbor Co., 115. 
 v. Portland Manuf. Co., 207, 210, 
 213, 214, 215, 405, 407, 497, 513, 
 534 
 v. Russell, 302. 
 Webber v. Pere Marquette Boom Co., 
 
 82a, 166. 
 Weber v. Harbor Com'rs, 39, 40, 138, 
 
 149. 
 Webster v. Fleming, 209, 213. 
 v. Holland, 595, 596. 
 v. Potter, 305. 
 Weddell v. Hapner, 276. 
 Wedderburn v. Paterson, 158. 
 Weed v. Boston, 241. 
 
 v. Keenan, 334. 
 Weekly v. Wildman, 24 
 Weeks v. Heward, 544. 
 Weidekin v. Snelson, 271. 
 Weidekind v. Tuolumne County W. 
 
 Co., 298, 495. 
 Weill v. Baldwin, 234, 302. 
 Weimer v. Lowry, 233. 
 Weis v. Madison, 248a, 261, 271, 272. 
 
 v. Meyer, 305. 
 Weise v. Smith, 54, 76, 95, 99, 108. 
 Weisenberg v. Winneconne, 127, 132. 
 Weisenberger v. Miller, 241. 
 Weiss v. Binnian, 303. 
 
 v. Oregon Iron Co., 76, 213, 559. 
 Weitner v. Delaware Canal Co., 114. 
 Welby v. Rutland, 506. 
 Welch v. Garrett, 238. 
 
 v. Oregon Ry. & Nav. Co., 177. 
 Weld v. Androscoggin Side Booms, 
 144. ■ 
 v. Hornby, 21, 23, 91, 121, 187, 532. 
 
 Weldt v. The Howden, 4 
 Weller v. Smeaton, 121, 323, 506, 527, 
 534. 
 
 v. Snover, 181. 
 Welles v. Bailey, 56, 155. 
 Wellington, Petitioner, 139. 
 Wellington v. Murdock, 194 
 Wells v. Bridgeport Hydraulic Co., 
 245. 
 
 V. Day, 326. 
 
 v. Garbutt, 311. 
 
 v. Gas Float Whitton, 120. 
 
 v. Kingston-upon-Hull, 116. 
 
 v. Mantes, 228. 
 
 v. New Haven & N. Co., 210. 
 
 v. Ody, 372, 428. 
 
 v. Price, 233. 
 
 v. Trenholm, 304a. 
 Wells Avenue, Me, 175. 
 Wells Ave. Sewer, Be, 244 
 Welsh v. Rutland, 116. 
 
 v. State, 71. 
 Welton v. Martin, 121, 122, 214, 508, 
 521. 
 
 v. Walcott, 212, 606. 
 Wendell v. Baxter, 113, 114. 
 
 v. Pratt, 389. 
 Wendlandt v. Cavanaugh. 387. 
 Wenman v. Mackenzie, 21. 
 Wentworth v. Philpot, 354, 355, 362. 
 
 v. Poor, 227, 583. 
 
 v. Sandford Manuf. Co., 343, 602. 
 Werling v. Ingersoll, 69. 
 Wertz v. State, 435. 
 Wessels v. Colebank, 241. 
 Wesson v. Washburn Iron Co., 122, 
 
 123 
 West v. Fox River P. Co., 75, 323. 
 
 v. Louisville R. Co., 256. 
 
 v. Taylor, 263. 
 
 v. Walker, 511. 
 West Bellevue v. Huddleson. 269. 
 West Bend v. Mann, 115, 328. 
 West Boston Bridge v. Middlesex, 
 
 255. 
 West Branch Canal Co. v. Elmira R. 
 Co., 36. 
 
 v. Mulliner, 250, 257, 288, 289. 
 West Branch Logging Co. v. Strong, 
 
 143. 
 Westbrook Manuf. Co. v. Warren, 
 
 512 
 Westbury v. Pond, 402. 
 
 v. Powel, 214. 
 West Cumberland Iron Co. u.Kenyon, 
 
 281, 295. 
 Western v. Flanagan, 335. 
 Western Inv. Co. v. Farmers' Nat. 
 
 Bank, 85. 
 Western Ir. & Land Co. v. Chapman, 
 
 233. 
 Western Penn. R. Co.'s Appeal, 241. 
 Western Union Telegraph Co. v. At- 
 lantic Telegraph Co., 132. 
 
cxn 
 
 CASES CITED. 
 
 Westf all v. Perry, 321. 
 
 v. Van Anker, 99, 100. 
 "West Ham Central Charity Board v. 
 East London Waterworks, 
 211a. 
 West Lancashire Ry. Co. v. Iddon, 
 
 135. 
 West Maryland E. Co. v. Patterson, 
 
 146. 
 Westminster Brymbo Coal Co. v. 
 
 Clayton, 294, 552. 
 Westmoreland & Cambria N. Gas 
 
 Co. v. De Witt, 291. 
 West Norfolk F. M. Co. v. Archdale, 
 
 91, 161. 
 Weston v. Alden, 205. 
 
 v. Sampson, 4, 9, 18, 20, 21, 32, 37, 
 169, 188, 189. 
 West Point Ir. Co. v. Moroni, etc. Ir. 
 
 Ditch Co., 230. , 
 West Point W. P. Co. v. State, 187, 
 
 474. 
 West Roxbury v. Stoddard, 37, 84, 86, 
 109, 111, 148, 182, 191, 198, 
 203. 
 West Surrey W. Co. v. Chertsey 
 
 Union, 245a. 
 West Virginia Transp. Co. v. Vol- 
 canic Oil Co., 241. 
 Wetmore v. Atlantic White Lead Co., 
 104, 138, 151, 175. 
 v. Brooklyn Gaslight Co., 120, 138, 
 
 175. 
 v. Fiske, 41, 308, 351. 
 v. Law, 196. 
 v. Robinson, 330. 
 v. Tracy, 121, 128. 
 v. White, 307, 323. 
 Wetzel v. United States, 241. 
 Weyman v. Jefferson, 272. 
 Weymouth v. Beatham, 102. 
 Weynand v. Lutz, 354. 
 Whaler v. Ahl, 210, 218, 227. 
 Whaley v. Lang, 224. 
 Whaliey v. Lancashire, etc. Ry. Co., 
 161, 273. 
 v. Thompson, 355. 
 Whallon v. Circuit Judge, 13. 
 Wharf Case, The, 4, 119, 120, 176, 181, 
 
 212. 
 Wharton v. Stevens, 271, 509. 
 
 v. Wise, 61. 
 Wheatcroft v. Matlock Local Board, 
 
 41. 
 Wheatley v. Baugh, 204, 280, 285, 290, 
 295. 
 v. Crisman, 204, 208, 347. 375, 408, 
 415. 
 Wheeldon v. Burrows, 354, 357, 358. 
 Wheeler v. Brown, 310. 
 
 v. Essex Public Road, 117, 248. 
 v. Fisher Oil Co., 544. 
 v. Northern Colorado Ir. Co., 217, 
 473. 
 
 Wheeler v. Reynolds, 323. 
 v. Schad, 302. 
 
 v. Spinola, 27, 121, 195, 198, 203. 
 v. State, 551. 
 v. Steele, 517. 
 v. Stone, 37, 162, 164, 195. 
 v. Wilder, 318. 
 
 v. Worcester, 41, 222, 260, 262, 274. 
 398. 
 Wheeling & B. Bridge Co. v. Wheel- 
 ing Bridge Co., 193. 
 Wheelock v. Jacobs, 355. 
 
 v. Thayer, 302, 448. 
 Whelan v. McLachtlan, 56. 
 Whetmore, The A. R, 96. 
 Whetstone v. Bowser, 281, 285. 
 Whetton v. Clayton, 248. 
 Whigham v. Davis, 472. 
 Whipple v. Cumberland Manuf. Co., 
 214, 227, 405. 
 v. Fair Haven, 546, 562. 
 Whistler, The, 35. 
 Whistler v. Wilkinson, 108, 110. 
 Whitaker v. Delaware Canal Co., 135. 
 v. Erie Shooting Club, 22, 37. 
 v. Wise, 18. 
 Whitburn, The, 119, 120. 
 Whitchurch v. Hide, 507, 548. 
 White v. Barlow, 308. 
 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. East Lake Land Co., 213, 226, 
 
 495. 
 v. Farmers' H. C. Co., 228. 
 v. Flannigan, 123. 
 v. Forbes, 507, 534 
 v. France, 113. 
 v. Hardin, 325. 
 v. King, 134 
 v. Leeson, 306. 
 v. Loring, 341. 
 v. Luning, 195. 
 v. Mellin, 552. 
 
 v. Moseley, 210, 211b, 421, 424 
 v. Petty, 22, 188. 
 v. Phillips, 113, 114 
 v. Sheldon, 275. 
 v. South Shore R. Co., 257. 
 v. Tebo, 175. 
 
 v. Todd's Water Co., 236. 
 
 v. Whittier, 104 
 
 v. Winnisimmet Co., 193. 
 
 White's Bank v. Nichols, 348. 
 
 White's Charities, In re, 196. 
 
 White Deer Creek Co. v. Sassaman, 
 
 111, 143. 
 Whiteford Township v. Probate 
 
 Judge, 242. 
 Whitehall Transp. Co. v. New Jersey 
 Steamboat Co., 96. 
 
CASES CITED. 
 
 CX11I 
 
 Whitehead v. Garvis, 373. 
 
 v. Jessup, 132. 
 
 v. Parks. 281, 286, 300. 
 
 v. Plummer, 243. 
 Whitehouse v. Birmingham Canal 
 Co., 256. 
 
 v. Fellowes, 115, 295, 412, 420. 
 Whitehurst v. McDonald, 76. 
 White River Booming Co v. Nelson, 
 
 90. 
 White River Co. v. Vermont Central 
 
 R Co., 145. 
 White River Log Co. v. Nelson, 110. 
 Whiteside v. Bellchamber, 144. 
 
 v. Singleton, 294 
 Whitfield v. Rogers, 520. 
 Whitman v. Boston & Maine Rail- 
 road, 194. 252, 255. 
 Whitmarsh v. Walker, 322. 
 Whitmore v. Bischoff, 412. 
 
 v. Bowman, 193. 
 Whitney v. Allaire, 325. 
 
 v, Detroit Lumber Co., 194. 
 
 V. Eames, 204, 227. 
 
 v. G-auohe, 113. 
 
 v. New York, 120. 
 
 v. Olney, 305, 306. 
 
 v. Richardson, 299. 
 
 v. Sanders, 268, 373. 
 
 v. State, 241. 
 
 v. Stone, 251. 
 
 v. Wheeler Cotton Mills, 84, 204, 
 334. 
 Whiton v. Albany Ins. Co., 1. 
 Whitstable Free Fishers v. Gann, 4, 
 
 9, 18, 20, 21, 26, 141, 189. 
 Whittaker v. Burhaus, 99, 100. 
 Whittenton M. Co. v. Staples, 305. 
 Whittier v. Cooheco Manuf. Co., 344. 
 Whitwell v. Wells, 197. 
 Whitworth v. Puokett, 609. 
 Wholey v. Caldwell, 366. 
 Whyte v. Builders' League, 305, 355. 
 
 v. St. Louis, 105, 155. 
 Wichita Gas Co. v. Wright. 291. 
 Wichita R. Co. v. Beebe, 210. 
 
 v. Kuhn, 251. 
 Wickersham v. Bills, 305. 
 Wickham v. Walker, 184. 
 Wicks v. Hunt, 513, 516, 518, 527, 530, 
 
 554. 
 Wickwire v. Gould, 160. 
 Widder v. Buffalo & Lake Huron Ry. 
 
 Co., 150. 
 Wier v. Covell, 484. 
 Wigford v. Gill, 365. 
 Wiggins v. Boddington, 115, 125, 126, 
 134. 
 
 v. Muscupiabe L. Co., 233. 
 
 v. Tallmadg,e, 105. 
 Wiggins Ferry Co. v. East St. Louis, 
 35, 133. 
 
 v. Louisville, etc. R. Co., 194. ' 
 
 V. Reddig, 202. 
 
 Wight v. Packer, 586, 590. 
 Wight F. P. Co. v. Poczekai, 495. 
 Wilbor v. Matheson. 604. 
 Wilbur v. Brown, 447, 478. 
 Wilcox v. Bread, 83. 
 
 v. Hausch, 239. 
 
 v. Jackson, 112. 
 
 v. Kendall, 321. 
 
 v. Wheeler, 428, 525, 535. 
 Wilcoxon v. McGee, 227, 305. 
 Wilder v. Com'rs, 252. 
 
 v. Clough, 335. 
 
 v. De Cou, 123. 
 
 v. Strickland, 509, 541. 
 
 v. Wheeler, 294, 299. 
 Wilhelm v. Burleyson, 155. 
 Wilkes v. Hungerford Market Co.,. 
 123, 124. 126. 
 
 v. Kirby, 141. 
 Wilkins v. Irvine, 300, 578. 
 
 v. Lamb, 23, 210. 
 
 v. McClue, 245. 
 
 v. Nicolai, 332. 
 Wilkinson v. Applegate, 210. 
 
 v, Langridge, 247. 
 
 v. Mayo, 609. 
 
 v. Proud, 329. 
 Wilklow v. Lane, 342. 
 Will County Supervisors v. People, 
 
 472. 
 Willamett Falls Co. v. Kelly, 259. 
 Willamette Iron Bridge Co. v. Hatch, 
 
 34, 39, 68, 78. 
 Willamette Iron Works v. Oregon 
 
 Railway & Nav. Co., 244. 
 Willamette Manuf. Co. v. British Co- 
 lumbia Bank, 244. 
 Willard v, Cambridge, 122. 
 
 v. Forsythe, 193. 
 
 v. Magoon, 165. 
 Willcox v. Hines, 391. 
 Willey v. Allegheny City, 115. 
 
 v. Hunter, 211. 
 
 v. Lewis, 158. 
 
 v. Norfolk So. R. Co., 251. 
 Wm. H. Bailey, The, 88. 
 Wm. H. Brinsfield, The, 96. 
 William Law, The, 4. 
 Williams v. Baker, 156, 176, 304a. 
 
 v. Barber, 338. 
 
 v. Beardsley, 132, 133. 
 
 v. Blackwell, 128. 
 
 v. Boston Water Power Co., 194. 
 
 v. Buchanan, 196. 
 
 v. Camden Water Co., 374. 
 
 v. Cammack, 138. 
 
 v. Canaday, 625. 
 
 v. Cummington, 121. 
 
 v. Davidson, 118, 193. 
 
 v. Elting Woollen Co., 583. 
 
 v. Fink, 128. 
 
 •a. Fulmer, 248a. 
 
 v. Gale, 274. 
 
 v. Glover, 74. 
 
CX1V 
 
 CASES CITED. 
 
 Williams v. Harter, 211a, 230, 234, 240, 
 509. 
 v. Heath, 509. 
 v. Ingloes, 138. 
 v. Jackson, 194 
 v. The Jenny Lind, 67 
 v. Jersey, 323, 530. 
 v. Kivett, 195. 
 v. Ladew, 280, 469. 
 v. Lane, 179. 
 v. Mills County, 343. 
 v. Morland, 204, 227, 402. 
 v. Nelson, 227, 253, 335, 351, 353, 
 
 602, 603. 
 v. New York, 152, 175. 
 . v. New York Central R. Co., 136, 
 
 212 
 v. Pomeroy Coal Co., 281, 421. 
 v. Smith, 123. 
 v. Tripp, 123, 126. 
 v. Turner, 193. 
 v. Wadsworth, 205, 224, 299, 305, 
 
 349. 
 v. Wilcox, 4, 20, 21, 52, 53, 54, 55, 
 86, 91, 92, 98, 99, 140. 
 Williamsburg Boom Co. v. Smith, 62, 
 
 168, 179, 194. 
 Williamson v. Carlton, 595. 
 v. Haskell, 55. 
 v. Jones, 291. 
 v. Lock's Creek Canal Co., 204, 
 
 210, 213, 265. 
 v. Yingling, 183, 222, 555. 
 Willing v. Bozman, 189. 
 Willingale v. Maitland, 24, 184 
 Willis v. Perry, 280, 281. 
 
 v. Sproule, 128. 
 Willits v. Chicago, etc. R. Co., 256, 
 
 273, 416. 
 Willoughby v. Horridge, 193. 
 
 v. Shipman, 611. 
 Willow Creek Ir. Co. v. Michaelson, 
 
 229 
 Willow River Club v. Wade, 67, 182. 
 Wills v. Leverich, 194 
 Willsonu Blackbird Creek Co., 33, 34, 
 35,130, 131, 132, 134 
 v. Boise City, 260. 
 Willyard v. Hamilton, 241. 
 Wilmarth v. Knight, 599. 
 Wilmington W. P. Co. v. Evans, 244, 
 
 321. 
 Wilmot v. Jarvis, 96. 
 Wilson, The. 34. 
 Wilson, In re, 291. 
 
 Wilson v. Baltimore, etc. R. Co., 242, 
 244. 
 v. Barnes, 91. 
 v. Bondurant, 241. 
 v. Campbell, 594, 602. 
 v. Chicago, 114. 
 v. Cochran, 460. 
 v. Duncan, 265. 
 v. Equitable Gas Co., 251. 
 
 Wilson v. Featherstone, 534 
 
 v. Forbes, 60, 182. 
 
 v. Hamilton, 193. 
 
 v. Hanthorn, 617. 
 
 v. Higbee, 233. 
 
 v. Hill, 186, 511. 
 
 v. Ingloes, 176. 
 
 v. McNamee, 1. 
 
 v. McNeal, 462. 
 
 v. May Fishery Co., 185. 
 
 v. Mills, 35. 
 
 v. Myers, 579, 603, 621. 
 
 v. New Bedford, 209, 280, 288, 296. 
 
 v. Newberry, 296. 
 
 v. New York, 261, 270. 
 
 v. Perrault, 233. 
 
 v. Robertson, 141. 
 
 v. St. Paul Ry. Co., 324 
 
 v. Shively, 155. 
 
 v. Sinclair, 305. 
 
 v. Smith, 111. 
 
 v. State Land Com'rs, 138. 
 
 v. Sulkin, 193. 
 
 v. Susquehanna Turnpike Co., 
 114. 
 
 v. Vaughn, 349. 
 
 v. Waddell, 267, 289, 295. 
 
 v. Ward, 281, 285. 
 
 v. Welch, 177. 
 
 v. Wentworth. 192. 
 
 v. Willes, 24. 
 
 v. Wilson, 334, 341, 373. 
 Wilterding v. Green, 473. 
 Wilton v. Murray, 266. 
 Wilts Canal v. Swindon Water Co., 
 
 205, 214, 245, 513, 519, 534 
 Wimer v. Simmons, 229, 238. 
 Winants v. Jersey City, 171. 
 Winch v. Conservators of the River 
 
 Thames, 101, 115. 
 Winchester v. Osborne, 220, 345. 
 
 v. Stevens Point, 209, 371. 
 Winder v. Blake, 85. 
 Windham v. Portland, 13. 
 Winham v. McGuire, 323. 
 Wing v. Fairhaven-, 509, 551. 
 Wingard v. Tift, 323. 
 Wingate v. Waite, 161. 
 Winifrede Coal Co. v. Central Ry. & 
 
 B. Co., 132. 
 Winkleman v. Drainage District, 271. 
 Winklemans v. Des Moines N. W. 
 
 Railway, 257. 
 Winkler v. Meister, 371. 
 Winkley v. Salisbury Manuf. Co., 
 
 319, 584, 590, 599. 
 Winn v. Rutland, 243, 261, 272, 278. 
 Winne v. Kelley, 211b, 327. 
 
 v. Ulster C. S. Inst., 324 
 Winnepesaukee C. M. Ass'n v. Gor- 
 don, 82a. 
 Winnipeg v. Cauchon, 103. 
 Winnipiseogee Lake Co. v. Perley, 
 568, 570, 575. 
 
CASES CITED. 
 
 cxv 
 
 Winnipiseogee Lake Co. v. Worster, 
 511. 
 v. Young, 330, 335, 344, 477, 521, 
 550, 599. 
 Winnisimet Co. v. Wyman, 162, 164. 
 Winon v. Rutland, 261. 
 Winpenny v. Philadelphia, 98, 116, 
 
 117, 138. 
 Winship v. Hudspeth, 334, 335. 
 Winslow v. Fuhrman, 225. 
 v. Mulohey, 561. 
 v. Patten, 169. 
 v. Walker, 192. 
 v. Winslow, 241. 
 Winsmore v. Greenbank, 392. 
 Winston v. Gwathmey, 325, 326. 
 Winter v. Brockwell, 322. 
 v. City, 157. 
 v. Fulstone, 331, 495. 
 v. Winter, 338. 
 Winterbottom v. Derby, 125, 126. 
 Wintermute v. Tacoma L. & W. Co., 
 
 528. 
 Winthrop v. Curtis, 194. 
 
 v. Fairbanks, 810. 
 Wisconsin v. Doty, 40. 
 
 v. Duluth, 34, 129, 132, 134. 
 v. Eau Claire, 132, 136, 143. 
 Wisconsin R. Co. v. Manson, 103. 
 Wisconsin River Impr. Co. v. Lyons, 
 75, 108, 126, 133, 134, 140, 
 179. 
 v. Manson, 35, 132, 133. 
 Wisconsin W. Co. v. Winans, 241. 
 Wiseman v. Lucksinger, 300, 323, 338. 
 Wishart v. Wyllie, 46, 160, 196. 
 Wishmier v. State, 241. 
 Wismer v. Great Western R. Co., 582. 
 Wiswall v. Hall, 27, 120, 304a. 
 Wiswell v. Minogue, 362. 
 Witheral v. Muskegon Booming Co., 
 
 90. 
 Witherbee v. Meyer, 327. 
 Witherly v. Regent's Canal Co., 115. 
 Withers v. Buckley, 32, 34, 35, 39, 132, 
 143. 
 v. North Kent R. Co., 98. 
 v. Purchase, 209. 
 Witt v. Jefcoat, 59, 110, 147. 
 
 v. Jefferson, 301, 310. 
 Wixon v. B. & A. Water Co., 233, 543. 
 Wixson v. Devine, 231. 
 Woburn Union v. Newport Pagnell 
 
 Union, 428. 
 Wolcott Manuf. Co. v. Upham, 579, 
 
 580, 594. 
 Wold v. May, 234 
 Wolf v. Coffy, 585. 
 v. Crothers, 263. 
 
 v. St. Louis W. Co., 232, 298, 364 
 Wolhauper v. Foley, 87. 
 Wolverton v. Lacey, 67. 
 Womersley v. Church, 219, 288, 819, 
 
 542. 
 Wong Kim v. Kioula, 394 
 
 Wonson v. Sayward, 192. 
 
 v. Wonson, 27, 162. 163, 164 169. 
 Wood's Case, 31. . 
 Wood v. Appal, 65, 76, 162, 197, 198. 
 v. Boughan, 609. 
 v. Chicago Ry. Co., 471. 
 v. C, R. I. & P. R. Co., 72. 
 v. Com'rs of Bridges, 195. 
 v. Edes, 217, 218, 300. 
 v. Etiwanda W. Co., 240, 483. 
 v. Fowler, 76, 112, 191. 
 v. Hinton, 363. 
 v. Hustis, 75, 110, 579, 591. 
 v. Jackson, 504. 
 v. Kelley, 189, 196, 203, 335, 344, 
 
 603. 
 v. Lowney, 322. 
 v. M. C. & F. R. Co., 30. 
 v. N. Y. Nat. W. Co., 260. 
 v. Ramsey, 194. 
 v. Rice, 108, 483. 
 v. Richardson, 239. 
 v. San Francisco, 157. 
 v. Saunders, 300. 
 v. Sawin, 305. 
 v. State. 435. 
 v. Sutcliffe, 219, 223, 508, 509, 510, 
 
 525, 528, 530, 544 
 v. Truckee Turnpike Co., 142. 
 v. Veal, 331. 
 v. Venton, 185. 
 
 v. Waud, 41, 204, 205, 213, 219, 225, 
 265, 279, 288, 340, 345, 352, 
 375, 403. 
 v. Wilson, 616. 
 Woodbury v. Marblehead Water Co., 
 271, 561. 
 v. Parshley, 324. 
 v. Short, 159. 
 v. Willis, 376, 379, 480. 
 Woodcock v. Estey, 286, 304a. 318. 
 Wooden v. Mt. Pleasant L. Co., 90. 
 Woodford v. Brinker, 416. 
 Woodhouse v. Newry Nav. Co., 190. 
 Woodin v. Wentworth, 208, 211b. 
 Woodman v. Kil bourn Manuf. Co., 68, 
 132, 133, 134, 136. 
 v. People, 241. 
 v. Pitman, 111, 191. 
 v. Spencer, 46. 
 
 v. Tufts, 214, 383, 385, 388, 389, 
 , 392, 393, 405. 
 Woodring v. Fords Township, 260. 
 Woodruff v. Fisher, 212, 545. 
 v. Havemeyer, 120. 
 v. Lockerby, 524. 
 v. Neal, 260. 
 
 v. North Bloomfield Gravel Min- 
 ing Co., 68, 121, 129, 240, 247, 
 346, 532, 540, 544. 559, 566. 
 v. One Covered Scow, 119. 
 v. State, 247. 
 
 v. Trenton Water Power Co., 302, 
 574 
 Woods v. Henry, 13. ■ 
 
CXV1 
 
 CASES CITED. 
 
 Woods v. Nashua Manuf. Co., 143, 250, 
 
 416, 579. 
 Woodward v. Aborn, 219, 375. 
 
 v. Carl, 192. 
 
 v. Fox, 17, 192. 
 
 IX Seely, 321. 
 
 v. Webb, 248. 
 
 v. Worcester, 219, 261. 
 Woodworth v. Genesee Paper Co., 
 
 218a. 
 Woodyear v. Schaefer, 219, 222, 544, 
 
 565. 
 Wool v. Edenton, 178. 
 Woolever v. Stewart, 187, 188. 
 Wooley v. Campbell, 188, 189. 
 
 v. Groton, 37. 
 Woolisoroft 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 G. L. Co. v. Worcester 
 
 County Com'rs, 243. 
 Worcester Railroad v. Railroad 
 
 Com'rs, 255. 
 Work v. Welsh, 528. 
 Workman v. Curran, 329, 332. 
 
 v. Great Northern Ry. Co., 259. 
 
 v. Worcester, 261. 
 Works v. Junction R. Co., 34, 95, 121, 
 
 132, 134. 
 Worsley v. Second Municipality, 35. 
 Worster v. Winnipiseogee Lake Co., 
 
 428, 430. 
 Worthington v. Gimson, 314, 355, 357. 
 Worthington & Davis, The, 96. 
 Wright v. Brown, 89. 
 
 v. Chicago, 118. 
 , v. Cooper, 222. 
 
 v. Day, 75, 76, 85. 
 
 v. Eldred, 83, 137. 
 
 v. Freeman. 314, 348. 
 
 v. Gully, 326. 
 
 v. Holbrook, 298. 
 
 v. Howard, 196, 204, 214, 227, 330, 
 375, 402. 
 
 v. Lethbridge, 114. 
 
 v. Moore, 212, 215, 329, 365, 508, 
 510, 532, 533, 534, 
 
 v. Morris, 146, 147. 
 
 v. Mulvaney, 87. 
 
 v. Newton, 299, 304. 
 
 v. Pugh, 585, 610, 616. 
 
 v. Raftree, 323. 
 
 v. Roseberry, 36. 
 
 v. Seymour, 174. 
 
 v. Shanahan, 556. 
 
 v. Shindler, 208. 
 
 v. Shorter, 145. 
 
 v. Stowe, 605. 621. 
 
 v. Syracuse R. Co., 210, 214, 257. 
 
 v. Thomas, 138. 
 
 Wright v. Turner, 509. 
 
 v. Williams, 219, 345, 491. 
 
 v. Wilmington, 260. 
 
 v. Woodcock, 148. 
 Wroe v. Harris, 61, 609. 
 
 v. State, 122. 
 Wurts v. Hoagland, 212, 241. 
 Wusthoff v. Dracourt, 311. 
 Wyandanch Club v. Davis, 57. 
 Wyandot Club v. Sells, 281, 289. 
 Wyatt v. Larimer & W. Ir. Co., 299. 
 
 v. Thompson, 95, 99, 120, 124. 
 Wyckoff v. Queens County Ferry Co., 
 
 193. 
 Wycombe Union S. R. Authority v. 
 
 Parsons, 223. 
 Wyman v. County Com'rs, 138. 
 
 v. Farrar, 306, 311. 
 
 v. Oliver, 182, 185. 
 Wynkoop v. Burger, 318. 
 Wynn v. Garland, 323. 
 Wyoming Coal Co. v. Price, 241, 255. 
 Wyse v. Leahy, 25. 
 
 X Y. Ir. Ditch Co. v. Buffalo Creek 
 Ir. Co., 233. 
 
 Yadkin Nav. Co. v. Benton, 104, 140. 
 Yakima W. Co. v. Hathaway, 243. 
 Yale v. Brace, 340. 
 
 v, Hampden Turnpike Co., 115. 
 Yankee Jim's Water Co. v. Crary, 238. 
 Yard v. Carman, 183, 189. 
 
 v. Ford, 193, 331. 
 
 v. Ocean Beach Ass'n, 22, 171. 
 Yarmouth v. Eaton, 4, 120, 141. 
 
 v. Simmons, 149. 
 
 v. Skillings, 187. 
 Yates v. Judd, 54, 75, 105, 111, 134, 
 138, 140, 148. 
 
 v. Milwaukee, 32, 76, 78, 122, 124. 
 128, 138, 149, 151, 179, 243. 246. 
 
 v. Van De Bogert, 200. 
 Yazoo, etc. R. Co. v. Davis, 263, 273. 
 Yeager v. Fairmont, 269, 271. 
 
 v. Woodruff, 324, 338. 
 Yeatman v. Crandall, 247. 
 
 v. New Orleans, 157. 
 Yeaw v. Holland, 91. 
 Yellow River Impr. Co. v. Arnold, 
 
 145. 
 Yesler v. Harbor Line Com'rs, 138. 
 Yocco v. Conroy, 234. 
 Yoder v. Swope, 197. 
 Yolo Co. v. Sacramento, 92, 121, 123, 
 
 124. 
 Yonkers, In re, 157. 
 Yonkers v. Palisade Ferry Co., 113. 
 
CASES CITED. 
 
 CXVH 
 
 York v. Pilkington, 318a. 563, 564, 565. 
 York Ry. Co. v. Reg., 115. 
 Yorkshire County Council v. Holm- 
 firth U. S. Authority, 223. 
 Yost v. Conroy, 495. 
 Young, Ex parte, 35. 
 Young v. , 99. 
 
 v. Bankier Distillery Co., 219. 
 
 v. Chicago, etc. Ry. Co., 256. 
 
 v. Com'rs, 271. 
 
 v. Forest Oil Co., 291. 
 
 v. Frost, 176. 
 
 v. G-entis, 416. 
 
 v. Grand River Nav. Co., 248. 
 
 v. Harrison, 55, 58, 142, 144, 259. 
 
 v. Hitchens, 1. 
 
 v. Kansas City, 260. 
 
 v. Leedom, 268, 298. 
 
 v. Price, 609. 
 Youngman v. Elmira R. Co., 144 
 Ysleta v. Babbitt, 241. 
 
 Yuba County v. Clobe, 211c. 
 Yunker v. Nichols, 234. 
 
 z. 
 
 Zeidler v. Johnson, 598. 
 
 Zemlock v. United States, 243. 
 
 Zenor v. Concordia, 247. 
 
 Zeta, The, 33, 114. 
 
 Zetland v. Glover Incorp. of Perth, 
 
 158. 
 Ziegele v. Richelieu & O. Nav. Co., 
 
 175. 
 Ziller v. Yacht Club, 155. 
 Zimmerman v. Canfield, 241, 244. 
 
 v. Union Canal Co., 65, 143, 249. 
 Zimmler v. San Louis W. Co., 317. 
 Zoebisch v. Tarbell, 113. 
 Zorn v. State, 243. 
 Zug v. Com., 65, 173. 
 Zweig v. Horicon Iron Co., 586. 
 
THE LAW OF WATEKS. 
 
THE LAW OF "WATERS. 
 
 PART I. 
 
 PUBLIC WATERS. 
 
 CHAPTER L 
 
 OF PROPERTY EST TIDE WATERS AT COMMON LAW. 
 
 SECTION. 
 
 1. Property in the open sea. 
 
 2, 3. Rights 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. Right to minerals beneath the sea and seashore. 
 
 11, 12. Regina v. Keyn. 
 
 13, 14. The authority of this decision. 
 
 15, 16. Effect of legislation respecting territorial waters. 
 
 17,18. The nature of the Crown's titl& The jits publicum and the jus pri- 
 vatum. 
 
 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, 
 
 26. Bathing. 
 
 27. Limits of the shore. 
 
 28. Words synonymous with "shore." 
 
 29. Meaning of these terms in legal instruments. 
 
 § 1. The sea — Property in. — The sea is serviceable for 
 important uses, especially for navigation and fishery ; but it 
 is incapable, from its nature, of permanent appropriation and 
 continuous occupation. 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 
 1 
 
THE LAW OF WATERS. 
 
 [CH. L 
 
 as there is no title which is superior to his possession. Be- 
 tween different 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, and obtaining a firm 
 possession, shall be entitled to the fish. 1 But, where no special 
 custom of fishery was proved, it was held that the plaintiff, 
 who while fishing had nearly encompassed the fish with his 
 net, could not recover from the defendant for rowing his boat 
 to the opening, thereby disturbing the fish and preventing 
 their capture. 2 So, in general, in an ordinary case of fishing 
 in tide water by weirs, nets or lines, no action lies by one fish- 
 erman against another for anticipating him in a capture of 
 fish. 3 The tests for determining the ownership of such parts 
 of the sea as can be appropriated, or of islands arising there- 
 from or newly discovered, are occupancy, discovery or con- 
 quest. 4 Those, for instance, who expend money in mining 
 guano upon a newly discovered island and convey it to the 
 shore, are entitled to protection in the enjoyment of the prop- 
 erty thus acquired. 5 Ships upon the ocean continue subject to 
 
 1 Farmings v. Grenville, 1 Taunt. 
 241; Littledaleu Smith, id. 243, note;' 
 Aberdeen Arctic Co. v. Sutter, 4 Macq. 
 H. L. Cas. 355; Hogarth v. Jackson, 
 M. & M. 58; Skinner v. Chapman, id. 
 59, note; Taber v. Jenny, 1 Sprague, 
 315; Bartlett v. Budd, 1 Lowell, 223; 
 Bourne v. Ashley, id. 27; Swift v. 
 Gifford, 2id.ll0. Fish not reclaimed 
 or confined are not the subject of 
 larceny. Rex v. Carrodice, 2 Euss. 
 1199; State v. Krider, 78 N. C. 481. 
 A sale of fish afterwards to be caught 
 in the sea is invalid. Low v. Pew, 
 108 Mass. 347. By usage, on Cape Cod, 
 fishermen who shoot, with lances, 
 fired from guns, bearing the owner's 
 mark, fin-back whales, which fre- 
 quent the eastern part of Massachu- 
 setts Bay in the early spring, and, 
 when killed, sink at once to the bot- 
 tom, but usually rise again and float 
 within three days, own the whale 
 thus killed, although they are accus- 
 tomed to pay a small salvage to per- 
 sons who find them on the beach; 
 
 and this usage, which has continued 
 for many years, has been held to be 
 reasonable and valid, the appropriar 
 tion being as complete as the nature 
 of the case admits of. Ghen v. Rich, 
 8 Fed. Rep. 159. See Heppingstone 
 v. Mammen, 2 Hawaiian, 797. 
 
 2 Young v. Hitchens, 6 Q. B. 606. 
 Contra, if the defendant's act were 
 malicious. Post, § 87; Keble v. Hick- 
 eringill, 11 Mod. 74, 130. See Mul- 
 lett v. Bradley, 53 N. Y. S. 781 (case 
 of a sea lion). 
 
 s Stevens v. Jeacocke, 11 Q. B. 731; 
 Cheney v. Guptill, 2 Hannay (N. B.), 
 379. 
 
 4 Lawrence's Wheat. Int. Law, pt.. 
 II, ch. 4, § 5; 2 Black. Com. 3, 8, 258, 
 400; 3 Kent Com. 318; Grotius, Mare- 
 Lib, chs. 5, 7; Fleta, lib. 3, ch. 2, §§ 6, 
 9; Just. Inst. lib. 2, tit. 1, § 22;. 
 Schultes, Aquatic Rights, 45. 
 ■ 5 American Guano Co. v. United 
 States Guano Co., 44 Barb. 23. See- 
 11 U. S. Stats, at Large, 119; U. S. 
 Rev. Stats. §§ 5570-5578; Benson v. 
 
§2.] 
 
 PEOPEJJTY IN TIDE WATERS. 
 
 the law of the flag, making those on board amenable to the 
 laws of the nation to which the vessel is accredited. 1 A na- 
 tion's jurisdiction extends to the punishment of its citizens for 
 offenses committed on deserted islands or an uninhabited coast; 2 
 and the consensus of civilized nations may establish rules for 
 navigators having a force of the law of the sea. 3 But, With re- 
 spect to property, the sea is not subject to the exclusive domin- 
 ion of any nation, and cannot be apportioned by municipal law. 4 
 
 § 2. Territorial waters — Jurisdiction — Property. — It is 
 
 somewhat different with respect to those parts of the sea which 
 
 Ketchum, 14 Md. 331; Duncan v. 
 Navassa Phosphate Co., 35 Fed. Rep. 
 474; 11 S. Ct. 342; Jones v. United 
 States, 137 XJ. S. 202; The Dauntless, 
 19 Fed. Eep. 798; Whiton v. Albany 
 Ins. Co., 109 Mass. 24. 
 
 iCrapo v. Kelly, 16 Wall. 610; 45 
 N. Y. 86; 41 Barb. 603; McDonald v. 
 Mallory, 77 N. Y. 547; In re Bye, 2 
 Daly, 525; The Belgenland, 114 U. S. 
 355; Lloyd v. Guibert, L. R. 1 Q. B. 
 115; The Gaeta.no, 7 P. D. 137; Reg. 
 v. Bjornsen, 10 Cox, C. C. 74; Reg. v. 
 Sattler, 7 id. 431; Dears. & B. C. C. 
 525; Reg. v. Lesley, 8 Cox, C. C. 269; 
 Bell, C. C. 220; Reg. v. Anderson, L. 
 R. 1 C. C. 161; 9 Cox, C. C. 198; The 
 August, (1891) P. 328; In re Moncan, 
 8 Sawyer, 350; Lawrence's Wheat. 
 Int. Law, pt. II, ch. 2. § 4; Wildman's 
 Int. Law, 40; Halleck's Int. Law, 185; 
 Bluntschli, § 317; Parker v. Byrnes, 
 1 Lowell, 539; Johnson v. Twenty-one 
 Bales, 2 Paine, 601 ; United States v. 
 Bennett, 3 Hughes, 466; Calahan v. 
 Babcock, 21 Ohio St. 281. See 31 Am. 
 L. Reg. N. s. 193. The State to which 
 a vessel belongs, and not the United 
 States, is, in this country, the sover- 
 eignty whose laws accompany the 
 vessel 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, 16 Wall. 522; 9 R. I. 419; Sher- 
 lock v. Ailing, 93 U. S. 99; McDonald 
 v. Mallory, 77 N. Y. 546. In Rex v. 
 
 Allen, 1 Moo. C. C. 394, an English 
 sailor was held guilty in the English 
 admiralty for stealing tea from his 
 own vessel when lying in a river in 
 China twenty miles or more from its 
 mouth, there being no evidence as to 
 the tide. See United States v. Gor- 
 don, 5 Blatch. 18. Torts originating 
 within the waters of a foreign nation 
 may be the subject of a suit in our 
 domestic courts. Panama R. Co. v. 
 Napier Shipping Co., 166 U. S. 280, 285. 
 
 2 United States v. Smiley, 6 Sawyer, 
 640; Be Stupp, 11 Blatch. 124; 12 id. 
 501; Roth v. Roth, 104 111. 35; 18 A. G. 
 Op. 219. 
 
 *Ex parte McNeil, 13 Wall. 236; 
 The Continental, 14 Wall. 345; Wil- 
 son v. MoNamee, 102 U. S. 572; Lord 
 v. Steamship Co., id. 541; 1 Kent 
 Com. 27; Vattel, bk. 1, ch. 19, § 216; 
 2 Rutherford's Inst., bk. 2, ch. 9, §§ 8, 
 19. In The Scotia, 14 Wall. 170, 187, 
 Mr. Justice Strong said: "Undoubt- 
 edly, no single nation can change the 
 law of the sea. That law is of uni- 
 versal obligation, and no statute of 
 one or two nations can create obli- 
 gations for the world. Like all the 
 laws of nations, it rests upon the 
 common consent of civilized com- 
 munities. It is of force, not because 
 it was prescribed by any superior 
 power, but because it has been gen- 
 erally accepted as a rule of conduct." 
 
 * Ibid. ; Vattel, § 279; Grotius, bk. 2, 
 §§ 3, 7; Cooper's Justinian, 67, § 1; 
 1 Phil. Int. Law, ch. 5. 
 
THE LAW OF WATEES. 
 
 [Oh. I. 
 
 adjoin the shores of civilized nations. By general consent they 
 have been regarded as capable of appropriation, and of being 
 held by a kind of possession. Maritime countries have claimed 
 from the earliest times 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 contig- 
 uous seas, 1 and the exclusive right to enjoy whatever of value 
 may be acquired therefrom. 2 The dominion over the territorial 
 seas, as they are called, may, therefore, include rights of juris- 
 diction, or of property, or both. By the modern law of na- 
 tions, 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, 3 although, for the purpose of self -protection in 
 time of war, and for the prevention of frauds upon its rev- 
 enue, each nation is accustomed to exercise authority beyond 
 this limit. 4 
 
 1 Grotius, De Jure Belli, lib. 2, cap. 
 2, § 13; cap. 3, §§ 2, 13; Loccenius, 
 De Jure Maritimo, oh. 4, §§ 5, 6; Puf- 
 fendorf, De Jure Naturae, lib. 4, ch. 
 2, § 8; Vattel, Droit des Gens, §§ 205, 
 288-295; Craig, Jus Feud. lib. 1, § 13, 
 p. 140; Wolff, Jus Gentium, oh. 1, 
 §§ 128-132; Hautefeuille, Hist, du 
 Droit Maritime, p. 197 ; Ortolan, Diplo- 
 mat de la Mer, lib. 1, pp. 174, 175, 187; 
 lib. 2, oh. 8, p. 157; Heffter, Pub. Int. 
 Daw, §§ 72, 75 ; Halleck, Int. Law, oh. 5, 
 S 13; 1 Kent Com. (12th ed.), 27-30; 
 Manning, Law of Nations (Amos's 
 ed.), p. 119; Lawrence's Wheaton's 
 Int. Law, pt. II, ch. 4; 1 Phillimore's 
 Int. Law (2d ed.), 209, 218, 235. 
 
 2Puffendorf, lib. 4, ch. 5, § 7; Vat- 
 tel, lib. 1, oh. 23; Schultes, Aquatic 
 Rights, 1-5; Lawrence's Wheaton's 
 Int. Law, pt. II, ch. 4, §§ 8, 10; 1 
 Phillimore's Int. Law (2d ed.), 209, 
 218, 235; 1 Kent Com. 26-31; Butler 
 v. Boston & Savannah S. S. Co., 130 
 U. S. 527; Com. v. Parker, 130 Mass. 
 -40 ; Church v. Hubbard, post, § 9. 
 
 3 Ibid. According to some writers 
 
 a nation may extend its jurisdiction 
 seaward with the increased range of 
 cannon. Hall, Int. Law, 127; 1 Fiore, 
 Int. Law, 373; Bluntsohli, § 302. See 
 2 Stephens' History of the Criminal 
 Law, 29 et seq.; Maine's Int. Law, 38; 
 Walker's Science of Int. Law, 173. 
 This distance was fixed as a marine 
 league at a time when no gun could 
 force a ball farther. Granger, C. J., 
 in Hogg v. Beerman, 41 Ohio St. 81, 
 95. 
 
 4 Ibid.; post, § 9; Com. v. Man- 
 chester, 152 Mass. 230; Manchester v. 
 Massachusetts, 139 U. S. 250; 152 
 Mass. 230; The Hungaria, 41 Fed. Eep. 
 109; 26 Revue de Droit Int. 209. The 
 act of Parliament of 1816 (56 Geo. 
 III. c. 23), § 4, made it cause for for- 
 feiture, if, during Napoleon's deten- 
 tion at St. Helena, domestic or for- 
 eign vessels loitered or hovered 
 within eight leagues of that island, 
 but placed no impediment in the way 
 of vessels pursuing a direct and law- 
 ful voyage in those waters. 
 
§3.] 
 
 PKOPEBTTT IN TIDE WATERS. 
 
 § 3. Waters within the country — Sovereign's property. — 
 
 Amid the diversity of opinions which have prevailed respect- 
 ing this dominion, claims have been advanced both as to its 
 extent and character which now seem extravagant. 1 At an 
 early period England claimed dominion over the four seas 
 which surrounded her coasts, including 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 freedom of the 
 seas in the seventeenth century, the English writers and law- 
 yers, under the lead of Selden, 2 strenuously maintained the 
 
 i In Reg. 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 
 jurisdiction: " Albericus Gentilis ex- 
 tended it to one hundred miles; 
 Baldus and Bodin'is to sixty. Loc- 
 cenius (De Jure Maritimo, ch. 4, § 6) 
 puts it at two days' sail; another 
 writer makes it extend as far as 
 could be seen from the shore. Valin, 
 in his commentary on the French 
 Ordinances of 1681 (ch. 5), would 
 have it reach as far as the bottom 
 could be found .with the lead-line, 
 etc." 
 
 2 Selden's Mare Clausum was pub- 
 lished in 1635. In it he sought to es- 
 tablish: 1st, that the sea might be 
 property; 2d, that the seas which 
 washed the shores of Great Britain 
 and Ireland were subject to her sov- 
 ereignty even as far as the north 
 pole. "The opinions of jurists, as 
 well as the practice of nations, have 
 decided that this work did not refute 
 the contrary positions laid down by 
 Grotius in his Mare Liberum, to 
 which it purported to be an answer. 
 Selden dedicated his work to Charles 
 I. ; and so fully did that monarch 
 imbibe its principles that in 1619 he 
 instructed Carleton, the British am- 
 bassador, to complain to the States 
 General of the Dutch provinces of 
 the audacity of Grotius in publishing 
 his Mare Liberum and to demand 
 that he should be punished. In the 
 
 time of Cromwell war was made 
 upon the Dutch to compel them to 
 acknowledge the British empire over 
 those seas." 1 Phill. Int. Law (2d 
 ed.), 219. The doctrine maintained 
 by Selden, so far at least as there 
 was occasion to assert it in treating 
 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, chs..4, 6; and Pleas of 
 the Crown. Lord Hale says: " The 
 King of England hath the propriety 
 as well as the jurisdiction of the 
 narrow seas; for he is in a capacity 
 of acquiring the narrow and adja- 
 cent sea to his dominion by a kind 
 of possession which is not compatible 
 to a subject; and accordingly regu- 
 larly 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 
 possess it. But though a subject 
 cannot acquire the interest of the 
 narrow seas, yet he may by usage 
 and prescription acquire an interest 
 in so much of the sea as he may rea- 
 sonably possess, viz., of a districtus 
 maris, a place in the sea between 
 such points, or a particular part con- 
 tiguous to the shore, or of a port or 
 creek or armof the sea. These may 
 be possessed by a subject, and pre- 
 scribed in point of interest both of 
 
6 
 
 THE LAW OF WATEKS. 
 
 [CH. I. 
 
 right of the Crown of England to these waters, insisting that 
 the title to the sea and to the fundus maris, or bed of the 
 sea _ tarn aaum quam soli — was in the king. 1 This is the doc- 
 trine 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. 2 Under the civil law, the 
 sea was common property, and the seashore was classed by dif- 
 ferent writers among the res communes, or among the respuo- 
 
 the water, and the soil itself covered 
 with the water within such a pre- 
 cinct; for these are manoriable, and 
 may be entirely possessed by a sub- 
 ject." De Jure Maris, ch. 6. And 
 see post, §§ 21-23. The words " infra 
 quatuor maria" are said to mean, 
 within the kingdom of England, and 
 the dominions of the same kingdom. 
 Co. Litt. 107. The four seas are: 
 
 1. The Atlantic, which washes the 
 western shore of Ireland, and which 
 comprises, by way of subdivision, the 
 Irish Sea, St. George'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 east; 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 denned, with respect to the 
 Channel, to extend between England 
 and France, 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 contended for the fullest ex- 
 ercise of dominion over the British 
 seas, both 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 England without special 
 license, to have the sole marine juris- 
 diction within those seas, and also an 
 
 appropriate fishery. Woolrych on 
 "Waters, 5; Selden, Mare Clausum, 
 lib. 1, ch. 26. Observations concern- 
 ing the Dominion and Sovereignty of 
 the Seas, by Sir Philip Medows (1689); 
 Justice's Sea Laws, art. 1, pt. 1; Co. 
 Litt. 107 b, 260 a, note 1, and Har- 
 grave's notes; Hall on the Seashore 
 (2d ed.), 1, 2; Jerwood on the Sea- 
 shore, 13; Chitty on the Prerogative, 
 142, 173, 206. 
 
 i Selden, Mare Clausum, chs. 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. 60; 
 2 Roll. Abr. 169, 170; Eoyal Fishery 
 of the Banne, Sir John Davies, 149; 
 Sir John Constable's Case, 3 Leon. 71, 
 73; Life of Sir Leoline Jenkins, 
 vol. 2, p. 732; Sir Philip Medow's 
 Observations; Justice's Sea Laws, 
 art. 1. 
 
 2 Ibid. Lord Hale says: " The nar- 
 row 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, ch. 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. 
 
3-] 
 
 PE0PEBTY IN TIDE WATEES. 
 
 Horn, as being either common property or the property of the- 
 State. 1 There was here no exclusive or beneficial interest in 
 the sovereign, but, so far as private property is concerned, the 
 sea and its shores were considered to be res imllius? By the 
 Roman law, and by the early common law, as stated by Brac- 
 ton, occupancy was the source of title to the sea and the sea- 
 shore,- and pearls, gems, and other things found there, as well 
 as islands which spring up in the sea, and derelict goods, be- 
 longed to the finder or first occupant. 3 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 con- 
 nected historically with the above claim of sovereignty over 
 the sea, and to be derived therefrom. 4 
 
 1 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. 
 
 2 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, ch. 12, fol. 7, 8; lib. II, fol. 7, 
 g 5; S Domat, Civil Law, voL 1, I, 
 tit. 8, § 1. 
 
 3 Inst. II, 1, § 18; Dig. XLI, 1, § 7; 
 1 Twiss's Bracton, 68; Greene's 
 Roman Law (3d ed.), 74; Howe v. 
 Stowell, Alcock & Nap. 348, 358. 
 
 4 See post, % 19. England's claim 
 of exclusive jurisdiction over all per- 
 sons navigating the British seas ap- 
 pears to have been very aricient. 
 These seas, says Sir Travers Twiss, 
 under the name of "quatuor maria," 
 are thrice 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. & Rev. (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 possessed by the Crown in 
 them. He follows the civil law, and 
 says that the sea and its shores are 
 common property. Bk. I, ch. 12, fol. 
 7, 8. This has a tendency to show 
 that the theory of jurisdiction pre- 
 ceded that of property. 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 Stu- 
 dent, 270) asserts for the kings of 
 England, cannot be traced so far 
 back as their claim to the lordship of 
 ' the four seas,' unless upon the prin- 
 ciple that omne majus continet in se 
 minus. Nevertheless, the lordship of 
 ' the narrow sea,' as asserted by the 
 Commons of England in the reign of 
 Henry V., rested on a more solid pre- 
 text of right than the lordship of 
 'the four seas.' ' It rested on a prin- 
 ciple of public law, which holds good 
 in the present day in respect of the 
 stream of navigable rivers, namely, 
 that the kings of England, being in 
 physical possession of both shores of 
 the British Channel, were in juridical 
 possession of the waters contained 
 between those shores. . . . The 
 jurisdiction of the admiralty, on the 
 other hand, rests upon juridical prin- 
 
THE LAW OF WATERS. 
 
 [OH. L 
 
 § 4. Same — Seashore — Tidal rivers— Bays — Ports — 
 
 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. 1 This right includes the bed. of all tide 
 waters which are or may be within the counties. 2 The strip 
 of land along the coast which is daily covered and left bare by 
 the tide, and is called the shore, 3 is a part of the county when 
 the tide is out and a part of the sea when the tide is in. 4 There 
 is here divisurn irnperium between the courts of common law, 
 whose jurisdiction is limited by the boundaries of counties, and 
 the courts of admiralty, which have jurisdiction of questions 
 arising upon the sea, — the former having jurisdiction at low 
 tide and the latter at high tide. 5 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. 6 Rivers and parts of rivers, in which the tide 
 
 Com. 110, 264; Constable's Case, 5 
 Rep. 106a; Dyer, 326; Att. Gen. v. 
 Burridge, 10 Price, 350; Att. Gen. v. 
 Parmenter, 10 Price, 378, 412; Blun- 
 dell v. Catterall, 5 B. & Aid. 268; Col- 
 chester v. Brooke, V Q. B. 339; Lopez 
 v. Andrew, 3 M. & R 329 ; Att. Gen. v. 
 Chambers, 4 De G. M. & G. 206; Lowe 
 v. Govett, 3 B. & Ad. 863; Scratton 
 v. Brown, 4 B. & C. 485 ; Somerset v. 
 Fog well, 5 B. & C. 883; Att. Gen. v. 
 London, 1H.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 ; 
 Att. Gen. v. Tomline, 12 Ch. D. 214; 
 5 Com. Dig. 102; Calmady v. Eowe, 6 
 C. B. .861, 878; 2 Dane Abr. 694; 
 Com. v. Alger, 7 Cush. 53; Weston 
 v. Sampson, 8 Cush. 347; Com. v. 
 Roxbury, 9 Gray, 451, 482; 3 Kent 
 Com. 427, 431; Providence Steam En- 
 gine Co. v. Providence Steamship Co., 
 12 R. 1. 348; Pollard v. Hagan, 3 How. 
 (U. S.) 212; Goodtitle v. Kibbe, 9 How. 
 (TJ. S.) 471; State v. Sargent, 45 Conn. 
 358; Bell v. Gough, 21 N. J. L. 156; 22 
 id. 441; 23 id. 624; Stevens v. Pater- 
 son R Co., 37 N. J. L. 340; Galveston 
 v. Menard, 23 Texas, 349; Tesche- 
 
 ciples totally distinct from those of 
 territorial sovereignty. It was orig- 
 inally a personal jurisdiction. 
 
 i Post, §§5-10. 
 
 2 Lord Advocate v. Clyde Nav. 
 Trustees, 19 Ct. of Ses. (4th Series), 
 174; Reg. v. Keyn, 2 Ex. D. 63. 
 
 tPost, §27. 
 
 4 See next note. 
 
 5 Constable's Case, 5 Rep. 106 a; 
 The Admiralty, 12 Co. 79, 80; Reg. v. 
 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. ch. 3; 2 East, P. C. 
 803; 1 Kent Com. 366; The Pauline, 
 2 C. Rob. 358; Embleton v. Brown, 3 
 El. & El. 234; Reg. v. Musson, 8 EL & 
 Bk. 900; Reg. v. Keyn, 2 Ex. D. 63, 
 66, 67; Rex v. Forty-nine Casks of 
 Brandy, 3 Hagg. Adm. 257; Lopez 
 v. Andrew, 3 M. & R. 329; Barber v. 
 Warton,2 Ld. Raym. 1452; TheBlair- 
 more, (1898) A. C. 593; De Lovio v. 
 Boit, 2 Gall. 398; United States v. 
 Davis, 2 Sumner, 482; Same v. "Wil- 
 son, 3 Blatch. 435; Weston v. Samp- 
 son, 8 Cush. 347, 354. 
 
 6 Ibid. ; Hale, De Jure Maris, ch. 4; 
 1 Hargr. Law Tracts, 12, 18; 1 Black. 
 
§4-] 
 
 PEOPEETY IN TIDE WATERS. 
 
 9 
 
 ebbs and flows, as well as havens, are also within tbe body of 
 the county, although the admiralty may also have jurisdiction 
 in them, 1 and the soil of such waters, so far as the tide reaches 
 inland and up their shores, appertains to the Crown. 2 The 
 
 maker v. Thompson, 18 Cal. 11; Peo- 
 ple v. Davidson, 30 Cal. 379. As to 
 Scotland, " the general result of the 
 cases seems (subject to correction) to 
 be that in Scotland, as between sub- 
 ject and subject, proof of ownership 
 of the adjoining land suffices to show 
 title to the shore; but in cases be- 
 tween the Crown and a subject, by 
 the presumption of the prima facie 
 title, in order to oust the claim of the 
 Crown, the subject must show acts 
 of ownership on the shore in pre- 
 cisely the same manner as in Eng- 
 land." Moore on the Foreshore, ch. 
 22. See Agnew v. Lord Advocate, 11 
 Ct. of Ses. (3d Series), 309; Lord Ad- 
 vocate v. Young, 13 id. (4th Series), 
 324; 12 App. Cas. 544; Smith v. Stair, 
 6 Bell's App. Cas. 487; Campbell v. 
 Brown, Fac. Coll. 447; Macalister v. 
 Campbell, 15 D. B. & M. Sess. Cas. 
 490; Gamell v. Lord Advocate, 3 
 Macq. H. L. 419, 457; Lord Advocate 
 v. Hamilton, 1 id. 46; Sutherland v. 
 Watson, 6 Ct. of Ses. (3d Series), 199; 
 Lord Advocate v. Blantyre, 4 A C. 
 770; Same v. Lovat, 5 id. 288; Blan- 
 tyre v. Clyde Nav. Trustees, 6 id. 273. 
 The main or high sea begins at low 
 water-mark on the external coast. 
 United States v. Wiltberger,5 Wheat. 
 76, 94; Same v. Pirates, 5 Wheat. 184, 
 200; De Lovio v. Boit, 2 Gall. 398, 428; 
 United States v. Hamilton, 1 Mason, 
 152; The Abby, id. 360; United States 
 v. Grush, 5 id. 290; Same v. Robin- 
 son, 4 id. 307; Same v. Seagrist, 4 
 Blatch. 420; Same v. Wilson, 3 id. 
 420; Johnson v. 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. In The Anna, 
 5 Rob. 373, the shore was held to 
 
 begin, under the three-mile rule, at 
 certain mud islands at the mouth of 
 the Mississippi river formed by its 
 deposits. 
 
 1 See Ibid. ; Lacy's Case, Moore, 121. 
 814; East India Co. v. Sandys, Skin. 
 132; De Acuna v. Joliff, Hob. 79, 212; 
 Godb. 261; Blake's Case, Moore, 891, 
 892; Ball v. Blackmore, 1 Keb. 14, pi. 
 38; 2 Roll. 157; Violett v. Blake, 2 
 Ro. 49; Tourson v. Tourson, 1 Ro. 80, 
 194; Piatt v. Sheriffs of London, 
 Plow. 37. 
 
 2 Royal Fishery of the Banne, Sir 
 John Davies, 149; Bullstrode v. Hall, 
 Sid. 149; Fitzwalter's Case, 1 Mod- 
 105 and 3 Keb. 242; Warren v. Mat- 
 thews, 6 Mod. 63 and Salk. 357; Car- 
 ter v. Murcot, 4 Burr. 2162; Rex v. 
 Smith. 2 Dougl. 441; Bagott v. Orr, 2 
 Bos. & P. 471; Ball v. Herbert, 3 T. 
 R. 253; Blundell v. Catterall, 5 B. & 
 Aid. 268; Colchester v. Brooke, 7 Q. 
 B. 339; Williams v. Wilcox, 8 Ad. & 
 El. 314; Murphy v. Ryan, I. R. 2 C. L. 
 143; Att. Gen. v. Chambers, 4 De G. 
 M. & G. 206; Att. Gen. v. Terry, L. R. 
 9 Ch. 423; Whitstable Free Fishers- 
 v. 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; 
 Carlisle v. Graham, L. R. 4 Ex. 361 ; 
 Smith v. Officers of State, 13 Jur. 713; 
 1 Black. Com. 264; 8 Bacon's Abr. tit. 
 Prerogative, B. 3; 5 Com. Dig. Navi- 
 gation, A., B.; 1 Roll. Abr. 168, 169; 
 Selden, Mare Clausum, 251 ; Hale, De 
 Jure Maris, 11, 12; Palmer v. Mulli- 
 gan, 3 Caines, 307; Adams v. Pease, 2 
 Conn. 481; McManus v. Carmichael,. 
 3 Iowa, 1; Carson v. Blazer, 2 Binney, 
 475; Ingraham v. Wilkinson, 4 Pick. 
 268; Com. v. Chapin, 5 Pick. 199;. 
 Weston v. Sampson, 8 Cush. 347; 1 
 Dane Abr. 690, 692; 1 Kent Com. 367 ;- 
 
10 
 
 THE LAW OF WATERS. 
 
 [OH. I. 
 
 territorial jurisdiction of a State now extends seaward to the 
 distance of three geographical miles ; ' and where bays and in- 
 lets are formed by the indentations of the coast, even though 
 they are somewhat broader than the double range of can- 
 non, this external limit of jurisdiction is determined by mean- 
 ing seaward from a straight line drawn from one enclosing 
 headland to the other. 2 Such inlets and branches of the sea, 
 when sufficiently narrow, and within this line of jurisdiction, 
 may be within the body of the adjacent county. 3 "When 
 
 3 id. 427 ; Martin v. Waddell,16 Peters, 
 367; Hagan v. Campbell, 8 Porter, 9. 
 The part of a tidal river thirty miles 
 from its mouth is not the " sea " 
 within the meaning of 48 Geo. IIL 
 ch. 75, so as to render the county 
 chargeable with the expense of bury- 
 ing persons whose bodies are cast 
 ashore from a wreck occurring near 
 such spot. Church Wardens v. Rob- 
 ertson, 44 L. T. n. s. 747. 
 
 1 Bynkershoek, De Dominio Maris, 
 ch. 2, p. 257; Pando, Elem. del Der. 
 Int. 155; Loccenius, De Jure Mari- 
 timo, ch. 4; Heineccius, lib. 2, ch. 3, 
 § 12; Grotius, De Jure Belli, lib. 2, 
 ch. 3, § 13; Vattel, Droit des Gens, 
 lib. 1, ch. 23, §§ 288-295; De Rey venal, 
 Liberte des Mers, vol. 1, p. 212; Wolff, 
 Jus Gentium, §§ 128-132; Azuni, vol. 
 1, 67, 68; Ortolan, Diplom. de la Mer, 
 vol. 1, bk. 2, ch. 8; Hautfeuille, Hist, 
 du Droit Mar. 197; Marten, Precis du 
 Droit, bk. 2, ch. 1, §§ 40, 41, and bk. 
 4, ch. 4; Heffter, Pub. Int Law, § 75; 
 1 Phillimore's Int. Law, ch. 4, § 154, 
 ^nd ch. 8, § 196; Lawrence's Whea- 
 ton's Int. Law, pt. II, ch. 4, §§ 6-10; 
 1 Kent Com. 28; Manning's Law of 
 Nations (Amos's ed.), 118, 119; Regina 
 v. Keyn, 2 Ex. D. 63; The Maria, 1 C. 
 Rob. 352; The Twee Gebroeders, 3 id. 
 162; The Annapolis, Lush. Adm. 295; 
 The Leda, Swa. Adm. 40 ; Regina v. 
 Forty-nine 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. sr. s. 853, and 11 id. 
 
 387; General Iron Screw Co. v. Schur- 
 manns, 1 J. & H 180; Neill v. Devon- 
 shire, 8 App. Cas. 135; Queen v. Cu- 
 bitt, 22 Q. B. D. 623; Mowat v. McFee, 
 5 Can. Sup. Ct. 66; Church v. Hub- 
 bard, 2 Cranch, 187; United States v. 
 Kessler, Bald. 15; Halifax?;. Commis- 
 sion, U. S. House of Rep. 2d Ses. of 
 45th Congress, Ex. Doc. No. 89, pp. 
 120, 166, 1654. 
 
 2 Post, § 5; Reg. v. Cunningham, 
 Bell, C. C. 86; Com. v. Manchester, 
 152 Mass. 230; 139 U. S. 240; Weldt v. 
 The Howden, 39 Fed. Rep. 877; Mo- 
 Clain v. Tillson, 82 Maine, 281; Philli- 
 more's Int. Law, pt. IH, ch. 8; Law- 
 rence's Wheaton's Int. Law, pt. 2, ch, 
 4, § 6; Manning's Law of Nations, 
 120; 1 Twiss, Law of Nations, ch. 10; 
 Martens, Precis du Droit, § 40; Orto- 
 lan, Diplom. de la Mer, bk. 1, ch. 2, 
 and bk. 2, ch. 7; 1 De Cussy, Droit 
 Marit. tit. 2, § 40; Kltiber, Droit des 
 Gens, § 130. In measuring "four- 
 miles along the sea coast," under a 
 fishery act, the measurement should 
 follow the line of coast. Tweed Com- 
 missioners v. Wood, 46 J. P. 760. 
 
 'Hale, De Jure Maris, ch. 4; 4 Co. 
 Inst. 140; Fitzherbert's Abr. 399; 
 Regina v. Cunningham, Bell, C. C. 
 86; Direct U. S. Cable Co. v. Anglo- 
 Am. TeL Co., 2 App. Cas. 394, 419; 
 Ins. Co. v. Dunham, 11 Wall. 1; The 
 Fame, 3 Mason, 147; DeLovio v. Boit, 
 2 Gall. 398; United States v. Morel, 
 13 Am. Jur. 299; Smith v. United 
 States, 1 Wash. Ter. 262; 1 Kent Com. 
 30; post, § 5. 
 
§*■] 
 
 PROPERTY IN TIDE WATERS. 
 
 11 
 
 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. 1 However commodious the 
 
 1 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 Milford' 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 and vessels. 2nd, it 
 hath a superinduction of a civil sig- 
 nature 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 vend ing of their 
 goods, and victualing their ships. So 
 that a port is quid 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 
 theymaywell unlade; somethingthat 
 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 applicandi, 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: The king could not 
 conveniently have a customer and 
 comptroller in every port and haven; 
 but these custom officers were fixed 
 at some convenient port; and the 
 smaller adjacent ports became, by 
 that means, creeks, or appendants of 
 that where these custom officers were 
 placed." Hale, De Portibus Maris, 
 ch. 2; Hargrave's Law Tracts, 46-48. 
 " It is a part of the jus regale or roy- 
 alty of the Crown of England orig- 
 inally and de novo to erect publick 
 ports in this kingdom. As all fran- 
 chises withinthe 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 
 are the ports and the franchises 
 thereof." Id. ch. 3; Hargrave's Law 
 Tracts, 53, 54. "In all publick sea- 
 ports in England, there are three 
 kinds of rights that meet ; and though 
 they are distinct 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, in- 
 terest of propriety or franchise. 2nd, 
 
12 
 
 THE LAW OF "WATERS. 
 
 [Oh. L 
 
 haven may be, and whatever protection to vessels it may afford, 
 it is not a port, unless it has been established as such by au- 
 
 Jus publicum, the common interest 
 that all persons have to resort to or 
 from publick ports, as publiok sea- 
 marts or markets, with their goods, 
 and wares, and merchandises. 3rd, 
 Jus regium, or the right of superin- 
 tendence and prerogative that the 
 king hath for the safety of the realm 
 or benefit of commerce, or security of 
 his customs. . . . The jus priva- 
 tum takes in these several branches: 
 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 the port. 3rd, The 
 right of the town, or ville, that is the 
 caput portus, 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 propri- 
 ety is, where the king or common 
 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; 
 neither can he so use or employ it, 
 unless he hath had that liberty time 
 out of mind or by the king's charter." 
 Id. ch. 6; Hargrave's Law Tracts, 
 72, 73; Id. ch. 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 propriety 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 conse- 
 quently the improvement of the shore 
 and the liberty of fishing; and as the 
 creek was free for any to pass in it 
 
 against all but the king, for it was 
 public juris as to that matter before, 
 so now the king takes off that re- 
 straint, and by his license and charter 
 makes it free for all to come and un- 
 lade." Id. ch. 6; Hargrave, 73. . . . 
 " "When a port is fixed or settled by 
 such means, though the soil and fran- 
 chise 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 
 kingdom are interested, by reason of 
 cbmmon commerce, trade, and inter- 
 course. And this publick right con- 
 sists, among other things, principally 
 in these: 1st, They ought to be free 
 and open for subjects and foreigners 
 to come and go with their merchan- 
 dise. . . . 2nd, There ought, to be 
 no new tolls or charges imposed 
 upon them without sufficient war- 
 rant, nor the old inhanced. . . . 
 3rd, They ought to be preserved from 
 impediments and nuisances that may 
 hinder or annoy the access or abode 
 or recess of ships and vessels and sea- 
 men, or the unlading or relading of 
 goods. Nusances of ports are of two 
 kinds: 1. Such as are immediately 
 only nusances to the private concern- 
 ment of the lord of the franchise of 
 the town that is caput portus. . . . 
 2. Such nusances as are common to 
 all men that have occasion to come, 
 go, or stay at ports. I will give in- 
 stances of some. " [See §§ 92, 93, post] 
 " 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 an- 
 other cut be made as beneficial as 
 the former, without an inquisition 
 by writ of ad quod damnum finding 
 it to be no damage to the public, 
 
§±0 
 
 PEOPEETY IN TIDE WATEES. 
 
 13 
 
 thority of the Crown. 1 Hence, in ports, not only is the owner- 
 ship of the soil vested prima facie in the Crown, but there is 
 the further prerogative 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, 2 if the vested rights of A are not 
 impaired by the second grant. 3 Ports are for the receipt of 
 goods and the collection of the customs, and a subject cannot 
 lawfully land customable goods on his own land or in creeks 
 or havens, or other places out of ports, unless it be in case of 
 danger or necessity. 4 But goods that are not imported as mer- 
 chandise pay no duty, as where they come in by accident, and 
 especially wrecks at common law, which by that law were the 
 king's, and not liable to pay dustoms on that account. 5 Ports 
 have been styled the gates of the kingdom, 6 and are established 
 
 and the king's license thereupon ob- 
 tained; as appears by the writ of 
 ad quod damnum cited formerly to 
 another purpose. Register 252. . . . 
 As to the provisions by the common 
 law we are to observe, that as the 
 common law hath intrusted the king 
 . with the patronage and protection of 
 the jura publiea, as highways, pub- 
 lick rivers, ports of the sea, and the 
 like; so the care of preventing and re- 
 forming of publick nusances therein 
 is left to him, and his courts of jus- 
 tice, 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. ch. 7; Hargrave, 
 84-87. 
 
 1 Foreman v. Whitstable Free Fish- 
 ers, L. R. 4 H. L. 266; L. R. 3 C. P. 
 584; Nicholson v. Williams, 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 v. 
 George, 5 Bing. 286; Exeter v. War- 
 den, 5 Q. B. 773 ; Yarmouth v. Eaton, 
 3 Burr. 1402; Hale, De Portibus Maris, 
 ch. 2; 2 Black. Com. 499. 
 
 2 Hale, De Portibus Maris, ch. 6; De 
 Jure Maris, oh. 5; Hargrave's Law 
 Tracts, 33; Holman v. Green, 6 Can. 
 
 Sup. Ct. 707. In Price v. Living- 
 stone, 9 Q. B. D. 679, and Garston Co. 
 v. Hickie, 15 Q. B. D. 580, the limits 
 of the port of Cardiff were consid- 
 ered; and it was held that the word 
 "port" in a charter-party must be 
 construed in its commercial and not 
 its fiscal sense, and that, in determin- 
 ing the limits of a port, a royal char- 
 ter creating it, the natural configura- 
 tion of the coast, and the recognized 
 jurisdiction of the dock-master, are 
 elements to be taken into considera- 
 tion. See also Hunter v. Northern 
 M. Ins. Co., 13 A. C. 717; Petrel 
 Guano Co. v. Jarnette, 25 Fed. Rep. 
 675. The breakwater in Delaware 
 Bay was held to be a " port " upon a 
 claim for pilotage services in The 
 William Law, 14 Fed. Rep. 792. 
 
 3 Exeter v. Warren, 5 Q. B. 773. 
 
 4 Per Holroyd, J., in Blundell v. 
 Catterall, 5 B. & Aid. 268; The Wharf 
 Case, 3 Bland Ch. 383; post, § 120; 
 Heron v. The Marchioness, 42 Fed. 
 Rep. 173. 
 
 5 Sheppard v. Gosnold, Vaugh. 164; 
 Chapman v. Lamb, 2 Strange, 943; 
 2 Barnard. 168. 
 
 c Ports are thus frequently charac- 
 terized in the older authorities. 1 
 
14 
 
 THE LAW OF WATEKS. 
 
 [Ch. I. 
 
 and controlled by the sovereign as guardian of the realm. 1 
 Foreign merchant vessels, in the absence of treaty stipulations, 
 are not exempt from the territorial jurisdiction of the harbor 
 in which they lie. 2 
 
 § 5. Same — Bays and sounds. — "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 terras, where a man may reasonably discern between 
 •shore and shore, is, or at least may be, within the body of a 
 county." 3 The 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 ; 4 and while in each case it is a ques- 
 tion of fact to be determined upon the evidence, yet the 
 weather and the size and distinctness of objects may cause 
 
 Black. Com. 264; 2 Feud. 1, 56; F. N. 
 B. 113; Royal Fishery of the BaDne, 
 Sir John Davies, 149; Hale, De Porti- 
 bus Maris, chs. 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. 
 
 i Ibid. 
 
 2 15 A. G. Op. (IT. S.) 178. 
 
 3 Hale, De Jure Maris, ch. 4; 2 Hale, 
 P. C. 16, 17, 54; Staunford, P. C. bk. 
 1, p. 51; Hawkins, P. C. pt. 2, ch. 9, 
 § 14; 4 Inst. 140; Fitzherbert's Abr. 
 Corone, 399 ; Case of the Admiralty, 
 12 Co. 79; 13 Co. 51; Cunningham's 
 Case, Bell, C. C. 86; Rex v. Bruce, 
 Russ. & Ry. 243, and 2 Leach, C. C. 
 1093; Direct U. S. Cable Co. v. Anglo- 
 Am. Tel. Co., 2 App. Cas. 394; King 
 v. Soleguard, Andrew, 231; Leigh v. 
 Burleigh, Owen, 122; Reginau Keyn, 
 2 Ex. D. 63; The Eleanor, 6 Rob. Adm. 
 39; The Public Opinion, 2 Hagg. 
 Adm. 398; The Eliza Jane, 3 id. 335; 
 United States v. Bevans, 3 Wheat. 
 336, 387; The Harriet, 1 Story, 251; 
 United States v. New Bedford Bridge, 
 1 Wood. & M. 401, 483; Ballinger v. 
 Nowland, 5 Hughes, 387, 389; People 
 
 v. Supervisors, 73 N. Y. 393, 396; 11 
 Hun, 306; United States v. Robinson, 
 4 Mason, 307; De Lovio v. Boit, 2 
 Gall. 398, 425; United States v. Wilt- 
 berger, 5 Wheat. 106: 2 Hawkins, 
 P. C. ch. 9, § 14; 2 East, P. C. 804; 
 Com. Dig. tit. Adm. E. ; Bacon's Abr. 
 tit. Admiralty, A. ; 1 Kent Com. 366, 
 367. See United States v. Ross, 14 
 Am. Law Rev. 530; 2 Browne, Civ. 
 & Adm. Law, 92. Hale thus refers 
 to the same rule again in De Porti- 
 bus Maris, ch. 7 (Hargrave's Law 
 Tracts, 88): "By the book of 8 E. 2 
 Corone, every arm or creek of the 
 sea within the points of the land, 
 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 jurisdic- 
 tion 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 16 
 R. 2, ch. 3, whereas some read it 
 points." 
 
 4 Rowe v. Smith, 51 Conn. 266; Peo- 
 ple v. Wilson, 3 Parker Cr. Cas. 199; 
 People v. Sheriff, 1 id. 659. 
 
§5.] 
 
 PBOPEETY IN TIDE WATEE3. 
 
 15- 
 
 variation and uncertainty. 1 This question does not depend 
 upon the width of the bay inside of the enclosing headlands,, 
 and is distinct from that of the territorial jurisdiction of the 
 nation, 2 which is determined by measuring three miles sea- 
 ward from the exterior limit of the bay, and not by the line- 
 itself . Certain bays and estuaries of the sea, which are greater 
 in width than six miles, or the double range of cannon, may 
 be within the limits of counties and of the nation. Islands 
 which lie within arms of the seas, and are also within the 
 county, have been regarded as opposite shores within the fore- 
 going rule, 3 and in treaties between nations, 4 and in the works 
 of writers upon international law, 5 bays having a width of 
 
 1 United States v. Bevans, 3 Wheat. 
 336; Same v. Grush, 5 Mason, 290; 
 Commonwealth v. Peters, 12 Met. 
 487; Dunham v. Lamphere, 3 Gray, 
 268. In Direct U. S. Cable Co. v. 
 Anglo-Am. Tel. 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, as, 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." 
 
 2 Ante, % 4, and note 5 belowj Man- 
 chester v. Massachusetts, 139 U. S. 
 240; 152 Mass. 230; State v. Murray, 
 84 Maine, 135. 
 
 *Per Story, J., in United States v. 
 Grush, 5 Mason, 290, 301; McClain v. 
 Tillson, 82 Maine, 281. 
 
 * 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. ch. 45), it 
 was provided that " the distance of 
 three miles fixed as the general limit 
 
 for the exclusive right of fishery 
 upon the coasts of the two countries,, 
 shall, with 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." 
 
 6 Manning's Law of Nations, 120. 
 In the law of nations, bays are re- 
 garded as part of the territory of the- 
 country when their dimensions and 
 configuration are such as to show 
 that the nation occupying the coast 
 also occupies the bay as part of its 
 territory. Wheaton's Int. Law (8th 
 ed.), 255, 256, n., 325;" Grotius, De 
 Jure Belli, bk. 2, ch. 3, §§ 7, 8; Vat- 
 tel, bk. 1, ch. 3, § 290; Ortolan, Dip- 
 lom. de la Mer, bk. 2, ch. 8; 1 Philli- 
 more's Int. Law, § 200; 1 Kent Com. 
 28, 29; Merchants' Ins. Co. v. Allen, 
 121 U. S. 67; 1 A. G. Op. (U. S.) 32; 
 The Mecca, [1895J P. 95. In this coun- 
 try, a territorial jurisdiction has been 
 claimed over extensive portions of 
 the sea, including waters within lines 
 drawn from distant headlands. 1 
 Kent Com. 30. That Chesapeake Bay 
 is not "high seas," see Stetson v. 
 United States, 32 Alb. L. J. 484 
 (Court of Alabama Claims). The ex- 
 tension of the neutral zone of sea 
 beyond the limits of three miles, to 
 
16 
 
 THE LAW OF WATERS. 
 
 [Ch. I. 
 
 ten miles have been conceded to be a part of the territory 
 of the nation by which they are enclosed. In Regina v. Cun- 
 ningham, 1 the question was whether certain foreigners, who 
 had committed a crime upon a foreign vessel lying in the Bris- 
 tol Channel, were subject to the jurisdiction of the common- 
 law courts in the county of Glamorgan. Although the place 
 Avhere the offense 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 adja- 
 cent county. It would necessarily be within the territory of 
 England, since the counties cannot extend beyond the limits 
 of the nation. 2 In this case, 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 coun- 
 ties. 3 It is established that the right of property in all the 
 
 five or eight miles seaward, was 
 urged by Mr. Seward, on behalf of 
 the United States, in correspondence 
 with the British Legation at Wash- 
 ington in 1864. 2 Law Mag. & Rev. 
 (14th Series), 310, note. The Behring 
 Sea arbitration decided that the 
 United States cannot protect seals 
 in the ocean beyond three miles 
 from the shore. See Award, Point V; 
 37 Cent. L. J. 249; 18 Law Mag. & 
 Rev. (4th Series), 231, 318, 703; 19 id. 
 21; 6 Jurid. Rev. 21; 27 Chic. L. 
 News, 156; 27 Am. L. Rev. 684; 21 
 A. G. Op. (U. S.) 234; 22 id. 64; North 
 American Commercial Co. v. United 
 States, 171 U. S. 110; 74 Fed. Rep. 
 145; Mr. E. P. Phelps' article in 82 
 Harper's Monthly, p. 766 (April, 1891), 
 and that of Mr. T. B. Browning in 7 
 Law Quarterly Review, p. 128 (April, 
 1891); In re Cooper, 143 U. S. 472, 
 498; The James G-. Swan, 50 Fed. 
 Rep. 108: 77 id. 473; The Kodiak, 53 
 id. 126: The Alexander, 60 id. 914; 75 
 id. 519; The La Ninfa, 75 id. 513; The 
 Jane Gray, 77 id. 908; The Oscar and 
 Hattie v. Reg., 23 Can. Sup. 396; The 
 Minnie v. Reg., id. 478; The Laura 
 
 Simpson, 2 Saw. 57; 19 A. G. Op. 
 432; 29 Am. Law Reg. N. S. 625; The 
 Say ward, 30 id. 770; 31 id. 590, 713, 
 809; 32 id. 901. Provision was made 
 by 57 Vict., ch. 2, for carrying into 
 effect the Arbitration Award, and 58 
 and 59 Vict., ch. 21, prohibited the 
 catching of seals at certain periods 
 in these watei-s. Upon the Canadian 
 Fisheries Question, see 21 Am. Law 
 Rev. 369, 431. As to Puget Sound, 
 see State v, Crawford, 13 Wash.. 633; 
 14 id. 373. 
 iBell, C. C. 86. 
 
 2 Direct U. S. Cable Co. v. Anglo- 
 Am. Tel. Co., 2 App. Cas. 394, 419; 
 Regina v. Keyn, 2 Ex. D. 63; Reg. v. 
 City Court, 8 Q. B. D. 609. See Com- 
 monwealth v. Peters, 12 Met. 387; 
 Same v. Alger, 7 Cush. 82; Same v. 
 Roxbury. 9 Gray, 451, 494, 512, note; 
 Same v. Manchester, 152 Mass. 230; 
 139 U. S. 240; Pollard v. Hagan, 3 
 How. 230. 
 
 3 Bell, C. C. 86. Sir Robert Philli- 
 more (1 Int. Law, 2d ed. 225) says 
 that the exclusive right of the Brit- 
 ish Crown to the Bristol Channel, to 
 the channel between Ireland and 
 
6.] 
 
 PBOPEETY IN TIDE WATEES. 
 
 17 
 
 soil "which is covered by tide water, and is also a part of the 
 nation's territory, is prima facie in the Crown by the com- 
 mon law. 1 
 
 § 6. Same — Royal fish — Wreck. — 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 reces- 
 sion of tide waters within the realm, and to islands which arise 
 therefrom. 2 In strictness, also, the Crown has the right of 
 property in all things which are found upon the seashore be- 
 tween high and low-water mark, and have no acknowledged 
 owner, such as seaweed, amber, jet, etc., and in minerals lying 
 under the navigable waters of the kingdom. 3 The ancient 
 franchise of royal fish taken within the arms of the sea or in 
 the narrow seas, 4 and the right to wreck, i. e., to goods from 
 a lost vessel which were thrown upon the shore, 5 also be- 
 
 Great Britain, and to the channel 
 between Scotland and Ireland, is un- 
 contested. Compare Chase v. Amer- 
 ican S. Co., 9 R. I. 419; s. c. nom. 
 Steamboat Co. v. Chase, 16 Wall. 
 512, in which usage was relied upon 
 as showing that Narragansett Bay is 
 within the jurisdiction of the com- 
 mon-law courts of Rhode Island, and 
 not of the admiralty exclusively. 
 Sherlock v. Ailing, 93 U. S. 99, 104. 
 The boundary between Connecticut 
 and New York, through Long Island 
 Sound, agreed upon by the joint com- 
 mission of the two states, and estab- 
 lished by the legislative acceptance 
 of both, is regarded as presumably a 
 designation and establishment of the 
 pre-existing boundary line, and not 
 of a new line, leaving the matter 
 • ©pen to proof in special cases. El- 
 phick v. Hoffman, 49 Conn. 331; 
 Chappell v. Jardine, 51 Conn. 64 See, 
 also, Mahler v. Norwich Transp. Co., 
 35 N. Y. 353; 37 Conn. 597; Keyseru. 
 Coe, 9 Blatch. 32; The Sloop Eliza- 
 beth, 1 Paine, C. C. 10. 
 
 i Ante, § 4; Direct U. S. Cable Co. 
 v. Anglo-Am. Tel. Co., 2 App. Cas. 
 394; Reg. v. Keyn, 2 Ex. D. 63. 
 2 
 
 2 Hale, De Jure Maris, chs. 4, 6; 
 Anon. Dyer, 326 6; Rex v. Yarbor- 
 ough, 2 Bligh, N. s. 162; Callis on 
 Sewers, 45, 47. 
 
 3 Post, § 10. In general abandoned 
 goods belong presumably to the land- 
 owner in preference to the finder. 
 South Staffordshire Water Co. v. 
 Sharman, [1896] 2 Q. B. 44; Goddard 
 v. Winchell, 86 Iowa, 71; 35 Cent. 
 L. J. 365, and note. 
 
 i Post, % 8. This prerogative was 
 treated as not obsolete in 1831. Lord 
 Warden v. The King, 2 Hagg. Adm. 
 438. 
 
 6 Hale, De Jure Maris, ch. 7; Har- 
 grave's Law Tracts, 37-41; 2 Co. 
 Inst. 167; 1 Black. Com. 202,283, 290; 
 3 id. 106; Callis on Sewers, 40; Sir 
 Henry Constable's Case, 5 Co. 107; 
 Sir John Constable's Case, Ander- 
 ton, 86; Bracton, lib. 3, 120, § 5; Com. 
 Dig. tit. Prerogative, D. and Wreck; 
 Phear's Rights of Water, 99; 2 Kent 
 Com. 321, 322; Woolrych on Waters, 
 11 ; Jerwood on the Seashore, 57; The 
 Pauline, 2 Rob. Adm. 358; Rex v. 
 Forty-nine Casks of Brandy, 3 Hagg. 
 257; Rex v. Two Casks of Tallow, id. 
 294; Palmer v. Rouse, 3 H. & N. 505; 
 
18 THE LAW OF WATEKS. [Cs. I. 
 
 longed 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 do- 
 minion 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 roj-al fish to another, and 
 the shore itself to a third person. 1 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 sea- 
 shore itself was also intended to pass, inasmuch as a ship can- 
 not be a wreck, within the legal meaning of the term, without 
 being stranded above low-water mark ; 2 but the better view 
 appears to be that the right to wreck is a franchise which car- 
 ries with it no right to the soil of the seashore. 3 A grant 
 of the shore does not pass wreck of the sea without express 
 words. 4 
 
 § 7. Same — Adjacent seas. — Prior to the decision in Ee- 
 gina v. Keyn, 5 the open seas around the coasts of Great Britain 
 were considered to be the property of the Crown, and it was 
 
 Talbot v. Lewis, 6 C. & P. 603; Barry 662; Beaufort v. Swansea, 3 Exch. 
 
 v. Arnaud, 10 Ad. & El. 646; Sutton 413; Talbot v. Lewis, 6 C. & P. 606; 
 
 v. Buck, 2 Taunt. 355; Hamilton v. Parsons v. Smith, 5 Allen, 578. At 
 
 Davis, 5 Burr. 2732; Blundell v. Cat- common law, coal in a sunken vessel 
 
 terall, 5 B. & Aid. 268; Dunwich v. at the bottom of Lake Michigan is 
 
 Sterry, 1 B. & Ad. 831; Alcock v. not wreck of the sea. Murphy v. 
 
 Cooke, 2 M. & P. 625; Legge v. Boyd, Dunham, 38 Fed. Rep. 503. See The 
 
 1 C. B. 92; Stackpoole v. The Queen, Ann L. Lockwood, 37 id. 233; The 
 
 Ir. R. 9Eq. 620; The Tilton, 5 Mason, Munroe, [1893] P. 248. The right 
 
 477. The control and management given by a deed of partition to have 
 
 of wrecks was transferred in Eng- "exclusively all the sea manure 
 
 land to the Board of Trade in 1854 by and drift stuff which lands on the 
 
 the Merchants' Shipping Acts, 17 & west shore " does not embrace goods 
 
 18 Vict. ch. 104, pt. 8. floated ashore from a wrecked vessel 
 
 ilbid. ; Anon. 6 Mod. 149; Abbot and having a known owner, but only 
 
 of Strata Marcella's Case, 9 Co. 25&; such as the grantee of the right 
 
 Scratton v. Brown, 4 B. & C. 485; can legally appropriate. Watson v. 
 
 Hall on the Seashore (2d ed.), 80, 82; Knowles, 13 R. I. 639. 
 
 Talbot v. Lewis, 1 C. M. & R. 495; 5 3 ibid.; Phear's Rights of Water, 
 
 Tyr. 1. 52; Hall on the Seashore (2d ed.), 20, 
 
 2 Hale, De Jure Maris, ch. 6; Har- 76, 81-99; Dickens u'Shaw, id. App- 
 
 grave's Law Tracts, 27; Constable's 54, 66. 
 
 Case, 5 Rep. 107; Calmady v. Rowe, 4 Alcock v. Cooke, 5 Bing. 340. 
 
 6 C. B. 861; Rex v. Ellis, 1 M. & S. 5 2 Ex. D. 63; post, § 11. 
 
§ 8.] FEOPEETY IN TIDE WATEES. 19 
 
 commonly said that the sea is not only under the king's domin- 
 ion, but that it is his proper inheritance. 1 According to Selden 
 and the writers of his time, 3 the king is lord of the great waste, 
 both land and water. Lord Hale says 3 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 declared 4 
 that the sea is within the legiance of the king, as of his crown 
 of England ; and in the Eolls of Parliament, 5 in the reign of 
 Henry V., it appears that the Commons prayed 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, 6 writing at different 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. 7 
 
 § 8. Same — The modern rule. — The narrow seas were 
 thus considered to be within the realm of England. 8 Although 
 
 1 Royal Fisheries of the Banne, Sir atives of the Crown, 142, 173, 206. 
 John Davies, 149, 152; 16 Vin. Abr. See also Hall on the Seashore, 18; 
 tit. Prerogative, B. ; 1 Roll. Abr. 528; Schultes, Aquatic Rights, 1-5; Jer- 
 
 2 id. 168, 170; Com. Dig. tit. Prerog- wood on the Seashore, passim, 
 ative; Molloy, De Jure Maritimo (9th 7 Callis (on Sewers, 39-41, 53) says: 
 ed.), 207; Sir John Constable's Case, "Touching our Mare Anglioum, in 
 
 3 Leon. 71, 73. whom the interest therein is, and by 
 
 2 Selden, Mare Clausum, lib. 2, ch. what law the government thereof is, 
 22, 24; Hall on the Seashore (2d ed.), is a fit question, and worth the hand- 
 2; ante, § 3. ling. And in my argument therein 
 
 3 Hale, De Jure Maris, ch. 4, 5; 1 I hope to make it manifest by many 
 
 Hale, P. C. 154; 2 id. 12-15. proofs and precedents of great worth 
 
 4 6 Rich. II. ; Fitzherbert, tit. Pro- and esteem, that the king hath there- 
 
 tection, 46; Royal Fishery of the in these powers and properties, videl- 
 
 Banne, Sir John Davies, 149, 152; icet: (1) Jmperiuni regale; (2) Potes- 
 
 Callis on Sewers, 39; Hale on Adm. totem legalem; (3) Proprietatem tarn 
 
 Jurisdiction, cited in Com. v. Mc- soli quam aquce; (4) Possessionem et 
 
 Loon, 101 Mass. 1, 12, pi. 5. profituum tarn reale quam personate. 
 
 5 1 Rot. Pari. 8 Hen. V. N. 6; 16 And all these he hath by the common 
 
 Vin. Abr. tit. Prerogative, B.; Wool- laws of England." 
 
 rych on Waters, 19. si Hale, P. C. 424; 2 id. 13-17; 
 
 6 Co. Litt. 107, 2606, § 439; Bacon's Hale, De Jure Maris, ch.,,4; 1 Com. 
 
 Abr. tit. Court of Admiralty; 1 Black. Dig. 369; 4 Inst. 134, 137: 2 East, 
 
 Com. 110; 2 id. 264; Chitty's Prerog- P. C. 803; 6 Dane's Abr. 355; Att. 
 
20 
 
 THE LAW OF WATEKS. 
 
 [Oh. I 
 
 the Admiralty now has exclusive jurisdiction of questions aris- 
 ing upon the ocean, yet it appears that a concurrent jurisdic- 
 tion was formerly exercised by the common-law courts in cases 
 of felonies done upon these waters, although they were still 
 regarded as high seas. 1 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, 2 and to islands 
 which arose from the waters. 3 So broad a claim has not been 
 sanctioned by the acquiescence of other nations, 4 yet it is as- 
 serted by modern writers upon the common law, 5 and was in- 
 sisted upon by the British government in the present century. 6 
 
 Gen. v. Tomse'tt, 2 Cr. M. & E. 170, 
 174: The Twee Gebroeders, 3 C. Rob. 
 336; 1 PhilL Int. Law, chs. 6, 7. 
 
 i Ibid. ; Com. v. McLoon, 101 Mass. 1. 
 
 2 Britton, oh. 17. " Touching royal 
 fish, therefore called so, because of 
 common right such fish, if taken 
 within the seas parcell of the domin- 
 ion and Crown 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 there may be great fish 
 that come under no known denom- 
 ination, we find the claim of such 
 under the name of piscis regius, or 
 sometimes grand pisce, without any 
 certain denomination. . . . But 
 salmon or lamprey are not royal fish. 
 By the common right of the king's 
 prerogatives these belong to the king, 
 if taken within his seas or the armes 
 thereof. Anciently the intire stur- 
 geon 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 di- 
 
 vided, and a moiety was allowed to 
 the taker, the other moiety to the 
 admiral in right of the king." De Jure 
 Maris, ch. 7, 4, 6; Hargrave's Law 
 Tracts, 42, 43; Woolrych on Waters, 
 63; Plow. 315. Swans, swimming in 
 an open and common river, are royal 
 fowl; but the owner of a manor may 
 prescribe to have a game of swans 
 within his private waters, and to have 
 them swim within another's manor. 
 The Case of Swans, 7 Co. 156, 
 
 °«Ante, §6. 
 
 4 Ortolan, Diplom. de la Mer, torn. 
 1, liv. 2, ch. 15; Grotius, Mare Libe- 
 rum; Vattel, Droit des Gens, liv. 1, 
 ch. 23, § 289; Martens, Precis du 
 Droit des Gens, liv. 2, ch. 1, § 42; 11 
 Edinburgh Review, art. 1, pp. 17-19; 
 Kliiber, § 132; Lawrence's Wheaton's 
 Int. Law (2d ed.), pt. II, ch. 4, p. 328. 
 According to an ancient record be- 
 tween Edward the First of England 
 and Philip the Fair of France, 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, ch. 23; 4 Co. Inst 142; 1 
 Roll. Abr. 528, pi. 2; 6 Vin. Abr. tit. 
 Court of Admiralty, 2; 1 Molloy, De 
 Jure Maritimo (9th ed.), ch. 5, pL 14; 
 Woolrych on Waters, 5. 
 
 5 Chitty on the Prerogative, 143, 
 173, 206; Woolrych on Waters, 41; 
 Hall on the Seashore (2d ed.), 2, 3, 54; 
 Schultes on Aquatio Rights, 1-5. 
 
 6 In 1803 the negotiations for a set- 
 
§9-] 
 
 PROPERTY IS TIDE WATERS. 
 
 21 
 
 § 9. Same — Property. — It has been held by eminent judges 
 that the Crown retains within the three-mile belt the rights 
 which were formerly appropriated to it over entire seas. Thus, 
 in the case of the Whitstable Free Fisheries v. Gann, 1 which 
 involved the right to collect tolls for anchorage beyond low- 
 water mark, Erie, 0. 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, 2 Lord "Wensleydale appears to have as- 
 sented 3 to that rule, as he also did upon another occasion ; 4 
 but 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 Eng- 
 land. 5 So, according to Lord Cranworth, 6 Judge Story, 7 and 
 Chief Justice Shaw, 8 the right of soil in territorial waters as 
 
 nations, belongs to the coast of the 
 country." See Eeg. v. Keyn, 2 Ex. 
 D. 63. 120, 124, 227. 
 
 HlH.LCas.217,218. Lord Chelms- 
 ford here said : " I do not think it can 
 be assumed as an unquestionable 
 proposition of law, that, as between 
 the Crown and its subjects, the sea- 
 shore, to the extent mentioned, is the 
 property of the Crown in such an ab- 
 solute sense as that a toll may be im- 
 posed upon a subject for the use of it 
 in the regular course of navigation. 
 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." See King v. Parish, 
 1 Hawaiian, 36. 
 
 6 Att. Gen. v. Chambers, 4 De Gex, 
 Macn. & G. 206, 213. 
 
 7 The Brig Ann, 1 Gall. 62. See 
 Church v. Hubbart, 2 Cranch, 187, 
 234. 
 
 8 Com. v. Roxbury, 9 Gray, 451, 482; 
 Weston v. Sampson, 8 Cush. 347, 351 ; 
 
 tlement of the controversy between 
 this country and England, as to the 
 impressment of seamen by British 
 cruisers from American merchant 
 vessels, were broken off in conse- 
 quence of the British government in- 
 sisting that the " narrow seas " should 
 be excepted out of the sphere over 
 which the contemplated stipulations 
 against impressment should extend. 
 See Lawrence's Wheaton's Int. Law 
 (2d ed.), pt. XL, ch. 2, p. 211. Saluting 
 the flag was the usual recognition of 
 England's dominion over the seas. 
 1 Phillimore's Int. Law (2d ed.), 220. 
 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 sa- 
 lute of the flag over the sea south of 
 England as far as Cape Finisterre. 
 Hall's Int. Law, 121. 
 
 1 11 C. B. N. S. 387, 413. 
 
 211 H L. Cas. 192; see the same 
 case before the Exchequer Chamber, 
 13 C. B. N. s. 853. 
 
 3 Page 213. 
 
 4 Gammell v. Com'rs of Woods, 3 
 Macq. 419, 465. Lord Wensleydale 
 here said that " the distance of three 
 miles, by the acknowledged law of 
 
22 THE LAW OF WATEES. [Ch. I. 
 
 well as the shore was in the Crown by the common law. In 
 the case of The Leda, 1 Dr. Lushington, although not passing 
 directly upon the Crown's right of property in the sea, held 
 that the words " United Kingdom," as employed in a statute 
 with reference to salvage, included both the land of the king- 
 dom and three miles from the shore. In Church v. Hubbard, 2 
 in the Supreme Court of the United States, the question was 
 whether an insurance company was liable for the loss of a ves- 
 sel named the Aurora, which was seized and condemned some 
 four or five leagues from the coast of Brazil for attempting 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 seizure is, on that ac- 
 count, a mere marine trespass, not within the exception, can- 
 not be admitted. The 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 principles which are universally ac- 
 knowledged. The authority of a nation within its own terri- 
 tory is absolute and exclusive. The seizure of a vessel within 
 the range of its cannon by a foreign force is an invasion of 
 
 Com. v. Alger, 7 Cush. 53, 82; Dun- charter (1691), the admiralty juris- 
 
 ham v. Lamphere, 3 Gray, 268. diction was " exclusive on the high 
 
 iSwabey's Adm. 40; Haliday v. seas, the common highways of na- 
 
 Stott, 2 Hawaiian, 395-96. In Chase tions, without the territorial line, 
 
 v. American S. Co., 9 E. I. 419, 426, usually cannon shot from the shore; 
 
 Potter, J., said, in discussing the ad- concurrent with the common law 
 
 miralty jurisdiction under the Con- on the coasts between the shore and 
 
 stitution of the United States: "Be- that line, and without the bodies of 
 
 fore the adoption of the Constitution, counties, and within them only such 
 
 the State had jurisdiction over the admiralty limited jurisdiction the 
 
 bay (Narragansett Bay), and over said prior statutes gave, and that 
 
 the coasts of the sea, to the extent was the colonial view of the sub- 
 
 of the marine league. Lawrence's ject." 6 Dane's Abr. 357. 
 
 Wheaton, 321, 933; 6 Dane's Abr. 359, 2 2 Cranch, 187, 234; Hudson v. 
 
 etc.; 3Hagg. Adm. 290, 375; DeLovio Gustier, 4 Cranch, 293; The Brig 
 
 v, Boit, 7 Gall. 398, 425. See opinion Ann, 1 Gall. 62; United States v. 
 
 of Johnson, J., in Ramsay v. Allegre, Kessler, Bald. C. C. 15; Same v. Davis, 
 
 12 Wheat. 614. This jurisdiction was 2 Sumner, 482; Montgomeryu Henry, 
 
 exercised by its courts of common 1 Dall. 49; The Newfoundland, 89 
 
 law." Mr. Dane says that "the Fed. Rep. 510; People v. Tyler, 7 
 
 realm includes the narrow seas, and Mich. 161; 8 Mich. 320; The Adela, 
 
 the coasts" (6 Dane's Abr. 356); and Gallaudet's Manual Int. Law, 117; 
 
 at the date of the Massachusetts ante, § 2. 
 
§10.] 
 
 PROPERTY IN TIDE WATERS. 
 
 23 
 
 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, 1 the defendant was indicted for the larceny of treas- 
 ure 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 offenses 
 committed within 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. Same — Minerals. — In the present century the question 
 arose in England as to the rights of the Queen and the Prince 
 of Wales, as Duke of Cornwall, to the mines and minerals under 
 the shore and sea adjoining the coasts of Cornwall. 2 The de- 
 
 1 6 Sawyer, 640. A vessel wrecked 
 upon the shore is still upon the sea 
 so as to be within the jurisdiction of 
 the admiralty. United States v. Pit- 
 man, 1 Sprague, 196. 
 
 2 This involved the right of prop- 
 erty in minerals between high and 
 low- water mark around the coasts of 
 that county, and also the right of 
 property in minerals below low- water 
 mark, won by an extension of work- 
 ings begun above low-water mark, 
 and was determined by arbitration. 
 This arbitration is reviewed in Reg. 
 v. Keyn, 2 Ex. D. 63, at pages 121, 155- 
 158, 199-202. See, also, 6 Law Mag. & 
 Rev. 113. The reference was made 
 by Lord Chancellor Cranworth on 
 the part of the Queen, and by Lord 
 Kingsdown, then Chancellor of the 
 Duchy of Cornwall, on the part of 
 the Prince of Wales, to the arbitra- 
 tion of Sir John Patteson. A further 
 question involving the construction 
 of the Act of Parliament referred to 
 in the text was afterwards referred 
 to the arbitration of Sir John Cole- 
 ridge. See opinion of Coleridge, C. J., 
 in Reg. v. Keyn, 2 Ex. D. 63, 155-157. 
 Lord Coleridge here says that all the 
 proceedings in both references were 
 
 in writing, that he was furnished 
 with copies of the whole of them, 
 and that most of the authorities cited 
 in the case then before the court were 
 cited there, as well as some others of 
 considerable importance. It appeared 
 that the Prince was in possession, and 
 had worked the mines from land 
 which was his own. With respect to 
 the title beyond low-water mark, it 
 was contended, 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 ac- 
 quired 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 (seeTrematon Case, Wight- 
 wick, 167; Att. Gen. v. St. Aubyn, id.. 
 270; Penryhn v. Holm, 2 Ex. D. 328; 
 The Prince's Case, 8 Co. 31 ; Stanna- 
 ries Case, 12 Co. 10; Lord Advocate v. 
 Wemyss, [1900] A. C. 48); 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. 
 
24: THE LAW OF WATERS. [Ch. I. 
 
 cision of the arbitrator was that all the mines and minerals 
 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 possessions of 
 the Duchy of Cornwall ; but that the right to all mines and 
 minerals beyond low-water mark, under the tide waters adja- 
 cent 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. 1 An act of Par- 
 liament was passed 2 to give effect to this decision 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 pos- 
 sess around all the coasts of the kingdom. 3 
 
 § 11. Same — Regina v. Keyn — Jurisdiction. — In Eegina 
 v. Keyn, 4 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, 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 
 
 1 As to the prerogative in respect A., and Lord Coleridge, C. J., in Reg. 
 to royal mines, see Att. Gen. v. Mor- v. Keyn, 2 Ex. D. 63, 121, 155-158, and 
 gan, [1891] 1 Ch. 432; Esquimalt & N. the criticism upon this arbitration 
 Ry. v. Bainbridge, [1896] A C. 561. by Cockburn, C. J., in the same case, 
 
 2 21 & 22 Vict. ch. 109. 2 Ex. D. 199-202. See post, § 12. 
 
 3 See the judgment of Amplett, J. 4 2 Ex. D. 63. 
 
§11-] 
 
 PEOPEETY IN TIDE WATERS. 
 
 25 
 
 Franconia, and was charged with manslaughter for causing 
 the death of a passenger upon the English vessel, was not sub- 
 ject to the jurisdiction of, the English admiralty, the extent 
 of which jurisdiction was the only point really in issue. 1 The 
 judges who dissented from this conclusion were of the opin- 
 ion that the territory of England and the jurisdiction of the 
 Crown and the Admiral included the waters within the three- 
 mile belt, and the fact that the passenger's death occurred 
 upon an English vessel was regarded by Lord Coleridge, C. J., 
 and Denman, J., as sustaining the jurisdiction. 2 It was also 
 held that express legislation is necessary to confer upon the 
 courts jurisdiction over foreign vessels passing near the coast ; 3 
 that, with respect to both property and jurisdiction, the terri- 
 torial seas and the ocean beyond are alike high seas, open to 
 the peaceful navigation of all nations; 4 and that the territory 
 of England extends only to low-water mark on the external 
 coast. 5 
 
 1 The trial was in the Central Crim- 
 inal Court, to which the jurisdiction 
 of the admiral over crimes was trans- 
 ferred by Stat. 4 & 5 Will. 4, ch. 36; 
 Stat. 7 & 8 Vict. ch. 2. The judge 
 who presided at the trial reserved the 
 question of jurisdiction for the Court 
 for Crown Cases Reserved. The case 
 was argued a second time in this 
 court before fourteen judges. Archi- 
 bald, J., one of this number, died be- 
 fore judgment, but agreed with the 
 majority. See, also, Reg. v. Carr, 10 
 Q. B. D. 76; 62 L. T. 46. 
 
 2 See Eeg. v. Coombes, 1 Leach, C. 
 C. 388; Com. v. Macloon, 101 Mass. 1; 
 Reg. v. Moore, 8 Quebec L. R. 9. The 
 admiralty has no jurisdiction of an 
 offense committed by a foreigner 
 upon a foreign vessel upon the high 
 seas beyond the* three-mile belt, 
 even when the offense is committed 
 against English subjects. Reg. v. 
 Serva, 1 Den. C. C. 104; Reg. v. Lewis, 
 1 Dearsley & Bell, C. C. 182; Reg. v, 
 Keyn, 2 Ex. D. 63. 
 
 3 In The Annapolis, Lush. 295, 306, 
 Dr. Lushington said: "The Parlia- 
 ment of Great Britain has not, ac- 
 
 cording to the principles of public 
 law, any authority to legislate for 
 foreign vessels on the high seas, or f ox 
 foreigners out of the limits of British 
 jurisdiction, though, if Parliament 
 thought fit so to do, this Court, in its 
 instance jurisdiction at least, would 
 be bound to obey. In cases admit- 
 ting of doubt, the presumption would 
 be that Parliament intended to leg- 
 islate without violating any rule of 
 international law, and the construc- 
 tion accordingly. " See United States 
 v. Diekelman, 92 U. S. 520. 
 
 4 Reg. v. Keyn, 2 Ex. D. 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. 
 
 5 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 
 
26 THE LAW OF WATERS. [Ch. I. 
 
 § 12. Same — Same. — Of the opinions delivered in Regina 
 v. Keyn, that of Coekburn, 0. J., contains the fullest discussion 
 of the questions considered and of the Crown's property in the 
 sea. The learned judge, adverting to the fact that Selden, 
 Hale, and other early writers who assert an unrestricted sover- 
 eignty over the sea, 1 wrote at a period when the three-mile 
 rule was altogether unknown, and in support of England's do- 
 minion 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 re- 
 vived 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 those 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 piers, break- 
 waters, light-houses, forts, etc., upon the open sea-coast below 
 low-water mark, would be determined merely by the prior oc- 
 cupancy of the space covered by them ; and that, while such 
 encroachments, being commonly in aid of navigation, are read- 
 ily acquiesced in, 2 it would be worthy of consideration, if the 
 case arose, whether there would not be just cause for com- 
 plaint if they obstructed navigation by foreign vessels. 
 
 § 13. Same — Authority of Eegina v. Keyn, — The decis- 
 ion in Eegina 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. 3 Lord Hale thought it no objec- 
 
 on custom laws; (3) the exaction* of Kent Com. (12th ed.), 38; Kent, Int. 
 
 harbor and lighthouse dues; and (4) Law, 115; Manning's Law of Nations 
 
 the protection of the territory from (Araos's ed.), 119; "Vattel, lib. 1, ch. 23, 
 
 violation in time of war between other §295; Church v. Hubbart, 2 Cranch, 
 
 states. This passage was noticed and 234. 
 
 apparently approved in Reg. v. Keyn. 1 Ante, § 7. 
 
 See, also, Reg. v. Forty-nine Casks 2 If erected for purposes of defense, 
 
 of Brandy, 3 Hagg. Adm. 247, 289; they are within the principle that a 
 
 Merlin, Rep. de Juris, vol. 10, p. 135; nation may do what is necessary for 
 
 Ortalan, Diplom. de la Mer, vol. 1, the protection of its own territory, 
 
 pp. 157, 174-177; United States v. Per Coekburn, C. J., 2 Ex. D. p. 199. 
 
 Kessler, 1 Bald. C. C. 34; The Leda, sxhe decision in Reg. v. Keyn is 
 
 Swa. Adm. 40; General Iron Co. v. binding upon all the English courts. 
 
 Schurmanns, 1 J. & H. 193: Wheat- Harris v. The Franconia, 2 C. P. D. 
 
 on's Int. Law, pt. II, ch.4, §§ 6-10; 1 173. See Direct U. S. Cable Co. v. 
 
13.] 
 
 PEOPEETY IN TIDE WATERS. 
 
 27 
 
 tion to the theory of sovereignty over the sea that it extended 
 the rights and jurisdiction of the king beyond the counties, 1 
 and, under that, theory, the sea and the land appear to have 
 been regarded as distinct territories. 2 If, as Cockburn, C. J., 
 suggests, 3 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 extent 
 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. 4 In this country, counties are depend- 
 ent for their existence upon the consent of the legislature, 
 which may change their boundaries at pleasure, if not re- 
 stricted by express constitutional provisions; 5 and to declare 
 that the external bounds of a State upon the sea-coast are lim- 
 
 Anglo-Am. Tel. Co., 2 App. Cas. 394. 
 In Blackpool Pier v. Fydle 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. ch. 122, § 7. 
 
 1 " 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, ch. 4; Har- 
 grave's Law Tracts, 10. See also 
 Hale's unpublished treatise on Ad- 
 miralty Jurisdiction, quoted by Gray, 
 J., in Commonwealth v. Macloon, 101 
 Mass. 1, 12, pL 5. 
 
 2 In 1 Molloy, De Jure Maritimo 
 (9th ed.), ch. 5, pi. 14, note, it is said, 
 with reference to the four seas: " The 
 right unto the sea ariseth not from 
 the possession of the shores; for the 
 sea and land make distinct territo- 
 ries, and by the laws of England, 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." 
 
 3 2 Ex. D. 63. 
 
 iAnte, §§7-10. 
 
 6 Laramie Co. v. Albany Co., 92 
 IT. S. 307; Whallon v. Ingham Cir- 
 cuit Judge, 51 Mich. 503; Burns v. 
 Clarion Co., 62 Penn. St. 425; Wind- 
 ham 1). Portland, 4 Mass. 589; Opin- 
 ion of the Justices, 6 Cush. 578; Stone 
 v. Charleston, 114 Mass. 214; Eagle 
 v. Beard, 33 Ark. 497; Dodson v. 
 Forth Smith, id. 508; Bittle v. Stuart, 
 34 Ark. 224, 231; Reynolds v. Hol- 
 land, 35 Ark. 56; Abernathy v. Den- 
 nis, 49 Mo. 468; State v. Shortridge, 
 56 Mo. 126; Opinion of Supreme 
 Court, 55 Mo. 295; Woods v. Henry, 
 id. 560; Baltimore v. State, 15 Md. 
 376; Groff v. Frederick City, 44 Md. 
 67; Frederick v. Goshen, 30 Md. 436; 
 Wade v. Richmond, 18 Gratt. 583; 
 Manley v. Raleigh, 4 Jones Eq. 370; 
 Love v. Schenck, 12 Ired. 304; Wal- 
 lace v. Trustees, 84 N. C. 164; Dare 
 County Com'rs v. Currictuck County 
 Com'rs, 95 N. C. 189; People v. Hill, 
 7 Cal. 97; San Francisco v. Canavan, 
 42 Cal. 541; State v. Branin, 3 Zab. 
 485; Pell v. Newark, 40 N. J. L. 71; 
 Detroit v. Blackeby, 21 Mich. 84; 
 Barner v. District of Columbia, 91 
 U. S. 540; Beckwith v. Racine, 7 Biss. 
 142. 
 
28 
 
 THE LAW OF WATEKS. 
 
 [CH. I. 
 
 ited by those of its counties, is but another form of saying 
 that both depend upon the will of the legislature. According 
 to the decisions in the American courts, these boundaries are 
 not necessarily identical. 1 Thus, in Schooner Norway v. Jen- 
 sen, 2 in Illinois, Breese, C. J., said, with reference to the west- 
 
 1 Mahler v. Norwich Transp. Co., 
 35 N. Y. 358; 45 Barb. 226; 30 How. 
 237; Manley v. People, 7 N. Y. 295, 
 299, 303; Dunham v. Lamphere, 3 
 Gray, 268, 270; Com. v. Eoxbury, 9 
 Gray, 451, 494; Keyser v. Coe, 37 
 Conn. 597, 613; Powers v. Larabee, 1 
 Wis. 200; State v. Cameron, 2Chand. 
 (Wis.) 172; Hart v. Rogers, 9 B. Mon. 
 418, 422; Morris County v. Hinchman, 
 29 Kansas, 90; United States v. Bev- 
 ens, 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 refer- 
 erence to a nisi prius case tried in 
 the Superior Court of Massachusetts 
 in Barnstable County: "In the course 
 of the trial, the presiding judge re- 
 marked: '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 
 Justice of Massachusetts, upon the 
 resignation 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 v. Forty-nine Casks of 
 Brandy, 3 Hagg. Adm. 275, 290, Sir 
 John Nicholl said : " No person ever 
 heard of a land jurisdiction of the 
 body of a county which 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 v. Wagner, 61 Maine, 
 178. 
 
 2 52 111. 373, 380. See Murphy v. 
 Dunham, 38 Fed. Rep. 503; Illinois 
 v. Illinois Central R. Co., 33 id. 721; 
 Bigelow v. Wickerson, 70 id. 113; 
 Thorson v. Peterson, 10 Biss. 530; 
 Dunlap v. Com., 108 Penn. St. 607. As 
 to Lake Superior, see The Lindrup, 
 62 id. 851. In Illinois Central R. Co. 
 v. Illinois, 146 U. S. 387, 452, Mr. Jus- 
 tice Field, referring to the title held 
 by the States bordering upon the 
 Great Lakes to the lands under these 
 navigable waters and their inlets as 
 similar to that held by the States 
 upon the sea-coast to the soil under 
 tide water by the common law, said: 
 " That title necessarily carries with 
 it control over the waters above 
 them, whenever the lands are sub- 
 jected to use. But it is a title differ- 
 ent in character from that which the 
 State holds in lands intended for sale. 
 It is different from the title which 
 the United States hold in the public 
 lands which are open to pre-emption 
 and sale. It is a title held in trust 
 for the people of the State, that they 
 may enjoy the navigation of the 
 waters, carry on commerce over 
 them, and have liberty of fishing 
 therein freed from the obstruction 
 or interference of private parties. 
 The interest of the people in the 
 navigation of the waters and in com- 
 merce over them may be improved 
 in many instances by the erection of 
 wharves, docks and piers therein, for 
 which purpose the State may grant 
 parcels of the submerged lands; and, 
 so long as their disposition is made 
 
14.] 
 
 PEOPEETY IN TIDE WATEES. 
 
 29 
 
 ern 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 legis- 
 lature, yet it is, nevertheless, a portion of the navigable waters 
 of this State and of our territory." And in Manchester v. 
 Massachusetts, 1 Blatchf ord, J., says : " There is no indication 
 that the customary law of England in regard to the boundaries 
 of counties was adopted by the constitution of the United 
 States as a measure to determine the territorial jurisdiction of 
 the States." The right of fishing Within the distance of one 
 marine league from the shore was not considered in Eegina v. 
 Keyn, and appears to belong exclusively to the inhabitants of 
 the littoral state, 2 subject to the regulations of its legislature. 3 
 
 § 14. Same — Town boundaries on the shore. — All polit- 
 ical bodies are not limited by the lines which bound their sub- 
 
 for such purpose, no valid objections 
 can be made to the grants. . . . 
 The trust devolving upon the State 
 for the public, and which can only 
 be discharged by the management 
 and control of property in which it 
 has an interest, cannot be relin- 
 quished by a transfer of the prop- 
 erty. The control of the State for 
 the purposes of the trust can never 
 be lost, except as to such parcels as 
 are used in promoting the interests 
 of the public therein, or can be dis- 
 posed of without any substantial im- 
 pairment of the public interest in 
 the lands and waters remaining. It 
 is only by observing the distinction 
 between a grant of such parcels for 
 the improvement of the public in- 
 terest, or which, when occupied, do 
 not substantially impair the public 
 interest in the lands and waters re- 
 maining, and a grant of the whole 
 property in which the public is in- 
 terested, that the language of the 
 adjudged cases can be reconciled." 
 See People v. Illinois Cent. B. Co., 91 
 Fed. Rep. 955. The northern bound- 
 ary of Ohio is at the dividing line 
 through Lake Erie between the 
 
 United States and Canada, and the 
 State has jurisdiction to that line. 
 Edson v. Crangle (Ohio), 56 N. E. Rep. 
 647. 
 1 139 TJ. S. 240; 152 Mass. 230. 
 
 2 See Gammell v. Commissioners of 
 Woods and Forests, 3 Macq. 419; 
 Dunham v. Lamphere, 3 Gray, 268; 
 Schultes, Aquatic Rights, 3; Chitty 
 on the Prerogative, 100; Vattel, tit. 
 1, ch. 23; Puffendorf, IV, 4; VII, 8; 
 Craig, Jus Feud, lib. 1, 15, § 13; Law- 
 rence's Wheaton's Int. Law, pt. II, 
 ch. 4; Martens, Precis du Droit, § 153; 
 Hall's International Law, 125. In 
 Coulson and Forbes on Waters (pp. 2, 
 4, 11) it is said that a nation may 
 bind itself by treaty, and perhaps by 
 non-user, from participating in the 
 common right of fishing at certain 
 places in the sea in favor of other 
 nations ; and that " there can be no 
 doubt but that by treaty, or by the 
 implied assent of nations, the right 
 of fishing within three miles of the 
 coast of the United Kingdom is 
 vested exclusively in the inhabitants 
 subjects of her Majesty." 
 
 3 Ibid, post, § 16; Dogerty v. Power, 
 1 Russell Eq. (Nova Scotia), 419, 422. 
 
30 
 
 THE LAW OF WATEKS. 
 
 [Ch. L 
 
 divisions. 1 Counties are not made up of towns, cities or parishes, 
 and yet the seashore between high and low-water mark, though 
 within the county at low tide, 2 is presumed to be extra-paro- 
 chial with respect to jurisdiction. 3 This presumption applies 
 to the shore of an arm of the sea 4 and of a tidal river 5 as well 
 as to the shore of the external coast. In the "West the juris- 
 diction of townships bordering on the Great Lakes does not ex- 
 tend beyond the boundaries established by the official surveys, 
 and these do not include territory outside of the shore lines. 5 
 
 § 15. Same — Power of Parliament. — In Eegina v. Keyn, 
 Kelly, 0. B., and Sir K. 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. 7 The subject was 
 discussed in Parliament shortly after the above decision, and a 
 statute was enacted by which foreigners passing in foreign 
 vessels within three miles of the shore were made subject to 
 the criminal law of England. 8 This statute appears to extend 
 the jurisdiction only. 
 
 Brown, 3 EL & EL 
 
 1 Embleton v. 
 234; ante, § 13. 
 
 2 Ante, § 4; Reg. v. Musson, 8 El. & 
 Bk. 900; 4 Jur. N. s. (Q. B.), Ill ; Water- 
 loo Bridge Co. v. Cull, 28 L. J. Q. B. 
 75; 5 Jur. 1288. See Hale, De Jure 
 Maris, ch. 6, 1; Calmady v. Rowe, 6 
 C. B. 880; Reg. v. Gee, 1 El. & El. 1068; 
 McCannon v. Sinclair, 2 id. 53 ; Par- 
 rott v. Bryant, 2 Y. & C. 61, 69; 31 & 
 32 Vict. ch. 122, § 27; Blackpool Pier 
 Co. v. Fylde Union, 46 L. J. M. C. 189; 
 36 L. T. 251; Reg. v. Newport, 31 L. J. 
 M. C. 267. 
 
 3 Ipswich Dock Commissioners v. 
 St. Peter, 7 B. & S. 310; Smart v. Suva 
 Town Board, [1893] A. C. 301. 
 
 4 Bridgewater Trustees v. Bootle- 
 cum-Linacre, L. R 2 Q. B. 4; 7 B. & 
 S. 348; Cory v. Bristow, 2 App. Cas. 
 H. L. 262. Rex v. Landulph, 1 Mod. 
 & Rob. 393, seems to apply to parishes 
 bordering on private streams. See 
 post, § 202. 
 
 6 Post, ch. 3. 
 
 6 People v. Bouchard, 82 Mich. 156. 
 See Oakland v. Oakland W. F. Co., 
 118 Cal. 160, 249. 
 
 7 See Reg. v. Keyn, 2 Ex. D. 63. 
 
 8 41 & 42 Vict. ch. 73, entitled The 
 Territorial Waters Act, which de- 
 clared that " for the purpose of any 
 offense declared by this act to be 
 within the jurisdiction of the admiral 
 any part of the open sea within one 
 marine league of the coast, meas- 
 ured from low-water mark, shall be 
 deemed to be open sea within the 
 territorial waters of her Majesty's 
 dominions." This statute has been 
 ci'iticised as contrary to international 
 law. See e. g. Perels' Das Interna- 
 tionale dffentliche Seerecht der Ge- 
 genwart, § 13. In the House of Lords, 
 the Lord Chancellor (Lord Cairns), in 
 discussing the proposed legislation, 
 said: " The jurisdiction to which he 
 had to call attention was not over 
 
§16.] 
 
 PBOPEETY IN TIDE WATEES. 
 
 31 
 
 § 16. Same — Legislation 
 
 ing to territorial waters has also been brought in question. 
 
 The effect of legislation relat- 
 
 In 
 
 rivers, bays, or harbours, because in 
 respect of that no controversy had 
 ever arisen, but the jurisdiction over 
 the territorial waters in that belt or 
 zone of the high seas which more or 
 less surrounded the shores of the em- 
 pire. This, at first sight, would ap- 
 pear 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-preservation. 
 It was necessary, to some extent and 
 in some measure, that there should 
 be a territorial jurisdiction 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 conse- 
 quence would be that the subjects of 
 that kingdom in the presence of for- 
 eigners would be absolutely without 
 defense from the moment they en- 
 tered the sea for the purpose of bath- 
 ing, or fishing, or for any other pur- 
 pose. Not only so, but when on dry 
 land they would be without a protec- 
 tion, because if no jurisdiction from 
 the land exten ded to the sea surround- 
 ing the seaboard, people from all 
 parts of the world might come to the 
 part of the high sea contiguous to 
 the land and resort to practices which 
 might be of the most serious char- 
 acter to people on shore. So, again, 
 in the case of war hostilities carried 
 on by belligerents outside the shore 
 might expose a neutral power 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 unquestionably 
 the territorial jurisdiction extended. 
 With regard to the low-water mark, 
 it must be remembered that there 
 
 were parts of the coasts where there 
 were considerable intervals 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 cliffs- 
 that there was absolutely no hori- 
 zontal interval between high and 
 low-water mark. It had been sug- 
 gested, or might be suggested, that 
 if the jurisdiction of this country ex- 
 tended over the part of the high seas 
 immediately adjoining the shore, in- 
 asmuch as the right of passage over 
 that part was allowed to foreign ships^ 
 it would be unfair to claim such ju- 
 risdiction 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 footing- 
 only — that those who availed them- 
 selves of the rights of passage should 
 not expose themselves to any com- 
 plaint of a violation of the rights of 
 those by whom the right of passage- 
 was conceded. In truth, any such 
 exemption would apply to the case of 
 foreign ships coming into one of our 
 bays." 
 
 With respect to the decision in 
 Eeg. v. Keyn, the Lord Chancellor 
 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- 
 liament to legislate for these waters, 
 and proceeded: "As he understood 
 these words, if Sir Eobert Lush had 
 found that in the particular place 
 Parliament had stepped in and said 
 that portion of the 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 be quashed. 
 It was fortunate for the prisoner in 
 the 'Franconia' case, though not 
 
32 
 
 THE LAW OF WATEES. 
 
 [OH. I. 
 
 Eegina v. Keyn, 1 the provision of the Merchant Shipping Act, 2 
 authorizing the detention of a foreign vessel which had caused 
 injury to the property of English subjects in any part of the 
 world, if at any time thereafter such ship was found in any 
 
 fortunate 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 
 county.' 'And we, the said Commis- 
 sioners of Her Majesty's Treasury, do 
 further declare that the limits sea- 
 ward 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 authorities had declared, 
 long before the 'Franconia' case, 
 that the limits of 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 limited by the limits 
 of counties, taking into the county 
 the low-water mark, and the har- 
 
 bours and rivers within the county; 
 and the jurisdiction by sea, the old 
 jurisdiction of the Lord High Ad- 
 miral 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 foreigners; 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 ma- 
 jority 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 observa- 
 tions from Sir Robert Phillimore, the 
 Lord Chief Baron, and the Lord 
 Chief Justice, whose judgment was 
 the most elaborate, and might be re- 
 garded 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 ref erred without the 
 consent of foreign nations, or until 
 after communication, with foreign 
 nations. This was a very serious 
 question. If the judgments of those 
 learned judges amounted, as they 
 were supposed to do, to a proposition 
 of that kind, of course Parliament 
 
 12 Ex D. 63. 
 
 2 17 & 18 Vict. ch. 104, § 527. 
 
§ 16.] PKOPEETY IN TIDE WATERS. 33 
 
 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, 0. 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 district 
 courts to take cognizance of complaints in cases of captures 
 made within the waters of the United States, or within a ma- 
 rine league of the coasts or shores thereof. 1 In the case of the 
 Brig Ann, 2 a seizure was made off ISTewburyport, and within 
 three miles of the shore, for violation of the embargo acts. 
 Story, J., held that, as a principle of public law, the waters 
 within the three-mile belt form part of the nation's territory ; 3 
 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, 4 Shaw, C. J., expressed the opinion that, 
 by virtue of a statute of Massachusetts, which prohibited fish- 
 ing with a seine within one mile of the shores of Nantucket 
 and other small islands, that extent of sea was within the ter- 
 ritorial limits of the State. It is now provided by statute, in 
 this and other States, that the territorial limits of the State 
 extend three miles seaward from the shore. 5 
 
 would be exceeding its powers if it watermark, and held themselves free 
 
 entered into legislation applying to to use any powers at their disposal 
 
 that belt or zone with the view of as Parliament may direct, or the na- 
 
 making foreigners answerable to our tional interests may require, 
 
 law. But he would ask their lord- 1 1 Stats, at Large, p. 384, ch. 50, 
 
 ships to consider whether there was § 6; 1 Kent Com. 26-30. 
 
 ■any foundation for that principle. 2 1 Gall. 62. 
 
 He ventured to think there was not, 3 Citing Church v. Hubbart, 1 
 
 and be thought it would be a very Cranch, 187, 234. 
 
 serious thing if there were." London i Dunham v. Lamphere, S Gray, 
 
 Times, Feb. 15, 1878, reprinted in 2 268, 269. See Manchester v. Massa- 
 
 Halleck's Int. Law (Baker's ed.), 559. chusetts, 139 IT. S. 240; 152 Mass. 230. 
 
 Blackpool Pier v. Fylde, 46 L. J. M. 6 In Massachusetts, " the territorial 
 
 C. 189. On March 30, 1882, in reply limits of this commonwealth extend 
 
 to a question in reference to the pro- one marine league from its seashore 
 
 jected channel tunnel, in the House at low- water mark; " "the bounda- 
 
 of Commons, Mr. Joseph Chamber- ries of counties bordering on the sea 
 
 lain, president of the Board of Trade, extend to the line of the State as 
 
 said that the chairman of the South- above denned," and "the sover- 
 
 •eastern Eailway had been warned eignty and jurisdiction of the com- 
 
 that the government claimed the bed mon wealth extend to all places within 
 
 of the sea for three miles below low- the boundaries thereof." St. 1859, 
 3 
 
34 
 
 THE LAW OF WATEES. 
 
 [Oh. 1 
 
 § 17. Same — Jus publicum — Jus privatum.— The rights 
 of the Crown 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 privi- 
 leges are accorded to the king by the common law, as incident 
 to the powers of government, for the protection of the realm, 
 the regulation of the marine revenues, and in the interest of 
 
 ch. 289; Gen. Sts. (1860), oh. 1, §§ 1, 2. 
 And the boundaries of cities and 
 towns bordering upon the sea extend 
 to the State line. St. 1881, oh. 196. 
 See also Pub. Sts. ch. 213, § 19. In 
 Ehode Island there is a similar stat- 
 ute, the line being, however, one 
 league from the seashore at higlv- 
 water mark. Pub. Sts. (1882), ch. 1, 
 §§ 1, 2. See Rev. Sts. of R. I. (1857), 
 ch. 7, 8. Under the California Con- 
 stitution, Art. 21, § 1, and its Political 
 Code, § 33, extending the State line 
 westwards three miles from the 
 shore, a State statute, which makes 
 death by another's wrongful act a 
 cause of action, applies to a cause of 
 action arising on the high seas within 
 such limit from the shore. In re 
 Humboldt Lumber M. Ass'n, 60 Fed. 
 Rep. 428. In the Constitution of that 
 State, Art. 12, the State is bounded 
 on the south along the boundary line 
 between the United States and Mex- 
 ico "to the Pacific Ocean, and ex- 
 tending 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 county of that 
 State, begins at a point in the Pacific 
 Ocean, at the southern line of Ore- 
 gon, and runs " thence southerly by 
 ocean shore," etc. Code, § 3909. See, 
 
 also, Constitution of Alabama, Art. 2, 
 § 1, and Code 1876, § 12 (16). A State 
 statute providing as to wrongfully 
 causing another's death applies three 
 miles seaward from the shores of the 
 State. Humboldt Lumber M. Ass'n 
 v. Christopherson, 73 Fed. Rep. 239. 
 As to the right of New York and . 
 Connecticut in Long Island Sound, 
 see Mahler v. Norwich Transp. Co., 
 35 N. Y. 352, 360; Rowe v. Smith, 
 
 48 Conn. 444; Elphick v. Hoffman, 
 
 49 Conn. 331. The Republic of Texas 
 defined its southern boundary as ex- 
 tending from "the mouth of the Sa- 
 bine River and running west along 
 the Gulf of Mexico, three leagues 
 from land to the mouth of the Rio 
 Grande," and after the annexation of 
 Texas, the State reaffirmed this right 
 of jurisdiction. In Galveston v. Men- 
 ard, 23 Texas, 349, 391, it is said that 
 the admission of this claim by other 
 nations might depend upon the power 
 of the littoral state to enforce it, but 
 that the boundary thus established 
 was conclusive between its own citi- 
 zens with respect to the right of soil. 
 As to Galveston Harbor, see Weekes 
 v. Galveston (Tex. Civ. App.), 51 S. W. 
 Rep. 544. By the treaty between the 
 United States and Mexico (9 St. at 
 Large, 926, § 5), it was provided that 
 the boundary line between the two- 
 countries should commence in the 
 Gulf of Mexico three leagues from 
 land opposite the mouth of the Rio- 
 Grande River, and run northward 
 with the middle of the river. See 
 The Peterhoff, 5 Wall. 28, 51. 
 
§17.] 
 
 PKOPERTY IN TIDE WATERS. 
 
 35 
 
 commerce. 1 According to the treatise De Jure Maris, com- 
 monly ascribed to Lord Hale, and other authorities of the sev- 
 enteenth century, which refer to early precedents, the Crown's 
 interest in navigable waters is of a two-fold nature : first, the 
 jus publicum, a right of jurisdiction and control for the bene- 
 fit of its subjects, which is similar to the jurisdiction over pub- 
 lic highways by land, though the right of soil may 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; 2 second, the jus 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 his public trust, or so as to justify 
 
 31 Black. Com. 263, 264; 2 id. 14, 
 105, 204; Selden, Mare Clausum, lib. 
 2, oh. 22, 24; Callis on Sewers, 39-41; 
 Chitty's Prerogative of the Crown, 
 142, 173, 206; Com. Dig. tit. Prerog- 
 ative D., and Navigation B. ; Bacon's 
 Abr. tit. Court of Admiralty A, and 
 Prerogative B. 1, 3; 2 Poll. Abr. 168; 
 Co. Litt. 1 b, 65 a; 3 Kent Com. 487; 
 Woodward v. Fox, 2 Ventrjs, 267; 
 Bracton, lib. 3, § 120; Hall on the 
 Seashore (2d ed.), § 6. "The king being 
 to look to the sea as well as to the 
 dry land, and being to defend his 
 subjects both by sea and land, the 
 law, therefore, gives him manv pre- 
 rogatives both upon the one ana the 
 other. As thus: (1) That the king, as 
 supreme, is custos toiius regni Ang- 
 lice, and to take care both of sea and 
 land, of both which he, not only as to 
 protection, but as to propriety, is said 
 to be the lord. And therefore that 
 the four seas, being as the walls of 
 the kingdom, and havens, creeks, and 
 ports adjoining to the sea, being the 
 gates and posterns of it, are said by 
 law to belong to him, and he is to 
 name and appoint the officers for the 
 custody thereof. . . . (4) That in 
 cases where the sea-banks be broke 
 or the sewers or gutters thereof not 
 secured, the king might heretofore 
 (by the common law) have appointed 
 commissioners of sewers, and have 
 
 given them commission to inquire 
 of and to have punished the defaults, 
 and to have ordered the repairs of 
 the passages, gutters, and rivers that 
 lead into the sea. The which is now 
 further provided for by the statutes 
 of 23 Hen. 8, cap. 5, and 13 Eliz. cap. 
 9, and 1 Mar. cap. 11, with many 
 others. (5) That the king may, upon 
 special occasion, arrest ships within 
 the seas for the voyages of the realm. 
 (6) That he may by law, for his en- 
 ablement and encouragement herein, 
 and to help to maintain his navy, 
 have and take divers privileges and 
 advantages in, upon, and about the 
 sea and rivers thereunto belonging. 
 For (1) the soil, banks, and shores, as 
 high as they flow and reflow, belong 
 to him. (2) He is to have all the 
 havens, ports, and creeks thereof. 
 (3) He is to have all the navigable 
 rivers and breaches of the sea, as 
 Thames and Lee and the rest, which 
 are his streams: and he hath, and is 
 to have in them, the same preroga- 
 tive, so high as the sea floweth and 
 refloweth in them, as he hath in alto 
 mari. And therein the fishing, rigore 
 juris, as a royal fishery, doth belong 
 to him." Shepperd's Abridg. (2d ed.), 
 tit. Prerogative, pt. 3, p. 97. 
 
 2 Hale, De Jure Maris, ch. 6; Har- 
 grave, 36. 
 
36 THE LAW OF WATERS. [Ch. I. 
 
 any interference with the public rights of navigation and fish- 
 ery. In Attorney General v. London, 1 Sergeant Merewether 
 presented an elaborate argument, 3 in which he contended that, 
 upon an examination of the early authorities, including the 
 Saxon charters and laws, Domes-day Book, in which the king's 
 lands are enumerated, 3 the works of Bracton, Glanville, Fleta, 
 and Britton, and the ancient decisions, no trace of a private 
 interest in the Crown was found, but that, on the contrary, 
 there were traces of a territorial right to the shores of tide 
 waters as belonging to the adjacent lands ; that the treatise 
 De Jure Maris, which had been accepted as the repository of 
 ancient learning upon this and kindred subjects, was not with 
 good reason ascribed to Lord Hale, the use of whose name had 
 given an undue weight to the statements there made ; 4 that 
 the theory of a. jus privatum had its rise in the arbitrary reigns 
 of the Stuarts, from which period precedents for such a doc- 
 trine should be taken with caution ; and that, while the Crown 
 had confessedly certain rights in the sea and its shores, includ- 
 ing dominion and jurisdiction over them by its courts, and the 
 duty to care for them in the interests of navigation and for 
 the public benefit, the proposition that it had also a private 
 and beneficial interest, and a right to take the fruits of the 
 seashore, independently of any title to the adjoining lands, 
 had been asserted rather than controverted and adjudged. 
 
 § 18. Same — Hale's De Jure Maris. — The case in which 
 this argument was delivered appears to have been decided 
 
 1 Reported in 2 Ha. & Tw. 1; 8 4 Certain of the ancient charters 
 Beav. 370; 14 L. J. Ch. 305; 12 Beav. contained express grants of the sea- 
 8, 171, 217; 2 Mac. & Gr. 247; 1 H. L. shore, salt marshes, etc., accompany- 
 Cas. 440. ing the grant of the lands included 
 
 2 Published in the Appendix to Hall in the charters. Thus Hale refers to 
 on the Seashore (2d ed.). See Jer- a grant of King Canute " de terra in- 
 wood on the Seashore, which con- sulse Thanet, tarn in terra quam in 
 tains a reply to this argument. See mari et litore;" and to another of 
 also Waverly Water Front Imp. Co. William the First, " de tota terra Es- 
 v. White (Va.), 45 L. R. A. 227, note, tanore, et totum litus usque' media- 
 
 3 In early decisions it was held that tatem aquse." De Jure Maris, ch. 5. 
 " ancient demesne " is land under The earlier chapters of Moore on the 
 the title of terra regis in Domes-day Foreshore (London, 1888) contain a 
 Book and none other; and that it valuable and exhaustive review of 
 must be averred by that book as a these ancient precedents. 
 
 record. Hunt v. Burn, Salk. 57 ; S. C, 
 Holt, 60. 
 
§18.] 
 
 PEOPEETY IN TIDE WATEES. 
 
 37 
 
 upon other grounds, and the later English decisions support 
 the title of the Crown in accordance with the statements of 
 the treatise De Jure Maris} It seems to admit of little doubt 
 that this celebrated treatise was written by Sir Matthew Hale, 
 and it is uniformly ascribed to him in the decisions of the Eng- 
 lish and American courts. 3 But the reported cases, which came 
 before the English courts in the seventeenth century, tend to 
 show that the doctrine was not then fully recognized ; 3 and, as 
 
 1 In Lord Advocate v. Blantyre, 4 
 App. Cas. 770, 773, note, Lord Currie- 
 hill, Lord Ordinary, said in the court 
 below : "There is no longer any doubt, 
 if such ever existed, that the fore- 
 shore of the sea and of navigable riv- 
 ers, though belonging to the Crown, 
 subject to certain public uses con- 
 nected with navigation and the like, 
 are nevertheless alienable by the 
 Crown subject to such public uses." 
 In Gann v. Whitstable Free Fishers, 
 11 C. B. s. s. 387, Erie, C. J., said that 
 there is no rule of law which pre- 
 vents the Crown from granting to a 
 subject that which is vested in itself. 
 
 2 See Reg. v. Betts, 4 Cox, C. C. 213; 
 A.tt. Gen. v. Chambers, 4 De Gex & 
 J. 55, 71 ; Calmady v. Rowe, 6 Man. 
 G. & S. 878, note; Exeter v. Warren, 
 5 Q. B. 773, 801; Ipswich Dock v. St. 
 Peter, 7 B. & S. 310, ( 344; King v. 
 Ward, 4 Ad. & El. 384, 406; King v. 
 Yarborough, 3 B. & C. 91; 2 Bligh, 
 n. s. 147; 1 Dow, N. s. 176; Bolt v. 
 Stennett, 8 T. R. 606; Aldnutt v. 
 Inglis, 12 East, 527, 537; Att. Gen. 
 v. St. Aubyn, Wightwick, 262; Mur- 
 phy v. Ryan, Ir. R. 2 C. L. 143; Blun- 
 delL v. Catterall, 5 B. & Aid. 268; 
 Ex parte Jennings, 6 Cowen, 536, 
 note; Per Waite, C. J., and Field, J., 
 in Munn v. Illinois, 94 U. S. 113, 126, 
 149; Per Gray, J., in Nichols v. Bos- 
 ton, 98 Mass. 39, 41, and, Haskell v. 
 New Bedford, 108 Mass. 208, 215; 
 Berry v. Snyder, 3 Bush, 266, 275; 
 Phear's Rights of Water, 47, note m; 
 Jerwood on the Seashore, 31, 94, 118; 
 Moore on the Foreshore, chs. 14, 15. 
 
 Lord Hale's views appear in his judg- 
 ment as Chief Justice in Lord Fitz- 
 walter's Case, 3 Keb. 242; 1 Mod. 105 
 (S. C. 3 Keb. 459, 465, 485, 519, 555; 2 
 Lev. 139; 1 Freem. 414), and by his 
 position as counsel in Johnson v. Bar- 
 rett, Aleyn, 10, referred to in the next 
 note. Sir Matthew Hale died in 1676, 
 and the treatise De Jure Maris, 
 though probably written about the 
 middle of the seventeenth century, 
 was not published until 1787. See 
 post, § 49. 
 
 3 Merewether argues that the jus 
 privatum was not acknowledged in 
 the English law prior to the case of 
 Bulstrode v. Hall, Sid. 182, decided in 
 1663. He refers particularly to John- 
 son v. Barrett, Aleyn, 10 (1646). This 
 was an action of trespass for carry- 
 ing away soil and timber, in which 
 it appeared that the bailiff and bur- 
 gesses of Yarmouth had destroyed a 
 wharf erected in that town. Rolle, 
 the presiding justice, stated that if it 
 were erected between the high and 
 low-water mark it belonged to the 
 owner of the adjoining land, while 
 Hale, who was counsel in the case, 
 earnestly affirmed that it belonged 
 to the Crown of common right. But 
 it was clearly agreed that if it were 
 erected beyond the low-water mark, 
 it belonged to the king. Merewether 
 argues that Hale would have cited 
 this case in which he was counsel, if 
 he were the author of the treatise De 
 Jure Maris, or that, the case not being 
 referred to in that treatise, it was de- 
 cided against his doctrine. Wool- 
 
3S 
 
 THE LAW OF WATERS. 
 
 [Oh. I. 
 
 the American colonies were settled from England at that time, 
 those cases and the argument of Sergeant Merewether appear 
 to have a significance in this country, where, as will be here- 
 after seen, 1 the ancient usages of most of the original States 
 allow to the owners of the adjoining lands rights in the soil 
 below the high-water mark of tide waters, which are unknown 
 to the common law of England, and where, in accordance with 
 the dicta of the earlier English decisions, 2 the view generally 
 accepted has been that the Crown holds this property solely as 
 a trustee for the public, and cannot, since Magna Carta, convey 
 it to a subject. 3 
 
 rych (on "Waters, 20) says of this case 
 that " if it were understood that the 
 soil between high and low-water 
 mark might belong to a subject by 
 grant or prescription, as might well 
 be the fact, and that the soil below 
 low-water mark belonged to the 
 Crown, as being of little or no value 
 as the subject of a grant, there would 
 be no difficulty in reconciling the 
 opinions of the great lawyers who 
 differed upon that occasion." It ap- 
 pears that the plaintiff afterwards 
 had judgment. 2 Eol. Abr. 250, pi. 7. 
 See Boston v. Richardson, 105 Mass. 
 371, 362; Barnstable v. Thacher, 3 
 Met. 239, 243; Jerwood on the Sea- 
 shore, 61. In Anon. Dyer, 326 b (15 
 & 16 Eliz.), it was doubted whether 
 the king was entitled to land left by 
 the sea; and in Attorney General v. 
 Farmen,2 Lev. 171, it was debated 
 whether such land belongs to the 
 Crown as a thing of inheritance or 
 of prerogative, and it was held that 
 no patent could be made of the soil 
 under the sea until it had become 
 convertible or derelict. See, also, 
 Att. Gen. v. Turner, 2 Mod. 106; 2 
 Lev. 171; Whitaker v. Wise, 2 Keb. 
 759. Lilly, who, although not a 
 writer of high authority, perhaps 
 shows the popular understanding 
 prior to the publication of the De 
 Jure Maris, says: "Lands between 
 the high-water and low-water mark 
 
 belong to the lord of the manor next 
 adjoining, as part of his manor; and 
 he can claim by prescription to have 
 wreck and fishing there." 2 Lilly's 
 Practical Register, tit. Rights. 
 
 iPost, §§32, 168, etseq. 
 
 2 Blundell v. Catterall, 5 B. & Aid. 
 268; Somerset v. Fogwell, 5 B. & C. 
 875, 884; Att. Gen. v. Farmen, 2 Lev. 
 171; T. Raym. 241; 2 Mod. 106. 
 
 3 Per Kirkpatrick, C. J., in Arnold 
 V. Mundy, 1 Halst. 1, 12, 77, 78; Kev- 
 ins, J., in Bell v. Gough, 23 N. J. L. 
 624, 684, 688; per Bellows, J., in 
 Clement v. Burns, 43 N. H. 609, 616; 
 Martin v. Waddell, 16 Peters, 367, 
 410; Pollard v. Hagan, 3 How. 212; 
 Goodtitle v. Kibbe, 9 How. 471; Bar- 
 ney v. Keokuk, 94 U. S. 324; Com. v. 
 Wright, 3 Am. Jur. 185; Hatfield v. 
 Grimstead, 7 Ired. 139; Galveston 
 v. Menard, 23 Texas, 349; Chapman 
 v. Kimball, 9 Conn. 38; McManus v. 
 Carmichael, 3 Iowa, 1, 29. In Barker 
 v. Bates, 13 Pick. 255, 259, Shaw, C. J., 
 speaking of the law of England, said: 
 " There the rule is that the right of 
 property to high-water mark is in 
 the Crown, but it is deemed to be so 
 held in trust for the use and benefit 
 of all the king's subjects, and there- 
 fore such right of property cannot 
 be granted by the Crown to a sub- 
 ject." See the opinions of the same 
 judge in Com. v. Alger, 7 Cush. 53, 
 89-94; Weston v. Sampson, 8 Cush 
 
§ 19.] 
 
 PROPERTY IN TIDE WATERS. 
 
 39 
 
 § 19. Same — Jus privatum. — "Various reasons are assigned 
 for the exercise of a jus privatum in the Crown. Under the fic- 
 tion of the feudal law, by which all lands in the kingdom were 
 derived from the king as lord paramount, and held by his bounty, 
 the shores and bed of tide waters, having no other acknowl- 
 edged owner, are said to remain vested in him in all cases 
 where he has not expressly granted them away. 1 One writer 
 suggests that at the time of the Norman Conquest, William I., 
 having acquired by confiscation all the estate's in England, re- 
 tained in his own seisin those lands, including the shore, which 
 were not distributed among his followers. 2 The Crown's right 
 of private property in tide waters within the realm formed 
 part of the theory of its dominion upon the sea. s Lord Hale 4 
 considers the king's ownership of the shore to be one of the 
 evidences of his ownership of the sea, and Callis says 5 that 
 the litus maris, or shore, taketh its name wholly from the sea, 
 as partaking most of its nature, and that, in point of property 
 
 so in the nature of unappropriated 
 soil. Lord Hale gives, as his reason 
 for thinking that lands only covered 
 by the high spring tides do not belong 
 to the Crown, that such lands are for 
 the most part dry and manoriable; 
 and taking this passage as the only 
 authority at all capable of guiding 
 us, the reasonable conclusion is that 
 the Crown's right is limited to land 
 which is, for the most part, not dry 
 or manoriable." 
 
 2 Jerwood on the Seashore, 20-29. 
 " Sir, we tell you that, at the time of 
 the Conquest, the manors with the 
 franchises appurtenant, were given 
 to those who could lay hold of them." 
 Per curiam, A. D. 1293. Year Books, 
 20 & 21 Edw. I. (Horwood's ed.), p. 112. 
 
 3 Ante, §§3,7. 
 
 4 De Jure Maris, ch. 4. 
 
 5 Callis on Sewers, 54. If the kings 
 of England possessed the sea, " it fol- 
 lows that they possessed the shore as 
 well as the sea, for if they have 
 owned the sea, they have it at high 
 water as well as low." Jerwood on 
 the Seashore, 19, 20. 
 
 347, 352; Com. v. Roxbury, 9 Gray, 
 451, 483. 
 
 i In Com. v. Alger, 7 Cush. 53, 90, 
 Shaw, C. J., said: "By the general 
 rule of the common law, all real prop- 
 erty capable of use and possession, 
 and having no other acknowledged 
 owner, is, in theory, vested in the 
 king, as the head and sovereign rep- 
 resentative of the nation. The sea- 
 shore," etc., "are deemed vested in 
 and held by the king." In a recent 
 case in Rhode Island, Potter, J., said: 
 "It was the policy of the English 
 law, and especially of the feudal sys- 
 tem, to consider the king as the orig- 
 inal owner of all the lands in the 
 kingdom. Hence he was the owner 
 of all vacant lands, derelict, etc. All 
 was held of him and escheated to 
 him. So he is spoken of as the owner 
 of the shore." Providence Steam- 
 Engine Co. v. Providence S. Co., 12 
 R. I. 348, 358. In Att. Gen. v. Cham- 
 bers, 4 De Gex, M. & G. 206, Ld. 
 Ch. Cran worth said: "The principle 
 which gives the shore to the Crown 
 is that it is land not capable of ordi- 
 nary cultivation or occupation, and 
 
40 
 
 THE LAW OF WATERS. 
 
 [Oh. L 
 
 and ownership, it is the king's as lord of the seas. Black- 
 stone assigns to the king, as lord of the sea, the lands which 
 it leaves when it suddenly recedes. 1 So it is said that navi- 
 gable rivers, so far as the tide ebbs and flows in them, belong 
 to the king, 2 because they partake of the nature of the sea, 
 which is his proper inheritance, and that he hath the same 
 property in them as in alto mare. 3 The doctrine of the Crown's 
 title as universal occupant appears to be at variance with a re- 
 cent decision in the House of Lords. In that case 4 the plaint- 
 iff proved, in support of his claim of title to a non-tidal lake, 
 an ancient royal grant, but did not prove the title of the Crown ; 
 and although there was no suggestion that the title could be 
 legally vested in any other than the Crown, it was held that 
 it was necessary to prove the grantor's title, as in the case of 
 a private grant, and that there was no presumption in favor of 
 the Crown's title to vacant land like the bed of a lake. Such 
 presumption exists with respect to the shore and the soil under 
 tide waters ; 5 . and if the Crown's private rights in the bed of 
 
 12 Black. Com. 261. 
 
 2 Hale, De Jure Maris, oh. 4. " The 
 king hath not only dominion at sea, 
 but he is ' dominus maris Anglicani; ' 
 he is both owner of the sea and of the 
 soil under the sea. And so it was 
 resolved lately, by my Lord Chief 
 Baron, and the rest of the barons of 
 the Exchequer, in the case of Sutton 
 Marsh (Mich. 13 Car.), that the soil of 
 the land, so far as the sea floweth, is 
 the king's, and the king is seized 
 thereof, jure coronce." 3 Howell's 
 State Trials, 1023. See, also, the pas- 
 sage from Shepperd's Grand Abr., 
 ante, § 17, note. 
 
 3 Royal Fishery of the Banne, Sir 
 John Da vies, 149; Com. Dig. tit. Pre- 
 rogative, D. and Navigation, B. ; 2 
 Roll. Abr. 170; Vin. Abr. 574, B. a. 
 " If a river, so far as there is a flux 
 of the sea, leaves its channel, it be- 
 longs to the king; for the English 
 sea and channels belong to the king, 
 and he hath the property in the soil, 
 having never distributed them out 
 among his subjects." Bacon's 
 
 Abridg. tit. Court of Admiralty, A. 
 and Prerogative, B. 3. 
 
 *Bristow v. Cormican, 3 A. C. 641; 
 post, § 80. The plaintiffs in this case 
 had never been in actual possession, 
 but, in support of their claim to a 
 several fishery over the whole of the 
 lake, introduced documentary evi- 
 dence of title, commencing with a 
 royal grant from Charles II. in 1660, 
 and continuing by leases and other 
 documents. The defendants set up 
 a claim of right in favor of and also 
 user by the public. No evidence was 
 given of the Crown's title. The judge 
 at the trial withdrew the case from 
 the jury and directed a verdict for 
 the plaintiffs. The House of Lords 
 held this to be erroneous, the ques- 
 tion being one of fact and not of law. 
 See Doe v. Redfern, 12 East, 96; 2 
 Black. Com. 258, 261 ; Crane v. Reeder, 
 21 Mich. 24. 
 
 5 The right to the soil between high 
 and low-water mark is prima facie 
 in the Crown, and although it may 
 be in a subject according to the- 
 
§ 20.] FKOPEKTY IN TIDE WATERS. 41 
 
 navigable waters within the realm were originally part of the 
 obsolete theory 'of dominion over the narrow seas, it is, per- 
 haps, probable that they now depend upon prescription. 1 
 
 § 20. Same — Public rights — Navigation — Fishery. — 
 
 " All prerogatives," says Bacon, 2 " must be for the advantage 
 and good of the people ; otherwise they ought not to be al- 
 lowed by law." " Many of the king's rights," says Bayley, 
 J., 3 " are, to a certain extent, for the benefit of his subjects, 
 and that is the case as to the sea, in which all his subjects 
 have the fight of navigation and of fishing." So far as the 
 use of tide waters is necessary for these purposes, the public 
 are invested with rights which are as clearly established as 
 those of the Crown, and its private right is burdened with a 
 trust or charge in favor of the public. The king has the prop- 
 erty, but the people have likewise the use necessary. 4 This 
 has been compared to the waste of a manor, 5 wherein the title 
 is in the lord, but the common right of user is possessed by all 
 the tenants, and to the king's highway, in which, though the 
 title may be in the owners of the adjoining lands, yet the 
 king, as guardian and protector of the public interests, has 
 
 terms of the grant, yet the burden is pretend that any prerogative of the 
 
 upon those who set up an adverse king of England is founded either on 
 
 title. Att. Gen. v. Richards, 2 Anst. military force or on the express con- 
 
 606; Scratton v. Brown, 4B. &C. 485; sent of the people. Every preroga- 
 
 Somerset v. Fogwell, 5 id.; Dickens tive of the Crown must, therefore, 
 
 v. Shaw, reported in Hall on the Sea- be derived from statute or from pre- 
 
 shore, Appendix, p. 283; Blundell v. scription: and, in either case, there 
 
 Catterall, 5 B. & Aid. 268; Att. Gen. must be a legal and established mode 
 
 v. Parmenter, 10 Price, 378; s. c. worn, of exercising it." Allen on the Pre- 
 
 Parmenter v. Gibbs, id. 412; Att. rogative (1st ed.), 166. 
 
 Gen. v. Burridge, id. 350; Lopez v. 2 Bac. Abr. tit. Prerogative, p. 1; 
 
 Andrew, 3 Man. & Ryl. 329; Levett Bracton, 1, 2, ch. 5, § 7; Id. 1. 3, t. 1, 
 
 v. "Wilson, 3 Bing. 115; post, § 27. ch. 9; Hale, De Jure Maris, ch. 2, pi. 3; 
 
 1 See Chitty on the Prerogative, Hargrave's Law Tracts, 11, 19, 20 ; 
 
 142, 206; Sheppard's Grand Abr. pt. Finch, L. 84, 85; Craig, Jus Feudale, 
 
 3, p. 46; 1 Molloy, De Jure Maritimo 1. 1; Schultes, Aquatic Rights, 1-5 \ 
 
 (9th ed.), 125, 126. Every preroga- Rorke v. Dayrell, 4 T. R. 402, 410. 
 
 tive contains in itself a prescription. 3 Blundell v. Catterall, 5 B. & Aid. 
 
 Plow. 322. " Every government that 268. 
 
 is not established by military force, * Callis on Sewers, 55, 74. As to 
 
 or founded on the express consent of treaties, see Walker v. Baird, [1892] 
 
 the people, must derive its authority A. C. 491 ; 67 L. T. 513. 
 
 from positive law or from long-con- 6 Hale, De Jure Maris, ch. 4, pi 1. 
 tinued usage. . . . No one will 
 
42 
 
 THE LAW OF WATEKS. 
 
 [Ch. I. 
 
 the power to prevent obstructions, and the people have the 
 common right of passing and repassing. 1 Certain incidental 
 privileges necessary to the exercise of the public rights of nav- 
 igation and fishery are allowed by law, which involve the use 
 of the soil beneath the water as well as the water itself. The 
 right of anchorage is a necessary part of the right of naviga- 
 tion, because it is essential for the full enjoyment of that 
 right, 2 and if reasonably and properly exercised, 3 it is protected 
 like the principal right, though it involves a temporary dis- 
 turbance of the soil, or an unavoidable injury to an oyster bed 
 there planted. 4 If a river is navigable, it is so whether the 
 tide is in or out, and a vessel which cannot reach its destina- 
 tion in a single tide may remain aground till the tide serves. 5 
 So the right to take shell-fish below high-water mark, as well 
 those which are imbedded in the soil as those which lie upon 
 its surface, is a part of the public right of fishery, and, in the 
 exercise of this right, the public may dig or rake the soil. 6 
 
 * Hale, De Jure Maris, ch. 2, pi. 3, 
 and ch. 6; Hargrave's Law Tracts, 
 p. 36; Blundell v. Catterall, 5 B. & 
 Aid. 268. 
 
 2 Gann v. "Whitstable Free Fishers, 
 11 H. L. Cas. 192; 20 C. B. n. s. 1; 
 Colchester v. Brooke, 7 Q. B. 339; 
 Stephen v. Costor, 2 Burr. 1408. 
 
 3 The right of passage is locally un- 
 limited, and extends to every part 
 of a navigable river as well as of the 
 sea; Rex v. Ward, 4 Atk. 384; post, 
 § 55; but the right to anchor is con- 
 fined to such places as are usual and 
 reasonable; having regard to the con- 
 dition of the particular place. Will- 
 iams v. Wilcox, 8 Ad. & El. 314; Rose 
 v. Miles, 4 M. & S. 101; Colchester v. 
 Brooke, 7 Q. B. 339; iwst, § 96. 
 
 * Ibid. 
 
 * Colchester v. Brooke, 7 Q. B. 339; 
 Hall on the Seashore (2d ed.), 43, note. 
 A vessel thus grounded is not a nui- 
 sance, and another vessel will not be 
 justified in running into it negli- 
 gently or maliciously. Id.; Cum- 
 mins v. Spruance, 4 Harr. (Del.) 315. 
 
 SBagott v. Orr, 2 Bos. & Pul. 472; 
 Blundell v. Catterall, 5 B. & Aid. 268, 
 
 299; Hall v. Whillis, 14 Sc. Ct. of Ses. 
 (2d series), 324; Martin v. Waddell, 
 16 Peters, 410; Den v. Jersey City, 15 
 How. 132; McCready v. Virginia, 94 
 U. S. 391 ; Fleet v. Hegeman, 14 Wend. 
 42; Paul v. Hazelton, 37 N. J. L. 106; 
 State v. Taylor, 27 id. 117; Gulf Pond 
 Oyster Co. v. Baldwin, 43 Conn. 255: 
 Peck v. Lockwood, 5 Day, 28; Parker 
 v. Cutler Mill-dam Co., 20 Maine, 353: 
 Moulton v. Libbey, 37 Maine. 472 ; Por- 
 ter v. Shehan, 7 Gray, 435. " The right 
 of fishing in the sea or rivers of any 
 town in this commonwealth, either 
 for swimming-fish or for shell-fish, is 
 a public right which belongs to all 
 the inhabitants of the town, unless 
 restricted by acts of the legislature 
 or of the town, inconsistent there- 
 with, or by prescription; and a grant 
 by the legislature to a town of the 
 title in the bed of a river, or in flats 
 covered by tidewater, within its lim- 
 its, does not convey by implication 
 the right of fishing to the town as its 
 own property; for the right of fish- 
 ing, not being an incident to the right 
 of property in the soil, but a public 
 right to take the fish, which, whether 
 
21.] 
 
 PROPERTY IN TIDE WATERS. 
 
 43 
 
 § 21. Same — Perprestures — Nuisances. — The Crown 
 may grant to a subject the soil of tide waters, and in ancient 
 times it could pass exclusive rights of fishery in such waters. 1 
 According to Lord Hale, the shore between the high and low- 
 water mark, " may be, and commonly is," parcel of the manor 
 adjacent, 2 and a subject may possess the creeks or smaller arms 
 of the sea, but not those portions of the sea which would re- 
 quire a naval armament for their defense against foreign pow- 
 ers. 3 It is incompetent for the Crown in modern times to 
 
 Colchester v. Brooke, 7 Q. B. 339; 
 Maloomson v. O'Dea, 10 H. L. Cas. 
 593; Allen v. Donnelly, 5 Ir. C. L. 
 292; O'Neill v. Allen, 9 id. 133: Gann 
 v. Whitstable Free Fishers, 11 H. L. 
 Cas. 192; Lord Advocate v. Hamilton, 
 1 Macq. H. L. 47; Seebkristo v. East 
 India Co., 10 Moo. P. C. 140; "Wen- 
 man v. Mackenzie, 5 El. & Bk. 447; 
 25 L. J. Q. B. 44; Barker v. Faulkner, 
 79 L. T. 24: Baylor v. Tillebach (Tex, 
 Civ. App.), 49 S. W. R. 720; Meisner v. 
 Fanning, 2 Thorn. (Nova Sootia), 97. 
 
 2 Hale, De Jure Maris, ch. 4, II, 3; 
 Kilmorey v. Att. Gen., 29 L. R. Ir. 320. 
 
 3 Ibid. ch. 6; ante, § 3, note. Mr. 
 Hall (on the Seashore, 2d ed. 106) con- 
 siders that the statute, 1 Anne, ch. 7, 
 § 5, by which royal grants of the de- 
 mesnes and landed possessions of the 
 Crown are prohibited, restrains the 
 alienation of the seashore. See 1 
 Black. Com. 286; Doe v. York, 14 Q. 
 B. 81. In England, the regulation 
 and control of the seashores, etc., are 
 now entrusted to commissioners 
 under acts of Parliament. See, e. g., 
 Conservators of the Thames v. Lon- 
 don S. Authority, (1894) 1 Q. B. 647. 
 By 29 and 30 Vict. ch. 62, § 7, the 
 management of the Crown's interests 
 in the shores and bed of the sea and 
 the tidal rivers of the United King- 
 dom was transferred from the Com- 
 missioners of "Woods and Forests to 
 the Board of Trade, and the duties 
 of the Board are, inter alia, to pro- 
 tect the Crown's rights, to ascertain 
 in what parts of the coast the Crown 
 
 moving in the water or imbedded in 
 the mud covered by it, depend upon 
 the water for their nourishment and 
 existence, is unaffected by the ques- 
 tion whether the title in the land 
 under the water is in the Common- 
 wealth, in the town, or in private per- 
 sons." Gray, J„ in Proctor v. Wells, 
 103 Mass. 216, citing Coolidge v. "Will- 
 dams, 4 Mass. 140; Randolph v. Brain- 
 tree, id. 315; Dill v. Wareham, 7 Met. 
 438; Weston v. Sampson, 8 Cush. 347; 
 Lakeman v. Burnham, 7 Gray, 437; 
 Com. v. Bailey, 13 Allen, 541. An in- 
 dividual has no private right to dig 
 quahaugs. Com. v. Manimon, 136 
 Mass. 456. 
 
 1 Infra, § 189. Weirs in navigable 
 rivers are legal in England, if erected 
 before the reign of Edward I. Will- 
 iams v. "Wilcox, 8 Ad. & El. 314; Rex 
 v. "Westham, 10 Mod. 159; Rex v. Bris- 
 tol Dock Co., 6 B. & C. 181 ; Lord Fitz- 
 walter's Case, 1 Mod. 105; Carter v. 
 Murcot, 4 Burr. 2162; Anon. 6 Mod. 
 73; Rex v. Clark, 12 Mod. 615; Case 
 of Chester Mill, 10 Rep. 137; Robson 
 v. Robinson, 3 Dougl. 307; "Warrens. 
 Matthews, 1 Salk. 357: Somerset v. 
 Fogwell, 5 B. & C. 875, 884; Blundell 
 *\ Catterall, 5 B. & Aid. 268; Weldu 
 Hornby, 7 East, 195; 2 Black. Com. 
 39; 16 Vin. Abr. tit. Piscary, B. 1; 
 Hale, De Jure Maris, ch. 5; Har- 
 grave's Law Tracts, 85; Phear, 50; 
 Ogston v. Stewart, [1896] A. C. 120; 
 Browne v. Kennedy, 5 Har. & J. 203; 
 Weston v. Sampson, 8 Cush. 347, 352; 
 Bulbrook v. Goodere, 3 Burr. 1768; 
 
44 
 
 THE LAW OF WATERS. 
 
 [Ch. L 
 
 abridge or destroy, by its own act, the public rights either of 
 navigation or fishery, and it cannot confer upon its grantee a 
 greater power in this respect than that with which it is itself 
 invested. 1 This subject was reviewed in certain cases in the Ex- 
 chequer relating to Portsmouth Harbor. 2 There is a broad dis- 
 
 has parted with its rights, in what 
 parts the rights of the Crown are 
 undoubted, and in what parts the 
 title is doubtful; to prevent en- 
 croachments on the foreshore, to 
 protect navigation and other public 
 interests, and to sell, lease or license 
 the use of and otherwise deal with 
 the soil, when expedient so to do, 
 under the powers contained in earlier 
 statutes. See also 37 & 38 Vict. ch. 
 40 ; Hall on the Seashore (2d ed.), 4, n. ; 
 Vyner v. Mersey Docks, 14 C. B. N. s. 
 753; Moore on the Foreshore, 592, 670. 
 
 ilbid. ; Fitzpatrick v. Robinson, 1 
 Hud. & Br. (Ir.), 585; Devonshire v. 
 Hodnett, id. 322; Williams v. Wil- 
 cox, 8 Ad. & El. 314; Lord Advocate 
 v. Sinclair, L. R. 1 H. L. 174; In re 
 Hull & Selby Ry. Co., 5 M. & W. 327; 
 Hale, De Jure Maris, ch. 5, 6; 2 Roll. 
 Abr. 107, 170; Sir Henry Constable's 
 Case, 5 Rep. 107; Dickens v. Shaw, in 
 Hall on the Seashore (2d ed.), App. ; 
 Chad v. Tilsed, 2 Brod. & B. 403; 5 
 Moore, 185; Scratton v. Brown, 4 B. 
 & C. 485; King v. Montague, 4 B. & 
 C. 598; Beaufort v. Swansea, 3 Exch. 
 412; King v. Ward, 4 Ad. & El. 384; 
 Warren v. Matthews, 6 Mod. 73; Gros- 
 venor's Case, 2 Starkie, 511; Gann v. 
 Whitstable Free Fishers, 11 H. L. 
 Cas. 192, 217; 11 C. B. n. s. 301; Hast 
 ings v. Ival, L. R. 19 Eq. 558; Col- 
 chester v. Brooke, 7 Q. B. 373; Bowie 
 v. Ailsa, 13 A. C. 71; Nichols v. Bos- 
 ton, 98 Mass. 41; Rogers v. Jones, 1 
 Wend. 237; Brookhaven v. Strong, 
 60 N. Y. 56; Furman v. New York, 5 
 Sandf. 16; Browne v. Kennedy, 5 H. 
 & J. 195; Baltimore v. McKim, 3 
 Bland Ch. 453; Casey v. Ingloes, 1 
 Gill, 430. 
 
 2 In Att. Gen. v. Burridge, 10 Price, 
 
 350, it was held that while the Crown 
 may grant a town or borough, which 
 is caput partus, and all the land be- 
 tween high and low-water mark, yet 
 the subject-matter of the grant re- 
 mains subject to the right of the 
 king and his people to pass and re- 
 pass. Att. Gen. v. Parmenter, 10 
 Price, 378, 412, decides that where a 
 part of the shore is granted to a sub- 
 ject for uses, or to be enjoyed so as 
 to be detrimental to the jus publicum 
 therein, such grant is void as to such 
 parts as are open to that objection, 
 if acted upon so as to work an injury 
 to the public right, or it is a grant 
 which does not divest the Crown or 
 invest the grantee. In the earlier 
 case of Att. Gen. v. Richards, 2 Anst. 
 603, it appeared by the information 
 that the defendants had built certain 
 permanent structures in the harbor 
 between high and low-water mark, 
 which prevented vessels from pass- 
 ing over the spot or mooring there, 
 and also endangered the navigation 
 of the harbor by preventing the cur- 
 rent of water from carrying off the 
 mud. The defendants claimed under 
 letters-patent from the Crown, which 
 did not convey the soil at the place 
 in question. There was held to be an 
 invasion of both the jus publicum 
 and the jus privatum, and the de- 
 fendants were restrained from mak- 
 ing further erections, and ordered to 
 abate those already built. In Eng- 
 land the prerogative of the Crown to 
 intervene in actions affecting the 
 rights or revenues of the sovereign, 
 was not affected by the Judicature 
 Acts; and in such matters the Ex- 
 chequer Division of the High Court 
 of Justice has all the powers for- 
 
§21.] 
 
 PROPERTY IN TIDE WATERS. 
 
 45 
 
 tinction between a violation of the public right and an invasion 
 of the proprietary interest of the Crown. The one creates a 
 public nuisance; the other a purpresture. Any encroachment 
 upon the king, either upon part of the demesne lands, or in pub- 
 lic rivers, harbors, or highways, is called a purpresture. 1 If. a 
 littoral proprietor, without grant or license from the Crown, 
 extends a wharf or building into the water in front of his land 
 it is a purpresture, 2 though the public rights of navigation and 
 fishery may not be impaired. 3 If such a structure causes in- 
 jury to the public right, it is a common nuisance and abatable 
 as such, even though erected under license from the king, for 
 he cannot license a common nuisance. 4 It is not every build- 
 ing below the high-water mark, nor every building below the 
 low- water mark, that is ipso facto a nuisance, but nuisance or 
 not nuisance is a question of fact. 5 The remedy for a pur- 
 presture is either by an information of intrusion at common 
 law, 6 or by information in equity at suit of the attorney gen- 
 States, 10 Peters, 623; Hart v. Mayor, 
 9 Wend. 571; Com. v. Wright, 3 Am. 
 Jur. 185; Watertown v. Cowen, 4 
 Paige, 510; Att. Gen. v. Cohoes Co., 6 
 Paige, 133; Mohawk Co. v. Railroad 
 Co., id. 554; Davis v. Mayor, 14 N. Y. 
 536; People v. Vanderbilt, 28 N. Y. 
 376. 
 
 4 Hale, De Portibus Maris, ch. 7; 
 Hargrave's Law Tracts, 85; Gann v. 
 Whitstable Free Fishers, 11 E L. 
 Cas. 192; Williams v. Wilcox, 8 Ad. 
 & El. 314; Colchester v. Brooke, 7 
 Q. B. 339; Eex v. Tindall, 1 N. & P. 
 723. 
 
 5 Hale, De Portibus Maris, oh. 7; 
 post, § 92; Hargrave's Law Tracts, 
 85; Att. Gen. v. Richards, 2 Anst. 
 603, 615; Att. Gen. v. Burridge, 10 
 Price, 350; Reg. v. Betts, 16 Q. B. 
 1022; Reg. v. Randall, 2 Car. & M. 
 496; Att. Gen. v. Terry, L. R. 9 Ch. 
 423; Att. Gen. v. Evart Booming Co., 
 34 Mich. 462; People v. St. Louis, 5 
 Gilman, 351 ; Diedrich v. North West- 
 ern Ry. Co., 42 Wis. 248; Folsom v. 
 Freeborn, 13 R. I. 200, 208. 
 
 6 A;tt. Gen. v. Perry, 15 C. P. (Can.) 
 329. 
 
 merly possessed by the Court of Ex- 
 chequer. Att. Gen. v. Barker, L. R. 
 7 Ex. 177; Att Gen. v. Constable, 4 
 Ex. D. 172. 
 
 '2 Inst. 38, 272; Co. Litt 277 o; 
 Spellman's Glossary, tit. Pourpres- 
 ture; 2 Story Eq. Jur. § 921 ; 4 Black. 
 Com. 167: Termes de la Ley, tit. Pur- 
 presture; Att. Gen. v. Shrewsbury 
 Bridge Co., 21 Ch. D. 752. "Purpres- 
 ture in a forest is every encroach- 
 ment upon the king's forest, be it by 
 building, inclosing, or using of any 
 liberty without a lawful warrant so 
 to do." Ibid.; Glanville (Beames' ed.), 
 238. A bathing-house, erected on piles 
 driven into the bed of a navigable 
 river below low-water mark, such bed 
 belonging to the government, is, as 
 between individuals, personal prop- 
 erty. Marcy v. Darling, 8 Pick. 283. 
 
 2 Hale, De Portibus Maris, ch. 7; 
 Hargrave's Law Tracts, 84; Callis on 
 Sewers, 174, 175; Woolrych on Wa- 
 ters, 193; 2 Story Eq. Jur. §§ 921-925; 
 Eden on Injunctions, 259; Beames's 
 Glanville, 239, note; 3 Kent Com. 
 432. 
 
 3 Ibid.; New Orleans v. United 
 
46 THE LAW OF WATEES. [Ch. I. 
 
 eral. 1 The effect of a judgment at law is the abatement of 
 the erection complained of, whether it be a nuisance or not. 2 - 
 When the structure is both a purpresture and a nuisance, the 
 injury to the rights of the king and of his subject may be 
 redressed in the same proceeding. A common nuisance is 
 abatable at suit of the Crown by virtue of its power of super- 
 intendence and control over public rights, and the attorney 
 general, on the part of the Crown, may proceed by informa- 
 tion in equity for the protection of either the jus privatum of 
 the king from the purpresture, or the jus publicum of his sub- 
 jects from the nuisance. 3 The terms purpresture and nuisance 
 are sometimes used interchangeably. But, in strictness, that 
 which is simply a purpresture is not subject to indictment, 
 although abatable by the Crown. 4 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, 6 and to a private action in favor of individuals 
 who sustain an injury distinct from that suffered by other 
 members of the public. 6 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 prop- 
 
 i Eden on Injunctions, 223; 2 Story stable, 4 Ex. D. 172; Att. Gen. v. 
 
 Eq. Jur. § 922; 2 Dan. Ch. Prac. (4th Devonshire, 14 Q. B. D. 195; Bristol v. 
 
 ed.) 1481 ; State v. Arledge, 1 Bailey Morgan, and Newcastle v. Johnson, 
 
 (S. C), 551; Re Lowestoft, 24 Ch. D. cited in Hale, De Portibus Maris, ch. 
 
 253. See Att. Gen. v. Newcastle- 6; Hargrave's Law Tracts, 81; 2 Story 
 
 upon-Tyne Corp., [1899] 2 Q. B. 478. Eq. Jur. §§ 921-925; Cooper, Eq. PI. 
 
 2Ibid.: Mitford, Eq. PI. 145; Att. 102; People v. Vanderbilt, 26 N. Y. 
 
 Gen. v. Richards, 2 Anst. 606. 287; 28 N. Y. 396; 38 Barb. 282; Davis 
 
 3 Att. Gen. v. Parmenter, 10 Price, v. Mayor, 14 N. Y. 526; Mohawk 
 
 378, 412; Att. Gen. v. Burridge, id. Bridge Co. v. Utica R. Co., 6 Paige, 
 
 350; Att. Gen. v. Chamberlaine, 4 K. 559; Hart v. Albany, 3 Paige, 559 
 
 & J. 292; Att. Gen. v. St. Aubyn, Att. Gen. v. Cohoes Co., 6 id. 133 
 
 Wightw. 167; Att. Gen. v. Richards, People v. St. Louis, 5 Gilman, 351 
 
 2 Anst. 603; Att. Gen. v. Johnson, 2 Revell v. People, 177 111. 468; Hunt 
 
 Wils. Ch. 87; Att. Gen. v. Philpot, v. Chicago Ry. Co., 20 I1L App. 282 
 
 cited 2 Anst. 607; Bristol Harbor Att. Gen. v. Jamaica Pond Aqueduct 
 
 Case, cited 18 Ves. 214; Att. Gen. v. Co., 133 Mass. 361. 
 
 Tomline, 12 Ch. D. 214; Att. Gen. v. «Ibid.; 4 Black. Com. 271, note. 
 
 Cleaver, 18 Ves. 218; Att. Gen. v. 5R 6 x v. Grosvenor, 2 Stark. 511 
 
 Forbes, 2 Myl. & Craig, 129; Att. Gen. Att. Gen. v. Richards, 2 Anst. 603 
 
 v. Williamson, 60 L. T. n. s. 930; Att. Newcastle v. Clark, 2 Moore, 666 
 
 Gen. v. Emerson, 10 Q. B. D. 191; Rex v. Clark, 12 Mod. 615; Rose v. 
 
 Att. Gen. v. Newcastle-upon-Tyne, Miles, 4 M. & S. 101. 
 
 [1897] 2 Q. B. 384; Att. Gen. v. Con- «Posi, § 122. 
 
22.] 
 
 PE0PEETY IN TIDE WATEES. 
 
 47 
 
 erty 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 purpres- 
 ture. 1 Although a royal grant or license would not protect 
 from indictment or injunction, 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 navigation, 2 and, it would seem, may also sanction 
 such as are not in aid of the public right. 3 
 
 § 22. Same — Prescription. — The general principle is that 
 no time runs against the king; 4 yet by custom or prescription 
 a subject may acquire certain of the maritime interests of the 
 
 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; 
 Soudder v. Trenton Falls Co., Sax. 
 (N. J.) 696; Gough v. Bell, 22 N. J. L. 
 441, 457. 
 
 3 Ibid. In this country, the powers 
 of Congress and of the State legis- 
 latures are restrained by written con- 
 stitutions, but acts of Parliament are 
 valid, though they conflict with the 
 unwritten constitution. 4 Co. Inst. 36; 
 1 Black. Com. 90, 160, 161, 244; Hale, 
 Of Parliaments, 49; Locke on Gov- 
 ernment, p. 2, §§ 149, 227; Broom's 
 Const. Law, 795 ; De Tocqueville, De- 
 mocracy in America, ch. 6; Hodgdon 
 v. Little, 14 C. B. N. S. Ill; 16 id. 
 198; Eolle v. White, L. R. 3 Q. B. 286, 
 306; Eduljee Byramjee, Ex parte, 5 
 Moo. P. C. 294; 3 Moo. Ind. App. 468; 
 Eaton v. B. C. & M. R. Co., 51 N. H. 
 504, 516; Thompson v. Androscoggin 
 Co., 54 N. H. 545, 556; Langdon v. 
 New York, 93 N. Y. 129, 155. 
 
 4 3 Black. Com. 257; Broom's Legal 
 Maxims, 165; Perry v. Eames, etc., 
 [1891] 1 Ch. 658. No lapse of time will 
 legalize a public nuisance, and the 
 right to maintain encroachments. 
 
 JCom. Dig. tit. Ad quod damnum; 
 Rex v. Montague, 4 B. & C. 598; Rex 
 v. Russell, 6 B. & C. 566; Com. v. 
 Alger, 7 Cush. 53, 82; Nichols v. Bos- 
 ton, 98 Mass. 39, 41; Bell v. Gough, 
 23 N. J. L. 624, 661; Hendricks v. 
 Johnson, 6 Porter, 572. The proceed- 
 ing by inquisition under the writ of 
 ad quod damnum, which was the 
 common-law mode of taking private 
 property for public use, is now quite 
 generally superseded by the provis- 
 ions in acts authorizing canals, dams, 
 railroads, etc., for the condemnation 
 of private property. If the act of in- 
 corporation is silent as to the mode of 
 proceeding, or the nature of things 
 requires it, the principles, applicable 
 to proceedings under the writ of ad 
 quod damnum, still govern. Comp- 
 ton v. Susquehanna Railroad, 3 Bland, 
 386. 
 
 2 Lowe v. Govett, 3 B. & Ad. 863 
 Rex v. Montague, 4 B. & C. 598 
 Vooght v. Winch, 2 B. & Aid. 662 
 Att. Gen. v. Burridge, 10 Price, 350 
 Att. Gen. v. Parmenter, 10 Price, 378, 
 412; Williams v. Wilcox, 8 Ad. & 
 EL 314; Arundel v. McCulloch, 10 
 Mass. 70; Com. v. Charlestown, 1 
 Pick. 180, 185; Weston v. Sampson, 
 8 Cush. 347, 352; Com. v. Alger, 7 
 
48 THE LAW OF WATERS. [Cs. I. 
 
 Crown, including the right of several fishery in the creeks and 
 arms of the sea, the property in the shore and in the land left 
 by the recession of the sea, and in wreck, 1 and proof of owner- 
 ship of a several fishery raises a presumption against the Crown 
 that the freehold of that part of the foreshore is in the owner 
 of the fishery. 2 Lord Hale says that the evidence to prove that 
 the shore is parcel of a manor are commonly these : " Constant 
 and usual fetching gravei 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; enjoyment of wrecks happening upon the 
 sand ; presentment and punishment of purprestures there in 
 the court of a manor ; and such like. And as it may be parcel 
 of a manor, so it may be parcel of a vill or parish ; and the evi- 
 dence for that will be usual perambulations, common reputa- 
 tion, known metes and divisions, and the like." 3 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; 4 but there is authority for the claim 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. 5 Mr. Hall 6 dis- 
 
 which limit the public right cannot 2 Brod. & Bing. 403; Calmady v. 
 
 be gained by prescription. Post, §121; Eowe, 6 C. B. 861, 891; ante, § 6. 
 Peckman v. Henderson, 27 Barb. 207. 5 See Le Strange v. Rowe. 4 F. & F. 
 
 iHale, De Jure Maris, chs. 5, 6; 1048; Healy v. Thome, Ir. R4C.L 
 
 Hargrave's Law Tracts, 18, 25, 27, 29, 495; Neill v. Devonshire, 8 A. C. 153, 
 
 31, 32; Kingston v. Horner, 1 Cowper, 170; 2 L. R. Ir. 169; Little v. Wing- 
 
 102; In re Belfast Dock, 1 Ir. Rep. field, 8 Ir. C. L. 279; Maxwell L. G. 
 
 Eq. 128; Be Alston's Estate, 5 W. R. Co. v. Dawson, 151 TJ. S. 586; Yardu 
 
 189; 28 L. T. x, s. 337; Re Walton Cum Ocean Beach Ass'n, 49 N. J. Eq. 306: 
 
 Trimley Manor, 28 id. 12; Folsom v. Chabert v. Russell, 109 Mich. 571; 
 
 Freeborn, 13 R. L 200, 206. Whitaker v. Erie Shooting Club, 102 
 
 2 Att. Gen. v. Emerson, [1891] A C. Mich. 454; Strange v. Spalding (Ky.), 
 649; Hindson v. Ashby, [1896] 2 Ch. 1. 29 S. W. R. 137; Lambert v. Stees, 47 
 
 3 Hale, De Jure Maris, ch. 7; Har- Minn. 141. 
 
 grave's Law Tracts, 27. See Att. 6 Hall on the Seashore (2d ed.), 
 
 Gen. v. Newcastle-upon-Tyne, [1897] 16-40, 217. See Lord Advocate v. 
 
 2 Q. B. 384. As to parishes, see Per- Young, 12 A. C. 544; Moore on the 
 
 rott v. Bryant, 2 Y. & Col. 61. Seashore, 432, 433; Brown on Lim. 
 
 4 Dickens v. Shaw, reported in Hall 566; Phear's Rights of "Water, 88. 
 on the Seashore (2d ed.), App. 45. The user should not be merely occa- 
 See Chad v. Tilsed, 5 Moore, 185, 197; sional and discontinuous, Hollins v. 
 
§ 23.] PEOPEETY IN TIDE WATEES. 49 
 
 cusses this doctrine of prescription at length; and concludes 
 that the shore, being land, 1 must be governed by the rules of 
 law which apply 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 possession 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 with- 
 out it, cannot be evidence to establish an absolute ownership 
 in the shore by prescription. In this country, no right in nat- 
 ural oyster beds can be gained by prescription against the 
 state ; 2 and in Massachusetts it has recently been held that the 
 continued taking, for more than twenty years, of seaweed and 
 stones from an open beach, did not disseize its owner. 3 
 
 §23. Same — Same. — Under a royal grant no alienation 
 will be presumed beyond what is clearly and indisputably ex- 
 pressed. 4 But where the subject possesses land adjoining the 
 sea, the title to which was acquired under an ancient grant 
 from the Crown, which does not by its terms clearly exclude 
 the shore, modern usage is admissible to interpret the grant, 
 and to establish a title to the soil between high and low-water 
 mark as part of the. adjoining lands. 5 Thus, modern acts of 
 
 Verney, 13 Q. B. D. 304 See Eeg. v. well, 5 B. & C. 375; Att Gen. v. Far- 
 
 MoCormick, 18 Q. B. (Can.) 131; Doe men, 2 Lev. 171; post, § 29. 
 
 d. West. v. Howard, 5 id. 462. 6 Chad,u Tilsed, 5 Moore, 185; 2 
 
 1 Scratton v. Brown, 4 B. & C. 485; Brod. & Bing. 403; Beaufort v. Swan- 
 Chad v. Tilsed, 2 Brod. & Bing. 403, sea, 3 Exch. 413; Levett v. Wilson, 3 
 409; 5 Moore, 185; Beaufort v. Swan- Bing. 115; Lopez v. Andrews, 3Man. 
 sea, 3 Exch. 413. & Eyl. 329; Weld v. Hornby, 7 East, 
 
 2 Clinton v. Bacon, 56 Conn, 508; 194, 199; Att. Gen. v. Jones, 2 H. & C. 
 White v. Petty, 57 Conn. 576. 347 ; Calmady v. Eowe, 6 C. B. 861 ; Att. 
 
 'Litchfield v. Ferguson, 141 Mass. Gen. v. Chamberlaine, 4K. & J. 292; 
 
 97. See Townsend v. Reeves, 44 N. J. Hastings v. Ivall, L B. 19 Eq. 558 ; Att. 
 
 L. 525; Andrew v. Nantasket Beach Gen. v. Chambers, 4 De Gex& J. 55; 4 
 
 R Co., 152 Mass. 506; New Shoreham De Gex, Macn. & G. 206; Waterpark 
 
 v. Ball, 14 R. I. 566; Eobertsw Baum- v. Fennell, 7EL. Cas. 650; Malcom- 
 
 garten, 110 N. Y. 380. son v. O'Dea, 10 H. L. Cas. 593; Eog- 
 
 4 Royal Fishery of the Banne, Sir ers v. Allen, 1 Camp. 309; Lee v. 
 
 John Da vies, 149; Somerset v. Fog- Brown, 2 Mod. 69; Bristow v. Cornii- 
 4 
 
50 
 
 THE LAW OF WATERS. 
 
 [Oh. L 
 
 ownership may be admitted to show that ancient grants of 
 King John and Edward I. included the sea-coast down to low- 
 water mark ; 1 to show whether the words " river L." in 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 dis- 
 tance up the river, 2 or to show that the seashore is parcel of 
 a manor. 3 In Chad v. Tilsed, 4 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 years prior to the suit, and, though the 
 bank had been broken by tempests, had since asserted, with- 
 out opposition, an exclusive right to the soil thus enclosed. It 
 was held that this exclusive occupation and usage constituted 
 evidence from which a previous usage might be presumed, and 
 that such usage, coupled with the general terms of the grant, 
 served to elucidate it and to establish the asserted right to the 
 shore. 5 In this country, also, ancient patents, or grants from 
 
 can, 3 App. Cas. 641; Ir. R. 10 C. L. 
 425; Lord Advocate v. Blantyre, 4 
 
 4 5 Moore, 185; 2 Brod. & Bing.403, 
 406. See also Att. Gen. v. Ports- 
 
 App. Cas. 770; Agnew v. Lord Advo- mouth (unreported), stated in Moore 
 
 cate, 11 Ct. of Ses. (3d Series), 309; 
 Newcastle Pilots v. Bradley, 3 El. & 
 B. 428, note; Jenkins v. Harvey, 1 C. 
 M. & R. 877; Brine v. Thompson, 4 
 Q. B. 543, 552; In re Belfast Dock 
 Act, Ir. R. 1 Eq. 128; Healy v. Thorne, 
 
 on the Foreshore, 555; Sutton Har- 
 bor Co. v. Plymouth Guardians, 63 
 L. T. 772. 
 
 8 Dallas, C. J., said: "I agree that 
 cases of this sort may rest on one or 
 both of the two following grounds: 
 
 Ir. R 4 C. L. 495; Donegall v. Temple- That is to say, on grant, or on usage 
 
 more, 9 Ir. C. L. R. 374; Brew v. 
 Haren, Ir. R. 11 C. L. 198; Ir. R. 9 
 C. L. 29; 1 Ir. Eq. 442; Boyle v. Mul- 
 holland, 10 Ir. C. L. R. 150; Mulhol- 
 land v, Killen, Ir. R. 9 Eq. 471 ; Bloom- 
 field v. Johnson, Ir. R. 8 C. L. 68, 91; 
 Clark v. Bonnycastle, 3 O. S. (Can.) 
 528. 
 
 1 Beaufort v. Swansea, 3 Exch. 413; 
 Att. Gen. v. Jones, 2 H. & C. 347; Le 
 Strange v. Rowe, 4 F. & P. 1048; 
 Hunt on Boundaries (2d ed.), 225. 
 
 2 Donegall v. Templemore, 9 Ir. 
 Com. Law, 374; In re Belfast Dock, 
 1 Ir. Eq. 128. 
 
 3 Calmady v. Rowe, 6 C. B. 861 ; Att. 
 Gen. v. Reeve, 1 Times L. R. 675; 
 Daly v. Murray, 17 L. R. Ir. 185. 
 
 which presupposes a grant: I agree f 
 also, that in the case of 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 mod- 
 ern usage, connected with the an- 
 cient usage, affords the strongest 
 exposition of the meaning of ttifr 
 
§24.] 
 
 PEOPEETY IN TIDE WATERS. 
 
 51 
 
 the government, in which the description of the land is vague, 
 may be interpreted by the acts of the government, of the par- 
 ties, and of those claiming under similar grants of the con- 
 tiguous lands. 1 So, also, ancient deeds and plans may be in- 
 troduced in evidence to show the position of a creek or arm of 
 the sea which has been filled up since they were made. 2 In 
 Cross v. Morristown, 3 Beasley, 0. J., distinguished between prop- 
 erty which vested in the Crown or State for itself, and property 
 vested in it as a parens patrice, intimating that a lost grant of 
 the former will be more readily presumed than of the latter. It 
 is also to be observed, conversely, that the government, when 
 no provision is made for suits against it, cannot itself acquire 
 a title by adverse possession. 4 
 
 §24. Same — Fishery — Shell-fish — Profit a prendre. — 
 
 In strictness, the jus publicum is limited to the rights of navi- 
 gation and fishery, and to the incidental rights above referred 
 
 original grant." In Hastings v. Ivall, 
 L. R. 19 Eq. 558, the town of Hast- 
 ings sought to restrain the defendant 
 by injunction from depositing earth 
 upon a portion of the shores within 
 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 appurtenances 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 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 corporation 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 evidence might not 
 be sufficient to displace the prima 
 facie, title of the Crown. See Pettin- 
 gell v. Boynton, 139 Mass. 244 
 
 l Schenck v. Wood, 13 Johns. 346; 
 Hewlett v. Cock, 7 Wend. 371; Owen 
 v. Bartholomew, 9 Pick. 520; Stone 
 v. Clark, 1 Met. 378; Boston v. Rich- 
 ardson, 105 Mass. 351, 371; Stouten- 
 burgh v. Murray, 7 Johns. 5; Harden- 
 berg v. Schoonmaker, 7 Johns. 12; 
 Wilkins v. Lamb, 7 Cowen, 431. 
 
 2 Drury v. Midland Railroad, 127 
 Mass. 571; Rust v. Boston Mill Corp., 
 6 Pick. 158; Sparhawk v. Bullard, 1 
 Met. 95; Barker v. Bod well, 3 Dane 
 Abr. 397; Com. v. Crowninshield, 3 
 Dane Abr. 397. 
 
 3 18 N. J. Eq. 305, 311. See Ocean 
 Beach Ass'n v. Yard, 48 N. J. Eq. 72; 
 49 id. 306; post, p. 72, note. 
 
 4 San Francisco S. Union v. Irwin, 
 28 Fed. Rep. 708. 
 
52 
 
 THE LAW OF WATEKS. 
 
 [Oh. I. 
 
 to. 1 In the case of Bagott v. Orr, 2 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 
 «ourt declined to express an opinion as to the subject's right 
 to take shells, saying that, as no authority was cited in sup- 
 port of it, they should pause before establishing a general 
 right of that kind. 3 In Porter v. Shehan, 4 in Massachusetts, 
 it was held, with respect to unenclosed flats, which were pri- 
 vate property, subject to the right of the public to take float- 
 ing and shell-fish therefrom, that the public 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 general right to take mussel-bed 
 manure from private flats, 5 or sand, gravel, or shingle from 
 
 lAnte, § 20. 
 
 2 Bos. & P. 472. 
 
 s Id. p. 479; Blundell v. Catterall, 
 5 B. & Aid. 268, 299. See Hall on the 
 Seashore (2d ed.), 187. 
 
 4 7 Gray, 435. See Allen v. Allen, 
 19 E. I. 114. 
 
 5 Moore v. Griffin, 22 Maine, 350, 
 355; Moulton v. Libbey, 37 id. 493; 
 Clement v. Burns, 43 N. H. 609. See 
 Le Strange v. Eowe, 4 F. & F. 1048; 
 •Cowper v. Baker, 17 Ves. 128; Brew 
 v. Haren, Ir. R. 11 C. L. 198; Calmady 
 v. Rowe, 6 C. B. 879; Jerwood on the 
 Seashore, 87. See Maloon v. "White, 
 57 N. H. 152. In the case of Dickens 
 v. Shaw (Hall on the Seashore, 2d ed., 
 App. 45, 60, 64, 65), the lords of the 
 manor of Brighton sued the defend- 
 ant for digging and taking away 
 sand from the seashore of Brighton, 
 and the plaintiffs, being put to proof 
 of their title to the locus in quo, 
 proved only, as a badge of owner- 
 ship, the right to wreck. Mr. Justice 
 Park instructed the jury, inter alia, 
 that by the law of England the king 
 had the right of soil between high 
 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 de- 
 fendant, with which the presiding 
 justice certified that he was not sat- 
 isfied. Upon the hearing to obtain a 
 new trial, Mr. Justice Bailey said 
 (p. 50), with reference to the fact 
 that many persons had commonly 
 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 reservation to 
 collect the stones for itself, or to col- 
 lect the sand for itself, but for the 
 general interest of the public; and 
 if you can, without interfering with 
 and prejudicing the interest of the 
 public, 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." A new trial was refused. It 
 is clear from the opinions, and 'from 
 the fact that the presiding judge was 
 not satisfied with the verdict, that, 
 in the opinion of the judges, there is 
 
§24.] 
 
 PEOPEETT IN TIDE WATEES. 
 
 53 
 
 the shore above high water, even when it is desired for ballast 
 in aid of navigation. 1 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. 2 No right to thus re- 
 move the soil of a landowner can be acquired 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 an- 
 cient or uniform such custom may have been; 3 nor can the' 
 public gain such a right by general custom or prescription, 4 
 
 no affirmative general right to take 
 sand or gravel from the shore, al- 
 though the Crown may suffer, or 
 even may be presumed to suffer it 
 to be done when the public rights 
 will not be impaired. See also Bro. 
 Abr. tit. Customs, 46; remarks of 
 Holroyd, J., in Blundell v. Catterall, 
 
 5 B. & Aid. 268; Conservators of the 
 Thames v. Smeed, [1897] 2 Q. B. 334. 
 
 iln Linn Eegis v. Taylor, 3 Lev. 
 160, it was held that a custom to take 
 gravel for ballast in ships is a good 
 custom. See Johnson v. Wyard, 2 
 Lutw. 1344. But this is not supported 
 by the later decisions cited in the fol- 
 lowing notes. The king cannot take 
 gravel in the inheritance of a sub- 
 ject. Case of Prerogative, 12 Co. 12. 
 
 2 Blewett v. Tregonning, 3 Ad. & 
 EL 554. 
 
 3 Lloyd v. Jones, 6 C. B. 81; Mur- 
 phy v. Ryan, Ir. R 2 C. L. 143; Bland 
 v. Lipscomb, 24 L. J. Q. B. 155, note; 
 Pitts v. Kingsbridge Board, i9 W. R 
 844; Constable v. Nicholson, 14 C. B. 
 N. s. 230; Maldon v. Woolvet, 12 Ad. 
 
 6 El. 13; Race v. Ward, 4 El. & BL 
 702; Rivers v. Adams, 3 Ex. D. 361; 
 Chilton v. London, 7 Ch. D. 735; 
 Goodman v. Saltash, 7 App. Cas. 633 
 (seeposf, § 331); De la Warr v. Miles, 
 17 Ch. D. 535; Att. Gen. v. Mathias,4 
 K & J. 579; Allgood v. Gibson, 34 L. 
 J. N. s. 883; Murgatroyd v. Robinson, 
 
 7 EL & Bk. 391; Padwick v. Knight, 
 7 Exch. 854; MacNamara v. Higgins, 
 Ir. R 4 C. L. 326; Dyce v. Hay, 1 
 Macq. H. L 305; Oxenden v. Palmer, 
 
 2 B. & Ad. 236; Gateward's Case, 6 
 Rep. 59 6; Grimstead v. Marlowe, 4 
 T. R 718; Willingale v. Maitland, L. 
 R. 3 Eq. 103; Linn Regis v. Taylor, 3 
 Lev. 160; Hall on the Seashore (2d 
 ed.), 196 et seq.; Lockwood v. Wood, 
 6 Q. B. 50; Weekly v. Wildman, 1 
 Ld. Raym. 405; Selby v. Robinson, 2 
 T. R. 758; Rogers v. Brenton, 10 Q. B. 
 26; Mellor v. Spateman, 1 Saund. 341 
 Wilson v. Willes, 7 East, 121; Clay 
 ton v. Corby, 5 Q. B. 415; 5 Vin. Abr. 
 29; Waters v. Lilley, 4 Pick. 145; Mel 
 vin v. Whiting, 7 Pick. 79.; 13 Pick. 
 184; Coolidge v. Learned, 8 Pick. 503; 
 Sale v. Pratt, 17 Pick. 191, 197; Green 
 v. Chelsea, 24 Pick. 71, 80; Porter 
 v. Sullivan, 7 Gray, 441; Boston v. 
 Richardson, 98 Mass. 351, 357; Morse 
 v. Marshall, 97 Mass. 519; Perley v. 
 Langley, 7EE 233; Knowles v. 
 Dow, 22 N. H. 387; Nudd v. Hobbs, 
 17 N. H. 524; Merwin v. Wheeler, 41 
 Conn. 14; Hill v. Lord, 48 Maine, 83, 
 98. 
 
 4 Ibid.; Hilton v. Granville, 5 Q. B. 
 701; Fitch v. Rawling, 2 H. Bl. 393; 
 Pearsall v. Post, 20 Wend. 119; s. a, 
 22 Wend. 425; Cortelyou v. Van 
 Brundt, 2 Johns. 357; Munson v. 
 Hungerford, 6 Barb. 265, 271; Curtis 
 v. Kessler, 14 Barb. 511, 521 ; Cobb v. 
 Davenport, 33 N. J. L. 223; Tinicum 
 Fishing Co. v. Carter, 61 Penn. St. 21; 
 Merwin v. Wheeler, 41 Conn. 14; 
 Manion v. Creigh, 37 Conn. 462; State 
 v. Wilson, 42 Maine, 9, 28; Bethum v. 
 Turner, 1 Greenl. Ill; Littlefleld v. 
 Maxwell, 31 Maine, 134, 141- " 
 
54 
 
 THE LAW OF WATERS. 
 
 [CH. I. 
 
 inasmuch as a claim destructive of the subject-matter of a 
 grant cannot be set up by usage. The Crown, being charged 
 by a prerogative with a duty to protect the realm 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. 1 So, in this country, the legis- 
 lature 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 naviga- 
 tion. 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 interest 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. 3 When the shore is private property, a removal of 
 
 i Att. Gen. v. Tomline, 12 Ch. D. 
 214; Nicholson v. Williams, L. R 6 
 Q. B. 632; State v. Norris, 70 Md. 91; 
 post, §§ 91, 161. By the common 
 law, a man may go upon his neigh- 
 bor's land for the defense of the 
 realm against its enemies, and for 
 that purpose may there make bul- 
 warks and trenches. Case of Pre- 
 rogative, 12 Co. 12. 
 
 2 Com. v. Tewksbury, 11 Met. 55; 
 Boston v. Richardson, 105 Mass. 351, 
 262; Boston v. Lecraw, 17 How. (U. S.) 
 426,433. Large stones are not "gravel" 
 or " sand," though imbedded in and 
 mixed with the gravel of a beach. 
 Brown v. Brown, 8 Met. 573. Under 
 54 Geo. 3, ch. 159, § 11, it is an of- 
 fense to cast rubbish or filth, such as 
 chemical refuse, on a shore where it 
 may be washed into a navigable 
 river or the sea, without evidence 
 of a tendency to injure navigation. 
 United Alkali Co. v. Simpson, [1894] 
 2 Q. B. 116. As to the Act of Con- 
 gress protecting the harbor of New 
 York, see Ansbro v. United States, 
 159 U. S. 695. The legislature can- 
 not delegate to an executive board, 
 like harbor commissioners, the power 
 to impose penalties for such offenses. 
 
 Eureka Harbor Com'rs v. Excelsior 
 Redwood Co., 88 CaL 491. 
 
 s 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 
 public to take sand, etc., from the 
 shore, although he admits that there 
 is no direct authority upon the ques- 
 tion in England, p. 210. He refers 
 to the statute 7 James, ch. 18, making 
 it lawful for the inhabitants of the 
 maritime counties of Devon and 
 Cornwall to take sea-sand at all places 
 under the full sea-mark "as they 
 have heretofore used to do " (until in- 
 terrupted by the owners of the lands 
 adjacent to the sea-coast, who de- 
 manded " composition with them at 
 such rates as they themselves set 
 down"), and thinks that this act, 
 though locally limited in its applica- 
 tion, is declaratory of the common 
 law. pp. 96, 209. Lord Hale, in stat- 
 ing how the subject may become 
 possessed of the shore, cites this stat- 
 
§25.] 
 
 PROPERTY IN TIDE WATERS. 
 
 55 
 
 sand or gravel therefrom by the owner is a natural and lawful 
 use of such property, and he appears to be subject to no lia- 
 bility, if the Crown or the State does not interfere, for injury 
 to the adjoining lands resulting from a consequent overflow of 
 the sea. 1 
 
 § 25. Same — Seaweed. — The right to gather seaweed and 
 other marine growths is analogous 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. 2 When these 
 
 ute, saying: "The shore 'may belong 
 to ' a subject. The statute 7 James, 
 ch. 18, supposeth it, for it provides 
 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 adjoin- 
 ing the sea-coast, which appears by 
 the statute they could not formerly." 
 De Jure Maris, ch. 6, 1. Mr. Hall con- 
 siders (p. 95, note) this interpretation 
 contrary to the words of the statute. 
 In this country Mr. Dane (Dane's 
 Abr. art. 3, § 3) says that the Massa- 
 chusetts ordinance of 1641, which 
 extended the title of the littoral pro- 
 prietor to low-water mark not exceed- 
 ing one hundred rods (post, §§ 27, 169), 
 but reserved " free fishing and fowl- 
 ing" to the public, had been con- 
 stantly practiced upon " as to fishing 
 and fowling, taking sand, sea-ma- 
 nure, and ballast as the right of soil 
 in flats ground." In Moore v. Griffin, 
 22 Maine, 350, 355, which related to 
 flats between high and low-water 
 mark, Shepley, J., said, with refer- 
 ence .to Mr. Dane's statement: "No 
 such right of taking sand, manure, or 
 ballast is reserved in the grant made 
 to the owner of the adjoining land. 
 And Mr. Dane does not refer to any 
 authority or decision in support of 
 that practice. No such practice can 
 Joe recognized as depriving the legal 
 
 owner of his rights according to his 
 title, unless supported by proof that 
 would establish a common right. The 
 language of the ordinance cannot be 
 extended beyond the obvious mean- 
 ing of the words fishing and fowl- 
 ing. . . . Neither the ordinance 
 nor the common law would authorize 
 the taking of 'mussel-bed manure' 
 from the land of another person." 
 See, also, Clement v. Burns, 43 N. H. 
 609; Emans v. Turnbull, 2 Johns. 813, 
 322; King v. Young, 76 Maine, 76. 
 The recent case of Mer win v. Wheeler, 
 41 Conn. 14, related to the taking of 
 sand by prescription from a beach 
 above high-water mark, and the de- 
 cision there was that an individual, 
 as one of the public, could not ac- 
 quire such a right by prescription, it 
 not being incident to an estate in 
 other lands. 
 
 lAtt. Gen. v. Tomline, 12 Ch. D. 
 215; Hudson v. Tabor, 2 Q. B. D. 290. 
 As to the remedy in equity to pro- 
 tect private property from being en- 
 dangered by the removal of shingle, 
 etc., forming a defense against the 
 sea, see Cowles u'Beck, 13 Beav. 347; 
 Chalk v. Wyatt, 3 Meriv. 688; Cowper 
 v. Baker, 17 Ves. 128 ; Maloon v. White, 
 57 N. H. 152; Mearsu Dole, 135 Mass. 
 508. 
 
 SBenest v. Pipon, 1 Knapp P. C. 68. 
 
56 
 
 THE LAW OF WATERS. 
 
 [Oh. I. 
 
 products become detached from the sea-bottom by natural 
 causes, and float from place to place with the tides and cur- 
 rents, a different rule is applied in practice. , "While sea sand 
 does not lose its character of realty by natural changes, 1 sea- 
 weed is, by some authorities, classed with personal property. 2 
 It does not appear that the Crown ever made any exclusive 
 claim to seaweed, 3 and the public may have a permissive right 
 to take it, when not cast upon those parts of the shore which 
 have passed into private hands. Floating seaweed may thus, 
 
 1 Blewett v. Tregonning, 3 Ad. & 
 EL 554. 
 
 2 Church v. Meeker, 34 Conn. 421; 
 Mather v. Chapman, 40 Conn. 382. 
 Seaweed, cast upon the shore by the 
 sea, and left ungathered by him who 
 has the exclusive ownership of such 
 shore, has been held in Ireland not 
 to be the subject of larceny. Queen 
 v. Clinton, Ir. R. 4 C. L. 6. See, also, 
 Eeg. v. Justices, Ir. R. 5 C. L. 548. In 
 the recent Irish case of Brew v. 
 Haren, Ir. R. 11 C. L. 198; s. C. Ir. R. 
 9 C. L. 29, it was held (two judges 
 dissenting) that trover lay by one 
 who owned the shore down to low- 
 water mark, for the wrongful taking 
 of seaweed cast upon the shore be- 
 tween high and low-water mark, 
 though such seaweed had been left 
 ungathered by the plaintiff; it being 
 considered that trover might be 
 maintained by 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. 313, 322, he said: "The 
 seaweed thus thrown up by the 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 com- 
 mon law, it belongs to the owner of 
 the soil. The rule is that, if the 
 marine increase be by small and al- 
 most imperceptible 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 accumu- 
 lated gradually. The slow increase, 
 and its usefulness as a manure, and 
 as a protection to the bank, will, 
 upon every just and equitable princi- 
 ple, vest the property of the weed in 
 the owner of the land. It forms a 
 reasonable compensation to him for 
 the gradual encroachments of the 
 sea, to which other parts of his es- 
 tate 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 en- 
 couragement in favor of private 
 right." 
 
 3 Brew v. Haren, Ir. R. 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. The grantee of 
 the Crown usually asserted his rights, 
 whatever they were, by excluding 
 the public from going on or over his 
 lands to the seashore; or by exclud- 
 ing them from the seashore when he 
 was in a position to assert his exclu- 
 sive title to the soil of the seashore." 
 See, also, Wyse v. Leahy, Ir. R 9 C. L. 
 384; Hamilton v. Attorney for Ire- 
 land, L. R. 5 Ir. 555; 9 id. 271; 7 id. 
 223; Daly v. Murray, 17 id. 185, 196. 
 
§25.] 
 
 PBOPEBTY IN TIDE "WATEES. 
 
 57 
 
 in point of fact, be regarded as having no 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 oc- 
 cupancy and the proprietor upon whose land it was carried 
 by the sea. 1 If seaweed is deposited 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 occupant, although he may leave 
 it ungathered. 2 A stranger cannot lawfully enter upon land 
 for the purpose of taking seaweed, 3 and a statute which gives 
 
 1 Church v. Meeker, 34 Conn. 421 ; 
 Mather v. Chapman, 40 Conn. 382; 
 Chapman v. Kimball, 9 Conn. 38; Hill 
 v. Lord, 48 Maine, 83. 
 
 2 Emans v. Turnbull, 2 Johns. 313, 
 321; Parsons v. Miller, 15 Wend. 561; 
 Phillips v. Rhodes, 7 Met. 322; Barker 
 v. Batesi 13 Pick. 255; Anthony v. 
 Gilford, 2 Allen, 549; Proprietors of 
 Cohasset Flats v. Tower, 24 Law Rep. 
 734; Chapman v. Kimball, 9 Conn. 
 38; Church v. Meeker, 34 Conn. 421; 
 Mather v. Chapman, 40 Conn. 382; 
 Moore v. Griffin, 22 Maine, 350; Clem- 
 ent v. Burns, 43 N. H. 609; Kenyon 
 v. Nichols, 1 R L 106, 411; Bailey v. 
 Sisson, id. 233, 240; Hall v. Lawrence, 
 2 R. I. 218; Baird v. Fortune, 7 Jur. 
 N. s. 926; Howe v. Stowell, 1 Alcock 
 & Nap. 348; Healy v. Thorne, Ir. R. 
 4 C. L. 495, 499; Queen v. Clinton, 
 Ir. R. 4 C. L. 6; Lowe v. Govett, 3 
 B. & Ad. 863; Brew v. Haren, Ir. R. 
 11 C. L. 198; s. C. Ir. R. 9 C. L. 29; 
 Queen v. Lord, 1 Pr. Edw. Island, 245. 
 See East Hampton v. Kirk, 68 N. Y. 
 459; s. O. 6 Hun, 257; 84 N. Y. 215. 
 In Kenyon v. Nichols, 1 R. 1 106, 411, 
 an action on the case was sustained 
 for disturbance of the plaintiff's com- 
 monable right by taking seaweed 
 from the beach. See, also, Knowles 
 v. Nichols, 2 Curtis, 571; Knowles v. 
 Nichols, 2 R. I 198; Knowles v. 
 Knowles, 12 R. I. 400, 406, 411. And 
 see, generally. Hall v. Lawrence, 2 
 R. L 218; Bailey v. Sisson, 1 R. I. 233. 
 
 'The case of Howe v. Stowell, 1 
 
 Alcock & Nap. 348, was trespass for 
 breaking and entering the plaintiff's 
 close, and the defendant's plea of jus- 
 tification that the close in question 
 was the seashore, and that the plaint- 
 iff entered under the general right of 
 the king's subject to enter and carry 
 away seaweed left by the tide, was 
 held to be bad. Jebb, J., here said : 
 " This being the claim of a right in 
 derogation of, and as a qualification 
 of the king's general right, it ought 
 not to be allowed without some decis- 
 ion, or some authority, or some rea- 
 son drawn from some decision or 
 authority in favor of it. That the 
 king has the soil of the shore from 
 high to low-water mark, as well as 
 beyond that mark, is clear from the 
 authority of Hale, as also from the 
 charter of the Admiral of England. 
 Callis, 39; Da vies, 153; Bagott v. Orr, 
 2 Bos. & P. 472. In the subsequent 
 Irish case of Healy v. Thorne, Ir. R. 
 4 C. L. 495, 499, the court said: " With 
 respect to the contention by defend- 
 ant that the verdict was against the 
 weight of evidence, it is to be con- 
 sidered that in this action of trespass 
 the plaintiff was in possession ; the 
 defendant is a mere trespasser. The 
 public, in such cases, have no right 
 to go on the seashore, between high 
 and low-water mark, to take seaweed. 
 Howe v. Stowell, Alcock & Nap. 348. 
 Their rights are those of navigation 
 and fishing. These are the privileges 
 which the public enjoy as of right." 
 
■58 THE LAW OF WATEKS. [Gb. I. 
 
 it to a person other than the land-owner is unconstitutional. 1 
 " By a liberal construction of the jus aUuvionis" says Bige- 
 low, C. J., 2 " it is held that seaweed, kelp, and other marine 
 plants, when detached from the bottom of the sea and thrown 
 on the shore or beach, become vested in the owner of the soil. 
 But these marine products do not become the property of the 
 riparian proprietor until they are cast on the land or shore, so 
 that they rest there and may be justly said to be attached to 
 the soil. So long as they are afloat, and driven or moved from 
 place to place by the rising tide, it is wholly uncertain where 
 they may find a resting-place ; and no one can claim owner- 
 ship in them as appertaining to the particular part of the 
 shore or beach which belongs to him. And this is true, 
 whether they are wholly afloat, so that they do not come in 
 contact with the bottom, or only partially so, or to such an 
 extent that they occasionally, by the motion of the waves or 
 the rise of tide, touch or rest on the beach." If seaweed, 
 though touching the soil under the water, is really adrift, 3 or 
 if it is deposited upon a part of the seashore which is not pri- 
 vate property, 4 it is not added to the adjoining land, and is 
 
 See also Queen v. Clinton, Ir. B. 4 taken from a beach adjoining land 
 
 C. L. 6; Brew v. Haren, Ir. E. 11 C. L. from which the defendants claimed 
 
 198; S. c. Ir. B. 9 C. L. 29; Mulholland the right in gross to take seaweed. 
 
 v. Killen, Ir. E. 9 Eq. 471, 482. In the The question was as to the meaning 
 
 recent case of Mather v. Chapman, of the word "adrift" in the General 
 
 40 Conn. 382, 399, the court, without Statutes of Massachusetts, ch. 83, §20, 
 
 noticing these cases, used much providing that "any person may take 
 
 broader language, saying : " The right and carry away kelp or other seaweed 
 
 of taking seaweed would seem to between high and low-water mark, 
 
 stand upon the same ground as the whilst the same is actually adrift in 
 
 right of taking fish. We see no rea- tide waters." A ruling that, if during 
 
 son for making a distinction between flood tide the seaweed was in such a 
 
 the vegetable and animal products of position that each wave moved it, it 
 
 the ocean." was adrift, although the bottom of 
 
 1 Cohasset Proprietors v. Tower, 24 the mass might touch the beach, was 
 Law Eep. 734. The phrase " privilege held to be correct. 
 
 of the shores," employed in a statute, 3 Anthony v. Gifford, 2 Allen, 549. 
 
 includes the right to take gravel 4 Mather v. Chapman, 40 Conn. 382; 
 
 and seaweed. Cushing v. Worrick, Peck v. Lockwood, 5 Day, 22; Nudd 
 
 9 Gray, 382; Eipley v. Knight, 123 v. Hobbs, 17 N. H. 527; Arnold v. 
 
 Mass. 515. Mundy, 1 Halst. 1, 12. In Connecti- 
 
 2 Anthony v. Gifford, 2 Allen, 549. cut and New Jersey, riparian pro- 
 In this case the plaintiff brought an prietors have no legal title to unim- 
 action of trover for the conversion of proved flats below high-water mark, 
 seaweed which he had collected and Post, ch 5. 
 
§ 26.] PKOPEKTV IN TIDE WATEES. 59 
 
 not the property of the owner of such land. In such case, it 
 belongs to him who first appropriates it. 1 The privilege of 
 taking seaweed from another's land or beach is a profit a 
 prendre, and may be conveyed without passing the soil. 2 A 
 sale of all the sea-manure that may land on a certain beach 
 during one year conveys no interest in the beach. 3 In Knowles 
 v. Dow, 4 it was decided that a custom for the inhabitants of a 
 town to haul seaweed upon the plaintiff's close, and there de- 
 posit it, and afterwards to take it away at pleasure, was not 
 unreasonable or void. 
 
 §26. Same — Bathing. — In the case of Blundell v. Cat- 
 terall, 5 the court of King's Bench decided that the public have 
 no common-law right to bathe in the sea. The plaintiff in that 
 case was the owner of the shore, and had an exclusive right 
 to fish there with stake nets ; and the defendant, who was a 
 servant at a hotel near by, was sued for driving bathing-ma- 
 chines across the shore and into the sea for the purpose of 
 bathing. The reasoning of the court was not confined to the 
 grounds, that bathing at the place in question, with carriages 
 or on foot, was an interference with the plaintiff's private 
 right of fishery with stake nets, or that the use of bathing- 
 machines might be distinct from the right to bathe without 
 ,them, but proceeded upon the broad ground that there was 
 no public right to frequent the shore for the purpose of bath- 
 ing, either on foot or with carriages. 6 It has also been held 
 in North Carolina that the privilege of approaching the sea 
 for the purpose of bathing is not a right of necessity, and that 
 there is no general right of access to the sea for this purpose. 7 
 
 Jlbid. justified in placing the machines on 
 
 2 Hill v. Lord, 48 Maine, 83, JLOO; such parts of the shore as are private 
 Nudd v. Hobbs, 17 N. H. 524; East property. As to the duty of bath- 
 Hampton v. Kirk, 68 N. Y. 459; 84 house proprietors to guard and pro- 
 N. Y. 215. tect bathers, see Brotherton v. Man- 
 
 3 Parsons v. Smith, 5 Allen, 578. hattan Beach Imp. Co., 48 Neb. 563; 
 4 22N. H. 387. • 50 Neb. 214. 
 
 5 5 B. & Aid. 268. See Mace v. Phil- 6 See Llandudno Urban Council v. 
 
 cox, 15 C. B. n. s. 600; 10 Jur. N. s. 680; "Woods, [1899] 2 Ch. 705; McManus 
 
 33 L. J. (C. P.) 124, deciding that, v. Carmichael, 3 Iowa, 1, 55; Laird v. 
 
 under a special statute for the regu- Briggs, 19 Ch. D. 22. 
 
 lation of the mode of sea-bathing and 7 Hatfield v. Baum, 13 Ired. 394. 
 
 licensing bathing-machines, those Kent says: " The case of Bagott v. 
 
 who obtain such a license are not Orr may be considered as shaken by 
 
60 
 
 THE LAW OF WATERS. 
 
 [Oh. L 
 
 The right of the public to pass over the shore between high 
 and low water-mark is not limited, it seems, to the period when 
 the tide is in, but exists also when the shore is dry 1 for pur- 
 poses of navigation and fishery, 2 and if the decision in Blundell 
 v. Catterall relates only to such parts of the shore as are pri- 
 vate property, the only practical restraint upon the privilege 
 of sea-bathing appears to be that which is imposed by decency 
 and respect for public morals. 3 
 
 § 27. Seashore — How defined. — The presumption that the 
 shore belongs to the Crown, as far as the high-water mark, 
 gives rise to the presumption that the title to lands adjacent 
 to tide water extends only to this line, and places the burden 
 of proof upon those who claim beyond it. 4 The public rights 
 
 that of Blundell v. Catterall, 5 B. & 
 Aid. 268; and the doctrine of Peck v. 
 Lockwood seems to be very question- 
 able." 3 Kent Com. 417, note (c). 
 Peck v. Lockwood, 5 Day, 22, fol- 
 lows Bagott v. Orr, 2 B. & T. 472, 
 deciding that the public may enter 
 upon the shore for the purpose of 
 taking shell-fish. Bagott v. Orr is 
 several times referred to in Blundell 
 v. Catterall, with no intimation of an 
 intention to overrule it; and as the 
 right to take shell-fish is included in 
 the public right of fishing, the latter 
 decision does not affect it. See Moul- 
 ton v. Libbey, 37 Maine, 472, 491. 
 
 i State v. Wilson, 42 Maine, 9; Col- 
 chester v. Brooke, 7 Q. B. 889; Mar- 
 shall v. Ulleswater Co., L. E. 7 Q. B. 
 166; Gann v. Whitstable Free Fish- 
 ers, 11 H. L. Cas. 192; Rexu Russell, 
 6 B. & C. 566; Original Hartlepool 
 Co. v. Gibb, 1 Ch. D. 713; Att. Gen. 
 v. Conservators of the Thames, 1 
 Hem. & M. 32; South-Eastem Ry. Co. 
 v. Darling, 5 C. B. n. s. 821. 
 
 2 Ibid. ; Queen v. Lord, 1 Pr. Edw. 
 Island, 245; Sisson v. Cummings, 35 
 Hun, 22; Galveston City Surf Bath- 
 ing Co. v. Heidenheimer, 63 Texas, 
 559. In Packard v. Ryder, 144 Mass. 
 440, it was held in Massachusetts, 
 where littoral proprietors own the 
 
 adjacent flats to low-water mark, 
 not exceeding one hundred rods, that 
 a person may, from a boat, enter and 
 walk upon another's uninclosed flats, 
 between high and low-water mark, 
 and within one hundred rods of the 
 upland, in order to fish in the sea, 
 and may so fish there. 
 
 3 Rex v. Crunden, 2 Camp. 89. The 
 owner is not apparently liable for 
 personal injuries suffered by a trav- 
 eler falling into an excavation on 
 the seashore. Murphy v. Brooklyn, 
 98 N. Y. 642. 
 
 4 Royal Fishery of the Banne, Sir 
 John Da vies, 149; Somerset v. Fog- 
 well, 5 B. & C. 875; Lowe v. Govert, 
 3 B. & Ad. 863; Smith v. Stair, 6 Bell, 
 App. Cas. 487; Sidney v. Lord Com- 
 missioners, 12 Moo. P. C. 473; How- 
 ard v. Ingersoll, 13 How. (U. S.) 381, 
 421; United States v. Pacheco, 2 
 Wall. 587; Pollard v. Hagan, 3 How. 
 212; Mobile v. Hallett, 16 Peters, 266; 
 Barney v. Keokuk, 94 TJ. S. 324, 336; 
 Bowman v. Wathen, 2 McLean, 376; 
 United States v. New Bedford Bridge, 
 1 Wood. & M. 401, 415; Jones v. Mar- 
 tin, 35 Fed. Rep. 348; Cortelyou v. 
 Van Brundt, 2 Johns. 357; Wiswall 
 v. Hall, 3 Paige, 313; Storer v. Free- 
 man, 6 Mass. 435, 439 : Com. v. Charles- 
 town, 1 Pick. 180, 182; Porter v. Sulli- 
 
§27.] 
 
 PEOPEETY IN TIDE WATEES. 
 
 61 
 
 of navigation, and fishery extend to the same limit, whether 
 v the shore itself is public or private property. 1 The low-water 
 mark is an equally important boundary, since, under the de- 
 cision in Eegina v. Keyn, 2 and in the absence of statute, it is 
 the limit of the nation's territory on the external coast, and 
 also limits the common-law jurisdiction of counties on the sea- 
 coast. 3 Lord Hale mentions three kinds of tides as seeming 
 to give rise to three kinds of shore : 4 first, the high spring 
 tides, which are the fluxes of the sea at those tides that happen 
 at the two equinoctials ; second, the spring tides, which happen 
 twice every month, at the full and change of the moon ; and 
 third, the ordinary or neap tides, which happen between the 
 full and change of the moon, twice in twenty-four hours. He 
 concludes that, by the common law, the shore, both of the sea 
 and of the arms of the sea, does not include the soil which is 
 overflowed by the high spring tides or by the spring tides, and 
 that the rights of the sovereign and the public extend only to 
 the point reached by the ordinary tides. In the case of At- 
 torney General v. Chambers, 5 this view was adopted, and it 
 
 van, 7 Gray, 443; Wonson v. Wonson, 
 14 Allen, 82; Hathaway v. Wilson, 
 123 Mass. 361; Bell v. Gough, 23 N. J. 
 L. 624; 22 id. 441 and 21 id. 156; East 
 Haven v. Hemingway, 7 Conn. 186; 
 Mather v. Chapman, 40 Conn. 382; 
 Hagan v. Campbell, 8 Porter, 9, 25; 
 Loqg Beach Land Co. v. Richardson, 
 70 CaL 206; Teschemacher v. Thomp- 
 son, 18 Cal. 11; Eondell v. Fay, 32 
 Cal. 354, 363; People v. Morrill, 26 
 Cal. 336, 353; Ward v. Mulford, 32 
 Cal. 365, 372; More v. Massini, 37 Cal. 
 432; Brumagin v. Bradshaw, 39 CaL 
 24; Ball v. Slack, 2 Whart. 508, 539; 
 Boulo v. Mobile Eailroad Co., 55 Ala. 
 480; Martin v. O'Brien, 34 Miss. 21. 
 
 1 Ibid. The word " foreshore," used 
 in the later English decisions, ap- 
 pears by 29 & 30 Vict. ch. 62, § 7, to 
 denote "the shore and bed of the sea, 
 and of every channel, creek, bay, 
 estuary, and of every navigable river 
 of the United Kingdom, as far up 
 the same as the tide flows (and which 
 are hereinafter for brevity called 
 the foreshore)." See, also, Trustees v. 
 
 Bootle, 2 Q. B. 4; Penryhn v. Holm, 
 46 L. J. Ex. 506; 37 L. T. 133; 25 W. 
 E. 498; Pearce v. Bunting, [1896] 2 Q. 
 B. 360. A Crown grant of an island 
 in tide waters only conveys the land 
 to high-water mark, and gives the 
 grantee no exclusive right of fishery 
 beyond that line. Cheney v. Guptill, 
 2 Hannay (N. B.), 379. 
 
 2 2 Ex. D. 63; ante, §§ 11-14 
 
 *Ante, §§14, 15. See p. 30, n. 8. 
 
 4 De Jure Maris, ch. 6, I; ch. 4, II; 
 Hargrave's Law Tracts, 12, 26. 
 
 5 4 De Gex, M. & G. 206; 4 De Gex 
 & J. 55. Alderson, B., here said: 
 "Mr. Justice Holroyd, no mean au- 
 thority, in his very elaborate judg- 
 ment in the case of Blundell v. Cat- 
 terall, 5 B. & Aid. 268, 290, men- 
 tions this as one of the instances in 
 which the Common Law differs from 
 the Civil Law, and says that it is 
 clear that according to our law it is 
 not the limit of the highest tides of 
 the year, but the limit reached by the 
 highest ordinary tides of the sea, 
 which is the limit of the shore be- 
 
62 
 
 THE LAW OF WATEES. 
 
 '[Ch. I. 
 
 was held that the average of the medium tides, in each quarter 
 of a lunar revolution during the year, gives the limit, in the 
 absence of all usage, to the rights of the Crown on the sea- 
 shore. In other words, the boundary is the medium line be- 
 tween the ordinary line of high water in ordinary spring 
 tides, at the full and change of the moon, and the ordinary 
 line of high water at neap tides, at about midway in time 
 between the full and change of the moon. 1 The expression, 
 
 longing prima facie to the Crown. 
 What then are these ' highest ordi- 
 nary tides ? ' Now we know that in 
 fact the tides of each day, nay, even 
 each of the tides of each day, differ 
 in some degree as to the limit which 
 they reach. There are the spring 
 tides at the equinox, the highest of 
 all. These clearly are excluded in 
 terms by Lord Hale, both in p. 12 and 
 p. 26 of his treatise De Jure Maris, 
 for though in one sense these are 
 ordinary, £ e., according to the usual 
 order of nature, and not caused by 
 accidents of the win 4 and the like, 
 yet they do not ordinarily happen, 
 but only at two periods of the year. 
 These then- are not the tides contem- 
 plated by the common law, for they 
 are not 'ordinary tides,' not being 'of 
 common occurrence.' This may per- 
 haps apply to the spring tides of each 
 month, exclusive of the equinoctial 
 tides; and, indeed, if the case were 
 without distinct authority on this 
 point, that is the conclusion at which 
 we might have arrived. But then we 
 have Lord Hale's authority, p. 26, De 
 Jure Maris, who says, ' Ordinary tides 
 or neap tides which happen between 
 the full and the change of the moon ' 
 are the limit of ' that which is prop- 
 erly called littus maris,' and he ex- 
 cludes the spring tides of the month, 
 assigning as the reason that the lands 
 covered with these fluxes are for the 
 most part of the year dry and mano- 
 riable, i. a, not reached by the tides. 
 And to the same effect is the case of 
 Lowe v. Govett, 3 B. & Ad. 863, which 
 excludes these monthly spring tides 
 
 also. But we think that Lord Hale's 
 reason may guide us to the proper 
 limit. What are then the lands which 
 for the most part of the year are 
 reached and covered by the tides? 
 The same reason that excludes the 
 highest tides of the month (which 
 happens at the springs) excludes the 
 lowest high tides (which happen at 
 the neaps), for the highest or spring 
 tides and the lowest high tides (those 
 at the neaps) happen as often as 
 each other. The medium tides, there- 
 fore, of each quarter of the tidal pe- 
 riod afford a criterion which we think 
 may be best adopted. It is true of 
 the limit of the shore reached by 
 these tides, that it is more frequently 
 reached and covered by the tide than 
 left uncovered by it. For about three 
 days it is exceeded, and for about 
 three days it is left short, and on one 
 day it is reached. This point of the 
 shore, therefore, is about four days 
 in every week, i. e., for the most part 
 of the year, reached and covered by 
 the tides. And as some not indeed 
 perfectly accurate construction, but 
 approximate, must be given to the 
 words 'highest ordinary tides,' used 
 by Mr. J. Holroyd, we think, after 
 fully considering it, that this best 
 fulfils the rules, and the reasons for 
 it, given in our books." 
 
 1 Com. v. Roxbury, 9 Gray, 451, 483. 
 Under the civil law, the shore ex- 
 tends as far as the highest waves 
 reach in winter. Inst. lib. 2, tit. 1, 
 § 3; Dig. lib. 50, tit. 16, § 112; Civil 
 Code of Louisiana, art. 4; Smith v. 
 Stair, 6 Bell, App. Cas. 487; Home 
 
§ 27.] " 
 
 FE0PEETY IN TIDE WATEES. 
 
 63 
 
 " ordinary high and low-water mark," which is generally used 
 in defining the shore, signifies ordinary low- water mark as well 
 as high. 1 Under the Massachusetts Colony ordinance of 1611, 
 which extended the title of littoral proprietors to low-water 
 mark, not exceeding one hundred rods, the low-water mark 
 is the line of extreme low water, if within one hundred 
 rods; 2 but in Maine, under this ordinance, the low-water 
 mark is determined by the ebb of ordinary tides, as at com- 
 mon law. 3 These rules apply to tidal rivers and to the arms- 
 and inlets of the sea, as well as the sea itself, but they haye 
 no application to fresh waters. 4 The terms, " ordinary low 
 water " or " low water," says Wayne, J., 5 " are only predicable 
 of those parts of rivers within the ebb and flow of the tides, 
 to distinguish the water line at spring or neap tides. Such a 
 difference is uniform twice within every month of the year; 
 and, because it is so, it is termed ordinary. In that part of a 
 
 v. Mackenzie, 6 CI. & Fin. 628; New 
 Jersey Zinc Co. v. Morris Canal Co., 
 44 N. J. Eq. 398; Galveston v. Men- 
 ard, 23 Texas, 349, 398. 
 
 1 Hale, De Jure Maris, ch. 4 II; ch. 
 6, I; Dickens v. Shaw, reported in 
 Hall on the Seashore (2d ed.), Appen- 
 dix, 50, 64; Blundell v. Catterall, 5 
 B. &Ald. 290; Lowe v. Govett, 3 B. 
 & Ad. 863; Harvey v. Lyme Regis, 
 L E. 4 Ex. 260; Att. Gen. v. Cham- 
 bers, 4 De Gex, Macn. & Gord. 206; 
 Doe v. Hill, 2 Allen (N. B.), 587; East 
 Haven v. Hemingway, 7 Conn. 186; 
 Church v. Meeker, 34 Conn. 421, 424; 
 Teschemacher v. Thompson, 18 Cal. 
 11; People v. Morrill, 26 Cal. 336, 353; 
 Ward v. Mulford, 32 Cal. 365, 372; 
 Providence Steam Engine Co. v. 
 Providence S. Co., 12 R I. 348, 357; 
 Gough v. Bell, 22 N. J. L. 441; 23 id. 
 624, 685; Seaman v. Smith, 24 111. 521, 
 524; Howard v. Ingersoll, 13 How. 
 (IT. S.) 381, 417; Walker v. Marks, 2 
 Sawyer, 152* 157, 
 
 2 Storer v. Freeman, 6 Mass. 435, 
 438; Sparhawk v. Bullard, 1 Met. 95, 
 108; Com. v. Charleston, 1 Pick. 180, 
 183; Att. Gen. v. Boston & Maine R. 
 Co., 3 Cush. 1; Att. Gen. v. Boston 
 Wharf Co., 12 Gray, 553; Com. v. Bos- 
 
 ton & Maine R Co., 3 Cush. 25; Won- 
 sonuWonson, 14 Allen, 71, 82; 9 Gray, 
 515, 521, note; Att. Gen. v. Woods, 108 
 Mass. 436, 440; Com. v. Roxbury, 9 
 Gray, 451, 491, 515, 521. 
 
 3 Gerrish v. Union Wharf Co., 26 
 Maine, 384. 
 
 4 Hale, De Jure Maris, ch. 4, II; 
 Royal Fishery of the Banne, Sir John 
 DaVies, 149; Uni^d States v. Pacheco, 
 2 Wall. 587; Wheeler v. Spinola, 54 
 N. Y. 377; Com. v. Roxbury, 9 Gray, 
 451, 491; Att. Gen. v. Boston Wharf 
 Co., 12 Gray, 553; Kean v. Stetson, 5- 
 Pick. 492, 495; Montgomery v. Reed, 
 69 Maine, 510; State u t Sargent, 45 
 Conn. 358; Galveston v. Menard, 23 
 Texas, 349. 
 
 5 Howard v. Ingersoll, 13 How. 381, 
 417. And see id. p. 488; Dutton v. 
 Strong, 1 Black, 23, 32; Handley v. 
 Anthony, 5 Wheat. 374; Child v. Starr, 
 4 Hill, 369, 367; Canal Commission- 
 ers v. People, 5 Wend. 423, 446; Hal- 
 sey v. McCormick, 13 N. Y. 296, 298; 
 Wheeler v. Spinola, 54 N. Y. 377, 385; 
 Waterman v. Johnson, 13 Pick. 261; 
 Bradley v. Rice, 13 Maine, 198; Sto- 
 ver v. Jack, 60 Penn. St. 339; Lacy v. 
 Green, 84 id. 514. 
 
•61 THE LAW OF WATERS. [Ch. ■«- 
 
 river in which there is no ebb and flow, the changes in the 
 current are irregular and occasional, without fixed quantity or 
 time of recurrence, except as they are periodical with the wet 
 and dry seasons of the year. And low water is the furthest 
 receding point of ebb tide." 
 
 § 28. Same — Terms synonymous with "shore." — The 
 
 words " flats " * and " strand " 2 denote the land between the 
 lines of high and low water, like the shore. The term " coast," 
 or " sea-coast," appears to have no fixed meaning apart from 
 the context, and to be equally applicable to the space between 
 high and low-water mark, or to the territory bordering on the ' ' 
 sea, or to that part of the sea which adjoins the land. 3 The 
 word "beach" is synonymous with "shore." In Maine, a 
 statute which prohibited cattle running on a certain " beach," 
 and charged a committee to be appointed by a town with the 
 execution of the law, was held to apply only to the space be- 
 tween high and low-water mark. 4 And in a later case in the 
 same State, in which the same view was taken, it was said that 
 this word, which was there used in a contract, must have some 
 limited meaning, and could not apply to the large sand wastes 
 
 1 Storer v. Freeman, 6 Mass. 435, should have the liberty to fish on a 
 439; Saltonstall v. Long Wharf, 7 part "of the southern coast of New- 
 Cush. 195, 201; Doane v. Willoutt, 5 foundland," "on the shores of the 
 Gray, 328, 335; Church v. Meeker, 34 Magdalen Islands, and also on the 
 Conn. 421, 424, 429 ; Stannard v. Hub- coasts, bays, harbors, and creeks from 
 bard, 34 Conn. 370; Montgomery v. Mount Joly on the southern coast of 
 Reed, 69 Maine, 510. Labrador to and through the Straits 
 
 2 Doane v. Willoutt, 5 Gray, 328, of Belle Isle, and thence northwardly 
 335; Stillman v. Burfeind, 47 N. Y. S. indefinitely along the coast;" and 
 280. also " to dry and cure fish in any of 
 
 3 Cf. The Anna, 5 Rob. Adm. 385. the unsettled bays, harbors, and 
 Callis says that the " sea-coast " cer- creeks of the southern part of the 
 tainly contains the shore and banks, coast of Newfoundland, hereinbefore 
 and that, while a shore is sometimes described, and of the coast of Lab- 
 dry land, and sometimes water, and rador." " Coast," as used in certain 
 a creek is always sea and never land, Crown grants of townships, was lim- 
 a coast is always dry land. Callis on ited to land fronting on the open sea, 
 Sewers, 54-57. Its meaning must, in Queen v. Cox, 1 Pr. Edw. Island, 
 however, be gathered from the con- 170. A vessel engaged in the carry- 
 text. The indefiniteness of this term, ing trade on a navigable river is 
 
 and also of "shore," as sometimes "engaged in the coastwise trade 
 
 used, appears in the Convention of within U. S. St. of 1886, ch. 421, § 2. 
 
 1818, between Great Britain and the Ravesies v. United States, 37 Fed. R. 
 
 United States, which provided that 447; 35 id. 917. 
 
 the inhabitants of both countries 4 Cutis v. Hussey, 15 Maine, 227. 
 
§28.] 
 
 PEOPEETY IN TIDE WATEES. 
 
 65 
 
 above high-water mark, like those on Cape Cod. 1 In Massa- 
 chusetts 2 and New York 3 the definition of the shore is consid- 
 ered to be an accurate definition of a beach also; but, in a 
 quite recent case in Connecticut, the word " beach " was said 
 to have no such inflexible meaning that it must denote land 
 between high and low-water mark. 4 The word " waste " is 
 also a sufficient description of the shore, and passes it in a 
 private grant, if the estate to which the waste belongs extends 
 to low- water mark. 5 The shore may also pass under the terms 
 " sedge-flat," 6 " sea-grounds," 7 " ripa " or " bank," 8 " anchor- 
 age-ground," 9 and " sand," 10 when a different construction is 
 not required by the context. The phrase " tide lands," u em- 
 ployed in the statutes of California and Oregon, applies to the 
 shore between ordinary high and low-water mark, and to the 
 land daily covered by the tide, so as to be unfit for cultivation, 
 and not to the soil which is permanently submerged, or to 
 
 i Littlefield v. Littlefield, 28 Maine, 
 180; Hodge v. Boothby, 48 id. 68. 
 
 2 Doane v. Willcutt, 5 Gray, 328, 
 335; Niles v. Patch, 13 Gray, 254, 257. 
 See Brown v. Lakeman, 17 Pick. 444, 
 446; s. c. 15 Pick. 151. 
 
 3 East Hampton v. Kirk, 68 N. Y. 
 459; s. C. 6 Hun, 257. See Hastings 
 v. Ival, L. E. 19 Eq. 558, 580. 
 
 * Melvin v. Wheeler, 40 Conn. 14; 
 Mather v. Chapman, 40 Conn. 382. 
 
 5 Att. Gen. v. Hanmer, 4 Jur. N. s. 
 751; 27 L. J. Cb, 837; Att. Gen. v. 
 Jones, 33 L. J. Ex. 249; 2 H. & C. 347. 
 
 6 Church v. Meeker, 34 Conn. 421, 
 424; Peck v. Lockwood, 5 Day, 24, 
 As to the effect of. such words as 
 "stagnum," "gurges," "mariscus," 
 "palus," "marettum," "salvia," etc., 
 employed in ancient grants, see Co. 
 Litt. 4 6, 5 a. 
 
 7 Scratton v. Brown, 4 B. & C. 485. 
 The word " grounds " does not gen- 
 erally include land under water. 
 State v. Jersey City, 1 Dutch. 525, 
 530; Com. v. Roxbury, 9 Gray, 491. 
 
 8 " Ripa " or " bank " properly refers 
 
 to hard, dry land, and to the margin 
 
 of fresh waters rather than salt. But 
 
 "the bank of a bay " may include a 
 
 5 
 
 sand-bank or mud-bank, though al- 
 ternately covered and uncovered by 
 the flux and reflux of the sea, and so 
 be equivalent to "shore." In re Bel- 
 fast Dock, Ir. R. 1 Eq. 128, 139. 
 
 9 Foreman v. Whitstable Free Fish- 
 ers, L. R. 4 H. L. 266; L. R. 2 C. P. 
 688; L. R. 3 C. P. 578; Le Strange v. 
 Rowe, 4 F. & F. 1048; Calmady v. 
 Rowe, 6 C. B. 891. 
 
 10 In the case of a warranty deed 
 which purported to convey all the 
 fishing rights, rights to the "sand," 
 and all useful things that may drift 
 upon the beach, and contained a de- 
 scription of the land which consti- 
 tuted the beach, with words of in- 
 heritance, it was held that the word 
 "sand" was equivalent to "land," 
 and that the fee passed by the deed. 
 Spinney, v. Marr, 41 Maine, 352. 
 
 11 San Francisco v. Le Roy, 138 TJ. S. 
 656; People v. Davidson, 30 Cal. 379; 
 Randall v. Fay, 32 CaL 354; Walker 
 v. Marks, 2 Sawyer, 152; 17 Wall. 648; 
 Supervisors v. United States, 18 Wall. 
 71; People v. Morrill, 26 Cal. 336; 
 Patterson v. Tatum, 3 Sawyer, 164; 
 Eisenbach v. Hatfield, 2 Wash. St. 
 236; Pierce v. Kennedy, id. 324. 
 
66 THE LAW OF WATERS. [Ch. L 
 
 isolated sand-banks, alternately covered and exposed by the- 
 tides, and distant and entirely disconnected from the main- 
 land. 1 " Salt-meadows," 2 employed in a deed, denotes only 
 the land above high-water mark which is overflowed by the 
 spring or extraordinary tides. 
 
 § 29. Same — " Shore " in conveyancing.— The shore par- 
 takes of the nature both of the sea which covers it and of the 
 land which it defends. 3 When this term is used in deeds and 
 legal instruments, it comprehends the soil itself, and is inap- 
 plicable to a grant of a mere privilege or easement. 4 The 
 shore may pass under the word " terra." 5 So a devise of " a 
 beach for drift-wood and timber " is a gift of the land itself, 
 and not of a mere easement in the land. 6 But it is not to be 
 construed according to its technical meaning if such construc- 
 tion would violate the intention of the parties. "Where land 
 adjacent to the sea was conveyed by a deed which reserved 
 the privilege " of piling up seaweed on the shore," it was held 
 that the right reserved was to pile the seaweed upon the up- 
 land, and not below high-water mark, where it would be swept 
 away by the tide. 7 So, where a certificate filed by a railroad 
 company described one terminus of a tunnel as being " on the 
 western shore of the Hudson River, and within or near Jersey 
 City or Hoboken," the word " shore " was held to be used in 
 the sense in which Jersey City or Hoboken is said to be situ- 
 ated on the shore of the river. 8 
 
 1 Elliott v. Stewart, 15 Oregon, 259; 496; Beaufort v. Swansea, 3 Exch- 
 Andrus v. Knott, 12 id. 501. 413. • 
 
 2 Church v. Meeker, 34 Conn. 421, 5 Beaufort v. Swansea, 3 Exch. 413,. 
 429. A salt meadow cannot pass as 425. 
 
 an appurtenance. Armstrong v. Du 6 Brown v. Lakeman, 17 Pick. 444;. 
 
 Bois, 90 N. Y. 95, 102. Grant of "a 13 Pick. 151; Lakeman v. Butler, 17 
 
 certain piece of salt thatch" with Pick. 436; Phillips v. Rhodes, 7 Met. 
 
 other evidence, see Roe v. Strong, 119 322, 325. 
 
 N. Y. 316. 7 Mather v. Chapman, 40 Conn. 382.. 
 
 3 " The shore is not counted for 8 State v. Hudson Tunnel R Co., 38 
 
 lands or grounds gained from the sea, N. J. L. 548. See Hathaway v. Wil- 
 
 or left by it, because at every full sea son, 123 Mass. 359, 361, 362 ; Bipley v. 
 
 it is covered with the waters thereof." Knight, 123 Mass. 515; Saltonstall iv 
 
 Callis on Sewers, 54. "Shores and Long Wharf, 7 Cush. 195, 201; Doane- 
 
 such grounds, which alternis vioibus v. Willcutt, 5 Gray, 328, 335; Niles. 
 
 are wet and dry, are not accounted v. Patch, 13 Gray, 254; Hodge v. 
 
 relinquished grounds." Id. 274. Boothby, 48 Maine, 68. 
 
 4 Scratton v. Brown, 4 B. & C. 485, 
 
CHAPTEK II. 
 
 OF PROPERTY IN TIDE WATERS IN THIS COUNTRY. 
 
 SECTION. 
 
 30., The right to this property prior to the Revolution. 
 
 31. The powers possessed by the colonies. 
 
 32. The title acquired by the States at the Revolution, and the nature of 
 
 this interest 
 
 33. The commercial powers and admiralty jurisdiction ceded to the general 
 
 government 
 
 34. The power of Congress over navigable waters. 
 
 35. The rights of the State in relation to the power of Congress. 
 
 36. State grants in navigable waters, how construed. 
 
 37. Rights acquired by prescription against the State. 
 
 38. The State's control of fisheries within its limits. 
 
 39. The rights of the new States in their navigable waters. 
 
 40. The power of the general government over navigable waters not in- 
 
 cluded in any State. 
 
 § 30. Tide waters in the United States — Property. — In 
 
 territories acquired by discovery, the rights of the new settlers 
 are determined by the laws of the mother-country, which be- 
 come immediately applicable ; l but in lands acquired by con- 
 quest, the conqueror may prescribe what law he pleases. 2 The 
 early English settlements in this country, upon the Atlantic 
 coast, were of the former class, 3 the lands which were occupied 
 
 11 Black. Com. 107; Bogardus v. conquest and driving out the natives, 
 
 Trinity Church, 4 Paige, 178; 15 or by treaties, and that the common 
 
 Wend. 111. law of England, as such, has no allow- 
 
 2 Ibid.; Calvin's Case, 7 Co. 17; ance or authority there, and Lord 
 
 Campbell v. Hall, 1 Cowper, 204, 208; Holt's remark in Smith v. Brown, 
 
 1 Black. Com. 107; 1 Kent Com. 473, Salk. 666, that "the law of England 
 
 note; United States u Percheman, 7 does not extend to Virginia; her law 
 
 Peters, 51, 87; Langdeau v. Hanes, 21 is what the king pleases," have been 
 
 Wall. 521, 527; McMullen v. Hodge, 5 always treated as erroneous in this 
 
 Texas, 34. As to lands, like the isl- country. Arnold v. Mundy, 1 Halst. 
 
 and of Porto Rico, acquired by ces- 1, 82, 83; Bell v. Gough, 23 N. J. L. 624, 
 
 sion, see Ex parte Ortiz, 100 Fed. Rep. 707; Johnson v. Mcintosh, 8 Wheat. 
 
 955. 543 ; Martin v. Waddell, 16 Peters. 367 ; 
 
 3 Blackstone's statement (1 Black. Cherokee Nation v. Georgia, 5 Peters, 
 
 Com.l07,108),thattheAmericanplan- 1; Worcester v. Georgia, 6 id. 515; 
 
 tations were principally obtained by Holden v. Joy, 17 Wall. 211, 243, 244; 
 
OS 
 
 THE LAW OF WATERS. 
 
 [OH. II. 
 
 by the colonies being claimed by the Crown of England by 
 right of discovery. A grant from the king could alone confer 
 title to the soil, and was the only source of authority for exer- 
 cising powers of government over the lands granted. 1 The 
 absolute right of property and dominion was thus held to be- 
 long to the European nation by which any particular portion 
 of the country was first discovered, as if it had been found 
 without inhabitants. 2 The Indians were regarded as mere 
 temporary occupants, having no title to the soil which they 
 could convey, except to the nation which claimed the terri- 
 tory, or with its express consent. 3 Hence, a grant by the In- 
 dian tribes neither augmented the title acquired by discovery, 
 nor did it alone possess such validity as would enable the 
 grantee to resist a title to the same lands under a royal grant. 4 
 "Where Indian grants were recognized and confirmed by the 
 colonial governments acting under the political powers con- 
 
 United States v. Cook, 19 "Wall. 591; 
 Jackson v. Porter, 1 Paine, C. C. 457 ; 
 Mitchell v. United States, 9 Peters, 
 745; Clark v. Smith, 13 id. 195; 8 Att. 
 Gen. Op. 262. 264; United States v. 
 Forty-three Gallons of Whisky, 93 
 U. S. 188; Beecher v. Weathersby, 95 
 U. S. 517, 525; De Armes v. New Or- 
 leans, 5 La. 132; Penn v. Baltimore, 
 1 Ves. 445; Commonwealth v. Rox- 
 toury, 9 Gray, 451, 478; Jackson v. 
 Ingraham, 4 Johns. 163; Jackson v. 
 Waters, 12 Johns. 365; Jackson v. 
 Hudson, 3 Johns. 375; 1 Kent Com. 
 258; 3 id. 377 etseq.; Jackson v. Wood, 
 7 Johns. 295; Gilbert v. Wood, 7 
 Johns. 290; Goodell v. Jackson, 30 
 Johns. 693; Penobscot Tribe v. Vea- 
 zie, 58 Maine, 402; Veeder v. Guppy, 
 3 Wis. 502. In England it is held 
 that when English subjects establish 
 themselves in uninhabited or barbar- 
 ous lands, they continue subject to the 
 sovereignty of England and to such 
 of its laws as are applicable to their 
 new condition: but that acts of Par- 
 liament, passed after the settlement 
 of the new colonies, do not bind them 
 unless they are expressly named, or 
 are manifestly included within their 
 
 scope. Anon. 2 P. Wms. 75; Blank- 
 ard v. Galdy, 2 Salk. 411; Campbell 
 v. Hall, 1 Cowper, 204, 208; Att. Gen. 
 v. Stewart, 2 Mer. 143, 159; Adv. Gen. 
 v. Dossee, 9 Jur. s. s. 877; Dutton v. 
 Howell, Show. ParL Cas. 31, 32; Pic- 
 ton's Case, 30 Howell's State Trials, 
 903; Pitt v. Bacre, 3 Ch. D. 295; Jex 
 v. McKinney, 14 App. Cas. 77; Cal- 
 ender v. Lagos, [1891] A C. 460; Reg. 
 v. Jameson, 65 L. J. M. C. 218; Mar- 
 tin v. Waddell, 16 Peters, 367; Pol- 
 lard v. Hagan, 3 How. 212, 229; 1 
 Black. Com. 107, 108; Johnson v. Mc- 
 intosh, 8 Wheat 543, 595. 
 ilbid. 
 
 2 Ibid. 
 
 3 See authorities above, note 3; 
 Holden v. Joy, 17 Wall. 211, 243, 244; 
 Leavenworth R Co. v. United States, 
 92 U. S. 733; East Hampton v. Vail, 
 151 N. Y. 463; 71 Hun, 94; Minter v. 
 Shirley, 45 Miss. 376; Wood v. M. K. 
 & T. R Co., 11 Kansas, 323; 1 Kent 
 Com. 258; 3 id. 377 et seg.; Com. r. 
 Roxbury, 9 Gray, 451, 47&; Lynn v. 
 Nahant, 113 Mass. 433; Bell v. Gough, 
 23 N. J. L. 624, 707 
 
 * Ibid. 
 
§ 30.] PEOPEETY IN TIDE WATEES. 69 
 
 ferred by the European nations, they were construed accord- 
 ing to the laws of such nations. In 1685, the colonial assembly 
 of Connecticut confirmed" to proprietors, who had purchased 
 from the Indians, lands which included an arm of the sea, 
 with all islands, ponds, ways, " waters, watercourses, havens, 
 ports, rivers, fishings," etc. This confirmation, though in itself 
 a grant of title, did not convey the soil between high and low- 
 water mark, the words above quoted being held insufficient, 
 by the common law, to convey such soil. 1 So, the title of the 
 colonies to the shores and tide waters within their limits did 
 not pass, under the colony patents, to the different towns which 
 had purchased them from the Indians. 3 JSTo obstacle was thus 
 presented to the application of the common law in controver- 
 sies respecting waters either tidal or inland. ]STor did the fact 
 that many parts of this country were claimed, and actually 
 settled, by those who were strangers to the common law, pre- 
 vent that system from becoming generally prevalent. In ISTew 
 York, which was settled by the Dutch, with whom the civil 
 law prevailed, the province was claimed by right of discovery, 
 when it passed into the possession of the English, and, being 
 re-established as a British colony, the common law of England 
 was applied in controversies respecting its waters, 3 with the 
 exception, perhaps, of the Hudson and Mohawk rivers. 4 The 
 common law, so far as it is not repugnant to the institutions 
 and laws of the particular State, has become, either by right 
 of discovery or by statute, the fundamental law throughout this 
 country, except in Louisiana. 5 
 
 J East Haven v. Hemingway, 7 2 Church v. Meeker, 34 Conn. 421, 
 
 Conn. 186, 200; Middletown v. Sage, 428; Seeleyu Brush, 35 Conn. 423. 
 
 8 Conn. 221; Jackson v. Porter, 1 3 Canal Com'rs v. People, 5 Johns. 
 
 Paine C. C. 457; Com. v. Roxbury, 9 423, 445; Cortelyou v. Van Brundt, 2 
 
 Gray, 451, 478, 493. In the above case Johns. 257; 1 Story on the Constitu- 
 
 of East Haven v. Hemingway, Hos- tion, 136; Smith's New Jersey Law, 
 
 mer, C. J., while holding that the 36, 37; Mayor v. Hart, 95 N. Y. 443. 
 
 confirmation was a grant, added: 4 Smith v. Rochester, 92 N. Y. 463 ; 
 
 "At the same time it must be ad- post, § 57. The city of New York, 
 
 mitted that the principal, if not the though occupied by the Dutch, was 
 
 sole, object of the grant was to con- always English territory in the view 
 
 firm to the proprietors the title to of the law. Mortimer v. New York 
 
 their lands purchased of the natives, El. R Co., 6 N. Y. S. 898; Hine v. 
 
 which they had not legal capacity to Same, 7 id. 464. 
 
 sell, and of which the proprietors had 5 Clark v. Clark, 17 Nev. 124; Norris 
 
 been in quiet possession for many v. Harris, 15 Cal. 226; Waters v. Ross, 
 
 years," 12 CaL 535; Van Maren v. Johnson, 
 
70 THE LAW OF WATERS. [Gs. II. 
 
 § 31. Same — Grants to and from the colonies.— Under 
 
 all the early governments in this country, whether charter, 
 provincial, or proprietary, the power to control and regulate 
 their territorial and local interests was practically co-exten- 
 sive and the same. 1 No instance appears in which the Crown 
 of England ever claimed, for its own benefit, any exclusive 
 rights in the tide waters of these possessions, or in the soil 
 under them. Although royal grants to individuals, for pri- 
 vate purposes, include only what is expressly granted, and 
 pass nothing by implication, 2 yet, in the case of a grant by 
 the Crown of extensive foreign domains, where the obvious 
 intent of the grant is not merely to vest the Crown's right 
 of property in the grantees, but also to invest them with civil 
 and political powers, and to establish complete though sub- 
 ordinate sovereignties, a different rule has been held appli- 
 cable in this country. 3 The grant of King James I., in No- 
 vember, 1620, to the council of Plymouth, upon the basis of 
 which most of the others were framed, expressly named, 4 as 
 included in the grant, not only the lands described, but also 
 all havens, ports, rivers, waters, fishings, mines, etc., and all 
 and singular other commodities, jurisdictions, royalties, privi- 
 leges, franchises, and pre-eminences, both within the tract of 
 land upon the main, and within the islands and seas adjoin- 
 ing; and, although such words as ports, rivers, waters, or fish- 
 ings, may be insufficient, in the case of a private grant, to 
 convey the soil, 8 yet the other words employed, and especially 
 
 15 Cal. 308; Teschemacher v. Thomp- with a public trust. Laugdon v. New 
 
 son, 18 Cal. 11; Reed v. Eldredge, 27 York, 93 N. Y. 129; Dermott v. State, 
 
 Cal. 346; Ward v. Mulford, 32 Cal. 99 N. Y. 101. 
 
 365; Galveston v. Menard, 23 Texas, 3 Post, § 64; Indiana v. Milk, 11 
 
 349; Courandu. Vollmer, 31 id. 400; Biss. 197; Southampton Trustees v. 
 
 Franklin's Succession, 7 La. Ann. 395, Jessup, 162 N. Y. 122. 
 
 418; Reynolds v. Swain, 13 L. Rep. 4 See Barker v. Bates, 13 Pick. 255, 
 
 193; 1 Kent Com. 473, note; Pollard 259. 
 
 v. Hagan. 3 How. 212, 227. 5 Wood's Case, 1 Co. 46 b; 16 Vin. 
 
 1 1 Story on the Constitution, § 67; Abr. tit. Prerogative, K. § 27; Chitty 
 
 Davis's American Constitutions, p. 9. on the Prerogative, 392; 2 Black. 
 
 2 Post, § 36. This rule applies more Com. 18; Yelv. 143; Shep. Touch. 97; 
 
 strictly to gratuitous grants by the Com. Dig. tit. Grant, E. 5; East 
 
 sovereign upon the grantee's solicita- Haven v. Hemingway, 7 Conn. 186, 
 
 tion than to grants made upon an 200; Middletown i>. Sage, 8 Conn. 221. 
 
 adequate and valuable consideration, Cf. Robins v. Ackerly, 91 N. Y. 98; 
 
 with respects to rights not charged Hand v. Newton, 92 N. Y. 88; Breen 
 
1 31] 
 
 PROPERTY IN TIDE WATERS. 
 
 71 
 
 the word " royalties," in connection with the manifest purpose 
 of the grant, were held to convey to the colonial governments 
 the right and jurisdiction of the Crown in the shores of navi- 
 gable waters, and in the soil under such waters, and to invest 
 theni with such powers of legislation and administration as 
 were necessary to advance the prosperity of the colonists. 
 Such was the construction adopted by the Supreme Court of 
 the United States, 1 and by the courts of Massachusetts, 2 New 
 
 v. Looke, 46 Hun, 291; Dugger v. 
 McKesson, 100 N. C. 1; ante, §30; 
 post, § 304a. The royal grant of the 
 province of Maine, in 1639, to Sir 
 Ferdinando Gorges, expressly in- 
 cluded the right to wreck. See 3 
 Dane's Abr. 137. 
 
 . i Martin v. Waddell, 16 Peters, 367; 
 3 Harr. (N. J.) 495; Johnson v. Mc- 
 intosh, 8 Wheat. 595; Fairfax v. 
 Hunter, 7 Cranch, 618; Den v. Jersey 
 City, 15 How. 426; Charles River 
 Bridge v. "Warren Bridge, 11 Peters, 
 420, 457; Morris v. United States, 174 
 C S. 196; Bennett v. Boggs, Bald. C. 
 C. 60. ' 
 
 2 Barker v. Bates, 13 Pick. 255; 
 Com. v. Alger, 7 Cush. 53; Same v. 
 Roxbury, 9 Gray, 451; Boston v. Rich- 
 ardson, 105 Mass. 351; Storeru Free- 
 man, 6 Mass. 435; Parker v. Smith, 
 17 Mass. 413; Lapish v. Bangor Bank, 
 8 Maine, 85 ; Clancey v. Houdlette, 39 
 id. 451. The Massachusetts emigrants 
 -" did not, indeed, surrender up their 
 charter, or cease to recognize its 
 obligatory force. But they extended 
 'their acts far beyond its expression 
 of powers; and, while they boldly 
 claimed protection from it against 
 ithe royal demands and prerogatives, 
 they nevertheless did not feel that -it 
 furnished any limit upon the freest 
 exercise of legislative, executive, or 
 judicial functions. They did not 
 view it as creating an English cor- 
 poration, under the narrow con- 
 struction of the common law, but as 
 affording the means of founding a 
 iroad political government, subject 
 
 to the Crown of England, but yet 
 enjoying many exclusive privileges." 
 1 Story on the Constitution (5th ed.), 
 § 67. "As though there were real 
 grounds for certain assumptions of 
 the colonists contained in their char- 
 ter, their agents submitted it to some 
 of the best politicians and ablest 
 lawyers in England for their opin- 
 ions. They observed ' that, it being 
 originally granted to a great com- 
 pany resident in England, it was 
 wholly inapplicable to the circum- 
 stances of a distant colony, because 
 it gave the body politic no more ju- 
 risdiction than had every other cor- 
 poration within the kingdom.' Such 
 being the opinion of a Somers, a 
 Holt, a Treby, and a Ward, what did 
 this boasted charter amount to ? It 
 must, however, be confessed that, in 
 the adroit use made of it by the col- 
 onists, it amounted to almost the 
 same thing that they contended it 
 was; for by a constant appeal to it, 
 and admitting of no construction of 
 its provisions which did not suit 
 them, they gained, — what was every- 
 thing to them, — time and strength, 
 with which to back up their claims. 
 , . . A company consisting of 
 many restless spirits had been got 
 rid of; and whether they conformed 
 to all the laws of Church and State, 
 or not, they were three thousand 
 miles off and could not be easily 
 brought to punishment, even if they 
 deserved it, or made to amend the 
 laws if they broke them. The rise 
 of the civil war in England gave its 
 
72 THE LAW OF WATEKS. [Ch. II. 
 
 Jersey, 1 and Connecticut. 2 It is doubtless consonant to the law 
 of England. Thus, in Doe v. East India Co., 3 before the Privy 
 Council, it appears to have been conceded that the defendants, 
 as representing the Indian government, had a freehold in the 
 bed and shores of the navigable rivers of India. Upon this 
 principle the colony of Massachusetts passed the ordinance of 
 1647, by which the seashores and flats of the colony, down 
 to low-water mark, not exceeding one hundred rods from high- 
 water mark, were made the property of the littoral proprie- 
 tors. In Brookhaven v. Strong, 4 in New York, a grant of an 
 exclusive right to the soil and the oyster fisheries in an arm of 
 the sea, which was made by the colonial government, and was- 
 ratified and confirmed by the colonial assembly, was held to be 
 valid. 
 
 § 32. Same — Title of the States. — At the time of the Eevo- 
 lution, when the people became sovereign, the respective States 
 succeeded to the title of the Crown in the tide waters within 
 their territorial limits, and to such rights therein as had been 
 previously granted to the local governments established under 
 the royal sanction. 5 Public rights in navigable waters were 
 
 rulers more work than they could do navigable river. Normand v. St. 
 
 at home, and their King's power soon Lawrence Steam Nav. Co., 4 Quebec 
 
 fell down to the pitiful restrictions L. E. 1. 
 
 of subjecting those of his subjects 4 Brookhaven v. Strong, 60 N. Y, 
 
 who wished to emigrate to New Eng- 56; 1 Thomp. & C. 415; Eobins v. 
 
 land to vexatious oaths of allegiance Ackerly, 91 N. Y. 98; 29 Him, 499 
 
 and supremacy." Drake's History of Hand v. Newton, 92 N. Y. 88; Atkin 
 
 Boston, ch. 8. son v. Bowman, 42 Hun, 404; Peo 
 
 1 Arnold v. Mundy, 1 Halst. 1 ; Bell pie v. Schermerhorn, 19 Barb. 540 
 v. Gough, 21 N. J. L. 156 ; 22 id. 441 ; Lowndes v. Huntington, 153 U. S. 1. 
 23 id. 624, 665; Stevens v. Paterson " Martin v. Waddell, 16 Peters, 367 
 Eailroad Co., 34 N. J. L. 532. 3 Harr. 495; Pollard v. Hagan, 3 
 
 2 Church v. Meeker, 34 Conn. 421, How. 212; Howard v. Ingersoll, 13 
 428; State v. Sargent, 45 Conn. 358, How. (TJ. S.) 381, 421; New Orleans v. 
 372. See East Haven v. Hemingway, United States, 10 Peters, 662; Mum- 
 7 Conn. 188; Middletown v. Gage, 8 ford v. Ward well, 6 Wall. 423, 436; 
 Conn. 221; Browne v. Kennedy, 5 H. Smith v. Maryland, 18 How. (U. S.) 
 & J. 1; Carson v. Blazer, 2 Binney, 74; Withers v. Buckley, 20 How. 
 475; Eosborough v. Picton, 12 Tex. (TJ. S.) 84; Barney v. Keokuk, 94 
 Civ. App. 113. U. S. 324; McCready v. Virginia, 94 
 
 3 10 Moo. P. C. 140. The govern- U. S. 391, 394; 27 Gratt. 985; Corfield 
 ment of the province of Quebec can- v. Coryell, 4 Wash. C. C. 371; Ben- 
 not, by letters-patent, grant sub- netfr v. Boggs, 1 Bald. C. C. 60; Ar- 
 merged land in the channel of a nold v. Mundy, 1 Halst. 1; Gough v.. 
 
§32.] 
 
 PE0PEBTY IN TIDE "WATEES. 
 
 73 
 
 not affected or impaired by this change of title, and the pow- 
 ers acquired by the States were those which, in England, and 
 in this country previous to the Revolution, could have been 
 exercised by the king alone, or by him in conjunction with 
 Parliament. 1 It is apparent that the principles of the English 
 law upon the subject have been much modified in this coun- 
 try. 2 "While in England there are rights of private property 
 and of jurisdiction in the Crown, the public rights of naviga- 
 tion and fishery, which the Crown cannot impair, and the 
 power of Parliament to regulate these public interests, there 
 
 Bell, 21 N. J. L. 156; 22 id. 441; 23 id. 
 624; Att. Gen. v. Stevens, Sax. 369; 
 Stevens" v. Paterson R. Co., 34 N. J. 
 L. 532; Paul v. Hazleton, 37 id. 106; 
 Att. Gen. v. Hudson Tunnel Co., 27 
 N. J. Eq. 176, 573; Storer v. Free- 
 man, 6 Mass. 435; Com. v. Alger, 7 
 Cush. 53; Weston v. Sampson, 8 Cush. 
 347; Lakeman v. Burnham, 7 Gray, 
 437, 440; Com. v. Roxbury, 9 Gray, 
 451 and note; Nichols v. Boston, 98 
 Mass. 39, 42; Boston v. Richardson, 
 105 Mass. 351; 13 Allen, 146; Chap- 
 man v. Kimball, 9 Conn. 40; Simons 
 v. French, 25 Conn. 346; Church v. 
 Meeker, 34 Conn. 421; State v. Sar- 
 gent, 45 Conn. 358, 372; Hollister v. 
 Union Co., 9 Conn. 443; Pitkin v. 
 Olmstead, 1 Root, 219; Moulton v. 
 Libbey, 37 Maine, 472; Dover v. Ports- 
 mouth Bridge, 17 N. H. 220; Clement 
 v. Burns, 43 N. H. 609; Browne v. Ken- 
 nedy, 5 H. & J. 195 ; Owings v. Nor- 
 wood, 2 H. & J. 56; Hall v. Gittings, 
 2 id. 112; Cockey v. Smith, 3 H. & 
 J. 20; Hutchings v. Talbott, id. 378: 
 Cunningham v. Browning, 1 Bland, 
 299; Matthews v. Ward, 10 Gill & J. 
 443; State v. Medbury, 3 R. I. 138; 
 Chase v. American S. Co., 9 R I. 419, 
 427; Providence Steam Engine Co. v. 
 Providence S. Co., 12 R. 1. 348 ; Mowey 
 v. Providence, 16 R. 1. 422; Ball v. 
 Slack, 2 Whart. 508, 539; Stover v. 
 Jack, 60 Penn. St. 339; Tinicum Fish- 
 ing Co. v. Carter, 61 id. 21; Langdon 
 v. New York, 93 N. Y. 129; Lansing 
 
 v. Smith, 8 Cowen, 146; 4 Wend. 9; 
 Rogers v. Jones, 1 Wend. 261; Peo- 
 ple v. New York Ferry Co., 68 N. Y. 
 71; 7 Hun, 105; Towle v. Remsen, 
 70 N. Y. 303, 308; Gould v. Hudson 
 River R. Co., 6 N. Y. 522; Smith v. 
 Levinus, 8 N. Y. 472; Mahler v. Nor- 
 wich Transp. Co., 35 N. Y. 352; Peo- 
 ple v. Tibbetts, 19 N. Y. 523; People 
 v. Vanderbilt, 26 N. Y. 287; Hudson 
 River R. Co. v. Loeb, 7 Rob. 418. 
 
 !Ibid. The definitive treaty of 
 peace, concluded' at Paris, Septem- 
 ber 2, 1783, recognized the respective 
 States, and contained the following: 
 "His Britannic majesty acknowl- 
 edged the United States, namely, 
 New Hampshire, Massachusetts, 
 Rhode Island, etc., to be free, sover- 
 eign and independent States; that he 
 treats with them as such, and for 
 himself, his heirs and successors, re- 
 linquishes all claim to the govern- 
 ment, property and territorial right 
 of the same in every part thereof." 
 
 2 Martin v. Waddell, 16 Peters, 369; 
 Barney v. Keokuk, 94 U. S. 324; 
 Clement v. Burns, 43 N. H. 609; Prov- 
 idence S. Co. v. Providence Steam 
 Engine Co., 12 R. I. 356; Church v. 
 Meeker, 34 Conn. 428; Arnold v. 
 Mundy, 1 Halst. 1; Boston v. Rich- 
 ardson, 105 Mass. 362; Moulton v. 
 Libbej', 37 Maine, 472; Ward v. Wil- 
 lis, 6 Jones L. 183, 185; Martin v. 
 O'Brien, 34 Miss. 21; Eldridge «., Cow- 
 ell, 4 CaL 80. 
 
7± 
 
 THE LAW OF WATEKS. 
 
 [Oh. II. 
 
 are here no rights but those of the public on the one hand and 
 of individuals on the other. 1 For this purpose, the State rep- 
 resents the people, and the ownership is that of the people in 
 their united sovereignty. 2 Thus, in Pollard v. Hagan, 3 the 
 Supreme Court of the United States said: The State's "rights 
 ■of sovereignty and jurisdiction are not governed by the com- 
 
 i Ibid. ; Clement v. Burns, 43 N. H. 
 609, 617, 619. 
 
 2 McCready v. Virginia, 94 U. S. 
 391, 394. The case of Martin v. Wad- 
 dell, 16 Peters, 369, was an action of 
 ejectment for the recovery of certain 
 land covered -with water below low- 
 water mark in Raritan Bay in the 
 State of New Jersey. The plaintiffs 
 claimed a private and exclusive title 
 to the land (1) under the letters- 
 patent of King Charles II. in 1664 to 
 the Duke of York, which conveyed to 
 the latter a part of New England, 
 etc., and " the lands from the west 
 side of Connecticut to'the east side 
 of Delaware Bay,"and various islands 
 along the coast, "together with all 
 the lands, islands, soils, rivers, har- 
 bors, mines, minerals, quarries, woods, 
 marshes, waters, lakes, fishings, 
 hawkings, huntings, and fowlings, 
 and all other royalties, profits, com- 
 modities, and hereditaments to said 
 .several islands, lands, and premises,be- 
 longing and appertaining, with their 
 and every of their appurtenances, 
 and all our estate, right, title, inter- 
 est, benefit, advantage, claim, and 
 demand, of, in, or to the said lands 
 and premises, or any part or parcel 
 thereof," etc. ; (2) under various con- 
 1 veyances, and deeds of confirmation 
 from the Duke of York and the 
 Crown, by which the part of the 
 province of New Jersey, called East 
 New Jersey, of which the land in 
 suit was part, became vested in 
 twenty-four proprietors with the 
 same rights and title previously con- 
 veyed to the Duke of York. In 1703 
 the proprietors surrendered to Queen 
 Anne only the powers of government 
 
 in the province ; and the question was 
 whether after this surrender the pro- 
 prietors or their grantees, under 
 whom the plaintiffs claimed, retained 
 any private title in the soil covered 
 by tide waters. In answering this 
 question in the negative, and decid- 
 ing that the surrender was as broad 
 as the original grants, the majority 
 of the Court regarded the dominion 
 and property of the Crown in tide 
 waters as entrusted to the King only 
 for the common benefit of his sub- 
 jects, and held that "the land under 
 the navigable waters passed to the 
 grantee as one of the royalties inci- 
 dent to the power of government: 
 and were to be held by him in the 
 same manner and for the same pur- 
 poses that the navigable waters of 
 England, and the soils under them, 
 are held by the Crown." Of the two 
 judges who dissented, Thompson, J., 
 delivered an opinion in which he 
 maintained that, under the letters- 
 patent, the Duke of York, and after- 
 wards the proprietors of New Jersey, 
 acquired the right and title of the 
 Crown in the soil as well as the pow- 
 ers of government, and that the pro- 
 prietors "surrendered nothing but 
 the mere powers of government 
 granted by the charter, retaining un- 
 affected in any manner whatever the 
 right of private property." See New 
 Orleans v. United States, 10 Peters, 
 663; Den v. Jersey City, 15 How. 426 
 Smith v. Maryland, 18 How. 71, 74 
 75; Barney v. Keokuk, 94 U. Si 324 
 Yates v. Milwaukee, 10 Wall. 497, 504 
 Dutton v. Strong, 1 Black, 23, 31 
 McCready v. Virginia, 94 U. S. 391. 
 . 3 3How. 212, 229. 
 
§ 32.] PEOPEETY IN TIDE WATEES. 75 
 
 moH law of England as it prevailed in the colonies before the 
 Revolution, but as modified by our own institutions." In Bell 
 <v. Cough, 1 in New Jersey, Elmer, J., said: "The prerogative 
 of the Crown, so far as it gave to the king the shores of the 
 sea and of navigable rivers, rather as private property than as 
 a sovereign right for the protection of the public, was not ap- 
 plicable to a distant province; and, indeed, the exercise of it, 
 so as to require in all cases a license to prevent him from seiz- 
 ing and abating or a renting at his pleasure structures on the 
 shores or marshes reclaimed from the tide, whether there was 
 or was not an obstruction of the navigation, could not but 
 have been considered as an intolerable grievance, and, had it 
 been commonly insisted on, would not have failed prominently 
 to appear among the oppressive acts which occasioned and 
 justified the Revolution. . . . There is no evidence that 
 the jus privatum, the right of private property in the shore 
 to low-water mark, was ever asserted in the colony as a right 
 of the Crown, or that it has until recently been claimed by 
 the State; but there is, on the contrary, in my opinion, the 
 strongest evidence that this right has been abandoned to the 
 proprietors of the adjoining land from the first settlement of 
 the province, and exercised by them to the present day, so as 
 to have become a common right, and thus the common law. 
 "What was the origin of the usage, it may be difficult to say. 
 If it be conceded that it arose from a mistaken apprehension 
 of the doctrines of the English common law, or from what 
 must now be admitted to have been a mistaken construction 
 of the original grants to the first proprietors, I do not see that 
 this concession will materially influence the result. The mis- 
 take was universal, and was acted on throughout the States." 2 
 
 1 23 N. J. L. 624 661. the State has made provision by stat- 
 
 2 In Providence Steam Engine Co. ute for exempting them from the 
 
 v. Providence Steamship Co., 12 R. I. fence laws, for the very reason that 
 
 348, 356, in Rhode Island, Potter, J., they are overflowed by the tides. . . . 
 
 said: " To apply the common-law doc- The true doctrine seems to be, as the 
 
 trine strictly would require us to hold result of the decisions, that the State 
 
 that all the marshes in the State be- has the governmental control of the 
 
 long to the State; yet from the very shores and tide waters for the bene- 
 
 flrst settlement, although flowed by fit of the public, in order to protect 
 
 the tide, they have always been rec- the public rights of passage or other 
 
 ognized as private property, platted rights on the shore, and to protect 
 
 and sold as such, taxed as such, and the navigation. . . . During our 
 
76 
 
 THE LAW OF WATEKS. 
 
 [CH. II. 
 
 § 33. Same — Commerce — Admiralty jurisdiction.— The 
 
 rights of the respective States, with respect to the navigable 
 waters within their limits, were restricted by certain powers 
 of jurisdiction and control conferred upon Congress by the 
 Federal Constitution, but the property itself was not granted to 
 the general government. The powers thus ceded to the United 
 States include: First, The right of jurisdiction by its courts, 
 as defined and regulated by Congress, in. admiralty and mari- 
 time causes arising upon the high seas or upon navigable 
 waters within the limits of a State, and accessible to vessels 
 from other States ; 1 Second, The power to regulate oommerce 
 with foreign nations and among the several States. 2 The 
 powers thus conferred upon Congress are distinct, having no 
 necessary connection with each other, and being conferred in 
 
 Revolutionary War, and the distress- 
 ful times which followed it, if the 
 State had owned the fee of this val- 
 uable property, it could not have es- 
 caped a sale. Town treasurers were 
 committed to jail for the non-pay- 
 ment of nearly every State tax that 
 was ordered,' and yet no town nor 
 person ever thought of this as a prop- 
 erty which the State owned in fee, 
 or could sell to lessen taxation. To 
 hold that the State holds the fee of 
 the shore, in such a sense that it can 
 sell all the shores, would deprive 
 nearly half of the land in this small 
 State of a large portion of its value 
 derived from bounding on the shore." 
 1TJ. S. Const, art. 3, § 2; U. S. Rev. 
 Stats. §563; The Genesee Chief, 12 
 How. 443: Fretz v. Bull, 12 How. 466; 
 United States v. Bevans, 3 Wheat. 
 336; Allen v. Newberry, 21 How. 244; 
 Maguire v. Card, id. 248; Jackson v. 
 The Magnolia, 20 How. 296; Waring 
 v. Clark, 5 How. 441; New Jersey 
 Steam Nav. Co. v. Merchants' Bank, 6 
 How. 344; The Moses Taylor, 4 Wall. 
 411; The Eagle, 8 Wall. 15; Leon v. 
 Galceran, 11 Wall. 185; The Lotta- 
 wanna, 21 Wall. 558 ; Barney v. Keo- 
 kuk, 94 U. S. 324; The Commerce, 1 
 Black, 574. Artificial canals, when 
 
 channels of international or inter- 
 state commerce, are within the juris- 
 diction of the admiralty. The Bel- 
 fast, 7 Wall 624; Ex parte Boyer, 109 
 U. S. 629; Scott v. The Young Amer- 
 ica, 1 Newb. Adm. 101, 106; Malony 
 v. Milwaukee, 1 Fed. Rep. 611; The 
 E. D. McChesney, 8 Ben. 150; The B. 
 & G, 18 Fed. Rep. 543; The Oler, 3 
 Hughes? 12; The Avon, 1 Brown 
 Adm. 170. This jurisdiction includes 
 a claim for lockage in a public river. 
 Monongahela Nav. Co. v. The " Bob 
 Connell," 1 Fed. Rep. 218. It is im- 
 material whether the commerce in 
 which the vessels are engaged is in- 
 terstate, foreign or wholly internal to 
 the States. United States v. Burling- 
 ton Ferry Co., 21 Fed. Rep. 331. It 
 extends over steam ferry-boats, run- 
 ning either between localities in dif- 
 ferent States (Chesman v. Two Ferry 
 Boats, 2 Bond, 363; The Gate City, 5 
 Biss. 200), or between points in the 
 same State and county on the oppo- 
 site sides of a navigable river like the 
 Ohio. Murray v. Ferry Boat, 2 Fed. 
 Rep. 86. 
 
 2 U. S. Const, art. 1, § 8; Hallett v. 
 Novion, 14 Johns. 273; Percival v. 
 Hickey, 18 Johns. 257. 
 
§33.] 
 
 PEOPEBTY IN TIDE WATERS. 
 
 77 
 
 the constitution by separate grants. 1 Neither of them is ab- 
 solutely exclusive of State authority. In causes of admiralty 
 and maritime jurisdiction, the right of a common-law remedy 
 is expressly saved to suitors where the common law 'is com- 
 petent to give it; 2 and, if Congress has not excluded State 
 legislation, the State courts retain concurrent jurisdiction in 
 maritime cases, where, previous to the constitution, they had 
 jurisdiction of the subject-matter. 3 So the commerce clause 
 of the constitution does not make nugatory legislation by a 
 State which affects commerce and does not interfere with the 
 existing regulations of Congress upon the same subject. 4 In 
 the absence of treaty stipulations or express legislation by 
 Congress, neither of the clauses restricts the power of a State 
 to control the fisheries within its boundaries when its regula- 
 tions do not discriminate in favor of its own citizens and 
 against those of other States. 5 The admiralty jurisdiction does 
 not extend to injuries sustained on land above high-water 
 mark, 6 as where a wharf, an elevator, a marine railway, or a 
 bridge, 7 is injured by a collision with, or a fire originating upon, 
 a vessel, 3 although it includes injuries to vessels caused by col- 
 liding with bridges or other obstructions in navigable waters, 9 
 
 e Buckley's Case, 2 Leon. 182; The 
 C. Accame, 20 Fed. Rep. 642. In such 
 case the State statute may give a 
 remedy by personal action and at- 
 tachment. Johnson v. Chicago Ele- 
 vator Co., 119 U. S. 388. 
 
 t Ibid. ; The Zeta, [1892] P. 285; Bos- 
 ton v. Crowley, 38 Fed. Eep. 202; The 
 Haxby, 95 id. 170; The Queen City, 
 17 111. Ap. 203. See Chico Bridge Co. 
 v. Sacramento Transp. Co., 123 CaL 
 178. 
 
 8 The Plymouth, 3 Wall. 20; The 
 Eock Island Bridge, 6 Wall. 213 
 United States v. Winchester, 99 U. S, 
 372; The Maud Webster, 8 Ben. 547: 
 The Ottawa, 5 Am. L. T. Eep. 147 
 The Mary Stewart, 5 Hughes, 312 
 Homer Eamsdell Transp. Co. v. Com- 
 pagnie Generale Transatlantique, 63 
 Fed. Eep. 845; The Belle of the Coast, 
 66 id. 62. 
 
 9 Northwestern Union Packet Co. 
 v. Atlee, 2 Dillon, 479; 21 WalL 389; 
 
 iThe Commerce, 1 Black, 574, 579; 
 The Belfast, 7 Wall. 624. 
 
 2U. S. Eev. Stats. § 563; Edwards 
 v. Elliott, 21 Wall. 532; United States 
 v. Bevans, 3 Wheat. 336; Pelham v. 
 The B. F. Woolsey, 3 Fed. Eep. 457; 
 Terrell v. Same, 4 id. 552. 
 
 3 Eeynolds v. The Favorite, 10 Minn. 
 242; Morin v. The F. Sigel, id. 250 
 Bohannan v. Hammond, 42 Cal. 227. 
 
 * Gibbons v. Ogden, 9 Wheat. 1 
 Pound v. Turck, 95 U. S. 459, 463 
 Gilman v. Philadelphia, 3 WalL 713 
 Corfleld v. Coryell, 4 Wash. 371, 378 
 Willson v. Blackbird Creek Co., 2 Pe- 
 ters, 245; Crandall v. Nevada, 6 Wall. 
 35; Cox v. State, 3 Blackf. 197; Peo- 
 ple v. St. Louis, 10 I1L 350; lngraham 
 v. Chicago Eailroad Co., 34 Iowa, 249; 
 1 Kent Com. 439; 49 Alb. Law Journ. 
 5; 29 Am. L. Beg. N. s. 474, 722; 28 
 id. 737. 
 
 5 Com. v. Manchester, 152 Mass. 230; 
 139 U. S. 240. 
 
78 
 
 THE LAW OF WATERS. 
 
 [Oh. II. 
 
 and claims for wharfage. 1 But the power to regulate com- 
 merce extends to acts done on land above high-water mark, 
 and within the jurisdiction of a State, if such acts interfere 
 with commerce or navigation. 2 
 
 §34. Same — Power of Congress. — The right of Congress 
 to regulate commerce includes the power to regulate naviga- 
 tion upon the navigable waters of the United States, and to 
 keep such waters open and free for the purposes of intercourse 
 with foreign nations and between different States. 3 The nav- 
 igable waters of the United States are those which, whether 
 fresh or salt, form, in their ordinary condition, by themselves, 
 or by uniting with other waters, a continued highway over 
 which commerce is, or may be, carried on with other States or 
 foreign countries in the customary modes in which such com- 
 merce is conducted by water. 4 The power of Congress upon 
 
 The Mohler, 21 Wall. 230; The Lady 
 Pike, 21 Wall. 1 ; King v. American 
 Transp. Co., 1 Flippin, 1; Assante v. 
 Charleston Bridge Co., 40 Fed. Rep. 
 765; Oregon City Transp. Co. v. Co- 
 lumbia St. Bridge Co., 53 id. 549; Mil- 
 waukee v. The Curtis, 37 id. 705; The 
 Professor Morse, 23 id. 803; Johnson 
 v. Elevator Co., 105 111. 462; Fleming 
 v. Yate, 1 Rolle, 410; The Arkansas, 
 5 MoCrary, 364 (where held also that 
 the admiralty jurisdiction does not 
 include injury to a building, erected 
 on land near a navigable river, 
 caused by a vessel negligently man- 
 aged floating against it by reason of 
 a flood, and that flood Vaters are not 
 navigable within admiralty cogni- 
 zance). 
 
 1 Ex parte Easton, 95 U. S. 68; The 
 Kate Tremaine, 5 Ben. 60: Union 
 Wharf Co. v. Steamer Starin, 45 Conn. 
 585. 
 
 2 United States v. Coombs, 12 Pet. 
 72. 
 
 » Gibbons v. Ogden, 9 Wheat. 1, 193; 
 Smith v. Turner, 7 How. 392, 401; 
 Veazie v. Moor, 14 How. 568; Withers 
 v. Buckley, 20 How. 84; The Passen- 
 ger Cases, 7 How. 283; Pound v. 
 
 Turck, 95 U. S. 456; The Passaic 
 Bridges, 3 Wall. 782; County of Mo- 
 bile v. Kimball, 102 U. S. 691; Rail- 
 road Co. v. Richmond, 19 Wall. 584; 
 The Montello, 20 Wall. 430; Gilman 
 v. Philadelphia, 3 WalL 713, 724; The 
 Daniel Ball, 10 Wall. 557, 564; 1 
 Kent Com. 439; Pollard v. Hagan, 3 
 How„ 212. 229; The Bright Star, 1 
 Woolw. 266; Rogers v. Cincinnati, 5 
 McLean, 337; The Brig Wilson, 1 
 Brock. 423; The Chusan, 2 Story, 456; 
 Navigation Co. v. Dwyer, 29 Texas, 
 376. The power given to Congress to 
 regulate commerce does not, it seems, 
 include the regulation of navigation 
 with the Indians. Moor v. Veazie, 32 
 Maine, 343. 
 
 4 The Daniel Ball, 10 WalL 557; 
 The Montello, 20 Wall. 430; Gilman 
 v. Philadelphia, 3 WalL 713, 724; 
 South Carolina v. Georgia, 93 U. S. 4; 
 Mobile Co. v. KimbalL 102 U. S. 691: 
 Lord v. Steamship Co., id. 541; Miller 
 v. New York, 109 U. S. 385; Willson 
 v. Blackbird Creek Marsh Co., 2 
 Peters, 245 ; New York v. Miln, 11 id. 
 102, 149; Pennsylvania v. Wheeling 
 Bridge Co., 13 How. 518; 18 id. 421; 
 Gilman v. Philadelphia, 3 WalL 713; 
 
§34.] 
 
 PROPERTY IN TIDE WATERS. 
 
 79' 
 
 this subject does not stop at the boundaries of the States, and, 
 •when exercised, is exclusive of State authority. 1 If it author- 
 izes the obstruction of public navigable waters, its action is 
 conclusive as to the extent to which the public interests will 
 be promoted by the interference with, or termination of, the 
 navigation. 2 It possesses all powers necessary to the protec- 
 tion and improvement of the channels of intercourse; 3 the 
 right to declare what shall or shall not be deemed an illegal 
 obstruction of navigation, either before or after its erection or 
 condemnation as a nuisance, 4 and the power to close one of 
 several channels in a navigable river, in order to make the 
 others more useful for navigation. 5 The methods approved by 
 Congress for the improvement of a harbor prevail, in case of 
 conflict with State legislation upon the same subject, 6 and that 
 body may lawfully empower a private corporation to occupy 
 the internal waters of a State, and appropriate the soil beneath 
 by the construction of a bridge over them, for purposes of 
 interstate commerce, without the consent of the State and 
 against its protest. 7 The commercial power of Congress over 
 
 Silliman v. Hudson River Bridge Co., 
 3 Wall. 403: 1 Black, 583; 4 Blatch. 
 74, 395; Hinson v. Lott, 8 WalL 148; 
 United States v. Duluth, 1 Dillon, 469; 
 Pound v. Turck, 95 U. S. 459; Cannon 
 v. iNew Orleans, 20 WalL 577; Hen- 
 derson v. New York, 92 U. _S. 259; 
 Crandall v. Nevada, 6 Wall. 35; 
 United States v. Holliday, 3 Wall. 
 407; 20 A. G. Op. 101; Morse v. Home 
 Ins. Co., 30 Wis. 496. 
 
 iSinnott v. Davenport, 22 How. 
 327; Sherlock v. Ailing, 93 U. S. 99; 
 Halderman v. Beckwith, 4 McLean, 
 286. ' 
 
 2 Miller v. Mayor, 13 Blatch. 469; 
 People v. Kelly, 76 N. Y. 475. 
 
 3 South Carolina v. Georgia, 93 U. S. 
 4; Pensacola Tel. Co. v. Western 
 Union Tel. Co., 96 U. S. 1; Works v. 
 Junction R. Co., 5 McLean, 435; 
 United States v. Railroad Bridge Co., 
 6 McLean, 517. 
 
 4 Pennsylvania v. Wheeling Bridge 
 Co., 13 How. 518; 18 How. 421; The 
 Clinton Bridge, 10 Wall. 454; South 
 Carolina v. Georgia, 93 U. S. 4; Gib- 
 
 bons v. Ogden, 9 Wheat. 196; Gilman 
 v. Philadelphia, 3 Wall. 713; The Pas- 
 senger Cases, 7 How. 283, 394; Gibson 
 v. United States, 166 U. S. 269; United 
 States v. North Bloomfield G. M. Co., 
 53 Fed. Rep. 625; Slid. 243; People v. 
 Brooks, 4 Denio, 469. When Con- 
 gress legislates, it suspends, but does 
 not necessarily repeal, the State law. 
 Sturgis v. Spofford, 45 N. Y. 446; 52 
 Barb. 436; Henderson v. Spofford, 59 
 N. Y. 131 ; Ex parte McNeil, 13 WalL 
 236; Inman S. Co. v. Tinker, 94 U. S. 
 238, 244; Sherlock v. Ailing, 93 U. S. 
 99; Willamette Iron Bridge Co. v. 
 Hatch, 125 U. S. 1. 
 
 5 Ibid. ; South Carolina v. Georgia, 
 94 U. S. 4. 
 
 6 Wisconsin v. Duluth, 96 U. S. 379; 
 2 Dillon, 406; United States v. Du- 
 luth, 1 Dillon, 469; South Carolina v. 
 Georgia, 93 U. S. 4; post, ch. 4. 
 
 7 Decker v. Baltimore R. Co., 30 
 Fed. Rep. 733; Penn. Ry. Co. v. Balti- 
 more Ry. Co., 37 id. 139; post, §§ 139, 
 242. 
 
80 THE LAW OF WATEKS. [Ch. II. 
 
 the Savannah River is not restricted by the compact between 
 the States of South Carolina and Georgia prior to the adop- 
 tion of the Federal Constitution, which provided that the 
 northern branch of the river should be the boundary between 
 them, and that the navigation along a specified channel of the 
 river should be forever free to the citizens of both States, and 
 exempt from interruption by either State. 1 So the act of 
 Congress of June 16, 1886, which authorized a railroad bridge 
 across Staten Island Sound, is within the power of Congress to 
 regulate commerce, and is valid, although it makes no provision 
 for compensation to the State of New Jersey for the taking 
 of land under water, which was vested in the State, not for 
 emolument, but for public use, and although a statute of that 
 State prohibited the erection, without its consent, of bridges 
 over navigable waters lying between it and other States. 2 
 
 § 35. Same — Same — Power of the States. — Under the 
 Constitution of the United States a State has the right, if its 
 legislation does not conflict with the action of Congress upon 
 the same subject, to authorize bridges and dams across the 
 navigable waters within its limits ; 3 to license wharves, piers 
 and docks intruding upon such waters; 4 to establish harbor 
 
 1 South Carolina v. Georgia, 93 TJ. S. s. C. 4 Fed. Rep. 172 ; Silliman v. Hud- 
 4. An agreement between Maryland son River Bridge Co., 2 Wall. 403; 1 
 and Pennsylvania to preserve the Black, 582; 4 Blatch. 74, 395; Albany 
 free navigation of the Susquehanna Bridge Case, 2WalL 403; The Passaic 
 River is not infringed by a statute of Bridges, 3 "WalL 782; Griffin v. Gibb, 
 one of these States prohibiting the 1 Mo AIL 212; Card well v. American 
 floating of loose logs, inasmuch as Bridge Co., 113 U. S. 205; Muskingum 
 this makes the navigation safe and County Com'rs v. Board of Public 
 convenient, and prevents it from Works, 39 Ohio St. 628; Com. v. 
 being monopolized by individuals. Breed, 4 Pick. 460; Silliman v. Troy 
 Craig v. Kline, 65 Penn. St. 399. Bridge Co., 11 Blatch. 274; Jolly v. 
 
 2 Stockton v. Baltimore E. Co., 32 Terre Haute Bridge Co., 6 McLean, 
 Fed. Rep. 9; Luxton v. North River 237; United States v. New Bedford 
 Bridge Co., 153 U. S. 525. Bridge, 1 Wood. & M 401; People v. 
 
 3 Willson v. Blackbird Creek Marsh Rensselear R Co., 15 Wend. 113; 
 Co., 2 Peters, 245; Gilman v. Phila- Savannahs. Georgia, 4 Ga. 26; Green 
 delphia, 3 Wall. 713; Crandall v. Ne- & B. R Nav. Co. v. Chesapeake R 
 vada, 6 Wall. 35; Pound v. Turck, 95 Co., 88 Ky. 1; Bailey v. Philadelphia 
 TJ. S. 459; Pennsylvania v. Wheeling R Co., 4 Harr. (Del.) 389; Flanagan 
 Bridge Co., 13 How. 518; 18 How. v. Philadelphia, 42 Penn. St. 219. 
 421; The Clinton Bridge, 10 Wall. * Post, ch. 4; Savannah v. State, 4 
 454; Northern Pacific R Co. v. Ga. 26; Delaware Canal Co. v. Law- 
 Barnesville R Co., 2 McCrary, 224; rence, 2 Hun, 163; Robertson v. Com., 
 
§35.] 
 
 PEOPEETY IN TIDE WATERS. 
 
 81 
 
 lines to which wharves may be extended ; x to prescribe the 
 places and manner in which vessels may lie in a harbor, what 
 lights they are to carry at night, 2 or what course they shall 
 pursue in navigating a river ; 3 to pass reasonable quarantine 
 and inspection 4 laws, and pilotage, 5 or port regulations ; 6 to 
 
 101 Ky. 285; United States v. Bain, 3 
 Hughes, 593; Crescent City Wharf 
 Co. v. Simpson, 77 Cal. 286. 
 
 iPost, oh. 4. 
 
 2 Cooley v. Board of .Wardens, 12 
 How. 299; The New York v. Eea, 18 
 How. 223; The James Gray v. The 
 John Fraser, 21 How. 184; Sinnot v. 
 Davenport, 22 How. 227; Steamship 
 Co. v. Joliffe, 2 Wall. 450; Ex parte 
 McNeil, 13 Wall. 236; Peete v. Mor- 
 gan, 19 Wall. 589; Railroad Co. v. 
 Husen, 95 U. S. 465 ; Foster v. Master, 
 94 U. S. 246; Mobile Co. v. Kimball, 
 102 U. S. 691; Osborne v. Mobile, 16 
 Wall. 479; Railroad Co. v. Fuller, 17 
 Wall. 560; Leloup v. Mobile, 127 U. S. 
 640; The America, 1 Lowell, 177; 
 Banta v. McNeil, 5 Ben. 74; Sproul v. 
 Hemingway, 14 Pick. 1; Neilson v. 
 Garza, 2 Woods, 287; Higgins v. 
 Lime, 130 Mass. 1; The California, 1 
 Sawyer, 463; The Panama, Deady, 
 27; Master v. Prats, 10 Rob. (La.) 459; 
 Portwardens v. Ship M. J. Ward, 14 
 La. Ann. 289; Portwardens v. Ship 
 C. Morgan, id. 595; People v. Sperry, 
 50 Barb. 170; Stilwell v. Raynor, 1 
 Daly, 47; Hunt v. Card, 14 Pick. 135. 
 An act authorizing harbor masters to 
 regulate and station vessels, and im- 
 posing a penalty for violation of their 
 orders, is a valid police regulation. 
 Vanderbilt v. Adams, 7 Co wen, 349; 
 Commissioners v. Clark, 33 N. Y. 251 ; 
 Patterson v. Kentucky, 97 U. S. 501; 
 Simpson's Appeal, 77 Penn. St. 270. 
 See Gardner v. Whitford, 4 C. B. n. s. 
 665. So of city by-laws for same 
 purpose. Ex parte Mowry, 3 Allen 
 
 (N. B.), 276. So is an act of the State 
 legislature regulating the speed of 
 steamboats while passing the wharves 
 of a city. People v. Jenkins, 1 Hill 
 (N. Y), 469. And a State statute de- 
 fining what lights shall be carried on 
 its internal waters may continue in 
 force, notwithstanding subsequent 
 legislation by Congress on the same 
 subject. Fitch v. Livingston, 4 Sand. 
 (N. Y.) 492. The pilot laws of a State 
 may fix the compensation of pilots 
 beyond the State boundaries. The 
 Nevada, 7 Ben. 386; Horton v. Smith, 
 6 Ben. 264; The Traveller, id. 280; 
 The Whistler, 8 Sawyer, 232; Wilson 
 v. Mills, 10 Abb. Pr. s. s. 143; 4 Daly, 
 549. The exercise by the States of 
 the power to regulate pilotage does 
 not withdraw it from the admiralty 
 jurisdiction of the district courts. 
 Cooley v. Board of Wardens, 12 How. 
 299; Ex parte McNeil, 13 Wall. 236; 
 The Lottawanna, 21 Wall. 558, 581. 
 A State may legislate against incit- 
 ing seamen to desert. Ex parte 
 Young (Oregon), 59 Pac. Rep. 707. 
 
 3 Aldrich v. The W. H. Beaman, 45 
 Fed. Rep. 125, holding valid the New 
 York law providing that vessels shall 
 navigate the middle of the East 
 River. 
 
 4 Minneapolis, etc. Ry. Co. v. Mil- 
 ner, 57 Fed. Rep. 276; Hospes v. 
 O'Brien, 24 id. 145 (for scaling logs) ; 
 Compagnie Francaise v. State Board 
 of Health, 51 La. Ann. 645. 
 
 5 Ibid. ; Spraigue v. Thompson, 118 
 U. S. 90; Morgan's S. Co. v. La. Board 
 of Health, id. 455; 36 La. Ann. 666; 
 
 6 Ibid.; The James Gray v. The Clyde S. S. Co. v. Charleston, 76 id. 
 
 John Frazier, 21 How. 184; Green v. 46; Union Transp. Co. v. Bassett, 118 
 
 The Steamer Helen, 1 Fed. Rep. 916; Cal. 604. 
 6 
 
82 THE LAW OF WATEKS. [Ch. II. 
 
 regulate harbor beacons, buoys, salvage, 1 and similar matters 
 of a local and limited nature; 2 to improve the navigability of 
 its waters, and to authorize the collection of tolls in consider- 
 ation of such improvements. 3 The power of Congress over- 
 interstate commerce is exclusive when the matter is not merely 
 local, but is national in character, or admits of a uniform sys- 
 tem or plan of regulation. 4 Either of two States, bordering 
 upon navigable waters leading to the sea, may license pilots, 
 and enact pilotage regulations, but cannot exclude pilots- 
 'licensed by the other State, even from those parts of such 
 waters and those ports which are within its own territorial 
 limits. 5 So, also, either of two States may appropriate money 
 for the improvement of a levee on the further side of a bound- 
 ary river between them, such appropriation being for a public 
 use, and not a compact with another State. 6 , The improve- 
 ment, by the States, of the navigable waters within their re- 
 spective limits, will not be permitted to impair their free 
 navigation under the laws of Congress; but the inaction of 
 Congress in such matters amounts to an' assent to the exercise 
 of State authority so long as such inaction continues. 7 The- 
 State, or those acting under its authority, cannot lay tonnage 
 duties, 8 including licenses at a specified rate per ton from ves- 
 
 State v. Penny, 19 a C. 218. As to u Smallhouse, 8 Bush, 447; Kellogg v~ 
 
 the extraterritorial effect of the pilot Union Co., 12 Conn. 7; Benjamin v.. 
 
 laws of coterminous States, see The Manistee River Impr. Co., 42 Mich. 
 
 Clymene, 12 Fed. Rep. 346; The Ari- 628; Nelson v. Cheboygan Slack- 
 
 zona, 14 id. 174; The William Law, id. water Nav. Co., 44 Mich. 7. 
 
 792; The Charles O. Sparks, 16 id. 480; * Brown v. Houston, 114 U. S. 622. 
 
 The Alcade, 30 id. 133; The Abercorn, » The Clymene, 9 Fed. Rep. 164. 
 
 26 id. 877; 28 id. 384; The South Cam- « Fisher v. Steele, 39 La. Ann. 447.. 
 
 bria, 27 id. 525; Neil v. Wilson, 14 See §§ 247, 248, note, post 
 
 Oregon, 410. 'Mobile v. Kimball, 102 U. S. 691. 
 
 1 Hunter v. St. Louis Trans. Co., 25 8 Inman Steamship Co. v. Tinker, 94 
 Mo. App. 660. U. S. 238; Transp. Co. v. Wheeling, 
 
 2 Ouachita Packet Co. v. Aiken, 4 99 IT. S. 273; Steamship Co. v. Port- 
 Woods, 208; 121 U. S. 444 wardens, 6 Wall. 31; Crandall v. Ne- 
 
 3 Wisconsin River Impr. Co. v. Man- vada, 6 Wall. 35; State Tonnage Tax: 
 son, 43 Wis. 255; Chicago v. McGinn, Cases, 12 Wall. 204; Peete v. Morgan,. 
 51 111. 266, 273; Cannon v. New Or- 19 Wall. 581; Cannon v. New Orleans,, 
 leans, 20 Wall. 577; Palmer v. Cuya- 20 Wall. 577; Cincinnati Packet Co~ 
 hoga Co., 3 McLean, 226; Carondelet v. Catlettsburg. 105 U. S. 559; Hackley 
 Canal Co. v. Parker, 29 La. Ann. v. Geraghty, 34 N. J. L. 332; John 
 430; Monongahela Bridge Co. v. Kyle S. Co. v. New Orleans, 23 Int. 
 Kirk, 46 Penn. St. 112; McReynolds Rev. Rec. 19; Harbor Com'rs v. Pash- 
 
35.] 
 
 PE0PEETY IN TIDE WATEKS. 
 
 83 
 
 sels engaged in the oyster trade ; ' taxes upon the transporta- 
 tion 2 or inspection 3 of passengers ; or imposts or duties, with- 
 out the consent of Congress, which may itself impose these 
 burdens, 4 upon exports and imports ; 5 nor can it restrict navi- 
 gation between the States under a provision of its Constitu- 
 tion requiring foreign corporations to have a known place of 
 business, and an authorized agent to receive service of process, 
 which provision, as applied to a foreign packet company, is 
 void. 6 Wharfage charges, imposed on vessels as an equivalent 
 for the benefits and facilities furnished to them in mooring 
 and landing cargoes, are 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; 7 
 
 ley, 19 S. C. 315; Com. v. Erie Rail- 
 way, 1 Pearson (Pa.), 345; People v. 
 Roberts, 93 Cal. 659; New Orleans v. 
 Eclipse Tow-boat Co., 33 La. Ann. 647. 
 
 1 Booth v. Lloyd, 33 Fed. Rep. 593; 
 Ex parte Insley, id. 680; Dize v. 
 Lloyd, 36 id. 651. A municipal ordi- 
 nance authorizing a license tax held 
 void as being a regulation of com- 
 merce. Moran v. United States, 113 
 U. S. 69. 
 
 2 Smith v. Turner, 7 How. 283; 4 
 Denio, 475, n. ; New York v. Miln. 11 
 Pet. 102; Groves v. Slaughter, 15 Pet. 
 449; Railroad Co. v. Maryland, 21 
 Wall. 456; Chy Lung v. Freeman, 92 
 IT. S. 375; Henderson v. New York, 
 92 U. S. 259; Norris v. Boston, 7 How. 
 283; 4 Met. 282. 
 
 3 People v. Compagnie Generale 
 Transatlantique, 107 U. S. 59; 20 
 Blatch. 296; People v. Pacific Mail S. 
 Co., 8 Sawyer, 640; Edye v. Robert- 
 son, 21 Blatch. 460; Sweeny v. Otis, 
 37 La. Ann. 520. 
 
 * U. S. Const, art. I, § 10. Congress 
 may regulate commerce with foreign 
 nations by levying duties upon ves- 
 sels bringing immigrants. The Head- 
 Money Cases, 112 U. S. 580; 18 Fed. 
 Rep. 135. 
 
 8 Brown v. Maryland, 12 Wheat. 
 419; The License Cases, 5 How. 504; 
 Nathan v. Louisiana, 8 How. 73; 
 
 Mager v. Grima, id. 490; Aguirre v. 
 Maxwell, 3 Blatch. 140; Clarke v. 
 Clarke, 3 Woods, 408. 
 
 6 New Orleans Packet Co. v. James, 
 32 Fed. Rep. 21. 
 
 7 Transp. Co. v. Parkersburg, 107 
 U. S. 691 ; Packet Co. v. Keokuk, 95 
 U. S. 80; Northwestern Union Packet 
 Co. v. St. Louis, 4 Dillon, 10, 18, n.; 
 The Ann Ryan, 7 Ben. 20; Keokuk 
 v. Keokuk Northern Line Packet Co., 
 45 Iowa, 196; Worsley v. Second Mu- 
 nicipality, 9 Rob. (La.) 324; Schwartz 
 v. Flatboats, 14 La. Ann. 243; Eller- 
 man v. McMains, 30 id. 190; First 
 Municipality v. Pease, 2 id. 538; Can- 
 non v. New Orleans, 20 Wall. 577; 27 
 La. Ann. 16; Leathers v. Aiken, 9 
 Fed. Rep. 679; Sterrett v. Houston, 
 14 Texas, 153. See Northwestern Co. 
 v. St. Paul. 3 Dill. 454; post, § 143. 
 Unreasonable and exorbitant wharf- 
 age is not the laying of a duty on 
 tonnage. Ouachita Packet Co. v. 
 Aiken. 121 U. S. 444; 4 Woods, 208; 
 11 Fed. Rep. 662; s. c. 16 id. 890 and 
 note. Vessels engaged in domestic 
 commerce are under the control of 
 the State only when within the ma- 
 rine league ; and, on passing that I ine . 
 come under the exclusive control of 
 Congress. Pacific Coast S. Co. v. Rail- 
 road Com'rs, 18 Fed. Rep. 10; Lord v. 
 Steamship Co., 102 U. S. 541. 
 
Si THE LAW OF WATERS. [Oh. II. 
 
 but one State cannot, under the pretense of exacting wharfage 
 dues, build up its domestic commerce by means of oppressive 
 burdens upon the industry and business of other States. 1 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 company owning them has its principal office, 2 and 
 may tax the gross receipts of such boats. 3 So, it may provide 
 a reuiedjr in personam for injuries caused by the negligence of 
 a common carrier upon the bays and rivers within its territo- 
 rial 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. 4 It may 
 regulate the manner of rafting and driving logs down its 
 rivers, 8 and may incorporate companies, with power to con- 
 vert unnavigable into navigable streams, and to levy tolls on 
 vessels or logs passing over them, or to improve the naviga- 
 tion of streams partially navigable ; 6 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. 7 It 
 «annot grant exclusive rights of navigation upon waters which 
 are channels of intercourse between different States ; 8 but it 
 
 ilbid.; Guy v. Baltimore, 100 U. S. 4 Nev. 551: Mason v. Boom Co., 3 
 
 434; The John M. Welch, 18 Blatch. Wall. Jr. 352. In Utah, see Laws of 
 
 54; Webb v. Dunn, 18 Fla. 721. An 1890, ch. 28, p. 21. 
 
 attempted imposition of wharfage by 6 Carondelet Canal Co. v. Parker, 29 
 
 the State before' it has constructed or La. Ann. 430; Duluth Lumber Co. v. 
 
 acquired the wharf is a duty on ton- St. Louis Boom Co., 5 McCrary, 382; 
 
 nage in violation of the Federal Con- Com'rs v. Green Nav. Co., 79 Ky. 73; 
 
 stitution. People v. Pacific Polling post, ch. 4. 
 
 Mills Co., 60 Cal. 323. ' Ibid. ; Carson R L. Co. v. Patter- 
 
 2 Transp. Co. v. Wheeling, 99 IT. S. son, 33 Cal. 334. SeeConley v. Chedic, 
 
 273; The North Cape, 6 Biss. 505; 7 Nev. 336. 
 
 People v. Com'rs, 48 Barb. 157. s Gibbons v. Ogden, 9 Wheat 1, re- 
 
 3 Philadelphia S. Co. v. Cora, 104 versing s. a, 17 Johns. 488; and over- 
 Penn. St. 109. ruling Livingston v. Van Ingen, 9 
 
 4 Steamboat Co. v. Chase, 16 WalL Johns. 507; North River S. Co. v. 
 522; 9 R. L 419; Sherlock v. Ailing, Livingston, 3 Cowen, 713; Hopk.Ch. 
 93 U. S. 99; 44 Ind. 184 149; Ogden v. Gibbons, 4 Johns. Ch. 
 
 5 Scott v. Wilson, 3 N. H. 321; 150,174; United States v. Morrison, 
 Craig v. Kline, 65 Penn. St. 399; Har- 4 New York Leg. Obs. 333; United 
 rigan v. Connecticut River Lumber States v. Jackson, id. 450. Either gov- 
 Co., 129 Mass. 580; Treat v. Lord, 42 ernment has power to grant a right 
 Maine, 552; Mandlebaum v. Russell, of ferry on waters separating Mexico 
 
36.] 
 
 PROPERTY IN TIDE WATERS. 
 
 85 
 
 may grant such rights upon lakes which are wholly within its 
 limits, and aot accessible from other States, and upon those 
 parts of rivers from which, by reason of rocks 01^ other obstruc- 
 tions, interstate communication is excluded. 1 The power to 
 establish and regulate ferries is subject to the control of the 
 States, and not of the general government ; 2 and, in the case 
 of boundary rivers, like the Mississippi, a ferry franchise con- 
 ferred by a single State is valid without the concurrent sanc- 
 tion either of Congress or of the State upon the opposite side 
 of the river, or the right of landing beyond the limits of the 
 State by which the grant is made. 3 
 
 § 36. Same — State grants. — The State may grant to in- 
 dividuals or corporations the soil of public navigable waters * 
 
 or Canada and the United States. 
 Tugwell v. Eagle Pass Ferry Co., 74 
 Texas, 480; Kirby v. Lewis, 6 Q. B. 
 (Can.) 207; Reg. v. Davenport, 16 id. 
 411. 
 
 ^eazie v. Moor, 14 How. 568; 
 Withers v. Buckley, 20 How. 84; 
 Moore v. American Transp. 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. 
 
 2 Conway v. Taylor, 1 Black, 603 
 Gibbons v. Ogden, 9 Wheat. 1, 214 
 Fanning v. Gregoire, 16 How. 534 
 Hall v. De Cuir, 95 U. S. 485, 488 
 Elizabethport Ferry Co. v. United 
 States, 5 Blatoh. 198; United States 
 v. The James Morrison, 1 Newb. 241, 
 257; United States v. The William 
 Pope, id. 256; People v. Babcock, 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. v. East St. Louis, 102 
 I1L 560; 107 U. S. 365; St. Louis v. 
 Waterloo Ferry Co., 14 Mo. App. 216; 
 Chilvers v. People, 11 Mich. 43; Jones 
 v. Fanning, Morris (Iowa), 348; Bur- 
 lington Ferry Co. v. Davis, 48 Iowa, 
 
 133; Alb. L. J., June 16, 1883; Water- 
 bury v. Laredo, 68 Texas, 565. 
 
 3 Ibid.; Marshall v. Grimes, 41 Miss. 
 27; St. Louis v. Waterloo-Carondelet 
 Turnpike Co., 14 Mo. App. 216; Mad- 
 ison v. Abbott, 118 Ind. 337. Trans- 
 portation for hire by a steam ferry 
 across the Delaware river by a cor- 
 poration of New Jersey is interstate 
 commerce, and not subject to exac- 
 tions in Pennsylvania. Gloucester 
 Ferry Co. v. Pennsylvania, 114 U. S. 
 196. As to the right of ferriage over 
 a river forming a national boundary, 
 and its suspension during war be- 
 tween 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 counties bounding 
 on a river may license a ferry across 
 it. Jones v. Johnson, 2 Ala. 746. A 
 covenant not to run steamboats in 
 two States and in any of the navi- 
 gable waters of a Territory is void,, 
 being against public policy. Oregon 
 Steam Nav. Co. v. Hale, 1 Wash. Ter. 
 N. s. 283. 
 
 <Com. v.Alger, 7 Cush. 53; Arnold 
 v. Mundy, 1 Halst. 1; Bell v. Gough, 
 23 N. J. L. 624; Att. Gen. v. Delaware 
 ..Railroad Co., 27 N. J. Eq. 1, 631 ; Hud- 
 son Tunnel Co. v. Att. Gen., id. 176, 
 
86 
 
 THE LAW OF WATEES. 
 
 [Ch. II. 
 
 or exclusive rights of fishery in thera. 1 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 ap- 
 pears by express words or necessary implication. 2 "When the 
 legislature 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. 3 A statute which merely 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. 4 A confirmation by a 
 
 573; State v. Bayonne (N. J. L.), 42 
 Atl. R. 433; Mullen v. Penobscot L. 
 D. Co., 90 Maine, 555; Oakland v. 
 Oakland W. F. Co., 118 Cal. 160, 249; 
 Galveston v. Menard, 23 Texas, 349; 
 ante, § 31; People v. Thompson, 30 
 Hun, 457. 
 
 ilbicl; post, ch. 4 
 
 2 Ante, § 31 ; Royal Fishery of the 
 Banne, Davies, 149; Somerset v. Fog- 
 well, 5 B. & C. 875; The Rebekah, 1 
 Rob. Adm. 227, 230; Feather v. The 
 Queen, 6 B. & S. 257; Att. Gen. v. 
 Farmer, Sir T. Rayrn. 241; 2 Lev. 171; 
 Rem fry v. Surveyor-General of Na- 
 tal, (1896) A. C. 558; Bro. Abr. Pat- 
 ent, pi. 62; Charles River Bridge v. 
 Warren Bridge, 11 Peters, 420, 544, 
 557; Leavenworth R. Co. v. United 
 States, 92 U. S. 733; Minturn v. Larue, 
 23 How. 435; 1 McAll. 370; Rice v. 
 Railroad Co., 1 Black, 358; Cleave- 
 land v. Norton, 6 Cush. 380; Boston 
 v. Richardson, 13 Allen, 146; 105 
 Mass. 351 ; Com'rs v. Holyoke Water 
 Power Co., 104 Mass. 446, 449; People 
 v. New York Ferry Co., 68 N. Y. 71; 
 People v. Canal Appraisers, 33 N. Y. 
 461; Clark v. ' Reeves, 3 Gaines, 293; 
 Lansing v. Smith, 4 Wend. 9; 8 
 Cowen, 46 ; Morris Canal Co. v. Cen- 
 tral R. Co., 16 N. J. L. 419; Hart- 
 ford Bridge Co. v. Union Ferry Co., 
 
 29 Conn. 210; Thompson v. River 
 Co., 58 N. H. 108; West Branch Canal 
 Co. v. Elmira R. Co., 55 Penn.,St. 180; 
 McManus v. Carmichael, 3 Iowa, 1; 
 La Plaisance Bay Co. v. Monroe, 
 Walk. Ch. 155; Haight v. Keokuk, 4 
 Iowa, 200; North- Western Fertiliz- 
 ing Co. v. Hyde Park, 70 I1L 634; 
 Mills v. St Clair County, 2 Gilman, 
 198; 8 How. 569; Vansickleu Haines, 
 7 Nev. 249. See Hyman v. Reed, 13 
 Cal. 444. So a grant from the sover- 
 eign of the right to take toll is con- 
 strued against the grantee. Stour- 
 bridge Canal v. 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. 
 
 3 Ibid. ; Kimball v. Macpherson, 46 
 Cal. 103. See Trustees v. Betts, 47 N. 
 Y. S. 697. 
 
 4 Palmer v. Hicks, 6 Johns. 133 
 People v. Schermerhorn, 19 Barb. 540 
 Brookhaven v. Smith, 118 N. Y. 634 
 Roe v. Strong, 119 id. 316; East Hamp- 
 ton v. Vail, 151 N. Y. 463; Sage v. New 
 York, 154 N. Y. 61; Breen v. Locke, 
 46 Hun, 291; Ruge v. Apalachicola 
 Oyster Co., 25 Fla. 656; San Diego v. 
 Granniss, 77 Cal. 511; Bechtel v. 
 Edge water, 45 Hun, 240; Bassett v. 
 Franklin, 15 R. L 572; Middletown 
 
§30.] 
 
 PEOPEETY IN TIDE WATEES. 
 
 87 
 
 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 be- 
 tween high and low-water mark. 1 So, a general authority 
 conferred by the legislature to lay out highways will not au- 
 thorize the laying out of a highway over navigable waters. 2 
 A conveyance by the State of all its right, title, and interest 
 in and to the bed of a navigable river, does not pass any ex- 
 clusive right of wharfage, 3 or authorize a destruction or exclu- 
 sive use of the navigation ; 4 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. 5 So, a charter to a mill corporation, 
 
 v. Newport Hospital, 16 R. I. 319. The 
 first of these oases was an action 
 of debt for a penalty prescribed by 
 the town of Flushing against any per- 
 son raking clams within its bound- 
 aries, and the regulation prescrib- 
 ing 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 
 *he islands southward to the main 
 channel, was merely for the purpose 
 of jurisdiction and no evidence 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 wa- 
 ters of the Hudson River is within the 
 boundaries of some town, for the pur- 
 pose of civil and criminal jurisdic- 
 tion; but it does not follow that the 
 lands under the water belong to the 
 town situated on the river." See 
 Robins v. Ackerly, 91 N. Y. 98. In 
 Corn. v. Roxbury, 9 Gray, 451, 594, 
 Shaw, C. J., said: " Counties are com- 
 posed of towns. And for many pur- 
 poses, 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 
 considered as having a co-extensive 
 jurisdiction; but this has no bearing 
 upon the question of property. An 
 act of incorporation, therefore, with- 
 out words of grant of the soil, would 
 vest no part of the property of the 
 government in such town. Nor was 
 the purpose of the organization Of 
 such a nature as would require of the 
 government any portion of the pub- 
 lic right vested in them for public 
 use and benefit; therefore, no portion 
 of the jus publicum will be presumed 
 to have been granted without ex- 
 press words." See Lowndes v. Hunt- 
 ington, 153 U. S. 1; Lawrence v. 
 Hempstead, 155 N. Y. 297; People v. 
 Jessup, 160 N. Y. 249, reversing 51 
 N. Y. S. 228; Trustees v. Loundes, 40 
 Fed. Rep. 625; People v. Saxton, 44 
 N. Y. S. 211. 
 
 'East Haven v. Hemingway, 7 
 Conn. 186; Middletown v. Sage, 8 
 Conn. 221 ; Com. v. Roxbury, 9 Gray, 
 493, 494. 
 
 2 Post, ch. 4 
 
 3 Turner v. People's Ferry Co., 21 
 Fed. Rep. 90. 
 
 4 Treat v. Lord, 42 Maine, 552; Peo- 
 ple v. Williams, 64 CaL 49$. ■ 
 
 5 Stevens v. Erie Ry. Co., 21 N. J. Eq. 
 
88 THE LAW OF WATERS. [Cb. II. 
 
 authorizing it to exclude tide water from flats belonging to the 
 State, and to use them as a basin for the purpose of mill power, 
 does not release the title of the State to the flats. 1 State laws 
 providing for the entry and sale of public lands, or for the sale 
 of swamp and overflowed lands, do not extend to the soil be- 
 neath navigable waters, and no right to obstruct the naviga- 
 tion passes to the purchaser under such laws. 2 If lands are 
 patented by a State " according to the official plat " in its land- 
 office, and the plat designates them as tidal overflow, it cannot 
 be objected that they were not conveyed as overflowed lands. 3 
 In Attorney General v. Hanmer, 4 letters patent of the Crown, 
 as lord of the manor of Englefield, granting " all those coal 
 mines found or to be found within the commons, waste grounds, 
 or marshes within the said lordship of Englefield," with a pro- 
 viso that the grant should be construed strictly against the 
 Crown, and most strictly and beneficially for the grantees, was 
 held to pass coal lying under the foreshore of the estuary of 
 the Eiver Dee, between high and low-water marks, and form- 
 ing part of the manor of Englefield. 
 
 § 37. Same — Prescription against Che State. — Individu- 
 als may also acquire by prescription, against the Crown or the 
 
 259; Stevens v. Paterson E. Co., 34 Penn. St. 214; "Wainwright v. McCul- 
 
 N. J. L. 532. lough, 63 Penn. St. 66; Allegheny 
 
 i Com. v. Roxbury, 9 Gray, 451. City v. Moorehead, 80 Penn. St. 118. 
 
 2 Chapman v. Hoskins, 2 Md. Ch. In People v. Morrill, 26 CaL 336, land 
 485; People v. Morrill, 26 Cal. 336; containing asphaltum between high 
 Taylor v. Underbill, 40 Cal. 471 ; and low-water mark on the Pacific 
 Upham v. Hosking, 62 Cal. 250, 258'; Ocean, was treated as open to loca- 
 Chandler v. Calumet & H. Co., 36 tion of mining claims under the gen- 
 Fed. Rep. 665; Tatum v. Sawyer, 2 eral law the same as other lands of 
 Hawks (N. C), 226; Smith v. Ingram, the State. See, also, Moreu Massine, 
 7 Ired. 175; Freytag v. Powell, 1 37 Cal. 432. The United States act 
 Whart. 536; Barton v. Bouvier, 1 of September 28, 1850, was a present 
 Phila. 523; Brandt v. McKeever, 18 grant to the several States of the 
 Penn. St. 70; Barclay R. Co. v. Ing- swamp and overflowed lands within 
 ham, 36 id. 194; Storer v. Jack, 60 id. their limits remaining unsold, sub- 
 339 ; Allegheny City v. Moorehead, ject to a later determination of what 
 80 id. 118; Philadelphia v. Scott, 81 lands were then of ±hat description, 
 id. 80; Hinmanu. Warren, 6 Oregon, Tubbs v. Wilhoit, 138 U. S. 134; 
 408; Norfolk City v. Cooke, 27 Gratt. "Wright v. Roseberry, 121 U. S. 488; 
 430. If the stream of a public navi- Gormley v. Uthe, 116 111. 643; Ster- 
 gable river is artificially diverted ling v. "Jackson, 69 Mich. 488; San 
 from its channel, the land reclaimed Francisco v. Le Roy, 138 U. S. 656. 
 cannot be appropriated by warrant 3 Cragin v. Powell, 128 U. S. 691. 
 and survey. Poor v. McClure, 77 4 27 L. J. Ch. 837. 
 
§37.] 
 
 PEOPEETY IN TIDE "WATEES. 
 
 State, the right to the soil of public waters ; 1 and by the 
 weight of authority, they may gain, in --the same way, exclu- 
 sive rights of fishery in them. 2 When the shores or flats of 
 tide waters have become private property, the title thereto 
 may be lost by disseisin, 3 and a title to the upland, acquired by 
 long-continued possession, carries the adjoining flats as appur- 
 tenant 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. 4 A disseisin of flats is made by a con- 
 tinued, exclusive, and adverse occupation thereof for the stat- 
 utory period, usually twenty years ; as by enclosing them with 
 a boom, which rests thereon, when the tide is out, under a 
 claim pf title to the flats, 5 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 ; 6 by filling them up and using them for 
 a highway, 7 or erecting a wharf thereon and using the adjoin- 
 
 1 Hale, De Jure Maris, ch. 5; Har- 
 grave's Law Tracts, 18; Nichols v. 
 Boston, 98 Mass. 39; Boston v. Rich- 
 ardson, 105 Mass. 41; Kean v. Stet- 
 son, 5 Pick. 492, 495; Leffingwell v. 
 Warren, 2 Black, 599; Tracy v. Nor- 
 wich R. Co., 39 Conn. 382; Seeley v. 
 Brush, 5 Conn. 419 ; Church v. Meeker, 
 34 Conn. 421 ; Chapman v. Kimball, 
 9 Conn. 41 ; Middleton v. Sage, 8 Conn. 
 228; Palmer v. Hicks, 6 Johns. 133; 
 2 Kent Com. 427. In Massachusetts, 
 see Stat. 1867, ch. 275. 
 
 ^ Post, ch. 5. 
 
 'Wheeler v. Stone, 1 Cush. 313; 
 Boston v. Richardson, 105 Mass. 351; 
 Clancey v. Houdlette, 39 Maine, 451; 
 Treat v. Chipman, 35 Maine, 34. 
 
 * Valentine v. Piper, 22 Pick. 85; 
 Porter v. Sullivan, 7 Gray, 441, 445; 
 Com. v. Alger, 7 Cush. 53, 80; Spar- 
 hawk v. Bullard, 1 Met. 95; Thorn- 
 ton v. Foss, 26 Maine, 402; Brackett 
 v. Persons Unknown, 53 Maine, 228, 
 238. As one tract of land cannot 
 pass as an appurtenance to another 
 tract, the flats go with the upland 
 as parcel rather than as appurtenant. 
 Ammidown v. Granite Bank, 13 
 Allen, 285, 291; Central Wharf v. 
 
 India Wharf, 123 Mass. 561, 566. But 
 flats may pass as appurtenant to a 
 wharf and dock, to a messuage, ferry- 
 ways, or any structure. Doane v. 
 Broad St. Ass'n, 6 Mass. 332; Ashley 
 v. Eastern Railroad, 5 Met. 368; 
 Wooley v. Groton, 2 Cush. 309. The 
 word " causeway " may pass flats as 
 appurtenant. Harlow v. Rogers, 12 
 Cush. 291, 301. See Eaton v. Evans, 
 115 Mass. 204, 217. 
 
 5 Stetson v. Veazie, 11 Maine, 408. 
 See Manchester, S. & L. Ry. v. Kings- 
 ton-upon-Hull Guardians, 75 L. T. 
 127; Allen v. McKay, 120 Cal. 332. 
 
 6 Tufts v. Charlestown, 117 Mass. 
 401. See Barker v. Deignan, 25 S. C. 
 252. 
 
 'Tyler v. Hammond, 11 Pick. 193. 
 It was also held in Tyler v. Ham- 
 mond that the lessee of an easement 
 in a dock may disseise the lessor by 
 taking exclusive possession and hold- 
 ing against the latter's will, and that 
 an easement does not become merged 
 or lost by a disseisin or wrongful 
 claim of title against the owner of 
 the servient tenement. Stetson v. 
 Veazie, 11 Maine,'408; Locks & Canals 
 v. Nashua R. Co., 104 Mass. 1, 8. 
 
90 THE LAW OF WATERS. [Ch. II. 
 
 ing flats for mooring vessels, 1 or maintaining fences of stakes 
 or twig's, erected for fish weirs. 2 The habitual and continued 
 taking of wreck or seaweed from unenclosed flats, and licens- 
 ing others to do so, or cutting grass thereon, under a claim of 
 right, may or may not, it seems, establish a disseisin according 
 to tbe circumstances of the case. 3 But sailing over unimproved 
 flats when covered by the tide, or anchoring upon them, or 
 using them for the purpose of approaching a wharf from the 
 sea, or taking shell-fish therefrom, 4 being the exercise of a 
 public right, is not such possession as constitutes a disseisin. 5 
 So a grant by the State of a several fishery in a public navi- 
 gable river cannot be presumed from the uninterrupted use 
 and enjoyment of such fishery by an individual in common 
 with others for more than twenty years. 6 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, with- 
 out proof of the exercise of the right in the face of opposition 
 on the part of the person interested in resisting the right, or 
 •of knowledge and acquiescence on his part, inasmuch 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. 7 In case of a mixed pos- 
 
 1 Wheeler v. Stone, 1 Cush. 313; tis v. Francis, 9 Cush. 466; Brimmer 
 Rust v. Boston Mill Corp. 6 Pick. 158; v. Long Wharf, 5 Pick. 139; Gray v. 
 9 Gray, 524; Hamblet v. Francis, 4 Bartlett, 20 Pick. 192; Weston v. 
 Mass. 75; Treat v. Chipman, 35 Maine, Sampson, 8 Cush, 347; Porter v. Sul- 
 34; State v. Wilson, 42 id. 9. livan, 7 Gray, 441; Tracy v. Norwich 
 
 2 Treat v. Chipman, 35 Maine, 34. B. Co., 39 Conn. 382; Boulo v. New 
 
 3 Hale, De Jure Maris, ch. 6; Har- Orleans R Co., 55 Ala. 480; Deering 
 grave's Law Tracts, 27; Hall on the v. Long Wharf, 25 Maine, 65. See 
 Seashore (2d ed.), 32; East Hampton Pell v. Towers, Noy, 20. 
 
 v. Kirk, 84 N. Y. 215; 68 N. Y. 459; 6 Delaware R. Co. v. Stump, 8 Gill 
 
 6 Hun, 257; Roe v. Strong, 107 N. Y. & J. 479. 
 
 350; Com. v. Roxbury, 9 Gray, 451, 7 Att. Gen. v. Chambers, 4 De Gex 
 
 499; Thacher v. Cobb, 5 Pick. 423; & J. 55; Thomas v. Marshfield, 10 
 
 Tappan v. Burnham, 8 Allen, 65; Pick. 364; 13 Pick. 240; Donnell v. 
 
 Thornton v. Foss, 26 Maine, 402; Clark, 19 Maine, 174, 183; Swan v. 
 
 Clancey v. Houdlette, 39 id. 457 ; New Goff, 56 N. Y. S. 690 ; Whitaker v. Erie 
 
 Shoreham v. Ball, 14 R. I. 566; Linen S. Club, 102 Mich. 454; Stanberry v. 
 
 v. Maxwell, 67 N. H. 370; ante, § 22.^ Mallory, 101 Ky. 49; 39 S. W. R. 495; 
 
 * People v. Lowndes, 55 Hun, 469* Murphy v. Welder, 58 Texas, 235; Nye 
 
 130 N. Y. 455. v. Alfter, 127 Mo. 529; Strange v. 
 
 5 Drake v. Curtis, 1 Cush. 395; Cur- Spalding (Ky.), 29 S. W. R. 137. Where 
 
§37.] 
 
 PROPERTY IN TIDE WATERS. 
 
 91 
 
 session, the seisin of flats follows the legal title; 1 and, if the 
 claim is doubtful in extent, or not to the entire parcel, a title 
 by disseisin is limited by the actual occupation, and is not to 
 be extended by construction. 2 If the individual inhabitants 
 of a town use land upon the seashore as a landing place with- 
 out authority from the town, this does not support, but is 
 adverse to, a claim of possession by the town in its corporate 
 capacity, 3 although the use and enjoyment of the landing 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. 4 So 
 
 the flats and upland belong to dif- 
 ferent persons, the owner of the up- 
 land, by passing over the shore with 
 boats at high water, or landing boats 
 there at low water, and passing to 
 and fro over the beaoh, for twenty 
 years, does not gain possession, there 
 being nothing to define possession of 
 any particular portion of the land, 
 and the acts being consistent with 
 public passage at high water, and 
 with an easement at low water. Doe 
 v. Littlehale. Stevens' N. B. Digest, 
 p. 271, pL 5. To maintain trespass, 
 plaintiff's possession must be shown 
 by acts done with the apparent ob- 
 ject of taking possession as owner, 
 and mere casual acts of a transient 
 nature, few in number, and occur- 
 ring at long intervals, are not suffi- 
 cient. E. (jr., the locus being a small 
 uncultivated island, the acts of fas- 
 tening the plaintiff's net to a tree on 
 the island annually for about twenty 
 years, collecting drift-wood upon it, 
 and once putting a calf there to past- 
 ure, are insufficient. Gidney v. Bates, 
 id., p. 386, pi. 21. 
 
 1 Codman v. "Winslow, 10 Mass. 151 ; 
 Hamblet v. Francis, 4 Mass. 75; Brim- 
 mer v. Long Wharf, 5 Pick. 135; Eust 
 v. Boston Mill Corp., 6 Pick. 17,1; 
 "Wheeler v. Stone, 1 Cush. 317; 9 
 Gray, 523; Barnstable v. Thacher, 
 3 Met. 239; Tappan v. Burnham, 8 
 Allen, 65, 70; Coleman v. San Raphael 
 
 Road Co., 49 Cal. 517; Stearns v. 
 Woodbury, 10 Met. 27. 
 
 2 Boston v. Richardson, 105 Mass. 
 372 ; Kennebeck Purchase v. Springer, 
 
 4 Mass. 416; Boston Mill Corp. v. Bul- 
 finch, 6 Mass. 229; Brown v. Nye, 12 
 Mass. 285; Brimmer v. Long Wharf, 
 
 5 Pick. 131; Porguand v. Smith, 8 
 Pick. 272; Wheeler v. Stone, 1 Cush. 
 313, 317, 322; Allen v. Holton, 20 
 Pick. 458; Watkins v. Holman, 16 
 Peters, 25, 55; Thornton v. Foss, 26 
 Maine, 402. 
 
 3 Green v. Chelsea, 24 Pick. 71, 79. 
 In Boston v. Richardson, 105 Mass. 
 351, evidence was held admissible, in 
 support of a claim of title by dis- 
 seisin, in favor of a city, that it had 
 maintained a fish-house and engine- 
 house at the end of a highway to- 
 ward the sea, and had repaired a 
 capsill standing on a stone wall at 
 the head of the dock; with respect, 
 at least, to the land covered by the 
 buildings. 
 
 4 Coolidge v. Learned, 8 Pick. 504; 
 Com. v. Newbury, 2 Pick. 51. Repu- 
 tation is evidence upon the question 
 whether a landing place is public or 
 private property, and there is no dis- 
 tinction between the evidence of 
 reputation to establish and to dis- 
 parage the public right. Drinkwater 
 v. Porter, 7 C. & P. 181; Rex v. Sut- 
 ton, 3 N. & P. 569. 
 
92 THE LAW OF WATEKS. [Ch. II. 
 
 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. 1 Perambulations 
 are not evidence against the State that a town possesses the 
 title to flats within its limits; 2 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 preservation of the beaches, tend to 
 establish in the town an absolute title to the beaches, 3 except 
 so far as possession has been actually taken and continued under 
 them. 4 
 
 §38. Same — State legislation — Fisheries. — In Corfield 
 v. Coryell, 5 the question was whether a statute passed by the 
 legislature of ISTew Jersey, which prohibited any person not 
 an actual resident of the State, raking 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 immunities of citizens in the 
 several States." 6 It was held that the control of fisheries was 
 not ceded to the United States by the commerce clause of the 
 constitution; 7 that this is a right of 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, 8 in the Supreme 
 Court of the United States, the question was whether a vessel, 
 
 1 Sale v. Pratt, 19 Pick. 191. 7 United States v. Alaska Packers' 
 
 2 Com. v. Roxbury, 9 Gray, 457. But Ass'n, 79 Fed. Pep. 152. 
 
 see Hale, De Jure Maris, ch. 4; Har- 8 18 How. 71; Thompson v. Whit- 
 grave's Law Tracts, 27. man, 18 Wall. 457; The Ann, 5 
 
 3 Lynn v. Nahant, 113 Mass. 433; Hughes, 292. Statutory forfeiture of 
 West Roxbury v. Stoddard, 7 Allen, a vessel which illegally takes oysters 
 158. does not necessarily give to the State 
 
 4 New Shoreham v. Ball, 14 R. I. title to the oysters on board. McCand- 
 566. See Newport Hospital v. Carter, lish v. Com., 76 Va. 1002. See Booth 
 15 id. 285. v. Lloyd, 33 Fed. Rep. 593; Bradshaw 
 
 5 4 Wash. C. C. 371; Bennett v. v. Lankford, 73 Md. 428; 11 L. R. 
 Boggs, 1 Bald. C. C. 72; Thompson v. Ann. 582 and note. A State statute 
 Whitman, 18 Wall. 457. which provides that "any person" 
 
 6 Art. 4, § 2. belonging to a steamer, who takes 
 
§ 38.] PB0PEETY IN TIDE WATERS. 93 
 
 which was owned by a citizen of Pennsylvania, and was en- 
 rolled and licensed for the coasting trade under an act of Con- 
 gress, 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 particular instruments in dredging them. The court 
 expressed no opinion upon the questions considered in Corfield 
 v. Coryell, 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 later case of McCready v. Virginia, 1 the 
 same court held, with respect to a statute of Virginia, similar 
 in its provisions to that considered in Corfield v. Coryell, 2 that 
 the power over fisheries had not been granted to the United 
 States, and that the right to gather oysters is a right of prop- 
 erty, which, though common to all the citizens of the partic- 
 ular State, is not a general privilege or immunity of citizenship. 
 The same has frequently been held in the State courts. 3 In 
 Dunham v. Lamphere, 4 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 re- 
 cover a penalty imposed for the violation of a statute of Mas- 
 sachusetts, which made it unlawful for any person to take fish 
 with seines within one mile from the shores of Nantucket and 
 
 fish in violation of its provisions, shall 27 Gratt. 982, 985; Boggs v. Com., 76 
 
 forfeit his vessel, cannot be enlarged Va. 989; Martin v. Waddell, 16 Pe- 
 
 by construction to mean that he shall ters, 367. 
 
 forfeit another person's vessel. The 2 4 Wash. C. C. 371, cited above. 
 J. "W. French, 13 Fed. Rep. 916. The 3 Haney v. Compton, 36 N. J. L. 
 imposition of State license fees, to 507; Day v. Compton, 37 N. J. L. 514; 
 be expended in guarding the oyster State v. Medbury, 3 R L 138; Cham- 
 grounds, upon all vessels engaged in bers v. Church, 14 R L 398; New 
 planting or taking oysters there, pro- England Oyster Co. v. McGarvey, 12 
 portioned to their tonnage, is not an R I. 385; Crandall v. State, 10 Conn, 
 attempt to regulate commerce be- 340; Dunham v. Lamphere, 3 Gray, 
 tween the States, nor is it obnoxious 268; People v. Coleman, 4 Cal. 46 
 to the State constitutional provision Slaughter v. Com., 13 Gratt. 767 
 that all property shall be assessed Johnson v. Drummond, 20 Gratt. 419 
 under general laws and by uniform Hendricks v. Com., 75 Va. 934. 
 rules, according to its true value. 4 3 Gray, 268. See Josh v. Marshall, 
 Johnson v. Loper, 46 N. J. L. 321. 53 N. Y. S. 419. 
 194 U, S. 391; McCready v. Com., 
 
94 
 
 THE LAW OF WATEES. 
 
 [Ch. II. 
 
 other small islands. It was held that this law, which applied 
 to the coast fisheries in the outer sea as well as in the waters 
 within the islands, was not repugnant to the Federal Consti- 
 tution. This decision was prior to the Massachusetts statute, 
 which extended the territorial jurisdiction of the State one 
 marine league seaward from its seashore at low-water mark. 1 
 The statute declared to be constitutional was treated as mak- 
 ing the sea within a mile from the islands a part of the terri- 
 tory of the State, 2 and this decision was approved in the recent 
 case of Commonwealth v. Manchester. 3 It follows from these 
 authorities that the coast fisheries, as well as those in inland 
 tide waters, and the taking of both shell and floating fish, are 
 under the control of the respective States, and that each State 
 may lawfully exclude the citizens of other States from these 
 privileges, as well as aliens having no special rights secured to 
 them by treaty. 4 
 
 § 39. Same — Rights of new States. — The United States is 
 the source of title to lands within its limits which are not 
 
 iMass. St. 1850, ch. 6; Gen. Sts. 
 ch. 1, §1; ante, §16. 
 
 2 Shaw, 0. J., here said (3 Gray, 
 269, 270): "The fact of taking fish 
 by a seine within a mile of the shore 
 of Gravel Island, which constitutes 
 part of the territory of the State, after 
 the act went into operation, is plainly 
 contrary to the letter of the statute, 
 and leaves the only question to be, 
 whether the statute itself has the 
 force of law. Being within a mile of 
 the shore puts it beyond doubt that 
 it was within the territorial limits of 
 the State, although there might in 
 many cases be some difficulty in as- 
 certaining precisely where that limit 
 is. We suppose the rule to be that 
 these limits extend a marine league, 
 or three geographical miles, from the 
 shore; and, in ascertaining the line 
 of shore, this limit does not follow 
 each narrow inlet or arm of the sea ; 
 but when the inlet is so narrow that 
 persons and objects can be descried 
 across it by the naked eye, the line 
 of territorial jurisdiction stretches 
 
 across from one headland to the other 
 of such inlet." 
 
 3152 Mass. 230; 139 IT. S. 240. 
 
 4 " Citizens of other States having 
 no property right which entitles 
 them to fish against the will of the 
 State, a fortiori, the alien, from what- 
 ever country he may come, has none 
 whatever in the waters or the fish- 
 eries of the State. Like other privi- 
 leges he enjoys as an alien by permis- 
 sion of the State, he can only enjoy 
 so much as the State vouchsafes to 
 yield to him as a special privilege. 
 To him it is not a property right, but, 
 in the strictest sense, a privilege or 
 favor." . . . " Conceding that the 
 State may exclude all aliens from 
 fishing in its waters, yet if it permits 
 one class to enjoy the privilege, it 
 must permit all others to enjoy, upon 
 like terms, the same privileges, whose 
 governments have treaties securing 
 to them the enjoyment of all privi- 
 leges granted to the most favored 
 nation." In re Ah Chong, 2 Fed. 
 Eep. 733, 736, per Sawyer, C. J. 
 
§ 39.] .PROPERTY IN TIDE WATERS. 95- 
 
 t 
 
 within the boundaries of the States, and the new States, being- 
 admitted into the Union upon an equal footing with the orig- 
 inal States, become entitled to all the rights and privileges- 
 possessed by the latter. 1 They have the same rights, sover- 
 eignty, and jurisdiction, as to the soil of navigable waters, as 
 the older States ; 2 and neither the right of the United States 
 to 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. 3 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 within their limits 
 is of the latter class. 4 The declaration in the act of Congress, 
 admitting Oregon and other States into the Union, that its 
 navigable waters shall be "common highways and forever 
 free " does not empower the Federal courts to enjoin the con- 
 struction of a bridge authorized by State legislation, notwith- 
 standing the appropriation by Congress of money for the im- 
 provement of the river in question; 5 nor, if Congress has not 
 acted, does such declaration prevent the State from obstruct- 
 ing the navigation of a river. 6 
 
 i Pollard v. Hagan, 3 How. 212; 712; Mobile v. Eslava, 16 Peters, 234; 
 
 Case v. Toftus, 39 Fed. Pep. 730. 9 Porter, 577; Mobile v. Hallet, 1& 
 
 2 Pollard v. Hagan, 3 How. 212; Peters, 261; Mobile v. Emanuel, 1 
 
 Goodtitle v. Kibbe, 9 How. 471; Hal- How. 95; Pollard v. Files, 2 How. 592- r 
 
 lett v. Beebe, 13 How. 25; Withers v. 3 Ala. 47; Duval v. McLoskey, 1 Ala. 
 
 Buckley, 20 How. 84; St. Clair Co. v. 708, 747; Kemp v. Thorp, 3 Ala. 291; 
 
 Lovington, 23 WalL 46, 68; Mumford Hagan v. Campbell, 8 Porter, 9. 
 
 v. Wardwell, 6 Wall. 423, 436; Weber 3 Ibid.; Pollard v. Hagan, 3 How. 
 
 v. Harbor Com'rs, 18 Wall. 57; 212, 230. 
 
 Shively v. Bowlby, 152 IT. S. 1; Fried- * Guy v. Hermanoe, 5 Cal. 73; Peo- 
 
 man v. Goodwin, 1 McAll. 142; pie v. Morrill, 26 CaL 336; Ward v. 
 
 Tesohemacher v. Thompson, 18 Cal. Mulford, 32 Cal. 365; Shively v. 
 
 11; Gunter v. Geary, 1 Cal. 462; Welch, 20 Fed. Rep. 28. 
 
 Chapin v. Bourne, 8 Cal. 298; El- ^Willamette fron Bridge Co. v. 
 
 dridgeu Cowell, 4 Cal. 81; People v. Hatch, 125 U. S. 1; 7 Sawyer, 127. 
 
 Davidson, 30 Cal. 379; Farishu Coon, See Cardwell v. American River 
 
 40 CaL 33; Coburn v. Ames, 52 Cal. Bridge Co., 113 U. S. 205; 19 Fed. Rep. 
 
 385 ; Le Roy v. Dunkerly, 54 Cal. 452 ; 562. 
 
 Straderu Graham, 10 How. 82; Boulo 6 Scheurer v. Columbia Street. 
 
 v. Mobile R. Co., 55 Ala. 480. See Pol- Bridge Co., 27 Fed. Rep. 172; People 
 
 lard v. Kibbe, 14 Peters, 353 ; 9 Porter, v. Potrero R. Co., 67 CaL 16a 
 
96 
 
 THE LAW OF WATEKS. 
 
 [Oh. II. 
 
 § 40. Same — Grants by the United States.— The question 
 whether the United States, while holding the title to the soil 
 of tide waters in the Territories, can make a valid conveyance 
 of such soil, was fully considered and settled in the recent 
 case of Shively v. Bowlby 1 before the Supreme Court of the 
 United States, in which case it was held that "the United 
 States, while they hold the country as a Territory, having all 
 the powers both of national and of municipal government, may 
 grant, for appropriate purposes, titles or rights in the soil below 
 high-water mark of tide waters." "Whether a patent of upland 
 from the United States conveys the seashore below high-water 
 mark is not a Federal question under the Eemoval Acts. 2 
 
 1 153 IT. S. 1, 47, 58. The opinion 
 then proceeds : " But they have never 
 done so by general laws; and, unless 
 in some case of international duty or 
 public exigency, have acted upon 
 the policy, as most in accordance 
 with the interest of the people and 
 with the object for which the Terri- 
 tories were acquired, of leaving the 
 administration and disposition of the 
 sovereign rights in navigable waters, 
 and in the soil under them, to the 
 control of the States, respectively, 
 when organized and admitted into 
 the Union." See Mann v. Tacoma 
 
 Land Co., 153 U. S. 273, 283; Case v. 
 Toftus, 39 Fed. Eep. 732; Carroll v. 
 Price, 81 id. 137; Feurer v. Stewart, 
 83 id. 793; Hinman v. Warren, 6 
 Oregon, 408; Haight v. Keokuk, 4 
 Iowa, 199, 213; Gavit v. Chambers, 
 3 Ohio, 496, 498; Weber v. Harbor 
 Com'rs, 18 WalL 57, 65; Barney v. 
 Keokuk, 94 U. S. 324, 338; Tripp v. 
 Spring, 5 Sawyer, 209; King v. Oahu 
 Ey. & Land Co., 11 Hawaiian, 717; 
 13 N. J. L J. 6; 8 West L. J. 346. 
 
 2 Kenyon v. Knipe, 46 Fed. Eep. 309; 
 2 Wash. 394; Kenyon v. Squire, id. 
 404. 
 
CHAPTER III. 
 
 RIVERS, LAKES AND POND& 
 
 SUCTION. 
 
 41. River and watercourse defined 
 
 42. Navigable or tidal rivers. 
 
 43. What streams are navigable and public. 
 
 44. A river is navigable and public at common law as far as the 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 Banna 
 
 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 
 
 Eastern States. 
 
 59, 60. Ibid.— South Carolina, North Carolina and Tennessee^ 
 
 61. Ibid. — Virginia. j 
 
 62. Ibid.— Kentucky. 
 63, 64. Ibid. — Mississippi 
 
 65. Ibid. — Pennsylvania. 
 
 €6, 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 River. 
 
 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. 
 
 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. 
 7 
 
98 
 
 THE LAW OF WATERS. 
 
 [Oh. ILL. 
 
 § 41. River and watercourse defined. — A river is a run- 
 ning 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. 1 Every river consists of: (1) the bed; (2) the 
 water; (3) the banks or shores; 2 and it also has a current.* 
 It is a river or watercourse 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. 4 It may 
 
 1 Callis on Sewers, 77; Woolrych on 
 Waters, 31 ; Tenterden, C. J., in Rex 
 v. Oxfordshire, 1 E & Ad. 289, 301; 
 Eex v. Trafford, 1 B. & Ad. 874, 887; 
 8 Bing. 204; Queen v. Derbyshire, 2 
 Q. B. 745, 756; Rex v. Whitney, 3 Ad. 
 & El. 69; 1 H. & N. 147; 7 C. & P. 208; 
 Abraham v. Great Northern Ry. Co., 
 16 Q. B. 586, 597; Menzies v. Breadal- 
 bane, 3 Wilson & Shaw, 234, 243; 
 Long v. Boone County, 36 Iowa, 60 ; 
 Benson v. Connors, 63 id. 770; Mo- 
 Hardy v. Ellice, 1 Can. App. 628; 39 
 Q. B. (Can.), 546; 37 id. 580; post, 
 § 264; Palmer v. Waddell, 22 Kansas, 
 352; Gibbs v. Williams, 25 id. 214;- 
 Chicago R. Co. v. Morrow, 42 id. 339. 
 
 2 Ibid.; Ennor v. Barwell, 2 GifE. 
 410; Briscoe v. Drough, 11 Ir. C. L. 250; 
 Daws v. McDonald, 13 Vict. L. R. 698. 
 " 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 reference 
 to a fresh l-iver, or lake, either as 
 synonymous with bank, or as denofr 
 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 v. Strong, 
 1 Black, 23, 32; Stone v. Augusta, 46 
 Maine, 127, 137; McCulloch v. Wain- 
 wright, 14 Penn. St. 171; post, § 45; 
 Lacy v. Green, 84 Penn. St. 514 A 
 fresh river "has ripam, butnot littus." 
 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 v. Child, 20*- 
 Wend. 149, 152. 
 
 3 State v. Gilmanton, 9 N. H. 461; 
 14 N. H. 467. 
 
 4 Home v. Mackenzie, 6 CI. & Fin. 
 628; Dudden v. Clutton Union, 11 
 Ex. 627; Rawstron v. Taylor, id. 369; 
 Wood v. Waud, 3 Ex. 748; Reg. v. 
 Metropolitan Board of Works, 3 B. & 
 S. 710; Taylor v. St. Helen's Co., 6- 
 Ch. D. 264; Joint Committees Cros- 
 ton IT. D. Council, [1897] 1 Q. B. 251; 
 Gallup v. Tracy, 25 Conn. 16; Sullens- 
 v. Chicago Ry. Co., 74 Iowa, 659; 
 Moore v. Same, 75 id. 263. As to- 
 river-water flowing into an arm of 
 the sea, see' Home v. Mackenzie, 6 CL 
 & Fin. 628; post, § 44, note; Clyde 
 Nav. Trustees v. Laird, 8 App. Cas. 
 658. A river may be "a body of 
 water " within the meaning of a stat- 
 ute. Berlin Mills Co. v. Wentworth's- 
 Location, 60 N. H 156. A "tributary" 
 may be a lake or artificial pool 
 through which a stream passes, but 
 not a reservoir to which the water is 
 conveyed by underground pipes and 
 thence back to the stream. Harbot- 
 tle v. Terry, 10 Q. B. D. 131, 137; Hall 
 v. Reid, id. 134, note; Evans v. Owens, 
 [1895] 1 Q. B. 237. See Merricksr- 
 Cadwallader, 46 L. T. n. s. 29; George 
 v. Carpenter, [1893] 1 Q. B. 505; 19 
 A. G. Op. (U. S.), 477, 482. "Sewer"' 
 and "drain," as distinguished from 
 watercourse, are denned in Acton 
 Local Board v. Batten, 28 Ch. D. 283: 
 Wheatcroft v. Matlock Local Board, 
 52 L T. n. s. 356; Bateman v. Poplar 
 
§41.] 
 
 EIVEES. 
 
 99 
 
 sometimes be dry, but in order to be within the above defini- 
 tion it must appear that the water usually flows in a particular 
 direction, and has a regular channel, with bed, banks, or sides. 1 
 Whether it does so flow is a question of fact for the jury. 8 
 The bed, which is a definite and commonly a permanent chan- 
 nel, is the characteristic which distinguishes these waters from 
 mere surface drainage, flowing 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 a part of the realty and belong exclusively to the 
 owner thereof. 3 The fact that these waters have a current 
 
 D. Board of Works, 37 Ch. D. 272; 33 
 id. 360; Croft v. Rickmans worth H. 
 Board, 39 Ch. 272, reversing 57 L. J. 
 Ch. 589; Meader v. West Cowles 
 Local Board, [1892] 3 Ch. 18; St. Mar- 
 tin's in the Fields Vestry v. Bird, 
 [1895] 1 Q. B. 428; St. Leonard Vestry 
 v. Phelan, [1896] 1 Q. B. 533; Reg. v. 
 St. Matthew Vestry, 2 id. 95, 319; St. 
 Matthew Vestry v. London School 
 Board, [1898] A. C. 190; London & 
 N. W. Ry. Co. v. Runcorn Rural Coun- 
 cil, [1898] 1 Ch. 34, 561; Geen v. New- 
 ington Vestry, [1898] 2 Q. B. 1; 
 Greater London Prop. Co. v. Foote, 
 [1899] 1 Q. B. 972; Sykes v. Sowerby 
 TJ. D. Council, id. 979; Kinson Pot- 
 tery Co. v. Poole Corp., 2 id. 41; Reg. 
 v. Hastings, [1897] 1 Q. B. 46; Becken- 
 ham IT. D. Council v. Wood, 60 J. P. 
 490; Storey v. Casey, 3 N. Zeal. L. R. 
 (S. Ct.) 283. See Wetmore v. Fiske, 
 15 R L 354; Freeman v. Weeks, 45 
 Mich. 568; Kansas City v. Swope, 79 
 Mo. 446; Hunt v. Sain, 181 111. 372. 
 
 ^Post, § 263; Chasemore v. Rich- 
 ards, 7 H. L. Cas. 349; 5 H. & N. 983; 
 2 H. & N. 168; Rawstrom v. Taylor, 
 11 Exch. 369; Luther v. Winnesim- 
 met Co., 9 Cush. 171; Ashley v. Wol- 
 cott, 11 Cush. 192, 195; Parks v. 
 Newburyport, 10 Gray, 28; Flagg v. 
 Worcester, 13 Gray, 601; Dickinson 
 v. Worcester, 7 Allen, 19; Wheeler v. 
 .Worcester, 10 id. 591; Gannon v. 
 Hargadon, id. 106; Bates v. Smith, 
 
 100 Mass. 181; Emery v. Lowell, 104 
 Mass. 13; Morrill v. Hurley, 120 Mass. 
 99; State v. Gilmanton, 14 N. H. 467; 
 Bangor v. Lansil, 51 Maine, 521; 
 Greeley v. Maine Central R Co., 53 
 Maine, 200; Morrison v. Bucksport 
 R. Co., 67 Maine, 353; Buffum v. Har- 
 ris, 5 R. L 243; Goodale v. Tuttle, 29 
 N. T. 459; Earl v. De Hart, 1 Beas- 
 ley, 280; Bowlsby v. Speer, 31 K _J. 
 L. 351; Shields v. Arndt, 3 GreenCE, 
 234; Beard v. Murphy, 37 Vt 99; 
 Swett v. Cutts, 50 N. H. 439; Kauff- 
 man v. Griesemer, 26 Penn. St. 407; 
 Gillham v. Madison R. Co., 49 111. 484; 
 Hoyt v. Hudson, 27 Wis. 656; Eul- 
 rich v. Richter, 37 Wis. 226; 41 Wis. 
 318; Barnes v. Sabron, 10 Nev. 217; 
 Shively v. Hume, 10 Oregon, 76; 
 Geddis v. Parish, 1 Wash. 58J; Imler 
 v. Springfield, 55 Mo. 119; Jones v. 
 Hannovan, id. 462; New Albany R. 
 Co. v. Peterson, 14 Ind. 112; Green- 
 castle v. Hazelett, 23 Ind. 186; 
 Schlichter v. Phillipy, 67 Ind. 201; 
 Crewson v. Grand Trunk Ry. Co., 27 
 Q. B. (Can.) 68. 
 
 2 Ibid.; Eulrich v. Richter, 37 Wis. 
 226; 41 Wis. 318. 
 
 3 Chamberlain v. Hemingway, 63 
 Conn. 1 ; Paine Lumber Co. v. United 
 States, 55 Fed. Rep. 854; In re Min- 
 netonka Lake Imp., 56 Minn. 513; 
 Conservators v. Smeed, [1897] 2 Q. B. 
 334; Taylor v. Fickas, 64 Ind. 167, 
 and above authorities; post, ch. 9. 
 
100 THE LAW OF WATERS. [Ch. III. 
 
 gives rise to questions relating to the obstruction and accel-' 
 eration 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 separating towns confers no authority to con- 
 struct bridges over lakes, bays, or marshes, in which the water 
 has no regular and perceptible flow. 2 
 
 §42. Navigable and tidal rivers — Property in. — 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. 3 Hence, as was said in 
 an early case, " all navigable rivers in England appertain to 
 the king." 4 They are arms of the sea, and the king has them 
 because they partake of its nature. 5 This ownership is for the 
 public benefit, 6 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. 7 The high and low- 
 water marks which define the shores are determined by the 
 same rules as in the case of the shores and arms of the sea, 
 and the rights of the public extend to ordinary high-water 
 
 1 Joliet E. Co. v. Healy, 94 I1L 416, Com. v. Chapin, 5 Pick. 199; Eowe 
 421; Gouverneuru National Ice Co., v. Granite Bridge Co., 21 Pick. 344; 
 11 N. Y. Sup. 87; 134 N. Y. 355. Murdock v. Stickney, 8 Cush. 113, 
 
 2 In re Freeholders, 68 N. Y. 376, 115; Att. Gen. v. Woods, 108 Mass. 
 459. 436; Waters v. Lilley, 4 Pick. 145, 
 
 3 Ante, § 4. The different mean- 147;. Genesee Chief v. Fitzhugh, 12 
 ings of the word "navigable," as em- How. 443; The Daniel Ball, 10 WalL 
 ployed in legal phraseology, are thus 557. See, also, Colchester v. Brooke, 
 defined by Gray, C. J., in Common- 7 Q. B. 339, 374; The Montello, 20 
 wealth v. Vincent, 108 Mass. 441, 447: Wall 430, 442; Abraham v. Great 
 " The term ' navigable waters,' as Northern Ry. Co., 16 Q. B. 586, 598, 
 commonly used in the law, has three In this country the word " naviga- 
 distinct meanings: 1st, as synony- ble" is not commonly employed in 
 mouswith 'tide waters,' being waters, the technical sense. See Hickok v. 
 whether salt or fresh, wherever the Hine, 23 Ohio St. 523; Little Rock 
 ebb and flow of the tide from the Ry. Co. v. Brooks, 39 Ark. 403; post, 
 sea is felt; or, 2d, as limited to tide § 54; 12 L. J. 75. 
 
 waters which are capable of being 4 Res v. Trinity House, 1 Sid. 86; 
 
 navigated for some useful purpose; S. c. 1 Keb. 331. 
 
 or, 3d (which has not prevailed in 5 Royal Fishery of the Banne, Sir 
 
 this commonwealth), as including all John Davies, 149. 
 
 waters, whether within or beyond 6 Ante, § 17. 
 
 the ebb and flow of the tide, which ''Ante, § 32L 
 
 ■can be used for navigation; " citing 
 
§43.] 
 
 EITEES. 
 
 101 
 
 mark. 1 Islands which are formed in these rivers belong to 
 the king, 2 and in this country to the respective States as sov- 
 ereign powers, 3 and the rights of navigation 4 and fishery 5 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 intercommu- 
 nication between different States is not thereby affected. 6 
 
 § 43. Same — What are.— The presence of the tide is strong 
 prima facie evidence that a river is public and useful for navi- 
 gation. It is not, however, conclusive. In many small creeks 
 and inlets of the sea private property may exist. The extent to 
 which a river, whether its waters are salt or fresh, is used for 
 navigation, affords the strongest evidence of its navigable ca- 
 pacity. 7 If the channel is broad and deep and adapted to the 
 
 i Ante, § 27. In the Thames Con- 
 servancy Act, 1894, the words " bed 
 and soil " include the foreshore of 
 the lower Thames. Conservators of 
 the Thames v. Smeed, [1897] 2 Q. B. 
 334, disapproving Pearce v. Bunting, 
 [1896J 2 Q. B. 360. 
 
 2 Hale, De Jure Maris, ch. 6, ii; 
 Callis on Sewers, 45. 
 
 SMiddletown v. Sage, 8 Conn. 221; 
 Tracy v. Norwich Railroad Co., 39 
 Conn. 382; Hopkins Academy v. Dick- 
 erson, 9 Cush. 544, 550. 
 
 *Ante, § 20. 
 
 5 Ante, § 21; Rose v. Belyea, 1 Han- 
 nay (N. B.), 109. 
 
 »Ante, § 35. 
 
 'See Miles v. Rose, 5 Taunt. 706; 
 Vooght v. Winch, 2 B. & Aid. 662; 
 PoweU v. Wilson, 85 Md. 347. In the 
 early case of Com. v. Charlestown, 1 
 Pick. 180, 186-188, Parker, C. J., said: 
 " By the common law, the property 
 of the sovereign is said to extend to 
 all places where the sea ebbs and 
 flows, whether such places are navi- 
 gable or not; but it is probable the 
 usages of our country have given a 
 reasonable limitation to this doctrine, 
 confining the public 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 maintained. . . . 
 There is but one principle for judicial 
 courts to be governed by, and that 
 is, to consider as public property all 
 those inlets of the sea which are 
 capable of sustaining vessels of any 
 description, with their loading, for 
 purposes really useful to trade or 
 agriculture." It is now settled that 
 the public right is limited to those 
 streams and inlets which are capable 
 of public use. Rowe v. Granite 
 Bridge Co., 21 Pick. 344; Charlestown 
 v. County Com'rs, 3 Met (Mass.) 202; 
 Att. Gen. v. Woods, 108 Mass. 436; 
 9 Gray, 519, note; The Montello, 20 
 WalL 430, 442, 443; United States v. 
 New Bedford Bridge, 1 Wood. & M. 
 401, 487; Parsons v. Clark, 76 Maine, 
 476; Weathersfield v. Humphrey, 20 
 Conn. 218; Groton v. Hurlburt, 22: 
 Conn. 178; Burrows v. Gallup, 32 
 Conn. 501 ; Brown v. Preston, 38 Conn. 
 219; Glover v. Powell, 10 N. J. Eq. 
 211; Flanagan v. Philadelphia, 42 
 Penn. St. 219; Sullivan v. Spotswood, 
 82 Ala. 163; Oakland v. Oakland W. 
 F. Co., 118 Cal. 160, 249. 
 
102 
 
 THE LAW OF WATERS. 
 
 [Ch. III. 
 
 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, 2 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 the public right. 8 
 The term "navigable," says Denman, C. J., 4 "is a relative and 
 comprehensive term, containing within it all such rights upon 
 the water way, as, with relation to the circumstances of each 
 river, are necessary for the full and convenient passage of vesT 
 sels and boats along the channel." 5 In Miles v. Eose, 6 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 Yooght 
 v. Winch, 7 Holroyd, J., said that if a stream had ever been 
 capable 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, 8 he concurred in the opinion that 
 
 1 See per Bailey, J., in Rex v. Mon- 
 tague, 4 B. & C. 598; Charleston & 
 S. R. Co. u Johnson, 73 Ga. 306. 
 
 2 Rowe v. Granite Bridge Co., 21 
 Pick. 344; Att. Gen. v. Woods, 108 
 Mass. 436. 
 
 a Colchester v. Brooke, 7 Q. B. 339, 
 374. 
 
 4 Ibid. See Ilohester v. Raishleigh, 
 61 L. T. n. s. 477; Micklethwait v. 
 Vincent, 67 id. 225; Sullivan v. Spots- 
 wood, 82 Ala. 163. 
 
 5 In Mayor of Lynn v. Turner, 1 
 Cowper, 86; Lofft, 556, the corpora- 
 tion of Lynn Regis was sued for not 
 repairing and cleansing a tidal creek, 
 '■ as from time immemorial they had 
 been used," whereby, as appeared by 
 one count of the declaration, the 
 plaintiff lost the use of his naviga- 
 tion. It was urged that if one count 
 of the declaration was bad, the judg- 
 ment 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 consid- 
 
 ered that it did not sufficiently ap- 
 pear that it was a navigable river, 
 and that the presence of the tide did 
 not prevent its being in the private 
 estate of the corporation. Lord 
 Mansfield here said: "Ex facto ori- 
 tur jus. How does it appear that th is 
 is a navigable river? The flowing 
 and reflowing of the tide does not 
 make it so; for there are many 
 places into which the tide flows that 
 are not navigable rivers; and the 
 place in question may be a creek in 
 their own private estate." The cor- 
 poration was held to be bound by 
 prescription to repair. 
 
 6 5 Taunt 706. 
 
 7 2B. & Aid. 662. 
 
 M B. & C. 598. This was an in- 
 dictment for cutting a trench across 
 a common and ancient highway. At 
 the trial it appeared that the high- 
 way in question was an embankment 
 across a creek, and that the defend- 
 ants cut down this embankment by 
 order of the corporation of London, 
 who contended that the creek was a 
 public navigable stream, and that the 
 
44.] 
 
 BIVEKS. 
 
 103 
 
 the public right might be extinguished in other ways than by act 
 of Parliament ; as by writ of ad quod damnum, or by the com- 
 missioners 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, 1 Lord Denman, 
 C. J., while regarding the flow and reflow of the tide as the 
 strongest evidence that a river was public and navigable, con- 
 sidered the fact that the soil in arms of the sea and public 
 navigable rivers, independently of any ownership of the ad- 
 joining 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. 2 
 
 § 44. Same — Same. — The question at what point a river 
 ceases to be tidal, or navigable, first arose in the courts in the 
 case of Eex v. Smith. 3 In that case the city of London, acting 
 
 road improperly obstructed it; that 
 the road had been so high for twenty 
 years that no boats could pass over 
 it at any time; and that, for years 
 before, the only evidence of an act- 
 ual navigation was by very small 
 boats for a brief period at the time 
 of high water. Bailey, J., said: "It 
 was for the defendant to make out 
 that there once was a public naviga- 
 tion. Now it does not necessarily 
 follow, because the tide flows and re- 
 flows in any particular place, that 
 there is therefore a public navigation, 
 although of sufficient size;" and 
 after reviewing the above cases of 
 Mayor of Lynn v. Turner, and Miles 
 v. Eose, he said further: "Even sup- 
 posing 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 pub- 
 lic have been lawfully determined. 
 Most probably the rights of the pub- 
 lic (if they ever had any) arose from 
 the flux and reflux of the tides of the 
 
 sea, so as to make the channel navi- 
 gable. If then the sea retreated, or 
 the channel silted up, so as to be no 
 longer navigable, why should not the 
 public rights cease? If they arose 
 from natural causes, why should not 
 natural causes put an end to them? 
 But they might also be put an end 
 to, by act of Parliament, or by writ 
 of ad quod damnum, and, perhaps, 
 by commissioners 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 navigation through the locus 
 in quo, or that it has been determined 
 by some lawful means." The opin- 
 ions of Holroyd, J., and Littledale, J., 
 were to the same effect. 
 
 1 7 Q. B. 339, 373, 374. See also Eex 
 v. Douglas, 2 Ld. Ken. 499; Woolrych 
 on Waters, 237. 
 
 2 See State v. Carpenter, 68 Wis. 
 165; 2 Am. Law Eev. 589. 
 
 s 2 DougL 441 (1780). In Home v. 
 
104 THE LAW OF WATEES. [Ch. IIL 
 
 under powers conferred by statute, was proceeding to construct 
 a towing path upon the bed of the river Thames, and the 
 defendants were indicted for destroying a pile driven in the 
 course of the work between high and low-water mark near 
 Eichmond. In the statement of the case, the river was ad- 
 mitted 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 navi- 
 gable 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. 1 He said that the 
 case did not state whether the water, where the tide rises at 
 Eichmond, is fresh or salt; but that it rather took it for 
 granted that it is salt, describing the Thames generally as a 
 navigable river. The point was simply raised in that case,, 
 and not decided. 2 But it is settled in this country that it is 
 
 Mackenzie, 6 CI. & Fin. 628, 643, the called an arm of the sea) that fresh 
 question was whether the defendants rivers, " though they are public rivers, 
 had fished unlawfully by means of yet are not arms of the sea. But it 
 stake-nets, which was an illegal act seems that, although the water be 
 by statute if done in a "river," but fresh at high water, yet the denomi- 
 permissible in the sea; and it was nation of an arm of the sea continues, 
 held that the jury were improperly in- if it flow and reflow as in Thames 
 structed that " the thing to be looked above the bridge." 
 at is the absence or prevalence of 2 This case seems to have been mis- 
 the fresh water, though strongly understood. In Angell on Water- 
 impregnated by salt; " and that the courses, § 544, it is said of it that the 
 absence or prevalence of salt water point in question was by Lord Mans- 
 was a consideration of minor impor- field "pronounced new and inadrnis- 
 tanee in such a case. As to what is sible; " while in Att. Gen. v. Woods, 
 the "mouth of a river," see Town- 108 Mass. 439, Chapman, C. J., spoke 
 send Savings Bank v. Epping, 3 of the question as there "settled." 
 Woods, 390; Johnson v. State, 74 Ala. The point was indeed urged by coun- 
 537. sel, but Lord Mansfield expressed no 
 1 The question was not altogether opinion upon it, saying " that there 
 new, for Lord Hale says (De Jure were no facts set forth in the case 
 Maris, ch. 4, with reference to the which let in the consideration of that 
 extent to which a river is properly distinction." 
 
§ 45.] KIVERS. 105 
 
 the fluctuation of the water, as shown by its regular 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 Eiver at ]STew Orleans; 1 in Maine, in respect to the 
 Penobscot Eiver at Bangor; 2 and in Massachusetts, as to a 
 portion of the Mystic Eiver 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. 3 In the English case of Eeece v. Miller,* 
 it appeared that the water of the river "Wye was not salt at the 
 spot in question, and that in ordinary tides it was unaffected 
 by any tidal influence, 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. Fresh rivers — The banks — Their limits. — A fresh- 
 water river, like a tidal river, is composed of the alveus, or 
 bed, and the water; but it has banks instead of shores. 5 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 ; 6 and in that condition of the water the 
 banks, and the soil which is permanently submerged, form tho 
 bed of the river. 7 The banks are a part of the river-bed, 8 but 
 
 x Peroux v. Howard, 7 Peters, 343. Minnetonka Lake Imp., 56 Minn. 513; 
 
 2 Lapish v. Bangor Bank, 8 Greenl. Houghton v. The C. D. & M. R. Co.,. 
 85. 47 Iowa, 370; Haight v. Keokuk, 4 
 
 3 Att. Gen. v. Woods, 108 Mass. 436. Iowa, 199, 212; Stone v. Augusta, 46 
 To the same effect are Tinioum Fish- Maine, 127, 137; Alabama v. Georgia, 
 ing Co. v. Carter, 61 Penn. St. 21; 23 How. 506. 
 
 Stone v. Augusta, 46 Maine, 127, 137; 7 Ibid. ; 13 How. (IT. S.) 415. In dis- 
 people v. Tibbetts, 19 N. Y. 523. tinguisbing the banks from the per- 
 
 4 8 Q. B. D. 626. See Blower v. Ellis, manent bed of the river, the line is 
 50 J. P. 326. determined by examining the bed 
 
 8 See ante, § 41, note. and banks, and ascertaining where 
 
 'Howard v. Ingersoll, 13 How. (IT. the presence and action of the water 
 
 S.) 381, 391, 427; 17 Ala. 780; In re are so common and usual, and so 
 
 8 Ibid.; Haight v. Keokuk, 4 Iowa, 199. 
 
106 
 
 THE LAW OF WATERS. 
 
 [OH. III. 
 
 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 reclaim- 
 able 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 uninclosed pasture. 1 
 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. 2 
 The high-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. 3 
 
 § 46, Same — Property in. — Fresh-water streams which 
 are not a common passage are private property, and the title 
 to the bed of the river ad filum aqum is in the riparian pro- 
 prietors in severalty and not in common, 4 whether their ten- 
 
 long continued in all ordinary years, 
 as to mark upon the soil of the bed 
 a character distinct from that of the 
 banks, in respect to vegetation, as 
 well as in respect to the nature of 
 ■the soil itself. Ibid., per Curtis, J., 
 pp. 437, 428; McCulloch v. Wain- 
 wright, 14 Penn. St. 171. 
 
 ilbid.; 13 How. (U.S.) 415; Kansas 
 City, M. & B. R Co. v. Smith, 72 Miss. 
 •677. 
 
 2 13 How. 417, 415, 428. 
 
 3 Howard v. Ingersoll, 13 How. 381; 
 Houghton v. C. B. & M. R. Co., 47 
 Iowa, 370; Musser v. Hershey, 42 
 Iowa, 356; McCulloch v. Wainwright, 
 14 Penn. St. 171; Stover v. Jack, 60 
 id. 339; Wainwright v. McCullough, 
 63 id. 66; post, § 264. See The Bat- 
 ture, Am. State Papers, vol. 17, p. 90; 
 Public Lands, vol. 2, p. 90, et seq.; 
 Municipality No. 2 v. Orleans Cotton 
 Press, 18 La. 125, 278; Lacy v. Green, 
 84 Penn. St. 514; Gavit v. Chambers, 
 3 Ohio, 495. In Plumb v. McGannon, 
 32 Q. B. (Can.) 8, 14, Wilson, J., said 
 of the St. Lawrence river: "The evi- 
 dence does not show what the limit 
 
 of the highest ordinary state of the 
 river is, or was, as that would seem 
 to be the proper limit of high-water 
 mark, and not the highest limit that 
 the water reaches in the course of 
 the year; for the great flow caused 
 by the melting of the snow and ice, 
 and by the spring rains, or by other 
 unusual floods or causes, is to be ex- 
 cluded in determining the limit of 
 high-water mark. The true limit 
 would appear to be, by analogy to 
 tidal waters, the average height of 
 the river after the great flow of the 
 spring has abated, and the river is in 
 its ordinary state." 
 
 4 Rex v. Wharton, Holt, 499; 13 
 Mod. 510; Carter v. Murcot, 4 Burr. 
 2162; Devonshire v. Pattinson, 20 Q. 
 B. D. 263; Micklethwait v. Newlay 
 Bridge Co., 33 Ch. D. 133; Robertson 
 v. Steadman, 3 Pugsley (N. B.), 621; 
 King v. King, 7 Mass. 499; Lunt v. 
 Holland, 14 Mass. 149; Dearfield v. 
 Arms, 17 Pick. 41; Knight v. Wilder, 
 2 Cush.200; Seneca Nation v. Knight, 
 23 N. Y. 498; Woodman v. Spencer, 
 54 N. H 507; Adams v. Barney, 25 
 
§46.] 
 
 KIVEKS. 
 
 107 
 
 ure is freehold, copyhold, or leasehold. 1 They own the islands 
 which form in the stream, 2 possess the exclusive right of fish- 
 ing 3 and fowling, 4 and may grant and convey the bed of the 
 stream separate from the dry land which bounds it. 5 If the 
 banks on both sides of the river belong to the same person, he 
 owns the entire river-bed according to the extent of his lands 
 in length. 6 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 or State and the public have no rights in it which 
 are not connected with the navigation. 7 
 
 Vt. 225; Jackson v. Louw, 12 Johns. 
 252; Ball v. Slack, 2 Whart. 538; 
 Coovert v. O'Conner, 8 Watts, 470; 
 Barclay R. Co. v. Ingham, 36 Penn. 
 St. 194; Poor v. McClure, 77 id. 214; 
 Bradford v. Cressey, 45 Maine, 9; 
 Cates v. Waddington, 2 McCord 
 <S. 0.), 580; McCullough v. Wall, 4 
 Rich. (S. C.) 68; Noble v. Cunning- 
 ham, McMullan (S. C), 289; Hayes v. 
 Bowman, 1 Rand. (Va.) 417; Home v. 
 Richards, 4 Call, 441; Smith v. In- 
 gram, 7 Ired. (N. C.) 175; Ingraham v. 
 Treadgill, 3 Dev. (N. C.) 59; Camden 
 v. Creel, 4 W. Va. 365. See 25 Cent. 
 L. J. 539. 
 i Tilbury v. Silva, 45 Ch. D. 98. 
 
 2 Brickett v. Morris, L. R 1 H. L. Sc. 
 47; Wishart v. Wyllie, 1 Macq. H. L. 
 389. 
 
 3 Ibid. See the Mass. St. 1890, ch. 
 231. 
 
 « Hall v. Alford, 114 Mich 165; 
 Ecroyd v. Coulthard, [1898] 2 Ch. 358. 
 
 5 Hartshorn v. Wright, Peters, C. C. 
 64; Denver v. Pearce, 13 Colo. 383. 
 
 6 Wadsworth v. Smith 11 Maine, 
 278, 281. The ground on which this 
 rule is founded is thus explained in 
 the dissenting opinion of Redfield, J., 
 in Buck v. 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, con- 
 sequently, not in express terms pro- 
 vided for in the title deeds, a boot- 
 less, almost objectless, litigation shall 
 spring up to vex and harass those 
 who in good faith had supposed them- 
 selves secure from such embarrass- 
 ment." 
 
 1 0rr Bwing v. Colquhoun, 2 App. 
 Cas. 839, 871; Queen v. Robertson, 6 
 Can. Sup. Ct 52; Groat v. Moak, 94 
 N. Y. 115; Binney's Case, 2 Bland, 99, 
 125; Adams v. Pease, 2 Conn. 483; 
 Ross v. Faust, 54 Ind. 471; Braxton 
 v. Bressler, 64 111. 488; Berry v. Sny- 
 der, 3 Bush, 266, 285. As to a right 
 by prescription to quarry stone in 
 the bed of a river, see Overman v. 
 May, 35 Iowa, 89; Com'rs v. Beck- 
 with, 10 Kansas, 603; post, § 93a. 
 
108 
 
 THE LAW OF "WATERS. 
 
 [Oh. III. 
 
 § 47. Same — Same — Bracton's view.— Bracton, who 
 wrote in the thirteenth century, and is the earliest English 
 authority upon this question, says that of natural right flow- 
 ing water, the air, the sea, and the shores of the sea are com- 
 mon property; that all rivers that flow perpetually are public, 
 and that the right of fishing therein and the use of the river 
 banks are public also. 1 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 Insti- 
 tutes. 3 No distinction is here drawn between those rivers 
 which are and those which are not navigable in fact. The pas- 
 sage seems to show either that the rules of the common and 
 civil law were the same at this early period, or that Bracton, 
 finding the subject undefined in the law of England, supplied 
 the deficiency, as he was wont to do, by borrowing from the 
 Roman code. 3 
 
 !The passages in Bracton (lib. L 
 ch. 12, fols. 7, 8), as translated in Sir 
 Travers Twiss's edition of Bracton 
 (vol. i, 57), are as follows: "Of nat- 
 ural right all these things are com- 
 mon: 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 persons; 
 and this is to be understood of per- 
 ennial rivers, because streams which 
 are temporary may be property." 
 
 2 See Inst. lib. 2, 1, g§ 1, 2, 5; Royal 
 Fishery of the Banne, Sir J. Davies, 
 149, 150; Blundell v. Catterall, 5 B. & 
 Aid. 268, 304; Bagott u Orr, 2 Bos. 
 
 & P. 472V Bracton does not here fol- 
 low the civil law, for while he says 
 that the use of the sea, etc., are com- 
 mon, he does not add the remainder 
 of the sentence from the civil law, 
 that the property in these things can- 
 not be taken to belong to any one. 
 See Hall on the Seashore (2d ed.), 104, 
 105. The Roman 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 
 publiccB, 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, ch. 9, §§ 126-130; ch. 10, §§ 132- 
 134; Puffendorf, De Jur. Nat et Gen. 
 lib. Ill, ch. 3, §§ 3-6; Poison, Law of 
 Nations, § 5; 1 Halleck, Ink Law, 
 ch. 6, p. 147. 
 
 3 .Hale, De Jure Maris, c. 6 (II). 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; Giiterbock'a 
 
§48.] 
 
 BIVEKS. 
 
 109 
 
 § 48. Same — The limine fishery. — The question appears to 
 have been first passed upon judicially in the case of the Eoyal 
 Fishery of the Banne, 1 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 Eng- 
 land, 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 flows 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 
 
 Bracton, Preface; King v. Yarbor- 
 ough, 3 Dow & Clark, 178, 187. Mr. 
 Reeve (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 
 thence pronounced a hasty judgment 
 upon his fidelity as a writer on Eng- 
 lish law. But the passage 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 these 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 his endeavors to give 
 form and beauty to our own law, by 
 setting forth its native strength 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 attentive 
 perusal of Bracton's works, that they 
 contain nothing but what has been 
 admitted by legal authorities into 
 English jurisprudence. In Blundell 
 v. Catterall, 5 B. & Aid. 268, Best, J., 
 who differed from the majority of 
 
 the court as to the public right of 
 bathing in the sea, said, with ref- 
 erence to the above passage from 
 Bracton: "Bracton has not stated 
 this as civil law; he has made it part 
 of his book De Legibus et Consuetu- 
 dinibus Anglice. He was Chief Jus- 
 tice of England in the reign of Henry 
 the Third. . . . 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 
 navigations in the reign of Henry the 
 Third. These, like the sea and its 
 shores, were then the property of the 
 public, and the right of the public in 
 them was not acquired by any com- 
 promise with the interests of any in- 
 dividual. . . . In the first ages of 
 all countries, not only the sea and its 
 shores, but all perennial rivers, were 
 left open to public use. In all coun- 
 tries, it has been matter of just 
 complaint, that individuals have en- 
 croached on the rights of the people. 
 In England, our ancestors put the 
 public rights in rivers under the safe- 
 guard of Magna Charta. The princi- 
 ple of exclusive appropriation must 
 not be carried beyond things capable 
 of improvement by the industry of 
 man." 
 !Sir John Davies, 149. 
 
110 
 
 THE LAW OF WATERS. 
 
 [Oh. IIL 
 
 fishery of such river, the ter-tenants on each side have an inter- 
 est of common right." l 
 
 The real question presented for decision was whether a 
 royal grant of certain lands, adjacent to the river Banne, con- 
 veyed a salmon fishery at a point in the river where it was 
 " navigable." If the word " navigable," as here used, means 
 tidal, 2 the 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 resolution 
 that nothing passes by implication in a royal grant, embrace 
 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, 3 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. Same — Hale's De Jure Maris. — The treatise De 
 Jure Maris, published in 1787, and usually ascribed to Sir 
 
 !It is further said in this case: 
 "The river Lee is found by acquisi- 
 tion the king's high stream; and in 
 the Stat, of 28 Hen. 8, ch. 22, enacted 
 in this kingdom, the rivers Barrow, 
 Noire, and Suire are called the king's 
 rivers, and the weirs erected in them 
 are called purprestures; and although 
 the king permit his people, for their 
 ease and commodity, to have com- 
 mon 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 be- 
 longs 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 \o the owners of the soil 
 where it hath its course, and if such 
 river runneth between two manors, 
 and is the mear and boundary be- 
 tween them, the one moiety of the 
 
 river and fishery belongeth to one 
 lord, and the other moiety to the 
 other." 
 
 2 The word "navigable" in this 
 case is, perhaps, of somewhat doubt- 
 ful meaning, it being said that 
 "every navigable river, so high as 
 the sea ebbs and flows in it," is a 
 royal river; that "every other river 
 not navigable," and "every inland 
 river not navigable," are private, 
 etc. In People v. Canal Appraisers, 
 33 N. Y. 461, 470, Davies, J., interprets 
 the case of the Royal Fishery of the 
 Banne, and, also, Warren v. Mat- 
 thews, 6 Mod. 73, and Carter v. Mur- 
 cot, 4 Burr. 2162, as distinguishing 
 only between those rivers which are, 
 and those which are not, navigable 
 in fact. But this view is not sup- 
 ported by the English decisions in 
 which these cases are referred to. 
 
 3 See Encyclopedia Britannica, tit. 
 Barrow; Murphy v. Ryan, Ir. R. 2 
 C. L. 143, 153; De Jure Maris, ch. 2; 
 post, § 51; People v. Canal Apprais- 
 ers, 33 N. Y. 461, 470; Powell v. Hef- 
 fernan, 8 L. R. Ir. 130. 
 
§ 49.] EITEES. Ill 
 
 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 fiVum aquce; 
 and the owners of the other side the right of soil or owner- 
 ship, and fishing unto the filum aqua on their side." In the 
 second chapter of the treatise, the resolution in the case of 
 the Royal Fishery of the Eanne, in which the Barrow and 
 other fresh rivers are termed royal rivers, is criticised, 2 but no 
 authorities are cited in support of this passage, or of the sub- 
 sequent statement that the rivers which Bracton declares to 
 be public " must be taken to be rivers that are arms of the- 
 sea." 3 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 obstructions or annoy- 
 ances therein ; that these public streams which are highways 
 
 1 Hale, De Jure Maris, ch. 1, 3; Har- use, and under the king's special care 
 grave's Law Tracts, 5. and protection, whether the soil be 
 
 2 De Jure Maris, ch. 2. This pas- his or not." The case of the Banna 
 sage is as follows: " As the common is also criticised in other respects in 
 highways on the land are for the De Jure Maris, ch. 5. With respect, 
 common land passage, so these kind to the right of fishing, it is said that 
 of rivers, whether fresh or salt, that salmons, " though they are great fish, 
 bear boats or barges, are highways are not royal fish, as the report of 
 by water; and as the highways by Sir John Davies in the case of the 
 land are called altce vice regice, so fishing of Banne would intimate." 
 these publick rivers for publick pas- The other passage relates to the ac- 
 sage are called fluvii regales, and quisition by a subject of rights in 
 haut streames le roy; not in refer- the sea by prescription or usage, in 
 ence to the propriety of the river, but which it is said : " I have added the 
 to the publick use; all things of pub- more, because there are certain 
 lick safety and convenience being in glances and intimations in the case 
 a special manner under the king's of the piscary of Banne, in Sir John 
 care, supervision, and protection. Davies's reports, as if the fishing in 
 And, therefore, the report in Sir John these kinds of royal rivers were not 
 Davies, of the piscary of Banne, mis- acquirable but by special charter, 
 takes the reason of those books, that which is certainly untrue; for they 
 call these streames le roy, as if they are acquirable by prescription or 
 were so called in respect of propriety usage, as well as royal fish may be." 
 (as 19 Ass. 6 Dy. 11), for they are 3 De Jure Maris, ch. 4; Hargrave's. 
 called so, because they are of publick Law Tracts, 13. 
 
112 THE LAW OF WATERS. [Ch. III. 
 
 by water, are called royal, not in reference 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 reflows, and so far only 
 as the sea so flows and reflows; and that, although the water 
 be fresh at high water, yet the denomination of an arm of the 
 sea continues, if it flow and reflow. 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 l 
 would not, perhaps, be of importance, were it not for the fact 
 that, being associated with the name of Lord Hale, the posi- 
 tions here taken have been frequently accepted as a sufficient 
 authority, without inquiring whether the positions themselves 
 had a sound basis. 2 The work is posthumous, and there ap- 
 pears to be no evidence that it was revised or intended for 
 publication, 3 or at what period of the author's life it was writ- 
 ten, while Lord Hale's name has not made it, in all respects, 
 incontrovertible. 4 
 
 1 Ante, § 18. be known what is so gained." De 
 
 2 See Phear's Eights of Water, 47, Jure Maris, oh. 6; Hargrave's Law 
 48. Tracts, 28. Contra, Foster v. Wright, 
 
 8 See Hall on the Seashore, Intro- 4 C. P. D. 438; In re Hull & Selby 
 
 duction. Eailway, 5 M. & W. 327; Rex v. Yar- 
 
 4 In the light of modern decisions, borough, 3 B. & C. 106; 2 Bligh, N. s. 
 
 the following rules laid down in this 147; post, § 155. Fourth, It is now 
 
 treatise are not law: First, That the established that the right of towage 
 
 realm of England extends beyond along the banks of rivers does not 
 
 low-water mark, and includes the ad- exist in the absence of usage, grant, 
 
 jacent seas whether they are within etc., notwithstanding the intimation 
 
 the body of a eounty or not. De Jure in this book that this is a common- 
 
 Maris, ch. 4; Hargrave's Law Tracts, law right. De Portibus Maris, ch. 7; 
 
 10. Contra, Eegina v. Keyn, 2 Ex. D. Hargrave's Law Tracts, 86; Ball v. 
 
 63, referred to ante,%% 13, 14. Second, Herbert, 3 T. R. 253; Blanchard v. 
 
 That "any man may justify the re- Porter, 11 Ohio, 138; post, § 99. The 
 
 moval of a common nuisance, either view that has been expressed in this 
 
 at land or by water, because every country that this treatise is of so high 
 
 man is concerned in it." De Portibus authority that there is no appeal from 
 
 Maris, ch. 7 ; Hargrave's Law Tracts, it (6 Cowen, 536, note ; Cobb v. Daven- 
 
 87. Contra, see post, § 128. Third, port, 32 N. J. L. 369, 379) would ap- 
 
 That alluvion "is de jure communi, by pear, therefore, to be somewhat ex- 
 
 the law of England, the king's, viz. : aggerated. 
 if by any marks or measures it can 
 
§50.] 
 
 KIVERS. 
 
 113 
 
 § 50. Same — The early English cases. — The early author- 
 ities being thus discordant, no certain 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 Bul- 
 strode v. Hall, 1 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 Car- 
 ter v. Murcot, 3 and Rex v. Smith, 3 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, 4 before Chief Justice Hale, and in 
 Rex v. Wharton, 5 before Chief Justice Holt, a case which has 
 been referred to 6 as bearing upon this question, the rivers in 
 question are not only called private rivers, 7 but there is no in- 
 timation that they were, in fact, capable of navigation. 
 
 1 1 Sid. 148. See, also, Rex v. Trin- 
 ity House, id. 86; and cases ante, § 18, 
 notes; Malcomson v. O'Dea, 10 H. L. 
 Cas. 619; Warren v. Mathews, 1 Salk. 
 557; 6 Mod. 73; Carter v. Murcot, 4 
 Burr. 2162. 
 
 2 4 Burr. 2162. In this case the 
 only question was whether the plaint- 
 iff had by prescription a right of 
 several fishery at the place in ques- 
 tion, which was admitted to be a 
 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 re- 
 spective sides; and it generally ex- 
 tends adftlum medium aquce. 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 exclusively, 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, un- 
 less he can prove such a prescriptive 
 right." 
 
 3 2 Dougl. 441. See ante, § 44 
 
 4 1 Mod. 105. The question here 
 was as to the defendant's right of ex- 
 clusive fishery 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 
 he hath the right of fishing, and it 
 puts the proof upon them that claim 
 liberam piseariam. 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." 
 
 s 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 next his land, 
 and may let it to another or to a 
 stranger." See, also, Gibbs v. Wool- 
 liscott, 3 Salk. 291. 
 
 6 Hopkins Academy v. Dickinson, 
 9 Cush. 544, 547. 
 
 7 The word " private " in this con- 
 nection would seem to exclude rivers, 
 whether fresh or salt, that are capa- 
 ble of navigation. Although in the 
 
114 
 
 THE LAW OF WATERS. 
 
 [OH. III. 
 
 §51. Same — The present English rule.— The rule thus 
 indicated may be adequate for a country like England, where 
 the rivers are small and rarely navigable in their natural con- 
 dition above the tide, 1 and where, also, the question has not 
 often arisen. 2 In Ireland, where the rivers are larger, the 
 question was directly presented, apparently for the first time 
 in the United Kingdom, in Murphy v. Byan, 3 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 imme.- 
 morial 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 
 
 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 chap- 
 ter, the terms "public rivers" and 
 " public streams " are applied to all 
 rivers that are a common passage. 
 
 1 Vernon-Harcourt (on Rivers and 
 Canals, ch. 3, p. 34; ch. 11, p. 155) 
 says that, with the exception of some 
 of the largest rivers of the world, few 
 rivers are by nature perfectly con- 
 venient for navigation beyond the 
 tidal portion of their course; and 
 that there are but two thousand five 
 hundred miles of navigable rivers in 
 England. 
 
 2 In Elder v. Burrus, 6 Humph. 
 (Tenn.) 358, 366, 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, and 
 %o its moral and social position. . . . 
 There are many rules of action recog- 
 
 nized in England as suitable, which 
 it would be folly in the extreme, in 
 countries differently located, to rec- 
 ognize as law; and, in our opinion, 
 this distinction between rivers ' navi- 
 gable ' and ' not navigable,' causing it 
 to depend upon the ebbing and flow- 
 ing of the tide, is one of them. The 
 insular position of Great Britain, the- 
 short courses of her rivers, and the 
 well-known fact that there are none 
 of them navigable above tide-water 
 but for very small craft, well war- 
 rants the distinction there drawn by 
 the common law. But very different 
 is the situation of the continental 
 powers of Europe in this particular. 
 Their streams are many of them 
 large and long and navigable to a 
 great extent above tide- water; and 
 accordingly we find that the civil 
 law, which regulates and governs 
 those countries, has adopted a very- 
 different rule." 
 3Ir. R.2C. L. 143. 
 
§ 52.] 
 
 KIVERS. 
 
 115 
 
 purpose of navigation; and that, beyond the point to which 
 the sea ebbs and flows, even in a river so used for public pur- 
 poses, the soil is prima facie in the riparian owners, and the 
 right of fishing private." And more recently the English law 
 has become settled in accordance with this view by the cases of 
 Pearce v. Scotcher, 1 and Tilbury v. Silva. 2 
 
 § 52. Same — Same. — According to the more recent decis- 
 ions in England, the title of the riparian owners extends to 
 the center of all non-tidal streams, 3 but the ground of prescrip- 
 tion on which the right of navigation has been thought to rest 
 is different from that supported by the early authorities, and 
 is inapplicable in this country. 4 In 1883 the question was re- 
 garded as not fully settled by Lord Denman, C. J., who, in 
 Williams v. "Wilcox, 5 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 presumably iu the 
 Crown; and, above that point, whether the soil at common 
 
 !9Q. B. D. 162. 
 
 H5 Ch. D. 98. 
 
 3 Orr Ewing v. Colquhoun, 2 App. 
 Cas. 839; Biokett v. Morris, L. R. 1 
 H. L. So. 47; Murphy v. Ryan, Ir. R. 
 2 O. L. 143; Dwyer v. Rich, Ir. R. 4 
 C. L. 424; Miller v. Little, 2 L. R. Ir. 
 304; - Hargraves v. Diddams, L. R. 10 
 Q. B. 582; Marshall v. Ulleswater 
 Nav. Go., 3 B. & S. 742; Bristow v. 
 Cormican, 3 App. Cas. 641, 666; Ir. 
 R. 10 C. L. 398, 412, 435; Bloomfield 
 v. Johnston, Ir. R. 8 C. L. 68; In re 
 De Burgho's Estate, [1896] 1 Ir. 274; 
 Mussett v. Buroh, 35 L. T. N. s. 486; 
 Hudson v. MoRae, 4 B. & S. 585; Grant 
 v. Oxford, L. R. 4 Q. B. 9 ; Mickleth wait 
 v. Newlay Bridge Co., 33 Ch. D. 133; 
 Devonshire v. Pattinson, 20 Q. B. D. 
 263. 
 
 i Post, §53. 
 
 5 8 Ad. & El. 314. 333. This impor- 
 tant passage of the opinion in Will- 
 iams 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 misun- 
 derstood by those writers, Lord Den- 
 man'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 v. Hamilton, 1 
 Macq. H. L 46, in which the lan- 
 guage of the court was limited to 
 navigable rivers. A comparison of 
 the two cases, and an examination of 
 the passage in De Jure Maris, ch. 2, 
 pi. 3, referred to in Williams v. Wil- 
 cox, shows that the two judges were 
 thinking of different subjects. See 
 Murphy v. Ryan, Ir. R. 2 C. L. 143, 
 153, 154; Ipswich Dock v. Overseers, 
 7 B. & 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 de jure to the soil 
 or fisheries of an inland lake; and 
 Lord Blackburn, referring to the 
 doubt expressed by Wightman, J., 
 in Marshall v. Ulleswater Nav. Co., 
 3 B. & S. 742, upon the question 
 
116 THE LAW OF WATEES. [Oh. III. 
 
 law was in the Crown or the owners of the adjacent lands (a 
 point perhaps not free from doubt), there was at least a juris- 
 diction in the Crown, according to Sir Matthew Hale, ' to re- 
 form 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 com- 
 plete." 
 
 § 53. Same — Grounds of the doctrine. — 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 English decisions appears to be de- 
 fective 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. 2 Woolrych 
 says: 3 "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 legis- 
 lative enactments, are public navigable rivers. This is the 
 most unfailing test to apply in order to ascertain a common 
 right; others have been attempted, and frequently without 
 
 whether the soil of lakes, like that of tide waters, would be worthy of grave 
 fresh-water rivers, prima facie be- consideration, if it were unfettered 
 longed to the riparian owners adfllum by authority; and Dowse, B., refer- 
 ence, or to the Crown, said: "That ring to the American decisions, said 
 learned judge did not think that the (p. 412) that it would amount to an 
 law as to land covered by still water absurdity if a man, who owned a strip 
 was so clearly settled to be the same of land containing perhaps a quarter 
 as the law as" to land covered by run- of an acre on the bank of the Missis- 
 ning water, as to justify him in un- sippi, should be entitled to a several 
 necessarily deciding that it was the fishery extending three-quarters of a 
 same. ... I own myself to be mile out to the middle of the river, 
 unable to see any reason why the law In the Exchequer Chamber (Ibid, 
 should not be the same, at least where pp. 412, 434), Whiteside, C. J., declared 
 the lake is so small, or the adjoining the test afforded by the title to be 
 manor so large, that the whole lake " an arbitrary rule, repugnant to rea- 
 is included in one property." In the son, convenience and the common 
 same case in the lower court, Pallas, sense of mankind." 
 C. B. (p. 402), considered that the 1 Citing Hale, De Jure Maris, ch. 2. 
 question whether "navigable" was 2 See post, § 55. 
 synonymous with " tidal," so as to 3 Woolrych on Waters, 31. 
 limit the public right of fishing to 
 
§53.] 
 
 EIVEES. 
 
 117 
 
 success." In England, prescription appears to be the ground 
 upon which the right of navigation in these waters now de- 
 pends, 1 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 highways by the legislature. 2 This is contrary 
 to Lord Hale, who makes no distinction in this respect be- 
 
 iKing v. Montague, 4 B. & C. 96; 
 Bristow v. Cormican, 3 A. C. 641; 
 Orr Ewing v. Colquhoun, 2 id 839; 
 Murphy v. Byan, Ir. K. 2 C. L. 143; 
 Hargreaves v. Diddams, L. R. 10 Q. 
 B. 582; Coulson & Forbes on Waters, 
 92, 93, 441; Addison on Torts (5th 
 Eng. ed.), 561. 
 
 2 In Berry v. Carle, 3 GreenL 269, 
 274, Weston, J., said, in speaking of 
 the public right of navigation in the 
 Saco River above the tide: "In the 
 case of Dunbar v. Vinal, in the Su- 
 preme Court of Massachusetts in 
 1801, it was decided ' that the navi- 
 gable waters of the country were a 
 common privilege for passing upon 
 them, and that the plaintiff had no 
 right to intercept it by a dam.' But 
 in the case of Spring v. Chase et al., 
 it was, in 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 a bridge 
 over Saco Eiver, above, but near, the 
 great falls and above the tide waters. 
 The defendants threw down the 
 bridge as a nuisance, for which they 
 were called upon to answer in tres- 
 pass. 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 convenient for 
 boats and rafts, and for many miles 
 above. These cases are not reported 
 at large, but are briefly stated in 2 
 Dane's Abridgment, 696." Evidence 
 of long-continued public use was also 
 
 held to be essential or material in 
 Scott v. Willson, 3 N. H. 321, 325; 
 State v. 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 v. 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 v. Carle erroneous, Wells, J., 
 saying: " If a stream could be sub- 
 ject to public servitude by long use, 
 only, many large rivers in newly set- 
 tled States, and some in the interior 
 of this State, would be altogether 
 under the control and dominion of 
 the owners of their beds, and the 
 community would be deprived of the 
 use of those rivers, which nature has 
 plainly declared to be public high- 
 ways. The true test, therefore, to be 
 applied in such cases, is, whether a 
 stream is inherently, and in its nat- 
 ure, capable of being used for the 
 purposes of commerce, for the float- 
 ing of vessels, boats, rafts, or logs. 
 When a stream possesses such a char- 
 acter, then the easement exists, leav- 
 ing to the owners of the bed all other 
 modes of use not inconsistent with 
 it." See, also, Carter v. Thurston, 58 
 N. H. 104, 106; 54 N. H. 545, 549, 
 overruling the dicta in Scott v. Will- 
 son, above cited; Tyrrell v. Lock- 
 hart, 3 Blackf. 136; Brubaker v. Paul, 
 7 Dana, 428; State v. Thompson, 2 
 Strob. (S. C.) 12; Hubbard v. Bell, 54 
 111. 110; Ellis v. Cary, 30 Ala. 725; 
 Rhodes v. Otis, 33 Ala. 578; Peters v. 
 New Orleans R Co., 56 Ala. 528. 
 
118 
 
 THE LAW OF WATERS. 
 
 [Oh. III. 
 
 tween tidal and fresh navigable rivers, and says that both are 
 common highways and prima facie publioi juris, whether 
 they are fresh or salt, whether they flow and reflow or not. 1 
 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 of transportation and travel, and the riparian owners 
 were permitted, in the absence of such evidence, to obstruct 
 large rivers by dams, bridges, or booms, or to demand com- 
 pensation from navigators, it would amount to a serious griev- 
 ance. _, 
 
 § 54. Same — Same. — Nature is competent, it has been said, 
 to make a navigable river without the aid of the legislature ; 2 
 and it is now established in this country, overruling the earlier 
 decisions, that the public have a right of passage over all fresh- 
 water streams which are by nature susceptible of general use, 
 and that in general those rivers are public and navigable in 
 law which are navigable in fact. 3 This right of navigation is 
 distinct from the public right of fishery, which may or may not 
 exist in the same waters. 4 
 
 JHale, De Jure Maris, chs. 1, 2, 3; 
 Hargrave's Law Tracts, 6, 8, 9; Will- 
 iams v. Wilcox, 8 Ad. & EL 314, 333, 
 referred to ante, § 52. 
 
 2 Martin v. Bliss, 5 Blackf. 35. 
 
 3 Hale, De Jure Maris, chs. 2, 3; 
 Williams v. Wilcox, 8 Ad. & EL 314, 
 333; Barney v. Keokuk, 94 U. S. 324; 
 Pound v. Turck, 95 U. S. 459; The 
 Daniel Ball, 10 WalL 557; The Mon- 
 tello, 20 WalL 430, 442; see Carter v. 
 Thurston, 58 N. H. 104, 106; Thomp- 
 son v. Androscoggin Co., 54 N. H. 545; 
 58 N. H. 108; Brown v. Chadbourne, 
 31 Maine, 9; Moor v. Veazie, 32 id. 343; 
 Wadsworth v. Smith, 11 id. 278; 
 Spring v. Russell, 7 Greenl. 273, 290; 
 Adams v. Pease, 2 Conn. 481; Ingra- 
 ham v. Wilkinson, 4 Pick. 268; Com. 
 v. Chapin, 5 Pick. 199, 202; Ayery v. 
 Fox, 1 Abb. U. S. 246; Smith v. 
 Rochester, 92 N. Y. 463, 479; Palmer 
 v. Mulligan, 3 Caines, 307 ; People v. 
 Piatt, 17 Johns. 195, 211; Hooker v. 
 Cummings, 20 Johns. 90; Canal Com- 
 
 missioners v. People, 5 Wend. 423; 
 Morgan v. King, 35 N. Y. 454; 30 
 Barb. 9; 18 Barb. 277; Munson v. 
 Hungerford, 6 Barb. 265; Rowe v. 
 Titus, 1 Allen (N. B.), 326; Esson v. 
 McMaster, 1 Kerr (N. B.), 501; Bois- 
 sonnault v. Oliv, Stuart (Low. Can.), 
 565; Moore v. Sanborne, 2 Mich. 519; 
 Lorman v. Benson, 8 Mich. 18; Rhodes 
 v. Otis, 33 Ala. 578, 596; Cox v. State, 
 3 Blackf. 193; Weise v. Smith, 3 
 Oreg. 445, 448; Healy v. Joliet R. Co., 
 2 I1L App. 435; People v. St. Louis, 5 
 Gilman, 351; Godfrey v. Alton, 12 HI. 
 29; Memphis v. Overton, 3 Yerger, 
 389; Elder v. Burrus, 6 Humph. 358; 
 Stuart v. Clarke, 2 Swan, 15; Sigler 
 v. State, 7 Baxter, 493; Yates v. Judd, 
 18 Wis. 118; Hickok v. Hine, 23 Ohio 
 St. 523; Selman v. Wolfe, 27 Texas, 
 68. 
 
 4 See Leconfield v. Lonsdale, L. R. 
 6 C. P. 665; People v. Piatt, 17 Johns. 
 195, 211. 
 
§ 55.] EIVEES. 119 
 
 § 55. Same — Same. — In theory, it would seem that pre- 
 scription, as suggested by "Woolrych, is the only ground upon 
 which the right of navigation can be reconciled with the pri- 
 vate ownership of the soil. The public right is said to be an 
 easement to which the title of the adjoining owners is sub- 
 jected, as in the case of a highway on the land, 1 but the anal- 
 ogy is imperfect. In the case of Ball v. Herbert, 2 Buller, J., 
 said: " Callis compares a navigable river to a highway, but no 
 two cases can be more distinct. In the latter case, if the way 
 be founderous and out of repair, the public have a right to go 
 on the adjoining land; but if a river should happen to be 
 choked 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, being confined within 
 specific lines and not extending over tracts of land generally ; 3 
 and the public right to use it arises by statute, or by dedica- 
 tion, prescription, contract, or by survey and plat. If by stat- 
 ute, compensation must be made ; in other cases the consent 
 of the owner is required. 4 But as the right of navigation ex- 
 tends to all waters which have a natural capacity for such 
 use, there is a general' presumption of an easement, 5 and the 
 owners of the adjoining lands can neither prevent its acqui- 
 
 1 Orr Ewing v. Colquhoun, 2 App. Converse, 44 Vt. 158; Jones v. Perci- 
 Cas. 839; Ingraham v. Wilkinson, 4 val, 5 Pick. 485; Hoyt v. Kennedy, 
 Pick. 268; Com. v. Chapin, 5 Pick. 170 Mass. 54; Holmes v. Seely, 19 
 190; Hooker v. Cummings, 20 Johns. Wend. 507. 
 
 90; Varicku Smith, 9 Paige, 137, 143; i See e. g., as illustrating the text 
 Morgan v. King, 35 N. Y. 454; Che- as to highways, State v. Kansas City 
 nango Bridge Co. v. Paige, 83 N. Y. Ry. Co., 45 Iowa, 139; State v. Welp- 
 178; 8 Hun, 292; Young v. Harrison, ton, 34 Iowa, 144; Detroit v. Detroit 
 6 Ga. 130, 141; McCullough v. Wall, Ry. Co., 23 Mich. 173; Oliphant v. At- 
 4 Rich. (S. C.) 68; Ensminger v. The chison County, 18 Kansas, 386; Belle- 
 People, 47 111. 384; Braxton v. Bress- ville v. Stookey, 33 111. 441; Grube v. 
 ler, 64 111. 488; The Magnolia v. Mar- Nichols, 36 111. 92; Johnson v. Stay- 
 shall, 39 Miss. 109; Morgan v. Read- ton, 5 Harr. (Del.) 448; Starkie v. 
 ing, 3 S. & M. 366. Richmond, 155 Mass. 188, 196. 
 
 2 Ball v. Herbert, 3 T. R. 253, 263; » There appears to be no analogy 
 Williams v. Wilcox, 8 Ad. & El. 314; for a general presumption of an ease- 
 Carrick v. Johnston, 26 Q. B. (Can.) 65. ment. Mr. Phear says there cannot 
 
 3 See e. g., Maddock v. Wallasey be such a presumption. Phear's 
 Local Board, 55 L. J. Q. B. 267 ; Brake Rights of Water, 15, note. Hawkins 
 v. Crider, 107 Penn. St. 200; Gentle- v. Rutter, [1892] 1 Q. B. 668; 40 W.R. 
 man v. Soule, 32 I1L 271 ; Plimpton v. 238. 
 
120 
 
 THE LAW OF "WATEES. 
 
 [OH. III. 
 
 sition or exercise, 1 or obtain compensation for such subjection 
 of private property to common use. The anomalous nat- 
 ure of this doctrine is further illustrated by a decision in 
 Michigan, in which it was held that the right of navigation in 
 a private fresh river, though nominally an easement, is not, 
 like other easements, an incorporeal hereditament or real es- 
 tate; and that an action for obstructing this right, though 
 local at common law, was not so under a statute which made 
 actions on the case, for injuries to real estate, local, and other 
 actions transitory. 2 
 
 § 56. Same — The rule in New England. — In this country 
 the doctrine of private ownership has been quite 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. 3 It is in force in all of 
 the New England States, 4 where the fresh rivers are com- 
 
 1 An easement cannot be supported 
 on the ground of long user, unless it 
 was capable of prevention, or action- 
 able at some time by the owner of 
 the servient tenement. Sturges v. 
 Bridgman, 11 Ch. D. 852; Gilmore v. 
 Driscoll, 122 Mass. 199, 207; Mitchell 
 v. Mayor, 49 Ga. 19; Webb v. Bird, 13 
 C. B. N. s. 841; Chasemore v. Rich- 
 ards, 7EL Cas. 349; Murgatroyd v. 
 Robinson, 7 E. & B. 391. 
 
 2 Barnard v. Hinckley, 10 Mich. 458; 
 "Williamson v. Haskell, 50 Mich. 364. 
 A navigable river is not a " highway " 
 within a statute against gaming, but 
 may be a public place. Dickey v. 
 State, 68 Ala. 508. See State v. Dover 
 R. Co., 43 N. J. L. 528. 
 
 s Post,§% 64, 75. 
 
 4 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 R. Co., 17 Conn. 40, 63; 
 Mill River Woollen Manuf. Co. v. 
 Smith, 34 Conn. 463. In New Hamp- 
 shire, Scott v. Willson, 3 N. H. 321; 
 Rix v. Johnson, 5 N. H. 520; State v. 
 
 Gilmanton, 9N.E 461; 14 N. H 467; 
 Greanleaf v. Kilton, 11 N. H. 530; 
 State v. Canterbury, 28 N. H 195; 
 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. v. Bradley, 
 52 N. H. 86. (In Nichols v. Suncook 
 Manuf. Co., 34 N. H 345, it was held 
 that adverse possession of land bor- 
 dering upon a river not navigable,, 
 gives title to the thread of the stream.) 
 Claremont v. Carlton, 2 N. H. 369; 
 Thompson v. Androscoggin Co., 54 
 N. H. 548; 58 id. 108; Carter v. Thur- 
 ston, 58 N. H. 104. In Vermont, 
 Fletcher v. Phelps, 28 Vt. 257, 262. 
 In Maine, Berry v. Carle, 3 Maine, 
 269; Morrison v. Keen, 3 id. 474; Lin- 
 coln v. Wilder, 29 id. 169; Spring i\ 
 Russell, 7 id. 273, 290; Spring v. Sea- 
 vey, 8 id. 138; Wadsworth v. Smith,. 
 11 id. 278; Bradley v. Rice, 13 id. 198, 
 201; Nickerson v. Crawford, 16 id. 
 245; Brown v. Chadbourne, 31 id. 9; 
 Knox v. Chaloner, 42 id 150; Moor v. 
 Veazie, 32 id. 343; 31 id. 360; 14 How. 
 568; Bradford v. Cressey, 45 Maine, 
 
§56.] 
 
 EIVEES. 
 
 121 
 
 paratively unimportant, although in Rhode Island it does 
 not appear to have been directly passed upon. 1 In an early 
 case 2 in Massachusetts, Parker, 0. J., said: 3 ' The 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-water 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 Eiver above the tide, in 
 Connecticut, 4 Massachusetts, 5 and New Hampshire, 6 and to the 
 Penobscot 7 and Saco 8 Eivers in Maine ; and in Canada and 
 the British provinces and colonies in which the question has 
 arisen for decision, 9 it is held applicable to the smaller non- 
 tidal rivers. In Vermont, Lake Champlain is public property, 
 and the creeks and streams which empty into that lake, so far 
 as they are ordinarily of the same level as the lake, and rise 
 
 9; Strout v. Millbridge Co., 45 id. 76; 
 Veazie v. Dwinell, 50 id. 479, 484; 
 Granger v. Avery, 64 id. 292; Holden 
 v. Robinson Manuf. Co., 65 id. 215; 
 Pejepscot Proprietors v. Cushman, 2 
 id. 94. For the Massachusetts cases, 
 see the next note. 
 
 1 See Hughes v. Providence E. Co., 
 2E.L 508, 512; Olney v. Fenner, id. 
 211, 214 See Tyler v. Wilkinson, 4 
 Mason, 397, which related to the Paw- 
 tucket River; Storer v. Freeman, 6 
 Mass. 435, 438; Hatch v. D wight, 17 
 Mass. 289, 298; Ingraham v. Wilkin- 
 son, 4 Pick. 268; Com. v. Chapin, 5 
 Pick. 199; Waterman v. Johnson, 13 
 Pick. 261, 265; Hopkins Academy v. 
 Dickinson, 9 Cush. 544, 547; Com. v. 
 Alger, 7 Cush. 53, 90, 97; McFarlin 
 v. Essex Co., 10 Cush. 304, 309; Blood 
 v. Nashua R. Co., 2 Gray, 137, 139; 
 Boston v. Richardson, 13 Allen, 146, 
 154; 105 Mass. 351, 355; Com. v. Vin- 
 cent, 108 Mass. 441, 447; 1 Dane's 
 Abr. ii, 692, § 13; Knight v. Wilder, 
 2 Cush. 199; King v. King, 7 Mass. 
 496. 
 
 2 Ingraham v. Wilkinson, 4 Pick. 
 
 268. See, however, the opinion of 
 the same judge in Com. v. Chapin, 
 5 Pick. 199, 202. 
 
 3 Ibid. 272. 
 
 4 Adams v. Pease, 2 Conn. 481, and 
 cases above cited; Welles v. Bailey,. 
 55 Conn. 292. 
 
 5 Com. v. Chapin, 5 Pick. 199; Bard- 
 well v. Ames, 22 Pick. 333; Hopkins 
 Academy v. Dickinson, 9 Cush. 544, 
 547. 
 
 6 State v. Canterbury, 28 N. H. 195. 
 In this case a town was bounded 
 upon the river. 
 
 7 Veazie v. Dwinel, 50 Maine, 479. 
 
 8 Berry v. Carle, 3 Greenl. 269; 
 Spring v. Russell, 7 id. 273, 290. 
 
 9 Esson v. McMaster, 1 Kerr (N. B.), 
 501; Re Trent Valley Canal, 12 Ont. 
 154; Queen v. Robertson, 6 Can. Sup. 
 Ct. 52; Att. Gen. v. Harrison, 12 Ch. 
 (Ont.) 466. In Dixson v. Snetsinger, 
 23 C. B. (Ont.) 235, it was held that 
 the St. Lawrence River above the 
 tide is the property of the Crown. 
 See, also, Gage v. Bates, 7 C. P. (Ont.) 
 116; Whelan v. McLachtlan, 16 id. 
 102; infra, § 82, last note. 
 
122 
 
 THE LAW OF WATERS. 
 
 [Ch. III. 
 
 and faH with its waters, are held to be public also; and pri- 
 vate 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. 1 
 
 § 57. Same — In New York. — In ]few York, the question 
 has given rise to conflict of decision. 2 The later decisions 
 a'dopt the common-law rule, 3 which has been held there appli- 
 cable to streams of the first magnitude, such as the Hudson, 4 
 the Oswego, 5 and the Genesee. 6 Rivers. The Mohawk River 
 seems, however, to form an exception. In the case of The 
 
 i Fletcher v. Phelps, 28 Vt. 257, 262; 
 Jakeway v. Barrett, 38 Vt. 316, 323; 
 Austin v. Rutland E. Co., 45 Vt. 215; 
 17 Fed. Rep. 466; Newton v. Eddy, 
 23 Vt. 319. 
 
 2 Palmer v. Mulligan, 3 Caines, 307; 
 People v. Piatt, 17 Johns. 195 ; Hooker 
 v. Cummings, 20 Johns. 90; Canal 
 Appraisers v. People, 5 Wend. 423; 
 People v. Canal Appraisers, 13 Wend. 
 355; 17 Wend. 571; People v. Sey- 
 mour, 6 Cowen, 579; Ex parte Jen- 
 nings, 6 Cowen, 518, and notes; Ex 
 parte Tibbits, 6 Cowen, 551; 5 
 Wend. 423; People v. Seymour, 6 
 Cowen, 518; Arthur v. Case, 1 Paige, 
 44, 75, 447; 3 Wend. 632; Varick v. 
 Smith, 5 Paige, 137; 9 id. 547; Starr 
 v. Child, 20 Wend. 149; 5 Denio, 599; 
 4 Hill, 369; Jackson v. Halstead, 5 
 Cowen, 216; Jackson v, Louw, 12 
 Johns. 252; Munson v. Hungerford, 
 6 Barb. 265; Luce v. Carey, 24 Wend. 
 451; Com'rs v. Kempshall, 26 Wend. 
 404; Gould v. Hudson River R. Co., 6 
 N. Y. 522; People v. Tibbetts, 19 N. Y. 
 523; Browne v. Scofield, 8 Barb. 239; 
 Morgan v. King, 35 N. Y. 454; 18 
 Barb. 277; 30 id. 9; Mott v. Mott, 68 
 N. Y. 246; 8 Hun, 474; Pierrepont v. 
 Loveless, 72 N. Y. 211, 216; 4 Hun, 
 696; Chenango Bridge Co. v. Paige, 
 83 N. Y. 178; 8 Hun, 292. See also 
 Shawu Crawford, 10 Johns. 236; Fur- 
 man v. New York, 5 Sand. 16; Cur- 
 tis v. Keesler, 14 Barb. 511; Lownes 
 v. Dickerson, 34 Barb. 586, 592; Peo- 
 
 ple v. Allen, 1 Lans. 248; Champlain 
 R. Co. v. Valentine, 19 Barb. 484, 489; 
 Roberts v. Baumgarten, 110 N. Y. 380. 
 As to the legislation in this State, 
 bearing upon the ownership of rivers 
 and restricting the power of the com- 
 missioners of the land office so that 
 they can convey the soil of navigable 
 rivers and lakes only to the adjacent 
 owners, see Canal Appraisers v. Peo- 
 ple, 17 Wend. 571, 577: Gould v. Hud- 
 son River R. Co., 2 Selden, 522; 1 
 Greenl. Laws, 280; Laws 1815, ch. 199, 
 p. 201; 1 Rev. Laws, 293, §4; Laws 
 of 1850, ch. 283, p. 621; 1 Rev. Stats. 
 208, § 67; 1 Rev. Stats. (5th ed.), 552, 
 §82. 
 
 3 See Chenango Bridge Co. v. Paige; 
 Pierrepont v. Loveless; Mott v. Mott; 
 Morgan v. King, above cited; Smith 
 v. Rochester, 92 N. Y. 463; Buffalo 
 Pipe Line Co. v. New York R Co., 10 
 Abb. N. Cas. 107, 116, note; Wyan- 
 danch Club v. Davis, 53 N. Y. S. 993. 
 
 4 Palmer v. Mulligan, 3 Caines, 307; 
 Ex parte Tibbits, and Ex parte Rog- 
 ers, 6 Cowen, 551, note; Harris 'v. 
 Thompson, 9 Barb. 350; Walton v. 
 Tifft, 14 Barb. 216, 219. This river is 
 not a highway of the city of Albany. 
 Coonley v. Albany, 57 Hun, 331; 133 
 N. Y. 145. 
 
 5 Varick v. Smith, 9 Paige, 547; 5 
 Paige, 137. 
 
 6 Com'rs v. Kempshall, 26 Wend. 
 401. 
 
§58.] 
 
 EIVEES. 
 
 123 
 
 People v. Canal Appraisers, 1 Davis, J., delivered an elaborate 
 opinion, in 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 au- 
 thorities ; (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. 2 This decis- 
 ion does not appear to have been expressly overruled in its 
 application to the particular river, 3 but the first ground on 
 which the judgment proceeds cannot now be regarded as ten- 
 able. 4 The Niagara Eiver, which is the national boundary 
 between the United States and Canada, also forms another ex- 
 ception, under the decisions in New York, to the application 
 of the common-law rule in that State. 5 
 
 § 58. Same — In other States. — The English rule is also 
 adopted in New Jersey, 6 Delaware, 7 Maryland, 8 and Geor- 
 
 1 People v. Canal Appraisers, 33 N. 
 Y. 461; Crill v. Rome; 47 How. Pr. 
 398. See Klock v. New York Cent. 
 R Co., 62 Hun, 291. 
 
 2 33 N. Y. 466, 467, 475, 500. In 
 Smith v. Rochester, 92 N. Y. 463, 482 
 (see ante, § 30), Ruger, C. J., consid- 
 ered that this and other previous 
 cases relating to the Mohawk and 
 Hudson Rivers might properly have 
 been decided for reasons peculiar to 
 those streams, saying: "The titles 
 granted to the original settlers in the 
 Hudson and Mohawk valleys, as con- 
 strued by the rules of the civil law 
 prevailing in the Netherlands, from 
 whose government they were de- 
 rived, did not convey to their ripa- 
 rian owners the banks or beds of 
 navigable streams. Upon the sur- 
 render of this territory the guaranty 
 assured by the English authorities 
 to its inhabitants of the peaceful en- 
 joyment of their possessions simply 
 confirmed the right already pos- 
 
 sessed, and the beds of navigable 
 streams, never having been conveyed, 
 became, by virtue of the right of 
 eminent domain, vested in the Eng- 
 lish government as ungranted lands, 
 and the State of New York, as a con- 
 sequence of the Revolution, suc- 
 ceeded to the rights of the mother 
 country." And see People v. Page, 
 56 N. Y. S. 834; 58 id. 239. 
 
 3 ,See Crill v. Rome, 47 How. Pr. 
 398; People v. Gutchess, 48 Barb. 
 656, 667; Canal Appraisers v. People, 
 17 Wend. 571,608; Fort Plain Bridge 
 Co. v. Smith, 30 N. Y. 44. 
 
 4 See ante, §§ 30, 42, 48, notes. 
 
 5 Kingman v. Sparrow, 12 Barb. 
 201; Canal Appraisers v. People, 17 
 Wend. 571, 597; Re State Reserva- 
 tion at Niagara, 16 Abb. N. C. 159. 
 See §§ 82, 82a, post. As to fishing in 
 the Niagara River, see People v. Gil- 
 lette, 11 N. Y. S. 461. 
 
 <* Arnold v. Mundy, 1 Halst. 1; 10 
 Am. Dec. 385, note; Gough v. Bell, 
 
 7 Delaney v. Boston, 2 Harr. (Del.) 
 489; Bickel v. Polk, 5 id. 325. 
 
 8 Browne v. Kennedy, 5 H. & J. 
 196; Ridgely v. Johnson, 1 Bland 
 Ch, 316, note; Baltimore v. McKim, 
 
 3 id. 453; Binney's Case, 2 id. 99; 
 Casey v. Ingloes, 1 Gill, 430; Day v. 
 Day, 22 Md. 530, 537; Goodsell v. 
 Lawson, 42 Md. 348; Chapman v. 
 Hoskins, 2 Md. Ch. 485. 
 
124 THE LAW OF WATERS. [Ch. III. 
 
 gia. 1 In the last named State it is held that, as the western 
 bank of the Chattahoochee Biver, and not the river itself, is the 
 boundary between that State and Alabama, 2 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 the thread of the stream. 3 
 
 § 59. Same — South Carolina. — In South Carolina, the com- 
 mon-law rule was considered inapplicable to the condition of 
 that State in the early case of Cates v. "Waddington ; 4 but, in 
 the later case of McCullough v. Wall, 5 the court said : " The 
 rivers of our own State are not of remarkable magnitude, 
 and whether we adhere to the common-law definition, or con- 
 sider as navigable 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 
 considerations of public convenience, to assume legislative dis- 
 cretion in the matter, is not likely by any decision to extend 
 the rules which by the common law are applicable to naviga- 
 ble 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 
 
 2 Zab. 441, 490; Bell v. Gough, 3 Zab. Moses v. Eagle Manuf. Co., 62 Ga. 
 
 624; Martin v. Waddell, 3 Harr. 495; 455; Cook v. Winter, 68 Ga. 259. 
 
 16 Peters, 367; Eundle v. Delaware The boundary between Georgia and 
 
 Canal Co., 1 Wall. Jr. 275; 14 How. South Carolina is the thread of the 
 
 80; Att. Gen. v, Delaware E. Co., 27 channel of the Savannah river. Simp- 
 
 N. J. Eq. 1, 8, 631; Society v. Low, 17 son v. State, 92 Ga. 41. 
 
 id. 19; Cobb v. Davenport, 32 N. J. L. * 1 McCord, 580. 
 
 369. 5 McCullough v. Wall, 4 Eich. 68, 
 
 1 Young v. Harrison, 6 Ga. 130, 141 ; 86; Boatwright v. Bookman, Eice, 
 Jones v. Wateiiot Co.,, 18 Ga. 539; 447; Jackson v. Lewis, Cheves, 259; 
 Stanford v. Mangin, 30 Ga. 355; Hen- State v. Hickson, 5 Eich. 447; Witt 
 drick v. Cook, 4 Ga. 241; Shively v. v. Jeffcoat, 10 Eich. 388; Noble v. 
 Bowlby, 152 U. S. 1. See, generally, Cunningham, McMullan, 289; Hey- 
 Cobb's Digest of the Laws of Georgia, ward v. Farmers' M. Co., 42 S. C. 138. 
 p. 902 et seq. In Florida, see State v. In Shands v. Triplet, 5 Eich. Eq. 76, 79, 
 Black Eiver P. Co., 27 Fla. 276, In the court say of the passage quoted 
 Alabama, see Webb v. Demopolis, 95 in the text: "We entirely concur in 
 Ala. 116. this doctrine as to rivers altogether 
 
 2 Howard v. Ingersoll, 13 How. within the State, reserving our opin- 
 (U. S.) 381; Alabama v. Georgia, 23 ion as to rivers which maybe con- 
 id. 505. terminous between this and other 
 
 3 Young v. Harrison, 6 Ga. 130; States." Seethe numerous statutes 
 Jones v. Waterlot Co., 18 Ga. 539; upon the subject of rivers, in the- 
 
§ 60.] KIVERS. 125 
 
 a river, and to use it as a highway, subsists; to that the pro- 
 prietary right in the soil is subject; but so subject, the proprie- 
 tary right exists in the owners to whom it has been granted, 
 above the falls at any rate, as we may now safely say." 
 
 § 60. Same — North Carolina. — In North Carolina, this 
 rule has frequently been declared by the courts to be inap- 
 plicable to the condition of the country. 1 An early statute of 
 this State provided that where a survey is made upon any nav- 
 igable 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 surveying them. 2 Under these provisions, all waters, 
 whether fresh or salt, which are capable of navigation by sea- 
 going vessels, are held to be navigable. 3 Lands covered by 
 such waters are not subject to entry and grant, under the 
 entry laws of the State ; 4 but islands and rocks which are above 
 the surface of the water, are vacant property, and subject to 
 those laws. 5 With respect to the right of fishing, it was held 
 in an early case 6 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 fish- 
 ery opposite their lands to the thread of the stream. This ap- 
 pears, however, to be overruled by later adjudications in the 
 same State. 7 In Tennessee, which was formerly included 
 within the territory of North Carolina, the same rules prevail 
 as to the ownership of the soil of navigable streams. Nav- 
 igable waters are here considered to be those which, in the 
 ordinary state of the water, are capable of navigation by ves- 
 
 ninth volume of the State Statutes, 2 Ibid. ; Ingraham v. Threadgill, 3 
 
 and State v. Young, 30 S. C. 399. Dev. 59. 
 
 i Wilson v. Forbes, 2 Dev. 30; Col- 3 Ibid.; State v. Eason, 114 N. C. 
 
 lins v. Benbury, 3 Ired. 277 ; 5 id. 118 ; 787. 
 
 Gilliam v. Bird, 8 id. 280, 284; Fagan 4 Tatum v. Sawyer, 2 Hawks, 226; 
 v. Armistead, 11 id. 433; Lewis v. Smith v. Ingram, 7 Ired. 175. 
 Keeling, 1 Jones Law, 299; State v. s Jones v. Jones, 1 Hay, 488; Mac- 
 Dibble, 4 id. 107; Ward v. Willis, 6 kenzie v. Hulet, N. C. T. R. 181; 1 
 id. 183; State v. Glen, 7 id. 321; Cor- Battle's Dig. 404; Ward v. Willis, 6 
 nelius v. Glenn, id. 512; Skinner v. Jones, 183. 
 
 Hettiok, 73 N. C. 53; State v. Pool, 74 6 Ingraham v. Threadgill, 3 Dev. 59. 
 
 N. C. 402, 407; State v. Tomlinson, 77 7 See the cases above cited. 
 N. C. 528. See 38 Cent. L. J. 483. 
 
126 
 
 TILE LAW OF WATERS. 
 
 [Ch. in. 
 
 sels 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. 1 Hence, a grant of 
 the bed of a navigable stream, and of the exclusive right of tak- 
 ing deposits therefrom, is void. 2 
 
 § 61. Same — "Virginia. — In Virginia, early acts of the leg- 
 islature prohibited grants of the banks, shores, and beds of 
 rivers and creeks, 3 and patents for land which form part of the 
 bed of a navigable river are held to be void. 4 These provis- 
 ions seem to apply to navigable waters whether fresh or salt. 
 It is held here, as elsewhere, that a conveyance of land bounded 
 upon an unnavigable stream carries with it the title to the- 
 thread of the stream. 5 
 
 § 62. Same — Kentucky. — The earlier cases in Kentucky 
 tend to reject the common-law rule, and are in favor of limit- 
 ing the title of the riparian owner to low-water mark. 6 But 
 in the recent case of Berry v. Snyder, 7 it was held that an 
 
 i Elder v. Burrus, 6 Humph. 358; 
 Roberts v. Cunningham, Martin & 
 Yerg. 67; Stuart v. Clark, 2 Swan, 9; 
 Sigler v. State, 7 Baxter, 493 ; Martin 
 v. Nance, 3 Head, 649; Memphis v. 
 Overton, 3 Yerger, 387; Holbert v. 
 Edens, 5 Lea, 204; Irwin v. Brown 
 (Tenn.), 12 S. W. Rep. 340. 
 
 2 Goodwin v. Thompson, 15 Lea, 
 209; Hey ward v. Farmers' M. Co., 42 
 S. C. 138. 
 
 U Rev. Code, pp. 142, 423; Code of 
 Virginia, tit. 19, oh. 63, § 1. 
 
 * Norfolk City v. Cooke, 27 Gratt. 
 430; Mead v. Haynes, 3 Rand. 33, 36; 
 Home v. Richards, 4 Call, 441. See, 
 also, French v. Bankhead, 11 Gratt. 
 136; Richards v. Hoome, 2 Wash. 
 (Va.), 36; Wroe v. Harris, id. 126; 
 Martin v. Beverley, 5 Call, 444; 10 
 Va. L. J. 321. 
 
 5 Hayes v. Bowman, 1 Rand. 417; 
 Mead v. Haynes, 3 Rand. 33; Cren- 
 shaw v. Slate River Co., 6 Rand. 245; 
 Home v. Richards, 4 Call, 441. As to 
 the 'compact of 1785 between Vir- 
 ginia and Maryland, in its relation 
 
 to the District of Columbia and ju- 
 risdiction over the Potomac River, 
 see Wharton v. Wise, 153 U. S. 155; 
 Aitcheson v. Endless Chain Dredge, 
 40 Fed. Rep. 253; Ex parte Marsh, 57 
 id. 719; Hendricks v. Com., 75 Va. 
 934; State v. Hoof man, 9 Md. 28. As- 
 to the interest of the United States 
 in the Potomac River flats, see United 
 States v. Morris, 6 Mackey, 90. 
 
 6 Louisville v. United States Bank, 
 3 B. Mon. 138, 143; Thurman v. Mor- 
 rison, 14 id. 367; Morrison v. Thur- 
 man, 17 id. 249; Hawkesville v. 
 Lander, 8 Bush, 679. See also Trust- 
 ees v. Wagnon, 1 A. K. Marsh. 243; 
 Cockrell v. M'Quinn, 4 Mon. 61 ; Bruce 
 v. Taylor, 2 J. J. Marsh. 160; Hart v. 
 Rogers, 9 B. Mon. 418, 422. 
 
 ? 3 Bush, 266, 274, followed, apply- 
 ing the common-law rule to the- 
 Cumberland River, in Williamsburg 
 Boom Co. v. Smith, 84 Ky. 372; Ken- 
 tucky Lumber Co. v. Green, 87 Ky. 
 257. See Louisville Bridge Co. v. 
 Louisville, 81 Ky. 189; Henderson 
 Bridge Co. v. Henderson City, 173 
 
§ 63.] EIYBES. 127 
 
 early grant by the State of Virginia, which 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 center 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 navigable river could not be granted ; 1 second, that as the 
 jurisdiction and boundary line of the State extend to low- 
 water mark on the northern shore, 2 it would seem that there 
 is no reasbn 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, 3 which appear not 
 to have been called to the attention of the court in Berry v. 
 Snyder. 
 
 §63. Same — Mississippi. — The case of The Magnolias 
 Marshall, 4 in Mississippi, related to the right of soil between 
 high and low- water mark on the Mississippi Eiver, but the title 
 to the river-bed was fully considered by the court. Harris, J.,. 
 after referring to the authorities usually cited upon the ques- 
 
 U. S. 592; Murray v. Preston (Ky.), 50 pression ,or idea, they are called. 
 
 S.W. Rep. 1095; post,% 71. In the first ' arms of the sea.' But it is different 
 
 case, Williams, J., suggests the f ol- with all the great rivers of the earth 
 
 lowing reasons for a distinction be- above tide water. These are depend- 
 
 tweenthe title to the beds of fresh ent for their supply from the clouds." 
 
 and salt waters: "So long as the In Miller v. Hepburn, 8 Bush, 326, it 
 
 ocean keeps its bed, and nature's was held that Berry v. Snyder settled 
 
 present frame shall continue to exist, the rule in this State in favor of the 
 
 there will always be water up to the doctrine of the common law. 
 
 ocean's level in all those channels 1 Ante, §61. 
 
 where the tide ebbs and flows, and 2 Post, §71. SeeHandly v. Anthony, 
 
 this is not dependent upon the water 5 Wheat. 374; Conway v. Taylor, 1 
 
 falling in rain ; therefore, these chan- Black, 603; Church v. Chambers, 3 
 
 nels are filled to ocean's level twice Dana, 278; McFall v. Com., 2 Met. 
 
 every twenty-four hours, and are (Ky.), 396; Fleming v. Kenny, 4 J. J. 
 
 constantly and uniformly navigable. Marsh. 158; McFarland v. McKnight, 
 
 Their navigability does not depend 6 B. Mon. 510; Stanberry v. Mallory, 
 
 upon a season more or less rainy, but 101 Ky. 49. 
 
 on the constant, unvarying laws of 3 Ante, § 58. See Ravenswood v. 
 
 nature, and will remain as surely Fleming, 22 W. Va. 52. 
 
 navigable as the sea itself. Though 4 39 Miss. 109. See also Morgan v. 
 
 not so deep, their surface level is the Eeading, 3 S. & M. 366; Com'rs v. 
 
 same; hence, without violence of ex- Withers, 29 Miss. 21. 
 
128 THE LAW OF WATERS. [Ch. III. 
 
 tion, reasons: First, that the term " navigable," as employed 
 in the common-law authorities, has reference to the right pos- 
 sessed by all nations of navigating the ocean and its arms as 
 common 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; 1 second, that, under the law of 
 nations, while the shores of the sea, rivers, and other waters 
 forming boundaries between different states or nations, 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, 2 not as controlled by the nearest nation, but 
 according to the mutual convenience of the parties interested ; 3 
 yet rivers and waters which are not national boundaries and 
 do not constitute channels of international communication, in- 
 . eluding inland lakes and rivers, ports, harbors, and bays, the 
 entrance of which can be defended, are a part of the adjacent 
 nation and wholly subject to its control ; 4 and that the term 
 " navigable," as used in the common law, was thus borrowed 
 from the law of nations, and has reference to the right of free 
 navigation of the ocean and of the greater arms of the sea, not 
 mare clausum, and to the usage of civilized nations extending 
 this right as far as the sea ebbs and flows. 5 
 
 !39 Miss. 117. The reasoning of soil; and, by the law of nations, such 
 
 the court in this case has been ap- streams were 'not navigable' for 
 
 proved in Wisconsin. Olson v. Mer- other nations, except by treaty or 
 
 rill, 42 Wis. 203, 212; Diedrich v. special permission of the local sover- 
 
 Northwestern Ry. Co., 42 Wis. 248, eign. Hence they are called 'not 
 
 263. navigable,' in contradistinction to 
 
 2 Citing Vattel's Law of Nations, such waters, etc., as were common 
 bk. 2, pp. 180, 181; Wheaton's Int. to all nations." "It is certain that 
 Law, p. 243, § 12. under the deed of cession from 
 
 3 Citing Wheaton's Int. Law, pp. Georgia, as well as the several acts 
 243, 244, §§ 13, 14; p. 351, § 18; p. 255, and ordinances in reference to the 
 §19; Vattel's Law of Nations, p. 129, free navigation of the Mississippi 
 §§ 290-292. River as a common highway, no grant 
 
 4 Citing Wheaton's Int. Law, p. 256, could have been made here, inter- 
 § 19; Vattel's Law of Nations, p. 129, fering with this great public right. 
 §§ 290-292. See Houck on Rivers, 59. There is, therefore, no inconsistency, 
 
 s The opinion proceeds: "The right but, on the contrary, as before sug- 
 
 of navigation was always wholly de- gested, perfect harmony between the 
 
 pendent on the will of the sovereign jus privatum of riparian ownership 
 
 having the right of property in the in public fresh-water streams to the 
 
64.] 
 
 KIVERS. 
 
 129 
 
 §64. Same — Same. — "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 
 the decisions of the Supreme Court of the United States, Mis- 
 sissippi acquired 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 bound- 
 ary 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. 2 The suggestion, therefore, that Congress 
 
 middle of the river and the jus pub- 
 licum of free navigation thereof. The 
 soil is granted to the riparian pro- 
 prietor, subject to this public ease- 
 ment." 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 doctrine as to fresh- 
 water streams could the deed of ces- 
 sion by Georgia to the United States 
 and the act of Congress organizing 
 the Mississippi Territory and the sub- 
 sequent act admitting 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 legisla- 
 tion 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 as- 
 senting to all the views expressed in 
 the above opinion. 
 
 i Martin v. Waddell, 16 Peters, 367; 
 Pollard v. Hagan, 3 How. (XT. S.) 212; 
 Goodtitle v. Kibbe, 9 id. 471. " These 
 cases," say the court, in Barney v. 
 Keokuk, 94 IT. S. 324, 338, "related to 
 tide waters, it is true; but they enun- 
 ciate principles which are equally ap- 
 9 
 
 plicable to all navigable waters." See, 
 also, Renwick v. The D. & N. W. R. 
 Co., 49 Iowa, 664, 669. 
 
 2 Lawre*nce's Wheaton's Int. Law 
 (2d ed.), pp. 343, 346-360; "Wheaton's 
 Law of Nations, 577-583; Vattel, bk. 
 1, ch. 22, §§ 266, 274; Marten, Precis 
 du Droit, bk. 2, ch. 1, § 39; Bluntschli, 
 Int. Law, 298, 299; State v. Milk, 11 
 Fed. Rep. 389; Handly v. Anthony, 5 
 Wheat. 374; The Apollon, 9 Wheat. 
 362, 369; The Fame, 3 Mason, 147; 
 Corfleld v. Coryell, 4 Wash. C. C. 
 384; Bennett v. Boggs, Bald. 60; Mis- 
 sissippi R Co. v. Ward, 2 Black, 485; 
 An Open Boat, 1 Ware, 26, 28; Spears 
 v. State, 8 Texas App. 467; Stillman 
 v. White Rock Manuf. Co., 3 Wood. 
 & M. 538; Missouri v. Kentucky, 11 
 Wall. 395, 401; Gilbert v. Moline 
 Water Power Co., 19 Iowa, 319; State 
 v. Mullen, 35 Iowa, 199; Canal Ap- 
 praisers v. People, 17 Wend. 571, 597; 
 Mahler v. New York Transp. Co., 35 
 N. T. 352; People v. Central R. Co., 
 48 Barb. 478; Tinicum Fishing Co. v. 
 Carter, 61 Penn. St. 21, 30; Brown v. 
 Camden R. Co., 83 id. 316; Myers 
 v. Perry, 1 La. Ann. 372; Phillips v. 
 People, 55 111. 429; Att. Gen. v. Dela- 
 ware R. Co., 27 N. J. Eq. 1, 631. If 
 a nation possesses both banks of a 
 river, and grants to another nation 
 the territory on one side only, it re- 
 tains the river within its domain, 
 and the grantee takes to low-water 
 
130 THE LAW OF WATERS. [Ch. III. 
 
 adopted the common-law rule in fixing the western boundary 
 of the State does not necessarily affect the question whether 
 the riparian owner, upon the one hand, or the State, upon the 
 other, owns the river-bed. 1 With respect to the law of na- 
 tions, the opinion proceeds upon grounds not clearly estab- 
 lished, and appears to disregard 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, 2 and between that line 
 and the high- water mark the Crown's right of property is sub- 
 ject to the jus publicum of its subjects, and has never been 
 regarded in that country as burdened with an easement in 
 favor of foreign nations. 3 There appears, also, to be no au- 
 thority 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 English law 4 with respect to the 
 admiralty jurisdiction and the jus privatum 5 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. 6 That law does not distinguish be- 
 tween rivers by the absence or presence of the tide ; 7 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. 8 " 
 The reasoning of Harris, J., appears to be at variance with these 
 principles. 
 
 § 65. Same — Pennsylvania. — In Pennsylvania the Eng- 
 lish doctrine has always been rejected. 9 The early case of 
 
 mark only. Handly v. Anthony, 5 6 Lawrence's "Wheaton's Int. Law- 
 Wheat. 374. (2d ed.), 342, 346-360; Hall's Interna- 
 
 1 Hagan v. Campbell, 8 Porter, 9. tional Law, 113, 114, and authorities 
 
 2 Regina v. Keyn, 2 Ex. D. 63; ante, above cited in this section, as to 
 
 §§ 11, 12. boundary rivers between States. 
 
 3 See authorities cited ante, §§ 21, ' Ibid. 
 
 28. 6 ibid. 
 
 *Ante, §§8, 12. 'Carson v. Blazer, 2 Binney, 475; 
 
 SAnte, §§ 17-19. Com. v. Fisher, 1 Penn. 462; Cooper 
 
§65.] 
 
 KIVERS. 
 
 131 
 
 Carson v. Blazer 1 proceeded 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 if 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," yet 
 these concessions were to be construed as personal and as con- 
 fined 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 2 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 dis- 
 tinct from the lands adjacent to the banks both under the pro- 
 prietary and State governments, being sold by special contract 
 and for higher prices than the ordinary river lands. The rule 
 
 v. Smith, 9 S. & R. 26; Shrunk v. 
 Schuylkill Nav. Co., 14 S. & R. 71; 
 Hart v. Hill, 1 Whart. 124; Ball v. 
 Slack, 2 Whart. 508; Coo vert v. 
 O'Conner, 8 Watts, 470; Birdu Smith, 
 8 Watts, 434; Dalrymple v. Mead, 1 
 Grant's Cas. 197; Union Canal Co. v. 
 Landis, 9 Watts, 228; Zimmerman v. 
 Union Canal Co., 1 Watts & S. 346; 
 Jones v. Janney, 8 id. 436; Johns v. 
 Davidson, 16 Penn. St. 512; Bailey 
 v. Miltenberger, 31 id. 37; Baker v. 
 Lewis, 33 id. 301; Barclay R. Co. v. 
 Ingham, 36 id. 194; Soliday v. John- 
 son, 38 id. 380; Flanagan v. Phila- 
 delphia, 42 id. 219; Monongahela 
 Bridge Co. v. Kirk, 46 id. 112; Mc- 
 Keen v. Delaware Canal Co., 49 id. 
 424; Stover v. Jack, 60 id. 339; Tini- 
 cum Fishing Co. v. Carter, 61 id. 21; 
 Wain wright v. McCullough,_63 id. 66; 
 Zug v. Com., 70 id. 138; Poor v. Mo- 
 Clure, 77 id. 214; Allegheny City v. 
 Moorehead, 80 id. 118; Philadelphia 
 v. Scott, 81 id. 80; Fisher v. Halde- 
 man, 20 How. 186; 1 Wall. Jr. 79, 297; 
 Simpson v. Neill, 89 Penn. St. 183; 
 
 Rundle v. Delaware Canal Co., 14 
 How. (U. S.) 80; Fulmer v. Williams, 
 122 Penn. St. 191. 
 
 1 2 Binney, 475. 
 
 2 Shrunk v. Schuylkill Nav. Co., 14 
 S. & R. 71; Hunter v. Howard, 10 S. 
 & R. 243; Stover v. Jack, 60 Penn. St. 
 339; Wainwright v. McCullough, 63 
 id. 66; Poor v. McClure, 77 id. 214, 
 220; Allegheny City v. Moorehead, 80 
 id. 118. With respect to private 
 rights to the islands in the rivers of 
 this State, see, also, Moore v. Mun- 
 dorff, 4 Yeates, 209 ; Shepherd v. Com., 
 1 S. & R. 1; McElear v. Elliot, 14 id. 
 242; Johns v. Davidson, 16 Penn. St. 
 512; Allegheny City v. Reed, 24 id. 
 39; Allegheny City v. Nelson, 25 id. 
 332; Fuller v. Murphy, 17 Pitts. L. J. 
 51; Fisher v. Haldemanj 20 How. 
 (U. S.) 186; Fisher v. Carter, 1 Wall. 
 Jr. 69; Pennsylvania Coal Co. v. Win- 
 chester, 109 Penn. St. 572. As to the 
 jurisdiction of this State in Lake 
 Erie, see Dunlap v. Com., 108 Penn. 
 St 607. 
 
132 THE LAW OF WATEKS. [Ch. III. 
 
 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 Kivers. In these the 
 fishery is a common right, and grants from the State, or be- 
 tween private persons, of lands bordering upon them, when 
 calling for the river as a boundary, do not extend the grantee's 
 title beyond the ordinary low-water mark, 1 and will not in- 
 clude islands which are connected with the main land only in 
 times of extraordinary drought. 2 So the wrongful diversion 
 of a navigable stream from its 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 fluctuations, 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, for the landing of boats and rafts, 4 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. 5 But as the riparian owner's title 
 extends, in the case of a navigable fresh river, to low-water 
 mark, he is entitled to a compensation from a railroad company, 
 
 i Hart v. Hill, 1 Whart. 137; Ball v. 5 Stover v. Jack, 60 Penn. St. 339; 
 
 Slack, 2 Whart. 508; Cooper v. Smith, Shrunk v. Schuylkill Nav. Co., 14 S. 
 
 9 S. & R 26; Naglee v. Ingersoll, 7 & R 71; Com. v. Fisher, 1 Penn. 462; 
 
 Penn. St. 185; Lehigh Valley R. Co. Zimmerman v. Union Canal Co., 1 
 
 < v. Trone, 28 id. 206; Stover v. Jack, 60 Watts & S. 346; Bailey v. Milten- 
 
 id. 339, 343; Palmer v. Farrell, 129 id. berger, 31 Penn. St 37; Flanagan v. 
 
 162; Jones v. Janney, 8 Watts & S. Philadelphia, 42 id. 219; Wainwright 
 
 436; Freytag v. Powell, 1 Whart. 536; v. McCullough, 63 id. 66; Wood v. 
 
 Hartley v. Crawford, 33 Leg. Int. 24; Appal, id. 210; Grant v. White, id. 
 
 & c. 23 Pitts. L. J. 127; Allegheny 271; Poor v. McClure, 77 id. 214, 219; 
 
 City v. Moorehead, 80 Penn. St. 118; Hartley v. Crawford, 81 id. (pt. 2), 
 
 16 Am. Jur. 286. So of the limits of 478; Philadelphia v. Scott, 81 id. 80, 
 
 .a municipality. Gilchrist's Appeal, 86; Lacy v. Green, 84 id. 514; Cooper 
 
 109 Penn. St. 600. v. Smith, 9 S. & R 26; Balliet v. 
 
 2 Ibid. ; Stover v. Jack, 60 Penn. St. Com., 17 Penn. St 206. The State, or 
 339. a company invested with its privi- 
 
 3 Wainwright v. McCullough, 63 leges, is the sole owner of the water 
 Penn. St. 66; Zug v. Com., 70 id. 138; in the streams declared public high- 
 ante, § 36, note. ways, and can use it all if deemed 
 
 4 O'Connor v. Bigler, 2 Pearson necessary for the public works. 
 (Pa.), 219; Pursell v. Stover, 110 Penn. Cameron Furnace Co. v. Penn. Canal 
 St. 43, and cases in next note. Co., 2 Pearson (Pa.), 208. 
 
§66.] 
 
 RIVERS. 
 
 133- 
 
 the construction of whose road causes the loss of a spring 
 situated between high and low-water mark, 1 although he could 
 not recover for the loss of a spring similarly situated on the 
 shore of a tidal river. 2 In this State, as elsewhere, grants of 
 land upon small unnavigable streams, following their courses 
 and distances, pass the right of soil to the center of the stream. 3 
 
 § 66. Same — Effect of admiralty decisions. — Private 
 rights in the navigable fresh-water rivers of this country, es- 
 pecially those in the Western and Southern States, are mate- 
 rially affected by a series of decisions in the 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, 4 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 protec- 
 tion of the Crown's prerogative rights in the sea. 5 The early 
 acts of Parliament, 6 which limited the admiralty jurisdiction 
 in civil cases to the " high seas," were usually construed by 
 
 i Lehigh Valley B. Co. v. Trone, 28 
 Penn. Sfe 206. 
 
 2 Com. v. Fisher, 1 Penn. 462. 
 
 » Coovert v. O'Conner, 8 Watts, 4*70; 
 Ball v. Slack, 2 Whart. 528; Barclay 
 B. Co. v. Ingham, 86 Penn. St. 190. 
 In Shrunk v. Schuylkill Nav. Co., 14 
 S. & E. 71, 79, Tilghman, C. J., said: 
 "I consider it settled in Pennsyl- 
 vania, by the decision in Carson v. 
 Blazer, that the owners of land on 
 the banks of the Susquehanna and 
 other principal rivers, have not an 
 exclusive right to fish in the river 
 immediately in front of their lands, 
 but that the exclusive right to fish- 
 eries, in these rivers, is vested in the 
 State, and open to all. It is unnec- 
 essary to enumerate at this time the 
 rivers which may be called principal, 
 but that name may be safely given 
 to the Ohio, Monongahela, Youhio- 
 geny, Allegheny, Susquehanna, and 
 its north and west branches, Juniata, 
 Schuylkill, Lehigh, and Delaware." 
 The effect of the compact of 1873, 
 
 between the States of Pennsylvania 
 and New Jersey, upon rights of fish- 
 ery, navigation, and jurisdiction in 
 the Delaware Eiver, is discussed in 
 Att. Gen. v. Delaware E. Co., 27 N. J. 
 Eq. 1, 631; McKeen v. Delaware Di- 
 vision Canal Co., 49 Penn. St. 424; 
 Tinicum Fishing Co. v. Carter, 61 
 Penn. St. 21; Hart v. Hill, 1 Whart. 
 124; Com. v. Frazer, 2 Phila. 191; 5 
 Am. L. Eeg. 167; Cobb v. Bennett, 
 75 Penn. St. 326; Bennett v. Boggs, 
 Bald. C. C. 60; 4 Am. Law Eeg. 582. 
 See Eundle v. Delaware Canal Co.,. 
 14 How. 80; 1 Wall. Jr. 275. 
 
 4 Sir Henry Constable's Case, 5 Co. 
 106; Leigh v. Burley, Owen, 122; De- 
 Lovio v. Boit, 2 Gall. 398. 
 
 5 Ibid. ; 2 Bacon's Abr. tit. Court of 
 Admiralty; 8 id. tit Prerogative, B. 
 3; Callis on Sewers, 39; 4 Inst. 124 r 
 134; Bains v. The James and Cath- 
 erine, Bald. C. C. 544, 537. 
 
 6 13 Eich. II, ch. 5; 15 Eich. II, 
 ch. 3; 2 Henry IV., ch. 11; Eamsay 
 v. Allegre, 11 Wheat. 611, 616: 
 
134 
 
 THE LAW OF WATEES. 
 
 [Oh. III. 
 
 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 counties, or inter fauces terrce, 1 
 however large or capable of navigation by sea-going vessels 
 such places might be. 2 Such was considered to be the law of 
 England when the question arose in this country. 3 But the 
 Judiciary Act of 1789 4 conferred upon the district courts ex- 
 clusive cognizance of all civil causes of admiralty and maritime 
 jurisdiction arising upon waters which are navigable from the 
 sea as well as upon the high seas; and in repeated decisions, 5 
 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 
 
 1 Ante, § 5. 
 
 2 See Leigh v. 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 ; Insurance Co. v. Dunham, 
 11 Wall. 1; Johnson v. Twenty-one 
 Bales of Cotton, 2 Paine, 601 ; 2 Bacon 
 Abr. tit. Court of Admiralty; 4 Inst. 
 137; Bruce's Case, 2 Leach, C. C. 1093; 
 2 Brown's Civ. & 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, id. 541; The 
 Griefswald, Swab. Adm. 430. 
 
 3 Ibid. ; Waring v. Clarke, 5 How. 
 (U. S.) 241; Talbot v. The Comman- 
 ders, 1 Dall. 98; New Jersey Steam 
 Nav. Co. v. Merchants' Bank, 6 How. 
 344; Ramsay v. Allegre, 12 Wheat. 
 611; The Huntress, Da vies, 93, note. 
 
 4 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 jurisdic- 
 tion 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, within their 
 respective districts, as well as upon 
 the high seas; saving to suitors, in 
 all cases, the right of a common-law 
 remedy, where the common law is 
 competent to give it; and shall have 
 exclusive original cognizance of all 
 seizures on land, or other waters than 
 as aforesaid, made, and of all suits for 
 penalties and forfeitures incurred, 
 under the laws of the United States." 
 5 The Thomas Jefferson, 10 Wheat. 
 428; Peroux v. Howard, 7 Peters, 324; 
 The Orleans v. Phoebus, 11 id. 175; 
 Waring v. Clarke, 5 How. 441; New 
 Jersey Steam Nav. Co. v. Merchants' 
 Bank, 6 How. 344; The Huntress, 
 Da vies, 82; Thomas u Lane, 2 Sum- 
 ner, 1. See also Rossiter v. Chester, 
 1 Dougl. (Mich.) 154; General Buell v. 
 Long, 18 Ohio St. 521; Bullock v. The 
 Lamar, 1 West. Law J. 444; Respub- 
 lica v. Davison, 4 Yeates, 125. The 
 admiralty jurisdiction does not ex- 
 tend over the land so as to include a 
 cause of damage originating on the 
 water, like a fire, and destroying 
 storehouses upon the wharf. The 
 Plymouth, 3 Wall. 20; ante, % 3a 
 
§ 66.]' eivees. 135 
 
 ^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 navigable rivers 
 and arms of the sea, as far as the tide ebbed and flowed in 
 them. In 1845 an act of Congress 1 was passed extending the 
 jurisdiction of the district courts to certain cases of a mari- 
 time nature in different States and Territories upon the lakes 
 and navigable waters connecting the lakes. In the case of 
 Genesee Chief, 2 the question arose whether this act was 
 constitutional, it being urged that it was not within that 
 -clause of the Constitution which empowers Congress to regu- 
 late commerce, and that if the constitutional grant of admi- 
 ralty 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 admiralty juris- 
 diction to tide waters, and the reasoning of Taney, C. J., who 
 delivered the opinion of the court, proceeds upon the ground 
 that the admiralty jurisdiction in this country extends to all 
 waters, whether fresh or salt, where navigation aids com- 
 merce between different States, or with foreign nations. 3 It 
 
 1 5 Stats, at Large, 726. This act sault on the open waters of the Great 
 provided that "the district courts of Lakes between which the Detroit 
 the United States shall have, possess, Eiver is a connecting stream. United 
 and exercise the same jurisdiction in States v. Rodgers, 150 U. S. 249; 26 
 matters of contract and tort arising U. S. Stats, p. 424. 
 in, upon, or concerning steamboats 3 The learned judge said: "There 
 and other vessels of twenty tons' is certainly nothing in the ebb and 
 burthen and upwards, enrolled and flow of the tide that mates the 
 licensed for the coasting trade, and waters peculiarly suitable for admi- 
 at the same time employed in busi- ralty jurisdiction, nor anything in 
 ness of commerce and navigation be- the absence of a tide that renders it 
 tween ports and places in different unfit. If it is a public navigable 
 States and Territories, upon the lakes water, on which commerce is carried 
 and navigable waters connecting said on between different States or na- 
 lakes, as is now possessed and exer- tions, the reason for the jurisdiction 
 cised by the said courts in cases of is precisely the same. And if a dis- 
 like steamboats and other vessels em- tinction is made on that account, it 
 ployed in navigation and commerce is merely arbitrary, without any 
 <upon the high seas or tide waters foundation in reason, and, indeed, 
 within the admiralty and maritime would seem to be inconsistent with 
 jurisdiction of the United States." it. In England, undoubtedly, the 
 
 2 12 How. 443, 454, 457. The Great writers upon the subject, and the de- 
 Lakes are "high seas," and under U.S. cisions in its courts of admiralty, 
 Rev. Stats., § 5346, the Federal courts always speak of the jurisdiction as 
 may try a person accused of an as- confined to tide water. And this 
 
136 
 
 THE LAW OF "WATERS. 
 
 [CH. III. 
 
 was accordingly held that the Great Lakes and the waters con- 
 necting them were originally public waters, and within the 
 grant of admiralty and maritime jurisdiction in the Constitu- 
 tion of the United States. 1 
 
 definition in England was a sound 
 and reasonable one, because there 
 was no navigable stream in the coun- 
 try 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 England, there- 
 fore, tide water and navigable water 
 are synonymous terms, and tide 
 water, with a few small and unim- 
 portant exceptions, meant nothing 
 more than public rivers, as contra- 
 distinguished from private ones; and 
 they took the ebb and flow of the 
 tide as the test, because it was a con- 
 venient one, and more easily deter- 
 mined the character of /the river. 
 Hence, the established doctrine in 
 England, that the admiralty juris- 
 diction is confined to the ebb and 
 flow of the tide. In other words, 
 it is confined to public navigable 
 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 thir- 
 teen 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 jurisdic- 
 tion, every public river was tide 
 water to the head of navigation. 
 And, indeed, until the discovery of 
 steamboats, there could be nothing 
 like foreign commerce upon waters 
 with an unchanging current resist- 
 ing the upward passage. The courts 
 of the United States, therefore, nat- 
 urally adopted the English mode of 
 
 defining a public river, and conse- 
 quently the boundary of admiralty 
 jurisdiction. It measured it by tide 
 water. And that definition, having 
 found its way into our courts, be- 
 came, 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 appli- 
 cable in this country as it was in 
 England. If there were no waters 
 in the United States which are pub- 
 lic, as contradistinguished from pri- 
 vate, 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 constantly used in 
 judicial proceedings and forms of 
 pleading, borrowed from England, 
 the public character of the river was 
 in process of time lost sight of, and 
 the jurisdiction of the admiralty 
 treated as if it was 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 estab- 
 lished forms, a definition, originally 
 correct, was adhered to and acted 
 on, after it had ceased, from a change 
 in circumstances, to be the true de- 
 scription of public waters." 
 
 1 The great inland lakes of Canada 
 are within the admiralty jurisdiction, 
 like the high seas, and offenses com- 
 mitted on such lakes may be inquired 
 into, although in American waters. 
 Eeg. v. Sharpe, 5P.E. (Canada), 135. 
 They and navigable rivers are pub- 
 lic waters, and the provincial legis- 
 latures cannot grant exclusive rights 
 
§67.] 
 
 EITEES. 
 
 137 
 
 § 67. Same — Same. — Such is now the established rule with 
 respect to the admiralty jurisdiction of the United States 
 courts, a jurisdiction which is no longer limited in locality by 
 the English rule, or by the acts of 1789 and of 1845. 1 The ebb 
 and flow of the tide does not now constitute the test of the 
 navigability of American waters, and those rivers are public 
 and navigable in law which are navigable in fact. 
 
 of fishery in such waters or legislate 
 respecting fisheries therein. In re 
 Jurisdiction over Provincial Fisher- 
 ies, 26 Can. Sup. 444. Inland lakes, 
 wholly within a State, are not nav- 
 igable waters of the United States. 
 Stapp v. Clyde, 43 Minn. 192. 
 
 iFretz v. Bull, 12 How. (IT. S.) 466; 
 "Walsh v. Eogers, 13 How. 283; The 
 New World, 16 How. 469; Ure v. 
 Coffman, 19 How. 56;- New York 
 Steamboat Co. v. Calderwood, 19 
 How. 245; Jackson v. The Magnolia, 
 20 How. 296; Allen v. Newbury, 21 
 How. 244; Maguire v. Card, 21 How. 
 248; Nelson v. Leland, 22 How. 48; 
 Philadelphia R. Co. v. Philadelphia 
 Towboat Co., 23 How. 215; The Com- 
 merce, 1 Black, 574; The St. Law- 
 rence, 1 Black, 522; The Fashion, 21 
 How. 244; The Plymouth, 3 Wall. 20, 
 34; Ad Hine v. Trevor, 4 Wall. 555; 
 17 Iowa, 349; The Moses Taylor, 4 
 Wall. 411; The Rock Island Bridge, 
 6 Wall. 213; The Belfast, 7 WalL 624; 
 The Eagle, 8 Wall. 15; The Daniel 
 Ball, 10 Wall. 557; The Cotton Plant, 
 10 Wall. 577; Insurance Co. v. Dun- 
 ham, 11 Wall. 1; Leon v. Garceran, 
 id. 185; Barney v. Keokuk, 94 U. S. 
 324; Ex parte Easton, 95 U. S. 68, 72; 
 Ex parte Boyer, 109 U. S. 629; Healy 
 v. Joliet R. Co., 116 U. S. 191 ; In re 
 Garnett, 141 U. S. 1; Easby v. Patter- 
 son, 28 Am. L. Reg. 145, note; The 
 Katie, 40 Fed. Rep. 480; The City of 
 Toledo, 73 id. 220; Steamboat Co. v. 
 Chase, 16 Wall. 522; 9 R. I. 419; The 
 Montello, 20 Wall. 430; The Lotta- 
 wanna, 21 Wall. 558; United States 
 v. Wilson, 3 Blatch. 435; The Sarah 
 Jane, 1 Lowell, 203; Raymond v. The 
 
 If, in their 
 
 Ellen Stewart, 5 McLean, 269; Rob- 
 erts v. Skolfield, 3 Ware, 184; The 
 Avon, 1 Brown Adm. 180; The Illi- 
 nois, id. 497; Revenue Cutter No. 1, 
 id. 76; The General ' Cass, id. 334; 
 Ends v. The H D. Bacon, Newb. Adm. 
 274; Parmlee v. The Charles Mears, 
 id. 197; Williams v. The Jenny Lind, 
 id. 443; McGinnis v. The Pontiac, id. 
 130; The Flora, IBiss. 29; TheElmira 
 Shepherd, 8 Blatch. 341; The Mary 
 Washington, 1 Abb. (U. S.) 1 ; Jones 
 v. The Coal Barges, 3 Wall. Jr. 53; 
 The Leonard, 3 Ben. 263; The Kate 
 Tremaine, 5 Ben. 60; Wolverton v.. 
 Lacey, 18 Law Rep. 672; Scott v. The 
 Young America, 1 Newb. Adm. 101; 
 The Illinois, 1 Brown Adm. 497; Mc- 
 Cormick v. Ives, Abb. Adm. 418; The 
 Ella B., 24 Fed. Rep. 508; Cope v. Val- 
 letta Dry Dock, 10 id. 142. Damages, 
 given by a State statute, for a marine 
 tort occurring on any navigable 
 water of the United States, may be 
 recovered in the proper district court 
 in admiralty. Holmes v. O. & C. R. 
 Co., 5 Fed. Rep. 75; The Clatsop Chief, 
 8 id. 163 ; Dorr v. Waldron, 62 111. 221 ; 
 The Josephine, 39 N. Y. 19; 50 Barb. 
 501; Vose v. Cockcroft, 44 N. Y. 415; 
 45 Barb. 58; Baird v. Daly, 4 Lans. 
 426; General Buell v. Long, 18 Ohio' 
 St. 521; Petrel v. Dumont, 28 id. 602; 
 Walters v. The Mollie Dozier, 24 
 Iowa, 192; Tug Boat Dorr v. Wal- 
 dron, 62 111. 221; Merrick v. Avery, 14 
 Ark. 370 ; Little Rock R. Co. v. Brooks, 
 39 Ark. 403; Morse v. Home Ins. Co., 
 30 Wis. 496; Willow River Club v. 
 Wade, 100 Wis. 86; 42 L. R. A. 305,. 
 and note; 4 Am. L. Rev. 664; 5 icL 
 582. 
 
13S 
 
 THE LAW OF WATEKS. 
 
 [Ch. III. 
 
 •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. 1 This departure from the precedents 
 of the English law tends to support the position' that the large 
 inland rivers of this country are public in respect to property. 
 In Barney v. Keokuk, 2 in the Supreme Court of the United 
 States, Bradley, J., in delivering the opinion of the court, ob- 
 served that the confusion of navigable with tide waters, found 
 
 1 Ibid. Such acts do not extend to 
 small streams declared navigable by 
 State statutes. Duluth Lumber Co. 
 v. St. Louis Boom Co., 17 Fed. Rep. 
 419. Nor to lakes and rivers wholly 
 within the limits of a State, and hav- 
 ing no navigable outlet to any other 
 State or country. United States v. 
 Burlington Ferry Co., 21 Fed. Eep. 
 331; Akling v. St. Louis & Tenn. R 
 P. Co. (Tenn.), 46 S. W. Rep. 24 
 
 2 94 U. S. 324. The learned judge 
 ^aid: "The confusion of navigable 
 with tide water, found in the monu- 
 ments of the common law, long pre- 
 vailed in this country, notwithstand- 
 ing the broad differences existing 
 between the extent and topography 
 •of the British island and that of the 
 American continent. It had the in- 
 fluence for two generations of exclud- 
 ing the admiralty jurisdiction from 
 our great rivers and inland seas; and 
 under the 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 
 principles of public policy. "Whether, 
 as rules of property, 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 their sovereign 
 capacity, it is not for others to raise 
 objections. In our view of the sub- 
 ject, the correct principles were laid 
 down in Martin v. Waddell, 16 Pet; 
 367; Pollard t>. Hagan, 3 How. (U. S.) 
 212; and Goodtitle v. Kibbe, 9 How. 
 (U. S.) 471. These cases related to 
 tide water, it is true; but they enun- 
 ciate principles which are equally 
 applicable to all navigable waters. 
 And since this court, in the case of 
 The Genesee Chief, 12 How. (U. S.) 443, 
 has declared that the Great Lakes 
 and other navigable waters of the 
 country, above, as well as below, the 
 flow of the tide, are, in the strictest 
 sense, entitled to the denomination 
 of navigable waters, and amenable 
 to the admiralty jurisdiction, there 
 seems to be no sound reason for ad- 
 hering to the old rule as to the pro- 
 prietorship of the beds and shores of 
 such waters. It properly belongs to 
 the States by their inherent sov- 
 ereignty, and the United States has 
 wisely abstained from extending (if 
 it could extend) its surveys and 
 grants beyond the limits of high 
 water. The cases in which this court 
 has seemed to hold a contrary view, 
 depended, as most cases must de- 
 pend, on the local laws of the States 
 in which the lands were situated." 
 
§ 68.] eivees. 139 
 
 in the monuments of the common law, had not only retarded 
 the development of the admiralty jurisdiction, 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. Same — The ordinance of 1787. — The ordinance of 
 the Confederate Congress of July 13, 1787, entitled " An or- 
 dinance for the government of the territory of the United 
 States north-west of the River Ohio," provided 1 that "the 
 navigable waters leading into the Mississippi and St. Law- 
 rence, and the carrying 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 be 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 pub- 
 lic highways.' 2 A similar provision appears in the constitu- 
 tions or statutes of the "Western ( States bordering upon the 
 Mississippi Eiver with respect to that river, 3 and in the acts of 
 Congress admitting them into the Union; 4 and in the early 
 treaties between Great Britain or the United States upon the 
 
 lArt. IV. ruff v. Bloomfleld G. M. Co., 8 Saw- 
 
 2 Acts of May 18 and June 1, 1796; yer, 628; 9 id. 441, such a provision, 
 March 3, 1803; March 26, 1804; Feb. in the act of Congress admitting 
 20 and March 3, 1811; April 8 and California into the Union, was held 
 June 4, 1812; March 1 and May 8, valid as a law under the authority 
 1817. of Congress to regulate commerce, 
 
 3 See, for example, Censt. of Wis- which the State cannot violate. The 
 consin,art. 9; Alabama Code of 1852, act of March 6, 1820 (3 Stats. 545), 
 p. 267, § 1205, and of 1851, p. 126, § 389; admitting Missouri into rthe Union, 
 Mississippi Code of 1851, p. 177; Ten- left the rights of riparian owners on 
 nessee Code (1858), p. 295 ; Gen. Stats, the Mississippi river to be determined 
 of Nebraska (1878), pp. 63, 65. by State law. St Louis v. Myers, 113 
 
 4 See, e. g., 2 Stats at Large, 349, U. S. 566. The same is declared in 
 642, 703, 747, 546; 3 id. 349, 543; 5 id. the act of Congress relating to the 
 428, 431; Hatch v. Wallamet Iron sale and disposition of the public 
 Bridge Co., 7 Sawyer, 127; 6 Fed. lands. 1 U. S. Stat, at Large, 466, 
 Rep. 326, 780; 27 id. 675. In Wood- 468; U. S. Rev. Stats. § 2476. 
 
140 THE LAW OF WATEKS. [Ch. III. 
 
 one hand, and Trance or Spain upon the other, it was provided 
 that the navigation of this river should be free throughout its 
 course. 1 These provisions may now, perhaps, be regarded as 
 declaratory 2 of the modern rule that all rivers which are ca- 
 pable of navigation in their natural condition are subject to 
 public use for that purpose, whether in other respects they are 
 held to be private property or not. 3 But at the time the or- 
 dinance of 1787 was enacted, the question whether a fresh 
 river is a public highway was thought to be dependent upon 
 proof of long user by the public. 1 The ordinance became in- 
 operative, except as adopted by the States formed out of the 
 Northwest territory, from the very conditions on which those 
 States were admitted into the Union. 5 Where it has been 
 adopted as a constitutional provision, it restrains the power of 
 the legislature to authorize obstructions which materially or 
 unnecessarily impair navigation upon waters within its scope. 6 
 
 § 69. Same — The public land system — Illinois. — The 
 
 system of surveys and grants of the public lands, adopted by 
 the general government, is also important in this connection. 7 
 
 1 8 Stats, at Large, 83, 117, 141, 204; 525; Railroad Co. v. Schurmeir, 7 
 
 Art. 7 of the Treaty of Paris (1763); Wall. 272; Schurmeir v. Railroad Co., 
 
 1 Halleok's Int. Law, 150. 10 Minn. 82; McManus v. Carmichael, 
 
 2 Stuart v. Clark, 2 Swan (Tenn.), 9, 3 Iowa, 1 ; Benson v. Morrow, 61 Mo. 
 17; Gavit v. Chambers, 3 Ohio, 496; 345; Ross v. Faust, 54 Ind. 471; 
 Hickok v. Hine, 23 Ohio St. 523, 527; Holmes v. Mallett, Morris (Iowa), 82; 
 La Plaisance Bay Harbor Co. v. Mon- O'Ferrell v. Simplot, 4 Iowa, 381; 
 roe, Walk. Ch. 155, 165; Lorman v. Reed v. Wright, 2 G. Greene, 15. In 
 Benson, 8 Mich. 18, 26; Woodman v. Att. Gen. v. Lake Superior Canal 
 Kilbourn Manuf. Co., 1 Abb. (U. S.) Co., 32 Mich. 233, it was held that the 
 158, 165; The Montello, 20 Wall. 430, provision in an act of Congress, that 
 441 ; Schurmeir v. St. Paul R. Co., 10 a canal should be a public highway 
 Minn. 82, 103; Castner v. The Dr. free from toll or charge, for United 
 Franklin, 1 Minn. 73 ; Morgan v. Read- States vessels, simply secured a right 
 ing, 3 S. & M. 366, 405; Commission- of free passage, and did not create a 
 ers v. Withers, 29 Miss. 21, 38. trust for the United States in the 
 
 3 Ante, £§ 51-54; post, § 75. possession of the State. 
 
 4 Ante, § 53, note. 6 Sweeney v. Chicago, etc. Ry. Co., 
 
 5 Sands v. Manistee River Imp. Co., 60 Wis. 60; post, §§ 76, 133. See State 
 123 U. S. 288; Wallamet Iron Bridge v. St. Croix Boom Co., id. 565, refus- 
 Co. v. Hatch, 19 Fed. Rep. 347; Card- ing the exercise of original jurisdic- 
 well v. American River Bridge Co., tion by the Supreme Court of Wis- 
 id. 562; 113 U. S. 205; Louisville consin to remove obstructions from 
 Bridge Co. v. Louisville, 81 Ky. 189, a navigable boundary river. 
 
 195; Moore v. Sanborne, 2 Mich. 519, 'By the act of Congress of May 
 
§ 69.] 
 
 BIVEKS. 
 
 141 
 
 In the case of Middleton v. Pritchard, 1 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 
 
 20, 1785, surveyors were directed to 
 divide the territory, ceded by io di- 
 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. v. Schurmeir, 7 Wall. 
 273, 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, 3; 2 id,* 73, 277, 
 313, 642, 665; 19 id. 348; U. S. Rev. 
 Stats. § 2395. 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 
 1805 (2 Stats, at Large, 329) extended 
 them to the Territory of Orleans; and 
 that of 1811 (2 Stats, at Large, 665), 
 to the Territory of Louisiana. The 
 act of 1812 (2 Stats, at Large, 748) 
 extended them to the Missouri Ter- 
 ritory, and that of 1816 (3 Stats, at 
 Large, 325) required the surveyor 
 of the Missouri and Illinois Territory 
 to observe these provisions in making 
 his surveys. The act of 1850 (9 Stats, 
 at Large, 496) made the same provis- 
 ions applicable to the public lands in 
 Oregon and Washington Territories; 
 and that of 1854 (10 Stats, at Large, 
 308), to those in New Mexico, Kansas, 
 Nebraska, and Utah. The system of 
 survey, by base and meridian lines, 
 thus established under the acts of 
 Congress, is part of the public law, of 
 which judicial notice is taken by the 
 courts in those States carved out of 
 the public territory. Murphy v. Hen- 
 dricks, 57 Ind. 593; Bannister v. 
 Grassy Ford Ditching Ass'n, 52 Ind. 
 178; Jordan Ditching Ass'n v. Wag- 
 oner, 33 Ind. 50; Turpin v. Eagle 
 Creek Co., 48 Ind. 45; Dickenson v. 
 Breeden, 30 111. 279; Gooding v. Mor- 
 gan, 70 111. 275 ; Prieger v. Exchange 
 Ins. Co., 6 Wis. 89; Atwater v. 
 Schenck, 9 Wis. 160; Bittle v. Stuart, 
 34 Ark. 224. See, generally, as to the 
 land system of the United States, 
 Zabriskie's Public Land Laws; Les- 
 ter's Land Laws; 33 Am. L. Reg. N. 
 S. 573; 2 Am. Law Rev. 383, and cases 
 cited post, § 76. 
 1 3 Scam. 510. 
 
142 
 
 THE LAW OF WATERS. 
 
 [CH. III. 
 
 by the rules of law, and the government does no act which 
 indicates an intention to make such reservation, the grant in- 
 cludes 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 Kiver, 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 was not denied that it was 
 within the power of the government to exclude the jyripia facie 
 right of the riparian owner to claim to the centre of the stream, 
 but the court considered that it had not indicated such inten- 
 tion in the particular case. 1 This decision has since been fol- 
 lowed in this State, where the river-beds are the property of 
 the owners of the adjoining lands, when the plats in the United 
 States land office show the river as a boundary, and there is no 
 visible government monument. 2 A grant from the United States 
 of land upon the Mississippi Eiver extends to the thread of the 
 
 1 The island and slough, they say, 
 "are not marked or mapped upon 
 the plat of the government surveys. 
 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 Surveyor 
 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 Sur- 
 veyor General's office." It was held 
 that the meandered lines, which are 
 run for the purpose of determining 
 the quantity of land in the fraction, 
 are not boundary lines; and that 
 islands which have not been sur- 
 veyed, platted, or marked upon the 
 government surveyor's map, pass as 
 incident to a grant of the river banks. 
 Wilson, 0. J., dissented upon the 
 ground that the agents of the gov- 
 ernment, in selling the public lands, 
 could not legally dispose of lands 
 which had not previously been sur- 
 
 veyed and platted; and that the rale 
 adopted by the majority of the court 
 was contrary to the policy and prac- 
 tice of the government in which the 
 purchasers had acquiesced. 
 
 2 Canal Trustees v. Haven, 5 Gil- 
 man, 548; People v. St. Louis, id. 
 351; Ensminger v. People, 47 I1L 384; 
 Chicago v, Laflin, 49 111. 172; Chi- 
 cago v. McGinn, 51 111. 266; Hubbard 
 v. Bell, 54 111. 110; Rockwell v. Bald- 
 win, 53 111. 19; Braxton v. Bressler, 
 64 111. 488; Chicago R Co. v. Stein, 75 
 111. 41; McCormick v. Huse, 78 111. 
 363; Houckv. Yates, 82111. 179; Cobb 
 v. Lavalle, 89 111. 331, 334; Lavalle v. 
 Strobel, id. 370; Brooklyn v. Smith, 
 104 111. 429, 438; Trustees v. Schroll, 
 120 111. 509, 518; Buttenuth v. St. 
 Louis Bridge Co., 123 111. 535, 550; 
 People v. Supervisors, 125 111. 9; 
 Kaskaskia Commons v. McClure, 167 
 I1L 23; Healy v. Joliet R Co., 2 111. 
 App. 435; Bristol v. Carroll Co., 95 
 111. 84; Chicago v. Van Ingen, 152 
 111. 624; Washington Ice Co. v. Short- 
 all, 101 111. 46; 30 Am. L. Reg. 319, 
 note; Piper v. Connelly, 108 111. 646; 
 St. Louis v. Rutz, 138 U. S. 226, 242; 
 
§ 70.] RIVEKS. 143- 
 
 current. 1 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. 2 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 
 corporation, which may devote it, if the navigation is preserved, 
 to such uses as, in the judgment of its authorities, will be most 
 advantageous for the public. 3 
 
 § 70. Same — Ohio. — 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. 4 In Gavit v. Cham- 
 bers 5 it was held that the ordinance of 1787 6 reserved to the 
 public only the use of such streams for the purpose of passage ;. 
 that the United States had manifestly no intention of reserv- 
 ing 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 ex- 
 ecuted, 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 controver- 
 sies, if this property had been treated by the United States as 
 unappropriated territory. In June v. Purcell, 7 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, irre- 
 
 35 Fed. Rep. 188; Illinois v. Illinois Rickets, 11 id. 811; Blanohard v. 
 Central R. Co., 33 id. 730; 146 U. S. Porter, id. 138; Walker v. Board of 
 387. Public Works, 16 id. 540; Hickok v. 
 1 Houck v. Yates, 82 I1L 179. Hine, 23 Ohio St. 523 ; Niehaus v. Shep- 
 2 Ensminger v. People, 47 111. 384; herd, 26 id. 40; Sloan v. Biemiller, 34 
 Chicago v. Laflin, 49 111. 172. The id. 492, 512; June v. Purcell, 36 id. 
 first of these decisions relates to the 396; James v. Howell, 41 id. 696; Day- 
 Ohio River (see post, § 71); the sec- v. Pittsburgh R. Co., 44 id. 406; Lake 
 ond to the Chicago River. As to the Shore, etc. -R. Co. v. Piatt, 53 id. 254. 
 canal connecting the Illinois River See, also, McCullock v. Aten, 2 Ohio, 
 with Lake Michigan, see Werling v. 307; Cowper v. Hall, 5 id. 320; Hogg 
 Ingersoll, 182 I1L 25. v. Zanesville- Canal Co., 5 id. 410; 
 
 3 Chicago v. McGinn, 51 111. 266; Hopkins v. Kent, 9 id. 13. 
 Canal Trustees u Havens, 11 111. 554; s 3 Ohio, 496. 
 
 Hunter v. Middleton, 13 I1L 50. 6 Ante, § 68. 
 
 4 Gavit v. Chambers, 3 Ohio, 496; 7 36 Ohio St. 396; State v. Shannon, 
 Banner v. Platter, 6 id. 504; Lamb v. id. 423. 
 
144 THE LAW OF WATERS. [Ch. III. 
 
 spective 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. 1 
 
 § 71, Same — The Ohio River. — In Ohio and Illinois a 
 grant of land bordering upon the Ohio Eiver carries title at 
 least to low-water mark. 2 The original grant by the State of 
 Virginia only conveyed the territory on the northern bank of 
 the Ohio Eiver to low-water mark. By the compact of 1792 
 between Virginia and Kentucky a concurrent jurisdiction 
 over this river is accorded to Ohio and Kentucky. 3 In Indi- 
 ana, it is held that, as the State of Virginia, when proprietor 
 of the lands on both sides of the Ohio Eiver, 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, 4 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 ; 5 and that the southern counties of Indiana are 
 bounded by the same line, although the courts of such counties 
 have concurrent jurisdiction with those of Kentucky over the 
 river. 6 The State of West Virginia has jurisdiction of a criminal 
 
 1 Lamb v. Rickets, 11 Ohio, 311. 142 id. 304; Henderson Bridge Co. v. 
 
 2 Blanchard v. Porter, 11 Ohio, 138; Henderson, 90 Ky. 498. 
 
 Booth v. Hubbard, 8 Ohio St. 243; 6 Welsh v. State, 126 Ind. 71; Car- 
 
 Ensminger v. People, 47 111. 384. lisle v. State; 32 id. 55; McFall v. 
 
 311 Ohio, 142; ante, § 62. See re- Com., 2 Met. (Ky.) 394; Church v. 
 
 marks of Woodward, J., in McManus Chambers, 3 Dana, 279; Garner's 
 
 v. Carmichael, 3 Iowa, 1, 36, 50, 54. Case, 3 Gratt 655. Cases in Indiana 
 
 4 See Handly v. Anthony, 5 Wheat, are: Cox v. State, 3 Blaokf. 193; 
 374; Indiana v. Kentucky, 136 U. S. Madison v. Hildreth, 2 Ind. 274; Sher- 
 479; Conway v. Taylor, 1 Black, 603; lock v. Bainbridge, 41 id. 35; Ross v. 
 Com. v. Garner, 3 Gratt. 624, 655; Faust, 54 id. 471; Rid'gway v. Lud- 
 Ravenswood v. Flemings, 22 W. Va. low, 58 id. 248; Edwards v. Ogle, 76 
 52. id. 302; Dawson v. James, 64 id. 162; 
 
 5 Stinson v. Butler, 4 Blackf. 285; Sphung v. Moore, 120 id. 352; Moore 
 Cowden v. Kerr, 6 id. 280; Gentile v. v. Auge, 125 id. 562. In the last case 
 State, 29 Ind. 409; Martin v. Evans- the "Wabash river is referred to as 
 ville, 32 Ind. 85; Sherlock v. Bain- "a navigable stream, the bed of 
 bridge, 32 Ind. 85 ; 41 Ind. 35, 41 ; Bain- which has neither been surveyed nor 
 bridge v. Sherlock, 29 Ind. 364; Com. sold." This is due to local statutes. 
 v. Pidge, 5 Ind. 13; Sherlock v. Ailing, State v. Wabash Paper Co., 21 Ind. 
 44 id. 184; Memphis, etc. Co. v. Pikey, App. 167. 
 
§ 72.] BIVEKS. 145 
 
 offense committed on a vessel moored within low-water mark 
 to the bank of this river within the boundaries of Ohio oppo- 
 site, 1 but private titles extend only to low-water mark. 2 
 
 § 72. Same — Iowa. — In Iowa the opinion of "Woodward, J., 
 in McManus v. Carmichael, 3 is among the leading American 
 authorities upon this subject. The question in that case was 
 whether the plaintiff, being the owner of an island in the Mis- 
 sissippi River under a patent from the United States, could 
 maintain an action of trespass against the defendant for tak- 
 ing sand from a sand-bar at the upper end of the island be- 
 tween high and low-water mark and beyond the meanders of 
 the government 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, yet the term 
 " navigable " embraced not only the idea of capacity for navi- 
 gation but also that of publicity ; that the test of the naviga- 
 bility of the Mississippi Eiver is ascertained by use or by pub- 
 lic 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 rivers 
 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 surveyed and sold separately ; 
 and that, as the common law limited the riparian owner's title 
 to the high- water mark in the case of waters technically navi- 
 gable, all the arguments in favor of an absolutely public water 
 and bed to low-water mark applied equally to the space be- 
 tween high and low-water mark. In Iowa the meander lines 
 are not lines of boundary, 4 and the title of the riparian pro- 
 prietors on navigable streams extends only to high-water mark. 5 
 
 1 State v. Plants, 25 "W. Va. 119. * Kraut v - Crawford, 18 Iowa, 549; 
 
 2 Brown Oil Co. v. Caldwell, 35 W. Musser v. Hershey, 42 Iowa, 356; 
 Va. 95; Barre v. Fleming, 29 W. Va. Schlosser v. Cruickshank, 96 Iowa, 
 314 414 
 
 3 3 Iowa, 1. 6 McManus v. Carmichael, 3 Iowa, 
 
 10 
 
146 THE LAW OF WATEKS. [Oh. III. 
 
 "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 merely an incident to the riparian 
 ownership and not the subject of independent sale. 1 The soil 
 ef a navigable river below high-water mark is the property of 
 the State, and not of the United States ; 2 and if, by act of Con- 
 gress, a navigable river is declared non-navigable, this does not 
 extend the title of riparian owners to the center of th« stream 
 or entitle such an owner to the possession of land below high- 
 water mark which a railway company has begun to occupy 
 while the river was yet navigable in contemplation of law. 3 
 
 § 73. Same — Missouri. — In Missouri the early case of 
 Mullanphy v. Daggett 4 was decided according to the Spanish 
 law, and it was held that the grants from the Spanish govern- 
 ment of land upon the Mississippi Eiver conveyed title to the 
 water's edge. In Benson y. Morrow, 5 it was held, following 
 the decision of the Supreme Court of the United States in 
 Eailroad Co. v. Schurmeir, 6 that, the Missouri Eiver, being 
 treated in the acts of Congress as a navigable stream and pub- 
 lic highway, 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 unsold, still 
 " belong to the United States. Under the act of Congress of 
 June 7, 1836, ceding to this State the " Platte Purchase," th& 
 
 1; Haight v. Keokuk, 4 Iowa, 199, * 4 Mo. 343. 
 
 212; Grant v. Davenport, 18 Iowa, 5 61 Mo. 345. See, also, Myers v. 
 
 179, 185; Tomlin v. Dubuque R. Co., St. Louis, 8 Mo. App. 266; St. Louis^ 
 
 32 Iowa, 106; Houghton v. C. D. & M. v. Myers, 113 17. S. 566; Primm v. 
 
 R. Co., 47 Iowa, 370; Barney v. Keo- Walker, 38 Mo. 94, 99; Smith u. St. 
 
 kuk, 94 U. S. 324; Ren wick v. D. & N. Louis, 21 Mo. 36, 41 ; Shelton v. Mau- 
 
 W. R. Co., 49 Iowa, 664, 669; Moffett pin, 16 Mo. 124; Smith v. Public 
 
 v. Brewer, 2 G. Greene, 348. Schools, 30 Mo. 301; Le Beauu Gaven, 
 
 iMusser v. Hershey, 42 Iowa, 356. 37 Mo. 556; Naylor v. Cox, 114 Mo. 
 
 2 Ren wick v. D. & N. W. R. Co., 49 232; Cooley v. Golden, 117 Mo. 33; 
 Iowa, 664, 669; Martin v. Waddell, 16 Hahn v. Dawson, 134 Mo. 581; Moore- 
 Peters, 367; Pollard uHagan, 3 How. d. Farmer (Mo.), 56 S. W. Rep. 493; 
 212; Den v. Jersey City, 15 id. 426; Jones v. Soulard, 24 How. (U. S.) 41; 
 Barney v. Keokuk, 94 U. S. 324; Pere The Schools v. Risley, 10 "WalL 91; 4ft 
 Marquette Boom Co. v. Adams, 44 Mo. 365. 
 Mich. 403. o 7 WalL 272 ; gost, § 77. 
 
 * Wood v. C, R. L & P. R. Co., 60 
 Iowa, 456. 
 
§ 74.] KIVEKS. 147 
 
 western boundary of the State is in the centre of the channel 
 of the Missouri Kiver. 1 
 
 § 74. Same — Alabama. — In Alabama the common-law rule 
 is rejected. 2 In Bullock v. Wilson, 3 the court, referring to the 
 early acts of Congress, 4 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 
 highways," 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 water- 
 courses, is virtually excepted from all private grants. The 
 lines of the survey 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 exception in the grant, 
 intricate and highly interesting questions 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 deter- 
 mining the extent of the grant." 5 The character of the smaller 
 
 1 St. Joseph R Co. v. Devereux, 41 tide, or fresh water; that if the river 
 Fed. Rep. 14. See Sun M. Ins. Co. v. has been expressly recognized as a 
 Miss. V. Transp. Co., 17 id. 919. public highway by the Federal and 
 
 2 Bullock v. Wilson, 2 Porter, 436; State governments: or even if it be 
 Hagan v. Campbell, 8 id. 9; Lewen of sufficient width and depth, and 
 v. Smith, 7 id. 428; Mobile v. Eslava, suited to the ordinary purposes 'of 
 9 id. 577; 16 Peters (U. S.), 234; Magee navigation, and the- government has- 
 uHallett, 22 Ala. 699; Stein v. Ashby, not expressly granted any part of 
 24 Ala. 521; 30 Ala. 36*3; Ellis v. the bed, or computed it in the quan- 
 Carey, 30 Ala. 725; Rhodes u Otis, 33 tity granted, which implies an ex- 
 Ala. 578; Peters v. New Orleans R. ception, as in the case of navigable 
 Co., 56 Ala. 528; Williams v. Glover, water, the stream is thereby consti- 
 66 Ala. 189; Walker v. Allen, 72 Ala. tuted a public highway, and no in- 
 456; Webb v. Demopolis, 95 Ala. 116. dividual can assert any private right 
 See Lane v. Jones, 79 Ala. 156 (wharf of soil in the bed beyond the low- 
 lien), water mark. His claim could have 
 
 3 2 Porter, 436, 445, 448. no better foundation than that in 
 
 4 2 Stats, at Large, 235; 3 id. 492. the case of the oyster-bed planted in 
 5 The court further said: "It is the tide water, both places being 
 
 very obvious, however, that with us alike reserved for public use." 
 the question does not depend on the 
 
148 
 
 THE LAW OF WATEKS. 
 
 [Oh. III. 
 
 fresh streams, which are capable of passage or of floatage at 
 certain seasons, is held to be a question of fact. 1 If they have 
 not been declared public highways by the legislature, or ex- 
 cluded from the surveys by the government surveyors, and are 
 not valuable for public transportation and travel, they are pre- 
 sumed to be not public highways, but exclusively private prop- 
 erty. 2 
 
 § 75. Same — Michigan — Wisconsin. — In Michigan it was 
 held in the early case of La Plaisance Bay Harbor Co. v. 
 Monroe, 3 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 com- 
 mon law is now the rule in that State, 4 with respect both to 
 platted city lots, 5 other lands bordering on rivers and streams, 6 
 and unsurveyed islands 7 and unnavigable lakes. 8 The same 
 rules prevail in Wisconsin. 9 But the title of the riparian pro- 
 
 i Rhodes v. Otis, 33 Ala. 578. 
 
 2 Ellis v. Carey, 30 Ala. 725; Rhodes 
 v. Otis, 33 Ala. 578; Peters v. New 
 Orleans R. Co., 56 Ala. 528; Olive v. 
 State; 86 Ala. 88; Morrison v. Cole- 
 man, 87 Ala. 655. 
 
 s Walk. Ch. 155, 168. See Bigelow 
 v. Shaw, 65 Mich. 341. 
 
 4 Lorman v. Benson, 8 Mich. 18; 
 Rice v. Ruddiman, 10 Mich. 125 ; Moore 
 v. Sanborne, 2 Mich. 519; Norris v. 
 Hill, 1 Mich. 202; Ryan v. Brown, 18 
 Mich. 196; Clark v. Campau, 19 Mich. 
 325; Watson v. Peters, 26 Mich. 508; 
 Bay City Gas Light Co. v. Industrial 
 Works, 28 Mich. 182; Grand Rapids 
 B. Co. v. Jarvis, 30 Mich. 308; Thunder 
 Bay B. Co. v. Speechly, 31 Mich. 336; 
 Maxwell v. Bay City Bridge Co., 41 
 Mich. 453, 466; Backus v. Detroit, 49 
 Mich. 110; Lincoln v. Davis, 53 Mich. 
 375; Jones v. Lee, 77 Mich. 35; Turner 
 v. Holland, 65 Mich. 453. 
 
 5 Watson v. Peters, 26 Mich. 508; 
 Fletcher v. Thunder Bay River Boom 
 Co., 51 Mich. 277. 
 
 6 Ibid. ; Webber v. Pere Marquette 
 Boom Co., 62 Mich. 626; Grand Rapids 
 v. Powers, 89 Mich. 94. 
 
 7 Harding v. Minneapolis N. Ry. Co., 
 84 Fed. Rep. 287 ; Steinbuchel v. Lane, 
 59 Kansas, 7; Butler v. Grand Rapids 
 & L R Co., 85 Mich. 246; post, § 166. 
 When an island is especially granted, 
 there is nfilum aquoe in both channels 
 on either side of it. West v. Fox 
 River P. Co., 82 Wis. 647; Warren v. 
 Westbrook M. Co., 86 Maine, 32. The 
 rule as to islands is the same by the 
 common and civil law. Kaskaskia 
 Commons v. McClure, 167 111. 23. 
 
 8 Grand Rapids Ice & Coal Co. v. 
 South G. R. Ice & Coal Co., 102 Mich. 
 227. 
 
 9 Jones v. Pettibone, 2 Wis. 308; 
 Stevens Point Boom Co. v. Reilly, 44 
 Wis. 295; 46 Wis. 237; Cohn v. Wau- 
 sau Boom Co., 47 Wis. 314; Walker 
 v. Shepardson, 4 Wis. 486; 2 id. 384; 
 Kimball v. Kenosha, 4 Wis. 321; 
 Mariners. Schulte, 13 Wis. 692; Cobb 
 v. Smith, 16 Wis. 661; Arnold v. El- 
 more, 17 Wis. 509; Wood v. Hustis, 17 
 Wis. 417; Yates v. Judd, 18 Wis. 118; 
 Gove v. White, 20 Wis. 425; Wiscon- 
 sin River Impr. Co. v. Lyons, 30 Wis. 
 61 ; x\rimond v. Green Bay Co., 31 Wis. 
 316; Wright v. Day, 33 Wis. 260; 
 
§76.] 
 
 KIVEKS. 
 
 149 
 
 prietor, extending usque adfilum aqua, is held in this State to 
 be not only subject to the public right of navigation, but also 
 to the right of the State to regulate the flow of the water and 
 to do any act within the banks which the interests of commerce 
 require ; l and presumably both a purchaser from the United 
 States and a private grantee take to the thread of a navigable 
 stream. 2 
 
 § 76. Same — The Western rule. — According to all the 
 decisions in most of those States in which the lands were orig- 
 inally surveyed under the laws of the United States, the lines 
 run by the United States surveyors along the river banks are 
 not lines of boundary, the owners of the adjacent lands taking 
 at least to the water's edge,' thus giving them the benefit of 
 
 Morse v. Home Ins. Co., 30 Wis. 496; 
 Greene v. Nunnemacher, 36 "Wis. 50; 
 Olson v. Merrill, 42 Wis. 203; Dela- 
 phine v. Chicago Ry. Co., id. 214; 
 Diedrioh v. Northwestern Ey. Co., id. 
 248; Boorman v. Summons, id. 233; 
 Allen v. Weber, 80 Wis. 531. The 
 Constitution of this State contains 
 the usual provision that the Missis- 
 sippi and the navigable waters lead- 
 ing into it shall be public highways; 
 and the Statutes provide that where 
 meandered rivers and streams are 
 returned as navigable by a United 
 States surveyor, they shall be deemed 
 navigable. Const. Art. 9; Rev. Stats. 
 (1858) p. 373. 
 
 1 Wisconsin River Impr. Co. v. 
 Lyons, 30 Wis. 61 ; Arimond v. Green 
 Bay Co., 31 Wis. 316; Delaphine v. 
 Chicago Ry. Co., 42 Wis. 214; Boor- 
 man v. Sunnuchs, 42 Wis. 233; Janes- 
 ville v. Carpenter, 77 Wis. 283; Kau- 
 kauna W. P. Co. v. Green Bay Co., 
 142 U. S. 254; post, § 246. The States 
 of Wisconsin and Minnesota have 
 concurrent jurisdiction upon the St. 
 Croix River and its waters, and the 
 jurisdiction of each State is not af- 
 fected by the fact that the boat 
 causing a personal injury was on the 
 opposite side of the centre of the 
 stream. Opsahl a. Judd, 30 Minn. 
 
 126. See Geekie v. Kirby C. Co., 106 
 U. S. 379. 
 
 2 Norcross v. Griffiths, 65 Wis. 599. 
 
 3 Railroad Co. v. Schurmeir, 7 Wall. 
 272; 10 Minn. 82; Whitehurst v. Mc- 
 Donald, 52 Fed. Rep. 663; 47 id. 757; 
 Coburn v. San Mateo County, 75 id. 
 520; Tolleston Club v. Clough, 146 
 Ind. 93; Middleton v. Pritchard, 3 
 Scammon, 422; Canal Trustees v. 
 Haven, 5 Gilman, 548; Gavit v. Cham- 
 bers, 3 Ohio, 495; Wood v. Appal, 63 
 Penn. St. 210; Kraut v. Crawford, 18 
 Iowa, 549; Boynton v. Miller, 22 id. 
 579; Musser v. Hershey, 42 id. 356; 
 Morrow v. Benson, 61 Mo." 345; Meyers 
 v. St. Louis, 8 Mo. App. 266; Minto v. 
 Delaney, 7 Oregon, 337; Moore v. 
 Willamette Transp. Co., id. 355, 356; 
 June v. Purcell, 36 Ohio St. 396, 407; 
 Shoemaker v. Hatch, 13 Nev. 261; 
 Heald v. Yumisko, 7 N. D. 422; Lam- 
 mers v. Nissen, 4 Neb. 245, 250; Har- 
 rison v. Stipes, 34 Neb. 431: St. Paul 
 R. Co. v. First Division R. Co., 26 
 Minn. 31; Wright v. Day, 33 Wis. 
 260; Delaphine v. Chicago Ry. Co., 42 
 Wis. 214; Boorman v. Sunnuchs, id. 
 233; Ladd v. Osborne, 79 Iowa, 93; 
 Lally u Rossman, 82 Wis. 147; Pro- 
 vins v. Lovi (Okla.), 50 Pac. Rep. 81 ; 
 Berry v. Snyder, 3 Bush, 266; Miller 
 v. Hepburn, 8 Bush, 326; Quicksilver 
 
150 
 
 THE LAW OF WATERS. 
 
 [CH. III. 
 
 the river frontage, with the right of access * to the river, and 
 the incidents of riparian proprietorship as to the use of the 
 water. 2 The true boundary line of a navigable stream or lake 
 is the point to which the water usually rises in ordinary sea- 
 sons of high water. The position of that line is a question of 
 fact for the jury; 3 and it controls although the meander line 
 of the survey is found not to be coincident therewith. 4 "When 
 land owners once become riparian proprietors, they are entitled 
 to the accretions, or newly-formed ground which may be left 
 by the river after the survey and sale by the United States of 
 the adjacent land, and which, if not their property, would sepa- 
 rate them from the river. 5 The tendency is to accept the de- 
 cisions of the Supreme Court of the United States in Kailroad 
 
 Mining Co. v. Hicks, 4 Sawyer, 688; 
 Hills v. Houston, id. 195; Forsyth v. 
 Smale, 7 Biss. 201; Ross v. Faust, 54 
 Ind. 471, 475; Sizor v. Logansport, 
 151 Ind. 826; Twogood v. Hoyt, 42 
 Mich. 609; Pere Marquette Boom Co. 
 v. Adams, 44 Mich. 403. Contra, 
 when a large tract lies between the 
 meander line and the stream. Barn- 
 hart v. Ehrhart, 33 Oregon, 274; Lit- 
 tle v. Pherson (Oregon), 56 Pac. Rep. 
 807; Olson v. Thorndike (Minn.), 79 
 N. W. Eep. 399. So of municipal 
 boundaries. Fort Smith Bridge Co. 
 v. Hawkins, 54 Ark. 509. The title 
 to river bed depends upon the local 
 law of each State. St. Anthony Falls 
 W. P. Co. v. St Paul Water Com'rs, 
 168 U. S. 349; Lamprey v. State, 52 
 Minn. 181 ; Scranton v. Wheeler, 57 
 Fed. Rep. 803. ' In Texas, see Barrett 
 v. Metcalf, 12 Tex. Civ. App. 217. 
 
 i-Post, ch. 5; Yates v. Milwaukee, 
 10 Wall. 497; Dutton v. Strong, 1 
 Black, 23; Railroad Co. v. Schurmeir, 
 7 Wall. 272; 10 Minn. 82; Grant v. 
 Davenport, 18 Iowa, 179; Rice v. 
 Ruddiman, 10 Mich. 125; Sherlock v. 
 Bainbridge, 41 Ind. 35. 
 
 2 Posi, ch. 6. 
 
 3 Ibid. ; Johnson v. Knott, 13 Ore- 
 gon, 308. See Jackel v. Reiman, 78 
 Texas, 588; Bissell v. Fletcher, 19 
 Neb. 725; Sphung v. Moore, 120 Ind. 
 
 352; Ray burn v. Winant, 16 Oregon, 
 318; Clute v. Fisher, 65 Mich. 48; 
 James v. Howell, 41 Ohio St. 696. 
 
 4 Ibid. ; Everson v. Waseca, 44 
 Minn. 247; Jefferies v. East Omaha 
 Land Co., 134 U. S. 178; Niles v. Cedar 
 Point Club, 175 U. S. 300; Kir wan v. 
 Murphy, 83 Fed. Rep. 275; Fuller v. 
 Dauphin, 124111. 542; Palmer v. Dodd, 
 64 Mich. 474; Menasha Wooden ware 
 Co. v. Lawson, 70 Wis. 600; Sphung 
 v. Moore, 120 Ind. 352; supra, § 45; 
 post, § 85. Projections of land out 
 into the water beyond the meander 
 line belong to the patentee. Ex parte 
 Davidson, 57 Fed. Rep. 883; Brophy 
 v. Richeson, 137 Ind. 114 
 
 s Kraut v. Crawford, 18 Iowa, 549 
 Perkins v. Adams, 132 Mo. 131. See 
 Boynton v. Miller. 1 Stiles, 100 
 Minto v. Delaney, 7 Oregon, 337 
 Moore v. Willamette Transp. Co., id 
 355; Lammers v. Nissen, 4 Neb. 245 
 Shoemaker v. Hatch, 13 Nev. 261 
 Banks v. Ogden, 2 Wall. 57; Rex v. 
 Yarborough, 3 B. & C. 91; Munici- 
 pality No. 2 v. Orleans Cotton Press ; 
 18 La. 122; Bristol v. Carroll County, 
 95 111. 84; Chicago Dock Co. v. Kin 
 zie, 93 111. 415; Middleton v. Pritch- 
 ard, 3 Scam. 510; Lovingston v. 
 County of St. Clair, 64 111. 56; County 
 of St. Clair v. Lovington, 23 WalL 46; 
 Stephenson v. Goff, 10 Rob. (La.) 99; 
 
I 77.] RIVEKS. 151 
 
 Co. v. Schurmeir, 1 and Barney v. Keokuk, 2 in those States in 
 which the rule extending the riparian owner's title to the centre 
 of the stream had not been previously adopted. These decis- 
 ions have been followed in Missouri, 3 Minnesota, 4 Arkansas, 5 
 Oregon, 6 Nevada, 7 Kansas, 8 Florida, 9 and California. 10 
 
 §77. Same — Limits of the River. — In Eailr'oad Co. v. 
 Schurmeir, 11 the question was as to the title to an island in the 
 Mississippi Eiver, which at the time of the survey was a mere 
 sandbar about ninety feet wide and one hundred and sixty feet 
 long, separated from the mainland by a slough or channel 
 twenty-eight feet wide. The island was submerged at high 
 water (of which no notice was taken in making the survey), 
 and the slough was insignificant in comparison with the main 
 river. At the time of the action, the sandbar had been filled 
 in and covered with valuable improvements, and the contest 
 was between the owner of the adjoining fraction and a rail- 
 road company which claimed the bar under a new survey made 
 by a United States surveyor, and a congressional grant of cer- 
 tain odd-numbered sections. It was held that the sandbar was 
 included in the first survey as part of the mainland. In gen- 
 eral, where the waters of a river are separated into two chan- 
 
 Bensonu Morrow, 61 Mo. 345;Lamme 5 St. Louis Ry. Co. v. Ramsey, 53 
 
 v. Buse, 70 Mo. 463; Shelton v. Mau- Ark. 314 
 
 pin, 16 Mo. 124 ^Minto v. Delaney, 7 Oreg. 337; 
 
 17 Wall. 272; Packer v. Bird, 137 Moore v. Willamette Transp. Co., id. 
 
 U. S. 661; 71 CaL 134 355, 356; Weise v. Smith, 3 Oreg. 415, 
 
 2 94 U.S. 324 448; Felger v. Robinson, id. 455; 
 
 3 Benson v. Morrow, 61 Mo. 345; Weise v. Oregon Iron Co., 13 id. 496. 
 Lamme v. Buse, 70 Mo. 463; Meyers 'Shoemaker v. Hatch, 13 Nev. 261. 
 v. St. Louis, 8 Mo. App. 266; ante, 8 Wood v. Fowler, 26 Kansas, 682. 
 § 73 ; S wearingen v. The Lynx, 13 Mo. As to the fishery act of this State, see 
 519; Adams v. St. Louis, 32 Mo. 25; State v. Stunkle, 41 Kansas, 456. In 
 Jones v. Soulard, 24 How. 41. Texas, see Rhodes v. Whitehead, 27 
 
 4 Castner v. Steamboat Dr. Frank- Texas, 304; Muller v. Landa, 31 id. 
 lin, 1 Minn. 73, 78; Schurmeir v. St. 265; Phillips v. Ayres, 45 id. 601. In 
 P. R. Co., 10 Minn. 82, 102; s. C. 7 Arkansas, Warren v. Chambers, 25 
 Wall. 272; Mankato v. Willard, 13 Ark. 120, 122. 
 
 Minn. 13, 27; Brisbine v. St Paul R. "Bucki v. Cone, 25 Fla. 1. 
 
 Co., 23 Minn. 114, 129, 130; St. Paul i°LuxuHaggin,69CaL255; Packer 
 
 R. Co. v. First Division R. Co., 26 v. Bird, 71 Cal. 134; 137 U. S. 661; 
 
 Minn. 31; Union Depot Co. v. Bruns- Heckman v. Swett, 99 CaL 303; 32 
 
 wick, 31 Minn. 297; Gilbert v. Bmer- Cent. L. J. 284, 297. 
 
 son, 55 Minn. 254 " 7 Wall. 272; 10 Minn. 83. 
 
152 THE LAW OF WATEKS. [Ch. III. 
 
 nels by an island or sandbar, the question whether such island 
 or bar was included in the survey as part of the adjoining land, 
 is one of fact, depending chiefly upon the relative size and per- 
 manence of the channels, the size of the island compared with 
 the size of the stream, and the conformity or divergence of 
 course between the meander line and the main channel. 1 Mere 
 rocks and shoals lying along the margin of navigable fresh 
 rivers belong to riparian owners. 2 In the recent case of Packer 
 v. Bird, in the United States Supreme Court, the doctrine was 
 settled that a patent from the United States, which in terms 
 bounds the land on the margin of a navigable fresh-water 
 stream, conveys only to the water's edge. 3 
 
 § 78. Same — The West — Unnavigable streams. — At com- 
 mon law, the owners of lands bordering upon unnavigable 
 streams own to the thread of the stream in severalty and not 
 in common. 4 . But the acts of Congress, 5 after declaring that 
 "all navigable rivers, within the territory occupied by the 
 public lands, shall remain and be deemed to be public high- 
 ways," 6 provide that, " in all cases where the opposite banks 
 of any streams not navigable belong to different persons, the 
 stream and the bed thereof shall become common to ' both." 
 These provisions were construed in the case of Eailroad Co. v. 
 Schurmeir, 7 holding that while there appears to be no law re- 
 
 1 Shoemaker v. Hatch, 13 Nev. 261 ; 4 See Moffett v. Brewer, 1 G. Greene, 
 
 Lammers v. Nissen, 4 Neb. 251; 348, 358; Ingraham v. Wilkinson, 4 
 
 Granger v. Swart, 1 Woolw. 99; Ben- Pick. 268. 
 
 son v. Morrow, 61 Mo. 345; Adams v. 5 1 Stats, at Large, 468, § 9; 2 id. 
 
 St. Louis, 32 Mo. 25; Minto v. Delaney, 235, § 17; U. S. Rev. Stat. § 2476. 
 
 id. 337; St. PaulR Co. v. First Bivis- •'This is a political regulation, 
 
 ion R. Co., 26 Minn. 31 ; People v. Willamette Iron Bridge Co. v. Hatch, 
 
 Warner, 116 Mich. 228; Niles v. Cedar 125 U. S. 1; Pacific Gas Imp. Co. v. 
 
 Point Club, 85 Fed. Rep. 45; Rock Ellert, 64 Fed. Rep. 421. 
 
 Island County v. Sage, 88 111. 582; 'Schurmeir v. Railroad Co., 10 
 
 Berry v. Snyder, 3 Bush, 266, and Minn. 82; Railroad Co. v. Schurmeir, 
 
 cases cited; ante, §73. See post, 7 Wall. 272; approved in The Schools 
 
 § 166, note; De Guyer v. Banning, 91 v. Risley, 10 Wall. 91, 110; Yates v. 
 
 Cal. 40. Milwaukee, id. 497, 504; Bates v. Illi- 
 
 a Moore v. Willamette Transp. Co., nois Central R Co., 1 Black, 204 
 
 7 Oreg. 355; Chandos v. Mack, 77 Clifford, J., considered that the bet- 
 
 Wis. 573; Watson v. Peters, 26 Mich, ter opinion was that proprietor 
 
 508. of lands bordering on navigable 
 
 3 Packer v. Bird, 137 U. S. 661; 71 rivers, under titles derived from the 
 
 CaL 134; 32 Cent. L. J. 294, and note. United States, hold only to the 
 
§78.] 
 
 EIVEES. 
 
 153 
 
 quiring watercourses to be meandered, yet, as the acts of Con- 
 gress require the contents of each subdivision to be returned to 
 the surveyor general, and a plat of the land surveyed to be 
 made by him, the meander lines are necessarily employed, not 
 as boundaries of the tract, but as a means of defining the sinu- 
 osities of the river banks and of ascertaining the quantity of 
 land in the fraction which is subject to sale and is to be paid 
 for by the purchaser ; and that the watercourse, and not the 
 meander line, is the boundary. In a later case in Indiana, 1 this 
 view was adopted, although it was noticed that such a construc- 
 tion is in apparent conflict with the language of the statute. 2 In 
 California it is held that a series of statutes which declare what 
 streams and parts of streams are navigable, and which, after 
 naming a part of a certain stream, and changing its limits re- 
 peatedly, omits the stream entirely, amounts to an implied 
 declaration that such stream is non-navigable. 3 The repeal of 
 a Federal statute, which declared a river to be navigable at a 
 certain point, does not invest the riparian owners with title to 
 
 stream because of the provision that 
 such rivers shall be deemed to be 
 and remain public highways; that 
 Congress had substantially adopted 
 the common-law rule with respect 
 to unnavigable streams, and that in 
 distinguishing between streams navi- 
 gable and those not navigable, it in- 
 tended to provide that the common- 
 law rules of riparian ownership 
 should apply to lands bordering on 
 the latter, and to them only. See 
 Stuart v. Clark, 2 Swan, 1 ; Chicago, 
 etc. R Co. v. Stein, 75 111. 41; For- 
 syth v. Smale, 7 Biss. 201.' 
 
 lEoss v. Faust, 54 Ind. 471, 474, 
 475; Eidgway v. Ludlow, 58 Ind. 248. 
 In Eoss v. Faust, which related to 
 the title to the bed of a meandered 
 unnavigable stream, Perkins, J., said : 
 " We have in the United States three 
 classes of rivers; one, in which the 
 tide ebbs and flows, and may be called 
 salt-water rivers; one, of fresh-water 
 rivers which are navigable for ves- 
 sels used in interstate commerce; 
 one, of fresh-water rivers which are 
 
 not navigable for vessels used in in- 
 terstate commerce. The ownership 
 of the bed of the first class of rivers 
 mentioned is in the public. The 
 ownership of the bed of such of the 
 second class as are in what is known 
 as the North West Territory is in 
 doubt. There is no such concurrence 
 of judicial opinion on the point as 
 enables us to- say, upon authority,, 
 who owns the bed of these rivers, 
 and it is not necessary that we should 
 decide the point in this case. The 
 ownership of the bed of the third 
 class is, prima facie, in the proprie- 
 tors of the opposite bank, each own- 
 ing to the thread of the stream. 
 . . , The idea that the power was 
 given a surveyor or his deputy, upon 
 casual observation, to determine the 
 question of the navigability of rivers, 
 and thereby conclude vast public 
 and private rights, is an absurdity." 
 
 2 See Moffett v. Brewer, 1 G. Greene, 
 348, 358. 
 
 3 Caldwell v. Sacramento County,. 
 79 Cal. 347 (Thornton, J., dissenting).. 
 
154: THE LAW OF WATEKS. [Ch. III. 
 
 the middle of the stream; 1 nor does it change the boundary 
 upon such stream under a patent. 2 
 
 § 79. Lakes and ponds.— Fresh-water lakes and ponds are 
 bodies of standing waters distinguishable from rivers chiefly 
 by the fact that they have no current.' Frequently, also, they 
 are inaccessible from the sea or from a distance without tres- 
 passing upon private lands. The fact that there is a current 
 from a higher to a lower level does not make that a river 
 which would otherwise be a lake, nor does a lake lose its dis- 
 tinctive character because there is a current in it for a certain 
 distance tending towards a river which forms its outlet. 4 On 
 the other hand, the fact that a river broadens into a pond-like 
 sheet with a current does not deprive it of its character as a 
 river. 5 Where it is admitted or not denied that the water is 
 not a lake or a pond, the material difference between which is 
 in size, the only criterion by which to determine whether it is a 
 river, is the existence of a current, and this question cannot 
 be answered by ascertaining what appellations have been given 
 to it. 6 
 
 §80. Same — In England and Ireland. — The early au- 
 thorities lay down no definite rule respecting property in 
 inland lakes and ponds otherwise than by limiting the prop- 
 erty of the Crown to tide waters. 7 In Marshall v. Ulleswater 
 
 1 Steele v. Sanchez, 72 Iowa, 65; C. right to pass or to fish beyond the 
 B. & Q. Ry. Co. v. Porter, id. 426. See, JUum aquce of a lake, see Mackenzie 
 also, asto statutes declaring streams v. Bankes, 3 App. Cas. 1324; Scott v. 
 highways, Walpole v. City Council) Napier, 7 Macph..H. L. 35; Cochrane 
 32 S. C. 547. v. Minto, 6 Paton, 139. See McLaugh- 
 
 2 Serrin v. Grefe, 67 Iowa, 196. lin v. Sandusky, 17 Neb. 110. 
 
 3 CallisonSewers, 82; Woolrychon *Per Gilchrist, J., in State v. Gil- 
 Sewers, 81; ante, § 41. Callis (p. 82) manton, 14 N. H. 467; 9 id. 461. 
 defines a pool as "a mere standing 6 Ibid. ; Bassett v. Salisbury Manuf. 
 water, without any current at all; " Co., 43 N. H. 569. 
 
 but speaks of a pond as if it were 6 Ibid. See Rice v. Ruddiman, 10 
 
 always artificial and not natural. Mich. 125, 135, 136; Phinney v. Watts, 
 
 Doubtless it may have a broader 8 Gray, 269, 270. 
 
 meaning. In Waterman v. Johnson, 7 Devonshire v. Pattinson, 20 Q. B. 
 
 13 Pick. 261, 265, Shaw, C. J., said: D. 263; Pery v. Thornton, 23 L. R. 
 
 ■" The word pond is indefinite. It may Ir. 402. See remarks of Gray, J., in 
 
 mean a natural pond, or an artificial Paine v. Woods, 108 Mass. 160, 169 
 
 pond raised for mill purposes, either (1871), citing Duke (ed. 1676), 5, 135; 
 
 permanent or temporary." As to the (ed. 1805), 8, 129; Marshall «., Ulles- 
 
§ 80.] LAKES AND PONDS. 155 
 
 Steam Navigation Co., 1 decided in 1863, Wightman, J., re- 
 marked that it was not necessary to determine in that case 
 "whether the soil of lakes, like that of fresh-water rivers, 
 prima facie belongs to the owners of the land or of the man- 
 ors on either side ad medium filum aquce, or whether it be- 
 longs prima facie to the king in right of his prerogative ; " and 
 the case was decided upon another ground. The case of Bris- 
 tow v. Cormican, 2 before the House of Lords in 1878, was an 
 action of trespass for taking fish in Lough Weagh, a fresh- 
 water lake in Ireland, over the whole of which the plaintiff 
 •claimed a several fishery under a grant of a fishery and of 
 islands in the lake from King Charles II. The fishery described 
 in this grant did not clearly include the whole lake, and no 
 evidence was introduced as to the title of the Crown to the 
 ;soil and fishings of the lake. The issue was not whether a 
 lake in which the tides of the sea had never flowed was a pub- 
 lic navigable inland sea in which the right of fishing was com- 
 mon, but whether upon the royal grant, coupled with evidence 
 of certain subsequent acts of possession in other parts of the 
 lake, and in the absence of evidence of the extent of the 
 Crown's ownership or possession at the time of the grant, 
 -the jury were properly directed to find for the plaintiffs, or 
 whether the case should have been submitted to them on the 
 •evidence as to the plaintiffs' title and right to maintain the 
 ■action. The Lord Chancellor 3 said : " The Crown has no de 
 jure right to the soil or fisheries of a lough like Lough Neagh. 
 Lough JSTeagh is, as your Lordships are aware, the longest in- 
 land lake in the United Kingdom, and one of the largest in 
 Europe." " It does not seem convenient that each proprietor 
 ■of a few acres fronting on Lough Neagh should 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 amongst themselves, for no title is 
 made by either party through any one as riparian owner. 
 . . . It is, however, necessary to decide whether the Crown 
 
 ■water Steam Nav. Co., 3 B. & S. 732; Hale, De Jure Maris, ch. 1; Com. 
 
 Hunt on Boundaries (2d ed.), 19; Dig. Prerogative (D. 50). 
 
 Greyes' Case, Owen, 20; Pollenfen v. 2 3 App. Cas. 641; s. C. Ir. R. 10 C. 
 
 Crispin, 1 Vent. 122; Bell's Law of L. 398, 412; 2 L. R. Ir. 118. 
 
 Scotland, 171. 3 Lord Cairns, pp. 652, 653. 
 iBest & Smith, 732, 742, citing 
 
156 THE LAW OF WATEKS. [Ch. III. 
 
 lias of common right a prima facie title to the soil of a lake ; 
 I think it has not. I know of no authority for saying it has, 
 and I see no reason why it should have it." * 
 
 §81. Same — Same. — In Bloomfield v. Johnston, 2 the Ex- 
 chequer Chamber in Ireland held that Lough Erne, an Irish 
 fresh-water lake, which is forty-five miles in length, although 
 navigable and commonly used by the public for travel and 
 transportation, was not subject to a common of fishery in the 
 public as of right. It appears, therefore, that by the law of 
 England the Crown and the public have no such rights in 
 fresh-water lakes as they possess in tide waters ; that the soil 
 and fishings in them are private property ; and that, while the 
 rule which extends the riparian owners' title usque adfilum 
 aquae does not appear to have been applied to lakes, as to un- 
 navigable streams, and is an inconvenient rule for the deter- 
 mination of rights in large lakes, 3 yet the public have no greater 
 privileges in them than in fresh-water rivers. The public right 
 of navigation in them doubtless depends upon prescription and 
 proof of long-continued user. 4 
 
 § 82. Same — The American rule. — In this country the 
 question has received greater attention than in England. In 
 the case of Canal Commissioners v. People, 5 decided in the 
 Court of Errors in New York in 1830, Chancellor "Walworth, 
 while holding that the common-law rule was applicable to the 
 navigable fresh rivers of the State, said: "The principle itself 
 does not appear to be sufficiently broad to embrace our large 
 fresh-water lakes, or inland seas, which are wholly unprovided 
 for by the common law of England. 6 As to these there is 
 neither flow of the tide, or thread of the stream, and our own 
 
 1 See ante, § 19, note. 6 5 Wend. 433, 446; Canal Apprais- 
 er. R. 8 C. L. 68. ers v. People, 17 Wend. 571, 597, 616, 
 
 3 Bristow v. Cormican, ante, § 79. 621; 3 Kent Com. 429, note (a), 430; 
 
 4 See Marshall v. Ulleswater Steam Kingman v. Sparrow, 12 Barb. 301 ; 
 Nav. Co., L. R 7 Q. B. 166; 3 B. & S. Ledyard v. Ten Eyok, 36 Barb. 103. 
 732; Bloomfield v. Johnston, Ir. R. 8 6 Shively v. Bowlby, 152 TJ. S. 1, 46; 
 C. L. 68; Bristow v. Cormican, 3 App. 17 A. G. Op. (U. S.) 59; People v. Kirk, 
 Cas. 641; Ir. R. 10 C. L. 398, 412; Reg. 162 111. 138; People v. Silberwood, 110 
 v. Burrow, 34 Justice of the Peace, Mich. 103; Sherwood v. Cormnis- 
 53; Mackenzie v. Bankes, 3 App. Cas. sioner, 113 Mich. 227; People v. War- 
 1324. . ner, 116 Mich. 228. 
 
§ 82«.] LAKES AND PONDS. 157 
 
 local law appears to have assigned the shores down to the or- 
 dinary low-water mark to the riparian owners, and the beds of 
 the lakes with the islands therein to the public." The com- 
 mon-law rule as to fresh streams has been held in that State, 1 
 and also in Vermont, 2 to be inapplicable to Lake Champlain. 
 In Champlain and St. Lawrence Eailroad Co. v. Yalentine, 3 in 
 'New York, it was held that proprietors on the borders of 
 Lake Champlain are the owners to low-water mark, unless 
 otherwise limited by the terms of their grants. 4 Lands in 
 Vermont bounded on Lake Champlain, and upon the streams 
 which empty into that lake, and ordinarily maintain the same 
 level as its waters, also extend to the edge of the water at low- 
 water mark, 5 and the State of Yermont has constitutional power 
 to prohibit net fishing in that lake and in rivers emptying into 
 it within ten miles of their mouth. 6 The United States has 
 nothing to do therewith. 7 
 
 § 82a. Same — Same. — The distinction between public and 
 private lakes depends upon the size and navigability of the 
 particular lake, and its relation to other waters which flow into 
 it 6v with which it is connected. Lake Winnipiseogee, which 
 is of irregular shape, being about twenty-five miles in length, 
 and varying in width from one to ten miles, and is consider- 
 ably used for purposes of navigation, 8 is held in New Hamp- 
 shire to be public property, both with respect to its bed and 
 
 1 Champlain R. Co. v. Valentine, 19 4 As to boundaries upon lakes and 
 Barb. 484. See Trustees v. Dennett, ponds, see post, § 203. 
 
 9 N. Y. Sup. Ct. 669. As to grants of 5 Fletcher v. Phelps, 28 Vt. 257; 
 land under navigable waters by the Jakeway v. Barrett, 38 Vt. 316, 323; 
 commissioners of the land office, McBurney v. Young, 67 Vt. 574. 
 under N. Y. Rev. Stats. (7th ed.) 573 «Drew v. Helliker, 56 Vt. 641; 17 
 et seq., etc., see People v. Jones, 112 A. G. Op. (IT. S.) 74. 
 N. Y. 597; Rumsey v. New York R. i 17 a. G. Op. 74. As to the prop- 
 Co., 114 N. Y. 423; Knickerbocker erty and jurisdiction of the Domin- 
 Ice Co. v. Shultz, 116 N. Y. 382; Bed- ion government in Canada, in lakes 
 low v. New York Dry-Dock Co., 112 and rivers, see Att. Gen. for Canada 
 N. Y. 263. v. Att. Gen. for Ontario, [1898] A. C. 
 
 2 Fletcher v. Phelps, 28 Vt. 257; 700; In re Jurisdiction over Provin- 
 Jakeway v. Barrett, 38 Vt. 316, 323; cial Fisheries, 26 Can. Sup. 444; supra, 
 Austin v. Rutland R. Co., 45 Vt. 215; § 56, note. 
 
 17 Fed. Rep. 466. 8 State v. Franklin Falls Co., 49 
 
 3 19 Barb. 484, 49a N. H. 240, 250. 
 
158 THE LAW OF WATERS. [Gs. -W"*~ 
 
 the right of fishing in its waters. 1 The cpmmon-law rule as to- 
 fresh waters is wholly inapplicable to the Great Lakes and the 
 bays which form a part thereof. 2 The right of fishing in these' 
 lakes, remote from the land, is as much a common right as in 
 tide waters, 3 and may be there exercised with stakes, if this is 
 not forbidden by law and does not impede navigation. 4 In 
 Canada the soil beneath Lake Ontario and the other Great 
 Lakes is held to be vested in the Crown. 5 In Eice if. Euddi- 
 man, 6 the Supreme Court of Michigan passed upon the title to 
 the soil of Lake Muskegon, which was shown to be about six 
 miles long, with an average width of two and one-half miles, 
 and to be separated from Lake Michigan by an outlet about 
 sixty rods long. The fact that the level of Lake Muskegon 
 was affected by the rise and fall of the waters of Lake Michi- 
 gan was held not to make the former lake necessarily a part 
 of the latter, rather than a mere widening of Muskegon Eiver 
 which flowed into it; and the common-law rule as Jo fresh 
 streams was held so far applicable to this lake as to entitle the 
 riparian owner to such parts of its bed as were near the shore 
 and capable of beneficial private use, subject, however, to th& 
 common right of navigation. 7 • 
 
 i State v. Gilmanton, 9 N. H. 461; 823, and note; 140 U. S. 371; Mitchell 
 
 s. a, 14 N. H. 467; State v. Franklin v. Smale, id. 406; post, § 203. 
 
 Falls Co., 49 N. H. 240, 250; Winne- 3 Sloan v. Biemiller, 34 Ohio St. 492. 
 
 pesaukee C. M. Ass'n v. Gordon, 67 See, also, La Plaisance Bay Harbor 
 
 N. H. 98. Co. v. Monroe, Walk. Ch. 155, 168; 
 
 2 Illinois Cent. E. Co. v. Illinois, 146 Bay City Gas Light Co. v. Industrial 
 
 TJ. S. 387; Same v. Chicago, 173 111. Works, 28 Mich. 182, 185; Verplank 
 
 471; Revell v. People, 177 111. 468; v. Hall, 27 Mich. 79. 
 
 Toledo Liberals. Co. v. Erie Shoot- 4 Lincoln v. Davis, 53 Mich. 375; 
 
 ing Club, 90 Fed. Rep. 680; Dwelle v. 17 A. G. Op. 59; 13 Cent. L. J. 1; 33 
 
 Wilson, 14 Ohio Cir. Ct. 551; Bodi v. id. 291. 
 
 Winous Point S. Club, 57 Ohio St. 5 Att. Gen. v. Perry, 15 C. P. (Can.)- 
 226. A navigable land-locked bay or 329; ante, §§ 56, 66, n. 
 harbor connected with the lake may 6 10 Mich. 125. See Jones v. Lee, 
 be held by private ownership, subject 77 Mich. 35; Webber v. Pere Mar- 
 to public navigation and fishery, quette Boom Co., 63 Mich. 626; Peo- 
 when the holder derives his title from pie v. Collison, 85 Mich. 105; Grand 
 an express grant made or sanctioned Rapids Ice & C. Co. v. South G. R. 
 by the United States. Hogg v. Beer- Ice & C. Co., 102 Mich. 227. 
 man, 41 Ohio St. 81. The grantee 7 In Diedrich v. Northwestern Ry.. 
 or patentee then owns to low-water Co., 42 Wis. 248, 271, the court say of 
 mark. Hardin v, Jordan, 16 Fed. Rep. this case: " The same ground of the- 
 
§83.] 
 
 LAKES AND PONDS. 
 
 159 
 
 § 83, Same — Same. — A lake or pond which is not really 
 useful for navigation, although of considerable size compared 
 with ordinary fresh-water streams, may be private property. 
 In North Carolina it is held that a lake, which is fifteen miles, 
 long, eight miles wide, and only three and one-half feet deep, 
 with no important outlet, and not forming a link in a chain 
 of water communication, is non-navigable, and that the ripa- 
 rian owners are not entitled to land made by a withdrawal of 
 its waters. 1 In New York, it has been held that an inland 
 lake, five miles long and three-quarters of a mile wide, which 
 has no important inlet, and does not form a part of a chain of 
 connecting waters, is subject to -the common-law rule as to 
 fresh-water streams. 2 In New Jersey, where there are no large 
 inland lakes extensively used for commerce, 3 it is held that the 
 test by which to determine whether waters are public or pri- 
 vate is the ebb and flow of the tide, and that the decisions in 
 other States, by which the Great Lakes and navigable rivers 
 
 rule in Rice v. Ruddiman, 10 Mich. 
 125, that the riparian owner takes 
 usque ad medium fllum aquce upon 
 Muskegon Lake, is that the lake is 
 only a widening of the river. With 
 the same view of the lake, we should 
 hold the same view of the law. It 
 is true that some of the opinions 
 speak of extending the same rule of 
 ownership usque ad medium fllum 
 aquai to all small lakes within the 
 State; but not so to Lake Michigan. 
 It is also true that some of the opin- 
 ions speak, and we cannot help think- 
 ing somewhat loosely, of some meas- 
 ure of riparian right of use, 'not 
 exclusively or unrestricted,' of the 
 bed of navigable waters under the 
 shallow water by the shore." In 
 Vermont it seems that the creeks 
 and inlets which empty into Lake 
 Champlain, so far as they are of the 
 same level as the lake and ordinarily 
 rise and fall with it, are public like 
 the lake. Fletcher v. Phelps, 28 Vt. 
 257, 262; Jakfeway v. Barrett, 38 Vt. 
 316> 323. So Sodus Bay in Wayne 
 county, N. Y., is a part of Lake Onta- 
 
 rio with respect to the New York 
 game laws. People v. Featherly, 12 
 N. Y. S. 389. 
 ^Hodges v. Williams, 95 N. C. 33L 
 2 Ledyard v. Ten Eyck, 36 Barb. 
 101; Gouverneur v. National Ice Co., 
 57 Hun, 474; 134 N. Y. 355; 18 L R. 
 A. 695 and note; Wilcox v. Bread, 
 92 Hun, 9; 157 N. Y. 713; School 
 Trustees v. Schroll, 120 111. 509; Ful- 
 ler v. Shedd, 161 111. 462; Peters v. 
 State, 96 Tenn. 682; Atwood v. Can- 
 andaigua, 56 Hun, 293; Smith v. 
 Rochester, 92 N. Y. 463; State v. 
 Haug, 95 Iowa, 413; Schlosser v. 
 Cruickshank, 96 Iowa, 414. In New 
 York, by statute, the State's title to 
 its navigable waters is a trust for the 
 owners of the upland as well as for 
 the public, and the State can only 
 convey the soil under such waters, 
 whether they are lakes or tide waters, 
 to the owner of the adjoining land. 
 Ibid. See Rumsey v. N. Y. R. Co., 
 114 N. Y/423; Wright v. Eldred, 46 
 Hun, 12. 
 
 3 Cobb v. Davenport, 32 N. J. L. 369, 
 380. 
 
160 THE LAW OF WATEBS. [Ch. III. 
 
 were held to be public, otherwise than for purposes of naviga- 
 tion, are alike a departure from the common law. 1 It has ac- 
 cordingly been held in that State that a fresh-water pond or 
 lake, which was three miles long and one mile wide, and of 
 sufficient depth to float large vessels, but which had no navi- 
 gable outlet, and had never been navigated by vessels larger 
 than fishing craft thirty feet long, was private property with 
 respect to its soil and fishings. 2 
 
 § 84. Same — Massachusetts and Maine — " Great ponds." 
 
 In Massachusetts the colony ordinance of 1641-47 provided in 
 substance that great ponds containing more than ten acres of 
 land, and lying in common, though within the bounds of a 
 town, should be free for fishing and fowling; and that the pub- 
 lic might " pass and repass on foot through any man's property 
 for that end, so they trespass not upon any man's corn or 
 meadow." 3 This ordinance of 1641-47, as appears by the 
 Code of 1649, prohibited the towns from granting great ponds, 
 but affirmed their power to regulate the fisheries both in them 
 and in tide waters, and that of the legislature to dispose of 
 great ponds and of tidal bays, coves, and rivers, or of the com- 
 mon rights of fishing and fowling in them. 4 This is the founda- 
 tion of the law of that State and of Maine upon that subject, 5 by 
 which ponds of sufficient size, which were not granted before 
 the year 1641 or 1647, are public property like tide waters, both 
 with respect to the soil under them, 6 and the right of reason- 
 
 ^bid. Com. v. Tiffany, 119 Mass. 300, 303; 
 
 2 Ibid. p. 377. In Pennsylvania a Hittinger v. Eames, 121 Mass. 539; 
 pond is not a "private pond" which Slater v. Gunn, 170 Mass. 509; Tudor 
 covers the soil of a person who stocks v. Cambridge Water Works, 1 Allen, 
 it with fish, and also the soil of others. 164 ; Barrows v. McDermott, 73 Maine, 
 It is an entirety, and the whole or 441. 
 
 none is private. Reynolds v. Com., * Com. v. Vincent, 108 Mass. 441, 
 
 93 Penn. St. 458. When an easement 446; Fay v. Salem Aqueduct Co., Ill 
 
 is acquired in and to the waters of a Mass. 27 ; Berry v. Eaddin, 11 Allen, 
 
 pond, a permanent dam and sluice- 577; Tudor v. Cambridge Water 
 
 way connected therewith are taxable Works, 1 Allen, 164; Com. v. Weath- 
 
 as real estate. Flax Pond Water Co. erhead, 110 Mass. 177; Same v. Tit- 
 
 v. Lynn, 147 Mass. 31. . fany, 119 Mass. 300. 
 
 3 Com. v. Alger, 7 Cush. 53, 67, 68; 5 ibid. 
 
 West Roxbury v. Stoddard, 7 Allen, « Paine v. Woods, 108 Mass. 160, 169. 
 158; Com. v. Vincent, 108 Mass. 441, The term "great pond" as used in 
 445, 446 ; Paine v. AVoods, id. 160, 169 ; the Massachusetts ordinance and the 
 
§ 84.] LAKES AND PONDS. 161 
 
 able use for all lawful purposes, including fishing, fowling, 
 boating, skating, bathing, the taking of ice 1 for use or for sale, 
 or of the water for domestic or agricultural purposes, or for 
 use in the arts. 2 The owners of lands bordering upon great 
 ponds have no peculiar right in them, except by grant from 
 the legislature or by prescription, 3 and the only restriction 
 upon their enjoyment by all persons is that they shall not in- 
 terfere with the reasonable use of the ponds by others, or with 
 public rights in cases where the legislature has made no special 
 provision. 4 The waters of great ponds or lakes cannot be raised 
 above their natural level at high-water, or drawn off below 
 their natural low-water mark, without legislative authority 
 or under the mill acts, and an excavation of the channel or a 
 deepening of the outlet which thus draws off the water may 
 be . restrained by injunction at suit of a riparian owner. 5 The 
 mill acts probably have no application to the waters of a great 
 pond. 6 For an abstraction of the waters an information in 
 equity in the. name of the attorney-general or an indictment 
 will lie for the public wrong ; 7 especially if there is detriment 
 to the public health. 8 A person who suffers special damage 
 therefrom may also have his private remedy, and one whose 
 land is flowed by means of a dam, or whose land is cut off 
 from the pond, when the water is lowered, by a strip of land 
 
 statute of 1869, oh. 384, means a pond Allen, 158; Cummings v. Barrett, 10 
 
 of a certain area created by the nat- Cush. 186, 188; Fay v. Salem Aque- 
 
 ural formation of the land at a par- duct Co., Ill Mass. 27. 
 
 ticular place. Com. v. Tiffany, 119 3 Ibid. ; Hittinger v, Eames, 121 
 
 Mass. 300, 303. Under the statute of Mass. 539, 546. 
 
 1869 the public have no right of fish- 4 West Eoxbury v. Stoddard, 7 
 
 ing in a pond which is not more than Allen, 158. 
 
 twenty acres in extent. Ibid. Mass. 5 Fernald v. Knox Woolen Co., 82 
 
 Pub. Sts. ch. 91. The board of har- Maine, 48; Whitney v. Wheeler Cot- 
 
 bor and land commissioners now ton Mills, 151 Mass. 396; Att. Gen. v. 
 
 have jurisdiction over great ponds Revere Copper Co., 152 Mass. 444. 
 
 exceeding ten acres in extent, and 6 Ibid.; Bates v. Weymouth Iron 
 
 they may license wharves, dams, and Co., 8 Cush. 548; Potter v. Howe, 141 
 
 other structures in them. Mass. St. Mass. 357. 
 
 1888, ch. 318. v 7 Fernald v. Knox Woolen Co., 82 
 
 1 Post, § 191; Brastow v. Rockport Maine, 48, 56. 
 
 Ice Co., 77 Maine^lOO; Hittinger v. 8 Att. Gen. v. Jamaica Pond Aque- 
 
 Eames, 121 Mass. 539; Gage v. Stein- duct, 133 Mass. 361; Cedar Lake Hotel 
 
 krauss, 131 Mass. 222; Rowell v. Doyle, Co. v. Cedar Lake Hydraulic Co., 79 
 
 id. 474 Wis. 297. 
 
 2 West Eoxbury v. Stoddard, 7 
 11 
 
162 THE LAW OF WATERS. [Ch. Ill- 
 
 intervening between his land and the water, suffers such spe- 
 cial damage. 1 In Watuppa Reservoir Co. v. Fall Eiver, 2 it was- 
 held that the legislature could authorize a municipal corpora- 
 tion to appropriate, without compensation, the waters of great 
 ponds for domestic purposes, and such municipal uses as the 
 extinguishment of fires, although such waters were thereby ma- 
 terially lessened to the injury of land-owners upon the ponds 
 and their outlets. In Attorney General v. Eevere Copper Co., s 
 it was held that, under the statute of limitations 4 applicable to 
 real actions brought by the State of Massachusetts, the right 
 to lower a great pond below its natural low-water mark, by 
 withdrawing water therefrom, could be acquired by prescrip- 
 tion; that such prescriptive right once acquired was not affected 
 by an act passed in 1867 5 making that statute of limitations in- 
 applicable to great ponds ; that, after the passage of the Code 
 of 1649, a town could not appropriate a great pond to any per- 
 son ; and that the rule that length of time does not legalize & 
 public nuisance does not apply to the same extent to interfer- 
 ence with public rights of property as to an injury involving 
 real criminality, such as detriment to the public health. In 
 New Hampshire the colony ordinance appears never to have- 
 been in force, although littoral proprietors have certain rights; 
 to wharf out even beyond one hundred rods ; but large ponds- 
 of more than ten acres are held to be public by usage. 6 
 
 § 85. Same — Smaller lakes of the West. — In the "Western 
 States it is held that the owners of lands bordering upon un- 
 
 1 Potter v. Howe, 141 Mass. 357. As ply, 149 Mass. 478; Cole v. Eastham,. 
 
 to a preservation of the riparian own- 133 Mass. 65; St. Anthony Falls W. 
 
 ers' right of access to the pond when P. Co. v. St. Paul Water Com'rs, 168 
 
 land along the pond is taken, see U. S. 349, 373; Minneapolis Mill Co. 
 
 Tyler v. Hudson, 147 Mass. 609. As v. St. Paul Water Works, 56 Minn, 
 
 to leases of "great ponds," see Mass. 485; Auburn v. Union W. P. Co., 90» 
 
 Pub. Sts. ch. 91; St. of 1885, ch. 109; Maine, 576. See 2 Harvard L. Eev.. 
 
 Com. v. Eliot, 146 Mass. 5; Same v. 195, 316; 3 id. 1. 
 
 Richardson, 142 Mass. 71 ; Same v. 3 152 Mass. 444. 
 
 Perley, 130 Mass, 469. Other decis- 4 Eev. Sts. of 1836, ch. 119, § 12. 
 
 ions relating to great ponds are, War- 5 Ch. 275. 
 
 ren v. Spencer Water Co., 143 Mass. 6 Nudd v. Lamprey (N. H 1847, un- 
 
 155; Smith v. Concord, id. 253; Cow- reported) ; Concord Manuf. Co. v. Rob- 
 
 drey v. Woburn, 136 Mass. 400. ertson, 66 N. H. 1; State v. Welch, id. 
 
 2 147 Mass. 548; 154 Mass. 305. See 178; Percy Summer Club v. Welch, 
 
 134 Mass. 267; Brickett v. Haverhill id. 180; Clement v. Burns, 43 N. H. 
 
 Aqueduct Co., 142 Mass. 394; Proprie- 621 ; post, § 169. 
 tors of Mills v. Braintree Water Sup- 
 
§85.] 
 
 LAKES AND PONDS. 
 
 163 
 
 navigable lakes situated within the congressional surveys, own 
 the bed of the lake to its centre, 1 as in the case of unnavigable 
 streams. 2 In the recent case of Lembeck v. Nye, 3 in Ohio, it 
 was held with respect to an oval, non-navigable lake, having 
 an area of about four hundred acres, that neither the public 
 nor a riparian owner, whose title extends only to the water's 
 edge, has a right to boat upon, or to fish in the lake, but that 
 such owner is of right entitled to use the water for domestic 
 and agricultural purposes connected with his land. In Wis- 
 consin, although a riparian owner upon a river or stream takes 
 prima facie to its thread, yet the owner of land which borders 
 upon a meandered natural lake, whether navigable or unnav- 
 igable, is entitled only to the accretions which are added to his 
 land and to the soil which may be left by the recession of the 
 water; he has no title to the soil which remains submerged, 
 and the State cannot grant the right to drain or unduly divert 
 a navigable lake. 4 Such owner takes, however, to the water's 
 
 iRidgway v. Ludlow, 58 Ind. 48; 
 Edwards v. Ogle, 76 Ind. 302; Stoner 
 v. Rice, 121 Ind. 51 ; Forsyth v. Smale, 
 7 Biss. 201. See Kirwan v. Murphy, 
 83 Fed. Rep. 275; Union Depot Street 
 Ey. Co. v. Brunswick, 31 Minn. 297; 
 Bennett v. Murtaugh, 20 Minn. 151; 
 Noyes v. Supervisors, 104 Iowa, 174; 
 32 Cent. L. J. 291. In the above case 
 of Ridgway v. Ludlow, it was also 
 held that a title, by adverse posses- 
 sion, to land bordering upon an un- 
 navigable lake, gives title to the 
 centre of the lake. 
 
 2 Ante, § 78. The admiralty has no 
 jurisdiction of inland lakes lying 
 within the limits of a State. Stapp 
 v. The Clyde, 43 Minn. 192. 
 
 a 47 Ohio St. 336. Under the Indi- 
 ana statutes, swamp lands conveyed 
 to the State by U. S. St. of Sept. 28, 
 1850, cannot be conveyed by the State 
 until they have been surveyed and 
 patented; hence a conveyance of sur- 
 veyed tracts bordering on a lake 
 passes no title to the bed of the lake. 
 State v. Portsmouth S. Bank, 106 Ind. 
 435. See 8 L. E. A. 578, note. 
 
 4 Priewe v. Wisconsin State Land 
 
 & Imp. Co., 103 Wis. 537; Delaphine 
 v. Chicago Ry. Co., 42 Wis. 214; Boor- 
 man v. Sunnuchs, 42 Wis. 233; Died- 
 rich v. Northwestern Ry. Co., 42 Wis. 
 248; 47 Wis. 662; Olson v. Merrill, 42 
 Wis. 203; Wright v. Day, 33 Wis. 260; 
 Shufeldt v. Spaulding, 37 Wis. 662; 
 Mariner v. Schulte, 13 Wis. 692; Jones 
 v. Pettibone, 2 Wis. 308. See Roberts 
 v. Rust, 104 Wis. 619; Pewaukee v. 
 Savoy, 103 Wis. 271; Rood v. Wallace 
 (Iowa), 79 N. W. Rep. 449; Sweringen 
 v. St. Louis, 151 Mo. 348; French- 
 Glenn Live-stock Co. v. Springer 
 (Oreg.), 58 Pac. Rep. 102; Syracuse v. 
 Stacey, 61 N. Y. S. 165. Land mean- 
 dered by the public survey as a -lake 
 is not conclusively presumed to be 
 such rather than a swamp or even 
 dry land. Niles v. Cedar Point Club, 
 175 U. S. 300; Western Inv. Co. v. 
 Farmers' Nat. Bank (Oreg.), 57 Pac. 
 Rep. 912. See Warner Valley Stock 
 Co. v. Calderwood (id.), 59 id. 115. 
 And the absence of a meander line 
 does not necessarily show that a 
 lake or slough is not public property. 
 Lownsdale v. Gray's Harbor Boom 
 Co., 21 Wash. — , 58 Pac. Rep. 663. 
 
164: 
 
 THE LAW OF WATERS. 
 
 [CH. III. 
 
 edge, even when the meandered line of the lake differs from 
 the actual water line. 1 In Michigan it was said that it had 
 always been customary to permit the public to take fish in the 
 small lakes and ponds of that State, and it was therefore held 
 •that the plaintiff in that case, who had never given notice for- 
 bidding the exercise of this customary right, could not main- 
 tain an action of trespass against the defendant for passing 
 upon his land with the intention of fishing and for taking fish 
 in a pond which was almost exclusively enclosed by the plaint- 
 iff's farm. 2 In this State the owner of a fractional subdivision 
 of land, made so by a non-navigable lake, owns so much of the 
 soil under the lake as would fall within the lines of his descrip- 
 tion, if fully extended. 3 
 
 As to the right of diverting water 
 from a lake or pond at its outlet in 
 New York, see Waller v. State, 144 
 N. Y. 579; Hartlot Paper Co. v. State, 
 63 N. Y. S. 205; Robinson v. Davis, id. 
 444. Such outlet may form a natural 
 watercourse. Ibid.; Neal v. Ohio 
 River R. Co. (W. Va.), 34 S. E. Rep. 
 914. See Albert Lea v. Da vies (Minn.), 
 82 N. W. Rep. 1104 
 
 1 Boorman v. Sunnuohs, 42 Wis. 
 233; Delaphine v. Chicago, etc. Ry. 
 Co., id. 214; Ne-pee-nauk Club v. 
 Wilson, 96 Wis. 290; ante, § 76; 
 Huntsman v. Hendricks, 44 Minn. 
 423; Hanford v. St. Paul R. Co., 43 
 Minn. 104; Lamprey v. State, 52 Minn. 
 181. See 13 Cent. L. J. 1; 32 id. 291; 
 Knudsen v. Omanson, 10 Utah, 124. 
 If the supposed lake does not exist, 
 the meander line is the boundary. 
 Grant v. Hemphill, 92 Iowa, 218. 
 
 2 Marsh v. Colby, 39 Mich. 627. See 
 People v. Collison, 85 Mich. 105. Else- 
 
 where it has been held that a right 
 to take fish in a private river or lake 
 is a profit a prendre which could 
 not be acquired by custom unless 
 pleaded with a que estate. Waters v. 
 Lilley, 4 Pick. 145; Murphy v. Ryan, 
 Ir. R. 2 C. L. 143; Bland v. Lips- 
 comb, 24 L. J. Q. B. 155, note; Gate- 
 wood's Case, 6 Co. 60 ; Grimstead v. 
 Marlowe, 4 T. R. 717; Cobb v. Daven- 
 port, 33 N. J. L. 223; 32 id. 369, 389; 
 Baylor v. Decker, 133 Penn. St. 168; 
 Winder v. Blake, 4 Jones (N. C), 332. 
 In Iowa, the boards of supervisors 
 have no authority, without an ex- 
 press statutory license, to construct 
 a bridge across a navigable lake the 
 bed of which belongs to the State. 
 Snyder v. Foster, 77 Iowa, 638. 
 
 3 Clute v. Fisher, 65 Mich. 48; Grand 
 Rapids Ice Co. v. South G. R Ice Co., 
 102 Mich. 227; 47 Am. St. Rep. 516, 
 525, n.; Clark v. Durland, 55 N. Y. 
 S. 14. 
 
CHAPTEE IV. 
 
 THE PUBLIC RIGHT OF NAVIGATION. 
 
 SECTIONS. 
 
 86. Navigable waters. 
 87, 88. The right of navigation paramount to private and other public 
 
 rights in these waters. 
 89, 90. The right is to be exercised with reasonable regard to the rights 
 of riparian proprietors. 
 
 91. Protection of navigation in England. 
 
 92. Nuisances to navigation. 
 
 93. Purprestures and nuisances. 
 
 93a. Nuisances in navigable fresh rivers. 
 
 94 Benefit to the public cannot be offset against a nuisance to navi- 
 gation. 
 
 95. Anchoring and mooring. 
 
 96. Negligence in navigation. 
 
 97. Mooring must not constitute a public nuisance. 
 
 98. Liability for injuries caused by wrecks. 
 
 99. Navigation does not include right to use river banks. 
 
 100. Nor does the right of fishery. 
 
 101. Towing paths. 
 
 t02. Property stranded upon riparian land reclaimable by its owner. 
 
 103. Compensation necessary when the river banks are occupied under 
 
 the right of eminent domain. 
 
 104 Towage and access to navigable waters. 
 
 105. Landings by prescription and dedication. 
 
 106. Public landing places. 
 107-110. Floatable streams. 
 
 111. "Waters are navigable wherever they are naturally capable of gen- 
 
 eral use, notwithstanding obstructions. 
 
 112. Judicial notice taken of the navigability of large streams. 
 
 113. Duty to keep wharves in repair. 
 114 Duty to keep docks safe for vessels. 
 
 115. Liability of public bodies collecting tolls for navigation. 
 
 116. Liability of gwcm'-corporations. 
 
 117, 118. Powers of such corporations to improve harbors, canals, etc., and 
 to levy assessments therefor. 
 
 119. Public and private wharves, how distinguished. 
 
 120. Wharfage, liability therefor. 
 
 121. Remedies for public nuisances. 
 122-127. When by private suits. 
 
 128. Abatement of public nuisances. 
 
166 THE LAW OF WATEES. [Ch. IV. 
 
 SECTIONS. 
 
 129-132. The relative powers of Congress and of the State legislatures to 
 obstruct navigable waters. 
 133. The effect of the ordinance of 1787 upon these powers. 
 
 134-137. Construction and interpretation of statutes conferring such au- 
 thority. 
 
 138. Harbor lines. 
 
 139. Power of the subordinate authorities of the State to encroach 
 
 upon navigable waters. 
 
 140. "Wharves. 
 141-147. Tolls. 
 
 § 86. Navigable waters — What are. — The privilege of 
 navigation upon all waters which are capable of such use in 
 their natural condition, and are accessible without trespassing 
 upon private lands, is a common and paramount right. It is 
 not confined to the channel or to those parts of the water 
 highway which are most frequently used by vessels, but ex- 
 tends to high-water mark in tidal rivers aud tide waters gen- 
 erally ; J and to the line along the shore of navigable fresh 
 waters at which navigability ceases. 2 In England, the right of 
 navigation is public in tide water, but depends upon user in the 
 case of navigable fresh waters. 3 In this country, tide waters 
 and fresh waters which are navigable in fact are alike open to 
 the public for passage. 4 The purpose of the navigation is im- 
 material, it is said, and those who pass upon the water for 
 purposes of pleasure, fishing, or f owling have equal rights with 
 those who navigate for business, trade, or agriculture.* In 
 Bourke v. Davis, 6 it was held that the public generally cannot 
 
 i Williams v. Wilcox, 8 Ad. & EL *Ante, §§ 53, 54. 
 
 314; Colchester v. Brooke, 7 Q. B. 339; «West Roxbury v. Stoddard, 7 
 
 Att. Gen. v. Terry, L. R. 9 Ch. 423; Allen, 158, 171; Att. Gen. u Woods, 
 
 Orr Ewing v. Colquhoun, 2 App. Cas. 108 Mass. 436, explaining Rowe v. 
 
 839; Micklethwait v. Vincent, 67 L. Granite Bridge, 21 Pick. 344; Charles- 
 
 T. 225; s. C. 8 T. L. R. 685; Com. v. town v. County Com'rs, 3 Met. 202, 
 
 Church, 1 Penn. St. 105; Mobile v. and Murdock v. Stickney, 8 Cush. 
 
 Eslava, 9 Porter, 577; 16 Pet. 234; 113; Att. Gen. v. Lonsdale, L. R. 7 
 
 Hagan v. Campbell, 8 Porter, 9; Eq. 377; The Montello, 20 Wall. 430. 
 
 Simpson v. Seavey, 8 Maine, 138; 6 44 Ch. D. 1W. See also 24 Ir. L. 
 
 State v, Babcock, 30 N. J. L. 29; State T. 235; same article in 54 J. P. 177; 
 
 v. Harbor Line Com'rs, 4 Wash. St. Hammerton v. Honey, 24 W. R. 603; 
 
 6; Tennessee & C. R. Co. v. Danforth, Edwards v. Jenkins, [1896] 1 Ch. 308; 
 
 112 Ala. 80; Porter v. Allen, 8 Ind. 1. Turner v. Hebron, 61 Conn. 175; Chis- 
 
 2 Ibid. olm v. Caines, 67 Fed. Rep. 285; 
 
 3 Ante, §§ 51, 52. Burroughs v. Whitwam, 59 Mich. 279. 
 
§ 87.] PUBLIC EIGHT OF NAVIGATION. 167 
 
 have upon private lands a right of recreation by custom, which 
 must be confined, to the inhabitants of a particular district; 1 
 and that, while riparian owners may possibly gain a right of 
 boating for recreation for themselves and their friends by cus- 
 tom, the existence of such right or custom does not enable the 
 public to boat on a non-navigable river, which a dam makes 
 partially navigable, or support the .claim that it is a highway. 
 
 §87. Navigation — The paramount right. — Kiparian pro- 
 prietors, and those who have private rights in the water or 
 the soil beneath, cannot lawfully obstruct or limit the navigar 
 tion in any part of the channel without a special power con- 
 ferred by competent legislative authority. The master of a 
 vessel is not required to shorten sail, or yield the channel to a 
 fishing net, but may lawfully prosecute his voyage, or approach 
 the shore at any point, without regard to seines or nets drawn 
 across the way. 2 If, under the pretense of exercising the right 
 •of navigation, he turns out of his course to run upon a net, or 
 lies in wait until it is spread, and then crowds sail to reach it ; 
 or, if he unnecessarily anchors on a fishing ground, or loiters 
 about it to prevent its use as such, or does not change his 
 course, when he can do so without prejudice to the reasonable 
 prosecution of his voyage, and has warning that he is ap- 
 proaching the net, he is answerable in damages, because the 
 right of navigation, though superior, does not take away the 
 right of fishery, and cannot be so abused as to excuse wanton- 
 ness or malice. 3 But if, in an action for injury to a fishing net 
 
 See Hall v. Alford, 114 Mich. 165. v. Munn, 1 South. (N. J.) 61; Jones v. 
 
 In Bourke v. Davis, it was doubted (Keeling, 1 Jones (N. C), 299; Davis 
 
 whether a lake on private grounds, v. Jerkins, 5 id. 290; Cobb v. Bennett, 
 
 touched at only one point by a public 75 Penn. St. 326; Flanagan v. Phila- 
 
 j-oad, could be made a highway for delphia, 42 id. 219, 228; Moulton v. 
 
 boats launched upon it from the road Libbey, 37 Maine, 472; Mason v. 
 
 for pleasure; citing Marshall v. Ulles- Mansfield, 4 Cranch C. C. 580; The 
 
 water Steam Nav. Co., L. R. 7 Q. B.. City of Baltimore, 5 Ben. 474; Com. 
 
 166. In Smith v. Andrews, [1891] 2 v. Chapin, 5 Pick. 199; ante, § 1. 
 
 Ch. 678; 65 L.T. 175, it was held that sibid.; Post v. Munn, 1 South, 
 
 the public cannot acquire a prescrip- (N. J.) 61, 62; Cobb v. Bennett, 75 
 
 tive right to fish in a river which is Penn. St. 326; Jones v. Keeling, 1 
 
 not tidal, though navigable. Jones (N. C), 299; Lord v. Turner, 2 
 
 i Edwards v. Jenkins, [1896] 1 Ch. Hannay (N. B.), 13; Wright v. Mul- 
 
 508. vaney, 78 Wis. 89; 9 L. R. A. 807, and 
 
 2 Anon., 1 Camp. 517, note; Col- note. 
 Chester v. Brooke, 7 Q. B. 339; Post 
 
168 
 
 THE LAW OF WATERS. 
 
 [CH. IV. 
 
 "by a raft navigating down a river, the declaration only charges 
 carelessness and mismanagement against the raft, the only 
 question for the jury is negligence, not wantonness or malice. 1 
 In a tidal river the right of navigation is not suspended at low 
 tide when the channel is too shallow to float vessels. It is not 
 an unreasonable user of the highway to so propel the- vessel 
 along the stream that she cuts through the soil of the river 
 bed ; 2 and a vessel, which is waiting until the tide serves, is not 
 liable for injury caused without wantonness or negligence to an 
 oyster bed upon which the vessel settles. 3 
 
 § 88. Same — Same. — At common law the right of navigatr 
 ing a public stream is paramount to the right of passage across 
 the stream by means of a bridge. 4 It is so far superior to a 
 ferry privilege 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 damage to the steamer, or chance of damage, could be 
 reasonably apprehended from delay. 5 So the right of a gas 
 
 iWolhauper W.Foley, 4 Allen (N.B.), 
 90, 167. 
 
 2 Ferguson v. Union S. Co., 10 Vict. 
 L. R. 279; The City of Richmond, 43 
 Fe9. Rep. 85; 59 id. 365. 
 
 3 Colchester v. Brooke, 7 Q. B. 339; 
 9 Jur. 1090; Petrie v. Rostrevor, [1895] 
 2 Ir. 556 ; ante, § 20. See The Oetavia 
 Stella, 6 Asp. M. C. 182; 2 Law Mag. 
 & Rev. (4th Series), 114, 216. 
 
 * Castello v. Landwehr, 28 Wis. 522; 
 Scott v. Chicago, 1 Biss. 510; St. Louis 
 & M. V. Transp. Co. v. United States, 
 33 Ct. CI. 251; Thurlow v. Bogart, 15 
 C. P. (Can.) 9, 601. The legislature is 
 the only tribunal that is to reconcile 
 these conflicting interests. Com. v. 
 Breed, 4 Pick. 460; Com. v. Essex Co., 
 13 Gray, 239; Middlesex R. Co. v. 
 Wakefield, 103 Mass. 261, 265; Lister 
 v. Newark Plank Road Co., 36 N. J. 
 Eq. 477. If a city, being duly author- 
 ized by the State, provides by ordi- 
 nance for the alternate passage of 
 vessels through one of its draw- 
 bridges and of travelers over the 
 bridge, and that the draw shall be 
 
 closed against vessels for one hour 
 each morning and evening, this does 
 not conflict with the commerce 
 clause of the United States constitu- 
 tion. Escanaba Co. v. Chicago, 107 
 U. S. 678; 12 Fed. Rep. 777. 
 
 5 Steamboat Globe v. Kurtz, 4 G. 
 Greene (Iowa), 433; Babcock v. Her- 
 bert, 3 Ala. 392; Albina Ferry Co. v. 
 The Imperial, 38 Fed. Rep. 614. A 
 wire ferry cable across a navigable 
 river is not an unlawful obstruction 
 to navigation, unless it actually pre- 
 vents the navigation or renders it 
 hazardous. The Vancouver, 2 Saw- 
 yer, 381. In Steamboat Globe v. 
 Kurtz, 4 G. Greene, 433, 436, Hall, J., 
 said: " The lawful navigation of the 
 river can never be a nuisance to a 
 ferry owner, but a ferry may become 
 a nuisance by obstructing the navi- 
 gation. While the ferry owner is 
 protected in the enjoyment of his 
 franchise and property pertaining to- 
 the ferry, against wanton and wilful 
 injury from those who are engaged 
 in navigating the river, where he has 
 
§ 89.] PUBLIC EIGHT OF NAVIGATION. 169 
 
 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 cir- 
 cumstances in which it is placed, is not responsible, in the ab- 
 sence of negligence or malice, for injury thus caused to the 
 pipes. 1 
 
 § 89. Same — Care required as to riparian interests. — 
 
 The public right of passage must also be 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 or suction, 2 other vessels, rafts, or property attached to 
 the shore, as well as to avoid striking them. 3 If a man ob- 
 stinately 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. 4 In a case in Michigan, 5 a steamboat was 
 
 received the usual courtesies that are 
 extended between man and man, he 
 has no cause of complaint. His in- 
 terest is at best but a servient right, 
 and cannot be extended beyond the 
 naked object of his license. He is 
 allowed to keep a ferry, not to ob- 
 struct the navigation or place a nui- 
 sance 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. 
 
 1 Milwaukee Gas Light Co. v. The 
 Gamecock, 23 Wis. 144; Omslaer v. 
 Philadelphia Co., 31 Fed. Eep. 354; 
 The William H. Bailey, 100 id. 115 (a 
 telegraph cable). 
 
 •2 The Canima, 17 Fed. Rep. 271; 
 The Drew, 22 id. 852; The Rhode 
 Island, 24 id. 295; The Atlanta, 34 id. 
 918; The New York, id. 757; The City 
 of Richmond, 43 id. 85; Saulter v. 
 New York S. S. Co., 88 N. C. 123. 
 
 3 Wright v. Brown, 4 Ind. 95: The 
 Rhode Island. 8 Ben. 50; The Mas- 
 sachusetts, 10 id. 177; The C. H. 
 Northam, 13 Blatch. 31;" 7 Ben. 249; 
 The Morrisania, 13 Blatch. 512; The 
 
 Daniel Drew, id. 523; The Tiger Lily, 
 11 Fed. Rep. 744; The Southfield, 19 
 id. 841 ; Cornwall v. The New York, 
 38 id. 710; Robson v. The Kate, 21 Q. 
 B. D. 13; Passano v. The New Bruns- 
 wick, 43 Fed. Rep. 174; Browne v. 
 Stone, 1 Phila. 241 ; 5 Penn. Law 
 Jour. 75. A vessel which involun- 
 tarily causes injury to another vessel 
 lying alongside, in consequence of 
 the swell caused by apassing steamer, 
 is not liable. Kissam v. The Albert, 
 21 Law Rep. 41. The owners of rafts 
 or vessels moored to banks or 
 wharves are required to take reason- 
 able precautions to prevent injuries 
 liable to be caused by the swell of 
 passing steamers. Fawcett v. The 
 Natchez, 3 Woods, 16; The Green- 
 point, 18 Fed. Rep. 186. ' Admiralty 
 has jurisdiction of a libel in rem 
 against a vessel which has damaged 
 a raft of logs in navigable waters. 
 The Flint & Marquette, 33 Fed. Rep. 
 511. 
 
 4 Anon., 1 Camp. 517, note. See- 
 Hall v. Ewart, 33 Q. B. (Can.) 491. 
 
 5 People's Ice Co. v.. Steamship Ex- 
 celsior, 44 Mich. 229; 43 Mich. 336. 
 
170 THE LAW OF WATERS. [Cff. IV. 
 
 run to and fro in the Detroit Eiver 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 procure sufficient ice 
 to fill its houses, the steamboat was held responsible for the 
 loss. 1 The owner of a vessel is not responsible for injuries 
 caused by inevitable accident, 2 but is liable for the resulting 
 consequences, as well as the immediate consequences, of negli- 
 gence on the part of those in charge. 3 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 ves- 
 sel is liable for the damage to the first. 4 Where a vessel, being 
 disabled by a collision, and left helpless in the track of naviga- 
 tion, is afterwards injured by a passing vessel, the vessel at 
 fault is liable for the additional injuries thus caused to the dis- 
 abled vessel. 5 Where, also, a ship became unmanageable through 
 the negligence of the captain and crew about three-quarters of 
 
 1 The court, in its opinion, after re- also clearly apparent that vessels 
 
 ferring to the obligation imposed have not an exclusive right to use 
 
 upon those who use a highway to the entire channel, which may be 
 
 avoid unnecessary injury to trees> narrowed or used for purposes, some 
 
 carriages, and other articles that of which are but remotely, if at all, 
 
 may be within the limits of the way connected with the subject of navi- 
 
 (citing Clark v. Dasso, 34 Mich. 86; gation." "A vessel has no right to 
 
 Cary v. Daniels, 8 Met. 478), and to wantonly run so close to the shore, 
 
 the case of the wanton destruction to a boom, or to a dock, as to cause 
 
 of a fishing-net by a vessel (citing damage which could easily be avoided 
 
 Post v. Munn, 1 South., N. J., 61. See by standing farther off." 
 
 ante, § 87), said: "The right of navi- 2 ibid.; Doward v. Lindsay, L. R. 5 
 
 gation, while paramount, is not ex- P. C. 338; The Thornley, 7 Jur. 659; 
 
 elusive, and cannot be exercised to Brown v. Lynn, 31 Penn. St. 510; The 
 
 the unnecessary or wanton destruo Louisiana, 3 "Wall. 164; Dygert v. 
 
 tion of private rights or property, Bradley, 8 Wend. 469. See Mark v. 
 
 where both can be freely and fairly Hudson Eiver Bridge Co., 56 How. 
 
 enjoyed. But in this case the vessel Pr. 108; The Oler, 2 Hughes, 12. 
 
 did not run into the boom, and there- 3 Spry Lumber Co. v. The C. H. 
 
 fore it may be said the case is not Green, 76 Mich. 320. 
 
 parallel with those we have been * Austin v. New Jersey Steamboat 
 
 considering. The principle, however, Co., 43 N. Y. 75. 
 
 is the same, which recognizes the s The Oler, 14 Am. L. Reg. 300; 2 
 
 superior right of the vessel, but pun- Hughes, 12. 
 ishes any abuse of that right. It is 
 
§ 90.] PUBLIC EIGHT OF NAVIGATION. 171 
 
 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. 1 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 ac- 
 cidental injury from the lawful acts of others, does not deprive 
 him of his remedy for an injury caused by the culpable negli- 
 gence of such other persons. 2 But the riparian owner will be 
 liable for" any act on his part which causes injury to vessels 
 lawfully and carefully navigating the stream. 3 If a vessel or 
 raft, moored without his consent against the front of his land, 
 interferes with" his right of access thereto, he may unfasten it 
 and set it adrift, and if it floats away or is wrecked, he is not 
 liable to the owner for the loss. 4 But he is not justified in set- 
 ting adrift any thing- 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 prem- 
 ises, and he towed it to another part 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. 5 
 
 § 90. Same — Same. — 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 sus- 
 tains damage from this cause does not, in all cases, give him 
 a cause of action. Lands adjoining a river may, without com- 
 pensation, be legally flowed, to some extent, by persons exer- 
 cising the right of navigation. Yessels, boats, or logs floating 
 
 1 Romney Marsh v. Trinity House, * Dutton v. Strong, 1 Black, 23 ; Har- 
 L. R 5 Ex. 204; L. R 7 Ex. 247; The rington v. Edwards, 17 Wis. 586. 
 George and Richard, L. R. 3 Adm. & s Porter u Allen, 8 Ind. 1. In Sat- 
 Ecc. 446; The Buckhurst, 6 P. D. 152; terly v. Hallock, 5 Hun, 178, the de- 
 Bowas v. Tow Line, 2 Sawyer, 21; tfendant unlawfully removed the 
 The Austria, 14 Fed. Rep. 298. plaintiff's vessel from the dock, in 
 
 2 Cook v. The Champlain Transp. which it was lying, to a position 
 Co., 4 Denio, 91; Kerwhaker v. The where it was injured by settling at 
 Cleveland R. Co., 3 Ohio St. 172, low water upon a log which the 
 193. plaintiff had previously thrown over- 
 
 3 The Henry Clay v. O'Brien, 65 Fed. board. The plaintiff was held not 
 Rep. 815. guilty of contributory negligence. 
 
172 
 
 THE LAW OF WATEKS. 
 
 [CH. IV- 
 
 in the water may cause it to rise above its natural level ; and, 
 when numerous, they may be the source of appreciable damage 
 to the riparian owners from this cause, as well as by obstruct- 
 ing the current, or by jams, the washing of the banks, and the 
 striking of the logs against them. 1 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 bound to 
 exercise ordinary prudence and skill, 2 but is not an insurer that 
 the riparian owners shall not suffer damage. 3 If a log or other 
 
 i Field v. Apple River L. D. Co., 67 
 Wis. 569; Miller v. Sherry, 65 Wis. 
 129 ; Goodin v. Kentucky Lumber Co., 
 90 Ky. 625; Kroll v. Nester, 52 Mich. 
 70; Watts v. Tittabawassee B. Co., id. 
 203; Butterfield v. Gilchrist, 53 Mich. 
 22; Anderson v. Maloy, 32 Minn. 76; 
 Witheral v. Muskegon B. Co., 68 Mich. 
 48; 13 Am. State Rep. 336, note; St. 
 Cloud W. P. Co. v. Miss. River Boom 
 Co., 43 Minn. 380; Hopkins v. Butte 
 & M. C. Co., 13 Mont. 223; 16 id. 356; 
 Gwaltney v. Scottish Carolina Tim- 
 ber Co., 115 N. C. 579. 
 
 2 Haines v. Welch, 14 Oregon, 319. 
 
 3 White River Booming Co. v. Nel- 
 son, 45 Mich. 578, and authorities 
 cited below; Grand Rapids B. Co. v. 
 Jarvis, 30 Mich. 308, 318; Edwards 
 v. Wausau Boom Co., 67 Wis. 463; 
 Outerson v. Gould, 77 Hun, 429; 
 James v. Carter, 96 Ky. 378; Rasicot 
 v. Little Falls Impr. Co., 65 Minn. 543; 
 Douchette v. Little Falls Impr. Co. 
 (Minn.), 73 N. W. Rep. 847; Wooden 
 v. Mt. Pleasant L Co., 106 Mich. 412; 
 Rogers v. Coal River Boom Co., 41 
 W. Va. 593; Gniadck v. Northwest- 
 ern Imp. Co., 73 Minn. 87; Ramgren 
 v. McDermott, id. 368; Hueston v._ 
 Miss. & R. R. Boom Co. (Minn.), 79' 
 N. W. Rep. 92; Coyne v. Miss. & R. R. 
 Boom Co., 72 Minn. 533; 41 L. R. A. 
 494, and note; Carlson v. St. Louis 
 Dam Co. (Minn.), id. 371, and note; 
 Gravel v. Little Falls Impr. & Nav. 
 Co., 74 Minn. 416. In the second case 
 
 cited 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 currents, ever become collected 
 or crowded together to such an ex- 
 tent as might, in the shallow and 
 narrow waters, impede the current, 
 are of necessity so much deeper (and 
 generally of much greater width) 
 than rivers like this, whose naviga- 
 tion can be rendered valuable princi- 
 pally for the running of logs, such 
 ships and vessels, by their shape and 
 construction, are so entirely different 
 from saw-logs in respect to the facility 
 afforded for the passage of the cur- 
 rent under and around them, that the 
 analogy between the two becomes 
 exceedingly faint, if it does not dis- 
 appear. But when we consider fur- 
 ther, that saw-logs, without any bond 
 of connection, coming down a river, 
 each in its own careless way, and 
 stopped by a boom or other obstruc- 
 tion, 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 
 fill the stream from the surface to the 
 bottom, setting back the water ljke a 
 dam; while 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 setting 
 
§ 91.] PUBLIC EIGHT OF NAVIGATION. 173 
 
 property is lodged upon the adjoining 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 being liable for such mishaps 
 or for trespass. 1 So, if a bridge, which was properly constructed 
 and has been kept in repair, is carried away by an extraordi- 
 nary 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 by 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 ex- 
 ercise of the public right, 3 as well as those due to a duly author- 
 ized improvement of the navigation. 4 But a boom company 
 cannot rightfully, by using a dam, or neglecting to pick a 
 channel, increase the damage to adjacent land beyond what is 
 incident to the ordinary course of navigation, 5 and it cannot 
 lawfully, by its boom, block up a navigable channel, though 
 the boom has a " trip " or passage-way, that can be opened to 
 permit the passage of vessels. 6 
 
 § 91. Same — Protection of, in England.— In England the 
 right of navigation has always been jealously guarded as a 
 
 back of a river from this cause, an B. C. & M. R. Co., 51 N. H. 504, 530; 
 
 ordinary or probable incident of nav- Carter v. Thurston, 58 N. H. 104. 
 
 igation." 4 Gibson v. United States, 166 U. S. 
 
 i Chase v. Corcoran, 106 Mass. 286; 269; Scran ton v. Wheejer, 113 Mich. 
 
 Proctor v. Adams, 113 Mass. 376; 565. 
 
 Barker v. Bates, 13 Pick. 255; Dun- 5 Anderson v. Thunder Bay River 
 
 wich v. Sterry, 1 B. & Ad. B31 ; Thomp- Boom Co., 61 Mich. 489. 
 
 son v. Androscoggin Co., 54 N. H. 545, 6 United States v. Bellingham Bay 
 
 558: Etter v. Edwards, 4 Watts, 65; Boom Co., 176 U. S. 219, reversing id., 
 
 2 Kent Com. 322, 359, 360; 1 Black. 81 Fed. Rep. 658. But one who makes 
 
 Com. 293, 297. ' use of the boom may be estopped 
 
 2 Livezey v. Philadelphia, 64 Penn. thereby, if the State or the United 
 St. 106; Lehigh Bridge Co. v. Lehigh States make no objection to the 
 Coal Co., 4 Rawle, 94; Forster v. Ju- boom. Lindsay & Phelps Co. v. Mul- 
 niata Bridge Co., 16 Penn. St. 393; len, 176 U. S. 126. As to the negli- 
 Sheldon v. Sherman, 42 N. Y. 484; 42 gent insufficiency of booms to hold 
 Barb. 368; post, § 98. the quantity of logs contracted to be 
 
 3 Thompson v. Androscoggin Co., boomed, see Hebard v. Shaw (Mioh.), 
 54 N. H. 545, 558; 58 id. 108; Brown 82 N. W. Rep. 250. 
 
 v. Collins, 53 N. H. 443, 449; Eaton v. 
 
174 
 
 THE LAW OF WATERS. 
 
 [OH. IV. 
 
 great public interest. In Kex v. Clark, 1 Holt, C. J., said that 
 to hinder the course of a navigable river was against Magna 
 Charta; and, by numerous acts of Parliament, 2 annoyances to 
 this common privilege were punished 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, 3 the purpose of which was both to pre- 
 vent inundations and to assist navigation. 4 According to Coke 
 and Callis, the king might, even before the making of any stat- 
 ute of sewers, grant commissions for surveying and repairing 
 walls, banks, and rivers, and other defenses, 5 the decay of which 
 might tend to choke up the navigable channels. The preroga- 
 tive of the Crown includes, also, the right and duty to protect 
 the realm from the inroads of the sea. 6 The attorney general 
 may proceed by information, on behalf of the Crown, to pre- 
 vent a subject from removing a natural barrier against the 
 sea, 7 and the injuring of such a barrier appears to be an indict- 
 
 Queen v. Baker, L. E. 2 Q. 
 
 1 12 Mod. 615. See, also, "Warren v. 
 Prideaux, 1 Mod. 105; Magna Charta, 
 ch. 23; Oldburyu Stafford, 1 Sid. 145; 
 Carter v. Muroot, 4 Burr. 3162; Rex 
 v. Smith, 2 Dougl. 441; Blundell v. 
 Catterall, 5 B. & Aid. 91; Greenwich 
 Board of Works v. Maundslay, L. R. 
 5 Q. B. 397; Barclay R. Co. v. Ingham, 
 36 Penn. St. 194,201; Browne v. Ken- 
 nedy, 5 Harr. & J. 195, 203. 
 
 2 These early statutes are cited and 
 considered in. Hale, De Jure Maris, 
 chs. 3. 5; Hargrave's Law Tracts, 9, 
 22; Woolrych on Waters, 155; Fitz. 
 N. B. 113; Callis on Sewers, 255, 256; 
 Weld v. Hornby, 7 East, 195, 198; Rob- 
 son v. Robinson, 3 Dougl. 307; Will- 
 iams v. Wilcox, 8 Ad. & El. 314; 
 Case of Chester Mill, 10 Rep. 138; 13 
 Rep. 38; Flanagan v. Philadelphia, 43 
 Penn. St. 319, 329. 
 
 3 See Callis on Sewers, passim; 
 Woolrych on Waters, 8, 54-63, 68; 
 Hunt on Boundaries (3d ed.), 33; 
 Bishop v, Tripp, 16 R. I. 198. 
 
 4 The King v. Hide, Styl. 60; Yeaw 
 v. Holland, 2 Wm. Blk. 717; Dore v. 
 Gray, 3 T. R. 336; Callis on Sewers, 
 89; 4 Inst. 276; Rex v. Pagham, 8 B. 
 
 & C. 355; 
 B. 621. 
 
 5 Case of the Isle of Ely, 10 Eep. 
 143; Callis on Sewers, 2, 25, 79; Royal 
 Fishery of the Banne, Sir John Da- 
 vies, 149, 153; Dore v. Gray, 2 T. R. 
 358; Jean v. Holland, 2 T. R. 365; i 
 Inst. 276; Queen v. Westham, 10 Mod. 
 159. The Commissioners of Sewers 
 could not maintain trespass against 
 one who broke down embankments, 
 but the remedy is by indictment in 
 the name of the king. Newcastle v. 
 Clark, 1 Moore, 666; Driver v. Simp- 
 son, id. 682. 
 
 6 Att. Gen. v. Tomline, 12 Ch. D. 
 214; Hudson v. Tabor, 2 Q. B. D. 290j 
 Callis on Sewers, 80; Woolrych on 
 Waters, 42; ante, §24. See Wilson 
 v. Barnes, 38 Ch. D. 507. 
 
 'Att. Gen. v. Tomline, 12 Ch. D. 
 214. This case apparently applies only 
 "to the natural protecting banks, or 
 to banks erected by the Crown, either 
 under the Crown itself, or through 
 the agency of the Commissioners of 
 Sewers." West Norfolk Co. v. Arch- 
 dale, 16 Q. B. D. 754. 
 
§ 92.] PUBLIC EIGHT OF NAVIGATION. 175 
 
 able offense at common law. 1 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. 2 
 
 §92. Same — Public nuisances. — All annoyances and im- 
 pediments to navigation are prima facie public nuisances,, 
 whether created by the riparian owners or by strangers. 3 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. 4 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. 5 Lord Hale 
 instances 6 the following nuisances, among others, that may 
 be common to all having occasion to frequent ports : (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. 7 (2) Decays of the wharfs, keys, and 
 piers, which are for the landing of merchandise 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 in- 
 
 iBall v. Herbert, 3 T. B. 253, 263; 656; Com. v. Caldwell, 1 DalL 150;. 
 
 Newcastle v. Clark, 1 Moore, 666; Knox v. Chaloner, 42 Maine, 150;. 
 
 Driver v. Simpson, id. 682; Callis on Veazie v. Dwinel, 50 id. 479, 484; 
 
 Sewers, 73, 74. Gerrish v. Brown, 51 id. 256; Lancey 
 
 2 Woolrych on Sewers, 49; Green- v. Clifford, 54 id. 487; People v. Page, 
 
 wioh Board of Works v. Maudsley, 56 N. Y. S. 834; 58 id. 239; Tennessee, 
 
 L. E. 5 Q. B. 397. See authorities etc. B. Co. v. Danforth, 112 Ala. 80; 
 
 post, § 119; Coulson & Forbes on Cox v. State, 3 Blackf. 193. 
 
 Waters, 26, 80; Cory v. Bristow, 2 * Post, §§ 121-128. 
 
 App. Cas. 262; Watkins v. Milton, & R ex v , Tindall, 6 Ad. & El. 143. 
 
 L. B. 3 Q. B. 350; Forrest v. Green- 6 Hale, De Portibus Maris, ch. 7; 
 
 wich, 8 E. & B. 890; Grant v. Oxford, Hargrave's Law Tracts, 85. It is a 
 
 LB. 4 Q. B. 9; Bex v. London, 4 T. criminal offense in Georgia to throw 
 
 B. 21 ; Brown v. Beed, 2 Pugsley out ballast in a harbor. Wallace v. 
 
 (N. B.), 206; Att. Gen. v. London, 18 State, 46 Ga. 199. 
 
 L J. Ch. 314 (as to conservators of " Easton E. Co. v. Central E. Co., 52; 
 
 the Thames); Exeter v. Devon, L. B. N. J. L. 267. As to New York har- 
 
 10 Ex. 232. bor, see act of Congress of June 29, 
 
 3 Williams v. Wilcox, 8 Ad. & El. 1888 (25 Stat. 209); United States v. 
 
 314; Brucklesbank v. Smith, 2 Burr. The Sadie, 41 Fed. Eep. 396, 823. 
 
176 THE LAW OF WATERS. [Ch. IV. 
 
 hanoing of old, whereby 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 moreing of 
 ships in the ground adjacent, if it hath been so anciently used, 
 without 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 
 unreasonably 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. 1 So logs or rafts, for mere 
 private convenience, and for no purposes connected with the 
 rights of navigation in a channel which is susceptible of use 
 for navigation, deposited for an unreasonable time, constitute 
 a nuisance in judgment of law. 2 The diversion of water from 
 a river may so impair its navigable capacity as to amount to a 
 public nuisance, 3 and a city is liable for the detention of navi- 
 gators 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 pavements, baths, etc., or even 
 for domestic consumption beyond the requirements of neces- 
 sity. 4 The owners of lands bordering upon navigable waters 
 may lawfully throw sewage and other refuse matter into them, 
 provided they do not create a nuisance to others ; 5 for it is a nat- 
 ural office of the sea and of all running waters to carry off and 
 dissipate, by their perpetual motion and currents, the impuri- 
 ties and offscourings of the land ; 6 but the public right of navi- 
 gation is not limited at common law by any private or munici- 
 pal right of sewerage. 7 The filling up by a city, by means of 
 
 1 Colchester v. Brooke, 7 Q. B. 339, Met. 55, 57; Yolo Co. v. Sacramento, 
 375; State v. Taylor, 37 N. J. L. 117. 36 CaL 193. 
 
 2 Com. v. Fleming, Lewis's Crim. 5 Haskell v. New Bedford, 108 Mass. 
 Law, 533, 534; Same v. Strickler, id. 208, 214. Garbage cast into the Great 
 535; Moore v. Jackson, 2 Abb. N. C. Lakes miles from the shore is not 
 211; Hay ward «. Knapp, 23 Minn. 431. presumed to be a nuisance. Kuehn 
 
 3 Stokes v. Upper Appomattox Co., v. Milwaukee, 92 Wis. 263. 
 
 3 Leigh, 318; Med way Nav. Co. v. 6 Gray, J., in Haskell v. New Bed- 
 
 Romney, 9 C. B. n. s. 575. See Silsby ford, 108 Mass. 208, 214. 
 
 Manuf. Co. v. State, 104 N. Y. 562. 7 Brayton v. Fall River, 113 Mass. 
 
 * Philadelphia v. Gilmartin, 71 218; Franklin Wharf Co. v. Portland, 
 
 Penn. St. 140; Philadelphia v. Collins, 67 Maine, 46, 55; Boston Rolling Mills 
 
 68 id. 106; Com. v. Tewksbury, 11 u Cambridge, 117 Mass. 396; Wash- 
 
92.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 177 
 
 a sewer, of any portion of its harbor, to the injury of the navi- 
 gation, is an indictable offense, 1 irrespective of any question of 
 good judgment or reasonable care in its system of sewerage; 2 
 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. 3 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, 4 
 and their negligence in this respect gives rise to private rights 
 of action. 6 If a telegraph company, which is authorized by 
 statute to lay its cable in navigable waters in such manner as 
 not to " injuriously interrupt the navigation," causes the cable' 
 to be so laid or suspended 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 dam- 
 age thereby caused to a vessel which is not at fault. 6 The 
 facts that other vessels and the vessel injured have passed the 
 obstruction safely, and that a projecting iron on the vessel 
 
 burn & Moen Manuf. Co. v. Worces- 
 ter, 116 Mass. 458; Cox v. New York, 
 S5 N. Y. S. 74 The casting of refuse 
 into the harbor of New York is pro- 
 hibited by the act of Congress of 
 June 29, 1888, as amended by the 
 act of August 18, 1894. See United 
 States v. Eomard, 89 Fed. Rep. 156. 
 
 i Ibid. ; Clark v. Peckham, 10 B. L 
 85; 9 R. I. 455. But in such case, the 
 obstruction must be against the front 
 of the plaintiff's land. See infra, 
 §§ 97, 152. And a municipal corpo- 
 ration may connect its sewers with 
 a natural water-channel, without lia- 
 bility to keep the channel open to its 
 mouth. Munnv. Pittsburgh, 40 Penn. 
 St. 364 
 
 2 State v. Portland, 74 Maine, 268. 
 
 3 Ibid. ; Sleight v. Kingston, 11 Hun, 
 594; 73 N. Y. 592; Peck v. Michigan 
 City, 149 Ind. 670. Contra, when such 
 damages„being consequential and ac- 
 tionable if without legislative sanc- 
 tion, are caused under a valid act of 
 the legislature and without negli- 
 gence. Malone v. Philadelphia, 2 
 
 12 
 
 Penny. (Pa.) 370. It is not a nuisance 
 to navigation for which a city is lia- 
 ble if a canal boat, moored at one of 
 its wharves, alongside and beneath 
 the opening of a large main sewer, is 
 submerged and sunk at night from 
 the great outpouring of water follow- 
 ing a shower, the danger being ob- 
 vious. Behan v. New York, 24 Fed. 
 Rep. 239. 
 
 4 Ibid. ; Veazie v. Dwinel, 50 Maine, 
 479; Dwinel v. Veazie, 44 id. 167, 175; 
 Gerrish v. Brown, 51 id. 256; Davis v. 
 Winslow, 51 id. 264; State v. Bunker, 
 59 id. 366; Washburn v. Gilman, 64 
 id. 163; Barrett v. Bangor, 70 id. 335, 
 338; Brackelsbank v. Smith, 2 Burr, 
 656; Simpson v. Seavey, 8 Maine, 138. 
 
 5 Haskins v. Haskins, 9 Gray, 390; 
 Washburn v. Gilman, 64 Maine, 163. 
 
 6 Blanchard v. Western Union TeL 
 Co., 60 N. Y. 510; 67 Barb. 228; 3 Supr. 
 Ct. 775; Stephens Transp. Co. v. West- 
 ern Union Tel. Co., 8 Ben. 502; The 
 City of Richmond, 43 Fed. Rep. 85; 
 59 id. 365. 
 
178 THE LAW OF WATERS. [Ch. IY. 
 
 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 possible 
 repair. 1 The fact that an obstruction is a nuisance does not 
 justify the master of a vessel in destroying or running upon it 
 negligently, for one member of the public is not justified 
 in causelessly injuring another's property by the fact that 
 such property is so placed as to interfere with a public right. 2 
 If the navigator casts his vessel upon the obstruction unneces- 
 sarily, he is guilty of contributory negligence, and cannot re- 
 cover for the injury he may thereby sustain. 3 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,* 
 although this would be a peril of the sea, if the anchor dragged 
 without apparent cause and so injured the cable. 5 The relative 
 rights and duties of persons navigating vessels apply equally 
 whether in ports or rivers, or within the three-mile belt along 
 the coast, or on the high seas generally. 6 The fact that a 
 ferry-boat lays such a course as to bring her near the corner 
 of a pier, which is not the boundary of her slip, does not give 
 her any superior right to the water around the pier. 7 
 
 §93. Same — Same — Purprestures-— The distinction be- 
 tween a purpresture and a public nuisance was stated in a 
 previous chapter. 8 Any unauthorized invasion of the soil of 
 the seashore between high and low-water mark, or of the 
 
 1 Ibid. Q. B. (Can.) 43; Auger v. Cook, 39 id. 
 
 2 Colchester v. Brooke, 7 Q. B. 339; 537. 
 
 Dimes v. Petley, 15 Q. B. 276; Bate- 'Ibid.; Lane v. The A. Denike, 3 
 
 man v. Bluck, 18 Q. B. 870; Bridget. Cliff. 117; Knowlton v. Sanford, 33 
 
 Grand Junction Ry. Co., 3 M. & W. Maine, 148; Markham v. Houston 
 
 244; Davies v. Mann, 10 M. & W. 546; Direct Nav. Co.. 73 Texas, 247. 
 
 Butterfield v. Forrester, 11 East, 60; * Submarine Tel. Co. v. Dickson, 15- 
 
 State v. Antoine, 40 Maine, 435; Cum- C. B. n. s. 759; The Clara Killam, L. 
 
 mins v. Presley, 4 Harr. (Del.) 315; R. 3 Adm. & Ecc. 161; The Clan Gor- 
 
 Foster v. Holly, 38 Ala. 76; Steam- don, 7 P. D. 190. 
 
 boat v. McCraw, 26 Ala. 189, 203; In- «The Carl Frederick, 33 Fed. Rep. 
 
 man v. Funk, 7 B. Mon. 538; Pilcher 589. 
 
 •o. Hart, 1 Humph. 524; Castello v. 6 See Ibid., per Willes, J., p. 779. 
 
 Landwehr, 28 Wis. 522; post, § 128; ? Conover v. The John S. Daley, 3» 
 
 Brace v. Union Forwarding Co., 32 Fed. Rep. 619. 
 
 *Ante, §21. 
 
§ «3.J 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 179 
 
 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. 1 In strict- 
 ness, the question whether a wharf or building erected in tide 
 waters is a purpresture depends upon the ownership of the 
 soil which it covers. 2 At common law, if the person who 
 makes such a structure establishes his right to the soil by pro- 
 ducing a grant or license from the Crown, it is not a purpres- 
 ture, although it may still be unlawful if it obstructs the 
 navigation. In the latter case, the structure is abatable as 
 a nuisance notwithstanding the king's license, for a common 
 .nuisance is not warrantable by the Crown. 3 Whether a wharf 
 or building extended into tide waters is a nuisance is purely a 
 question of fact. 4 
 
 lAnte, §21; Blundell v. Catterall, 
 5 B. & Ad. 268. 
 
 2 Ibid. 
 
 3 Hale, De Portibus Maris, ch. 7; 
 Hargrave^ Law Tracts, 85; Missis- 
 sippi B. Co. v. Ward, 2 Black, 485; 
 Nichols v. Boston, 98 Mass. 39, 41. 
 The law upon this subject is thus 
 stated by Lord Hale (Hale, De Porti- 
 bus Maris, ch. 7. See Hargrave's Law 
 Tracts, 85; De Jure Maris, chs. 3, 5, 6; 
 Hargrave's Law Tracts, 9, 21, 22, 23, 
 36): It is not "every building below 
 the high- water mark, nor every build- 
 ing below the low-water mark, that 
 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 im- 
 possible for the king to license the 
 building of a new wharf or key, 
 whereof there are a thousand in- 
 stances, if ipso facto it were a corn- 
 mop nuisance, 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 impossible far 
 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 pleasure; but it is not ipso facto 
 a common nuisance, unless, indeed, 
 it be a damage to the port and navi- 
 gation." 
 
 4 Ibid.; ante, §21; Queen v. Betts, 
 16 Q. B. 1022; Abraham v. Great 
 Northern Ey. Co., 16 Q. B. 586, 591; 
 Dutton v. Strong, 1 Black, 23, 31; Co- 
 lumbus Bridge Co. v. Peoria Bridge 
 Co., 6 McLean, 70; Nichols v. Boston, 
 98 Mass. 39, 41; Burnham v. Hotch- 
 kiss, 14 Conn. 318; Thornton v. Grant, 
 10 E L 477; The Erie v. Canfield, 27 
 Mich. 479; Clark v. Lake St. Clair Ice 
 Coj, 24 Mich. 508; Att. Gen. v. Evart 
 Booming Co., 34 Mich. 462; People v. 
 Carpenter, 1 Mich. 273; Howard v. 
 Bobbins, 1 Lans. 63; Knox v. New 
 York, 55 Barb. 404; 38 How. Pr. 67; 
 Van Der Brooks v. Currier, 2 Mich. 
 N. P. 21 ; Delaware Canal Co. v. Law- 
 rence, 2 Hun, 163; 56 N. Y. 612. 
 
180 THE LAW OF WATERS. [Ch. IV. 
 
 § 93a. Same — Same — In navigable fresh rivers.— The 
 above rules apply also to navigable fresh rivers in those local- 
 ities where they are held to be public property like the sea. 
 .But when the title of the riparian proprietors extends usque 
 ad filum aquce, such proprietors are at liberty, as against the 
 public, to erect any structure, or to do any act with respect to 
 the water, or the portion of the river-bed owned by each, pro- 
 vided they do not interfere with the navigation, 1 and the public 
 have no other right than that of free and unmolested passage. 2 
 This right of passage does not include the right to take rocks, 
 gravel or soil from the bed of non-tidal rivers which are pri- 
 vate property, and the owner of the adjoining land may main- 
 tain an action of trespass for this cause, 3 or replevy from the 
 AYrongdoer the rocks or soil so taken. 4 Stone cannot be quar- 
 ried, without compensation, 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 bridged In 
 Pennsylvania, where the large fresh-water rivers belong to 
 the public, paving stones taken from such rivers belorlg to the 
 taker. 6 
 
 §94. Same — Same — Benefits to the public. — InRexw. 
 Russell 7 the defendants were indicted for wrongfully continu- 
 ing two coal staiths or geers in a navigable river to the pub- 
 lic 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 projecting therefrom, one 
 of which extended outward thirty-six feet. The opinion of 
 
 1 Orr Ewing v. Colquhoun, 2 App. can sell with and as appurtenant to 
 Cas. 839, 845, 853, 854, 870; Walker a parcel of his land. Hamelin v. 
 v. Board of Works, 16 Ohio, 544; Att. Bannerman, [1895] A. C. 237. 
 
 Gen. v. Evart Booming Co., 34 Mich. 3 Braxton v. Bressler, 64 I1L 488; 
 
 462. June v. Purcell, 36 Ohio St. 396; Ross 
 
 2 Ibid. So in the case of a highway v. Faust, 54 Ind. 471; Berry v. Sny- 
 on land, the public have merely a der, 3 Bush, 266, 285. 
 
 right of passage, and no right to 4 Braxton v. Bressler, 64 111. 488. 
 
 take waters from springs or streams B Overman v. May, 35 Iowa, 89. 
 
 in the highway. Old Town v. Dooley, 6 Solliday v. Johnson, 38 Penn. St 
 
 81 111. 255. The fact that a river is 380. 
 
 navigable does not prevent the ac- 7 6 B. & C. 566; 9 D. & R. 561. See, 
 
 quisition by a riparian owner of an also, Rex v. Grosvenor, 2 Starkie, 511, 
 
 interest in its water-power, which he 514. 
 
§ 95.] PUBLIC EIGHT OF NAVIGATION. 181 
 
 the majority of the court 1 was that the defendants should be 
 acquitted if the abridgment of the navigation caused by these 
 structures was for a public purpose, 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 passage of vessels upon the river. In 
 subsequent English cases 2 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 off- 
 setting the benefit which may arise to another part of the public 
 elsewhere. In the case of Kex v. Ward, 3 in which the decision 
 of Bex v. Kussell 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 in- 
 quiry 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. 4 
 
 § 95. Same — Anchoring and mooring. — The right of nav- 
 igation includes the right to anchor as incidental to its bene- 
 ficial enjoyment; and a claim by individuals or corporations, 
 founded on royal grant or immemorial usage, for a toll or 
 anchorage on all vessels which anchor in an arm of the sea 
 
 JBayley and Holroyd, J J., Lord 340; Reg. v. Betts, 16 Q.B. 1022, 1037; 
 
 Tenterden, C. J., dissenting. Reg. v. Randall, 1 Car. & M. 496; Att. 
 
 2 Rex v. Ward, 4 Ad. & El. 384; Gen. v. Terry, L. R. 9 Ch. 433; Com. 
 Rex v. Morris, 1 B. & Ad. 441; Reg. v. Wright, 3 Am. Jur. 183; People v. 
 v. Betts, 16 Q. B. 1022, 1037; Reg.'u Vanderbilt, 26 N. Y. 287, 297; Hart 
 Randall, 1 Car. & M. 496; Reg. v. v. Albany, 9 Wend. 571, 582; People 
 Charlesworth, 16 Q. B. 1012. v. Horton, 64 N. Y. 610, 620; Respub- 
 
 3 Rex v. Ward, 4 Ad. & El. 384. The lica v. Caldwell, 1 Dallas, 150; Penn- 
 occupation of much of a water high- sylvania v. Wheeling Bridge Co., 13 
 way, and extending ropes across its How. 518, 577; State v. Kaster, 35 
 banks, for building and repairing Iowa, 221; Garitee v. Baltimore, 53 
 ships, will not be protected as inci- Md. 422, 436; Blanohard v. Moulton, 
 dental to public navigation. Pollock 63 Maine, 434; People v. St. Louis, 5 
 v. Cleveland S. B. Co., 56 Ohio St. 655; Gilman, 351, 372; Works v. Junction 
 2 Ohio Dec. 305. R. Co., 5 McLean, 425; Thornton v. 
 
 * Ibid.; Rex v. Tindall, 6 Ad. & EL Grant, 10 R. L 477, 482; Simon v. At- 
 143; 3 EL & BL 942; Rex v. Morris, 1 lanta, 67 Ga. 618, 623. But see Mis- 
 B. & Ad. 441; Folkesu Chad, 3 Dougl. sissippi R. Co. v. Ward, 2 Black, 485, 
 
182 
 
 THE UW OF WATERS. 
 
 [Oh. IV- 
 
 which is not a port, cannot be maintained. 1 As against other 
 vessels, but not against the riparian owners, 2 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. 3 
 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 awaiting cargoes. 4 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 ; s 
 and, if the logs of different owners are necessarily intermin- 
 gled in passing down a stream which is only capable of float- 
 ing them loose, one owner may reasonably detain the mass in 
 order to select and separate his own logs. 6 The reasonable- 
 ness of the time, piace, and manner of the mooring under the 
 foregoing rules is a question of fact for the jury, 7 and the 
 privilege of stopping upon the water is practically the same 
 as in the case of a carriage upon a road. 8 A boom built in a 
 
 494; Pilcher v. Hart, 1 Humph. 524, 
 modified in Gold v. Carter, 9 id. 369 
 Com. v. Bilderback, 2 Parsons (Pa.) 
 447; People v. Horton, 64 N. Y. 610 
 5 Hun, 516; Delaware Canal Co. v. 
 Lawrence, 2 Hun, 163; 56 N, Y. 612 
 Com. v. May, 3 Ann. Jur. 190; Com. 
 v. Crowninshield, 2 Dane's Abr. 697 
 State v. Woodward, 23 Vt. 92; State 
 v. Smith, 54 Vt. 403, 411. 
 
 1 Gann v. Whitstable Free Fishers, 
 11 H. L. Cas. 192; Foreman v. Whit- 
 stable Free Fishers, L. R 4 H. L. 266. 
 A vessel is not "lying at anchor" 
 within a statute when attached to a 
 pier. Walsh v. New York Dry Dock 
 Co., 77 N. Y. 448. 
 
 2 Post, § 97. As to prescriptive 
 rights of moorage, see Att. Gen. v. 
 Wright, [1897] 2 Q. B. 318. 
 
 3 Original Hartlepool Co. v. Gibb, 
 5 Ch. D. 713; Booth v. Ratte, 15 App. 
 Cas. 188; Wyatt v. Thompson, 1 Esp. 
 252; Hay ward v. Knapp, 23 Minn. 
 430; Sherlock v. Bainbridge, 41 Ind. 
 35; Bainbridge v. Sherlock, 29 Ind. 
 
 364; Baker v. Lewis, 33 Penn. St. 
 301; Browne v. Stone, 1 Phila. 241; 5 
 Clark, 75; Gerrish v. Brown, 51 Maine, 
 256, 263; Culbertson v. The Southern 
 Belle, 1 Newb. 461 ; The Granite State, 
 3 Wall. 310; Culbertson v. Shaw, 18 
 How. 584. 
 
 * Ibid. 
 
 6 Hay ward v. Knapp, 23 Minn. 430; 
 Davis v. Winslow, 51 Maine, 264; 
 Weise v. Smith, 3 Oreg. 445; Brown 
 v. Kentfield, 50 Cal. 129; Dalrymple 
 v. Mead, 1 Grant Cas. 197. 
 
 8 Osborne v. Knife Falls Boom Co., 
 32 Minn. 412, 419; Watts v. Tittaba- 
 wassee Boom Co., 52 Mich. 293. See 
 Kroll v. Nester, 52 Mich. 70; Butter- 
 field v. Gilchrist, 53 Mich. 22; Ches- 
 ley v. Miss. Boom Co., 32 Minn. 83; 
 Page v. Mille Lacs L. Co., 53 Minn. 
 492. 
 
 7 Ibid.; Original Hartlepool Co. v. 
 Gibb, 5 Ch. D. 713, 722. 
 
 8 Ibid. ; Sherlock v. Bainbridge, 41 
 Ind. 35; Rex v. Cross, 3 Camp. 224; 
 Cary v. Daniels, 8 Met. 478; State v. 
 
§ 96.] PUBLIC EIGHT OF NAVIGATION. 183 
 
 stream or in one of the Great Lakes is a nuisance if it prevents 
 another from entering the common highway with a drive of 
 logs from a tributary stream, 1 or interferes with the use of a 
 dock built by a riparian proprietor in aid of navigation. 2 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 ; 3 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 inconven- 
 ienced, does not necessarily make the boom of the first com- 
 pany a public nuisance. 4 
 
 §96. Negligent navigation. — All persons have an equal- 
 a"ight to the reasonable use of public streams for travel and 
 transportation; and a navigator who, in the proper exercise 
 •of this right, temporarily obstructs another, does not become 
 guilty of a nuisance or trespass. 5 The occasional grounding 
 of a vessel or raft is incidentalto navigation, 6 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. 7 The fact that a portion of a vessel in landing at a 
 wharf overlaps in front of an adjoining wharf or dock, thereby 
 rendering access to the latter temporarily inconvenient, does 
 not create any liability if the vessel exercise all proper skill 
 and reasonable dispatch, and causes as little inconvenience as 
 possible to others ; 8 but, in the absence of wharfage regula- 
 
 Thompson, 2 Strob. (S. C.) 12; Sawyer 5 Davis v. Winslow, 51 Maine, 264; 
 
 v. Eastern S. Co., 46 Maine, 400; Peo- Lancey v. Clifford, 54 id. 489; Gerrish 
 
 pie v. Horton, 64 N. Y. 610; 5 Hun, v. Brown, 51 id. 263; Canfieldu Erie, 
 
 516; Wall v. Pittsburgh Harbor Co., 27 Mich. 479; 1 Mich. N. P. 105. 
 
 153 Penn. St. 427; Dzik v. Bigelow, « Colchester v. Brooke, 7 Q. B. 339; 
 
 44 Pitts. L. J. 360; Sturgeon River The Ellen S. Terry, 7 Ben. 401; The 
 
 Boom Co. v. Nester, 55 Mich. 113; Coleman, 1 Brown Adm. 456; The 
 
 States. Holman, 29 Ark. 58. Thomas A. Scott, id. 503; Cummins 
 
 i McPheters v. Moose River L. D. v. Spruance, 4 Harr. (Del.) 315. 
 
 Co., 78 Maine, 329. ' Lallande v. The C. D. Jr., Newb. 
 
 2 Union Mill Co. v. Shores, 66 Wis. Adm. 501. 
 
 476. 8 Original Hartlepool Co. v. Gibb, 5 
 
 3 Ibid. ; Veazie v. Dwinel, 50 Maine, Ch. D. 713 ; The St. Lawrence, 19 Fed. 
 493. Rep. 328; Sherlock v. Bainbridge, 41 
 
 *Att. Gen. v. Evart Booming Co., Ind. 35; Bainbridge v. Sherlock, 29 
 434 Mich. 462. Ind. 364; Jencks u Miller, 40 N. Y. S. 
 
184 
 
 THE LAW OF WATERS. 
 
 [OH. IV. 
 
 tions, a large vessel, which, in occupying a wharf for consider- 
 able time, overlaps the wharf next adjoining, is liable pro rata, 
 after notice and demand, according to the frontage actually 
 occupied at the latter wharf, for the customary wharfage 
 charged there, although it is not made fast to that wharf and 
 does hot use it to land cargo. 1 Vessels have also the right to 
 use a warp in getting in or out of harbor, if they do not inter- 
 fere with navigation. 2 They may extend the warp across the 
 entire channel if no other 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 approaching vessel to 
 pass, and give timely notice of the space so left. 3 If this no- 
 tice is disregarded, and injury results, the burden of proof will 
 be upon the latter vessel. 4 Where a collision occurs between 
 a vessel which is at anchor, moored to a wharf, or in stays, 5 
 and another which is in motion, the presumption of negligence 
 is against the latter. 6 < This rule of admiralty, which is also 
 
 1088; Delaware River S. Co. v. Bur- 
 lington Ferry Co., 81 Penn. St. 103 
 (case of ferry slips). 
 
 i The Wm. H. Brinsfield, 39 Fed. 
 Rep. 215; The Hercules, 28 id. 475; 
 Ranstead v. Fahey, 44 id. 805. See 
 The Cornwall, 10 Ben. 108; The City 
 of Hartford, id. 150; Wall v. Pitts- 
 burgh Harbor Co., 152 Penn. St. 427. 
 Projecting bow-sprits and parts of 
 moored vessels must not interfere 
 with navigation. The Fort Lee, 31 
 Fed. Rep. 570; The Mary Powell, id. 
 622; The City of Augusta, 30 id. 844; 
 The Margaret J. Sandford, id. 714; 
 The Industry, 27 id. 767; The Nichol- 
 son, 28 id. 889; The Martino Cilento, 
 22 id. 859. Under the New York con- 
 stitution only an exclusive right to 
 take shell-fish can be granted by the 
 State. Slingerland v. International 
 C. Co., 60 N. Y. S. 12. 
 
 2 Potter v. Pettis, 2 R. I. 483, 487; 
 McCord v. The Tiber, 6 Biss. 409; An- 
 nett v. Foster, 1 Daly, 502; The Mav- 
 erick. 1 Sprague, 23; 5 Law Rep. 106; 
 The Hope, 2 W. Rob. 8; The Echo, 19 
 Fed. Rep. 453; The Swan, id. 455; The 
 Fulda, 31 id. 351. A vessel entering 
 
 a dock is not at liberty to disregard 
 the harbor-master's directions merely 
 because those in charge of her think 
 he has made a mistake; they are jus- 
 tified in so doing only in the last rer 
 sort. Reney v. Kirkcudbright, [1896] 
 A. C. 264 Dock-owners may be re- 
 sponsible for a harbor-master's neg- 
 ligent representations as to its condi- 
 tion. The Apollo, [1891] A. C. 499. 
 
 3 Ibid. 
 
 «Ibid. 
 
 5 The Charlotte Roab,l Brown Adm. 
 453; The City of Pekin, 14 App. Cas. 
 40; 6 Asp. M. C. 396. 
 
 6 The Victoria, 3 W. Rob. 52; The 
 Egyptian, 1 Moo. P. C. n. s. 373; The 
 Otter, L. R. 4 Adm. 203; The Buck- 
 hurst, 6 P. D. 152; The Annot Lyle, 
 11 P. D. 114; The Indus, 12 P. D. 46; 
 The Hornet, [1892] P. 361; The Mea- 
 natchy, [1897] A. C. 351; Cuthbertson 
 v. Shaw, 18 How. 584; Ure v. Coff- 
 man, 19 How. 56; The Granite State,. 
 3 Wall. 310; The Louisiana, id. 164; 
 The Bridgeport, 14 id. 116; The Clar- 
 ita, 23 id. 1, 14; Bill v. Smith, 39 Conn. 
 206; Baker v. Lewis, 33 Penn. St 301; 
 Austin v. New Jersey S. Co., 43 N. Y. 
 
96.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 185 
 
 applied by the common-law courts, 1 is a presumption, 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, or failure to observe statutory 
 regulations, 2 would be sufficient to overcome it, 3 if the neg- 
 lect of such precaution contributed to the injury. 4 A vessel 
 
 75; Foster v. Holly, 38 Ala. 76; The 
 Fremont, 3 Sawyer, 571; The United 
 States v. St. Louis, 5 Mo. 230; Buz- 
 zard v. The Petrel, 6 McLean, 491; 
 The Indiana, Abb. Adm. 330; Ster- 
 ling v. The Jennie Cushman, 3 Cliff. 
 636; The Lady Franklin, 2 Lowell, 
 220; The J. W. Everman, 2 Hugh. 17; 
 Hall v. Little, 18 Alb. L. Journal, 151 ; 
 6 Rep. 577; The A R Whetmore, 5 
 Ben. 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; Je- 
 rome v. Floating Dock, id. 508; The 
 Milwaukee, 2 Biss. 509; Amoskeag 
 Manuf. Co. v. The John Adams, 1 
 Cliff. 404; The Bridgeport, 7 Blatch. 
 361; 1 Ben. 65; The Helen R. Cooper, 
 id. 378; The E. C. Scranton, 2 Ben. x 
 25; The Baltic, id. 452; The Nebraska, 
 id. 500; The Patterson, 3 Ben. 299; 
 The Avid, id. 434; The Leo, id. 569; 
 The City of Augusta, 30 Fed. Rep. 
 844; The City of Lynn, 11 id. 339; 
 The Jeremiah Godfrey, 17 id. 738; 
 Shields v. The Mayor, 18 id. 748; Hen- 
 derson v. Cleveland, 93'id. 844; The 
 Martha Davis, 94 id. 559. When a 
 ship is about to be launched, and 
 the navigation will thereby be ob- 
 structed temporarily, reasonable no- 
 tice must be given to avoid collisions. 
 The Vianna, Swa. Adm. 405; The 
 Cachapool, 7 P. D. 217. The mere 
 hoisting of a flag is not sufficient in 
 such case. Malster v. Humphreys, 5 
 Hughes, 180. When a vessel which 
 is hauled up on marine ways to be 
 docked for the purpose of repairing 
 her hull, breaks loose and collides 
 with another vessel by reason of the 
 
 insufficiency of her fastenings, the 
 same principles govern as in ordinary 
 cases of collisions. Baker v. Power, 
 14 Fed. Rep. 383. 
 
 1 Bill v. Smith, 39 Conn. 206. 
 
 2 The Maryland, 19 Fed. Rep. 551; 
 The Albany, 91 id. 805; The F. W. 
 Devoe, 94 id. 1019; The Cincinnati, 
 95 id. 302: The Benj. A Van Brunt, 
 98 id. 131; The Talbot, [1891] P. 184. 
 
 3 Sproul v. 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 U. S. 200; Arctic Fire Ins. 
 Co. v. Austin, 69 N. Y. 470; White- 
 hall Transp. Co. v. New Jersey S. Co., 
 51 N. Y. 369; Nelson v. Leland, 22 
 How. 48; Silliman v. Lewis, 49 N. Y. 
 379; The Victoria, 3 W.Rob. 52; The 
 City of Baltimore, 5 Ben. 474; The 
 Express, 1 Blatch. 355; Bill v. Smith, 
 39 Conn. 206; The City of London, 
 Swa. Adm. 245; Browne v. Stone, 1 
 Phila. 241; 5 Clark, 75; Baltimore 
 R. Co. v. Wheeling Transp. Co., 32 
 Ohio St. 116'; Billings v. Breinig, 45 
 Mich. 65; The Scioto, Davies, 359;. 
 The Saxonia, Lush. Adm. 419; The 
 Industrie, L R. 3 Adm. & Ec. 308; 
 Rathbun v. Payne, 19 Wend. 399; 
 Kennard v. Barton, 25 Maine, 39, 47; 
 Union S. Co. v. Nottinghams, 17 
 Gratt. 115; The Clara, 13 Blatch. 509; 
 The Indiana, Abb. Adm. 330; The 
 Lyon, Sprague, 40; Lenox v. Winis- 
 simmet Co., id. 160; Cuthbertson v, 
 Shaw, 18 How. 584; Ure v. Coffman, 
 19 How. 56; Sparks v. Saladin, 6 La. 
 Ann. 764; Beyer v. The Nurnberg, 3 
 Hugh. 505. 
 
 4 Hoffman v. Union Ferry Co., 47 
 N. Y. 176; Mellon v. Smith, 2 E. D. 
 
186 
 
 THE LAW OF WATERS. 
 
 [On. IT. 
 
 lying at anchor in a gale, which has the power to avoid a 
 threatened collision with another vessel, 1 or a wharf, 2 or a 
 boom, 3 is bound to do so. So, the anchoring of a vessel at an 
 unsafe and improper place is a negligent act, 4 and if the im- 
 proper 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 compen- 
 sation, 8 although in admiralty the loss would be divided if 
 both vessels were at fault, 6 even when the faults are independ- 
 ent. 7 In the absence of a proved usage, a pound-keeper of 
 logs is not an insurer, or liable for loss of logs in a storm, and 
 without want of care on his part. 8 A vessel which breaks 
 from her moorings, and strikes a seawall or another vessel, is 
 required to show affirmatively that the drifting was caused by 
 
 Smith, 462; The Farragut, 10 Wall. 
 4334; The Masters, 1 Brown Adm. 
 342; Meigs v. The Northerner, 1 Wash. 
 Ter. 91; The Buckeye, 9 Fed. Rep. 
 666; Shirley v. The Richmond, 2 
 Woods, 58; The Clara Killam, 2 Que- 
 bec L. R. 56; The Oscar Townsend, 
 17 Fed. Rep. 93. 
 
 iThe Sapphire, 11 Wall. 164; The 
 Worthington & Davis, 19 Fed. Rep. 
 836. v 
 
 2 Stearns v. Hooper, 78 Cal. 341. 
 
 8 John Spry Lumber Co. v. The C. 
 H. Green, 76 Mich. 320. 
 
 *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; The 
 Thomas Carroll, 23 Fed. Rep. 912; 
 La Bourgogne, 86 id. 475; The Mon- 
 arch, 89 id. 875; The E. A. Packard, 
 10 Ben. 520; St. Louis & M. V. T. Co. 
 v. United States, 33 Ct. CI. 251. 
 
 6 Vennall v. Garner, 1 Cromp. & M. 
 21 ; Luxford v. Large, 5 Car. & P. 421 ; 
 Dowell v. General Steam Nav. Co., 5 
 El. & Bl. 195; Vanderplank v. Miller, 
 Mood. & M. 169; The Marcia Tribou, 
 -2 Sprague, 17; The Scioto, 2 Ware, 
 366; Strout v. Foster, 1 How. (U. S.) 
 89; Atlee v. Packet Co., 21 Wall. 389; 
 Lambert v. Staten Island R. Co., 70 
 N. Y. 104; Arctic Fire Ins. Co. v. Aus- 
 
 tin, 9 N. Y. 470; 3 Hun, 195; The 
 Clarita, 23 WalL 1, 14; Halderman 
 v. Beck with, 4 McLean, 296; Broad- 
 well v. Swigert, 7 B. Mon. 39; Steam- 
 boat v. McCraw, 26 Ala. 189, 203; 
 Adams v. Wiggins Ferry Co., 27 Mo. 
 95; Stephen's N. B. Digest, p. 285, 
 pi. 1, 2; The David Dows, 16 Fed. 
 Rep. 154. 
 
 6 Catharine v. Dickinson, 17 How. 
 170; Atlee v. Packet Co., 21 WalL 
 389; The Morning Light, 2 WalL 550; 
 Union S. Co. v. New York S. Co., 24 
 How. 307; The Clara, 102 U. S. 300; 
 The Rival, Sprague, 128; The Marcia 
 Tribou, 2 Sprague, 17; O'Neil v. Sears, 
 id. 52; The Comet, 1 Abb. (U. S.) 451; 
 The Nautilus,. Ware, 529; Vander- 
 plank v. Miller, Mood. & M. 169; 
 Simpsdn v. Hand, 6 Whart. 311; The 
 Atlas, 93 U. S. 302; The S. Shaw, 6 
 Fed. Rep. 93; The Delaware, 12 id. 
 571; The Victory, 68 id. 395; The 
 Edward Luckenback, 94 id. 544; The 
 Catskill, 95 id. 700; The Eliza Keith, 
 3 Quebec L. R. 143. See 6 Jurid. Rev. 
 354 
 
 'The Monticello, 15 Fed. Rep. 474; 
 The B. & C, 18 Fed. Rep. 543; The 
 Nettie Sundberg, 100 id. 886. 
 
 8 Brown v. Cunard, 3 Allen (N. B.), 
 316. 
 
97.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 187 
 
 inevitable accident, and not by lack of proper precaution ; l 
 but if the injury clearly results from vis major, unavoidable ac- 
 cident, 2 or the act of a stranger, 3 the loss is not to be borne by 
 the owner. 4 
 
 § 97. Mooring — Reasonable time. — The right of moorage 
 cannot be lawfully exercised in such a manner as to create a 
 permanent obstruction to the navigation, even if the obstruc- 
 tion would be in the aid of commerce. A boom which ob- 
 structs the use of a river for navigation or floating lumber, or 
 a raft of timber moored continually to its shores, is a public 
 nuisance, as limiting the ' right of navigation ; 5 and, also, a 
 private nuisance, if it causes peculiar injury to a navigator, or 
 deprives the riparian owners of access to their premises. 6 
 Keeping a raft moored for six weeks in one place has been 
 held to be an unreasonable obstruction to the right of passage. 7 
 The proprietors of a dock privilege constructed in front of 
 their lots, upon the Hudson Eiver at Albany, a floating store- 
 
 iThe Louisiana, 3 Wall. 164; The 
 Titan, 8 Ben. 7; The Christopher Co- 
 lumbus, id. 239; The Petunia, id. 349; 
 The Queen of the East, 4 Ben. 103; 
 The Johannes, 10 Blatch. 478; The 
 Fremont, 3 Sawyer, 571; Bodin v. 
 The Thule, 3 Woods, 670; The Mar- 
 pesia, L R. 4 P. C. 213; The Aga- 
 memnon, 1 Quebec L. R. 333; The 
 Buokhurst, 30 W. R. 232; Love v. 
 Montgomery, 10 La. Ann. 113; The 
 Florence P. Hall, 14 Fed. Rep. 408; 
 The David Dows, 16 id. 154; The 
 Waterloo, 100 id. 332; Cataraqui 
 Bridge Co. v. Holcomb, 21 Q. B. (Can.) 
 273; Wilmot v. Jarvis, 12 id. 641; 
 Stubbs v. Hilditch, 51 J. P. 758; Gil- 
 ford v. McArthur, 55 Mich. 535; Stit- 
 ler v. Winlack, 10 Penn. Sup'r Ct. 
 612. 
 
 2 See The Marpesia, L. R. 4 P. C. 212; 
 The Schwan, [1892] P. 419; The Mer- 
 •chant Prince, id. 9, 179. 
 
 .3 Campbell v. Penn. R. Co., 85 Fed. 
 Rep. 462. 
 
 4 Arbo v. Brown, 9 Fed. Rep. 318; 
 The Austria, id. 916 r 14 id. 298; Dib- 
 ble v. Seligson, 1 Woods, 406; The 
 
 Energy, 10 Ben. 158; The Eloina, id. 
 458; River Wear Com'rs v. Adamson, 
 2 App. Cas. 743; 1 Q. B. D. 546; The 
 Merle, 31 L. T. N. s. 447; Seabrook v. 
 Raft, 41 Fed. Rep. 596; The Wallace, 
 id. 894; Neel v. Blythe, 42 id. 457; 
 Hibernia Ins. Co. v. St. Louis Transp. 
 Co., 120 U. S. 166; McCauley v. Logan, 
 152 Penn. St. 202. 
 
 5 Moore v. Jackson, 2 Abb. N. C. 
 211; Lowber v. Wells, 13 How. Pr. 
 454; Com. v. Fleming, Lewis's Crim. 
 Law, 534; Bigler v. O'Connor, 32 Leg. 
 Int. 355; Watts v. Tittabawassee 
 Boom Co., 52 Mich. 203. So storing 
 merchandise upon a street or road 
 is not a lawful use of the public ease- 
 ment. Coburn v. Ames, 52 Cal.. 385; 
 Orton v. Harvey, 23 Wis. 99; Hund- 
 hausen v. Bond, 36 Wis. 29; Canoe 
 Creek v. McEniry, 23 111. App. 227. 
 
 6 Harrington v. Edwards, 17 Wis. 
 586. 
 
 i Enos v. Hamilton, 27 Wis. 256; 24 
 Wis. 658; Dzik v. Bigelow, 44 Pitts. 
 L. J. 360. See Eagles v. Merritt, 2 
 Allen (N. B.), 550. 
 
1S8 THE LAW OF WATEES. [Ch. IV. 
 
 house or vessel with a roof and convenient openings for re- 
 ceiving and discharging merchandise. This permanent occu- 
 pation 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. 1 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 con- 
 venient. 2 
 
 § 98. Wrecks — Care of. — 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 re- 
 mains in possession, his liability is the same whether the vessel 
 is in, motion or stationary, floating or aground, under water 
 or above it. 3 This liability may be transferred with the trans- 
 fer of the possession and control to another person. 4 If an 
 unavoidable accident causes a vessel to sink, the owner is not 
 by the common law required to remove the impediment to 
 navigation, 5 which the wreck may create, or to mark its posi- 
 tion by a buoy or light. 6 If he abandons the vessel, his duty 
 and responsibility ceases ; but if he retains the possession and 
 control, he is bound to take proper precautions for the safety 
 of the public. 7 These rules apply also where bridges, dams r 
 
 !Hart v. Albany, 9 Wend. 570; 3 «Ibid.; King v. Watts, 2 Esp. 675 ; 
 
 Paige, 213; People v. Vanderbilt, 26 Hancock v. York Ry. Co., 10 C. B. 
 
 N.Y. 287;28N.Y. 396; 38 Barb. 282; 348; The Swan, 3 Blatch. 285. In 
 
 People v. Cunningham, 1 Denio, 524. England see now The Utopia v. The 
 
 But see Pilcher v. Hart, 1 Humph. Primula, [1893] A. C. 492; The Crys- 
 
 524; People v. Horton, 64 N. Y. 610; tal, [1894] A C. 508; BarracloughV 
 
 5 Hun, 516. Brown, [1897] A C. 615; 74 L T. 86; 
 
 2 McLean w. Mathews, 7 Brad. (111.) 76 id. 797; The Emerald, [1896] P. 
 599. 'See Larson v. Furlong, 63 Wis. 192; The Victorian Marine Act, 1890; 
 323. Smith v. Wilson, [1896] A. C. 579; 
 
 3 Brown v. Mallett, 5 C. B. 599* The Greta Holme, [1897] A. C. 596. 
 White v. Crisp, 10 Exch. 312, 321. 7 Harmond v. Pearson, 1 Camp. 
 
 4 Ibid. See The Liffey, 58 L. T. 515; White v. Crisp, 10 Exch. 312; 
 N. s. 351. Brown v. Mallett, 5 C. B. 599; The 
 
 5 See O'Reilly v. New Brunswick, Bouglas, 7 P. B. 151; The Snark, 
 A. & N. Y. S. Co, 55 N. Y. S. 1133; [1899J P. 74; [1900] P. 105; Dormont 
 59 id. 261. Contra, under § 10 of the v. Furness Ry., 11 Q. B. B. 496; The 
 Act of Congress of Sept. 19, 1890, Edith, 11 L. R Ir. 270; The Modoc, 
 United States v. Hall, 63 Fed. Rep. 26 Fed. Rep. 718; Ball v. Berwind, 29' 
 472. See infra, § 110, n. id. 541 ; The River Mersey, 48 id. 686; 
 
§98.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 189 
 
 or houses, swept away by extraordinary floods or by high 
 winds, without negligence on the part of the owners, become 
 obstructions to navigation, or injure or encumber riparian es- 
 tates. 1 So if a vessel is sunk by a collision, the owner is not 
 generally required to be at any expense for the purpose of 
 raising her, 2 and a passing vessel is not warranted in destroy- 
 ing her for the public good. 3 If the owner of a bridge across 
 a navigable stream has a right to keep in the river, in connec- 
 tion with the bridge, a pontoon, which is sunk by unavoidable 
 accident, he is entitled to a reasonable time in which to remove 
 it, but cannot lawfully leave it in the channel for an indefinite 
 period. 4 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 on which it lies, if he does not remove it within 
 a reasonable time. 8 Where a railroad 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 
 
 ch. 7; 1 Hawk. P. C. ch. 33, §13; 
 Colohester v. Brooke, 7 Q. B. 339; 
 Williams v. Wilcox, 8 Ad. & El. 314; 
 The Maggie P., 25 Fed. Rep. 202. In 
 Winpermy v. Philadelphia, 65 Perm. 
 St. 135, 140, Agnew, J., said: "The 
 general understanding in this coun- 
 try is that the clearing out of streams 
 and removing obstructions to navi- 
 gation belong to the State or the 
 United States, according to the char- 
 acter of the stream, as confined 
 within the State limits or as extend- 
 ing beyond, and necessary to inter- 
 state commerce. Yet it is not a 
 duty of perfect obligation, but one 
 of voluntary assumption or imper- 
 fect obligation, inasmuch as it can- 
 not be enforced against the will of 
 the State." See ante, § 90. 
 
 2 The Columbus, 3 W. Rob. 158; The 
 Franconia, 16 Fed. Rep. 149. 
 
 3 Gumbert u Wood, 146 Penn. St. 
 370. 
 
 4 Missouri River Packet Co. v. Han- 
 nibal R Co., 1 McCrary, 281. 
 
 5 Morrison v. Thurman, 17 B. Mon, 
 267. 
 
 The H. S. Nichols, 53 id. 665; Case- 
 ment v. Brown, 148 U. S. 615; Bos- 
 ton S. Co. v. Munson, 117 Mass. 34; 
 Taylor v. Atlantic Ins. Co., 37 N. Y. 
 275; 9 Bosw. 369; 2 Bos. 106; Shel- 
 don v. Sherman, 42 N. Y. 484; Eads 
 v. Brazelton, 22 Ark. 499; Winpenny 
 v. Philadelphia, 65 Penn. St. 135. 
 
 1 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 id. 106; 
 Roush v. Walter, 10 Watts, 86; Win- 
 penny v. Philadelphia, 65 Penn. St. 
 135; Piedmont, etc. Ry. Co. v. Mc- 
 Kenzie, 75 Md.458; Withers v. North 
 Kent Ry. Co., 3 H. & M. 969; 7 West. 
 L. J. 567. A bridge or way is negli- 
 gently constructed if built of earth 
 in the channel of the stream, where 
 it may be swept away by floods. 
 Kansas Pacific Ry. Co. v. Miller, 3 
 Col. 442; Kansas Pacific Ry. 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, 
 
190 THE LAW OF WATEKS. [Ch. IV. 
 
 left in the river in a condition dangerous to vessels, the com- 
 pany was held responsible x for injuries to a vessel which struck 
 thereon, although the vessel was prosecuting her voyage on 
 Sunday. 2 Where, however, piles were left by the defendants 
 in a navigable river in such a 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. 3 A vessel which leaves an anchor in a 
 navigable channel without a buoy is liable for the injury sus- 
 tained by another vessel which runs foul of it. 4 
 
 § 99. River banks — Use of. — 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 navigation includes the right to use the shores or 
 banks of navigable 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. 5 But in the case 
 
 1 Philadelphia R. Co. v. Philadel- Coasting Co. v. The Commodore, 40 
 
 phia Towboat Co., 23 How. 209. In id. 258. 
 
 Bearrs v. Sherman, 56 Wis. 55, held 5 Young v. , 1 Ld. Raym. 725; 
 
 that the owner of logs is not liable Queen v. Cluworth, 6 Mod. 163; Pierse 
 for the obstruction of a navigable v. Fauconberg, 1 Burr. 292; Martina, 
 river thereby, when they are under Leavers, 46 J. P. 807; Braoton, lib. 1, 
 the control of another person under ch.l2,fol.6; Just. Inst. lib. 2, tit. l,fol. 4; 
 a contract to run them down the Cooper's Justinian, lib. 2, tit. 1; Civil 
 stream. See hammers v. Brennan, Code of La. art. 443, 1446; Com. Dig. 
 46 Minn. 209; Miller v. Chatterton, id. tit. Chimin, D. 4; Hale, De Portibus 
 338. As to injuries caused by, logs Maris, ch. 7; Hargraves Law Tracts, 
 broken from a raft, see New Orleans, 79, 85, 86; Callis on Sewers, 73; Car- 
 etc. R. Co. v. McEwen (La.), 22 S. Rep. rollton R. Co. v. Winthrop, 5 La. Ann. 
 675. 36 ; Municipality No. 2 v. Orleans Cof- 
 fee, also, Merchants' Wharf-Boat ton Press, 18 La. 122; Natchitoches 
 Ass'n v. Wood, 64 Miss. 661; Wallace v. Coe, 3 Martin, n. s. 140; New Or- 
 v. Merrimack River Nav. Co., 134 leans v. New Orleans R. Co., 27 La- 
 Mass. 95 (collision on Sunday). Ann. 414; Pulley v. Municipality No. 2, 
 
 3 Bartlett v. Baker, 3 H. & C. 153. 2 La. 278 ; Hanson v. Lafayette, 18 La. 
 
 4 Philadelphia R. Co. v. Philadel- 295; McKeen v. Kurfurt, 10 La. Ann- 
 phia Towboat Co., 23 How. 209; The 523; Leonard v. Baton Rouge, 39 id. 
 Alabama, 18 Fed. Rep. 831; Inland 275; Sweeney u. Shakspeare, 41 id. 614. 
 
§99.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 191 
 
 of Ball v. Herbert, 1 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; and 
 it is now understood that the right to use a towing path is not 
 a necessary incident to an inland navigation. 2 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 in the case of 
 navigable fresh waters. 3 The public have, therefore, as against 
 the riparian owners, and as incident to the right of naviga- 
 tion, no common-law right to use the land adjoining a river 
 above high-water mark for the purpose of landing or embark- 
 ation, or of mooring. 4 Proof of necessity or danger would not 
 apparently free the navigator from liability for appreciable 
 damage thus caused to a riparian proprietor. 5 Those who travel 
 upon the banks of streams for the purpose of propelling their 
 
 13T. R. 253. 
 
 2 Lee Nav. Conservators v. Button, 
 6 App. Cas. 685. ' 
 
 s Ball v. Herbert, 3 T. R. 253; Will- 
 iams v. Wilcox, 8 Ad. & El. 314; Blun- 
 dell v. Catterall, 5 B. & Aid. 268; Gray 
 v. Bond, 2 Brod. & Bing. 667; Brown 
 v. Chadbourne, 31 Maine, 9, 25; Treat 
 v. Lord, 42 id. 552, 564; Hooper v. Hob- 
 son, 57 id. 273, 2*76 ; Ledyard v. Ten 
 Eyok, 36 Barb. 102, 127; Lorman v. 
 Benson, 8 Mich. 18, 27: Reimold v. 
 Moore, 2 Brown (Mich.), 15; Ens- 
 minger v. People, 47 111. 384, and Chi- 
 cago v. Laflin, 49 111. 172 (overruling, 
 apparently, the dicta in Middleton 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. Read- 
 ing, 3 S. & M. 366; The Magnolia v. 
 Marshall, 39 Miss. 109, 131; Bell v. 
 Gough, 23 N. J. L. 624, 677 ; Bainbridge 
 v. Sherlock, 29 Ind. 364; Sherlock v. 
 Bainbridge, 41 Ind. 35 ; Talbot v. Grace, 
 30 Ind. 389; Bickel v. Polk, 5 Harr. 
 (Del.) 325. See Greenwich Board of 
 Works v. Maudslay, L. R. 5 Q. B. 397. 
 In O'Fallon v. 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 
 authority of writers upon the civil 
 law. See, also, Memphis v. Overton, 
 3 Yerger, 387; Benson v. Morrow, 61 
 Mo. 345; Lewis v. Keeling, 1 Jones 
 (N. C), 299; Dalrymple u Mead, 1 
 Grant's Cas. (Penn.) 197. 
 
 « Ibid.; Ecroyd v. Coulthard, [1898] 
 2 Ch. 358; [1897] 2 Ch. 554; Devon- 
 shire v. O'Connor, 24 Q. B. D. 468 ; Ens- 
 minger v. People, 47 111. 384; Stewart 
 v. Pitch, 2 Vroom, 17, 20. As to the 
 rule in Pennsylvania, see ante, § 65. 
 
 tPost, % 102; Hale, De Portibus 
 Maris, ch. 3; Hargrave's Law Tracts, 
 51; Blundell v. Catterall, 2 B. & Aid. 
 268; Wyatt v. Thompson, 1 Esp. 252; 
 Morrison v. Thurman, 17 B. Mon. 
 249, 257; 14 id. 367; Morgan v. Read- 
 ing, 3 S. & M. 366, 407; The Magnolia 
 v. Marshall, 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. 
 
192 
 
 THE LAW OF "WATERS. 
 
 [Oh. IV. 
 
 logs are liable' in trespass to the owner of the banks, 1 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. 2 
 
 § 100. Same — By fishermen. — It was early laid down that 
 fishermen may go on land adjoining the sea to fish, that being 
 for the common good, though they cannot justify digging there 
 for the purpose of fixing stakes upon which to dry their nets ; 3 
 but it is now settled that the public right of fishery affords no 
 justification for such acts committed upon dry land, or draw- 
 ing up and leaving their boats, 4 in the absence of a prescriptive 
 right. 5 A littoral proprietor has the exclusive right to draw a 
 boat or seine on his own land, 6 to erect fishing huts there, 7 or 
 to fix stak*es in his own flats below the high- water mark of 
 tide waters for the purpose of spreading a seine. 8 If the pro- 
 
 1 Hooper v. Hobson, 57 Maine, 273. 
 See Weise v. Smith, 3 Oreg. 445; In 
 re Thomson, 86 Hun, 405; Lownsdale 
 v. Gray's Harbor Boom Co. (Wash.), 
 58 Pao. Eep. 663. 
 
 2 Steamer Magnolia v, Marshall, 39 
 Miss. 109; Morgan v. Reading, 3 S. & 
 M. 366; Com'rs v. Withers, 29 Miss. 
 21; Int'l Bridge Co. v. Canada South- 
 ern Ey. Co., 28 Grant's Ch. (Can.) 114; 
 7 Ontario App. 226; 8 App. Cas. 723. 
 An agreement to clear a navigable 
 stream and run logs down it is not 
 against public policy as involving 
 trespasses upon riparian estates un- 
 less it appears that such trespasses 
 are contemplated or that the riparian 
 owners object. Fuller v. Eice, 52 
 Mich. 435. 
 
 3 Brooke's Abr., tit. Custom, pL 46; 
 Fitz. Barre, 93. 
 
 4 Ilchester v. Raishleigh, 61 L. T. 
 477. 
 
 5 Gray v. Bond, 2 Brod. & Bing. 
 667; Holroyd, J., in Blundell v. Cat- 
 terall, 5 B. & Aid. 268; Coolidge v. 
 Williams, 4 Mass. 140; Hart v. Hill, 
 1 Whart. 138; Shrunk v. Schuylkill 
 Nav. Co., 14 Serg. & E. 71; Cortelyou 
 v. Van Brundt, 2 Johns. 357; Jacob- 
 son v. Fountain, id. 170; Whittaker 
 
 v. Burhaus, 62 Barb. 237; Brink v. 
 Ritchmyer, 14 Johns. 255; Lay v. 
 King, 5 Day, 72: Sheppard's Epitome, 
 tit. Custom & Prescription, p. 392; 
 Woolrych on Waters, 138; Hale, De 
 Jure Maris, ch. 6; Hargrave's Law 
 Tracts, p. 86; 2 Dane's Abr. 702, 707 
 Duncan v. Sylvester, 24 Maine, 482 
 Parker v. Elliott, 1 C. P. (Can.), 470 
 ante, § 26. As to usage on the river 
 Thames, see Att. Gen. v. Wright, 
 [1897] 2 Q. B. 318. 
 
 6 Ibid.; Skinner v. Hettrick, 73 N. 
 C. 53; Hettrick v. Skinner, 82 N. C. 
 65, 68; Bradley Fish Co. v. Dudley, 
 37 Conn. 136; Locke v. Motley, 2 
 Gray, 265. A person who clears out 
 a fishing place in a river acquires 
 thereby no exclusive right of fishery. 
 Westfall v. Van Anker, 12 Johns. 425; 
 Freary v. Cooke, 14 Mass. 488. See 
 Pitkin v. Olmstead, 1 Eoot, 219; Mun- 
 son v. Baldwin, 7 Conn. 171. See Sid- 
 well v. Greig, 53 N. Y. S. 1115. 
 
 'Ibid. 
 
 8 Locke v. Motley, 2 Gray, 265 
 Duncan v. Sylvester, 24 Maine, 482 
 Whittaker v. Burhaus, 62 Barb. 237 
 65 N. Y. 559; 2 Dane Abr. 692. See 
 Parsons v. Clark, 76 Maine, 476. 
 
■§ 101.] PUBLIC EIGHT OF NAVIGATION. 193 
 
 prietor. of land on which a seine reel is placed, without his 
 license, cuts it down and thrusts it toward the water, after no- 
 tice to remove it, and neglect to do so, he is not liable if the 
 reel floats away, although he might have prevented it. 1 The 
 right to draw a seine upon the land pi another person is an 
 •easement, and when acquired by prescription, its extent is 
 commensurate with, and is determined by, the previous user. 2 
 A fishing place may be granted separate from the soil. 3 A 
 'grant of the exclusive privilege of using, as a fishing station, 
 a lot on an unoccupied beach or island in tide waters does not 
 convey any right of fishing, and the grantee cannot recover 
 damages from a person who sets nets in front of his lot beyond 
 low- water mark, and thus prevents the fish from entering his 
 nets. 4 
 
 § 101. Same — Towing paths. — 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 particular manner. 8 Land taken under a stat- 
 ute by a canal company for a towing path may be dedicated 
 by such company to the public as a foot-path subject to its use 
 as a towing path, when the public use is not inconsistent with 
 its use as a towing path ; 6 and the banks of a navigable stream 
 may be appropriated by statute to the use of the public as a 
 towing path. 7 In such case, also, the riparian proprietors re-« 
 tain 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 ; 8 the rule being that, in the 
 
 1 Almy v. Grinnell, 12 Met. 53. 6 Grand Junction Canal Co. v. 
 
 2 Hart v. Hill, 1 "Whart. 138; Bald. Petty, 21 Q. B. D. 273; Rex v. Leake, 
 •Ct. Dig. 339, pi. 12, 13. 5 B. & Ad. 469. See Alexander v. 
 
 3 Tinicum Fishing Co. v. Carter, 61 Tolleston Club, 110 111. 65. 
 
 Penn. St. 21. 7 Winch v. Conservators of the 
 
 << Hierlihy v. Loggie, 3 Allen (ST. B.), Thames, L. E. 7 C. P. 471; Lee Con- 
 
 204. servancy Board v. Button, 12 Ch. D. 
 
 5 Winch v. Conservators of the 383; 6 App. Cas. 685; Eex v. Leake, 
 
 Eiver Thames, L. E. 7 C. P. 471; L. 5 B. & Ad. 469; Grand Junction 
 
 E 9 C. P. 378; Eex v. Severn Nav. Canal Co. v. Petty, 21 Q. B. D. 273; 
 
 Co., 2 B. & A. 646; Hollis v. Gold- 68 L. T. 167. 
 
 finch, 1 B. & C. 205 ; Lee Conservancy 8 Ibid. ; Carpenter v. State, 12 Ohio 
 
 Board v. Button, 12 Ch. D. 383; 6 St. 457; Indiana Central Canal Co. v. 
 
 App. Cas. 685; 15 Ir. L. T. 235 State, 53 Ind. 575. A canal and its 
 13 
 
191 
 
 THE LAW OF "WATERS. 
 
 [OH. IV. 
 
 absence of express words, the courts do not infer that a statute 
 of this kind gives to the public, or to a board of conservators, 
 or navigation companies, acting in the public interest, a greater 
 interest in the soil than is necessary for the purposes of the- 
 navigation. 1 
 
 § 102. Same — Stranded property. — The only instance in 
 which the common law recognizes 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 reclaiming stranded property which may 
 have been washed ashore without fault on the part of its, 
 owner. 2 In Maine the right to reclaim stranded logs is ex- 
 
 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, 
 63. 
 
 1 Badger v. South Yorkshire Ry. 
 Co., 1 El. & El. 346, 359, 368; Reg. 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. 
 D. 383; Monmouthshire Canal Co. v. 
 Hill, 4 H. & N. 421; Kinlock v. Ne- 
 ville, 6 M. & W. 795; Newcastle v. 
 Clarke, 2 B. Moore, 666; Buckeridge 
 v. Ingram, 2 Ves. Jr. 652; Stanley v. 
 White, 14 East, 332; New Shoreham 
 Harbor Com'rs v. Lansing, L. R. 5 Q. 
 B. 489; Rex v. Mersey Navigation, 9 
 B. & C. 95; Rex v. Thomas, id. 114; 
 Rex v. Aire Navigation, id. 820 ; 3 B. 
 & Ad. 139; Cory v. Bristow, 2 App. 
 Cas. 262; Simpson v. Staffordshire 
 Water Co., 4 De G. J. & S. 679; Som- 
 erset Canal v. Harcourt, 2 De G. & 
 J. 596; Chelsea Water Co. v. Bowley, 
 17 Q. B. 358; Patrick v. Beaufort, 6 
 Exch. 498; Robins v. Warwick, 2 
 Bing. N. C. 483; Harborough v. Shad- 
 low, 7 M. & W. 37; Dimes v. Grand 
 Junction Canal, 3 H. L. Cas. 794; 
 post, § 241. If a canal falls into dis- 
 use, the owner's rights then stop at 
 high-water mark. Morgan v. Bass, 
 
 14 Fed. Rep. 454 A person who, bet- 
 ing seized of land, conveys to a canal 
 company "such portion and quan- 
 tity of his land as may be covered^ 
 used, or occupied by the said canal, 
 or the necessary works thereof," and 
 describes the premises conveyed, 
 does not surrender the privilege of 
 using public highways passing 
 through the granted premises. Leo- 
 pold v. Chesapeake Canal Co., 1 Gill, 
 222; Carpenter v. State, 12 Ohio St. 
 457. 
 
 * Carter v. Thurston, 58 N. H. 104, 
 107; Hoit v. Stratton MiUs, 54 N. H, 
 106, 109; Aldrich v. Wright, 53 N. H. 
 398; Brown v. Collins, id. 442, 449; 
 Thompson v. Androscoggin Co., 54 
 N. H. 545, 558; Eaton v. B. C. & M, 
 R. Co., 51 N. H. 504, 530; Brown v. 
 Chadbourne, 31 Maine, 9, 24; Treat 
 v. Lord, 42 Maine, 553; Colchester ?v 
 Brooke, 7 Q. B. 339; Rogers v. Judd, 
 5 Vt 223; Forster v. Juniata Bridge 
 Co., 16 Penn. St. 393. If the logs or 
 timber of different owners, floated 
 into a river, become so mixed thafc. 
 the property of each cannot be iden- 
 tified, they become tenants in com- 
 mon; unless the defendant's wrong- 
 ful act was the cause of the confu- 
 sion. Gilmour v. Buck, 24 C. P. (Can.> 
 187. See Lane v. McDonald, 2 Rus- 
 sell & G. N. s. 37; Clark v. Nelson, 
 
§103.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 195 
 
 pressly recognized by a statute which requires payment or 
 tender of compensation for damages. 1 The common-law rule 
 is that a person whose property is carried, by flood or inevi- 
 table 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 a case, a promise of com- 
 pensation, upon which, in the absence of an express promise, 
 an action may be maintained. 2 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. 3 
 
 § 103. Same — Eminent domain — Compensation. — A cor- 
 poration which is authorized by statute to construct booms 
 upon a river for the purpose of holding and storing logs, ac- 
 quires thereby no right to appropriate and use the banks, 
 except by the consent of the owners, or in the exercise of the 
 
 Lumber Co., 34 Minn. 389. This rule 1 Rev. Stats, of Maine (1857), ch. 42, 
 does not apply -when the logs are dis- § 8; Rev. Stats. (1871), oh. 42, §§ 7, 8; 
 
 tinctly marked. Goff v. Brainerd, 58 
 Vt. 468. In a suit brought by one 
 such co-owner, the objection of non- 
 joinder of the other owners as plaint- 
 iffs comes too late if not taken by 
 answer or demurrer. Weatherby v. 
 Meiklejohn, 61 Wis. 67. As to the 
 recapture or appropriation of marked 
 timber in a river, see Macpherson v. 
 Frederickton Boom Co., 1 Hannay 
 (N. B.), 337; Arpin v. Burch, 68 Wis. 
 619; Libby v. Johnson, 37 Minn. 220. 
 An unmarked log, carried down 
 stream and unreclaimed for two 
 
 Hooper v. Hobson, 57 Maine, 267; 
 Brown v. Chadbourne, 31 id. 9; Treat 
 v. Lord, 42 id. 552; see Young v. 
 Clement, 81 id. 512; Weymouth v. 
 Beatham (Maine), 45 Atl. Rep. 519. 
 
 2 Ibid. ; Sheldon v. Sherman, 42 
 N. Y. 484. See Henry v. Roberts, 50- 
 Fed. Rep. 902; Kentucky Lumber 
 Co. v. Miracle (Ky.), 41 S. W. Rep. 25. 
 In an action of trespass quare clausum 
 fregit, a plea justifying an entry 
 upon the plaintiff's land in order to 
 retake stranded timber should show 
 that the defendant used his best en- 
 
 years, is lost property, and a former deavors to prevent the timber land- 
 
 finder is entitled to it against the 
 riparian owner. Deaderick v. Oulds, 
 86 Tenn. 14; Moore v. Erie Ry. Co., 7 
 Lans. 39; Tiago Manuf. Co. v. Stin- 
 son, 48 Mich. 213; Hall v. Tittaba- 
 wassee Boom Co., 51 Mioh. 377; Mar- 
 tin v. Mason, 78 Maine, 452; Norris v. 
 United States, 44 Fed. Rep. 735. As 
 to the surveyor-general's lien for sur- 
 veying and sealing logs in a boom, 
 see Lindsay & Phelps Co. v. Mullen, 
 176 U. S. 126. 
 
 ing there, and it is questionable 
 whether an injury to the soil and 
 herbage would even then be excus- 
 able. Reed v. Smith, Berton (N. B.), 
 173. 
 
 3 Livezey v. Philadelphia, 64 Penn. 
 St. 106; ante, § 98, note. The carry- 
 ing away, by flood, of a bridge not 
 partof the demised premises, whereby 
 their value is diminished, is no ground 
 for an abatement of the rent. Smith 
 v. Ankrim, 13 S. & R. 39. 
 
196 
 
 THE LAW OF WATERS. 
 
 [Oh. IT. 
 
 power of eminent domain. 1 This property cannot be taken 
 for a purely private purpose ; and the fact that booming com- 
 panies and companies for the improvement of the navigation 
 are quasi-public corporations, and hold their franchises for a 
 public use, 2 does not give them the privileges of a riparian 
 owner, or enable them, by legislative authority, to devote the 
 river banks to the purposes of their charter, without compen- 
 sation to the riparian owners. 3 Compensation is also neces- 
 sary where the banks are flooded by public improvements, 4 or 
 by dams erected for the collection and storage of logs, or by 
 a collection of logs in great numbers 5 where the value of the 
 banks for boom purposes is injured by dams erected under 
 
 1 Cohn v. "Wausau Boom Co., 47 
 Wis. 314; Carpenter v. State, 12 Ohio 
 St. 457. So when a bridge is author- 
 ized across a stream, a constructive 
 or implied authority is not sufficient 
 for the expropriation of lands. Win- 
 nipeg v. Cauchon, 1 Manitoba, 350. 
 If a public road, which has been le- 
 gally established along the banks of 
 a river by condemnation of the land 
 
 • of an individual proprietor, is washed 
 away by a flood, there is no right of 
 necessity to use the adjoining land 
 for the highway without a new con- 
 demnation and compensation for the 
 same. Com. v. Beeson, 2 Leigh, 821. 
 They may, however, use such land 
 temporarily for the purpose of pas- 
 sage, if the obstruction is sudden and 
 makes the way impracticable. Morey . 
 v. Fitzgerald, 56 Vt. 487; Ball v. Her-, 
 bert, 3 T. E. 253, 263; ante, § 55. ( 
 
 2 Att. Gen. v. Chicago, etc. Ry. Co., ( 
 35 Wis. 425; Wisconsin R. Co. v. Man- 
 son, 43 Wis. 255; Delaphine v. Rail- 
 road Co., 42 Wis. 214; Stevens. Point 
 Boom Co. v. Reilly, 46 Wis. 237; 44 
 Wis. 295; Denniston v. Unknown 
 Owners, 29 Wis. 351; Pound v. Turck, 
 95 U. S. 459; Grand Rapids Booming 
 Co. v. Jarvis, 30 Mich. 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; Sinniokson v. Johnson, 2 Har. 
 
 (N. J.) 129, 152; Brady's Appeal, 26 
 Md. 290; Texas Nav. Co. v. Galveston 
 Co., 45 Texas, 274, 
 
 3 Ibid. ; Schoff v. Upper Conn. River 
 Co., 57 N. H. 110; Cohn v. Wausau 
 Boom Co., 47 Wis. 314; Stevens Point 
 Boom Co. v. Reilly, 44 Wis. 295; 46 
 Wis. 237; Reimold v. Moore, 2 Brown 
 (Mich.), 15; Hargrave's Law Tracts, 
 79; Bath River Nav. Co. v. Willis, 2 
 Ry. & Canal Cases, 7; Clay v. Pen- 
 noyer Creek Imp. 'Co., 34 Mich. 204; 
 Hooker v. New Haven Co., 15 Conn. 
 321 ; Monongahela Nav. Co. v. Coons, 
 6 Penn. St. 379. See a reservation of 
 the right to use the banks construed 
 in Bradley v. Tittabawassee Boom 
 Co., 82 Mich. 9. A State may author- 
 ize a corporation to take the fee of 
 private property for the purpose of 
 constructing a boom. Patterson v. 
 Mississippi Boom Co., 3 Dillon, 465. 
 
 4 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 R, Co., 21 Wis. 667. 
 
 5 Grand Rapids Booming Co. v. Jar- 
 vis, 30 Mich. 308; Thunder Bay River 
 Booming Co. v. Speechly, 31 id. 336; 
 Anderson v. Thunder Bay River 
 Boom Co., 61 id. 489; McKensie v. 
 Miss. Boom Co., 29 Minn. 288; Weaver 
 v. Same, 28 id. 530; 30 id. 477. 
 
§ 104.] PUBLIC EIGHT OF NAVIGATION. 197 
 
 legislative authority for supplying a city with water; 1 and 
 where a landing and buildings used' in connection with a fish- 
 ery are destroyed by the construction of a railroad. 2 The lib- 
 erty of a ferry is limited by high-water mark upon either 
 shore; 3 and it has been held. that such a franchise, conferred 
 by the legislature, carries with it no right, without the ripa- 
 rian owner's consent, or the payment of compensation, to use 
 the land adjoining the river above high-water mark as a land- 
 ing, even though such land is already subject to an easement 
 in favor of the public for the purpose of a highway. 4 It has 
 also been held that if a highway extends to navigable waters, 
 the riparian owner has no exclusive right of landing, 5 and that 
 the public may approach navigable water from any part of the 
 highway. 6 In England it has recently been held that statutory 
 power to erect a pier authorized its projection on the line of a 
 public highway, and that the public acquired no right, upon its 
 erection, to pass over it in order to reach the sea. 7 
 
 §104. Same — Towage — Access. — 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 ; 8 and Lord Kenyon suggests that 
 
 1 Barrett v. Bangor, 70 Maine, 335. Kendal, 3 B. & C. 703; Newton v, Cu- 
 
 2 Alexandria Ey. Co. v. Faunce, 31 bitt, 13 C. B. n. s. 32; Gant v. Drew, 
 Gratt. 761. 1 Oreg. 35; Mills v. Learn, 2 id. 215; 
 
 3 State v. Wilson, 42 Maine, 9; Mills v. Com'rs, 3 Scam. 53; Patrick v. 
 French v. Camp, 18 id. 433. Euffner, 2 Rob. 209 ; 3 Kent Com. 421 ; 
 
 4 Prosser v. Wapello County, 18 Walker v. Armstrong, 2 Kansas, 198; 
 
 Iowa, 327; Prosser v. Davis, id. 367 
 Cooper v. Smith, 9 Serg. & E. 26 
 Chambers v. Furry, 1 Yeates, 16 
 
 New York v. N. Y. Ferry Co., 40 N. Y. 
 Sup. Ct. 233, 24Q. 
 6 Ibid. ; Parsons v. Clark, 76 Maine, 
 
 Chess v. Manown, 3 Watts, 219; Bird 476; post, § 157; Demopolis v. Webb, 
 
 v. Smith, 8 Watts, 434; Pipkin v. 87 Ala. 659; 95 Ala. 116; Helfenstein 
 
 Wynns, 2 Dev. (N. C.) 402. See Mem- v. Eeichenbach, 23 Penn. Co. Ct. 66. 
 
 phis v. Overton, 3 Yerger, 387, 390; 'Yarmouth v. Simmons, 10 Ch. D. 
 
 Levisay v. Delp, 9 Baxter, 415; Doug- 518; Standly v. Perry, 3 Can. Supr. 
 
 lass's Appeal, 118" Penn. St. 85; Singer Ct. 356. 
 
 v. Carondelet Canal Co., 39 La. Ann. 8 Ball v. Herbert, 3 T. R. 253; Kin- 
 478; St Louis E. Co. v. Thomas, 34 lock v. NeviUe, 6 M. & W. 794; Bad- 
 Fed. Rep. 774. ger v. South Yorkshire Ey. Co., 1 El. 
 5 Backus v. Detroit, 49 Mich. 110; & EL 347; Monmouth Canal Co. v. 
 Fowler v. Mott, 19 Barb. 204; Bur- Hill, 4 H. & N. 427; Hollis v. Gold- 
 rows v. Gallup, 32 Conn. 499; Church finch, 1 B. & C. 205; 1 Burr. 292; 
 V. Meeker, 34 Conn. 429; Somerville Harrington v. Edwards, 17 Wis. 586. 
 v. Wimbish, 7 Gratt. 205; Peter v. 
 
198 
 
 THE LAW OF WATEKS. 
 
 [Ch. IV. 
 
 small evidence of usage would be sufficient before a jury to 
 establish the right by custom, upon grounds of public con- 
 venience. 1 Analogous to this is the right of way to navigable 
 waters from lands lying inward. Tide waters are common 
 property with respect to navigation and fishing, but the public 
 have no general right of access to them over private lands. 2 
 This privilege cannot be claimed as a right of necessity, 3 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 private property for public use as a 
 wharf, landing place, or ferry landing'; 5 and to authorize a 
 town to convert a promenade into wharfs and landings. 6 But 
 without authority from the legislature, a town cannot convert 
 a private wharf or landing into a town way. 7 
 
 § 105. Same — Landings — Dedication — Prescription.— 
 
 In Pearsall v. Post, 3 in ISTew York, in which it appeared that 
 land adjoining a harbor had been used for many years- as a 
 place for the landing and deposit of large quantities of manure 
 
 iBall v. Herbert, 3 T. R. 253. 
 
 2Blundell v. Catterall, 5 B. & Aid. 
 268; Cortelyou v. Van Brundt, 2 
 Johns. 357; Coolidge v. Williams, 4 
 Mass. 440; Slater v. Gunn, 170 Mass. 
 509; 41 L.R A. 268, and note; Biokel 
 v. Polk, 5 Harr. (Del.) 325. 
 
 3 Lawton v. Rivers, 2 McCord (S. C), 
 445; Turnbull v. Rivers, 3 id. 131; 
 Seabrook v. King, 1 Nott & McC. 140. 
 
 *Ante, § 99; White, v. Whittier, 2 
 Dane's Abr. 702. See Reighard v. 
 Flinn, 46 Pitts. L. J. 338. 
 
 8 Memphis v. Wright, 6 Terger, 
 497; Bainbridge v. Sherlock, 29 Ind. 
 364; 41 Ind. 35; Wetmore u Atlantic 
 White Lead Co., 37 Barb. 70; Muire 
 v. Falconer, 10 Gratt. 12; Anderson 
 v. St. Louis, 47 Mo. 479; Leslie v. St. 
 Louis, 47 Mo. 474; Phipp's Appeal, 28 
 Md. 380; Mayor v. State, 4 Ga. 26; 
 Martin v. O'Brien, 34 Miss. 21; Yad- 
 kin Nav. Co. v. Benton, 2 Hawks 
 (N. C), 10; Barrington v. Neuse River 
 Ferry Co., 69 N. C. 165. The right of 
 jury trial, to determine the value of 
 
 the land so taken, must be secured 
 to the land-owner. Day v. Stetson, 8 
 Maine, 365. But a horse ferry is not 
 of such public interest as to justify 
 taking private property for its estab- 
 lishment. Day v. Stetson, 8 Maine, 
 365. 
 
 6 Memphis v. Wright, 6 Terger, 497. 
 
 'Kean v. Stetson, 5 Pick. 492, 495. 
 
 8 20 Wend. Ill; 22 Wend. 425; Pear- 
 sall v. Hewlett, 20 Wend. Ill; 22 
 Wend. 559. See also Cortelyou v. 
 Van Brundt, 2 Johns. 357; Hunter v. 
 Sandy Hill, 6 Hill, 407, 411; Cady v. 
 Conger, 19 N. Y. 256; Bloomfleld Gas 
 Light Co. v. Calkins, 62 N. Y. 386; 
 Munson v. Hungerford, 6 Barb. 265; 
 Adams v. Rivers, 11 Barb. 390; Wig- 
 gins v. Tallmadge, id. 457; Curtis v. 
 Keesler, 14 id. 511; Smith v. Floyd, 
 18 id. 522; Fowler v. Mott, 19 id. 204; 
 Etz v. Daily, 20 id. 32; Buffalo v. Del- 
 aware, etc. R. Co., 39 N. Y. S. 4; Kel- 
 sey v. King, 33 How. Pr. 39; IN. Y. 
 Trans. App. 133. 
 
§ 105.] PUBLIC EIGHT OF NAVIGATION. 199 
 
 brought from the city of ISTew York, it was held • first, That 
 the right to encumber lands adjoining navigable waters with 
 manure or merchandise, being more than a simple right of 
 passage, could not be acquired by the public by custom or pre- 
 scription ; second, That the doctrine of parol dedication of high- 
 ways, streets and public squares does not extend to public 
 landings. In Talbot v. Grace, 1 in Indiana, there was evidence 
 that the place in question had been long used both for the 
 purpose of a landing, and for the loading and unloading of 
 vessels, and one ground of the decision was, following Pearsall 
 v. Post, 2 that the public right could not rest upon the ground 
 of prescriptive user. In Massachusetts the public may, by 
 immemorial usage, acquire the right to use the banks of a 
 river for the purpose of landing ; 3 and a tract of land or an 
 open square in a town may be dedicated to the public as a 
 park. 4 The same doctrine, as to landings, was early recog- 
 nized in Maine. 5 But in the latter State a general right to 
 use the river banks as a place of deposit cannot now be ac- 
 quired by custom ; 6 and a landing, even for the purpose of 
 direct transit, is held to be more than a highway. 7 In Minne- 
 
 1 30 Ind. 389. , Stetson v. Bangor, 60 id. 313. See 
 
 2 20 Wend. Ill; 22 Wend. 425. Newcastle v. Haywood, 68 N. H. 179. 
 
 3 Kean v. Stetson, 5 Pick. 492; Cool- i Ibid. ; State v. Wilson, 42 Maine, 9. 
 idge v. Learned, 8 Pick. 504; Green See Hasty v. Johnson, 3 id. 282; 
 v. Chelsea, 24 Pick. 80; Boston v. Thompson v. Androscoggin Bridge, 5 
 Eichardson, 105 Mass. 351, 357. In id. 62; Kaler v. Beaman, 49 id. 207. 
 North Carolina the use of a landing The dedication must be accepted; 
 by the public for twenty years as of but this may be proved by acts. Peo- 
 right affords ground for a presump- pie v. Williams, 64 CaL 498; Brakken 
 tion of dedication to the public use. v. Minneapolis Ey. Co., 29 Minn. 41. 
 Askew v. Wynne, 7 Jones, 23. See A dedication can properly be to pub- 
 .also Hardy v. Memphis, 10 Heisk. 127; lie use only; a private right of way 
 Barney v. Baltimore, 1 Hughes, 118. cannot be created by dedication. 
 
 * Abbott u Cottage City, 143 Mass. Hall v. McLeod, 2 Met. (Ky.) 98; 
 
 521. In this State, neither under the Steele v. Sullivan, 70 Ala. 589, 594. 
 
 Province Charter nor by custom can In Alabama a presumption of dedi- 
 
 permanent structures be erected upon cation does not arise from user for a 
 
 a public landing place. Att. Gen. v. less period than twenty years, unat- 
 
 Tarr, 148 Mass. 309. tended by unequivocal acts evincing 
 
 5 Sevey's Case, 6 Maine, 118. See such intent, and may be disproved 
 
 Duley v. Kelley, 74 Maine, 556. by protests on the owner's part. Ibid. ; 
 
 6 Littlefield v. Maxwell, 31 Maine, Nichols v. Aylor, 7 Leigh, 505. A 
 
 134; Bethum v. Turner, 1 id. Ill ; user for twenty years will not raise 
 
 Moor v. Lang, 42 id. 29; State v. Wil- a prescription where the right has 
 
 son, id. 9; Hill v. Lord, 48 id. 83, 100; always been contested. Smith v. 
 
200 
 
 THE LAW OF WATEES. 
 
 [CH. IV. 
 
 sota 1 and Wisconsin 2 the doctrine that land cannot be dedi- 
 cated by parol as a landing has been disapproved; and in 
 Iowa 3 and Kentucky 4 it has been held that land dedicated to 
 the public use as a street or common may be used for the pur- 
 poses of a wharf. In Godfrey v. Alton, 5 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 intended. 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, 6 although a definite grantee is not named or in exist- 
 
 Miller, 11 Gray, 148; Livett v. Wil- 
 son, 3 Bing. 115. 
 
 i Mankato v. Willard, 13 Minn. 13; 
 Brisbine v. St. Paul R Co., 23 Minn. 
 114. 
 
 2 Gardiner v. Tisdale, 2 Wis. 153; 
 Connehan v. Ford, 9 Wis. 240. See 
 also Bird v. Smith, 8 Watts, 434; 
 Chambers v. Furry, 1 Yeates, 167. 
 
 3 Haight v. Keokuk, 4 Iowa, 199, 
 214; Grant v. 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. MeConahy, 4 Ohio, 157, and 
 note; Price v. Methodist Ep. Church, 
 id. 516; Cincinnati v. First Presb. 
 Church, 8 Ohio, 298; Cincinnati v. 
 Hamilton Co., 7 Ohio, 88; Com. v. 
 Philadelphia, 16 Penn. St. 79; State 
 v. Randall, 1 Strob. (S. C.) 110. Asto 
 the meaning of the words " reserved 
 landing " upon recorded plat, see 
 above cases of Grant v. Davenport 
 and Cowles v. Gray. See also Em- 
 mons v. Milwaukee, 32 Wis. 434; 
 Dietrich v. Northwestern Union Ry. 
 Co., 42 ."Wis. 248; Cook v. Burlington, 
 30 Iowa, 94; 36 Iowa, 357; Mankato 
 v. Meagher, 17 Minn. 265; Arnolds. 
 
 Elmore, 16 Wis. 509; Yates v. Judd,. 
 18 Wis. 118. 
 
 4 Newport v. Taylor, 16 B. Mon. 699, 
 804; Rowan v. Portland, 8 id. 232;. 
 Louisville v. Bank of the United 
 States, 3 id. 138; Potomac S. Co. u_ 
 Upper Potomac & Co., 109 U. S. 672, 
 686. 
 
 5 Godfrey v. Alton, 12 111 30; Alton 
 v. Illinois Transp. Co., id. 38; Field v.. 
 Carr, 59 111. 198, 200; First Evangel- 
 ical Church u Walsh, 57 111. 363, 369; 
 Smith v. Flora, 64 HI 93; Mclntire 
 v. Storey, 80 111. 127, 130; Warren n. 
 Jacksonville, 15 Hi 236; Waugh v. 
 Leech, 28 111. 488, 491; Rees v. Chi- 
 cago, 38 I1L 322. See Newport v. Tay- 
 lor, 16 B. Mon. 699, 803; Rowan v~ 
 Portland, 8 id. 232; Hurley v. Miss. 
 Boom Co., 34 Minn. 143; California 
 Nav. Co. v. Union Transp. Co., 126 
 Cal. 433; Pittsburg v. Epping-Car- 
 penter Co., 194 Penn. St. 318; Whyte- 
 v. St. Louis (Mo.), 54 S. W. Rep. 478. 
 See 14 Harv. L. Rev. 65. 
 
 6 See Gardiner v. Tisdale, 2 Wis. 
 153, 191; Knowles v. Dow, 22 N. H. 
 387 ; Taf t v. Tarpey, 125 Cal. 376. The 
 usage by which, in the South-west,, 
 goods are put off by carriers of goods- 
 
§ 106.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 201 
 
 ence, and no formal acceptance is shown, 1 ' or a claim of pre- 
 scriptive 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, 2 is neither within 
 the purpose of the dedication nor valid as a custom. 3 
 
 § 106. Same — Public landings, — 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 construc- 
 tion of a wharf at the end thereof. 4 Evidence that land ha& 
 
 by water at neighborhood or way 
 landings on the river banks, where 
 there is no wharf or warehouse and 
 the consignee does not reside, and 
 the person living near the landing is 
 requested to look after them and 
 notify the consignee, whereupon the 
 liability of the carrier ceases, is 
 valid. The Mill Boy, 4 McCrary, 383. 
 Dedication "as a public levee" is 
 supported by evidence of dedication 
 as a public landing. Napa v. How- 
 land, 87 CaL 84. 
 i Coffin v. Portland, 27 Fed. Rep. 
 
 412; 
 453. 
 
 Mark 
 
 ;. rot 
 v. W 
 
 est Troy, 151 N. Y. 
 
 2 See Herring v. Met. Board of 
 "Works, 19 C. B. N. s. 510; Compton 
 v, Hankins, 90 Ala. 411; 24 Am. St. 
 Rep. 823; Smith v. Simmons, 103 
 Penn. St. 32; People v. Cunningham, 
 1 Denio, 524; Gerrish v. Brown, 51 
 Maine, 256, 263; Graves v. Shattuck, 
 35 N. H. 257; Maddox v. Cunning- 
 ham, 68 Ga. 431 ; State v. Omaha, 14 
 Neb. 265; Lancaster v. Eve, 5 C. P. 
 N. s. (Can.) 717. 
 
 3 See authorities above cited. Also, 
 Penny Pot Landing, 16 Penn. St. 79; 
 Carrollton R. Co. v. "Winthrop, 5 La. 
 Ann. 36. As to the reservation and 
 dedication of landings by the gov- 
 ernment, or by cities, see Cincinnati 
 v. White, 6 Peters, 431; Barclay v. 
 Howell, id. 498; Irwin v. Dixion, 9 
 How. 10; New Orleans v. United 
 
 States, 10 Peters, 662; Cook v. Bur- 
 lington, 30 Iowa, 94; 36 id. 357; 
 Walker v. Columbus, 4 B. Mon. 259, 
 260; Alves v. Henderson, 16 B. Mon. 
 131; Burr v. Dana, 22 CaL 11; Blanc 
 v. Bowman, 22 Cal. 23; San Francisco- 
 v. Calderwood, 31 Cal. 385 ; Schermer- 
 horn v. New York, 3 Edw. Ch. 119. 
 Dedication may be presumed even 
 against the sovereign. Day v. Al- 
 lender, 22 Md. 511. In conveyances 
 between individuals, a deed of a mill, 
 dam, and falls, " and a right to the 
 road and landing, to land logs, as has 
 been customary," conveys only an 
 easement in the road and landing. 
 Hasty v. Johnson, 3 Maine, 282. And 
 the grant of a saw-mill " with a con- 
 venient privilege to pile logs, boards, 
 and other lumber," conveys only an 
 easement in the land used for piling. 
 Thompson v. Androscoggin Bridge, 
 o" Maine, 62. The grant of certain 
 land, together with a saw-mill there- 
 on and a mill-dam and pond con- 
 nected therewith, with all privileges 
 and appurtenances, does not enable 
 the grantee to use a stream flowing 
 through the grantor's land for tak- 
 ing logs to and from the mill, al- 
 though used for that purpose by the 
 gi-antor previous to the conveyance. 
 Rogers v. Peck, Berton (N. B.), 318, 
 See Hill v. Todd, 2 Allen (N. B.), 261 
 * Backus v. Detroit, 49 Mich. 110 
 McMurray v. Baltimore, 54 Md. 103 
 
202 THE LAW OF WATERS. [Ch. IV. 
 
 t, 
 
 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 suf- 
 ficient to establish a right in all the inhabitants of the State. 1 
 But evidence of user by the individul inhabitants of a town, 
 unauthorized by the town, does not tend to show a possession 
 by the town in its corporate capacity. 2 "When a public land- 
 ing place is once established, it may be discontinued by the 
 legislature, but not by a town, 3 or by county commissioners. 4 
 Commissioners of highways, having authority to regulate pub- 
 lic landings and watering places, have no power to lay out a 
 new landing place. 5 
 
 § 107. Floatable streams — Logs — Eafts. — A stream is a 
 public highway wherever it is suitable 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. 6 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 water, are use- 
 ful, 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 con- 
 flict respecting the title to large fresh- water rivers, the author- 
 ities 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. 7 
 
 § 108. Same — What are. — Streams which are not float- 
 able, or cannot, in their natural state, be used for the carriage 
 
 Barney v. Keokuk, 94 XJ. S. 324; 8 Com. v. Tucker, 2 Pick. 44; Kean 
 
 Haight v. Keokuk, 4 Iowa, 199; Bow- v. Stetson, 5 Pick. 492, 495. 
 
 man v. Portland, 8 B. Mon. 253; New- 4 Bennett v. Clemence, 6 Allen, 10. 
 
 port v. Taylor, 16 id. 700; Bar-' ey v. scom'rs v. Queens County, 17 
 
 Baltimore, 1 Hughes, 118; Ellerman Wend. 9. 
 
 v. Morgan's La. R. Co., 34 La. Ann. 6 Hale, De Jure Maris, ch. 2, 3; 
 
 *98- Hargrave's Law Tracts, 8, 9. 
 
 1 Coolidge v. Learned, 8 Pick. 504. 'Shaw v. Oswego Iron Co., 10 Ore- 
 
 2 Green v. Chelsea, 24 Pick. 71, 79; gon, 371; Nutter v. Gallagher, 19 
 Hill v. Lord, 48 Maine, 83, 97. Oregon, 375; Falls Manuf. Co. v. 
 
§.108.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 203 
 
 of boats, rafts, or other property, are absolutely private, 1 and 
 if the stream is so small and shallow that logs cannot be driven 
 in them without traveling upon the banks, it is not open to 
 the public for passage. 2 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. 3 The fact that the banks are commonly used for the 
 
 Oconto River Imp. Co., 87 "Wis. 134; 
 Hey ward v. Farmers' M. Co., 42 S. C. 
 138; post, § 110. 
 
 1 Berry v. Carle, 3 Maine, 269 ; Spring 
 v. Russsell, 7 id. 273; Wadsworth v. 
 Smith, 11 id. 278; Dwinel v. Barnard, 
 28 id. 554; Brown v. Chadbourne, 31 
 id. 9; Treat v. Lord, 42 id. 552; Knox 
 «. Chaloner, id. 150; Brown v. Black, 
 43 id. 443 ; Dwinel v. Veazie, 44 id. 167 ; 
 Veazie v. Dwinel, 50 id. 479; Gerrish 
 v. Brown, 51 id. 256; Davis v. Wins- 
 low, id. 264; Lancey v. Clifford, 54 id. 
 487; Holden v. Robinson Co., 65 id. 
 215; Lawler v. Baring Boom Co., 56 
 id. 443; Hooper v. Hobson, 57 id. 273. 
 
 2 Ibid. ; Morrison ,«, Bucksport R. 
 Co., 67 Maine, 353; Olson v. Merrill, 43 
 Wis. 203; Morgan v. King, 35 N. Y. 
 454; 18 Barb. 277; 30 Barb. 9; Mun- 
 son v. Hungerford, 6 Barb. 265; Curtis 
 v. Keesler, 14 Barb. 511; Shaw v. 
 Crawford, 10 Johns. 236; Varick v. 
 Smith, 9 Paige, 547; Browne v. Scho- 
 field, 8 Barb. 239; Palmer v. Mulligan, 
 3 Caines, 307; Ex parte Jennings, 6 
 Cowen, 518; Pierrepont v. Loveless, 
 72 N. Y. 211, 216; 4 Hun, 696; Slater 
 v. Fox, 5 Hun, 544; Moore V. San- 
 borne, 2 Mich. 519; Lorman v. Benson, 
 S Mich. 18; Ryan v. Brown, 18 Mich. 
 196; Middleton v. Flat River B. Co., 
 27 Mich. 533; Brig City of Erie v. 
 Canfield, 27 Mich. 479; Grand Rapids 
 B. Co. v. Jar vis, 30 Mich. 308; Thun- 
 der Bay River B. Co. v. Speechly, 31 
 Mich. 336, 345; Att. Gen. v. Evart B. 
 Co., 34 Mich. 462; Wood v. Rice, 24 
 Mich. 423; Scott v. Willson, 3 N. H. 
 321; Barron v. Davis, 4 N. H. 338; 
 State v. Gilmanton, 14 N. H. 467, 479; 
 
 Thompson v. Androscoggin Co., 54 
 N. H. 545; 58 N. H. 108; Carter v. 
 Thurston, 58 N. H. 104, 107; Chisolm 
 v. Caines, 67 Fed. Rep. 285; Whistler 
 v. Wilkinson, 22 Wis. 572; Wisconsin 
 River Co. v. Lyons, 30 Wis. 61, 66; 
 Sellers v. Union Lumbering Co., 39 
 Wis. 525; Cohn v. Wausau Boom Co.', 
 47 Wis. 314, 324; Stevens Point Boom 
 Co. v. Reilly, 44 Wis. 295; 46 Wis. 237; 
 Weatherby v. Meiklejohn, 56 Wis. 73; 
 Barclay R Co. v. Ingham, 36 Penn. St. 
 194; Hickok v. Hine, 23 Ohio St. 523; 
 Weise v. Smith, 3 Oregon, 445; Fel- 
 ger v. Robinson, id. 455; People v. 
 Elk River M. & L. Co., 107 Cal, 221. 
 See, also, Com. v. Chapin, 5 Pick. 199, 
 202; Blood v. Nashua R Co., 2 Gray, 
 137; Rowe V. Granite Bridge Co., 21 
 Pick. 344; Att. Gen. v. Woods, 108 
 Mass. 436;'Neaderhouser v. State, 28 
 Ind. 257; Esson v. McMasters, 1 Kerr 
 (N. B.), 501; Rowe v. Titus. 1 Allen 
 (N. B.),326; Boissonault v. Oliva, Stu- 
 art (Low. Can.), 564; Hay ward v. 
 Knapp, 23 Minn. 430; Lamprey v. 
 Nelson, 24 Minn. 304; Com. v. Charles- 
 town, 1 Pick. 180; Same v. Chapin, 
 5 Pick. 199; Knight v. Wilder, 3 Cush. 
 199, 309; Charlestown v. Middlesex 
 Com'rs, 3 Met. 202; Hallock v. Suitor 
 (Oregon), 60 Pac. Rep. 384. 
 
 3 Ibid. In Michigan (e, g.), the float- 
 ing of logs and timber is regulated 
 by statute. 2 Compiled Laws, p. 1597, 
 ch. 129. In Canada, by statute, lum- 
 bermen may use streams capable of 
 transporting timber only in times of 
 freshets. McLaren v. Caldwell, 6 Ont. 
 App. 456. 
 
204 THE LAW OF WATERS. [Ch. IV. 
 
 purpose of towing or propelling what is floating, is evidence 
 merely of want of capacity f6r public use. 1 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 
 necessary or convenient to do so, does not deprive the stream 
 of the public character which it may otherwise possess. 2 Sub- 
 ject to these rules the question whether a stream is a high- 
 way is a question of fact for the jury. 3 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. 4 Mill-owners whose dams interfere with the rea- 
 sonable use of floatable streams by the public are liable to 
 a private action by any citizen so injured. 5 They cannot by 
 prescription acquire a right which will defeat or destroy the 
 public right of floating logs. 6 
 
 § 109. Same — Same, — If the stream is not always navi- 
 gable 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 
 
 i Ibid. 9 ; Dwinel v. Veazie, 44 id. 167 ; 50 id. 
 
 2 Ibid. ; Holden v. Robinson Co., 65 479; Gerrish v. Brown, 51 id. 256; 
 Maine, 215. In Maine it is provided Veazie v. Dwinel, 50 id. 479. Upon 
 by statute that the banks of a stream the question what is a reasonable use 
 may be used for driving logs. R. S. of the stream, see Ibid. ; Davis v. 
 (1857) ch. 42, §tj 7, 8; R. S. (1871) ch. 42, Winslow, 51 Maine, 264; Lancey v. 
 §§ 7, 8. See Brown v. Chadbourne, Clifford, 54 id. 487; "Weise v. Smith, 
 31 Maine, 9; Treat v. Lord, 42 id. 552; 3 Oregon, 445; Se wall's Fall Bridge 
 Hooper v. Hobson, 57 id. 273. See v. Fisk, 23 N. H. 171 ; Carter v. Berlin 
 Smith v. Fonda, 64 Miss. 551; Good- Mills Co., 58 id. 52; Brown v. Kent- 
 will v. Bossier Police Jury, 38 La. Ann. field, 50 Cal. 129; Enos v. Hamilton, 
 752. 27 Wis. 256; 24 id. 658. See Merri- 
 
 3 Treat v. Lord, 42 Maine, 552; Bry- man v. Bowen, 33 Minn. 455. 
 
 ant v. Glidden, 36 id. 36; Jones v. 5 Ibid.; Parks v. Morse, 52 Maine, 
 
 Johnson, 6 Tex. Civ. App. 262 ; Haines 260. 
 
 v. Welch, 14 Oregon, 319. « Collins v. Howard, 65 N. H 190. 
 
 1 Brown v. Chadbourne, 31 Maine, 
 
§ 109.] PUBLIC KIGUT OF NAVIGATION. 205 
 
 it useful as a highway. 1 The mere possibility of occasional 
 use during brief or extraordinary freshets does not give it a 
 public character. 2 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. 3 
 It is not every small creek in which a fishing skiff or gun- 
 ning canoe can be made to float at high tide which is deemed 
 subject to public use ; but in order to have a public character, 
 it must be navigable for some purpose useful to business or 
 pleasure. 4 The only decisions tending to limit the above right 
 of floatage appear to be : first, that of Hubbard v. Bell, 5 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. 6 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. 7 Third, decisions in Ala- 
 bama in which the duration of previous enjoyment by the 
 
 1 Lewis v. Coffee County, 77 Ala. Lewis v. Coffee County, 77 Ala. 190; 
 190; Shaw v. Oswego Iron Co., 10 Bayzer v. McMillan Mill Co., 105 id. 
 Oregon, 371; Hines v. Hall, 17 id. 395; 5 Alb. L. J. 407. 
 
 165; Gaston v. Mace, 33 W. Va. 14; 3Com. v. Charlestown, 1 Pick. 180, 
 Gwaltney v. Scottish-Carolina T. Co., 186, and see next note ; Blood v. Na- 
 111 N. C. 547; 115 id. 579; Commis- shau R. Co., 2 Gray, 137. 
 sioners v. Catawba Lumber Co., 115 4 Ibid.; Com. v. Breed, 4 Pick. 460; 
 id. 590; 116 id. 731; 47 Am. St. Rep. Bowe v. Granite Bridge Co., 21 Pick. 
 ■839, 840, n.; "Walker v. Allen, 72 Ala. 344, 347; Charlestown v. County 
 456; Goodin v. Kentucky Lumber Com'rs, 3 Met. 202; Murdock v. Stick- 
 Co., 90 Ky. 625. ney, 8 Cush. 113, 115; West Roxbury 
 
 2 Munson v. Hungerford, 6 Barb. v. Stoddard, 7 Allen, 158, 171 ; Att. 
 265; Morgans King, 35 N. Y. 45; 18 Gen. v. Woods, 108 Mass. 436; The 
 Barb. 277; 30 Barb. 9; Curtis v. Montello, 20 Wall. 442, 443; Getty 
 Keesler, 14 Barb. 511; Olson v. Mer- v. Hudson River R. Co., 21 Barb, 
 rill, 42 Wis. 203; Thunder Bay River 617. 
 
 B. Co. v. Speechly, 31 Mich. 336; Mid- »54 I1L 110; 5 Am. Rep. 108, note, 
 
 dleton v. Flat River B. Co., 27 id. 533 ; 6 Ibid. p. 114. See Thunder Bay B. 
 
 Hubbard v. Bell, 54 111. 110; Cates v. Co. v. Speechly, 31 Mich. 336, 343. 
 
 Wadlington, 1 McCord (S. C), 580; 7 American River Water Co. v. 
 
 Allison v. Davidson (Tenn. Ch.), 39 S. Amsden, 6 Cal. 443; Caldwell v. Sao 
 
 W. Rep. 905; Brown v. Chadbourne, ramento County, 79 Cal, 350. 
 -31 Maine, 9; Treat v. Lord, 42 id. 552; 
 
206 THE LAW OF WATEK9. [Ch. IV. 
 
 public, as well as the extent to which the stream is floatable, 
 are considered material in determining 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 deter- 
 mined by a jury. 1 In Stump v. MclSTairy, 2 it was held that a 
 private unnavigable brook which flows into a public navigable 
 river, and is floatable in times of high water, becomes a public 
 thoroughfare by being publicly used without objection for 
 twenty years as an inlet for rafts. 
 
 § 110. Same — Navigation in — Relation to riparian 
 rights. — The rights of the public are not superior to private 
 rights, in streams which are merely floatable, to the same ex- 
 tent as in rivers which are capable of more extended naviga- 
 tion. In the latter the public right extends equally to all nav- 
 igable portions of the river, and in the former also the right to 
 drive logs is paramount to the right to obstruct the river by a 
 boom. 3 But a riparian owner has a right, without license, and 
 as appurtenant to the ownership of the bank, to construct, 
 across a floatable stream, a dam which does not obstruct or 
 interfere with the navigation of the stream for the purposes 
 for which it is navigable. 4 The right of floatage is not exclu- 
 sive of the use of the water for machinery, and the rights of 
 the public and those of the riparian owners are both to be en- 
 joyed with a proper regard to the existence and preservation 
 of the other. 5 If dams are so constructed as to limit the pub- 
 
 1 Ellis u Carey, 30 Ala. 725; Bhodes Nelson, 45 Mich. 578; Buchanans 
 
 v. Otis, 33 Ala. 578; Peters v. New Grand River Log Co., 48 Mich. 364; 
 
 Orleans R. Co., 56 Ala. 528; Alabama A. C. Conn. Co. v. Little Suamioo L. 
 
 v. Bell, 5 Porter, 379. Co., 55 Wis. 580: Anderson v. Munch, 
 
 2 5 Humph. 363; post, § 111. 29 Minn. 414; Bearrs v. Sherman, 56 
 
 'Sullivan v. Jernigan, 21 Fla, 264, Wis. 55; Newbold v. Mead, 57 Penn. 
 
 4 Kretzschmar v. Meehan, 74 Minn. St. 487; Enos v. Hamilton, 27 Wis. 
 211; Hallock v. Suitor (Oregon), 60 256; Bassett v. Carleton, 32 Maine, 
 Pac. Rep. 384. 553. See Barnes v. Heath, 58 N. H. 
 
 5 Pearson v. Rolfe, 76 Maine, 380, 196; State v. Gilmanton, 14 N. H. 467, 
 391; Erie v. Canfield, 27 Mich. 479; 479; Sewall's Fall Bridge v. Fisk, 23 
 Middleton v. Flat River B. Co., 27 N. H. 171; George v. Fisk, 32 N. H. 
 Mich. 533; Grand Rapids B. Co. v. 32, 43; Thompson v. Androscoggin 
 Jarvis, 30 Mich. 308; Thunder Bay River Co., 54 N. H. 545; 58 N. H. 108; 
 River B. Co. v. Speechly, 31 Mich. Lancey v. Clifford, 54 Maine, 487; 
 336; Att. Gen. u Evart B. Co., 34 Brown u Chadbourne, 31 id. 9; Knox 
 Mich. 462; White River Log Co. v. v. Chaloner, 42 id. 150, 157; Veazie 
 
§ no.] 
 
 PUBLIC EIGHT OF NAVIGATION". 
 
 20T 
 
 lie passage to a small portion of the stream, and sufficient pro- 
 vision is made for the passage of logs, the public cannot com- 
 plain, while those who exercise the right of floatage are liable 
 to the riparian owners for a negligent exercise of the common 
 right which causes them an injury, 1 including damages for break- 
 ing a mill-dam or the banks of the stream. 2 In streams which 
 are only floatable, the riparian owner is only bound not to ob- 
 struct its reasonable use for that purpose. 3 His obligation to- 
 supply reasonable facilities for the passage of logs does not ex- 
 tend to the passage of rafts of considerable size. 4 If he obstructs 
 the stream by making a new channel into which its waters are 
 turned, the public may use it for floating logs and rafts as they 
 
 v. Dwinel, 50 id. 479, 487; Davis v. 
 Winslow, 51 id. 289; 81 Am. Deo. 582, 
 note; Parks v. Morse, 52 Maine, 260; 
 Wood v. Hustis, 17 Wis. 416; Cobb 
 v. Smith, 16 Wis. 661; A. C. Conn 
 Co. v. Little Suamico Lumber Co., 
 74 Wis. 652; Huff v. Ky. Lumber Co. 
 (Ky.), 45 S. W. Rep. 84; Gliok v. 
 Weatherwax, 14 Wash. 560; Harold 
 v. Jones, 86 Ala. 274. In Harrington v. 
 Edwards, 17 Wis. 586, held that rafts- 
 men cannot establish a custom among 
 themselves which impairs the rights 
 of the riparian proprietors, 
 ilbid. 
 
 2 Silver v. Conn. River Lumber Co., 
 40 Fed. Rep. 192; Parker v. Hastings, 
 123 N. C. 671; Haines v. Hall, 17 Ore- 
 gon, 165. In certain States the pub- 
 lic right is regulated by statute. See 
 McLaughlin v. Hope Mills Manuf. Co., 
 103 N. C. 100; State v. Elk Island 
 BoomCo.,41W.Va.796; Carl v. West 
 Aberdeen Land Co., 13 Wash. 616. 
 
 3 Morgan v. King, 18 Barb. 277; 
 Monroe i\ Conn. River Lumber Co., 
 68 N. H. 89; Kretzschmar v. Meehan, 
 74 Minn. 211. The effect of §§ 7, 10, 
 of the U. S. Stat, of Sept. 19, 1890, ch. 
 907, 26 St. at Large, pp. 426, 454, is not 
 to prohibit temporary obstructions 
 like floating logs, and § 10 is not re- 
 troactive. United States v. Burns, 
 54 Fed. Rep. 351; Same v. Marthin- 
 son, 58 id. 765; Same v. Hall, 63 id. 472; 
 
 Same v. Bellingham Bay Boom Co.. 176 
 U. a 211; 81 id. 658; 72 id. 585; Leovy 
 v. United States, 92 id. 344 That 
 statute relates solely to navigable- 
 waters. Egan v. Hart, 165 U. S. 188,. 
 192. Sec. 7 of this act was amended 
 by the Act of 1892, ch. 158 (27 St. at 
 Large, pp. 88, 110). On § 10 see United 
 States v. Rio Grande Dam & Ir. Co. r 
 174 U. S. 690. Congress may em- 
 power the Secretary of War to ap- 
 prove the plan of a bridge across 
 navigable waters; this is not a dele- 
 gation of legislative power. Penn.. 
 R. Co. v. Baltimore, etc. R. Co., 37 
 Fed. Rep. 129; United States v. Breen, 
 40 id. 402; Same v. Keokuk & H. 
 Bridge Co., 45 id. 178; Same v. Rider, 
 50 id. 406; Same v. Pittsburgh R. Co., 
 26 id. 113; Same v. Moline, 82 id. 592 j 
 19 A. G. Op. 317; Same v. Rio Grande 
 Dam Co. (N. Mex.), 51 Pac. Rep. 674;. 
 Adams v. Ulmer, 91 Maine, 47: Jenks 
 v. Miller, 43 N. Y. S. 927; 40 id. 1088. 
 Such approval required from him by 
 the above Act of Sept 19, 1890, does 
 not restrict the power of the States 
 over public nuisances in waters 
 wholly within their respective lim- 
 its. Lake Shore Ry. Co. v. Ohio, 165 
 U. S. 365; 173 id. 285. See 22 A. G. 
 Op. (U. S.) 343. 
 
 4 Foster v. Searsport Spool Co., 79> 
 Maine, 508. 
 
208 THE LAW OF WATEKS. [Ch. I V . 
 
 had been accustomed to use the old channel, 1 the right of pas- 
 sage applying to the natural flow of the stream or its equiva- 
 lent; 2 and if the new channel becomes obstructed, thoy may 
 effect a suitable passage over the former channel, causing no 
 unnecessary damage thereby. 8 If a break in a dam is permitted 
 to remain without repair, and the water in the mill-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. 4 
 In Maine a stream which is only 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. 5 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 adfilurn aquce, subject to the public 
 right of passage. 6 A similar rule prevails in Tennessee. 7 
 
 §111. Same — Obstructions — Improvements. — 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, 8 the public may pass and 
 
 1 Dwinel v. Barnard, 28 Maine, 554. on appeal, in the absence of evidence 
 
 2 Pearson v. Eolf e, 76 Maine, 380. to the contrary, that it appeared to 
 
 3 Dwinel v. Veazie, 44 Maine, 167; the court below that the stream was 
 Eoush v. Walter, 10 Watts, 86. not navigable. Siman v. Rhodes, 24 
 
 4 Whistler v. Wilkinson, 22 Wis. Minn. 25. That " dam " and " dyke " 
 572. See Roby Lumber Co. v. Gray, are synonymous, see Com. v. Tolman, 
 73 Mich. 356, 363; Pratt v. Brown, 149 Mass. 229, 232. 
 
 106 Mich. 628. 6 Coovert v. O'Conner, 8 Watts, 477; 
 
 5 Veazie v. Dwinel, 50 Maine, 479, Barclay R Co. v. Ingham, 36 Penn. 
 483; Stetson v. Bangor, 60 id. 313. St. 194. 
 
 See, also, State v. Cullum, 2 Speers 7 Stuart v. Clark, 2 Swan, 9; Sigler 
 (S. C), 581; State v. Hickson, 5 Rich. v. State, 7 Baxter, 493. 
 (S. C.)447; Witt «. Jefooat, lOid. 389; »The Montello, 20 WalL 430; 11 
 Wood v. Hustis, 17 Wis. 416; Waller Wall. 411; The Daniel Ball, 10 Wall. 
 v. McConnell, 19 Wis. 417; Crosby v. 557; Spooneru McConnell, 1 McLean, 
 Smith, id. 449; Cobb v. Smith, 16 337,350; Jolly v. Terre Haute Bridge 
 Wis. 661. In proceedings under a Co., 6 McLean, 237; Brown v. Chad- 
 statute to obtain the right to dam an bourne, 31 Maine, 9, 23, 25; Treat «, 
 unnavigable stream, it is presumed, Lord, 42 id. 552; People v. Canal Ap- 
 
§ 111.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 209 
 
 repass in those parts of the river which are navigable. 1 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 diffi- 
 cult are afterwards removed by artificial means, such as locks, 
 canals and dams. 2 If the navigation of a river which was orig- 
 inally 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, 3 and when the riparian 
 owners alter the channel and divert the water for manufactur- 
 ing purposes, a bill in equity may be maintained by them or 
 the attorney-general to establish the boundary line between 
 the public and private rights. 4 But if, being originally un- 
 navigable, it is made navigable by the riparian proprietors, 
 the public right does not attach. 5 A log-owner who, under a 
 
 praisers, 33 N. Y. 461; Morgan v. 
 King, 25 N. Y. 459; Flanagan v. Phila- 
 delphia, 42 Penn. St. 219; Mononga- 
 hela Bridge Co. v. Kirk, 46 id. 112; 
 Cox v. Stat 3, 3 Bla6kf. 193; Hogg v. 
 Zanesville Canal Co., 5 .Ohio, 410; 
 Hickok v. Hine, 23 Ohio St. 527; 
 Rowe v. Granite Bridge Co., 23 Pick. 
 346; Att. Gen. v. Woods, 108 Mass. 
 436; Illinois River Packet Co. v. Pe- 
 oria Bridge Co., 38 111. 467; Harring- 
 ton v. Edwards, 17 Wis. 586. 
 
 • Ibid. ; St. Anthony Falls W. P. Co. 
 r. St. Paul Water Com'rs, 168 U. S. 
 349; Brown v. Chadbourne, 31 Maine, 
 9, 23, 25. An accidental or inten- 
 tional obstruction, which was not in 
 the stream in its natural condition, 
 does not take away its character as 
 a highway. Treat v. Lord, 42 Maine, 
 552; Brown v. Black, 43 id. 443. 
 
 2 Ibid.; The Montello, 20 Wall. 430; 
 Egan v. Hart, 165 U. S. 188. The 
 Canadian statute, 12 Vict. oh. 87, § 5, 
 includes the user, without compensa- 
 tion, of improved streams during 
 freshets. Caldwell v. McLaren, 9 
 App. Cas. 392, overruling Boale v. 
 Dickson, 13 U. C. P. 337. See 1 Canada 
 Rev. Stats. (1886), p. 156, art. 27. See 
 14 
 
 The Athabasta, 45 Fed. Rep. 651, 654. 
 As to compensation for dredging the 
 foreshore owned by a littoral pro- 
 prietor, see Blantyre v. Clyde Nav. 
 Trustees, 6 App. Cas. 273; or for mak- 
 ing waterway excavations, see Mis- 
 sissippi Valley Trust Co. v. Hofius, 20 
 Wash. 272. 
 
 3 The Montello, 20 WalL 430; Hol- 
 den v. Robinson Co., 65 Maine, 215; 
 Toothaker u Winslow, 61 id. 133; 
 Wadsworth v. Smith, 11 id. 278; Volk 
 v. Eldred, 23 Wis. 410; Cates v. Wad- 
 lington, 1 McCord (S. C), 580. So of 
 raising the waters of a navigable 
 lake. Pewaukee v. Savoy (Wis.), 79 
 N. W. Rep. 436. 
 
 4 Connecticut River Lumber Co. v. 
 Olcott Falls Co., 65 N. H. 290; 13 L. R. 
 A. 826, and note.' 
 
 5 Hale, De Jure Maris, ch. 3; Wads- 
 worth v. Smith, 11 Maine, 278 ; Cro. Car. 
 132; Cowper, 47; Ligare v. Chicago, 
 etc. R. Co., 166 111. 249; EastHoquiam 
 Boom Co. v. Neeson, 20 Wash. 142; 
 Holden v. Robinson Co., 65 Maine, 215; 
 Ten Eyck v. Warwick, 75 Hun, 562; De 
 Camp v. Thompson, 44 N. Y. S. 1014; 
 Nutter v. Gallagher, 19 Oregon, 375. 
 
210 
 
 THE LAW OF WATEBS. 
 
 [CH. IT. 
 
 charter from the legislature, removes obstructions from a float- 
 ing stream, thereby increasing its capacity to float logs, can- 
 not require a mill-owner below to increase the floating capacity 
 of the sluice-way in his dam, which was sufficient for the 
 passage of all logs in the natural condition of the stream. 1 The 
 legislature cannot, by means of dams or otherwise, make an 
 unnavigable stream public and navigable, or deprive the ripa- 
 rian owners of their right to use the water, without affording 
 them compensation; 2 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. 3 But such owners 
 cannot recover for merely consequential injuries, such as the 
 washing away of the banks of an improved stream. 4 They 
 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. 5 The mere user by the public of a 
 
 1 Stratton v. Currier, 81 Maine, 497; 
 Foster v. Block Co., 79 id. 508; Pear- 
 son v. Rolfe, 76 id. 380. 
 
 2 Ibid. ; Walker v. Board of Public 
 "Works, 16 Ohio, 540; Clay v. Pen- 
 noyer Creek Impr. Co., 34 Mich. 204; 
 Thunder Bay River B. Co. v. Speechly, 
 31 Mich. 336; Moore v. Veazie, 32 
 Maine, 343; 31 Maine, 360; 14 How. 
 568; State v. Cullum, 2 Speers (S. C), 
 581; Binney's Case, 2 Bland, 158; 
 State v. Pool, 74 N. C. 402, 407; Bar- 
 clay R Co. v. Ingham, 36 Penn. St. 
 194; Morgan v. King, 35 N. Y. 454; 
 18 Barb. 277; 30 Barb. 9; Cates v. 
 Wadlington, 1 McCord (S. C), 585; 
 Wilson v. Smith, 10 Wend. 324; Part- 
 ridge v. Eaton, 63 N. Y. 482; 3 Hun, 
 533; 5 S. C. 625; White Deer Creek 
 Co. v. Sassamen, 67 Penn. St. 415; 
 State v. Glen, 7 Jones, 321; Stofflet v. 
 Estes, 104 Mich. 208; Clarke v. Hall 
 Lumber Co., 41 Minn. 105. Legis- 
 lative enactments relating to navi- 
 gable streams extend to those after- 
 wards declared by the legislature to 
 be highways. Walker v. Board of 
 Public Works, 16 Ohio, 540; Brown 
 v. Com., 3 Serg. & R. 273; State v. 
 Cullum, 2 Speers (S. C), 581 ; People 
 
 v. Gutchess, 48 Barb. 656. A statute 
 which declares a stream to be a pub- 
 lic highway for the passage of boats 
 and rafts embraces logs not fastened 
 together. Deddrick v. Wood, 15 Penn. 
 St. 9. 
 
 ' Coovert v. O'Conner, 8 Watts, 447; 
 Monongahela Nav. Co. v. Coons, 6 W.. 
 & S. 101 ; Susquehanna Canal Co. v. 
 Wright, 9 W. & S. 9; Barclay R Co. 
 v. Ingham, 36 Penn. St. 194; People 
 v. Gutchess, 48 Barb. 656; Allen v~ 
 Weber, 80 Wis. 531; People v. Elk 
 River M & L. Co., 107 CaL 221. 
 
 4 Brooks v. Cedar Brook Imp. Co., 
 82 Maine, 17. 
 
 5 Yates v. Judd, 18 Wis. 118,128; 
 Arnold v. Elmore, 16 Wis. 509; Mar- 
 iner v. Schulte, 13 Wis. 692; People 
 v. Williams, 64 CaL 498. See Jeremy 
 v. Elwell, 5 Ohio Cir. Ct. 379. Mak- 
 ing a private road usable by the pub- 
 lic, subjectto tolls, is not a dedica- 
 tion of the road to the public as a 
 highway; and, apparently, a dedica- 
 tion subject to tolls can only be made 
 by authority of the Crown or Parlia- 
 ment. Austerberry v. Oldham, 29^ 
 Ch. D. 750. 
 
§ 112.] PUBLIC EIGHT OF NAVIGATION. 211 
 
 private stream for floating logs at irregular intervals, neither 
 interrupted nor acquiesced in, is not evidence of a dedication 
 to the public; 1 nor can such user by a small number of per- 
 sons give to the public a prescriptive right. 2 A 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 sus- 
 pended 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, with- 
 out being themselves at fault, suffer injury or loss thereby. 3 
 But this right of travel is not paramount to the right to cut 
 ice when roads and ferries are available to the traveler. 4 
 
 §112. Navigability — Judicial notice. — By the common- 
 law rule, a river is prima facie navigable only so 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. 5 
 But the courts take notice of general statutes, 6 and of those 
 characteristics of streams which are matters of general history 7 
 
 1 Curtis v. Keesler, 14 Barb. 511: and prevent the threatened injury; 
 ante, §§ 53, 55, 109; Munson v. Hun- and that all who asserted the com- 
 gerford, 6 Barb. 265; Shaw v. Craw- mon right could be joined as defend- 
 f ord, 10 Johns. 236 ; Clements v. West ants. As to improvements as between 
 Troy, 10 How. Pr. 199; post, §121; landlord and tenant, see Foss v. Cos- 
 Barker v. Deignan, 25 S. C. 252. griff, 19 N. Y. S. 941. 
 
 2 Ibid.; Meyer v. Phillips, 97 N. Y. 3 French v. Camp, 18 Maine, 433; 
 
 485. In this case a stream, five miles State v. Wilson, 42 id. 9. See Rox- 
 
 long, two of which were through the bury v. Stoddard, 7 Allen, 158. Trav- 
 
 plaintiff's lands, had been used for eling over the ice in a public river is, 
 
 thirty years for floating, saw-logs by like navigating it, the exercise of a 
 
 not more than twelve persons in all, public right, which cannot raise a 
 
 usually by not more than three or prescriptive right against an individ- 
 
 f our persons in any one year. Their ual. Ibid. ; Dinn v. Queen, 1 Haszard 
 
 user was only for about six days in & W. (Pr. Edw. Island), 361 ; Carvell 
 
 any one year, and in some years not v. Charlottetown, 2 id. 115, 123. 
 
 more than three. It was held that 4 Woodman v. Pitman, 79 Maine, 
 
 even if such a public right could be 456. 
 
 acquired by prescription, it was not 5 Rhodes v. Otis, 33 Ala. 578; Bow- 
 established by these facts; that, as man v. Wathen, 2 McLean, 376; 
 the defendants claimed a right in Adams v. Pease, 2 Conn. 483. 
 the public to use the stream, and 6 North Platte W. W. Co. v. North 
 threatened to exercise it whenever Platte, 50 Neb. 853; 56 id. 403. 
 they chose, the plaintiff was entitled 7 See Josh v. Marshall, 53 N. Y. S. 
 to equitable relief to quiet his title 419. 
 
212 THE LAW OF "WATERS. [Ch. IV. 
 
 or common knowledge, 1 as that the tide ebbs and flows in such 
 "well-known rivers as the Thames and Mersey. 2 In Indiana 
 judicial notice is taken of the course of the Ohio Kiver, 3 of the 
 position of the falls of the Ohio, 4 and of the navigability of 
 streams. 5 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. 6 
 And generally a stream is presumably navigable, when it is 
 subject to the commercial power of Congress and that power 
 has been exerted over it, 7 or when the river remains public prop- 
 erty and does not pass to the riparian proprietors. 8 So judicial 
 notice has been taken of the fact that no part of a river lies 
 within the corporate limits of a city; 9 that there are no tidal 
 streams in a particular county ; 10 and that the boundary between 
 the States of Illinois and Michigan is in the middle of Lake 
 Michigan. 11 If the character 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. 12 So the court 
 
 iBittle v. Stuart, 34 Ark. 224; Ry. Co. v. Baltimore Ry. Co., 37 Fed: 
 
 Thompson v. Androscoggin Co., 54 Rep. 129. 
 
 1ST. a 545,548; De Baker v. So. Cal. "Tewksbury v. Schulenberg, 41 
 
 iRy.Co., 106 Cal. 257; People v. Brooks, Wis. 584,593; Siegbert v. Stiles, 39 
 
 101 Mich. 98; New York & L. I. Wis. 533. See Hilliker v. Coleman, 
 
 Bridge Co. v. Smith, 35 N. Y. S. 920; 73 Mich. 170; Clark v. Cambridge 
 
 De Camp v. Thompson, 44 id. 1014; Impr. Co., 45 Neb. 798. 
 
 Lands v. A Cargo, 4 Fed. Rep. 478; 7 Pennsylvania v. Wheeling Bridge 
 
 Ex parte Davidson, 57 id. 883. Co., 13 How. 518, 556, 564; Hodgman 
 
 '-Whitney v. Gauche, 11 La. Ann. v. St. Paul Ry. Co., 23 Minn. 153, 160; 
 
 433; Mcintosh v. Gastenhofer, 2 Rob. Com. v. King, 150 Mass. 221; State v. 
 
 {La.) 403. Wabash Paper Co., 21 Ind. App. 167. 
 
 3 Hays v. State, 8 Ind. 425. 6 Wood v. Fowler, 26 Kansas, 682. 
 
 4 Cash v. Auditor, 7 Ind. 227. 9 Montgomery v. Montgomery 
 
 5 Neaderhouser v. State, 28 Ind. Plankroad Co., 31 Ala. 76. 
 
 257; Ross v. Faust, 54 Ind. 471 ; Moss- " Walker v. Allen, 72 Ala. 456. 
 
 man v. Forrest, 27 Ind. 233. So of ll Thorson v. Peterson, 9 Fed. Rep. 
 
 the county in which a public ditch 517. 
 
 is located and the lands which it "People v. Allen, 42 N. Y. 378, 381; 
 
 affects, if described by averment. New York Co. v. Brooklyn, 71 N. Y. 
 
 Smith v. Clifford, 99Jnd. 113. So of 580; Leighy v. Ashland Lumbering 
 
 State and Federal reports and cor- Co., 49 Wis. 165; Geise v. Green, id. 
 
 respondence as to swamp land titles. 334; Oelrich v. Gilman, 31 Wis. 495; 
 
 Kirby v. Lewis, 39 Fed. Rep. 66. So •SimanuRhoades,34Minn. 25; Waller 
 
 of an act of Congress authorizing a v. McConnell, 19 Wis. 417. See Conde 
 
 bridge over navigable waters. Penn. v. Schenectady, 51 N. Y. S. 854 The 
 
§ US-] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 213 
 
 cannot take judicial notice that a vessel lying " near the mouth 
 of " a certain harbor is in the county adjoining, 1 or that certain 
 land lying under a navigable lake is not subject to location. 2 
 If streams flowing through territory which was under the land 
 system of the United States are not meandered, the presump- 
 tion is that they are not navigable. 3 
 
 § 113. Wharves — Repairs. — 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 in- 
 juries which they, being in the exercise of due care, sustain by 
 reason of his negligence. 4 His duty is the same as that which 
 is imposed upon the keeper of an inn or store to keep the ac- 
 cess to his premises, and the passages, rooms, and floors therein, 
 safe for those who enter under the express or implied invita- 
 tion of the owner. 3 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 
 
 courts take judicial notice of early 
 Mexican laws, upon which title to 
 lands in California depended. Boul- 
 din v. Phelps, 30 Fed. Rep. 547. 
 
 •Des Brisay v. Com'rs, 1 Hannay 
 (N. B.), 48. 
 ' 2 Wilcox v. Jackson, 109 111. 261. 
 
 3 Clute v. Briggs, 22 Wis. 607; Jones 
 v. Pettibone, 22 Wis. 308; Hubbard v. 
 Bell, 54 111. 110. 
 
 4 Wendell v. Baxter, 12 Gray, 494; 
 Carleton v, Franconia Iron & Steel 
 Co., 99 Mass. 216; Nickerson v. Tirrell, 
 127 Mass. 236; Macaulay v. New York, 
 67 N. Y. 602; Swords v. Edgar, 59 N. 
 Y. 28; Buckbee v. Brown, 21 Wend. 
 110; Moody v. New York, 43 Barb. 
 282; 34 How. Pr. 288; Carroll v. New 
 York, 51 N. Y. S. 620; Newell v. Bart- 
 lett, 114 N. Y. 399; Thomas v. Henges, 
 131 N. Y. 453; Delaney v. Penn. R 
 Co., 78 Hun, 393; Railroad Co. v. 
 Hanning, 15 WalL 649; Hall v. Til- 
 son, 81 Maine, 362; De Gruy v. Aiken, 
 43 La. Ann. 798. 
 
 5 Chapman v. Rothwell, EL Bk. & 
 
 EL 168; Corby u Hill, 4 C. B. n. s. 
 556; Collis v. Selden, L. R. 3 C. P. 
 495 ; Smith v. London Dock Co., L. R. 
 3 C. P. 326; Plant Inv. Co. v. Cook, 
 74 Fed. Rep. 503; Smith v. Burnett, 
 173 U. S. 430; Sweeney v. Old Colony 
 R Co., 10 Allen, 368; Elliott v. Pray, 
 id. 378; Knight v. Portland Ry. Co., 
 56 Maine, 234; Ackhert v. Lansing, 
 59 N. Y. 646; Swords v. Edgar, id. 28; 
 Cusick v. Adams, 115 N. Y. 55; Trim 
 v. Vallejo St. Wharf Co., 7 Cal. 253; 
 Fennimore v. New Orleans, 20 La. 
 Ann. 124; Philadelphia R. Co. v. 
 Irwin, 89 Penn. St. 71; Buckingham 
 v. Fisher, 70 111. 121 ; Grand Tower 
 Co. v. Hawkins, 72 111. 386; Freer % 
 Cameron, 4 Rich. (S. C.) 228; Maen- 
 ner v. Carroll, 46 Md. 193; Barrett v. 
 Black, 56 Maine, 498; Pittsburg v. 
 Grier, 22 Penn. St. 54; Campbell v. 
 Portland Sugar Co., 62 Maine, 552; 
 Wendell v. Baxter, 12 Gray, 494; 
 Cahill v. Layton, 57 Wis. 600; Minne- 
 apolis Mill Co. v. Wheeler, 31 Minn. 
 121 ; Stewart v. Newport News, etc 
 
214 
 
 THE LAW OF WATEKS. 
 
 [OH. IT. 
 
 the utmost care. 1 He is not liable for latent defects, 2 or for 
 those which are caused fay inevitable accident, such as the ex- 
 ceptional violence of the sea, 3 for the acts of adjoining owners, 4 
 or for an improper use of an unrepaired wharf, such as driving 
 a large number of cattle upon it. 5 But in these cases he can- 
 not escape liability if he does not make such examination and 
 inspection as the construction, uses and exposure of the wharf 
 reasonably require; 8 he is bound to use due care, and actual 
 knowledge on his part of the need of repair is not material. 7 
 If he has knowledge of a defect which is not apparent to all, 8 
 it is his duty, even before there is opportunity to repair, to 
 close the wharf or to give proper notice of the danger. 9 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 construction and repair. 10 The obligation rests upon 
 the owner, not only in favor of those who compensate him for 
 
 Co., 86 Va. 988; Heissenbuttel v. New 
 York, 30 Fed. Rep. 456; Baltimore 
 lurnpike Co. v. Cassell, 66 Md. 419. 
 
 'Ibid. 
 
 2 Ibid.; State v. Boyoe, 72 Md. 146. 
 
 3 Wendell v. Baxter, 12 Gray, 494; 
 Garrison v. New York, 5 Bosw. (N. 
 Y.) 497; Wallace v. New York, 2 
 Hilt. 440; 18 How. Pr. 169. 
 
 * Hustede v. Atlantic Ref. Co., 68 
 Fed. Rep. 669; 74 id. 876. 
 
 5 McDougall v. McDonald, 3 Russell 
 & Ch. n. s. 219. That suit may be 
 brought in contract as well as tort 
 when a wharf breaks down and goods 
 there landed are injured, see Chap- 
 man v. State, 104 Cal. 690. Contracts 
 and leases relating to wharves are 
 not maritime. Upper S. Co. v. Blake, 
 2 App. B. C. 51. 
 
 « Ibid. In Hill Manuf. Co. v. Prov- 
 idence S. 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 elsewhere was 
 rightly excluded. 
 
 7 Lindsey v. Leighton, 150 Mass. 
 285; Albert v. State, 66 Md. 325; Plant 
 Inv. Co. v. Cook, 74 Fed. Rep. 503. 
 
 6 See Southcote v. Stanley, 1 EL & 
 N. 247;, Holmes v. North Eastern 
 Ry. Co., L. R 4 Ex. 254; 6 id. 123. It 
 is contributory negligence to use a 
 dock, or to drive upon a pier, know- 
 ing that it is out of repair. Clancy 
 v. Byre, 58 Barb. 449; 56 N. Y. 129; 
 Durkin v. Troy, 61 Barb. 437; Wash- 
 ington v. Staten Island, etc. R. Co., 
 68 Hun, 87; Downes v. Elmira Bridge 
 Co., 58 N. Y. S. 638. 
 
 9 Gibbs v. Liverpool Docks, 3 H & 
 N. 164, 176; s. c. nom. Mersey Docks 
 v. Gibbs, 11 H. L. Cas. 687; L. R. 1 
 H. L. 93; Mersey Docks v. Penhallow, 
 7 H. & N. 329; Sanitary Com'rs v. 
 Orfila, 15 A. C. 400; Indemaur v. 
 Dames, L. R 2 C. P. 311; 1 id. 274; 
 Smith v. London Docks Co., LE3 
 C. P. 326; Thompson v. North East- 
 ern Ry. Co., 2 B. & S. 10.6; Parnaby 
 v. Lancaster Canal Co., 11 Ad. & EL 
 223; 3 N. & P. 523; 3 P. & D. 162 
 Lyme Regis v. Henley, 3 B. & Ad. 92 
 Railroad Co. v. Hanning, 15 Wall. 649 
 Pittsburgh v. Grier, 22 Penn. St. 54 
 Allegheny City v. Campbell, 107 id. 
 530. 
 
 io Ibid. 
 
§ H3.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 215 
 
 Its use, or of those who contract with him therefor, but of all 
 persons who enter rightfully upon the premises for the purpose 
 of lawful business. 1 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 cus- 
 toms officer whose duty is to prevent smuggling ; 2 the agents 
 of the post-office ; ' an officer coming for the purpose of making 
 a lawful arrest; 4 _the vendors of goods to those upon a vessel 
 lying at the dock ; 5 hackmen who are awaiting passengers ; 6 
 friends aiding or attending an embarking passenger ; 7 and those 
 who come to make inquiries. 8 The occupant is primarily charge- 
 able with the duty to repair, and is liable by reason of his oc- 
 cupancy, without proof of title. 9 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 may have 
 covenanted to repair. 1 ' But the lessor is not liable when the 
 
 1 Southcote v. Stanley, 1 H. & N. 
 :247; White v. France, 2 C. P. D. 308; 
 Holmes v. North Eastern Ey. Co., 38 
 L. J. Ex. 161; Baloh v. Smith, 7 H. <fc 
 N. 741 ; Collett v. London & N. W. Ey. 
 Co., 16 Q. B. 984; Indemaur v. Dames, 
 L. R 2 C. P. 311; 1 id. 274; Wendell 
 <y. Baxter, 12 Gray, 494; Davis v. Cen- 
 tral Cong'l Society, 129 Mass. 367, 371 ; 
 Gilbert v. Nagle, 118 Mass. 278; Sev- 
 ery v. Nickerson, 120 Mass. 306; 
 Sweeny v. Old Colony R Co., 10 
 Allen, 368; Elliott v. Pray, 10 Allen, 
 -378; Zoebisch v. Tarbell, 10 Allen, 
 -385; Baker v. Byrne, 58 Barb. 438; 
 Campbell v. Portland Sugar Co., 62 
 Maine, 552. 
 
 2 Low v. Grand Trunk Ey. Co., 72 
 Maine, 313. 
 
 3 Collett v. London & N. W. Ey. Co., 
 16 Q. R 984; Wendell v. Baxter, 12 
 Gray, 494. 
 
 4 Learoyd v. Godfrey, 138 Mass. 315. 
 
 5 Smith v. London & St. Catherine 
 Docks Co., L. R 3 C. P. 326. 
 
 6 Tobin v. Portland R Co., 59 Maine, 
 183. 
 
 7 Texas & Pac. Ey. Co. v. Best, 66 
 Texas, 116; Hamilton v. Texas & Pac. 
 Ey. Co., 64 id. 251. 
 
 8 Stratton v. Staples, 59 Maine, 95. 
 
 9 Cannavan v. Conklin, 1 Daly, 509; 
 1 Abb. Pr. n. s. 271; Gluck v. Eidge- 
 wood Ice Co., 9 N. Y. S. 254. See 
 Yonkers v. Palisade Ferry Co., 58 N. 
 Y. S. 173. Power to improve a navi- 
 gation does not necessarily show a 
 larger title than an easement. Man- 
 chester, S. & L. Ey. v. Doncaster 
 Union, 69 L T. 350; Halkyn D. M. D. 
 Co. v. Holywell Union, id. 112, 705. 
 As to the duty to repair, when the 
 injury is not done by the works, 
 see Clyde Nav. Trustees v. Blantyre, 
 [1893] A C. 703. The duty to repair 
 often exists for misfeasance where it 
 does not exist for mere non-feasance. 
 See e. g., Cowley v. Newmarket Local 
 Board, [1892] AC. 345; Pictou Munici- 
 pality v. Geldert, [1893] A. C. 524. 
 
 "Swords v. 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; Thomp- 
 son v. Mayor, 11 N. Y. 115; Heaney 
 v. Heeney, 2 Denio, 625; Irvine v. 
 Wood, 51 N. Y. 224; 4 Rob. 138; 5 
 Eob. 482; Moody v. New York, 43 
 Barb. 282; 34 How. Pr. 288; Leary 
 v. Woodruff, 4 Hun, 99; Bogart v. 
 
216 
 
 THE LAW OF WATERS. 
 
 [Ch. it. 
 
 premises become defective after they have passed from his con- 
 trol, 1 or in consequence of obstructions placed there by third 
 persons, of which he has no notice, express or implied, 2 or when,, 
 having himself created no nuisance, he is not guilty of wilful 
 wrong, fraud or culpable negligence. 3 Where premises may 
 cause injury to the public from want of repair, the owner's re- 
 sponsibility to keep them in proper condition is not lessened 
 by the employment of a competent person to repair them, if 
 they are not repaired, and injury is caused in consequence. 4 
 
 § 114. Same — Same — Docks. — These rules apply also to 
 the fastening for vessels to a wharf, 5 or when the owner or 
 occupant of a wharf, dock, or canal 6 expressly or impliedly in- 
 
 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; 
 Ahem v. Steele, 48 Hun, 517; Moore 
 v. Oceanic Steam Nav. Co., 24 Fed. 
 Rep. 237; Cleary u.Same, 40 id. 908; 
 Joyce v. Martin, 15 R. L 588; Shindel- 
 beck v. Moon, 32 Ohio St. 264, 273. 
 See Nash v. Minneapolis Mill Co., 24 
 Minn. 501; House v. Metcalf, 27 
 Conn. 640; O wings v. Jones, 9 Md. 
 108; Leonard v. Storer, 115 Mass. 86; 
 Pretty v. Bickmore, L. R. 8 C. R 401; 
 Gwinnell v. Earner, L. R. 10 C. P. 
 658; Rose well v. Prior, 12 Mod. 635; 
 2 Salk. 459; Rex v. Pedly, 1 .Aid. & 
 El. 822; Todd v. Flight, 9 C. B. N. s. 
 377; White v. Phillips, 15 id. 245; 33 
 L. J. C. P. 33; Onderdonk v. Smith, 
 21 Fed. Rep. 588; O'Rourke v. Peck, 
 29 id. 223; 40 id. 907; 24 Blatch. 473; 
 Leonard v. Decker, 22 Fed. Rep. 741 ; 
 Penn. R Co. u Atha, id. 920. If the 
 lessee of a wharf covenants to make 
 any repairs required by the proper 
 municipal 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 un- 
 loading is consistent with title in 
 another. Kipp v. Den, 24 N. J. L. 
 854. A covenant, beneficial to the- 
 covenantee, as to the use of a dock 
 between wharves, is enforceable in 
 equity by his grantee against the 
 covenantor's lessor with notice. Com- 
 mercial Wharf Co. v. Winsor, 146 
 Mass. 559. 
 
 1 Ibid.;. Clancy v. Byre, 56 N. Y. 
 129; 58 Barb. 449; Albany v. Cunliff,. 
 2 Const. 165; Walsh v. Mead, 8 Hun, 
 387; Radway v. Briggs, 37 N. Y. 256; 
 35 How. Pr. 422; Cannavan v. Conk- 
 lin, 1 Daly, 509; Owings v. Jones, 9 
 Md. 108; Carrollton F. M. Co. v. Car- 
 rollton (Ky.), 47 S. W. Rep. 439. 885- 
 
 2 Seaman v. New York, 3 Daly,. 
 147; Griffin v. Mayor, 9 N. Y. 456; 
 Barton v. Syracuse, 36 N. Y. 54; Tarry 
 v. Ashton, 1 Q. B. D. 314. 
 
 3 Edwards v. New York R Co., 98 
 N. Y. 245; Girard Point Storage Co. 
 v. Roy, 93 Fed. Rep. 574. 
 
 4 Ibid. See Behan v. New York, 24 
 Fed. Rep. 239. 
 
 6 Pittsburgh & C. Dock Co. v. De- 
 troit Transp. Co. (Mich.), 81 N. W. 
 Rep. 269. 
 
 6 Panama R Co. v. Napier S. Co.,. 
 166 U. S. 280; Smith v. Burnett, 17» 
 
§ 114.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 21T 
 
 vites vessels to enter. In Carleton v. Franconia Iron & Steel 
 Co., 1 it appeared that the defendants procured the plaintiffs to 
 bring their vessel to the defendants' wharf for the purpose of 
 discharging a cargo of iron, and that, while lying at the wharf,. 
 
 id. 430; The Annie R. Lewis, 50 Fed. 
 Rep. 556; O'Rourke v. New York, etc. 
 Co., 55 id. 81 ; Union Ice Co. v. Crow- 
 ell, id. 87; Peterson v. Great Neck 
 Dock Co., 75 id. 683: The Francisco 
 R v. The Waterloo, 79 id. 113; Hart 
 v. Delaware, etc. Ry. Co., 22 N. Y. S. 
 3; Smith v. Burnett, 10 App. D. C. 
 469; 173 U. S. 430. An injury thus 
 caused to a vessel is within the ad- 
 miralty jurisdiction. Ball v. Tren- 
 holm, 45 Fed. Rep. 588. And the 
 damages may be divided when the 
 fault is in part that of the vessel. 
 Sullivan v. Lake Superior El. Co., 56 
 Fed. Rep. 735. As to contributory 
 negligence, at common law, in these 
 cases, see end of this section; also 
 tracey v. Baltimore & O. R. Co., 98 
 Fed. Rep. 633; Merritt & Chapman 
 Derrick & W. Co. v. Schei'merhorn, 
 id. 746. The immediate approaches 
 of a dock must be kept safe. Mc- 
 Caldin v. Parke, 142 N. Y. 564; 66 
 Hun, 323; The Dave & Mose, 49 Fed. 
 Rep. 389; Elting v. East Chester, 50 
 id. 112. These rules do not neces- 
 sarily apply to the approaches to, 
 and the channel under, a draw- 
 bridge. Vessel Owners' Towing Co. 
 v. Wilson, 63 Fed. Rep. 626; Pensa- 
 cola, eta R. Co. v. Hyer, 32 Fla. 539; 
 Darrall v. Southern Pac. Co., 47 La. 
 Ann. 1455. The public navigable 
 character of an artificial dock or slip 
 is a question of fact. Ligare v. Chi- 
 cago, etc. R. Co., 166 111. 249, 258. 
 
 !99 Mass. 216; citing Sweeney v. 
 Old Colony R Co., 10 Allen, 368; 
 Allen v. Pray, id. 378; Wendell v. 
 Baxter, 12 Gray, 494; Parnaby v. Lan- 
 caster Canal Co., 11 Ad. & El. 223; 3 
 N. & P. 523; 3 P. & D. 162; Gibbs v. 
 Liverpool Docks, 3 H. & N. 164; s. c. 
 nom. Mersey Docks v. Gibbs, 11 H. L 
 
 Cas. 687, and L. R.'l H. L. 93; Inde- 
 maur v. Dames, L. R. 1 C. P. 274; % 
 id. 311 ; Thompson v. North Eastern 
 Ry. Co., 2 B. & S. 106. See, also, Curl- 
 ing v. Wood, 16 M. & W. 628; White 
 v. Phillips, 15 C. B. n. s. 245; Smith 
 v. London Docks Co., L. R. 3 C. P. 326; 
 The Apollo, [1891] A. C. 499, 61 L T. 
 286; 60 id. 112; The Calliope, id. 359; 14 
 P. D. 138; [1891] A. C. 11; The Moor- 
 cock, 14 P. D. 64; 13 id. 157; Wright v. 
 Lethbridge, 63 L. T. 572; The County 
 of Durham, [1891] P. 1; The Robin, 
 [1892] P. 95; The Zeta, id. 285; [1891] 
 P. 216; The Burlington, 72 L T. 890; 
 Panama R. Co. v. Napier S. Co., 166 
 U. S. 280; 50 Fed. Rep. 557; The Wat- 
 erloo, 79 id. 113; Barrett v. Black, 56 
 Maine, 498; Oliver v. Worcester, 102 
 Mass. 489; Sawyer v. Oakman, 7 
 Blatch. 290; 1 Lowell, 134; The John 
 A. Berkman (Mass. Dist. Ct.), 6 Fed. 
 Rep. 535; Smith v. Havemeyer. 36 id. 
 927; 32 id. 844; Manhattan Trans. 
 Co. v. Mayor, 37 id. 160; The Calvin 
 P. Harris, 33 id. 295; Onderdonk v. 
 Smith, 23 Blatch. 562; Barber v. 
 Abendroth, 102 N. Y. 406; Nelson v. 
 Phoenix Chemical Works, 7 Ben. 37; 
 MaSon v. Rhinelander, 8 Ben. 163; 
 Philadelphia R. Co. v. Philadelphia 
 S. Co., 23 How. 209; Smith v. Comp- 
 troller, 18 Wend. 659; Seaman v. New 
 York, 80 N. Y. 239; Exchange Fire 
 Ins. Co. v. Delaware Canal Co., 10 
 Bosw. 180; Weitner v. Delaware 
 Canal Co., 4 Rob. 234; Johnson v. 
 Belden, 47 N. Y. 130; 2 Lans. 433; 
 Vroman v. Rogers, 5 N. Y. S. 426; 132 
 N. Y. 167; Pittsburgh v. Grier, 22 
 Penn. St. 54; Borden Mining Co. v. 
 Barry, 17 Md. 419. As to collision in 
 a dock, see The Hornet, [1892] P. 361. 
 The master of a canal boat, who at- 
 tempts to pass a lock, and knows. 
 
218 THE LAW OF WATEES. [Ch. IT. 
 
 the vessel settled with the ebb of the tide and was injured by 
 a rock, of the existence and position of which the defendants 
 had long known, but of wnich the plaintiffs and their em- 
 ployees had no notice. It did not appear that the defendants 
 owned the soil of the dock in which the rock was imbedded, 
 but they had excavated the dock for the purpose of accommo- 
 dating vessels bringing cargoes to the wharf. The court said : ' 
 " It is immaterial in this case whether the danger has been 
 created or increased by the excavation made by the defend- 
 ants, or had always existed, if they, knowing of its existence, 
 neglected to remove it or to warn those transacting 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 created by them or 
 by 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 negli- 
 gence 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." 3 So, in order that a draw- 
 bridge ■ may be safe for vessels, reasonable diligence must be 
 used to prevent accumulations of drift-stuff there. 3 If a vessel 
 
 that the gates are out of repair, is alleged by the defendant, thus states 
 
 not, because of such knowledge, the rule applicable to this class of 
 
 guilty of contributory negligence, cases: " The owner or occupant of a 
 
 Johnson v. Belden, supra. See Mich- dock is liable in damages to a person 
 
 aud v. Grace Harbor Lumber Co. who, by his invitation express or im- 
 
 (Mich.), 81 N. W. Eep. 93. plied, makes use of it, for an injury 
 
 1 99 Mass. 219. caused by any defect or unsafe con- 
 
 2 In Nickerson v. Tirrell, 127 Mass. dition of the dock which the occu- 
 
 236, the evidence was conflicting as pant negligently causes or permits to 
 
 to the condition of the dock, in which exist, if such person was himself in 
 
 other vessels, both larger and smaller the exercise of due care. Such occu- 
 
 than the plaintiffs', had safely dis- pant is not an insurer of the safety 
 
 charged, and as to the cause of injury of his dock, but he is required to use 
 
 to the plaintiffs' vessel, the bottom reasonable care to keep his dock in 
 
 of which was broader than many such a state as to be reasonably safe 
 
 vessels of its size and class. The case for use by vessels which he invites 
 
 was submitted to the jury upon the to enter it, or for which he holds it 
 
 issue whether the injury was attrib- out as fit and ready." 
 utable to want of care on the part of 3 St. Louis Ry. v. Meese, 44 Ark. 
 
 the defendant or of the master of the 414. See Wilson v. Chicago, 42 Fed. 
 
 vessel. Morton, J., in delivering the Rep. 506. 
 opinion of the court, upon exceptions 
 
§ 114.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 219 
 
 is voluntarily placed by her officers partly at the wharf of the 
 consignee, who is not informed of her presence there, and partly 
 upon the adjoining flats of a third person, who has not improved 
 such .flats, and neither information as to the condition of the 
 berth or request for a berth js made, the consignee is not re- 
 sponsible for failing to inform the master of a change in the 
 condition of the bottom in that neighborhood since the vessel 
 previously laid at the wharf. 1 In general, the dock-owner im- 
 pliedly warrants against hidden obstructions. 2 In Byrne v. 
 Chicago 3 it was held reasonable to require the owners of a 
 canal to draw off the water periodically for the purpose of in- 
 specting the bed, and such owners were held not liable for in- 
 juries 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 neg- 
 ligently permitting obstructions to continue, and such cause 
 of action is assignable. 1 A canal corporation is not liable in a 
 
 i The Niantic, 6 Fed. Eep. 632 (q. v. 
 p. 635) (as to keeping safe the access 
 to wharf). 
 
 2 The Stroma, 50 Fed. Rep. 557; 43 
 id. 922; Crossan v. Wood, 44 id. 94; 
 Pennsylvania R. Co. v. Atha, 22 id. 
 920; Phillips v. Sohlesinger, 137 Mass. 
 338. 
 
 3 80 111. 195; Lancaster Canal Co. 
 v. Parnaby, 11 Ad. & El. 233; Penn- 
 sylvania Canal Co. v. Burd, 90 Penn. 
 St. 281 ; Exchange Fire Ins. Co. v. 
 Delaware Canal Co., 10 Bos worth, 
 180; Townsendu Susquehanna Turn- 
 pike Co., 6 Johns. 90; Wilson v. Same, 
 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 Pennsylvania Canal Co. v. 
 Burd, in which a canal boat was in- 
 jured by a sunken log, Sterrett, J., 
 said: " An injury resulting from an 
 unknown obstruction, which could 
 not be guarded against, without the 
 exercise of extraordinary or unrea- 
 sonable 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 unreason- 
 able to require a canal company to 
 soundand drag thewhole length of its 
 canal continually, to ascertain what 
 obstructions might lie at the bottom, 
 or to keep guards along the banks, to 
 prevent the commission of injuries 
 by careless or designing persons. But 
 it is bound, annually at least, when 
 the water is out of the canal, to in- 
 spect the bed and remove obstruc- 
 tions." When a canal company re- 
 ceiving tolls induces a boat to enter 
 the canal, a promise is implied to let 
 it through in a reasonable time. 
 Muir v. Louisville Canal Co., 8 Dana, 
 161. See Hagan v. Brockie, 11 Fed. 
 Rep. (Pa.) 745 (case of a dock newly 
 dredged). Actions for injury to a 
 barge in a defective dock (Dempsey 
 v. Delaware Co., 12 Phila. 314), or 
 caused by the overflow of a canal 
 (Moyer v. Chesapeake Canal Co., id. 
 400), are local in Pennsylvania. 
 4 Fulton Fire Ins. Co. v. Baldwin, 
 
220 
 
 THE LAW OF WATERS. 
 
 [CH. IV. 
 
 private action for failure to construct its canal according to its 
 charter, except upon the ground of special peculiar damage ; l 
 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 or boat which is thereby grounded or in- 
 jured. 2 Common carriers by water are liable for the negli- 
 gence of third persons in leaving hidden artificial obstructions 
 in the way, such negligence not being an act of God. 3 But a 
 tug or steamboat, in rendering towage service, is not a com- 
 mon carrier; and is liable only for her own negligence in ap- 
 proaching a place of landing not known to be dangerous. 4 
 
 §115. Improving navigation — Public bodies — Tolls. — 
 
 The owner of land adjoining a navigable stream is not bound 
 to cleanse the river, unless he has some special benefit from 
 it, as a toll, fishing or other profit. 5 But when corporations 
 and public trustees are empowered to improve the navigation 
 
 37 N. Y. 648; Robinson v. 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 as- 
 signable. Wadsworth v. Smith, 11 
 Maine, 278. By a written agreement, 
 the defendants were to repair and 
 occupy the plaintiff's canal, to collect 
 and account for the tolls on all mer- 
 chandise, including their own, and, 
 " after deducting all costs, expenses, 
 and charges for repairing and run- 
 ning 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 re- 
 ceipts, after deducting the expendi- 
 tures in making said repairs." The 
 defendants were held entitled to re- 
 tain from the tolls received suitable 
 compensation for their supervision of 
 the canal and its repair, though not 
 expressly stipulated in the contract. 
 Dyer v. Fitch, 63 Maine, 170. The de- 
 fendant, when sued for dockage 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. Injury from a sewer 
 to a wharf lot, which is bulk-headed, 
 or occupied by a wharf, can be shown 
 upon an estimate of its value when 
 so occupied. Harris v. Philadelphia, 
 155 Penn. St. 76; 16 AtL Rep. 740. 
 
 1 Quincy Canal v. Newcomb, 7 Met. 
 276, 284 
 
 2 Riddle v. Locks & Canals, 7 Mass. 
 169; Pajewski v. Carondelet Canal 
 Co., 11 Fed. Rep. 313; Christian v. 
 Van Tassel, 12 id. 884. 
 
 3 Trent Nav. Co. v. Wood, 3 Esp. 
 131; Oakley v. Packet Co.. 11 Exch. 
 618; New Brunswick S. Co. v. Tiers, 
 4 Zab. 697. 
 
 4 The Angelina Corning, 1 Ben. 
 109; The America, 6 Ben. 122; Powell 
 v. Steam-Tug Willie, 2 Fed. Rep. 95; 
 The James Jackson, 9 id. 614 (see 
 cases cited); The Fannie Tuthill, 12 
 id. 446; The D. Newcomb, 16 id. 274; 
 Molenbrock v. St. Louis Packet Co., 
 id. 878; The Webb, 14 Wall. 406; The 
 Fox, 4 Woods, 199. 
 
 5 Repair of Bridges, 13 Co. 33. 
 
"§ 11&-] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 221 
 
 of streams, or to construct canals, docks, wharves, water- works, 
 or bridges, they may be liable, independently of statute, for a 
 neglect of duty which causes injury to individuals from whom 
 toll is demandable. 1 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 payment of the indebtedness incurred in their con- 
 struction; and it was held by the House of Lords that the 
 trustees were liable to the owner of a vessel, which was in- 
 jured in entering one of the docks, by striking upon a bank of 
 mud which their servants and agents had negligently permit- 
 ted to accumulate at the entrance. 2 So authority to take tolls 
 
 1 Harrisons. Great Northern R. Co., 
 3 H. & C. 231; Manley v. St. Helen's 
 Canal Co., 2 id. 840; Parnaby v. Lan- 
 caster Canal Co., 11 Ad. & EL 223; 
 John v. Bacon, L. R. 5 C. P. 437; Bay- 
 ley v. Wolverhampton Water Works 
 Co., 6E&N. 241; Smith v. London 
 Docks Co., L. R. 3 C. P. 326; Dunn v. 
 Birmingham Canal Co., L. R. 8 Q. B. 
 43; Rex v. Kent, 13 East, 220; The 
 Ratata. [1897] P. 118; The Dave & 
 Mose, 49 Fed. Rep. 389; Elting-u. East 
 Chester, 50 id. 112; Newark Plank 
 Road Co. v. Elmer, 1 Stock. 775: 4 
 Hal. Ch. 586; Gifford v. New Jersey 
 R. Co., 2 id. 177; Att. Gen. v. New 
 Jersey R. Co., 2 Green Ch. 136; Allen 
 v. Monmouth Co., 2 Beas. 68; Pitts- 
 burgh v. Grier, 22 Penn. St. 54; Pres- 
 «ott v. Duquesne, 48 id. 118; Pennsyl- 
 vania R. Co. v. Patterson, 73 id. 491 ; 
 Pennsylvania Canal Co. v. Graham, 
 63 id. 290; Hill v. Boston, 122 Mass. 
 344; Yale v. Hampden Turnpike Co., 
 18 Pick. 357; Heacock v. Sherman, 14 
 Wend. 58; Albany v. Cunliff, 2 N. Y. 
 165; Radway v. Briggs, 37 N. Y. 256; 
 Stack v. Bangs, 6 Lans. 262; Humph- 
 reys v. Armstrong, 56 Penn. St. 204, 
 209; Steele v. Western Navigation 
 .Co., 2 Johns. 283; Schuylkill Nav. Co. 
 
 v. McDonough, 33 Penn. St. 73 ; Frank- 
 fort Bridge Co. v. Williams, 9 Dana, 
 403; Adsit v. Brady, 4 Hill (N. Y), 
 630; Shepherd v. Lincoln, 17 Wend. 
 250. 
 
 2 11 H. L. Cas. 687; L. R. 1 H. L. 93; 
 7 H. & N. 329; 3 id. 164; 1 id. 439; 
 Gilbert v. Trinity House, 17 Q. B. D. 
 795; Dormont v. Furness Ry. Co., 11 
 id. 496: Reg. v. Williams, 9 App. Cas. 
 418; Sanitary Com'rs v. Orfila, 15 id. 
 400; Parnaby v. Lancaster Canal Co., 
 11 Ad. & El. 223; Mersey Docks v. 
 Cameron, 11 H. L. Cas. 443; Coe v. 
 Wise, L. R. 1 Q. B. 711; 5 B. & S. 440; 
 7 id. 831; Joliffe v. Wallasey Local - 
 Board, L. R. 9 C. P. 62; Foreman v. 
 Canterbury, 40 L. J. (Q. B.) 138; Shoe- 
 bottom v. Egerton,»18 L. T. n. s. 889; 
 Walker v. Goe, 4 H. & N. 350; With- 
 erly v. Regents' Canal Co., 3 F. & F. 
 61; 12 C. B. n. s. 2; Thompson v. N. 
 E. Ry. Co., 2 B. & S. 106; Grant v. 
 Sligo Harbour Com'rs, Ir. R. 11 C. L. 
 190; Southampton Bridge Co. v. 
 Southampton, 8 E. & B. 301 ; Ward 
 v. Lee, 7 E. & B. 426; Clothier v. 
 Webster, 12 C. B. n. s. 790; Ruck v. 
 Williams, 3 H. & N. 308; Whitehouse 
 v. Feljows, 10 C. B. n. s. 765; Brown- 
 low v. Metropolitan Board, 13 C. B. 
 
222 
 
 THE LAW OF WATERS. 
 
 [Oh. IV. 
 
 for buoying a harbor imposes, at common law, an obligation, 
 to buoy the approaches to the harbor, and renders the party 
 authorized liable for the loss of a vessel striking on a sunken 
 wreck which is insufficiently buoyed in the approaches to the 
 harbor. 1 In the absence of negligence, a corporation empow- 
 ered 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 adjoining 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; 2 since the duties of a navigation company which 
 does not own the soil are confined, in the absence of an express 
 enactment upon the subject, to matters relating to the naviga- 
 tion. 3 The liability, when it exists, depends upon the neglect 
 
 therein, but were an unpaid body of 
 trustees, appointed for public pur- 
 poses in aid of the comnion-law right 
 of navigating an ancient highway, 
 were authorized to remove all ob- 
 structions 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. Forbes v. Lee Conservancy 
 Board, 4 Ex. D. 116; York Ry. Co. v. 
 Reg., 1 El. & Bl. 858; Great Western 
 Ry. Co. v. Reg., 1 El. & Bl. 874 See 
 Grote v. Chester Ry. Co., 2 Exch. 251 ; 
 Hammond v. Vestry of St. Pancras, 
 L. R. 9 C. P. 316. Cf. Hood v. Com'rs 
 of Toronto Harbor, 37 Q. B. (Can.) 72; 
 34 id. 87. Bonds of harbor trustees, 
 secured by an assignment of " rates, 
 tolls, rents," etc., are an interest in 
 land within the St. 9 Geo. 2, ch. 36. 
 Be David, 41 Ch. D. 168; 43 id. 27. 
 
 2 Cracknell v. Thetford, L. R. 4 C. P. 
 629. It is a matter for compensation, 
 and not for damages at law. See post, 
 §250. 
 
 3 Ibid. ; Parrett Nav. Co. v. Robins, 
 10 M. & W. 593. Cf. Burwell v. Port 
 Burwell Harbor Co., 20 Q. B. (Can.> 
 341. 
 
 n. s. 768; 16 id. 546. See Reg. v. Ber- 
 wick As. Committee, 16 Q. B. D. 473; 
 Mersey Docks v. Llaneilian Overseers, 
 14 Q. B. D. 770; New River Harbour 
 Board v. McLeod, 2 N. Zeal. L. R. 
 (S. Ct.) 290; Freeman v. Reg., 3 id. 
 109. As to the liability of a city 
 board of water commissioners, see 
 Gross v. Portsmouth Water Com'rs, 
 68 N. H. 389. 
 
 iDormont v. Furness Ry. Co., 11 
 Q. B. D. 496. In Winch v. Conserv- 
 ators of the Thames, L. R. 9 C. B. 378; 
 L. R. 7 Q. B. 458, the defendants were 
 held liable for the non-repair of a 
 towing path adjoining the river 
 Thames, the doctrine sustained by 
 the majority of the court of Ex- 
 chequer Chamber being that the de- 
 fendants, 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 dan- 
 ger, and that there was no distinc- 
 tion in this respect between the nat- 
 ural 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 the navigation 
 
,§ US.] 
 
 PUBLIC EIOHT OF NAVIGATION. 
 
 223 
 
 of duty towards persons who, being within the scope of the 
 benefit intended by the statute, are damaged by such neglect. 1. 
 In general, the receipt of tolls by a company, incorporated for 
 the. improvement of a harbor, dock, etc., amounts to an asser- 
 
 1 Ibid. ; Parnaby v. Lancaster Canal 
 Co., 11 Ad. & El. 213; Manley v. St. 
 Helen's Canal, 2 H. & N. 840; Mersey 
 Dock v. Gibbs, 11 H. L. Cas. 686; 
 Forbes v. Lee Conservancy Board, 4 
 Ex. 116; The Moorcock, 14 P. C. 64; 13 
 id. 157; Lowther v. Curwen, 58 L. T. 
 N. s. 168 ; Riddle v. Locks and Canals, 7 
 Mass. 169; Denning v. State, 123 Cal. 
 316. Corporate bodies or individuals, 
 when authorized to perform an act 
 for others which will benefit them- 
 selves, such as the construction of 
 a toll-bridge, are bound to repair, 
 though the public use the structure. 
 West v. West Riding, 2 East, 342; 
 Rex v. Kent, 13 -East, 220; Rexu 
 Lindsay, 14 East, 37; Rex v. Somer- 
 set, 16 East, 305; Rex v. Oxfordshire, 
 id. 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 v. 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. 309; County 
 Com'rs v. Duckett, 20 Md. 468; Hill 
 v. Boston, 122 Mass. 344; Freedom v. 
 Weed, 40 Maine, 383; Tifft v. Jones, 
 52 Ga. 538. But if they act solely for 
 the benefit of the public, or if the par- 
 ticular liability is, by statute, pre- 
 scription or otherwise, shifted upon 
 the public, they are not liable if they 
 fail to repair. Reg. v. Southampton, 
 18 Q. B. 841 ; Rex v. Oxfordshire, 16 
 East, 223; Rex v. Derbyshire, 2 Q. B. 
 745; Rex v. Whitney, 3 Ad. & El. 69; 
 Rex v. Trafford, IB. & Ad. 874; Rex 
 v. Devonshire, 5 id. 383; Reg. v. Glou- 
 cestershire, 2 C. & M. 506; Sampson 
 v. Goochland Justices, 5 Gratt. 241; 
 Rex v. Hendon, 4 B. & Ad. 628; Rex 
 v. Oswestry, 6 M. & S. 861; Rex v. 
 Ecclesfield, 1 B. & A. 348; Rex v. 
 Stratford-on-Avon, 14 East, 348; Rex 
 
 v. Lincoln, 8 Ad. & El. 65; Rex v. Sur- 
 rey, 2 C. & M. 455; Beaver v. Man- 
 chester, 8 E. & B. 44; Rex v. Oxford- 
 shire, 4 B. & S. 194; Nicholl v. Allen, 
 
 1 id. 934; Reg. v. Com'rs, 10 L. T. n. s. 
 375; Rex v. Yorkshire, 5 Burr. 2594; 
 
 2 Wm. Blk. 685; Flynn v. Canton Co., 
 40 Md. 312; Sayre v. Northwestern 
 Turnpike Road, 10 Leigh, 454; Swine- 
 ford 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 common car- 
 rier, but is only bound to proper dili- 
 gence in keeping the bridge in repair. 
 Grigsby v. Chappel, 5 Rich. (S. C.) 444.. 
 As to statutory liability to repair 
 bridges between counties or towns, 
 see Be Spier, 3 N. Y. S. 438; Huggins- 
 v. Riley, 51 Hun, 501 ; Be Commission- 
 ers, 3 N. Y. S. 461 ; Augusta v. Hud- 
 son, 94 Ga. 135; State v. Commission- 
 ers, 119 Ind. 444 (freshet); Hord v. 
 Montgomery, 26 111. App. 41; Dutton 
 v. State, 42 Neb. 804; State v. Wood 
 Co., 72 Wis. 629; Ecorse v. Supervis- 
 ors, 75 Mich. 264; Haverhill v. Grove- 
 land, 152 Mass. 510. Liability to repair 
 a bridge may arise by prescription- 
 Rex v. Wilts, 6 Mod. 307 ; Rex v. Buck- 
 nail, 7 Mod. 55; 2 Ld. Raym. 792, 804. 
 If a person who opens a private way 
 for his own convenience, builds a 
 bridge over a creek which runs across- 
 it, and the public use the same with 
 his permission, he is liable to a per- 
 son injured by the breaking in of the 
 bridge which the owner knew to be 
 unsafe, but which was apparently in 
 good condition. Campbell v. Boyd,. 
 88 N. C. 129. See Rex v. Wilts, 6 Mod. 
 307. So a raceway cut across a high- 
 way. West Bend v. Mann, 59 Wis. 69.. 
 
224 
 
 THE LAW OF WATERS. 
 
 [OH. IV. 
 
 tion that such harbor or dock is adapted to receive and shelter 
 vessels of such size as it is fitted for. 1 
 
 § 116. Same — Municipal corporations.— Quasi corpora- 
 tions, such as counties and municipal corporations, created by 
 the legislature for public purposes, are subject to indictment 
 at common law for neglect of a public duty imposed upon them, 
 but are not liable to a private action for such neglect, un- 
 less 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. 2 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 con- 
 sequence of non-repair. 3 Upon the ground of prescription, a 
 
 1 Webb v. Port Bruce Harbor Co., 
 19 Q. B. (Can.) 615, 623; Berryman v. 
 Port Burwell Harbor, 24 id. 34; post, 
 § 144; Willey v. Allegheny City, 118 
 Penn. St. 490. 
 
 2 Russell v. Men of Devon, 2 T. R. 
 667; Hill v. Boston, 122 Mass. 344; 
 Barnes v. District of Columbia, 91 
 U. S. 540, 551; Dillon, Mun. Corp. 
 -ch. 23; Gordon v. Taunton, 126 Mass. 
 349; Riddle u Locks & Canals, 7 
 Mass. 169; Mower i>. Leicester, 9 Mass. 
 247; Welsh v. Rutland, 56 Vt. 228, 
 234; Finch v. Board of Education, 30 
 Ohio St. 37; Pray v. Jersey City, 32 
 N. J. L. 394; Rowe v. Portsmouth, 
 56 N. H. 291; Eastman v. Meredith, 36 
 N. H. 284; Detroit v. Blackeby, 21 
 Mich. 84; Rapho 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 v. Kemper, 55 111. 346; Chi- 
 cago v. Joney, 60 111. 383 ; Chicago v. 
 Dermody, 61 111. 431; Richmond v. 
 Long, 17 Gratt. 375 ; Transp. Co. v. Chi- 
 cago, 99 U. S. 635; 7 Biss. 45; Nugent 
 v. Levee Com'rs, 58 Miss. 197; Allen 
 v. Smith (Tenn. Ch. App.), 47 S. W. 
 Rep. 206. 
 
 3 Pittsburgh v. Gf ier, 22 Penn. St. 
 54; Pittsburg Ry. Co. v. Gilleland, 56 
 id. 445, 451; Winpenny v. Philadel- 
 phia, 65 id. 135, 140; Philadelphia v. 
 Gilmartin, 71 id. 140, 159; Snyder v. 
 Philadelphia, 78 id. 23; Hey v. Same, 
 81 id. 44, 51; Maxwell v. The City, 7 
 Phila. 137; Hill v. Boston, 122 Mass. 
 344, 376; Oliver v. Worcester, 102 
 Mass. 489; Aldrich v. Tripp, 11 R L 
 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 Heisk. 
 133; Petersburg v. Applegarth, 28 
 Gratt. 321; Jeffersonville v. Louis- 
 ville Ferry Co., 27 Ind. 100; Jefferson- 
 ville v. The John Shallcross, 35 Ind. 
 19; Macauley v. New York, 67 N. Y. 
 602; Moody v. New York, 43 Barb. 
 282; Taylor v. New York, 4 E. D. 
 Smith, 559; McGuiness v. New York, 
 52 How. Pr. 450; Seaman v. New 
 York, 3 Daly, 147; De Boer v. Brook- 
 lyn Wharf Co., 64 N. Y. S. 925; Jack- 
 son v. Allegheny City, 41 Fed. Rep. 
 886. An agreement by a municipal 
 corporation to let a repairing dock, 
 which it owns, but of which it retains 
 the control and possession, is not an 
 
§ 117.] PUBLIC EIGHT OF NAVIGATION. 225 
 
 municipal corporation has been held liable to a person who lost 
 his navigation because of its neglect to repair and cleanse a 
 tide-water creek, 1 and for the same reason it may be liable to 
 •a private action for damages caused by its neglect to repair 
 sea-walls. 2 A city which, being under no legal obligation 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. 3 
 
 §117. Same — Same. — Municipal corporations cannot en- 
 gage iu works of internal improvement, such as the construc- 
 tion of harbors, wharves, canals, etc., and loan their credit in 
 aid thereof, without special authority from the legislature. 4 
 They have been thought not liable for the consequences of acts 
 which are ultra vires, as by erecting an embankment in excess 
 of their powers which turns a stream upon the plaintiff's lands. 5 
 They may be empowered by the legislature to pass ordinances 
 for the preservation of their harbors and water channels and 
 the regulation of vessels, bridges and wharves ; 6 to deepen and 
 
 agreement as to an interest in land, 37; Miller v. Milwaukee, 14 Wis. 643; 
 
 and if the admission of ships into the Webb v. Demopolis, 95 Ala. 116; Chi- 
 
 dook is a matter of frequent ordinary cago v. Law, 144 111. 569; MoMillian 
 
 •occurrence, the agreement need not v. Lauer, 24 N. Y. S. 951; Oebrickeu 
 
 be under the corporate seal. Wells Pittsburg, 5 Penn. L. J. Rep. 485 
 
 •v. Kingston-upon-Hull, L. R. 10 C. P. Anthony v. Adams, 1 Met. 284. 
 
 402. 5 Anthony v. Adams, 1 Met. 284 
 
 1 Lynn v. Turner, Cowper, 86. Wheeler v. Essex Public Road Board 
 
 2 Henly v. Lyme, 5 Bing. 91 ; 3 Moo. 39 N. J. L. 29.1. But cf. post, § 260. 
 & P. 278 } 3 B. & Ad. 77; 2 CI. & Fin. 6 Ibid.; Escanaba Co. v. Chicago, 
 331; 8 Bligh, N. R 690; 1 Bing. N. C. 107 U. S. 678; Muscatine v. Keokuk 
 222; 1 Scott, 29; Hill v. Boston, 122 Northern Line- Packet Co., 45 Iowa, 
 Mass. 344, 348, 360. But the mere 185; Keokuk v. Keokuk Northern 
 grant by the sovereign of a charter Line Packet Co., id. 196; Culbertson 
 to a municipal corporation situated v. The Southern Belle, Newb. 461 ; 
 upon navigable waters does not raise Soens v. Racine, 10 Wis. 271; Has- 
 an implied duty, on the part of the brouck v. Milwaukee, 13 Wis. 37; 17 
 grantee, to build or keep in repair Wis. 266; 21 Wis. 217; New York 
 wharves or sea-walls for the protec- v. Ryan, 2 E. D. Smith, 368; People 
 tion of the city lands from the sea. v. Bryan, 46 Barb. 355; Ogdensburg 
 •Coram v. St. John, 1 Hannay (N. B.), v. Lyon, 7 Lans. 215; Ogdensburg v. 
 441. Lovejoy, 2 S. C. 83; 10 Alb. L. J. 
 
 3 Goodrich v. Chicago, 4 Biss. 18. 207; Brown v. Catlettsburg, 11 Bush, 
 
 4 Hasbrouck v. Milwaukee, 13 Wis. 435; Grant v. Davenport, 18 Iowa, 
 
 15 
 
226 
 
 THE LAW OF WATEE3. 
 
 [CH. IV. 
 
 improve rivers, or to remove or prevent obstructions therein, 
 or to subscribe for stock in a company organized for the pur- 
 pose of improving the navigation of a river contiguous to the 
 city or town, even when the improvements extend through, 
 several towns or counties. 3 Special laws granting such pow- 
 ers 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.* 
 Eut the power must be conferred in express terms. A pro- 
 vision of a city charter giving power " to erect, repair, and 
 regulate public wharves and docks, and fix the rates' of wharf- 
 age thereat," does not enable the city to create a harbor or to 
 improve one by obtaining an increased supply of water, 4 or ta 
 condemn and take private wharves. 5 With respect to counties, 
 it has been held that the state legislature may require them, 
 against their will, to levy and collect a tax for the improve- 
 ment of rivers or harbors within their respective limits, in^ 
 which the county is vitally interested, although the improve- 
 ment may also be for the benefit of other counties and the 
 State. 6 
 
 179; Philadelphia v. Field, 58 Penn. 
 St. 320; New Orleans v. New Or- 
 leans R. Co., 27 La. Ann. 414; Eller- 
 man v. McMains, 30 id. 190; Munici- 
 pality No. 1 v. Kirk, 5 La. Ann. 34; 
 Shepherd v. Third Municipality, 6 
 Rob. (La.) 349; Tourne v. Lee, 20 
 Martin, 549; Gregory u Bridgeport, 
 41 Conn. 76; Hornu People, 26 Mich. 
 221; Marshall v. Vicksburg, 15 "Wall. 
 146: Bacon v. Mulford, 41 N. J. L 59; 
 Geiger v. Filor, 8 Fla. 325; San Pedro 
 u S. Pac. R. Co., 101 Cal. 333; Evans- 
 ville v. Martin, 41 Ind. 145; Jeffer- 
 sonville v. Louisville Ferry Co., 27 
 Ind. 100; Stevens v. Walker, 15 La. 
 Ann. 577; Waddingham v. St. Louis, 
 14 Mo. 190; Newport v. Batesville, 
 etc. R Co., 58 Ark. 270; Murphy v. 
 Montgomery, 11 Ala. 586. 
 
 1 Rochester v. Osborn, 5 Lans. 37; 
 Winpenny v. Philadelphia, 65 Penn. 
 St. 135: Comptonu Waco Bridge Co., 
 62 Texas, 715 (access to ford). 
 
 2 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. 
 
 3 Alexander v. Milwaukee, 16 Wis, 
 247; Miller v. Milwaukee, 14 Wis. 642; 
 Hasbroucku Milwaukee, 13 Wis. 37;. 
 17 Wis. 266; 24 Wis. 217; State v. 
 Hasbrouck, 25 Wis. 122; Reed v. Erie, 
 79 Penn. St. 346. In the absence of 
 statutory authority, a city cannot 
 lease a public wharf to private per- 
 sons. Bateman v. Covington, 90 Ky. 
 390; Belcher S. R. Co. v. St. Louis G, 
 R. Co., 82 Mo. 121. As to ferries, see- 
 Macdonnell v. Int'l Ry. Co., 60 Texas, 
 590; Waterbury v. Laredo, id. 519. 
 
 4 Spengler v. Trowbridge, 62 Miss, 
 46. 
 
 5 Madison v. Daley, 58 Fed. Rep. 751, 
 
 6 Kimball v. Mobile, 3 Woods, 555. 
 See State v. Keith County, 16 Neb, 
 508. 
 
§ 118.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 22T 
 
 §118. Same — Same. — The principle under which special 
 assessments are made by municipal corporations upon city 
 lots, for improvements in adjoining streets or highways by 
 land, applies also to improvements in highways by water ; l 
 and such assessments may be authorized upon riparian pro- 
 prietors whose estates are benefited thereby. 2 A municipal 
 corporation is under no obligation at common law to keep 
 adjacent waters safe for navigation. 3 A city which is invested 
 by its charter with " the general powers possessed by munici- 
 pal corporations at common law," may build a breakwater 
 for the purpose of protecting its streets and the buildings 
 thereon from inundation, and a contract entered into, for that 
 purpose is binding on the city at large. 4 When such a cor- 
 poration is authorized by statute to maintain, repair and reg- 
 ulate 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. 5 A wharf erected by a city is presumably open to- 
 
 'Johnson v. Milwaukee, 40 Wis. v. St. Louis, 2 Dillon, 70; Morris Co. 
 
 315. See Sears v. Street Com'rs, 173 v. Central R Co., 16 N. J. Eq. 419. 
 
 Mass. 350. ' But village boards may be authorized 
 
 2 Hale v. Kenosha, 29 Wis. 599; by the legislature to grant franchises 
 
 Bond v. Kenosha, 17 Wis. 284; Buf- for the collection of wharfage. Far- 
 
 falo Union Iron Works v. Buffalo, 13 num v. Johnson, 62 Wis. 620. A 
 
 Abb. Pr. N. s. 141; Delaware & H. city possessing the above authority 
 
 Canal Co. v. Buffalo, 56 N. Y. S. 976; may by ordinance prohibit the use 
 
 Wright v. Chicago, 20 111. 252; Elston of other wharves than those which it 
 
 v. Chicago, 40 111. 514; Goddin v. 
 Crump, 8 Leigh, 120; Harrison Jus- 
 tices v. Holland, 3 Gratt. 236; Fred 
 erick v. Augusta, 5 Ga. 561 
 Chicago v. Law, 144 111. 569. 
 
 establishes. Dubuque v. Stout, 32 
 Iowa, 40, 47. " Dock " defined, in 
 Snow v. Morton, 2 Nova Scotia, 237, 
 See 246. The term " wharfage " includes 
 a charge for landing gop,ds at a 
 
 1 Seaman v. New York, 80 N. Y. natural landing as well as at an arti- 
 
 239; ante, § 98, n. 
 
 ficial wharf (Sacramento v. New 
 
 4 Miller v. Milwaukee, 14 Wis. 642; World, 4 Cal. 41; Sacramento v. Con- 
 Soens v. Racine, 10 Wis. 271; Round- fidence, id. 45; see People v. Roberts, 
 tree v. Galveston, 42 Tex. 613. The 92 Cal. 659); but not the side of a 
 legislature may authorize a city to street along a river (Shreveport v. 
 acquire the fee of land necessary for Red River Line, 37 La. Ann. 562) ; or 
 the construction of a breakwater, for landing goods beyond the city's 
 Sweet v. Buffalo Ry. Co., 79 N. Y. 203. wharf, on land which- it does .not 
 
 5 Oakland v. Carpentier, 13 Cal. own, in times of high water. St. 
 540; 21 Cal. 642; People v. Broad- Louis v. Schulenberg Lumber Co., 
 way Wharf Co., 31 CaL 33; Lord v. 13 Mo. App. 56. The city's right is 
 Oconto, 47 Wis. 386; Matthews v. one of property, not sovereignty. 
 Alexandria, 68 Mo. 115; Mobile v. Ibid. As to what constitutes a wharf , 
 Moog, 53 Ala. 561 ; Illinois Canal Co. see Ibid. ; Keokuk v. Keokuk North- 
 
228 
 
 THE LAW OF WATERS. 
 
 [OH. IV. 
 
 the public free of toll. 1 If the corporation is expressly au- 
 thorized by statute or by its charter to maintain a public wharf, 
 or a free bridge or ferry, it cannot exact toll without an ex- 
 press legislative grant of such franchise ; 2 nor being authorized 
 by law to maintain a toll ferry, can it order the ferry to run 
 without toll. 3 When the privilege is granted of erecting a 
 wharf or dock in a highway, it does not include the right to 
 erect a warehouse, 4 but a city which is invested with power to 
 regulate and control its public wharves may authorize the erec- 
 tion of elevators thereon to facilitate the transshipment of 
 grain. 5 
 
 § 119. Wharves — Public and private. — Piers, landing 
 places, docks and wharves may be private, or they may be in 
 their nature public, although the property may be in an indi- 
 vidual owner. 6 If a vessel is wrongfully moored to a private 
 wharf, and the wharf-owner, having occasion to use the wharf, 
 sets it adrift, he incurs no liability if, in consequence of his 
 
 ern Line Packet Co., 45 Iowa, 196; 
 Fitchburg R. Co. v. Boston R. Co., 3 
 Cush. 58; Stevens v. Rhinelander, 5 
 Rob. (N. Y.) 285; Decker v. Jaques, 
 1 E. D. Smith, 80; People v. Kelsey, 
 88 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 versa. Scott v. Des 
 Moines, 34 Iowa, 552. 
 
 1 Muscatine v. Keokuk Northern 
 Line Packet Co., 45 Iowa, 185; Rus- 
 sell v. The Empire State, Newb. 541 ; 
 Taylor v. Atlantic Ins. Co., 37 N. Y. 
 275. 
 
 2 Mullarky v. Cedar Falls, 19 Iowa, 
 21; Clark v. Des Moines, id. 199; 
 Dively v. Cedar Falls, 27 id. 227; Att. 
 Gen. v. Boston, 123 Mass. 460; The 
 Geneva, 16 Fed. Rep. 874. "Without 
 special authority a municipal corpo- 
 ration has no power to lease a ferry. 
 
 Millsaps v. Monroe, 37 La. Ann. 641. 
 But if such a corporation has power 
 to bridge a river it may empower a 
 railroad corporation to do so. Mc- 
 Cartney v. Chicago R. Co., 112 111. 611. 
 
 3 Att. Gen. v. Boston, 123 Mass. 460. 
 
 i Bingham v. Doane, 9 Ohio, 165. 
 So as to the erection of a toll-house 
 within the limits of a turnpike com- 
 pany's land. Strattan v. Elliott, 83 
 Ind. 425; Danville Gravel Road Co. 
 v. Campbell, 87 id. 57. 
 
 5 Illinois Canal Co. v. St. Louis, 2 
 Dillon, 70; Malloy v. Staten Island 
 R. T. R. Co., 78 Hun, 166. 
 
 6 Hale, De Portibus Maris, ch. 6; 
 Hargsave's Law Tracts, 77, 78; Munn 
 v. Illinois, 94 U. S. 113, 150; Bolt v. 
 Stennett, 8 T. R. 606; District of 
 Columbia v. Johnson, 1 Mackey, 51 ; 
 Buffalo v. Delaware, etc. R. Co., 39 
 N. Y. S. 4; Barrington v. Commer- 
 cial Dock Co., 15 "Wash. 170; Com. v. 
 Louisville (Ky.), 47 S. "W. Rep. 865; 
 People v. Supervisors (Cal.), 55 Pac. 
 Rep. 131; Degan v. Dunlap, 15 Phila. 
 69. 
 
§ 119.] PUBLIC EIGHT OF NAVIGATION. 229 
 
 act, the vessel is stranded and lost. 1 When wharves belonging 
 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. 2 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. 3 If 
 the owner of a public wharf sets adrift a vessel which is fast- 
 ened thereto, and of which he has not requested the removal, 
 he is liable for injury to the vessel occasioned thereby. 4 The 
 question whether a wharf is public or private depends upon the 
 purpose for which it was built, the uses to which it has been ap- 
 plied, the place where located, and the nature and character of 
 the structure. 5 "When a public highway is laid out to navigable 
 waters, its termination is presumed to be a public landing as 
 incident to the highway ; but this presumption does not apply 
 to any part of a highway which is laid out along the shore of 
 such waters and follows the line of the shore, although it may 
 come in contact with the water for a greater or less distance. 6 
 The legislature, in the exercise of the power of eminent do- 
 main, may make a private wharf public in whole or in part, 7 
 
 i Dutton v. Strong, 1 Black, 23, 32; The Dora Mathews, 31 Fed. Rep. 619; 
 
 Harrington v. Edwards, 17 Wis. 586; The Mary K Campbell, id. 840; 
 
 see Cone's Estate, 9 Penn. Co. Ct. 257. Woodruff v. One Covered Scow, 30 
 
 The master of a vessel who wrong- id. 269. 
 
 fully places the vessel behind a sea- 3 Heaney v. Heeney, 2 Denio, 625; 
 
 wall, the exclusive right to use Swords v. Edgar, '59 N. Y. 28; Lin- 
 
 which, as a place of shelter, has been coin v. Penn. W. Co., 8 Penn. Co. Ct. 
 
 given to another, is liable for the loss 195. See Exterkamp v. Covington 
 
 of the latter vessel in a storm, if, Harbor Co. (Ky.), 47 S. W. Rep. 1086. 
 
 upon request, he fails to remove his 4 Heaney v. Heeney, 2 Denio, 625. 
 
 vessel. Derry v. Flitner, 118 Mass. 5 Per Clifford, J., Dutton v. Strong, 
 
 131. 1 Black, 23, 33; Eailroad Co. v. Han- 
 
 2 Hale, De Portibus Maris, ch. 6; ning, 15 Wall. 649; Backus v. De- 
 
 Allnut v. Inglis, 12 East, 527; The troit, 49 Mich. 110; The Wharf Case, 
 
 Wharf Case, 3 Bland Ch. 361, 374; 3 Bland, 361; Dugan v. Baltimore, 5 
 
 Munn v. Illinois, 94 U. S. 113, 151; Gill & J. 357; Brown v. Ellicott, 2 
 
 Transp. Co. v. Parkersburg, 107 U. S. Md. 75; Swords v. Edgar, 59 N. Y. 28; 
 
 691, 699; The Minnie L. Gerow, 5 Degan v. Dunlap, 25 Alb. L. Jour. 
 
 Hughes, 169 ; The Whitburn, 14 Phila. 103 ; Columbus v. Grey, 2 Bush, 476 ; 
 
 600; Aiken u Eager, 35 La. Ann. 567; Galveston v. Menard, 23 Texas, 349 
 
 Robertson v. Wilder, 69 Ga. 340. The O'Neill v. Annett, 25 N. J. L. 290. 
 
 contract, express or implied, to pay 6 Ibid. ; Burrows v. Gallup, 32 Conn, 
 
 wharfage is maritime, and a mari- 493. 
 
 time lien may be founded thereon. 7 Page v. Baltimore, 34 Md. 558; 
 
230 
 
 THE LAW OF WATERS. 
 
 [CH. IV. 
 
 or dedicate a public wharf to such exclusive uses as in its judg- 
 ment is proper. 1 Where the legislature authorized a public 
 wharf, landing, and road to be made on a plantation, the owner 
 of which maintained a private wharf thereon, and directed 
 payment to be made " for the value of the premises taken for 
 public use, as well as for the damages generally to the same," 
 it was held that the owner was not entitled to compensation 
 for the loss of profits accruing from his private' wharf. 2 
 
 § 120. Wharfage — Who liable for.— Those who avail 
 themselves of the use of a wharf are liable for wharfage, though 
 the wharf is out of repair, 3 and even though the necessity of 
 using it is compelled by stress of weather ; 4 and the right to 
 collect these charges at public or private wharves carries with 
 it the correlative duty to repair. 5 The right of wharf-owners 
 
 Hazlehurst v. Baltimore, 37 Md. 199. Cowper, 47; Freeman v. Walghan, 2 
 
 See Waddingham v. St. Louis, 14 Mo. Wils. 296. The mooring of rafts to 
 
 190; Murray v. Sharp, 1 Bosw. 539. an unimproved bank of a river does 
 
 1 Broadway Ferry Co. v. Hankey, not create the relation of landlord 
 31 Md. 340; St. Paul v. Chicago, etc. and tenant between the riparian 
 Ry. Co., 63 Minn. 330. owner and the owner of the .rafts. 
 
 2 Fuller v. Edings, 11 Rich. (S. C.) Hall v. Jacobs, 7 Bush, 595; The 
 239; Eddings v. Sea brook, 12 id. 504. Lizzie E., 30 Fed. Rep. 876. As to 
 Of. Moses v. Sanford, 11 Lea (Tenn.), the action of use and occupation in 
 731. relation to docks, see Hathaway v. 
 
 3 Jefferson ville v. Louisville Ferry Ryan, 35 Cal. 188 ; Camden R. R. v. 
 Co., 27 Ind. 100; Prescott v. Du- Finch, 5 Sand. (N. Y.) 48; Mangum 
 quesne, 48 Penn. St. 118; The George v. Farrington, 1 Daly (N. Y), 236; 
 E. Berry, 25 Fed.* Rep. 780 (burned Moore v. Jackson, 2 Abb. N. C. 211. 
 vessel held liable); Muller v. Spreck- Wharfage, warehouse use, moorage 
 els, 48 id. 574. The damages caused of ships, and the like, may be re- 
 by a failure to repair the wharf may covered under counts of indebitatus 
 be recouped by the defendant when assumpsit. De Wolf v. Punchard, 3 
 
 sued for wharfage. Buckbee v. 
 Brown, 21 Wend. 110. See Flandreau 
 v. Elsworth, 151 N. Y. 473; Clifford 
 v. O'Neil, 42 N. Y S. 607; Bennett v. 
 Schoellkopf, id. 1027; Pacific Coast 
 S. S. Co. v. Kimball, 114 Cal. 414. 
 
 4 Heron v. The Marchioness, 40 Fed. 
 Rep. 330. 
 
 5 Radway v. Briggs, 35 N. Y 256; 
 35 How. Pr. 422; ante, §113; The 
 
 Nova Scotia, 224, 226; Stewart v. 
 Baker, 7 Mod. 12, n. ; Cock v. Vivian, 
 id. 203. A sheriff's attachment and 
 bringing of a vessel to a wharf do 
 not bind the owner for wharfage. 
 The Mary K. Campbell, 24 Blatch. 
 475. The maritime lien for wharf- 
 age is not enforced against a vessel 
 laid up and stored at a wharf. The 
 America, 93 Fed. Rep. 986. The use 
 
 Wharf Case, 3 Bland, 361 ; Yarmouth of a pier projecting from a bulkhead 
 
 v. Eaton, 3 Burr. 1404; James v. John- in such a manner as to prevent the 
 
 son, 2 Mod. 143; Warrington v. Mor- owner from using his wharf, is a tort, 
 
 ley, 4 Mod. 320; Colton v. Smith, and does not give rise to an implied 
 
-§ 120.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 231 
 
 to exact compensation from ships and vessels 1 using a berth, 
 at their wharves, may be claimed upon an express or an im- 
 plied contract. If upon an express contract, the agreed price 
 is not affected by a statute which authorizes a certain per diem 
 •charge for goods remaining upon the wharf. 2 When the wharf 
 is used without a definite agreement as to price, the proprietor 
 is entitled to a just and reasonable remuneration for the use of 
 his property and the benefit conferred ; 3 and if the time of 
 occupancy is extended by such public authority as the quaran- 
 tine officers, this is not an unexpected intervention of sover- 
 eignty which suspends the operation of the contract of wharf- 
 age. 4 A vessel which is compelled by stress of weather to 
 moor to a private wharf for safety, is not liable for wharfage 
 if no fixed rates of wharfage are there in use. 5 Any indi- 
 vidual owner of a wharf may use it for the purpose of land- 
 ing his own goods, which are not dutiable, or he may permit 
 others to do so upon such terms as he thinks proper to im- 
 pose, 6 and of which he gives notice. 7 But ho goods which 
 
 contract to pay wharfage. Camden 
 K. Co. v. Finch, 5 Sand. 48. See Pel- 
 ham v. Woolsey, 16 Fed. Eep. 418. 
 And, if the grantor of a wharf, to- 
 gether with the right to collect 
 wharfage thereat, builds another 
 wharf so as to obstruct that which 
 is granted, it is not a continuing 
 trespass under the statute of limita- 
 tions. Van . Zandfc v. New York, 8 
 Bosw. 375. 
 
 1 As to what is a " vessel," see Rud- 
 diman v. A Scow Platform, 38 Fed. 
 Eep. 158; Cope v. Valette Dry-dock 
 ■Co., 16 id. 924; The Pioneer, 30 id. 206; 
 The International, 89 id. 484; Flan- 
 dreau v. Blsworth, 151 N. Y. 473; 29 
 N. Y. S. 694; Hedges v. London Docks 
 ■Co., 16 Q. B. D. 597; Wells v. Gas Float 
 Whitton (No. 2), [1897] A. C. 337. 
 
 2 Woodruff v. Havemeyer, 106 N. Y. 
 129. 
 
 *Ex parte Easton, 95 U. S. 68, 73; 
 
 Garfield & P. C. Co. v. Fitchburg E. 
 Co., 166 Mass. 119;. The Antonio Zam- 
 brana, 88 Fed. Eep. 546; Scow No. 15, 
 id. 305; 92 id. 1008; Clifford v. United 
 States, 34 Ct. CI. 223. The remedy is 
 not by injunction, but by resisting 
 excessive charges, if demanded. Sil- 
 ver v. Tobin, 28 Fed. Rep. 545. 
 
 * Elwell v. Fabre, 52 Hun, 70. See 
 A Cargo of Lumber, 23 Fed. Eep. 301. 
 
 6 Heron v. The Marchioness, 42 Fed. 
 Eep. 173. So there is no wharfage 
 when a steamer goes to the repairer's 
 wharf for repairs. The Allianca, 56 
 Fed. Eep. 609. 
 
 "Hale, De Portibus Maris, oh. 6; 
 Hargrave's Law Tracts, 76; Bruneu 
 Thompson, 4 Q. B. 543; Wooliych on 
 Waters, 301; Gunning on Tolls, 123, 
 126; Sargent v. Reed, 2 Stra. 1228; 1 
 Wils. 91 ; Stephens v. Coster, 3 Burr. 
 1409; 1 W. Bl. 413; Colton v. Smith, 
 1 Cbwper, 47; Wyatt v. Thompson, 2 
 
 'Southern S. S. Co. v. Sparks, 22 Newb. Adm. 69; Croucher v. Wilder, 
 Texas, 657; The Magnolia v. Marsh- 98 Mass. 322. 
 all, 39 Miss. 109; The Buckeye State, 
 
232 
 
 THE LAW OF WATEKS. 
 
 [OH. IV. 
 
 are chargeable with a duty can be landed in any other place 
 than a public port. 1 Either the assent of the legislature or 
 prescription is undoubtedly required to authorize the collection 
 of fixed rates of wharfage ; 2 and, as Congress has abstained 
 from action on the subject of wharfage, it is entirely within 
 the operation of State laws, by which the reasonableness of 
 the charge is to be determined. 3 The State alone can prevent 
 such wharfage charges as are exorbitant. 4 If a wharf is un- 
 lawfully extended into navigable waters upon the soil of the 
 State, the possessor's title cannot be disputed by those con- 
 tracting for its use, and it seems that compensation can be re- 
 quired if the State does not object to the encroachment. 5 
 
 Esp. 252; Dutton v. Strong, 1 Black, 
 32; Ensminger v. People, 47 111. 384; 
 Chicago v. Laflin, 49 111. 172; The 
 Wharf Case, 3 Bland, 383; Wetmore 
 v. Brooklyn Gaslight Co., 42 N. Y. 384; 
 Jeff ersonville v. Louisville Ferry Co., 
 27 Ind. 100; O'Neill 'v. Annett, 27 N. 
 J. L. 290; The Volusia, 3 WalL Jr. 375. 
 See Allnutt v. Inglis, 12 East, 527; 
 Hargrave's Law Tracts, 77, 78. 
 
 Unfe, § 4; The Wharf Case, 3 
 Bland, 361 ; Hale, De Portibus Maris, 
 ch. 6; Hargrave, 78. As to double 
 wharfage allowed by New York stat- 
 ute, see The Shady Side, 23 Fed. Rep. 
 731. 
 
 2 Wiswall v. Hall, 3 Paige, 313; 
 People v. Broadway Wharf. Co., 31 
 Cal. 34; People v. San Francisco E. 
 Co., 35 Cal. 606; Taylor v. Beebe, 1 
 Eob. 268; O'Conley v. Natchez, 1 S. 
 & M. 41. 
 
 3 Ouachita Packet Co. v. Aiken, 121 
 U. S. 444; 16 Fed. Rep. 890 and note; 
 S. o. 4 Woods, 208; Transp. Co. v. 
 Parkersburg, 107 U. S. 691; Silver v. 
 Tobin, 28 Fed. Eep. 545. 
 
 4 De Bary Baya Merchants' Line v. 
 Jacksonville Ry. Co., 40 Fed. Rep. 392. 
 
 8 The Idlewild, 64 Fed. Rep. 603; 59 
 id. 628; but see Paine Lumber Co. v. 
 United States, 54 id. 854; Gunter v. 
 Geary, 1 Cal. 462; Coburn v. Ames, 
 52 Cal. 385; Dana v. Jackson Street 
 Wharf Co., 31 Cal. 118; Wetmore v. 
 
 Brooklyn Gaslight Co., 42 N. Y. 384, 
 Possession of such a structure, though 
 it may support trespass against a. 
 mere wrongdoer for an actual entry 
 upon it, would not draw to it posses- 
 sion of the submerged soil between 
 the structure and the shora Dixon 
 v. Snetsinger, 23 C. P. (Can.) 235. 
 Cases relating to wharf privileges 
 and wharfage, upon special facts, are: 
 McNairy v. Paine, 9 Humph. 533; Co- 
 lumbus v. Grey, 2 Bush, 477; Child 
 v. Chappell, 9 N. Y. 246; Albany v. 
 Trowbridge, 5 Hill, 71; 7 Hill, 429; 
 Memphis Packet Co. v. Grey, 9 Bush, 
 148 ; Long Wharf v. Palmer, 37 Maine, 
 379; Stockwell v. Brewer, 59 id. 286; 
 Union Wharf Co. v. Hemingway, 12. 
 Conn. 293; Gregory v. Brooks, 35. 
 Conn. 437; Union Wharf Co. v. The 
 J. H. Starin, 45 Conn. 585; 15 Blatch. 
 473; Dewees v. Adger, 2 McCord 
 (S. C), 105; Fitzsimons v. Milner, 2 
 Rich. (S. C.) 371; People v. San Fran- 
 cisco Gaslight Co., 54 CaL 248; Bersie 
 v. The Shenandoah, 21 Mo. 18 ; Keokuk 
 Co. v. Quincy, 81 111. 422; Whitney 
 v. New York, 6 Abb. N. C. 330, n.; 
 Langdon v. New York, id. 314; 93 
 N. Y. 129; Eastman v. New York, 152 
 N. Y. 468; Russell v. The Empire 
 State, Newb. Adm. 542; Thompson 
 v. New York, 11 N. Y. 115; 3 Sand. 
 487; Kelsey v. Murray, 28 How. Pr. 
 243^ 18 Abb. Pr. 294; Linthicum v. 
 
§ 121.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 23a 
 
 § 121. Public nuisances — Remedies. — An unlawful ob- 
 struction to navigation, being a common nuisance, is remedi- 
 able by indictment, 1 or by abatement; 2 or a court of equity 
 may take jurisdiction upon an information filed by the attor- 
 ney general. 3 Equity will not interfere, even upon an infor- 
 mation in the name of the State, when the injury to the public 
 is doubtful or prospective, but will leave the question of nui- 
 sance or no nuisance to be tried before a jury. 4 When the 
 
 Ray, 9 WalL 241; Russell v. The Asa 
 R. Swift, 1 Newb. Adm. 553; The 
 Whitburn, 7 Fed. Rep. 925; Lawton 
 v. Reed, 1 Pugsley (N. B.), 329; Col- 
 lins v. Hall, 2 Hannay (N. B.), 90; Cur- 
 rier v. Crosby, 1 Pugs. & B. (N. B.) 
 464. A mere right to collect wharf- 
 age for a term of 'years is neither 
 real estate nor personal property, but 
 a franchise or incorporeal heredita- 
 ment. De Witt v. Hays, 2 Cal. 463; 
 Commissioners v. Clark, 35 N. Y. 251 ; 
 Langdon v. New York, 6 Abb. N. C. 
 314; Whitney v. New York, id. 330, 
 note; Kelsey v. Murray, 18 Abb. Pr. 
 294; 28 How. Pr. 243. 
 
 1 Hale, De Jure Maris, ch. 3, and 
 De Portibus Maris, ch. 7; Hargrave's 
 Law Tracts, 9, 88; Rex v. Russell, 6 
 B. & C. 566; Rex v. Ward, 4 Ad. & 
 El. 384; Rex v. Grosvenor, 2 Stark. 
 511; Rex v. Morris, 1 B. & Ad. 441; 
 Rex v. Tindall, 6 Ad. & El. 143; Reg. 
 v. Betts, 16 Q. B. 1022; Reg. v. Ran- 
 dall, 1 Car. & M. 496; Com. v. Wright, 
 3 Am. Jur. 185; Com. v. Alger, 7 
 Cush. 53; People v. Vanderbilt, 26 
 N. Y. 287; People v. Horton, 64 N. Y. 
 610; 5 Hun, 516; Gates v. Blencoe, 3 
 Dana, 158; Walker v. Shepardson, 2 
 Wis. 384; Allegheny v. Zimmerman, 
 95 Penn. St. 287. 
 
 'Post, § 128. 
 
 3 Att. Gen. v. Burridge, 10 Price, 
 350; Att. Gen. v. Parmenter, id. 378, 
 412; Att. Gen. v. Johnson, 2 Wils. 
 Ch. 87; Att. Gen. v. Richards, 1 Anst. 
 603; Att. Gen. v. Terry, L. R. 9 Ch. 
 423; Att. Gen. v. Lonsdale, L. R. 7 
 Eq. 377; Att. Gen. v. Tomline, 12 Ch. 
 
 D. 214; Att. Gen. v. Cleaver, 18 Ves. 
 211; Georgetown v. Alexandria Canal 
 Co., 12 Peters, 91; Att. Gen. v. Utica 
 Ins. Co., 2 Johns. 371, 382; Att. Gen. 
 v. Cohoes Co., 6 Paige, 133; Yolo Co. 
 v. Sacramento, 36 Cal. 193; Eden on: 
 Injunctions, ch. 11; 2 Story Eq. Jur. 
 § 921 et seq.; Rowe v. Granite Bridge 
 Co., 21 Pick. 344; Att. Gen. v. Ja- 
 maica Pond Aqueduct Co., 133 Mass. 
 361; Needham v. N. Y. & N. E. R. r 
 152 Mass. 61; Att. Gen. v. Salem, 103 
 Mass. 138; Haskell v. New Bedford, 
 108 Mass. 208, 216; Att Gen. v. Bos- 
 ton Wharf Co., 12 Gray, 553; Att. 
 Gen. v. New Jersey R. Co., 2 Green 
 Ch. 136; Newark Plank Road Co. v.. 
 Elmer, 9 N. J. Eq. 755; Att. Gen. v. 
 Hudson River R. Co., id. 526; Gifford 
 v. New Jersey R Co., 10 N. J. Eq. 177 ^ 
 Att. Gen. v. Delaware R. Co., 27 N. J. 
 Eq. 1, 631; Allen v. Monmouth Co., 2 
 Beas. 68. As to suits by canal com- 
 missioners, see Canal Com'rs v. East 
 Peoria, 179 111. 214. 
 
 4 2 Story Eq. Jur. §§ 923, 935 a; 
 Crowder v. Tinkler, 19 Ves. 617; 
 Ripon v. Hobart, 3 Myl. & K. 169, 179; 
 Baines v. Baker, 1 Ambl. 158; Irwin 
 v. Dixion, 9 How. 10; Att. Gen. v. 
 Heishon, 3 C. E. Green, 410; Att. 
 Gen. v. Stewart, 5 id. 415; Att. Gen. 
 v. New Jersey R. Co., 2 Green Ch. 
 136; Harlan v. Paschall, 5 Del. Ch. 
 435; Hartshorn v. South Reading, 3 
 Allen, 501; Mohawk Bridge Co. v. 
 Utica R. Co., 6 Paige, 554; Roches- 
 ter v. Curtiss, Clarke Ch. 336; Fisk 
 v. Wilbur, 7 Barb. 395; Rochester v. 
 Erickson, 46 Barb. 92; Gervais v* 
 
23± 
 
 THE LAW OF WATERS. 
 
 [CH. IV. 
 
 nuisance causes both a public and a private injury, a suit in 
 •equity may be brought by information and bill. 1 An indi- 
 vidual may maintain a bill, without the attorney general, in 
 respect to a public nuisance which causes him special dam- 
 age, 2 which must, however, be alleged and proved. 3 If a pub- 
 lic nuisance, such as a bridge which obstructs the navigation, 
 will also affect the private rights of each of several private 
 owners injuriously and in the same way, they may join as 
 complainants in a bill to restrain the erection of the struct- 
 ure, or each may sue alone. 4 Jurisdiction will not be taken 
 
 Charleston, 11 Rich. Eq. (S. C.)432; 
 Att. Gen. v. Lea, 3 Ired. Eq. 301; 
 Bigelow v. Hartford Bridge Co., 14 
 Conn. 582; Ramsey v. Riddle, 1 
 Cranch, C. C. 399. 
 
 1 Att. Gen. v. Lonsdale, L. R. 7 Eq. 
 377; Att. Gen. v. Forbes, 2 My 1. & Cr. 
 123. 
 
 2 Ibid. ; Spencer v. London Ry. Co., 
 8 Sim. 193; Sampson v. Smith, 8 Sim. 
 272; Cook v. Bath, L. R. 6 Eq. 177; 
 Hickok v. Hine, 23 Ohio St. 523, and 
 authorities in note 4; Mississippi R. 
 Co, v. Ward, 2 Black, 485; Irwin v. 
 Dixion, 9 How. 10; Parker v. Win- 
 jiipiseogee Lake Co., 2 Black, 545; 
 Pennsylvania v. Wheeling Bridge 
 Co., 13 How. 518, 561; Ewell v. Green- 
 wood, 26 Iowa, 377; Musser v. Her- 
 sliey, 42 Iowa, 356; Park v. The C. & 
 S. W. R. Co., 43 Iowa, 636; Works v. 
 Junction Railroad, 5 McLean, 425; 
 United States v. Railroad Bridge Co., 
 ■6 id. 517; Spooner v. McConnell, 1 
 id. 337; Treat v. Bates, 27 Mich. 390; 
 Potter v. Indiana, etc. Ry. Co., 95 
 Mich. 389; Walker v. Shepardson, 
 2 Wis. 384; 4 Wis. 496; Hamilton v. 
 Whitridge, 11 Md. 128; Columbus v. 
 Jaques, 30 Ga. 506; Savannah R. Co. 
 v. Shields, 33 Ga. 601; Potter v. Me 
 nasha, 30 Wis. 492; Draper v. Mackey, 
 35 Ark. 497; Adams v. Popham, 76 
 N. Y. 410; Sparhawk v. Union Pas- 
 senger Car Co., 54 Penn. St. 401; 
 Prince v. McCoy, 40 Iowa, 533; Man- 
 hattan Gaslight Co. v. Barker, 36 
 How. Pr. 233; Penniman v. New 
 
 York Balance Co., 13 id. 40; Parrish 
 v. Stephens, 1 Or. 73; Shed v. Haw- 
 thorne, 3 Neb. 186; Kittle v. Tremont, 
 1 Neb. 329. In such a suit, the plaint- 
 iff acts on behalf of all who are 
 similarly injured, as a public prose- 
 cutor rather than on his own ac- 
 count. Woodruff v. North Bloom- 
 field Gravel M. Co., 8 Sawyer, 628; 9 
 id. 441. 
 
 3 Ibid.; Tottenham U. D. Council 
 v. Williamson, [1896] 2 Q. B. 353; 
 Wallesley Local Board v. Gracey, 36 
 Ch. D. 593. 
 
 i Barnes v. Racine, 4 Wis. 454; Pet- 
 tibone v. Hamilton, 40 Wis. 402; 
 Cadigan v. Brown, 120 Mass. 493; 
 Murray v. Hay, 4 Sand. Ch. 362; 1 
 Barb. Ch. 59; Reid v. Gifford, Hopk. 
 Ch. 416; Emery v. Erskine, 66 Barb. 
 9; Peck v. Elder, 3 Sand. 126; Brady 
 v. Weeks, 3 Barb. 157; Foot v. Bron- 
 son, 4 Lans. 47; Robinson v. Baugh, 
 31 Mich. 290; Middleton v. Flat River 
 Co., 27 Mich. 533; Grant v. Schmidt, 
 22 Minn. 1; Schultz v. Winter, 7 Nev. 
 ,130; Fogg v. Nevada C. O. Ry. Co., 
 20 Nev. 429. Contra, Hudson v. Mad- 
 dison, 12 Sim. 415; Hinchman v. 
 Paterson R. Co., 17 N. J. Eq. 75; 
 Morris R. Co. v. Prudden, 20 id. 530. 
 This rule does not apply when the 
 plaintiffs own in severalty distinct 
 parcels of land to which water is 
 carried by various ditches. Barham 
 v. Hostetter, 67 Cal. 272; Jones v. 
 Cardwell, 98 Ind. 331. Even where 
 this rule does not prevail, the objec- 
 
§ 121.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 235 
 
 upon a bill thus filed by an individual which discloses only 
 detriment to the community at large, and does not set forth 
 facts showing peculiar and irreparable injury to the plaint- 
 iff. 1 A court of equity will act with caution upon such a 
 bill where the work, such as a bridge, ferry, or public mill, 
 tends to promote the public convenience. 2 If improvements 
 of great magnitude, which are thus complained of as obstruc- • 
 tions to navigation, have been constructed under color of 
 legislative authority and used in facilitating an important 
 branch of commerce, and have long been acquiesced in, a per- 
 petual injunction will not be granted unless it appears that 
 the right of the plaintiff has been established at law and that 
 
 tion of misjoinder of plaintiffs must 
 be raised by the pleadings, and can- 
 . not be taken at the hearing, if the 
 real point in controversy can be de- 
 termined in the suit. See Hamilton 
 v. Whitridge, 11 Md. 128. 
 
 12 Story Eq. Jur. §§ 924-926; 
 Crowder v.. Tinker, 19 Ves. 616; 
 Georgetown v. Alexandria Canal Co., 
 12 Peters, 91; Att. Gen. v. Birming- 
 ham, 4 K. & S. 528; Works v. Junc- 
 tion Eailroad, 5 McLean, 425; United 
 States v. Railroad Bridge Co., 6 Mc- 
 Lean, 517; Haskell v. New Bedford, 
 108 Mass. 208,216 ; Boston Rolling Mills 
 v. Cambridge, 117 Mass. 396; Harts- 
 horn v. South Reading, 3 Allen, 501 ; 
 Bigelow v. Hartford Bridge Co., 14 
 Conn. 565; Fall Village Co. v. Tib- 
 betts, 31 Conn. 169; Frink v. Law- 
 rence, 20 Conn. 120; Norwich Gas 
 Light Co. v. Norwich Gas Co., 25 
 Conn. 35; O'Brien v. Norwich R. Co., 
 17 Conn. 372; Seeley v. Bishop, 19 
 Conn. 128; Thornton v. Grant, 10 R. I. 
 477; New York v. Baumberger, 7 
 Rob. 219; Hudson River R. Co. v. 
 Loab, id. 418; Knox v. New York, 55 
 Barb. 404; Mohawk Bridge Co. v. 
 Utica R. Co., 6 Paige, 554; Corning 
 v. Lowerre, 2 John. Ch. 439; Smith v. 
 Lockwood, 13 Barb. 209; Davis v. 
 New York, 14 N. Y. 506; 3 Duer, 119; 
 Harrison v. Newton, 9 N. Y. Leg. Obs. 
 311, 347; Watertown v. Cowen, 4 
 
 Paige, 510; Savannah Railroad v. 
 Shields, 33 Ga. 601; Mechling v. Kit- 
 tanning Bridge Co., 1 Grant, 416; 
 Ewell v. Greenwood, 26 Iowa, 377; 
 Delaware R. Co. v. Stump, 8 Gill & 
 J. 479; Jarvis v. Santa Clara Valley 
 R. Co., 52 Cal. 438; Stevens v. Pater- 
 son R Co., 5 C. E. Green, 126; Scud- 
 der v. Trenton Falls Co., Sax. 694; 
 Southard v. Morris Canal Co., id. 518; 
 Denver Ry. Co. v. Denver City Ry. 
 Co., 2 Col. 673; Ingram v. The C. D. 
 & M. R. Co., 38 Iowa, 669; Prince v. 
 McCoy, 40 Iowa, 533; Prosser v. Ot- 
 tumwa, 42 Iowa, 509; Roman v. 
 Strauss, 10 Md. 89; Hamilton v. Whit- 
 ridge, 11 Md. 128; Fort v. Groves, 29 
 Md. 188; Baltimore v. Gill, 31 Md. 
 375; Dawson v. St. Paul Ins. Co., 15 
 Minn. 136; Walker v. Shepardson, 4 
 Wis. 486; Shed v. Hawthorne, 3 Neb. 
 179; Middleton v. Franklin, 3 Cal. 
 238; Beveridge v. Lacey, 3 Rand. 63; 
 Arnold v. Klepper, 24 Mo. 273; Coast 
 Line.R. Co. v. Cohen, 50 Ga. 451; 
 Frizzle v. Patrick, 6 Jones Eq. 354. 
 This rule applies to a private individ- 
 ual's suit for obstructing a city 
 wharf. Cummings v. Huse & Loomis 
 Ice Co. (Mo.), 56 S. W. Rep. 282. 
 
 2 Barnes v. Calhoun, 2 Ired. Eq. 
 199; Turner v. People's Ferry Co., 21 
 Fed. Rep. 90; Rosser v. Randolph, 7 
 Porter, 238. 
 
236 
 
 THE LAW OF WATEKS. 
 
 [Ch. IV. 
 
 no adequate compensation can be afforded in damages. 1 The 
 remedy by abatement is, according to numerous authorities, 
 coextensive and concurrent with that by indictment. 2 Upon 
 ' an indictment against a person who has obstructed the navi- 
 gation, 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. 3 In such a case, 
 the indictment must aver that the limits of the statute are ex- 
 ceeded, and that the erection is not in pursuance of the au- 
 thority given by the statute. 4 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 navigating 
 said waters," must directly allege that the bridge prevents 
 navigation. 5 By an uninterrupted user for twenty years the 
 public may, it seems, acquire a prescriptive right of naviga- 
 tion in inland waters which are private property ; 6 but lapse 
 of time will not legalize a public nuisance. 7 The continuance 
 
 iWeller v. Smeaton, 1 Cox, 102; 
 Irwin v. Dixion, 9 How. 10; Heer- 
 man v. Beef Slough Manuf. Co., 8 
 Biss. 334; 1 Fed. Rep. 145; Reming- 
 ton v. Foster, 42 Wis. 608; Att. Gen. 
 v. Int'l Bridge Co., 28 Grant's Ch. 
 <Can.) 65. 
 
 2 Post, § 128; Knox v. Chaloner, 42 
 Maine, 150; Arundell v. McCulloch, 
 10 Mass. 70; Coates v. New York, 7 
 Cowen, 585; Miles v. Hall, 9 Wend. 
 315; Hart v. Albany, id. 571; Ren- 
 wick v. Morris, 3 Hill (N. Y.), 621; 7 
 id. 575; Wetmore v. Tracy, 14 Wend. 
 250; 32 Cent. L. J. 445. 
 
 3Com. v. Church, 1 Penn. St. 105; 
 Ren wick v. Morris, 3 Hill (N. Y.), 621; 
 7 id. 575; Knox v. Chaloner, 42 Maine, 
 150; State v. Freeport, 43 Maine, 198; 
 State v. Dibble, 4 Jones (N. C), 107, 
 115; State v. Parrott, 71 N. C. 311; 
 Healy v. Joliet R. Co., 2 Brad. (111.), 
 435 ; Hogg v. Zanesville Canal Co., 5 
 Ohio, 410. 
 
 4 State v. Godfrey, 24 Maine, 232; 
 Rex v. Liverpool, 3 East, 86. 
 
 5 State v. Portland R. Co., 57 Maine, 
 402; Pine City v. Munch, 42 Minn. 
 342. As to the distance of the bridge 
 
 changed by filling up the river bed, 
 see State v. South Carolina Ry. Co., 
 28 S. C. 23. 
 
 4 Ante, § 111 ; Wheeler v. Spinola, 
 54 N. Y. 377; Meyer v. Phillips, 9? 
 N. Y. 485; Delaney v. Boston, 2 Harr. 
 (Del.) 489; Burbaker v. Paul, 7 Dana, 
 429; Coolidge v. Learned, 8 Pick. 504; 
 Shaw v. Crawford, 10 Johns. 236, 240; 
 Ingram v. Police Jury, 20 La. Ann. 
 226. Individuals acquire by user no 
 prescriptive right to navigate a pub- 
 lic river, transversely or otherwise. 
 Bird v. Smith, 8 Watts, 434 See 
 Pearsall v. Post, 20 Wend. Ill; 22 
 Wend. 425; Curtis v. Keesler, 14 Barb. 
 511. 
 
 'Folkes v. Chad, 3 Dougl. 340; 
 King v. Montague, 4 B. & C. 598; 
 Weld v. Hornby, 7 East, 195, 199; 
 Rex v. Cross, 3 Camp. 224, 227; Car- 
 ter v. Murcot, 4 Burr. 2161; Vooght 
 v. Winch, 2 B. & Aid. 662; People v. 
 Cunningham, 1 Denio, 524; Pierson 
 v. Elgar, 4 Cranch, C. C. 454; Coates 
 v. New York, 7 Cowen, 558; Crill v. 
 Rome, 47 How. Pr. 398; Rochester v. 
 Erickson, 46 Barb. 921 ; Ogdensburg 
 v. Love joy, 58 N. Y. 662; 2 Sup. Ct. 
 
§ 121.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 237 
 
 of a nuisance for twenty years will not defeat either a prose- 
 cution for obstructing navigation, 1 - or the remedy by abate- 
 ment ; 2 nor is it a bar to an action by an individual for special 
 damage thereby caused. 3 This rule applies to streams which 
 are merely floatable, as well as to those which are navigable 
 in the larger sense. 4 If specific penalties are imposed by stat- 
 ute, they are merely cumulative and not exclusive of the ordi- 
 nary remedies, unless the intent to exclude them clearly appears 
 in the act. 5 Eut when an appropriate method of redress is 
 
 S3; Campbell v. Seaman, 2 Sup. Ct. 
 231; Mills v. Hall, 9 Wend. 315; Ren- 
 wiok v. Morris, 7 Hill (N. Y.), 575; 3 
 id. 621; Kellogg v. Thompson, 66 N. 
 Y. 88; St. Vincent's Orphan Asylum 
 v. Troy, 76 N. Y. 109, 114; 12 Hun, 
 317; Simmons v. Cornell, 1 R. I. 519; 
 Knox v. Chaloner, 42 Maine, 150; 
 Veazie v. Dwinel, 50 id. 479; Davis 
 -:V. Winslow, 51 id. 293; Gerrish v. 
 Brown, id. 256; Dyer v. Curtis, 72 id. 
 181; Com. v. Howes, 15 Pick. 231, 233; 
 Stoughton v. Baker, 4 Mass. 522; 
 Arundel v. McCullough, 10 Mass. 70; 
 Com. v. Upton, 6 Gray, 473; Lewis v. 
 Stein, 16 Ala. 214; Philadelphia's Ap- 
 peal, 78 Penn. St. 33; Pettis v. John- 
 son, 56 Ind. 139 ; De Laney v. Blizzard, 
 
 7 Hun, 7; House v. Metoalf, 27 Conn. 
 639; Philadelphia R. Co. v. State, 30 
 Md. 157; North Central Ry. Co. v. 
 Baltimore, 21 Md. 93; Cottrill v. My- 
 rick, 12 Maine, 222; State v. Franklin 
 Falls Co., 49 N. H. 240; Bird v. Smith, 
 
 8 Watts, 434; Com. v. McDonald, 16 
 S. & R 390; Com. v. Alburger, 1 
 Wharton, 469; Penny Pot Landing, 
 16 Penn. St. 79, 94; Philadelphia v. 
 Philadelphia R Co., 58 id. 253; John- 
 son v. Irwin, 3 S. & R. 292; Douglass 
 v. State, 4 Wis. 387; Hoboken Land 
 Co. v. Hoboken, 36 N. J. L. 540; In- 
 gram v. Police Jury, 20 La. Ann. 226; 
 Olive v. State, 86 Ala. 88; State v. 
 Holman, 104 N. C. 861 ; People v. Pope, 
 53 Cal. 437; Nimmo v. Com., 4 H. & 
 M. (Va.) 57; Woolrych on Waters, 
 270. 
 
 1 Ibid. The obstruction and its con- 
 
 tinuance are distinct offenses which 
 cannot be joined in one count of an 
 indictment. Burke v. People, 23 111. 
 App. 36; Hoadley v. People, id. 39. 
 
 2 Ibid. ; Knox v. Chaloner, 43 Maine, 
 150; Renwick v. Morris, 3 Hill (N. Y.), 
 621; 7 id. 575; Miles v. Hall, 9 Wend. 
 315; Stafford v. Ingersoll, 3 Hill, 38, 
 41; People v. Page, 58 N. Y. S. 239. 
 
 3 Miles v. Hall, 9 Wend. 315; Morton 
 v. Moore, 15 Gray, 573, 576; Woodruff 
 v. North Bloomfield G. M. Co., 8 
 Sawyer, 628; 9 id. 441; 1 West Coast 
 Rep. 183. 
 
 4 Knox v. Chaloner, 42 Maine, 150; 
 Amoskeag Manuf. Co. v. Goodale, 46 
 N. H. 53; State v. White Oak River 
 Corp., Ill N. C. 661. Whether the ob- 
 struction is accidental or intentional, 
 it will not deprive the stream of its 
 natural character as a highway. 
 Treat v. Lord, 43 Maine, 552. 
 
 5 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; Com. v. Ruggles, 10 
 Mass. 391; Waterford Turnpike Co. v. 
 People, 9 Barb. 161; Renwick v. Mor- 
 ris, 3 Hill (N. Y), 621; 7 id. 575; Wet- 
 more v. Tracy, 14 Wend. 250, 255; 
 Jackson v. Bradt, 2 Caines, 169; Pen- 
 nington v. Townsend, 7 Wend. 276, 
 280; Crittenden v. Wilson, 5 Cowen, 
 165; Stafford v. Ingersoll, 3 Hill, 38. 
 A statute, declaring the obstruction 
 of a private water-course to be a 
 public, nuisance and indictable as 
 such, is merely cumulative and does 
 not deprive the riparian proprietors 
 
238 THE LAW OF WATERS. [Oh. IV. 
 
 provided by statute for a failure to observe its requirements, 
 it is exclusive of the common-law remedies, as by abatement. 1 
 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, 2 unless it has so far treated the place as a public street 
 that it is estopped from denying that it is a public highway.* 
 A tenant cannot controvert his landlord's title, 4 and, if no ac- 
 tion 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 defense to an action by the landlord for the 
 possession, that the possession, if restored, would be an unlaw- 
 ful obstruction of the navigation. 5 So, in an action on the case 
 for diverting water from the plaintiff's mill, it is no defense 
 that the mill is built in the public domain of tide waters; 6 and 
 the fact that a dam prevents the public passage of lumber does 
 not justify a lower proprietor in causing the water to flow back 
 upon the dam. 7 
 
 § 122. Same — Private suits, — The general rule is that in- 
 dividuals are not entitled to redress against a public nuisance. 
 The private injury is merged in the common nuisance and in- 
 'jury to all citizens, and the right is to be vindicated and the 
 wrong punished by a public prosecution, and not by a multi- 
 plicity of separate actions in favor of private persons. 8 If, 
 however, a public nuisance, such as an unlawful obstruction to 
 
 of the common-law remedy of an N. Y. 258; Fort Plain Bridge Co. v. 
 
 action on the case or the right to Smith, 30 N. Y. 44. 
 
 abate the nuisance. Welton v. Mar- * So as to tide lands. Tullis v. Ta- 
 
 tin, 7 Mo. 307; State v. Moffett, 1 G. coma Land Co., 19 Wash. 140. 
 
 Greene, 247. 5 St. Anthony Falls Co. tt. Morrison, 
 
 1 Criswell v. Clugh, 3 "Watts, 330; 12 Minn. 249. It is no defense to an 
 Spigelmoyer v. Walter, 3 Watts & S. undertaking given on suing out an 
 540; Brown v. Com., 3 Serg. & B. 273; injunction that the business which 
 post, § 250. the defendant enjoined was a public 
 
 2 Com. v. Charlestown, 1 Pick. 180; nuisance. Cunningham v. Breed, 4 
 Jones v. Andover, 9 Pick. 146. ' Cal. 384. 
 
 3 Mayor v. Sheffield, 4 Wall. 189; 6 Simpson v. Seavey, 8 Maine, 138; 
 Houfe v. Fulton, 34 Wis. 608; Cod- Houston E. Co. v. Parker, 50 Texas, 
 ner v. Bradford, 3 Chand. (Wis.) 291; 330. 
 
 Williams v. Cummington, > 18 Pick. 1 0diorne v. Lyford, 9 N. H. 502; 
 
 312; Leavenworth v. Laing, 6 Kan- Lincoln v. Chadbourne, 56 Maine, 200; 
 
 sas, 274; McDonough v. Virginia City, Stiles v. Hooker, 7 Cowen, 266. 
 
 6 Nev. 90 ; Bissell v. Eailroad Co., 22 « Bigelo w, C. J., in Wesson v. Wash- 
 
§ 122.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 230 
 
 a common passage, causes peculiar damage to an individual, 
 he may maintain an action therefor. In such case, the declara- 
 tion 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 defense to be set up by answer. 1 But 
 the particular damage is the gist of the action, and must be 
 specifically set forth in the declaration or complaint. 2 It is 
 
 burn Iron Co., 13 Allen, 95, 101; Stet- 
 son v. Faxon, 19 Pick. 147; Thayer v. 
 Boston, id. 511, 514; Borden v. Vin- 
 cent, 24 Pick. 301; Quincy Canal v. 
 Newcomb, 7 Met. 276, 283; Holman 
 v. Townsend, 13 Met. 297, 299; Smith 
 v. Boston, 7 Cush. 254; Brainard v. 
 Connecticut River E. Co., 7 Cush. 506, 
 511 ; Blood v. Nashua & Lowell Rail- 
 road, 2 Gray, 140; Brightmanu Fair- 
 haven, 7 Gray, 271; Harvard College 
 v. Stearns, 15 Gray, 1; "Willard v. 
 Cambridge, 3 Allen, 574; Hartshorn 
 v. South Reading, id. 501; Fall River 
 Iron Works Co. v. Old 'Colony Rail- 
 road, 5 Allen, 224; Shaubut v. St. Paul 
 R. Co., 21 Minn. 502; Grigsby v. Clear 
 Lake Water Co., 40 Cal. 396; Gordon 
 u.Baxter, 74 N. C. 470; In re Eldred, 
 46 Wis. 530, 541; Abbott v. Mills, 3 
 Vt. 521; Hatch v. Vermont Central 
 R. Co., 28 Vt. 142; Low v. Knowlton, 
 26 Maine, 128; Lansing v. Smith, 8 
 Co wen, 146; 4 Wend. 9; Lansing v. 
 Wis wall, 5 Denio, 213; 5 How. Pr.77; 
 Fort Plain Bridge Co. v. Smith, 30 
 N. Y. 44; Anderson v. Rochester R. 
 Co., 9 How. Pr. 553; Dougherty v. 
 Bunting, 1 Sand. 1 ; Purcell v. Potter, 
 Anth. (N. Y.) 310; Osborn v. Union 
 Ferry Co., 53 Barb. 629; State v. 
 Thompson, 2 Strob. (S. C.) 12; Carey 
 v. Brooks, 1 Hill (S. C), 365; Com'rs 
 v. Taylor, 2 Bailey (S. C), 282; Mc- 
 Laughlin v. Charlotte R. 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 v. Canton Co., 40 Md. 312; 
 Walter v. County Com'rs, 35 Md. 
 
 385 ; South Carolina R. Co. v. Moore, 28 
 Ga. 398; Esson v. Wattier, 25 Oregon, 
 7; Dunn u Stone, 2 Car. L. Rep. 261; 
 Morgan v. Graham, 1 Woods, 124; 
 L. T. Co. v. S. & W. R. Co., 41 Cal. 562. 
 
 1 Ibid. ; Enos v. Hamilton, 27 Wis. 
 256. Erections in navigable waters,. 
 which are near the shore, and are not 
 prohibited by any positive law or 
 regulation, are presumed not to be- 
 obstructions to navigation, and he 
 who alleges that they are obstruc- 
 tions must prove it. Dutton v. Strong,, 
 
 I Black, 23; Yates v. Milwaukee, 10 
 Wall. 497. 
 
 2 Baker v. Boston, 12 Pick. 184, 196; 
 Atkins v. Boardman, 2 Met. 457 ; 
 Houck v. Wachter, 34 Md. 265; Swan- 
 son v. Miss. Boom. Co., 42 Minn. 532; 
 Baxter v. Winooski Turnpike Co., 23- 
 Vt. 114; Hall v. Kitson, 4 Chand. 
 (Wis.) 20; Green v. Nunnemacher, 36. 
 Wis. 50; Carpenter v. Mann, 17 Wis. 
 155; Powers v. Irish, 23 Mich. 429; 
 Dwinel v. Veazie, 44 Maine, 167, 175; 
 Roseburg v. Abraham, 8 Oregon, 
 509; Farrelly v. Cincinnati, 2 Disney 
 (Ohio), 516; Bristol Manuf. Co. v. 
 Gridley, 28 Conn. 201; Taylor v. Mon- 
 roe, 43 Conn. 36 ; Tomlinson v. Derby, 
 id. 562. See South Carolina v. Georgia, 
 93 TJ.. S. 4, 14; Smith v. McConathy,. 
 
 II Mo. 517; Welton v. Martin, 7 Mo. 
 307; Payne v. McKinley, 54 Cal. 532; 
 Tibbetts v. Blade, 60 Cal. 428; Silva, 
 v. Spangler (Cal.), 43 Pac. Rep. 617. 
 But it is not indispensable to a re- 
 covery that the injury shall be proved 
 precisely as alleged. Memphis R. Co. 
 v. Hicks, 5 Sneed, 427. And if a dec- 
 
240 THE LAW 0E WATEKS. [Ch. IV. 
 
 not enough that injury is shown, but it must be different in 
 kind from that sustained by the community at large. 1 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 plaint- 
 iff alone navigates the river, and is the owner of the only 
 wharf thereon above the bridge, being merely proof that the 
 consequential 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. 2 " The case," 
 says Gray, 0. J., 3 " has no analogy to those in which an ob- 
 struction in a navigable stream sets back the water upon the 
 plaintiff's land, 4 or, being against the front of his land, entirely 
 outs 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 chan- 
 nel exceeding one thousand feet in length, about one-fourth of 
 which 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 the portion of the 
 
 laration in case defectively sets out 5 Gray, 110; Brightman v. Fair- 
 the special damage sustained by the haven, 7 Gray, 271 ; Willard v. Cam- 
 plaintiff in consequence of the ob- bridge, 3 Allen, 574; Hartshorn v. 
 struction preventing his passage with South Reading, id. 501; Wesson v. 
 boats, the defect is cured by a verdict Washburn Iron Co., 13 id. 95; Bray- 
 in his favor, if the issue joined com- ton v. Fall River, 113 Mass. 218; Bor- 
 pels him to prove the special injury, den v. Vincent, 24 Pick. 301; Smith 
 Hall v. Kitson, 4 Chand. (Wis.) 20; 3 v. Boston, 7 Cush. 257; Thayer v. New 
 Pin. 296. Damages sustained by an Bedford Railroad, 125 Mass. 253; 
 individual after action brought are Breed v. Lynn, 126 Mass. 367; White- 
 recoverable in such action. Duncan head v. Jessup, 53 Fed. Rep. 707; 
 v. Markley, Harper (S. C), 276. Small v. Grand Trunk R. Co., 15 Q. B. 
 
 !Ibid.; Houck v. Wachter, 34 Md. (Can.) 283. 
 265; Schall v. Nusbaum, 56 Md. 512; 3 122 Mass. 3. 
 Gilbert v. Morris Canal Co., 8 N. J. * The defendant would be liable for 
 
 Eq. 495; Miller v. Hare, 43 W. Va. such injury. Turner v. Blodgett, 5 
 
 647; 39 L. R. A. 491 and note; State Met. 240; Cogswell v. Essex Mill Co., 
 
 v. Bridges, 19 Wash. 44; 40 L. R. A. 6 Pick. 94; Grigsby v. Clear Lake 
 
 593 and note. Water Co., 40 Cal. 396; Sinnickson v. 
 
 2 Blaokwell v. Old Colony R. Co., Johnson, 17 N. J. L. 129; Rowan v. 
 
 122 Mass. 1; Blood v. Nashua R. Co., Johnson, id. 154; Delaware Canal 
 
 2 Gray, 137; Lawrence v. Fairhaven, Co. v. Lee, 22 id. 243; Glover v. Pow- 
 
§ 123.] PUBLIC EIGHT OF NAVIGATION. 241 
 
 channel which was beyond the limits of the plaintiff's owner- 
 ship, did not create an injury which differed in kind from that 
 suffered by other persons owning lands upon the harbor 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 expensive, and the wharf itself less 
 valuable. 1 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 corporation 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 consid- 
 eration. 2 
 
 §123. Same — Same. — 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. 3 "Where 
 sewers constructed by a city caused a creek to be filled up di- 
 rectly in front of and adjoining the plaintiff's wharf, so that 
 his vessels could not lie at the wharf on account of the dimin- 
 ished depth of the water, the injury 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. 4 The court distin- 
 
 ■ell, 10 N. J. Eq. 211; Carson v. Cole- Gray, 22; Wesson v. Washburn Iron 
 man, 11 id. 106; Crittenden v. Wil- Co., 13 Allen, 95; Brayton v. Fall 
 son, 5 Cowen, 165; Steele v. Western Eiver, 113 Mass. 218; Haskell v. New- 
 Inland Lock Nav. Co., 2 Johns. 283. Bedford, 108 id. 208; Willard-u Cam- 
 i Breed v. Lynn, 126 Mass. 367. The bridge, 3 Allen, 574; Harvard College 
 defendant in this case did not except v. Stearns, 15 Gray, 1; Clement v. 
 to the damages assessed for the fill- Burns, 43 N. H. 609. 
 ing of that part of the channel which 4 Brayton v. Fall River, 113 Mass. 
 was within the limit of the plaintiff's 218. In Haskell v. New Bedford, 108 
 ■ownership. See, also, Barron v. Balti- Mass. 208, which was a similar case, 
 more, 2 Am. Jur. 203. the court say that neither the special 
 
 2 Drury v. Midland Railroad, 127 injury to the plaintiff by the filling 
 Mass. 571; Com. v. Boston & Maine up of his dock, nor that occasioned 
 Railroad, 3 Cush. 25; Boston & Wor- bymakinghis premises offensive and 
 cester Railroad v. Old Colony Rail- unhealthy, was merged in the com- 
 road, 12 id. 605. mon nuisance. Locks and Canals v. 
 
 3 Brewer v. Boston R. Co., 113 Mass. Lowell,' 7 Gray, 223; Emery v. Low- 
 52, 58; Com. v. Vermont R. Co., 4 ell, 104 Mass. 13; Nichols v. Boston, 
 
 16 
 
24:2 
 
 THE LAW OF WATERS. 
 
 [Ch. IT. 
 
 guished the case from that of Harvard College v. Stearns, 1 in 
 which it was held that a private action would not lie upon 
 proof merely that the defendant had filled up a navigable 
 creek and thereby rendered the plaintiff's land more difficult 
 of access and less valuable. "Whenever the obstruction imme- 
 diately adjoins or is upon, 2 or against the front of the plaint- 
 iff's premises, it is as to him a private nuisance for which an 
 action will lie, or which may be restrained by injunction. 3 But 
 
 98 id. 39; Eames v. New England 
 Worsted Co., 11 Met. 570; Child v. 
 Boston, 4 Allen, 41; Sherman v. 
 Tobey, 3 id. 7; Boston Rolling Mills 
 v. Cambridge, 117 Mass. 396; Boston 
 v. Richardson, 19 How. 263; 24 id. 188; 
 Gerrish v. Brown, 51 Maine, 256; 
 Franklin Wharf v. Portland, 67 id. 
 46; Frink v. Lawrence, 20 Conn. 117; 
 Clark v. Peckham, 9 R. I. 455; 10 id. 
 35; Gorton v. Tiffany, 14 id. 95; Att. 
 Gen. v. Birmingham, 4 Kay & Johns. 
 528. 
 1 15 Gray, 1. 
 
 2 As when offensive sewage flows 
 upon the plaintiff's land. Lind v. 
 San Luis Obispo, 109 Cal. 340. 
 
 3 Ramez v. Southend Local Board, 
 67 L. T. 169; 8 T. L. R 700; Bray ton 
 v. Fall River, 113 Mass. 218; Haskell 
 v. New Bedford, 108 Mass. 208; Black- 
 well v. Old Colony R. Co., 122 Mass. 
 1; Breed v, Lynn, 126 Mass. 367; Bar- 
 ron v. Baltimore, 2 Am. Jur. 203; 
 Boston v. Richardson, 24 How. (U. S.) 
 188; Simmons v. Dillystone, 8 Exch. 
 431; Blundell-y. Catterall, 5 B. & Aid. 
 287, 294, 304, 309; Somerset v. Fog- 
 well, 5 B. & C. 883; Wilkes v. Hun- 
 gerford 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. Kleinhans, 
 
 2 Green (N. J.), 473; Williams v. 
 Tripp, 11 R. I. 453; Abbott v. 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. Mil- 
 waukee City R. Co., 27 Wis. 194; 
 C. B. R. Co. v. Twine, 23 Kansas, 585; 
 Frith v. Dubuque R. Co., 45 Iowa, 
 406; Park v. C. & S. W. R. Co., 43 
 Iowa, 636; Co well v. Martin, 43 Cal. 
 605; Myers v. St. Louis, 8 Mo. App. 
 266; Lackland v. North Missouri R. 
 Co., 31 Mo. 180; 34 Mo. 259; Price u. 
 Knott, 8 Oregon, 438; Clark v. Peck- 
 ham, 10 R. L 35; 9 R. L 455; Folsom. 
 v. Freeborn, 13 R I. 200, 210; Clark 
 v. Providence, 16 R. L 337; Sullivan 
 v. Webster, id. 33; Venard v. Cross, 
 8 Kansas, 248; Schulte v. North Pa- 
 cific Transp. Co., 50 Cal. 52; Yolo 
 County v. Sacramento, 36 Cal. 193; 
 Blanc v. Klumpke, 29 Cal. 156; Court- 
 wright v. B. R. Co., 30 CaL 585; Aram 
 v. Shallenberger, 41 Cal. 449; Clem- 
 ent v. Burns, 43 N. H. 609, 617, 619 
 Bowman v. Wathen, 2 McLean, 376 
 Blanchard v. Porter, 11 Ohio, 138 
 Crawford v. Delaware, 7 Ohio St 459 
 Russell v, Burlington, 30 Iowa, 262 
 McMahon v. Council Bluffs, 12 Iowa, 
 268; Ewell v. Greenwood, 26 Iowa, 
 377; Cole v. Sprowl, 35 Maine, 161 
 Frink v. Lawrence, 20 Conn. 117 
 Reynolds v. Clarke, 1 Pitts. (Pa.) 9 
 Briggs v. Pfeil, 42 Pitts. L. J. 18 
 Harrison v. Sterrett, 4 Har. & McH. 
 540; Strauss's Case, 37 Md. 237; Gar- 
 itee v. Baltimore, 53 Md. 422; Enos 
 v. Hamilton, 27 Wis. 256. One who 
 has only a leasehold interest in the- 
 premises may maintain the action. 
 Knox v. New York, 55 Barb. 404; 38- 
 How. Pr. 67;. De Laney v. Blizzard, 7: 
 Hun, 7.. 
 
§ 124.] PUBLIC EIGHT OF NAVIGATION. 243 
 
 when it is at a distance from the plaintiff's land, and the only- 
 injury which he sustains consists of inconvenience or loss of 
 access thereto, without direct and clearly defined damage other 
 than the general depreciation of property common in a greater 
 or less degree to all the riparian owners similarly situated, and 
 preventable by an abatement of the nuisance, the plaintiff can- 
 not maintain an action. 1 A person suffering a peculiar and 
 special damage from a public nuisance may maintain an action 
 against the person who continues it, although a recovery for 
 the injury done by its creation is barred by the statute of lim- 
 itations. 2 
 
 § 124. Same — Same. — The English decisions distinguish 
 between injuries to the riparian right of access and those 
 which accrue to persons exercising the public right of naviga- 
 tion. In Rose v. Groves, 3 in which an innkeeper recovered 
 damages against the defendant 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 : 4 
 " This is not an action for obstructing the river, but for ob- 
 
 1 Harvard College v. Stearns, 15 R Co., 28 Am. Law Reg. 124; Har- 
 
 Gray, 1; Transp. Co. v. Chicago, 99 rison v. Sterrett, 4 H. & McH. 540; 
 
 U. S. 635; Lansing v. Smith, 8 Cowen, White v. Flannigan, 1 Md. 539. 
 146; 4 Wend. 9; Manhattan Gaslight 2 New Salem v. Eagle Mill Co., 138 
 
 Co. v. Barker, 36 How. Pr. 233; Bailey Mass. 8. 
 
 v. Philadelphia R. Co., 4 Harr. (Del.) »5 M. & G. 613; 6 Scott, N. R 645; 
 389; McLaughlin v. Charlotte R Co., Wilkes v. Hungerford Market Co., 2 
 5 Rich. (S. C.) 583; Kearns v. Cord- Bing. N. R 281; Pentley v. Lynn 
 wamers' Co., 6 C. B. n. s. 388; Bige- Paving Com'rs, 13 W. R. 983; Stephen 
 low v. Hartford Bridge Co., 14 Conn. v. Costor, 3 Burr. 1408; Wyatt v. 
 565; O'Brien v. Norwich R Co., 17 Thompson, lEsp. 252; Anon., 1 Camp. 
 Conn. 372; Clark v. Saybrook, 21 517, note; Rex v. Russell, 6 B. & C. 
 Conn. 222; Seeley v. Bishop, 19 Conn. 566; Att. Gen. v. Conservators, 1 H. 
 135; Burrows v. Pixley, 1 Root, 363; & M. 1; Kearns v. Cordwainers' Co., 
 Aram v. Shallenberger, 41 CaL 449; 6 C. B. n. s. 388; Att. Gen. v. Wemyss, 
 Cowell v. Martin, 43 Cal. 605; Hop- 13 App. Cas. 192; Fritz v. Hobson, 14 
 kins v. Western Pacific R. Co., 50 Ch. D. 542; Moore v. Great Southern 
 CaL 190; Schulte v. North Pacific Ry. Co., Ir. R 10 C. L. 46; Richardson 
 Transp. Co., 50 Cal. 592; George v. v. Boston, 24 How. 188; Yates v. Mil- 
 Northern Pacific R Co., 50 Cal. 589; waukee, 10 Wall. 497; Haskell v. 
 Bigley v. Nunan, 53 Cal. 403; Severy New Bedford, 108 Mass. 208, 21.6; 
 v. Central Pacific R Co., 51 Cal. 194; French v. Conn. River Lumber Co., 
 Jarvis v. Santa Clara Valley R Co., 145 Mass. 261; Wall v. Pittsburgh 
 52 CaL 438; Folsom v. Freeborn, 23 Harbor Co., 152 Penn. St. 427. 
 Alb. L Jour. 497 ; Kinealy v. St. Louis 4 5 Man. & G. 613 ; 6 Scott, N. R 645. 
 
244: 
 
 THE LAW OF WATEKS. 
 
 [CH. IT. 
 
 structing the access to the plaintiff's house on the river." In 
 Attorney General v. Conservators of the Thames, 1 Lord Hath- 
 erley 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 different right from the public right of passing and 
 repassing along the highway on the river." 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. 2 An obstruction in front of one's own premises may- 
 prevent his entering upon the highway and thus interfere 
 with a peculiar right. But when he is once upon the high 
 way, he is a traveler 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 gen- 
 eral public. 3 Injuries to riparian owners arising from obstruc- 
 
 I1H. & M. 1. In Lyon v. Fish- 
 mongers' Co., 1 App. Cas. 662; L. R. 
 10 Ch. 679, 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, accompanied by 
 particular damage to the plaintiff, 
 but upon the principle that a private 
 right of the plaintiff had been inter- 
 fered 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 difficul- 
 ties, when an attempt is made to de- 
 fine 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." See Bell v. 
 
 Quebec, 5 App. Cas. 84; Brown v. 
 Gugy, 2 Moo. P. C. N. s. 341; Buc- 
 cleugh v. Met. Board of Works, L. E. 
 5 H. L. 418; Met. Board of Works v. 
 McCarthy, LE.7E L. 243; Becket 
 v. Midland Ry. Co., L. R 3 C. P. 82; 
 Lord v. Com'rs of Sydney, 12 Moo. 
 P. C. 473; Miner v. Gilmour, id. 131; 
 Benjamin v. Storr, L. R 9 C. P. 400; 
 Fitz v. Hobson, 28 W. R 459, 722; 
 Byron v. Stimpson, 1 Pugs. & B. 
 (N. B.) 697. 
 
 2 In other words, the distinction is 
 between rights of immediate access 
 from a man's property to a highway, 
 and the power to complain of a mere 
 obstruction in the highway. See 
 cases above cited; also Caledonian 
 Ry. Co. v. Ogilvy, 2 Macq. Sc. App 
 229; Montreal v. Drummond, 1 App. 
 Cas. 384; Bell v. Quebec, 5 App. Cas. 
 84, 97; 2 Quebec L. R 305; 7 id. 103, 
 
 3 His lands are not " injuriously af- 
 fected," under eminent domain stat- 
 utes, by such general interference 
 with access. Cases cited above, note 
 1; Rochett v. Chicago Ry. Co., 32 
 
§ 125.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 245 
 
 tions to the navigation may thus differ from those sustained by 
 members of .the public who are simply prevented from exercis- 
 ing the common right of passage upon the water. 
 
 § 125. Same — Same. — A private action also lies, accord- 
 ing 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 ob- 
 structions in navigable waters; and such an action has fre- 
 quently been maintained by those whose vessels have been 
 thus delayed, or lost their voyage, 1 although such special dam- 
 age has also been regarded as resting only in contemplation. 3 
 One who suffers no pecuniary damage from an obstruction in 
 a highway, or the stopping of a common ferry, 8 but is merely 
 put to the inconvenience, common to all who use the way, of 
 removing the obstruction or of taking a more circuitous route, 
 cannot maintain an action. 4 In New York any expense or 
 
 Minn. 201; post, § 252; Birkenhead 
 v, L. & N. W. Ry. Co., 15 Q. B. D. 
 572; Wadham v. N. E. Ry. Co., 16 id. 
 227; Caledonian Ry. Co. v. Walker's 
 Trustees, 7 App. Cas. 259; Reg. v. 
 Essex, 14 Q. B. D. 763, affirmed in 
 H. L. sub norm. Essex v. Acton Local 
 Board, 14 App. Cas. 153; Furness Ry. 
 Co. v. Cumberland Society, 52 L. T. 
 144; Essex v. Acton Local Board, 14 
 App. Cas. 153; North Shore Ry. Co. 
 v. Pyon, id. 612; 61 L. T. 525; Blan- 
 tyre v. Babtie, 13 App. Cas. 631 ; Ford 
 v. Met. District Railways, 17 Q. B. D. 
 12; Chicago v. Taylor, 125 U. S. 161. 
 1 Hogg v. Zanesville Canal Co., 5 
 Ohio, 410; Guthrie v. McConnel, 1 
 West. L. M. 593; Porter v. Allen, 8 
 Ind. 11; Columbus Ins. Co. v. Peoria 
 Bridge Co., 6 McLean, 70; Irwin v. 
 Sprigg, 6 Gill, 203; O wings v. Jones, 
 9 Ind. 108; Baltimore v. Marriott, 
 id. 160; Flower v. Adam, 2 Taunt. 
 314; Butterfleld v. Forrester. 11 East, 
 60; Marriott v. Stanley, 1 M. & G. 
 568; Smith v. Smith, 2 Pick. 621; 
 President v. Dusouchett, 2 Cart. (Ind.) 
 586; Kennard v. Burton, 25 Maine, 
 39; Harlow v. Humiston, 6 Cowen, 
 
 189; Plumer v. Alexander, 12 Penn. 
 St. 81; Irwin v. Sprigg, 2 Bland, 2; 
 Little Rock Ry. Co. v. Brooks, 39 Ark. 
 403. That a fisherman accustomed 
 to exercise the public right of fishery 
 at a certain place may sue for his 
 special injury caused by obstruc- 
 tions, see Morris v. Graham, 16 Wash. 
 343. See, also, Jones v. St. Paul, etc. 
 R. Co., id. 25. 
 
 2 Clark v. Chicago Ry. Co., 70 Wis. 
 593. 
 
 s Pain v. Patrick, 3 Mod. 289. 
 
 4 Winterbottom v. Derby, L. R. 2 
 Ex. 316; Wiggin v. Boddington, 3 C. 
 & P. 544; Fineaux v. Hovenden, Cro. 
 Eliz. 664; Hubert v. Groves, 1 Esp. 
 148; Carpenter v. Mann, 17 Wis. 155; 
 Greene v. Nunnemacher, 36 Wis. 50; 
 Houck v. Wachter, 34 Md. 265; Ship- 
 ley v. Caples, 17 Md. 179; Garitee v. 
 Baltimore, 53 Md. 422, 437; Farrelly 
 v. Cincinnati, 2 Disney (Ohio), 516; 
 McCowan v. Whitesides, 31 Ind. 235 ; 
 Shed v. Hawthorne, 3 Neb. 179; Barr 
 v. Stevens, 1 Bibb, 292; South Caro- 
 lina S. Co. v. South Carolina Ry. Co., 
 30 S. C. 539; Alabama S. R. Nav. Co. 
 v. Georgia Pac. Ry. Co., 87 Ala. 154 
 
246 THE LAW OF WATERS. [Ch. IV. 
 
 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, 1 and damages may be recov- 
 ered for a peculiar private injury caused thereby, though a 
 like injury is sustained by numerous other persons. 2 There is 
 no right of private action if the plaintiff, hearing of the ob- 
 struction, does not go upon the highway obstructed, but vol- 
 untarily takes another more expensive route. 3 
 
 § 126. Same — Same. — It has been held that one who is 
 prevented from abating the nuisance can recover the damages 
 which he sustains by the consequent delay or loss of his voy- 
 age. 4 And, by the apparent weight of authority, at least of 
 the older decisions, one who (being, as it is said, in actual oc- 
 cupation of th« navigation, and not merely having it in con- 
 templation 5 ) 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. 6 But the evidence of dam- 
 See Pittsburgh v. Scott, 1 Penn. St. T. Jones, 156; Maynell v. Saltmarsh, 
 309. 1 Keb. 847; Wiggins v. Boddlington, 
 
 1 Pierce u Dart, 7Cowen, 609; Lan- 3 Car. & P. 156; Iveson v. Moore, 
 sing v. "Wiswall, 5 Denio, 213; Lan- Carth. 451; 1 Ld. Rayrn. 486; Salk. 
 sing v. Smith, 4 Wend. 9; 8 Cowen, 15; Greasly v. Codling, 2 Bing. 263; 
 146; Hudson River R Co. v. Loeb, 7 9 Moore, 489; Lyme Regis v. Henley, 
 Rob. 418. 1 Bing. N. R 222; 3 B. & Ad. 77; 2 
 
 2 Francis v. Schoellkopf, 53 N. Y. CI. & Fin. 331; Wilkes v. Hungerford 
 152; Soltau v. De Held, 2 Sim. n. s. Market Co., 2 Bing. N. C. 281; Dud- 
 133. ley v. Kennedy, 63 Maine, 465 ; Brown 
 
 3 Burton v. Dougherty, 3 Pugsley & v. Watson, 47 id. 161; Veazie v. 
 B. (N. B.) 51. Dwinel, 50 id. 490; Gerrish v. Brown, 
 
 4 Chichester v. Lethbridge, Willes, 51 id. 256; Cole v. Sprowl, 35 id. 161; 
 71; Hart v. Bassett, T. Jones, 156; Low v. Knowlton, 26 id. 128; Stetson 
 Winterbottom v. Derby, L. R 2 Ex. v. Faxon, 19 Pick. 147; Atkins v. 
 316; Hughes v. Heiser, 1 Binney, 463. Bordman, 2 Met. 457,469; Harvard 
 
 5 Rose v. Miles, 4 M. & S. 101. College v. Stearns, 15 Gray, 1, 6; 
 
 6 Cases above, notes 1, 2; Rose v. Blackwell v. Old Colony R. Co., 122 
 Miles, 4 M. & S. 101; Blagrave v. Mass. 1 ; French v. Connecticut River 
 Bristol Water Works Co., 1 H. & N. Lumber Co., 145 Mass. 261 ; Jolly v. 
 367; Drake v. Sault Ste. Marie Pulp Terre Haute Drawbridge Co., 6 Mc- 
 & Paper Co., 25 Ont App. 251 ; Bacon Lean, 237; United States v. New Bed- 
 v. Arthur, 4 Watts, 437; Williams v. ford Bridge, 1 Wood. & M. 401; Clark 
 Tripp, 11 R. I. 447; Hart v. Bassett, v. Peckham, 10 R. L35; Enos v. Ham- 
 
§ 127.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 247 
 
 age must be direct and positive ; 1 and if the plaintiff is him- 
 self responsible for the obstruction in whole or in part, or if 
 his own want of ordinary caution is the cause of the injury, 2 
 he cannot recover. 3 A company, incorporated for the purpose 
 of improving a navigable river, which suffers a loss of its tolls 
 in consequence of an unauthorized bridge across the river, may 
 maintain a suit to prevent its completion. 4 So, the obstruction 
 of a canal, though amounting to a public nuisance, is action- 
 able when it involves the breach of. a private warranty. 5 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. 6 
 
 § 127. Same — Same. — In Enos v. Hamilton, 7 in Wisconsin, 
 the plaintiff had a tannery in the village of New London on 
 the "Wolf River, and procured the bark necessary for carrying 
 ■on his business at a point upon the Wolf Eiver about sixty 
 
 ilton, 27 Wis. 256; Hall v. Kitson, 4 
 Chand. (Wis.) 20; Pittsburgh v. Soott, 
 1 Penn. St. 309; Rhines v. Clark, 51 
 Perm. St. 96; Philadelphia v. Collins, 
 68 Penn. St. 106; Philadelphia v. Gil- 
 martin, 71 id. 140; Newbold v. Mead, 
 57 id. 487; Saylor v. Penn. Canal Co., 
 183 id. 167; Powers v. Irish, 23 Mich. 
 429; Martin v. Bliss, 5 Blaokf. 35; 
 Farmers' Co-op. Manuf. Co. v. Albe- 
 marle & R. E. Co., 117 N. C. 579; 
 Jones v. St. Paul, etc. Ry. Co., 16 
 Wash. 25; Morris v. Graham, id. 343; 
 Memphis R. Co. v. Hicks, 5 Sneed, 
 427; South Carolina R. Co. v. Moore, 
 28 Ga. 398; Tyrrell v. Lockhart, 3 
 Blackf. 136; Browne v. Scofield, 8 
 Barb. 239. Contra, Carey v. Brooks, 
 1 Hill (S. C), 365; McLaughlin v. 
 Charlotte R. Co., 5 Rich. (S. C.) 592; 
 South Carolina S. Co. v. South Car- 
 olina Ry. Co., 30 S. C. 546; Same v. 
 Wilmington, etc. R. Co., 46 S. C. 327; 
 Houston v. Police Jury, 3 La. Ann. 
 566; Baird v. Wilson, 22 C. P. (Can.) 
 491; Crandell v. Mooney, 23 id. 212. 
 
 i Powers v. Irish, 23 Mich. 429; 
 Baxter v. Winooski Turnpike Co., 22 
 Vt. 114; Brown v. Watson, 47 Maine, 
 161; Milarkey v. Foster, 6 Oregon, 
 378. 
 
 * Ante, § 92; post, § 128. 
 
 3 MoGinnis v. Blackman, 39 Mich. 
 Ill; Flynn v. Canton Co., 40 Md. 312. 
 
 4 Wisconsin River Imp. Co. v. 
 Lyons, 30 Wis. 61. See Green & B. 
 R. Nav. Co. v. Chesapeake, etc. R. 
 Co., 88 Ky. 1. 
 
 8 Bruning v. New Orleans Canal 
 Co., 12 La. Ann. 541. Obstructions 
 to the navigation do not excuse the 
 breach of a contract to deliver mer- 
 chandise by a certain day. Dodge v. 
 Van Lear, 5 Cranch, C. C. 278. 
 
 6 Prosser v. Ottumwa, 42 Iowa, 509. 
 
 7 27 Wis. 256; 24 Wis. 658; Barnes 
 v. Racine, 4 Wis. 454; Walker v. 
 Shepardson, 2 Wis. 384; The A. C. 
 Conn Co. v. Little Suamico Lumber 
 Co., 55 Wis. 580. 
 
248 THE LAW OF WATERS. [Cs. IT. 
 
 miles above New London, which was the only place where the 
 bark required could be obtained. The Wolf Kiver between 
 these points is a navigable- stream, and the defendants ob- 
 structed 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 opinions refers to earlier 
 decisions in Massachusetts, 1 but is not reconcilable with the 
 later decisions in that State. 2 It has, however, more or less 
 support in the decisions of other States. 3 The general rule 
 clearly is that, the right of navigation being a public and not 
 a private right, a riparian owner cannot maintain an action for 
 an unlawful obstruction which prevents his use of this public 
 right. 4 
 
 § 128. Same — Abatement. — A common nuisance may be 
 abated without compensation 5 and without notice. 6 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; 7 
 
 1 Citing Stetson v. Faxon, 19 Pick. 42 Minn. 532; Pittsburgh R. Co. v. 
 ' 147; Blood v. Nashua R Co., 2 Gray, Jones, 111 Penn. St. 204 
 
 137; Smith v. Boston, 7 Cush. 254; »Coe v. Sohultz, 47 Barb. 64; Man- 
 
 Brainard v. Boston, id. 506; Holmes hattan Manuf. Co. v. VanKeuren, 23. 
 
 v. Townsend, 13 Met. 297; Carpenter N. J. Eq. 251; Com. v. Tolman, 149 
 
 v. Mann, 17 Wis. 155. Mass. 229. 
 
 2 Ante, § 122. « Missouri River Packet Co. v. Han- 
 
 3 Tinsman v. Belvidere Delaware nibal R. Co., 1 McCrary, 281. 
 
 R. Co., 26 N. J. L. 148; 25 id. 255; ? Arundel w. McCulloch, 10 Mass. 70; 
 Shephard v. Barnett, 52 Texas, 638; Wales v. Stetson, 2 Mass. 143; Garey 
 Hickok v. Hine, 23 Ohio St. 523. See v. Ellis, 1 Cush. 307; Brown v. Perk- 
 Maxwell v. Bay City Bridge Co., 48 ins, 12 Gray, 89; Willis v. Sproule, 13 
 Mich. 278 ; New York v. Baumberger, Kansas, 257 ; Beach v. Schoff, 28 Penn. 
 7 Rob. (N. Y.) 219: Hudson River R. St. 195; Owens v. State, 52 Ala. 400; 
 Co. v. Loeb, 7 Rob. 418; Manhattan Hopkins v. Crombie. 4 N. H. 520; State 
 Gaslight Co. v. Barker, 7 Rob. 523; 36 v. Anthoine, 40 Maine, 435; Lincoln 
 How. Pr. 233; Walker v. Allen, 72 u Chadbourne, 56 id. 197; Earp v. Lee,. 
 Ala. 456; Luhrs v. Sturtevant, 10 71 111. 193; Rung v. Shoneberger, 2 
 Oregon, 170. That a town and vil- Watts, 23; Selmanu Wolfe, 27 Texas, 
 lage may be liable, jointly and sev- 68; James v. Hay ward, Cro. Car. 184 - r 
 erally, for negligently managing the Harrington v. Edwards, 17 Wis. 586 j 
 draw of a bridge, controlled by both, Williams v. Fink, 18 Wis. 265; King 
 to a navigator's injury, see Weisen- v. Sanders, 2 Brev. (S. C.) Ill; Dim- 
 berg v. Winneconne, 56 Wis. 667. mett v. Eskridge, 6 Munf. 308. 
 
 4 Swanson v. Miss. River Boom Co., 
 
§ 128.] 
 
 PUBLIC BIGHT OF NAVIGATION. 
 
 249 
 
 and he may enter upon the land of the person erecting or con- 
 tinuing the obstruction, if necessary to remove it. 1 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. 2 
 An individual cannot, however, abate a common nuisance, if 
 it would cause a breach of the peace ; s and, although the pub- 
 lic 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 unnecessarily or wan- 
 tonly, thereby injuring property which is so placed as to con- 
 stitute a common nuisance, but which does not interfere with 
 the reasonable prosecution of his voyage. 4 So a private indi- 
 vidual cannot abate the nuisance to a greater extent than is 
 necessary to effect a passage, 5 is liable for doing an unnecessary 
 
 1 Arundel v. McCulloch, 10 Mass. 70. 
 
 2 Ken wick v. Morris, 3 Hill, 621; 
 7 Hill, 575; Coates v. New York, 7 
 Cowen, 558, 600; Mills v. Hall, 9 
 Wend. '315; Burnharn v. Hotchkiss, 
 14 Conn. 310, 317; Gunter v. Geary, 1 
 Cal. 462; Pennsylvania v. Wheeling 
 Bridge Co., 13 How. 518, 566; Knox 
 v, 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. Paul, id. 
 428; Manhattan Manuf. Co. v. Van 
 Keuren, 23 N. J. Eq. 251; Hale, De 
 Portibus Maris, ch. 7 ; Hargrave's Law 
 Tracts, 87, 88; Harvey v. Dewoody, 
 18 Ark. 252; 4 Black. Com. 167; Bac. 
 Abr. tit. Nuisance, 6; Com. Dig. tit. 
 Action on the Case for Nuisance, D. 
 4. See Williams v. Blackwell, 32 L. 
 J. Ex. 174; Tarrar v. 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 naviga- 
 tion, until the right to maintain the 
 dam is decided. Crenshaw v. Slate 
 River Co., 6 Rand. 245. 
 
 3 Earp v. Lee, 71 111. 193; Day v. 
 Day, 4 Md. 362; Turner v. Holtzman, 
 
 54 Md. 148; Mohr v. Gault, 10 Wis. 
 513; Smart v. Com., 27 Gratt. 950, 
 953. Contra, that all necessary force 
 may be used to effect a passage when 
 resistance is made, see Brubaker v. 
 Paul, 7 Dana, 428. 
 
 i Ante, § 92; Colchester v. Brooke, 
 7 Q. B. 339; Dimes v. Petley, 15 id. 
 276; Bateman v. Bluck, 18 id. 870; 
 Davies v. Mann, 10 M. & W. 545; 
 Bridge v. Grand Junction Ry. Co., 
 3 M. & W. 244; Eastern Ry. Co. v. 
 Dorling, 5 C. B. N. S. 821; Rady v. 
 London Ry. Co., 1 A. C. 754; L. R. 10 
 Ex. 100; 9 id. 71; Roberts v. Rose, L. 
 R. 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 R. Co., 3 Ohio St. 172; 
 Lovett v. Salem R. Co., 9 Allen, 557;. 
 Pilcher v. Hart, 1 Humph. 524; Smart 
 v. Com., 27 Gratt. 950, 953. 
 
 5 Ibid.; Bird v. Holbrook, 4 Bing. 
 628; Hicks v. Dorn, 42 N. Y. 47, 52; 
 Ely v. Supervisors, 36 N. Y. 297; 
 Blodgett v. Syracuse, 36 Barb. 529;. 
 Harrower v. Ritson, 37 id. 301; Grif- 
 fith v. McCullum, 46 id. 561; Dyer 
 v. Dupri, 5 Whart. 587; Goldsmith v, 
 Jones, 43 How. Pr. 415; Northrop v. 
 
250 
 
 THE LAW OF WATEKS. 
 
 [Ch. IV. 
 
 injury, and cannot convert to his own use the materials of 
 which the structure is composed. 1 " This right and power," 
 says Shaw, C. J., 2 "is never entrusted to individuals in gen- 
 eral, without process of law, by way of vindicating the public 
 right, but solely for the relief of a party whose right is ob- 
 structed 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. 3 If the abatement is lawful, the intent in making 
 
 Burrows, 10 Abb. Pr. 365; Owens v. 
 State, 52 Ala. 400; State v. Moffet, 1 
 G. Greene, 347 ; Moff ett v. Brewer, id. 
 348; Morrison v. Marquardt, 34 Iowa, 
 35; Brown v. Chadbourne, 31 Maine, 
 9; Dwinel v. Veazie, 44 id. 167; Vea- 
 zie v. Dwinel, 50 id. 479, 496; Pres- 
 cott v. Williams, 31 Pick. 241; Gates 
 v. Blincoe, 2 Dana, 158; Graves v. 
 Shattuck, 35 N. H. 357; Hopkins v. 
 ■Crombie, 4 id. 520; Philiber v. Mat- 
 son, 14Penn. St. 306; Beach v. Schorl, 
 38 id. 195. See Criswell v. Clugh, 3 
 "Watts, 330; Dimmett v. Eskridge, 6 
 Munf. (Va.) 308. 
 
 1 Larson v. Furlong, 50 Wis. 681 ; 
 -Godsell v. Fleming, 59 Wis. 52; State 
 v. Taylor, 27 N. J. L. 117. Such con- 
 version may make the defendants 
 trespassers ab initio. Little v. Ince, 
 
 3 C. P. (Can.) 528. 
 
 2 Brown v. 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 v. Martin, 41' Ind. 145. 
 A person is not precluded, by abat- 
 ing a nuisance, from bringing an ac- 
 tion for the damages which he has 
 previously sustained thereby. Glea- 
 «on v. Gary, 4 Conn. 420; Pierce v. 
 Dart, 7 Cowen, 609; Lansing v. Smith, 
 
 4 Wend. 9; Hudson River R. Co. v. 
 Loeb, 7 Rob. 418; Call v. Buttrick, 4 
 
 Cush. 345. Nor, after an action has 
 once accrued for obstructing a right 
 of way, does an offer by the defend- 
 ant to remove the obstruction de- 
 prive 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. Hopkins v. West- 
 ern Pacific R. Co., 50 CaL 191. In 
 Crenshaw v. Slate River Co., 6 Rand. 
 (Va.) 245, a corporation claimed the 
 right to abate a mill-dam as a nui- 
 sance to the navigation of a stream; 
 and, it appearing that such abate- 
 ment would cause great loss to the 
 mill-owner and inconvenience to the 
 public, it was held that a court of 
 equity had jurisdiction to prevent 
 the intended abatement until the 
 right to maintain the dam was de- 
 cided. Judicial determination is nec- 
 essary before an object can be abated 
 as a nuisance, except as to nuisances 
 per se, which may be abated sum- 
 marily, e. g., such as affect health, or 
 the safety of person or property, or 
 are tangible obstructions to high- 
 ways. Denver v. Mullen, 7 Col. 345. 
 3 Authorities cited, Barnes v. Ra- 
 cine, 4 Wis. 454; Greene v. Nunne- 
 maoher, 36 Wis. 50; Spokane Mill Co. 
 v. Post, 50 Fed. Rep. 429; Brown v. 
 Perkins, 13 Gray, 89; State v. Paul, 5 
 R. I. 185; State v. Keeran, 5 R, I. 497; 
 Great Falls Co. v. Worster, 15 N. H. 
 438; Amoskeag Manuf. Co. v. Good- 
 ale, 46 N. H. 53; Clark v. St. Clair Ice 
 
.§ 129.] PUBLIC EIGHT OF NAVIGATION. 251 
 
 it is immaterial, and notice need not be given. 1 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. 2 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 un- 
 sightly and diminished the salable value of the lots by inter- 
 fering with the prospect therefrom, or because the access to 
 the lots by water was thereby made less convenient, it not ap- 
 pearing 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. 3 And the legislature 
 cannot declare the building of a private residence to be a nui- 
 sance because it cuts off the sea breeze and obstructs the view 
 of the sea from other estates. 4 A right of prospect cannot be 
 gained even where the obstruction of light is illegal; 5 but such 
 right may be secured by express agreement and injunction. 6 
 Where a camp-meeting association mapped out its land into 
 lots, reserving a camp-ground between the ocean and the lot 
 sold by it to the plaintiff, on which he built a cottage, his out- 
 look was protected by injunction. 7 
 
 §129. Obstructions — Congress — State legislation. — In 
 
 'Gibbons v. Ogden, 8 the Supreme Court of the United States 
 decided in 1824 that the word " commerce," as employed in 
 the Constitution, is not limited to trade or traffic, but includes 
 
 Co., 24 Mich. 508; Finley'v. Hershey, 5 s ee Innes on Easements (2d ed.), 5. 
 
 41 Iowa, 389; McGregor v. Boyle, 34 6 Buck v. Adams, 45 N. J. Eq. 552. 
 
 Iowa, 268; Fort Plain Bridge Co. v. 7 Lennig v. Ocean City Ass'n, 41 N. 
 
 Smith, 30 N. Y. 44; Rogers v. Rogers, J. Eq. 24, 606. 
 
 14 Wend. 131; Wetmore v. Tracey, 14 8 9 "Wheat. 1; Veazie v. Moore, 14 
 
 Wend. 250; Griffith v. McCullum, 46 How. 568, 573; Brown v. Maryland, 
 
 Barb. 561; Harrower v. Ritson, 37 12 Wheat. 419; Lord v. Steamship 
 
 Barb. 301; Goldsmith v. Jones, 43 Co., 102 U. S. 541; Railroad Co. v. 
 
 How. Pr. 415. Richmond, 19 Wall. 584; New York 
 
 i Arpin v. Bowman, 83 Wis. 54. v. Miln, 11 Peters, 102; The License 
 
 2 Harvard College v. Stearns, 15 Cases, 5 How. 504; Cooley v. Board 
 Gray, 1. of Wardens, 12 How. 299; New York, 
 
 3 Bowden v. Lewis, 13 R. I. 189. etc. R. Co. v. New York, 165 U. S. 
 
 4 Quintini v. Bay St. Louis, 64 Miss. 628, 631 ; 1 Kent Com. 439. 
 483. 
 
252 THE LAW OF WATEKS. [Ch. IV., 
 
 the navigation of rivers, bays, and harbors of the several 
 States, and the intercourse between nations or citizens con- 
 nected 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 citizens of other States, but aot 
 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 com- 
 merce between the States is vested in Congress. In the im- 
 portant case of Pennsylvania v. Wheeling Bridge Co., 1 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 Eiver, having but a single span, about 980 feet in length, 
 without draws or openings, and that steamboats or sail vessels 
 could not pass under it at all stages of the water. Congress 
 had previously regulated navigation upon this river by licens- 
 ing vessels, establishing 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 
 navigation of the river should be free and common to all citi- 
 zens 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 by 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. 2 It being subsequently 
 agreed by the parties that a draw which was deemed of suffi- 
 cient width by the court might be constructed over the west- 
 ern channel of the river, the bridge, as constructed over the 
 main or eastern channel, was permitted to stand, 3 and a subse- 
 quent act of Congress, declaring the bridge a lawful structure, 
 
 *13 How. 518; 18 How. 421. be left to injured persons to insti- 
 
 2 13 How. p. 578. tute proper proceedings in the event 
 
 3 13 How. pp. 577, 619, 627; Ibid, that the structure, when completed, 
 
 In equity an obstruction erected in proves to be a nuisance. St. Louis v. 
 
 navigable waters, especially if it is Knapp Co., 2 McCrary, 516; 104 U. S. 
 
 uncompleted, will not necessarily be 658. 
 
 enjoined as a nuisance, but it may 
 
§ 129.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 253 
 
 was held to be valid. 1 The United States may restrain by in- 
 junction those who act under State authority from so floating 
 logs, or doing other acts, as to seriously injure its improvements 
 
 would, to some extent, interfere with 
 the navigation; that the determina- 
 tion of Congress, as to the extent of 
 the interference which would be pei - - 
 mitted, was conclusive; that Con- 
 gress might devolve upon the Secre- 
 tary of "War the power to approve ov 
 prescribe the plan of the bridge; that 
 the Secretary of War could convey 
 the notification }n any way that 
 would be effectual, and that notice 
 of approval, given through one of his 
 subordinates, was sufficient. Cov- 
 ington Harbor Co. v. Phoenix Bridge 
 Co., 23 Wkly L Bui. 34; Commission- 
 ers v. Detroit, 80 Mich. 663; 18 A. G. 
 Op. 512: 19 id. 295, 375. The author- 
 ity conferred by the act of Congress 
 of 1888 (25 Stat. 424) upon the Secre- 
 tary of War to make the necessary 
 rules and .regulations to protect im- 
 provements on the Mississippi, which 
 makes their violation a misdemeanor, 
 is not invalid as conferring legisla- 
 tive authority upon that officer. 
 United States v. Breen, 40 Fed. Rep. 
 402; 19 A. G. Op. 317; see 21 id. 41, 
 221, 293, 305, 308, 518, 594; United 
 States v. Keokuk Bridge Co., 45 Fed. 
 Rep. 178; Same v. Rider, 50 id. 406. 
 But this officer can only thus act 
 under some express or implied au- 
 thority of statute. United States v. 
 Pittsburgh R. Co., 26 Fed. Rep. 113; 
 Same v. Ormsbee, 74 id. 207. His ap- 
 proval for bridges, required by the 
 U. S. Stats, of Sept. 19, 1890, does not 
 limit the power of State authorities 
 as to public nuisances in State waters. 
 Lake Shore R. Co. v. Ohio, 165 U. S. 
 365 ; see People v. Supervisors, 142 N. 
 Y. 271; Chicago v. Law, 144 111. 569. 
 Such required approval is a consti- 
 tutional provision. United States v. 
 Moline, 82 Fed. Rep. 592. That stat- 
 ute relates solely to navigable wateis. 
 Egan v. Hart, 165 U. S. 188, 192. In 
 
 1 18 How. 421; The Clinton Bridge, 
 10 Wall. 454; 1 Woolw. 150; South 
 Carolina v. Georgia, 93 U. S. 4; Baird 
 v. Shore Line R. Co., 6 Blatch. 276, 
 461 ; Northern Pacific R. Co. v. Barnes- 
 ville R. Co., 2 McCrary, 224; St. Louis 
 v. Knapp Co., id. 516; s. C. 104 U. S. 
 658. In Newport & Cincinnati Bridge 
 Co. v. United States, 105 U. S. 470; 
 13 Fed. Rep. 190; the States of Ken- 
 tucky and Ohio authorized the plaint- 
 iff to construct a bridge across the 
 Ohio River. Congress then passed a 
 resolution sanctioning the bridge, 
 but reserving the right to withdraw 
 its assent in case the navigation of 
 the river should at any time be sub- 
 stantially and materially obstructed 
 thereby, or to direct the necessary 
 modifications and alterations of such 
 bridge; but afterwards, and while 
 the bridge was building, declared it 
 unlawful, to proceed with its con- 
 struction unless certain changes 
 were made. The majority of the 
 court held (Miller, Field and Bradley, 
 JJ., dissenting, and Matthews, J., not 
 sitting) that such reservation by Con- 
 gress of the right to withdraw its 
 assent was valid, and that such a 
 withdrawal of the assent of Congress 
 amounted to an enactment that the 
 further construction of the bridge, 
 as intended, should be unlawful, irre- 
 spective of the State legislation. In 
 People v. Kelly, 76 N. Y. 475; 5 Abb. 
 N. C. 383 (see Miller v. New York, 18 
 Blatch. 212; 10 Fed. Rep. 513; 109 U. 
 S. 385; United States v. Oregon Ry. 
 Co., 16 Fed. Rep. 524; Penn. Ry. Co. 
 v. Baltimore Ry. Co., 37 id. 129; Jenks 
 v. Miller, 43 N. Y. S. 927), the Court of 
 Appeals of New York held that Con- 
 gress could authorize the construc- 
 tion of the suspension bridge across 
 the East River, between the cities of 
 New York and Brooklyn, although it 
 
254 
 
 THE LAW OF WATERS. 
 
 [Ch, IV. 
 
 of navigation. 1 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. 2 
 
 § 130. Same — Same. — State legislation is also upheld which 
 authorizes bridges and .similar obstructions upon navigable 
 streams ; and the commercial power vested in Congress extends 
 over the commercial waters of a State only as regards inter- 
 course with foreign nations, or with other States of the Union. 3 
 In Willson v. Blackbird Creek Marsh Co., 4 decided in 1829, it 
 
 United States v. Duluth, 1 Dillon, 469 
 (see Wisconsin v. Duluth, 96 U. S. 379 ; 
 2 Dillon, 406; Benner v. Atlantic D. 
 Co., 134 N. Y. 156) it was held that the 
 action of Congress, in making appro- 
 priations for the improvement of the 
 navigation between Lake Superior 
 and Superior Bay, was sufficient to 
 preclude State legislation authoriz- 
 ing a canal for the improvement of 
 Duluth harbor, which would seri- 
 ously 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. 
 
 1 United States v. Rum River Boom 
 Co., 1 McCrary, 397; Same v. Missis- 
 sippi Boom Co., id. 601. Obstructions 
 made in navigable waters under 
 State authority may be ordered re- 
 moved by Congress. United States 
 v. Moliue. 82 Fed. Rep. 592. 
 
 2 United States v. Beef Slough 
 Manuf. Co., 8 Biss. 421; Rhea v.- New- 
 port News, etc. R. Co., 50 Fed. Rep. 
 16; State v. Leighton, 83 Maine, 419; 
 Stockton v. Powell, 29 Fla. 1. The 
 power of Congress to enact statutes 
 totally or partially destroying the 
 navigability of streams within a 
 State is limited to such purposes as 
 
 are connected with the operations of 
 commerce or the carrying of the 
 mails. Woodruff v. North Bloom- 
 field G. M. Co., 8 Sawyer, 628; 9 idL 
 441. An action is maintainable in 
 the Federal courts, without regard to 
 citizenship, by a steamboat company 
 against a railroad corporation for 
 obstructing navigable waters of the 
 United States by building a bridge. 
 Sunflower River P. Co. v. Georgia P. 
 R. Co., 39 Fed. Rep. 229. 
 
 3 The Passenger Cases, 7 How. 283;. 
 The Bright Star. Woolw. 266, 275; 19 
 A. G. Op. 599, 676; Sears v. Warren 
 Co., 36 Ind. 367, p. 237, n. 1; Case of 
 State Freight Tax, 15 Wall. 232; s. c. 
 nom. Com. v. Phila. & Reading R. Co., 
 62 Penn. St. 286; 1 Pearson (Pa.), 379; 
 Com. v. Erie Ry., id. 345; People v. 
 Welch, 141 N. Y. 266. As to regu- 
 lating the landing of boats, see Union 
 Transp. Co. v. Bassett, 118 CaL 604 
 
 * 2 Peters, 245. Marshall, C. J., here 
 , said : "The act of assembly, by which 
 the plaintiffs were authorized to con- 
 struct their dam, shows plainly that 
 this is one of those many creeks, 
 passing through a deep level marsh 
 adjoining the Delaware, up which 
 the tide flows for some distance. The 
 value of the property on its banks 
 must be enhanced by excluding the 
 water from the marsh, and the health 
 of the inhabitants probably im- 
 proved. Measures calculated to pro- 
 duce these objects, provided they do- 
 
§ 130.] PUBLIC EIGHT OF NAVIGATION. 255- 
 
 appeared that the State of Delaware had authorized the build- 
 ing 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 ac- 
 cording 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 regu- 
 late commerce, and that the defendants were trespassers. This 
 decision was declared by the court in the "Wheeling Bridge 
 Case 1 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 ; 2 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, 3 and that such State legislation may confer 
 vested rights. 4 In Gilman v. Philadelphia, 5 a bridge thirty feet 
 above the waters of the Schuylkill River, a tidal stream entirely 
 
 not come into collision with the pow- 95 U. S. 485, 488, 516; People v. Rens- 
 
 ers of the general government, are selaer R. Co., 15 Wend. 113, 135; Mil- 
 
 undoubtedly within those which are ler v. New York, 13 Blatch. 469, 475 ; 
 
 reserved to the States. But the meas- Baird v. Shore Line Ry. Co., 6 Blatch. 
 
 ure authorized by this act stops a 276; Ormerod v. New York Ry. Co., 
 
 navigable creek, and must be sup- 21 Blatch.106; Gray v. Clinton Bridge, 
 
 posed to abridge the rights of those 16 Ain. Law Reg. 149; United States 
 
 who have been accustomed to use v. New Bedford Bridge, 1 Wood. & 
 
 it. But this abridgment, unless it M. 407 ; Flanagan v. Philadelphia, 42 
 
 comes in conflict with the Constitu- Penn. St. 219, 231; Craig v. Cline, 65 
 
 tion, or a law of the United States, id. 399; Stevens v. Paterson R. Co., 34 
 
 is an affair between the government N. J. L. 532, 552; Norris v. Boston, 4 
 
 of Delaware and its citizens, of which Met. 282, 296 ; Dunham v. Lampbere. 
 
 this court can take no cognizance.'' 3 Gray, 268, 273; Bailey v. Philadel 
 
 1 13 How. 518, 566. phia R. Co., 4 Harr. (Del.) 389, 395 
 
 2 Per Hunt, J., in Silliman v. Troy Cox v. State, 3 Blackf. (Ind.) 193, 197 
 and West Troy Bridge Co., 11 Blatch. Savannah v. Georgia, 4 Ga. 26, 41 
 274, 287 ; People v. Rensselaer R. Co., Kellogg v. Union Co., 12 Conn. 7 
 13 Wend. 113, 135. Ex parte Crandall, 1 Nev. 294, 310 
 
 3 Pennsylvania v. Wheeling Bridge Dover v. Portsmouth Bridge, 17 N. H. 
 Co., 13 How. 518, 566; The Passenger 200, 226; State v. Dibble, 4 Jones- 
 Cases, 7 How. 397; Gilman v. Phila- (N. C), 107, 112. 
 
 delphia, 3 Wall. 713; Pound v. Turck, 4 Monongahela Nav. Co. v. United 
 95 U. S. 459 ; County of Mobile v. Kim- States, 148 U. S. 312. 
 ball, 102 D. S. 691, 700 ; Hall v. De Cuir, s 3 Wall 713. 
 
256 THE LAW OF WATERS. [Ch. IY. 
 
 within the State of Pennsylvania, was about to be erected, with 
 no draw or opening, under the authority of the State. There 
 was already a bridge over the stream, about five hundred 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 structure, hold- 
 ing, upon the authority of The Blackbird Creek Case, that, as 
 Congress had not acted on the precise subject, the State had con- 
 current jurisdiction over it, but expressly denying 2 that the fact 
 that the Schuylkill Eiver lay within a single State affected the 
 power of Congress over it. In the case of The Passaic Bridges, 3 
 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 inten- 
 tion by Congress to interfere with the power of the State to 
 obstruct its navigable waters, but only to authorize navigation 
 upon them by coasting vessels while they are navigable. 4 
 
 § 131. Same — Same. — In Pound v. Turck, 5 the question 
 presented was as to the validity of a statute of Wisconsin 
 which authorized the construction of dams at a given point 
 
 1 In the dissenting opinion of Mr. liman v. Troy and West Troy Bridge 
 Justice Clifford, which was concurred Co., 11 Blatch. 274, 287 ; Devoe v. Pen- 
 in by Justices Wayne and Davis, it rose Ferry Bridge Co., 8 Am. Law 
 was maintained that Congress had Eeg. 79; 5 Penn. Law Jour. 313; 
 regulated navigation on the waters in United States v. New Bedford Bridge, 
 question. 1 Wood. & M. 401, 419; Milor v. New 
 
 2 3 Wall. 724, 725; The Daniel Ball, Jersey R. Co., 6 Am. L. Reg. 6; Penn- 
 
 10 Wall. 557, 564; The Montello, 20 sylvania R. Co. v. New York R. Co., 
 
 Wall. 430. 18 Int. Rev. Rec 142. See The Pas- 
 
 3 3 Wall. 782, 793; Escanaba Co. v. saic Bridges, 3 Wall. 782, 793; Kellogg 
 Chicago, 107 U. S. 678. v. Union Co., 12 Conn. 7, 27; Thames 
 
 4 Hatch v. Wallamet Iron Bridge Bank v. Lovell, 18 Conn. 500; Wash- 
 Co., 7 Sawyer, 127; 6 Fed. Rep. 326, ington Bridge Co. v. State, 18 Conn. 
 780; 27 id. 673; Pennsylvania!'. Wheel- 53, 65. 
 
 ing Bridge Co., 13 How. 518, 585; Sil- 5 95 U. S. 459. See also County of 
 
§ 13ii.] PUBLIC EIGHT OF NAVIGATION. 257 
 
 across the Chippewa Eiver, 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 con- 
 structed 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 
 in Congress, and which the States can exercise under no cir- 
 cumstances ; 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. 1 Of this class are pilotage 
 and other regulations ; 2 bridges, across navigable streams ; 3 and 
 as especially applicable to the case before us to erect dams 
 across navigable streams." 4 . . . " The present case falls 
 directly within the prinbiple established by these cases, and 
 aptly illustrates its wisdom." No decision appears in which 
 State laws, or regulations under State authority, on subjects 
 of a local nature, have been set aside on the ground of repug- 
 nance to the power of regulating commerce given to Congress, 
 unless it has appeared that they were contrary to some ex- 
 press provision of the constitution, or to some act of Congress, 
 or that they amounted to an assumption of power exclusively 
 conferred upon Congress. 5 
 
 § 132. Same — Same. — There are three cases in which au- 
 thority 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 
 
 Mobile v. Kimball, 102 U. S. 691, 700; s Gilman v. Philadelphia, 3 Wall 
 
 Sweeney v. Chicago Ey. Co., 60 Wis. 713. 
 
 60. The State may authorize dams 4 Willson v. Blackbird Creek Co., 2 
 
 in navigable rivers for other purposes Peters, 245; Gilman D.Philadelphia, 
 
 than the improvement of the naviga- 3 Wall. 713; Crandall v. Nevada, 6 
 
 tion. State v. Eau Claire, 40 Wis. 533. id. 35. 
 
 i Railroad <Co. v. Fuller, 17 Wall. 6 Transp. Co. v. Parkersburg, 107 
 560, 569; Mullen v. Penobscot L. D. U. S. 691, 705, per Bradley, J.; Card- 
 Co., 90 Maine, 555. well v. American Bridge Co., 113 
 
 2 Cooley v. Board of Wardens, 12 IT. S. 205; Soheurer v. Columbia 
 
 How. 299. Street Bridge Co., 27 Fed. Eep. 172. 
 
258 
 
 THE LAW OF WATERS. 
 
 [Ch. IT. 
 
 the right to take toll is desired. 1 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; 2 and the mere grant of commercial power, ante- 
 rior to any action of Congress under it, is not, in this respect, 
 exclusive of State authority. 3 Even when an impassable struct- 
 ure like a dam might be removable as obstructing interstate 
 commerce, a bridge, erected under authority from a State,, 
 which, having draws or openings, affords opportunity for ves- 
 sels 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 con- 
 
 » Fort Plain Bridge Co. v. Smith, 30 
 N. Y. 44. "Bridge" held not to in- 
 clude a causeway built from the end 
 thereof. Swanzey v. Somerset, 132 
 Mass. 312. 
 
 2 Willson v. Black Bird Creek Co., 
 2 Peters, 245; Withers v. Buckley, 20 
 How. 84; Pound v. Turck, 95 U. S. 
 459; Hall v. De Cuir, 95 U. S. 485, 
 488, 516; Wisconsin v. Duluth, 96 
 U. S. 379; 18 A. G. Op. 425; Wiscon- 
 sin v. Eau Claire, 40 Wis. 533. A 
 grant by the State of the right to 
 erect a dam in a navigable river is 
 subject to the rights of a prior 
 grantee. Union Canal Co. v. Landis, 
 9 Watts, 228. But the right of the 
 State to widen the draw of a bridge 
 which it owns is not impaired by a 
 previous grant to a street railway 
 corporation to run its cars over the 
 bridge, and the fact that the cars 
 will be temporarily interrupted. 
 Middlesex Railroad v. Wakefield, 103 
 Mass. 261. In Pennsylvania a stat- 
 utory license to the owners of lands 
 adjoining such a stream to erect 
 dams or water-works is subordinate 
 to the right of the State to grant 
 the water to a navigation company. 
 Monongahela Nav. Co. v. Coons, 6 
 
 Watts & S. 101; Susquehanna CanaL 
 Co. v. Wright, 9 Watts & S. 9. 
 
 * Ibid. ; County of Mobile v. Kim- 
 ball, 102 U. S. 691, 699, 700; Silliman 
 v. Hudson River Bridge Co., 4 Blatch. 
 74, 395, 409; 1 Black, 582; 2 Wall. 
 403; Henderson v. New York, 92 U. S. 
 259, 272; Minot v. Philadelphia R.. 
 Co., 2 Abb. (U. S.) 323, 338; Wood- 
 man v. Kilbourn Manuf. Co., 1 Biss.. 
 546; United States v. New Bedford 
 Bridge, 1 Wood. & M. 401; 18 A G. 
 Op. 133, 164, 200, 425, 512; 19 id. 395^ 
 599, 676 ;' Lister v. Newark Plank Road 
 Co., 36 N. J. Eq. 477; Ingraham v. 
 Chicago R Co., 34 Iowa, 249; Ex- 
 parte Crandall, 1 Nev. 294, 310; West- 
 ern Union Tel. Co. v. Atlantic Tel. 
 Co., 5 Nev. 102, 106; Dover v. Ports- 
 mouth Bridge, 17 N. H. 200; Parker 
 v. Cutler Mill-dam Co., 20 Maine, 353; 
 State v. Portland R Co., 57 id. 402;. 
 Lee v. Pembroke Iron Co., 57 id. 481 ^ 
 Moore v. Veazie, 32 id. 343; Brown v.. 
 Chadbourne, 31 id. 9; Rogers v. Ken- 
 nebec R. Co., 35 id. 319; Knox v. 
 Chaloner, 42 id. 150; Treat v. Lord,, 
 id. 552; State v. Freeport, 43 id. 198; 
 Veazie v. Dwinel, 50 id. 479 ; Piscata- 
 qua Bridge Co. v. New Hampshire- 
 Bridge Co., 7 N. H. 35; Plecker v. 
 Rhodes, 30 Gratt. 795. 
 
§ 132.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 259 
 
 demned,' although additional precautions in passing it may be 
 required on the part of vessels, or temporary delays may be 
 thereby caused to navigators. A bridge so authorized, hav- 
 ing a sufficient opening, or being of sufficient height, at the 
 usual state of the water or of ordinary freshets, 2 to permit the 
 
 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 E. Co. v. Ward, 
 2 Black, 485; Atlee v. Packet Co., 21 
 Wall. 389, 395; Crandall v. Nevada, 6 
 id. 35; Silliman v. Hudson River 
 Bridge Co., 4 Blatch. 74, 395; 1 Black, 
 582; 2 Wall. 403; Silliman v. Troy & 
 West Troy Bridge Co., 11 Blatch. 274; 
 Jolly v. Terre Haute Drawbridge Co., 
 
 6 McLean, 237; Works v. Junction 
 Railroad, 5 McLean, 425; United 
 States v. Railroad Bridge Co., 6 id. 
 517; Columbus Ins. Co. v. Curtinius, 
 id. 209: Same v. Peoria Bridge Co., 
 id. 70; Hood v. Dighton Bridge, 3 
 Mass. 263; People v. Rensselaer R. 
 Co., 15 Wend. 113, 134; Com. v. Breed, 
 
 4 Pick. 460; Com. v. New Bedford 
 Bridge, 2 Gray, 339; Com. v. Essex 
 Co., 13 Gray, 239; Com. v. Taunton, 
 
 7 Allen, 309, 312; Middlesex R. Co. 
 v. Wakefield, 103 Mass. 265; Talbot 
 County v. Queen Anne's County, 50 
 Md. 245; Easton u New York R. 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 R. 
 Co. v. Healy, 94 111. 416; Hodgman v. 
 St. Paul R. Co., 23 Minn. 153: 20 
 Minn. 48; Flanagan v. Philadelphia, 
 42 Penn. St. 219, 232; Monongahela 
 Bridge Co. v. Firk, 46 Penn. St. 112; 
 Att. Gen. v. Hudson River R. Co., 1 
 Stock. 526; Att. Gen. v. New York 
 R. Co., 24 N. J. Eq. 49; Att. Gen. v. 
 Stevens, Sax. (N. J.) 370; Tucker v. 
 Burlington Co., id. 282; Allen v. Mon- 
 mouth Co., 2 Beas. 68; Stevens v. 
 Erie Rv. Co.. 6 C. E. Green. 259: Att. 
 
 Gen. v. Paterson R. Co., 9 N. J. Eq. 
 526; Trenton Water Power Co. v. 
 Raff, 36 N. J. L. 335; Stephens Co. v. 
 Central R. Co., 34 id. 280; Rogers v. 
 Kennebec R. Cq., 35 Maine, 319; State 
 v. Freeport, 43 id. 198; State v. Port- 
 land R. Co., 57 id. 402; Moore v. Vea- 
 zie, 32 id. 343: 31 id. 360; 14 How. 
 568 ; County Com'rs v. County Com'rs, 
 50 Md. 245; Wisconsin Impr, Co. v. 
 Manson, 43 Wis. 255; New Haven 
 Toll Bridge Co. v. Bunnel, 4 Conn. 
 54; Jones v. Pettibone, 2 Wis. 308; 
 Depew v. Wabash & Erie Canal, 5 
 Ind. 8; Neaderhauser v. State, 28 Ind. 
 257; Williams v. Beardsley, 2 Ind. 
 591 ; Terre Haute Bridge Co. v. Hal- 
 liday, 4 Ind. 36; Cobb v. Smith, 16 
 Wis. 661; 3 Am. Law Reg. 1; Hoeft 
 v. Seaman, 38 N. Y. S. C. 62: Ex 
 parte Water Com'rs, 3 Edw. Ch. 290; 
 Selman v. Wolfe, 27 Texas, 68; Hud- 
 son v. Cuero Land Co., 47 Texas, 56; 
 Bailey v. Philadelphia R. Co., 4 Harr. 
 (Del.) 389; Heerman v. Beef Slough 
 Co., 1 Fed. Rep. 145; 8 Biss. 334; 
 Com'rs v. Withers, 29 Miss. 21; Eld- 
 ridge 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 
 defendants to maintain and rebuild 
 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 con- 
 stitutional. A town or village can 
 maintain a bridge over a navigable 
 river only upon condition of con- 
 structing a suitable draw. Weisen- 
 berg v. Winneconne, 56 Wis. 667; 
 Ligare v. Chicago, 139 111. 46. 
 
 2 See Pennsylvania v. Wheeling 
 Bridge Co.. 13 How. 518. 
 
260 
 
 THE LAW OF WATERS. 
 
 [Ch. IT. 
 
 passage of any vessel capable of navigating the stream, will 
 not be condemned as interfering with the powers of Congress, 
 even in cases where Congress has regulated navigation upon 
 the river ; 1 and the legislature of a State may empower per- 
 sons or corporations to erect and maintain bridges without 
 draws over its navigable waters, as well as dams, if the stat- 
 ute giving such power does not interfere with the regulations 
 of Congress on the same subject. 2 Such authority will be a 
 protection from indictment brought upon the ground that the 
 structure is a public nuisance, 3 and is valid, although no in- 
 demnity is provided for those who have been accustomed to 
 
 1 Georgetown v. Alexandria Canal 
 Co., 12 Peters, 91; Mississippi R. Co. 
 v. Ward, 3 Black, 485; Middle Bridge 
 Co. v. Marks, 26 Maine, 326; Presi- 
 dent v. Trenton City Bridge Co., 13 
 N. J. Eq. 46: State Bridge Co. v. 
 Metz, 5 Dutch. 122; 2 Vroom, 378; 
 
 3 id. 199; Dover v. Portsmouth 
 Bridge, 17 N. H. 200; Crosby v. Han- 
 over, 36 N. H. 404; Cornish Bridge 
 v. Richardson, 8 N. H. 207; Att. Gen. 
 v. Delaware R. Co., 27 N. J. Eq. 1, 
 €31; State v. Mutchler, 43 N. J. L. 
 461; Culbertson v. Wabash Nav. Co., 
 
 4 McLean, 544; State v. Boston R. 
 ■Co., 25 Vt. 433; Ohio R. Co. v. Wheeler, 
 
 I 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 bound- 
 ary between that State and another 
 State. Hunt v. Kansas Bridge Co., 
 
 II Kansas, 413. 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 v. Green- 
 wich, 29 Conn. 363. As to the carry- 
 ing of telegraph lines -across draw- 
 bridges, see Pacific M. Tel. Co. v. 
 Chicago Bridge Co., 36 Kansas, 113, 
 118. 
 
 2 Com. v. Taunton, 7 Allen, 309; 
 Com. v. New Bedford Bridge, 2 Gray, 
 339, 347; Davidson v. Boston R. Co., 
 3 Cush. 91. 106; Thayer v. New Bed- 
 ford R. Co., 125 Mass. 355; State v. 
 
 Freeport, 43 Maine, 198; Pennsyl- 
 vania R. Co. v. New York R Co., 23 
 N. J. Eq. 157; Ecorse v. Supervisors, 
 75 Mich. 264; Dietrich v. Schremms, 
 117 Mich. 298. See Flanagan u Phil- 
 adelphia, 42 Penn. St. 219; Brown v. 
 Com., 3 Serg. & R. 373; Wisconsin 
 v. Eau Claire, 40 Wis. 533; Tewks- 
 bury v. Schulenberg, 41 Wis. 584; 
 Wisconsin River Impr. Co. v. Man- 
 son, 43 Wis. 255; Att. Gen. v. Eau 
 Claire, 37 Wis. 400. If, in an action 
 for obstructing a navigable river, a 
 legislative grant, authorizing the 
 erection of a dam, is introduced in 
 defense, this does not raise a ques- 
 tion of title. Browne v. Scofield, 8 
 Barb. 239. A toll-bridge over a navi- 
 gable river is properly assessed and 
 taxed as real estate. Hudson River 
 Bridge Co. v. Patterson, 74 N. Y. 365; 
 11 Hun, 525. 
 
 3 Ibid. ; Stoughton v. State, 5 Wis. 
 291; Harris v. Thompson, 9 Barb. 
 350; People v. New York Gaslight 
 Co., 64 Barb. 55; 6 Lans. 467; Phoe- 
 nix v. Coni'rs, 13 How. Pr. 1; 1 Abb. 
 Pr. 466. It is the province of the 
 legislature to determine whether the 
 benefit to logging interests and to 
 commerce, arising from the erection 
 of dams, piers, and booms, will coun- 
 terbalance the inconvenience they 
 will necessarily cause to navigation 
 by vessels. Heerman v. Beef Slough 
 Co., 8 Biss. 334, 431. 
 
§ 133.] PUBLIC EIGHT OF NAVIGATION. 261 
 
 navigate in the waters which are thereby enclosed. 1 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, of 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 commerce by land, 2 or to change its di- 
 rection from one channel or part of a river to another. 3 The 
 combined action of Congress and of the State or States inter- 
 ested would legalize impediments to the right of passage over 
 any navigable waters. 4 In the case of boundary waters between 
 States, legislation by both States is, at least, necessary to au- 
 thorize obstructions, which affect citizens of both States or other 
 States, as the authority of one State is limited to its own waters, 
 shores and harbors. 5 A civil action may be maintained in the 
 Federal courts against a city for damage to a vessel arising from 
 one of its bridges, in which it fails to maintain a draw of the 
 width required by State legislation, although such right of ac- 
 tion is not conferred by statute. 6 
 
 § 133. Same — The Ordinance of 1787.— The effect of that 
 provision of the Ordinance of 1181, which declares the navi- 
 gable waters leading into the Mississippi and St. Lawrence to 
 
 1 Ibid. ; Com. v. Breed, 4 Pick. 460 ; 32 Ohio St. 116 ; Richmond v. Dubuque 
 Com. v. New Bedford Bridge, 2 Gray, R. Co., 33 Iowa, 422. Interstate 
 339. bridges are taxable by the respective 
 
 2 Luxton v. North River Bridge Co., States as to the part of it within the 
 153 U. S. 525. limits of each. Pittsburgh, etc., Ry. ' 
 
 3 Gilman v. Philadelphia, 3 "Wall. Co. v. West Virginia Board, of Public 
 713, 724; Pennsylvania v. Wheeling Works, 172 U. S. 32. 
 
 Bridge Co., 18 How. 421; The Clinton 4 Ibid.; Miller v. New York, 13 
 
 Bridge, 10 Wall. 454; 1 Woolw. 150; Blatch. 469; People v. Kelly, 5 Abb. 
 
 South Carolina v. Georgia, 93 U. S. 4; N. Cas. 383, 440; Winifrede Coal Co. 
 
 Georgetown v. Alexandria Canal Co., v. Central Ry. & B. Co., 24 Wky. Law 
 
 13 Peters, 91 ; Mississippi River Bridge Bui. 173 ; ante, § 129. 
 
 Co. v. Lonergan, 91 111. 508, 517; Miller s Rutz v. St. Louis, 2 McCrary, 344; 
 
 v. New York, 13 Blatch. 469; Oregon Quincy Bridge- Co. v. Adams Co., 88 
 
 City Transp. Co. v. Columbia- St. 111. 615. 
 
 Bridge Co., 53 Fed. Rep. 549; Balti- 6 Boston v. Crowley, 38 Fed. Rep. 
 
 more R. Co. v. Wheeling Transp. Co., 202. 
 
262 
 
 THE LAW OF WATEES. 
 
 [Oh. IT. 
 
 be common highways and forever free, 1 was formerly the sub- 
 ject of much discussion with respect to its operation as a re- 
 straint upon the power of Congress or of the State legislatures 
 to pass laws not assented to by both, which authorize impedi- 
 ments to the free navigation of the rivers within its scope. 
 In Ohio it was held that the ordinance was in the nature of a 
 perpetual compact ; 2 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. 3 In Indiana it was 
 held that the ordinance was superseded by the Federal Con- 
 stitution ; but that it had been so far recognized and adopted, 
 with respect to navigable streams, by subsequent acts of Con- 
 gress, that it had the force of a subsisting law of the United 
 States, and that the total obstruction of these streams by dams 
 or otherwise is illegal. 4 In Wisconsin the adoption and ratifica- 
 tion of the State Constitution have been held to operate as a 
 repeal of the ordinance, so far as its provisions are in conflict 
 
 lAnte, § 68. 
 
 2 See Columbus Ins. Co. v. Curti- 
 nius, 6 McLean, 209; Jolly v. Terre 
 Haute Drawbridge Co., id. 237; Co- 
 lumbus Ids. Co. v. Peoria Bridge Co., 
 id. 70; Spooner v. McConnell, 1 Mo- 
 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. 
 
 3 Hogg v. Zanesville Canal Co., 5 
 Ohio, 419; Hutchinson v. Thompson. 
 9 id. 52; Gavit v. Chambers, 3 id. 496 
 Symonds v. Cincinnati? 14 id. 147 
 Kramer v. Chicago R. Co., 5 id. 140 
 Hubbard v. Toledo, 21 id. 379; Hickok 
 v. Hine, 23 id. 523, 527; Guthrie v. 
 McConnell, 2 McVey's Ohio Dig. 343, 
 pi. 8. In Com'rs v. Board of Public 
 Works, 39 Ohio St. 628, 633, the court 
 said: "The doctrine now firmly es- 
 tablished is that over the navigable 
 waters within the boundaries of these 
 States, Congress, in the assertion of 
 its power under the constitution to 
 regulate commerce among the sev- 
 eral States, may exercise control to 
 
 the extent necessary to protect, pre- 
 serve and improve their free naviga- 
 tion; but that while this power re- 
 mains dormant and until that body 
 acts, the States have plenary author- 
 ity over bridges across them, and 
 that there is nothing in the ordi- 
 nance of 1787 that precludes them 
 from exercising that authority." 
 
 *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. 156; Williams 
 v. Beardsley, 2 Ind. 591; Terre Haute 
 Drawbridge Co. v. Halliday, 4 Ind. 
 36; Com'rs v. Pidge, 5 Ind. 13; Nea- 
 derhauser 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. v. Pe- 
 oria Bridge Ass'n, 38 111. 467; Chicago 
 v. McGinn, 51 111. 266, 271 ; People v. 
 St. Louis, 5 Oilman, 351, 368; Missis- 
 sippi River Bridge Co. v. Lonergan, 
 91 I11.-308, 515; Phcebe v. Jay, 1 Scam. 
 207; Peters v. New Orleans R. Co., 56 
 Ala. 528, 535. 
 
§ 133.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 263 
 
 with that Constitution. 1 In certain cases in the Supreme Court 
 of the United States, it was held 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, owe their validity and authority to that Constitu- 
 tion and to the Constitutions and laws of the respective States. 2 
 The ordinance clearly does not deprive the State of power to 
 obstruct, within its own limits, bayous and sloughs, not useful 
 for interstate commerce; 3 to improve the navigation; 4 and 
 to exact tolls for the use of an improved water-way, 5 especially 
 in waters only floatable ; 6 or to grant ferry licenses. 7 If the 
 ordinance is an existing law, it would deprive the new States 
 of such power as the original States possess to terminate navi- 
 gation, and would so limit the powers of Congress that the 
 .assent of the States interested would be necessary to validate 
 its action. " If," says Miller, J., 8 " the ordinance were obliga- 
 tory in every particular, and not altered by common consent 
 
 5 Ind. 13; Williams v. Beardsley, 2 
 Ind. 591; La Plaisance Bay Harbor 
 Co. v. Monroe, Walk. Ch. 155; Lor- 
 man v. Benson, 8 Mich. 18, 26 ; Com'rs 
 v. Withers, 29 Miss. 41. 
 
 5 Ibid. ; Sands v. Manistee River 
 Impr. Co., 123 TJ. S. 288; Manistee 
 River Impr. Co. v. Sands, 53 Mich. 
 593; Huse v. Glover, 119 U. S. 543; 
 11 Biss. 550. 
 
 6 Ibid.; Osborne v. Knife Falls 
 Boom Co., 32 Minn. 412. 
 
 'Fanning v. Gregoire, 9 How. 534; 
 Conway v. Taylor, 1 Black, 603, 634; 
 Chapin v. Crusen, 31 Wis. 209; State 
 v. New Orleans Nav. Co., 11, Martin, 
 309, 323; Chiapella v. Brown, 14 La. 
 Ann. 189; Marshall v. Grimes, 41 
 Miss. 27; Wiggins Ferry Co. v. East 
 St. Louis, Chicago Legal News (1882), 
 p. 228. 
 
 8 Woodman v. Kilbourn Manuf. 
 Co., 1 Abb. (TJ. S.)158, 162; Escanaba 
 Co. v. Chicago, 107 TJ. S. 678; Huse 
 v. Glover, 119 TJ. S. 543; 11 Biss. 550; 
 Card well v. American Bridge Co., 113 
 TJ. S. 205; Sands v. Manistee River 
 Impr. Co., 123 TJ. S. 288. 
 
 1 Connecticut Mutual Ins. Co. v. 
 Cross, 18 Wis. 109. See Newcomb v. 
 Smith, 1 Chand. 71; Stoughton v. 
 State, 5 Wis. 291; Cobb v. Smith, 16 
 Wis. 661; Enos v. Hamilton, 24 Wis. 
 658; Wisconsin River Impr. Co. v. 
 Lyons, 30 Wis. 61; State v. Eau 
 Claire, 40 Wis. 533; Att. Gen. v. Eau 
 Claire, 37 Wis. 400; Tewksbury v. 
 Schulenberg, 41 Wis. 584; Wisconsin. 
 River Impr. Co. v. Manson, 43 Wis. 
 255; Milwaukee Gaslight Co. v. The 
 Gamecock, 23 Wis. 144. 
 
 2 See Strader v. Graham, 10 How. 
 ■82; Pollard v. Hagan, 3 How. 212; 
 Parmoli v. First Municipality, id. 589 ; 
 7 Op. At. Gen. 571; Menard v. Aspa- 
 sia, 5 Peters, 505; Dred Scott v. Sand- 
 ford, 19 How. 393, 490; Woodman v. 
 Kilbourn Manuf. Co., 1 Abb. (U. S.) 
 158, 162; Duluth Lumber Co. v. St. 
 Louis Boom Co., 5 McCrary, 382; 17 
 Fed. Rep. 419. 
 
 3 Ingraharn v. Chicago R. Co., 34 
 Iowa, 249; Shepard v. Gates, 50 Mich. 
 495. 
 
 4 Wisconsin River Impr. Co. v. 
 Manson, 43 Wis. 255; Att. Gen. v. Eau 
 Olaire, 37 Wis. 400; Com'rs v. Pi'dge, 
 
264: 
 
 THE LAW OF WATEKS. 
 
 [On. IV. 
 
 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 Constitu- 
 tion, the basis of this Union." 
 
 §134. Same — Statutory authority — Construction.— A 
 
 bridge or dam, erected in navigable waters and not sanctioned 
 by any statute, is indictable as a public nuisance, 1 even though 
 the structure is shown to be of public convenience and util- 
 ity, 3 and a statutory ratification of the obstruction after its- 
 erection does not preclude a recovery for damages sustained 
 before the statute was enacted. 3 A State cannot declare that 
 a bridge, constructed without a draw, is not an obstruction to 
 interstate communication, and the question whether it is a. 
 material obstruction can only be determined in the courts of 
 the United States. 4 When Congress has exercised its power 
 to regulate navigation, its authority is paramount, and ex- 
 cludes or supersedes State legislation upon the same subject. 5 
 An obstruction to navigation authorized by a State may be- 
 come a nuisance, and liable to be removed, under the subse- 
 quent action of Congress. 6 "When authority from the State 
 
 i Reg. v. Betts, 16 Q. B. 1022, 1037; 
 State v. Freeport, 43 Maine, 198, 201; 
 Wisconsin River Impr. Co. v. Lyons, 
 30 Wis. 61; People v. Vanderbilt, 26 
 N; Y. 287; 38 Barb. 282; Blanohard 
 v. Western Union Tel. Co., 60 N. Y. 
 510; Woodman v. Kilbourn Manuf. 
 Co., 1 Abb. (U. S.) 158, 166; State v. 
 Dibble, 4 Jongs (N. C), 107; State v. 
 Parrott, 71 N. C. 311; Watts v. Nor- 
 folk & W. R. Co., 39 W. Va. 196; 
 Barnes v. Racine, 4 Wis. 454; Walker 
 v. Shepardson, 2 Wis. 384; Yates v. 
 Judd, 18 Wis. 118; Potter v. Menasha, 
 30 Wis. 492; Newark Plank Road Co. 
 v. Elmer, 1 Stock. 754, 788; Yolo Co. 
 v. Sacramento, 36 Cal. 193; Works v. 
 Junction Railroad, 5 McLean, 425. 
 
 2 Ante, §94. 
 
 3 Smith v. Louisville R. Co., 62 Miss. 
 510. 
 
 4 Ibid. ; Columbus Ins. Co. v. Peoria 
 Bridge Co., 6 McLean, 70; Miller v. 
 
 New York, 13 Blatch. 469; United 
 States v. Milwaukee R. Co., 5 Bis&. 
 410. 420. 
 
 *Ante, § 129; Willson v. Blackbird 
 Creek Marsh Co., 2 Peters, 245; Penn- 
 sylvania v. Wheeling Bridge Co., 13- 
 How. 518; 18 How. 421; Pound v. 
 Turck, 95 U. S. 459; Silliman v. Hud 
 son River Bridge Co., 4 Blatch. 74,. 
 395; 1 Black, 582; 2 Wall. 403; United 
 States v. Duluth, 1 Dillon, 469; Works- 
 v. Junction R. Co., 5 McLean, 425; • 
 United States v. Milwaukee R. Co., 5 
 Biss. 410; United States v. Railroad 
 Bridge, 6 McLean, 518; South Caro- 
 lina v. Georgia, 93 U. S. 4; Wisconsin 
 v. Duluth, 96 U. S. 378, 387. 
 
 6 Ibid.; Gibbons v. Ogden, 9 Wheat. 
 196; The Passenger Cases, 7 How. 
 283, 394; People v. Brooks, 4 Denio, 
 469; Sturgis v. Spofford, 45 N. Y. 446; 
 Henderson v. Spofford, 59 N. Y. 131 ; 
 Ex parte McNeil, 13 Wall. 236; In- 
 
§ 134.] PUBLIC EIGHT OF NAVIGATION. 26£> 
 
 is adequate to legalize such an. obstruction, it is not necessary 
 that compensation be provided, 1 but the requirements of the 
 statute conferring such authority must be fully observed, in 
 order that it may afford protection. 2 A statute authorizing 
 a partial obstruction of the navigation will not protect an 
 impediment not contemplated by the statute, but anv excess 
 or irregularity in the exercise of the power, by which the 
 navigation is impaired, becomes a nuisance pro tanto? An au- 
 thorized privilege to exclusively navigate a river upon condi- 
 tion of removing- obstructions cannot be exercised until the 
 improvement is completed. 4 "Where a railway company was. 
 empowered by act of Parliament to construct a swing 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 
 navigation 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 company was liable in dam- 
 ages 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 employed a contractor 
 to build the bridge in conformity with the provisions of the 
 act. 5 Where a way was authorized to be located across a tidal 
 
 man Steamship Co. v. Tinker, 94 410; State v. Bell, 5 Porter, 365; 
 
 V. S. 238, 244; Sherlock v. Ailing, 93 Newark Plank Road Co. v. Elmer, 1 
 
 IT. S. 99. Stock. 790. See White v. King. 5 
 
 1 Sugar Penning Co. v. Jersey City, Leigh, 726; Ottawa v. People, 48 111. 
 11C. E. Green, 247; (Mover v. Powell, 233; Korah v. Ottawa, 32 III. 121; 
 2 Stock. 211. Harlem v. Emmert, 41 111. 319; Van 
 
 2 As to the taxation of interstate Wagenen v. Newark Plank Road Co., 
 bridges, see Henderson Bridge Co. v. 1 Stock. 754; 4 Hal. Ch. 586; Allen 
 Henderson City, 173 U. S. 592. v. Monmouth Co., 2 Beas. 63; Att- 
 
 sRenwick v. Morris, 3 Hill (N. Y.), Gen. v. New York R. Co., 9 C. E. 
 
 621; 7 id. 575; Blanchard v. Western Green, 59. If the location of a bridge 
 
 Union Tel. Co., 60 N. Y. 510; Penn. over a navigable stream be changed 
 
 R Co. v. Central R. Co., 59 Fed. Rep. without authority, it becomes a pub- 
 
 190, 192; State v. Freeport, 43 Maine, lie nuisance. Allen v. Monmouth, 2. 
 
 198; Knox v. Chaloner, 42 id, 150; Beas. 68, 73. See North British Ry. 
 
 State v. Dibble, 4 Jones (N. C), 107, v. Perth, 10 App. Cas. 579; Gates v. 
 
 115; State v. Parrott, 71 N. C. 311; No. Pac. R. Co., 64 Wis. 64. 
 
 Healy v. Joliet R. Co., 2 Brad. (111.) * Alabama S. R. Nav. Co.u Georgia 
 
 435; Corning v. Saginaw, 116 Mich. Pac. Ry. Co., 87 Ala. 154. 
 
 74; Hickok v. Hine, 23 Ohio St. 523; 5 Hole v. Sittingbourne Ry. Co., S 
 
 Hogg v. Zanesvilie Canal Co., 5 Ohio, H & N. 488; Wiggins v. Boddington,. 
 
266 
 
 THE LAW OF WATEES. 
 
 [Oh. IV. 
 
 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 mention of a bridge or draw and was not ap- 
 proved by the harbor commissioners, was held to be unauthor- 
 ized and void. 1 
 
 §135. Same — Same. — Statutes providing for the erection 
 of drawbridges, or of dams with shutes or locks, over navi- 
 gable waters, are construed strictly, like all public grants, and 
 in favor of the pre-existing right of navigation. 2 If the act 
 
 3 C. & P. 544; Att. Gen. v. Mid Kent 
 Ry. Co., L. R. 3 Ch. 100; Att. Gen. v. 
 Furness Ry. Co., 38 L. T. N. s. 555; 
 Pickard v. Smith, 10 C. B. s. s, 170. 
 See Terre Haute Drawbridge Co. v. 
 Halliday, 4 Ind. 36 ; Patterson v. Pro- 
 prietors, 40 Maine, 404; CufE v. New- 
 ark R. Co., '6 Vroom, 15, 574; Matt- 
 lage v. Board of Chosen Freeholders 
 <N. J. L.),44 Atl. Rep. 756; Piscata- 
 qua Nav. Co. v. New York, etc. R. 
 ■Co., 89 Fed. Rep. 362; Pettit v. Board 
 -of Chosen Freeholders, 91 id. -998; 
 Jones v. Chantry, 1 Hun, 613; 4 Supt. 
 Ct. 63; Davis v. Jenkins, 5 Jones 
 (N. C), 290. 
 
 1 Cape Elizabeth v. County Com'rs, 
 64 Maine, 456. ' 
 
 2 New Orleans Ry. Co. v. Missis- 
 sippi, 112 U. S. 12; Texas Ry. Co. v. 
 Interstate Trans. Co., 45 Fed. Rep. 5; 
 Texarkana, etc. Ry. Co. v. Parsons, 
 74 id. 408; Com. v. Breed, 4 Pick. 460, 
 464; State v. Freeport, 43 Maine, 
 198; Att. Gen. v. Hudson River R. 
 Co., 9 N. J. Eq. 526; Com. v. Church, 
 1 Penn. St. 105; Hickok v. Hine, 
 23 Ohio St. 523, 531; State v. God- 
 frey, 12 Maine, 361; Mason v. Boom 
 Co., 3 Wall. Jr. 252; Doxey v. Long 
 Island R. Co., 35 Hun, 362; Newark 
 Plank Road Co. v. Elmer, 9 N. J. Eq. 
 754; Dugan v. Bridge Co., 27 Penn. 
 St. 303 ; Selman v. Wolfe, 27 Texas, 68 ; 
 Minturn v. Lisle, 4 Cal. 181; Barnes 
 v. Racine, 4 Wis. 454; United States 
 ■v. New Bedford Bridge, 1 Wood. & 
 
 M. 401 ; Healey v. Joliet R. Co., 2 Brad. 
 (111.) 435; Nelson v. St. Croix Boom 
 Co., 52 Wis. 647. Power given to a 
 railroad company to construct the 
 road " along " a river will not be ex- 
 tended by implication to authorize 
 its construction in or upon the river, 
 or below high-water mark of tide 
 water. Stevens v. Erie Ry. Co., 21 N. 
 J. Eq. 259; Stevens v. Paterson R Co., 
 34 N. J. L. 532. See Abraham v. Great 
 Northern Ry. Co., 16 Q. B. 586; Van 
 Wagenen v. Newark Plank Road Co., 
 4 Hal. Ch. 586; 1 Stock. 754; Att. Gen. 
 v. Stevens, Sax. 570. So authority to 
 construct a boom along the banks or 
 across a branch of a river does not 
 give the right to maintain booms 
 across the entire river. Stevens Point 
 Boom Co. v. Reilly, 46 Wis. 237: 44 
 Wis. 295; Plummer v. Penobscot 
 Lumber Ass'n, 67 Maine, 363. So of 
 a canal. State v. Duplin Canal Co., 
 91 N. C. 637. As to the proper or neg- 
 ligent management of the draw, see 
 1st, as to navigators, West Lancashire 
 Ry. Co. v. Iddon, 49 L. T. N. s. 600; 
 In re Pratt, 24 Fed. Rep. 335; Ether- 
 idge v. Philadelphia, 26 id. 43; Edger- 
 ton v. New York, 27 id. 230; Boland 
 v. Combination Bridge Co., 94 id. 888; 
 Chicago v. Wisconsin S. S. Co., 97 id. 
 107 ; Jennings v. Fitchburg R. Co., 146 
 Mass. 621. 2d, as to travelers across 
 a toll bridge, Goodale v. Portage Lake 
 Bridge Co., '55 Mich. 413. The admi- 
 ralty has jurisdiction of a libel in per- 
 
§ 135. J PUBLIC EIGHT OF NAVIGATION. • 267 
 
 provides for a 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 navigation. 1 One who is authorized to 
 erect a bridge over navigable water, with 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. 2 But under an act of incor- 
 poration authorizing the building of a bridge across a naviga- 
 ble 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 difference in their mode of construc- 
 tion, 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. 3 So a provision in an act authoriz- 
 ing a dam across a navigable 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 navigate the river after its condition was im- 
 proved by the dam. 4 Authority conferred upon a railroad 
 corporation to bridge a navigable stream includes the right to 
 make repairs, and for that purpose to close the draw for a rea- 
 sonably necessary time. 5 Where the charter of a railroad com- 
 
 ■sonam for the negligent management s Com. v. New Bedford Bridge, 2 
 
 of a drawbridge. Hill v. Board of Gray, 339, 352; Dugan ft Bridge Co., 
 
 Chosen Freeholders, 45 Fed. Rep. 260. 27 Penn. St. 303. See New Haven 
 
 i Baltimore ft Stoll, 52 Md. 435. Toll Bridge Co. ft Bunnell, 4 Conn. 
 
 2 Com. ft Breed, 4 Pick. 460. A cor- 54; Middlesex R. Co. ft Wakefield, 
 
 poration empowered by the legisla- 103 Mass. 261 ; Dow ft Wakefield, id. 
 
 ture to maintain a mill-dam " on their 267. A navigation company may be 
 
 own land " across the head of a har- restrained, without a previous trial 
 
 bor, with flood-gates thereto at least at law, from so towing its barges 
 
 fifteen feet wide, so as to admit the through a railroad drawbridge as to 
 
 passage of gondolas and boats at high render it dangerous. Texas & Pac. 
 
 water, may erect the dam below high- Ry. Co. ft Interstate Transp. Co., 155 
 
 water mark at the head of the har- U. S. 585. . 
 
 bor, and across a part of the channel 4 Volk ft Eldred, 23 Wis. 410. This 
 
 where the tide ebbs and flows; and was an action for injuries to a raft 
 
 the words "on their own land" caused by obstructions at a dam. It 
 
 merely exclude the inference that was held in defense that the raft 
 
 the lands of others may be taken, could not have navigated the river 
 
 Parker v. Cutler Mill-dam Co., 20 at all before the dam was built. 
 
 Maine, 353. 5 Central Trust Co. ft Wabash Ry. 
 
268 THE LAW OF WATERS. [Ch. IV. 
 
 pany 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 scaffolding used in erecting the bridge, was held to be an 
 obstruction within the meaning of the proviso, for which the 
 company was liable to any person injured thereby. 1 A charter 
 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. 2 A charter which authorizes 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 user of the dam for the purpose contem- 
 plated by the charter. 3 "Where the passage way for vessels 
 between the piers of a drawbridge across navigable waters is 
 required to be of a certain width, a clear width of the required 
 distance must be left open across the channel, and the measure- 
 ment cannot be made along the line of the bridge, if it is built 
 diagonally across the stream. 4 If a statute authorizes the erec- 
 
 Co., 32 Fed. Rep. 566; Rhea v. New- the neglect of the superintendent of 
 
 port News, etc. R. Co., 50 id. 16; Lister the bridge, unless such liability is 
 
 v. Newark Plank Road Co., 36 N. J. expressly created by statute. French 
 
 Eq. 477; Delaware, etc. R. Co. v. v. Boston, 129 Mass. 592. A railroad 
 
 Mehrholf Bros. B. & M. Co., 53 N. J. bridge is not " a road-bed or right of 
 
 L. 205 ; Hamilton v. Vicksburg R. Co., way." Cass County v. C, B. & Q. E. 
 
 119 U. S. 280; Jones v. Baltimore R. Co., 25 Neb. 348; C, B. & Q. R Co. v. 
 
 Co., 4 Mackey (D. C), 106. School District No. 1, id. 359. See 
 
 i Memphis & Ohio R. Co. v. Hicks, " Bridge " defined in Bick v. Post, 39 
 
 5 Sneed, 427; Cantrell v. Knoxville, Fed. Rep. 249. 
 
 etc. R. Co., 90 Tenn. 638; Snure v. 3 Whitaker v. Delaware Canal Co., 
 
 Great Western Ry. Co., 13 Q. B. (Can.) 87 Penn. St. 34 That drift should 
 
 376. See Riverton v. McKeesport not be permitted to accumulate about 
 
 Bridge Co., 179 Penn. St. 466. the piers, see St. Louis Ry. Co. v. 
 
 2 Jolly v. Terre Haute Drawbridge Meese, 44 Ark. 414 
 
 Co., 6 McLean, 237; Att. Gen. v. New 4 Hannibal R Co. v. Missouri River 
 
 York R. Co., 9 C. E. Green, 49; Pro- Packet Co., 125 U. S. 260; 1 McCrary, 
 
 prietors v. Hoboken Land Co., 2 Beas. 281 ; Assante v. Charleston Bridge 
 
 504; New Haven Toll Bridge Co. v. Co., 41 Fed. Rep. 365. See Silver v. 
 
 Bunnell, 4 Conn. 58. A city which Mo. Pac. Ry. Co., 101 Mo. 79; 13 S. W. 
 
 is required by statute to maintain a 410; Texas Ry. Co. v. Interstate 
 
 bridge as a public highway, is not Trans. Co., 42 Fed. Rep. 261; St. Louis 
 
 liable for the detention of a vessel Packet Co. v. Keokuk Bridge Co., 31 
 
 caused by the draw of the bridge not id. 755; Gildersleeve v. New York, 
 
 being of the prescribed width, or by etc. R. Co., 82 id. 763. 
 
§ 135.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 269 
 
 tion 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 complain if the piers 
 are so injudiciously located as to obstruct 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; 1 nor, if his vessel injures the bridge, will it 
 necessarily prevent recovery of damages from him. 2 In gen- 
 eral, the erection of a bridge over navigable waters, with or 
 without a draw, by authority of the legislature, is a regulation 
 of a public right, and not the deprivation of any private right, 
 which can be a ground for damages to individuals. 3 A refusal 
 to open an authorized railroad bridge may not give cause for 
 an action, if the mast of the plaintiff's vessel can be readily 
 lowered and a passage thus effected. 4 
 
 1 Monongahela Bridge Co. v. Kirk, 
 46 Penn. St. 112; Flanagan u Phila- 
 delphia, 42 id. 219; s. C, 8 Phila. 110; 
 Philadelphia R. E. Co. v. Philadelphia, 
 id. 112, 28^; Clarke v. Birmingham 
 Bridge Co., 41 Penn. St. 147; Dugan 
 v. Monongahela Bridge Co., 27 id. 303; 
 1 Pitts. 404; Coon v. Monongahela 
 Nav. Co., 6 Penn. St. 382; Board of 
 Wardens v. Philadelphia, 43 id. 209; 
 Bacon v. Arthur, 4 Watts, 437; Plum- 
 mer v. Alexander, 2 Jones, 81 ; Chest- 
 nut Hill Turnpike Co. v. Rutter, 4 S. 
 & R. 4; Henry v. Bridge Co., 8 Watts 
 & S. 27; Delaware Canal Co. v. Tor- 
 rey, 33 Penn. St. 150; Stephens Transp. 
 Co. v. Central R Co., 34 N. J. L. 280; 
 33 id. 229- Att. Gen. v. New York R. 
 Co., 24 N. J. Eq. 49; Att. Gen. v. Hud- 
 son River R Co., 1 Stock. 526; Sewall's 
 Falls Bridge v. Fisk, 23 N. H. 171; 
 Turnpike Road Co. v, Campbell, 44 
 CaL 89. 
 
 2 Cumberland County v. Central 
 Wharf S. T. Co., 90 Maine, 95, The 
 Tempest v. Com'rs, 13 Ohio Cir. Cfc. 
 S63. 
 
 3 Ibid.; Davidson v. Boston Rail- 
 road, 3 Cush. 91, 106; Black well v. 
 
 Old Colony Railroad, 122 Mass. 1; 
 Thayer v. New Bedford Railroad, 125 
 Mass. 253; Ely v. Rochester, 26 Barb. 
 133; Sugar Refining Co. v. Jersey 
 City, 26 N. J. Eq. 247; State v. Nar- 
 rows Island Club, 100 N. C. 477; 
 United States v. St. Louis R. Co., 43 
 Fed. Rep. 414; Pound v. Turck, 95 
 U. S. 459; Kearns v. Cordwainers' 
 Co., 6 C. B. n. s. 388. A provision 
 made in the charter of a corporation, 
 or in a general statute in force at the 
 time, or in the constitution, that 
 the legislature may revoke, alter, or 
 annul a charter, is one of the condi- 
 tions of the grant and of the terms 
 of the charter. Chincleclamouche 
 Lumber Co. v. Com., 100 Penn. St. 
 438. The declaration of the legisla- 
 ture that if the navigation of an ar- 
 tificial channel is permitted to be 
 obstructed, the collection of tolls 
 shall be temporarily suspended, 
 waives the right to a forfeiture for 
 such cause. State v. Morris, 73 Tex. 
 435. 
 
 4 West Lancashire Ry. Co. v. Iddon, 
 49 L. T. N. s. 600. 
 
270 THE LAW OF WATERS. [Ch. IV. 
 
 §136. Same — Same. — Corporate charters, so far as they 
 contain unqualified grants, are contracts which the State can- 
 not constitutionally impair, alter, or repeal ; and it is incom- 
 petent for the legislature, having once empowered persons or 
 corporations to maintain a bridge which necessarily causes an 
 obstruction to the navigation, to amend the act by making 
 such persons or corporations liable for the obstruction. 1 Even 
 where a charter reserved to the legislature the right of modi- 
 fication 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, in place 
 of one thirty-two feet wide, was held to be unconstitutional 
 and void. 2 If the legislature authorizes a dam or other ob- 
 struction 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 thart 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. 3 1ST or does the fact that a bridge or clam, 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-baxs across the channel, or fallen trees or 
 
 1 Bailey v. Philadelphia R. Co., 4 Ind. 8; Butler v. State, 6 Ind. 165; 
 Harr. (Del.) 389; Com. v. Pennsyl- Stoughtonu State, 5 Wis. 291; Barnes- 
 vania Canal Co., 66 Perm. St. 41; v. Racine, 4 "Wis. 494; Harris u. 
 Angell & Ames on Corporations, Thompson, 9 Barb. 350; People v. 
 g§ 81, 767; Enfield Toll Bridge Co. v. Law, 34 Barb. 514; Williams v. New 
 Connecticut River Co., 7 Conn. 48; York Central R. Co., 18 Barb. 222; 
 Derby Turnpike Co. v. Parks, 10 Clark v. Syracuse, 13 Barb. 32. A 
 Conn. 541; Hartford Bridge Co. v. public improvement, like a canal, 
 East Hartford, 16 Conn. 173; Enfield erected under authority from the 
 Toll Bridge Co. v. Hartford R. Co., State, is not a public or private nui- 
 
 17 Conn. 55; Bronson u Taylor, 33 ■ sance, because it renders the neigh- 
 Conn. 116. There is no element of borhood unhealthy, except where the 
 contract in a special remedy given water is permitted to escape and form 
 by statute. Chattaroi Ry. Co. v. Kin- stagnant and noisome pools on the 
 ner, 81 Ky. 221. adjoining lands. Com. v. Reed, 34 
 
 2 Washington Bridge Co. v. State, Penn. St. 275; Delaware Canal Co. 
 
 18 Conn. 53. v. Com., 60 Penn. St. 367; Steele v. 
 
 3 Neaderhauser v. State, 28 Ind. Western Inland Lock Nav'n, 2 Johns. 
 257; Depew u Board of Trustees, 5 283. 
 
§ 136.] PUBLIC EIGHT OF NAVIGATION. 271 
 
 ■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 lim- 
 ited the navigation. 1 If the legislature authorizes a dam across- 
 a navigable river with the proviso that it shall be so con- 
 structed as not to substantially 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 necessarily obstruct the navigation. 2 Under 
 an act which authorizes the construction of a boom on the 
 south side of a stream, and which restricts its limits only by 
 the requirement that navigation shall not be impeded, the 
 boom need not be confined to the south side of the stream if 
 a sufficient channel for navigation is left on the north side.* 
 As against the riparian owners, a charter which authorizes the 
 erection of a toll-bridge across a river, does not authorize tak- 
 ing the land of such owners at the side of the bridge for th& 
 purpose of a toll-house ; and in the land which is covered by 
 the bridge it creates only an easement. 4 An act of the legis- 
 lature, giving 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 appro- 
 priate, without compensation, such portion as is necessary for 
 the purpose of the lands belonging to the State under water.* 
 Eut it affords no protection for a private injury, such as the 
 overflow of lands belonging to the riparian owners, 6 or th& 
 
 1 Board of Com'rs v. Pidge, 5 Ind. Stevens v. Paterson R. Co., 34 N. J. L* 
 13; Pennsylvania v. Wheeling Bridge 532; Black River Imp. Co. v. La 
 Co., 13 How. 625; Roush v. Walter, Crosse B. Co., 54 Wis. 659. See Com. 
 10 Watts, 86; Plumer v. Alexander, v. Boston & Maine R. Co., 3 Cush. 25. 
 12 Penn. St. 81. 6 Trenton Water Power Co. v. Raff, 
 
 2 Wisconsin ttEau Claire, 40 Wis. 7 Vroom, 335; Delaware Canal Co. 
 533; Att. Gen. v. Eau Claire, 37 Wis. v. Lee, 22 N. J. L. 243; Sinnickson u. 
 400; Woodman v. Kilbourn Manuf. Johnson, 17 N. J. L. 129; Ten Eyck 
 Co., 1 Abb. (IT. S.) 158; United States v. Delaware Canal Co., 18 N. J. L. 
 v. Ruggles, 5 Blatch, 35. 200; Brown v. Cayuga R. Co., 12 N. Y. 
 
 s Powers v. Bald Eagle Boom Co., 486; Cott v. Lewiston R. Co., 36 N. Y, 
 
 125 Penn. St. 175. ' 214; Turner v. Blodgett, 5 Met. 210; 
 
 4 Thompsons. Androscoggin Bridge, Cogswell v. Essex Mill Co., 6 Pick. 94 ; 
 5 Greenl. 62. Thatcher v. Dartmouth Bridge, 18 
 
 5 Pennsylvania R. Co. v. New York Pick. 501 ; Eastman v. Amoskeag- 
 R. Co., 33" N. J. Eq. 157; Att. Gen. v. Manuf. Co., 44 N. H. 143; Hooker v. 
 Hudson Tunnel Co., 27 id. 176, 573; New* Haven Co., 14 Conn. 147; Dens- 
 
272 THE LAW OF WATERS. [Ch. IV. 
 
 building of piers and abutments on lands under water belong- 
 ing to individuals, 1 without payment or tender of compensa- 
 tion. If one railroad corporation constructs its road across 
 the track of another railroad corporation, the latter is entitled 
 to damages, although its track is laid upon piles over tide 
 water. 2 
 
 § 137. Same — Same. — It is not necessary for the legisla- 
 ture to give a special and direct sanction to the erection or 
 continuance of every obstruction in navigable waters, but such 
 authority may be granted by implication. 3 An act, for exam- 
 ple, which authorizes a town to purchase and maintain an ex- 
 isting 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. 4 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. 5 The same is true of an unrestricted grant of au- 
 thority to construct a railroad from one designated point to 
 another, when the road cannot be reasonably constructed with- 
 out crossing a navigable stream. 8 So, if the legislature makes 
 
 low v. New Haven Co., 16 Conn. 103; 3 Fall River Iron Works v. Old Col- 
 Shaver v. Eldred,.114 N. Y. 236; Crit- ony Railroad, 5 Allen, 221; Boston 
 tendenw. Wilson, 5 Co wen, 165; Gard- Water Power Co. v. Boston & Wor- 
 ner v. Newburgh, 2 Johns. Ch. 162; cester Railroad, 23 Pick. 360. 
 Baltimore R. Co. v. Reaney, 42 Md. *Castello v. Landwehr,'28Wis.522; 
 117; Thienu Voegtlander, 3 Wis. 461. Saugatuck . Bridge Co. v. Westport, 
 See Dodd v. Williams, 3 Mo. App. 278. 39 Conn. 337. 
 
 i Morris Canal Co. v. Jersey City, 5 Att. Gen. v. Stevens, Sax. (N. J.) 
 
 26 N. J. Eq. 294; Gunter v. Geary, 1 370; Union Pacific R Co. v. Hall, 91 
 
 Cal. 462; State v. Glenn, 7 Jones U. S. 343, 350; People v. Saratoga R . 
 
 (N. C), 321; Cornelius v. Glenn, id. Co., 15 Wend. 130; Mohawk Bridge 
 
 512. The owner may maintain tres- Co. v. Utica R. Co., 6 Paige, 554; 
 
 pass quare clausum for an unlawful Springfield v. Connecticut River R 
 
 invasion of land covered by water. Co., 4 Cush. 63; Miller v. Prairie du 
 
 Ibid.; Smith v. Ingraham, 7 Ired. Chien Ry. Co., 34 Wis. 533; Hamil- 
 
 (N. C.) 175; Champlain R. Co. v. Val- ton v. Vicksburg R Co., 34 La. Ann. 
 
 entine, 19 Barb. 484 ; People v. Mauran, 970. 
 
 5 Denio, 389; Walker v. Shepardson, 6 Fall River Iron Works v. Old Col- 
 
 4 Wis. 486. ony Railroad, 5 Allen, 222; Hughes v. 
 
 2 Grand Junction R. Co. v. Middle- Northern Pacific Ry. Co., 18 Fed. Rep. 
 
 sex Com'rs, 14 Gray, 553 ; Fitchburg 106. But see Little Rock R. Co. v. 
 
 R. Co. v. Boston & Maine R. Co., 3 Brooks, 39 Ark. 403. 
 Cush. 58. 
 
§ 138.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 273 
 
 an appropriation for rebuilding a canal dam, and directs that 
 the money be expended by the commissioner in charge, it im- 
 pliedly sanctions the building of the new dam at the same 
 height as the old one, though the latter was raised by the canal 
 officers to a height not strictly authorized by statute. 1 
 
 § 138. Same — Harbor lines. — It is competent for State leg- 
 islatures to control the management and occupation of wharves 
 and piers in navigable waters, even in the hands of private 
 persons ; 2 to establish wharf or harbor lines, and to empower 
 commissioners to license structures extending to such lines. 3 
 Such statutes do not conflict with the commercial power of 
 Congress, so long as the latter remains unexercised ; * they do 
 not impair the right to maintain wharves lawfully erected be- 
 fore their passage, 5 nor are they unconstitutional, as appropri- 
 ating 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. 6 
 The mere establishment of a harbor or dock line does not 
 change rights of property, nor is it an abandonment of the right 
 
 i Shaver v. Eldred, 114 N. Y. 236; 
 Wright v. Eldred, 46 Hun, 12. See 
 Re New York & W. S. R. Co., 89 N. 
 Y 453; 27 Hun, 57; 28 Hun, 472; 29 
 Hun, 269, 646. 
 
 2 Re Union Ferry Co., 98 N. Y 139. 
 
 'State v. Sargent, 45 Conn. 358; 
 Lane v. Harbor Com'rs, 70 Conn. 685; 
 Com'rs v. Alger, 7 Cush. 81, 104 'The 
 Secretary of War was authorized to 
 establish harbor lines to protect har- 
 bors by 24 St. at Large, 329, ch. 929; 
 26 id. 426, ch. 907, § 12. 
 
 4 Savannah v. State, 4 Ga. 26. See 
 36 U. S. Stats. 426, ch. 907, g§ 7, 12; 
 Grand Trunk Ry. Co. v. Backus, 46 
 Fed. Rep. 211. 
 
 5 Com. v. Alger, 7 Cush. 53; Garey 
 v. Ellis, 1 Cush. 306; Att. Gen. v. Bos- 
 ton & Lowell R. Co., 118 Mass. 345. 
 3ee Yates v. Milwaukee, 10 Wall. 497; 
 Crocker v. New York, 15 Fed. Rep. 
 105; Martin v. Evans ville, 32 Ind. 85; 
 Martin v. O'Brien, 34 Miss. 21. 
 
 6 Com. v. Alger, 7 Cush. 53; Garey 
 
 18 
 
 v. Ellis, 1 Cush. 306; State v. Sargent, 
 45 Conn. 358; Yesler v. Harbor Line 
 Com'rs, 146 U. S. 646; Prosser v. No. 
 Pao. R. Co., 152 U. S. 59; Grand Rap- 
 ids v. Powers, 89 Mich. 94; Sherman 
 v. Sherman, 18 R L 504; State v. 
 Harbor Line Com'rs, 4 Wash. St. 6. 
 See Walker v. Shepardson, 4 Wis. 
 486; Bateman v. Colgan, 111 Cal. 580; 
 lie Port Warden's Line, 13 Phila. 
 453. A city authorized by the legis- 
 lature to establish dock and wharf 
 lines in a river, and to prevent ob- 
 structions to the navigation thereof, 
 cannot by ordinance declare a pri- 
 vate wharf a nuisance and order its 
 abatement as obstructing the navi- 
 gation, if in fact it is not a nuisance. 
 Yates «. Milwaukee, 10 Wall. 497. 
 See Harlan H. Co. v. Paschall, 5 Del. 
 Ch. 435. Harbor lines to prevent 
 building and to preserve the view of 
 a bridge are illegal. Faris tSteel Co. 
 v. Bridgeport, 60 Conn. 278. 
 
274 
 
 THE LAW OF "WATEKS. 
 
 [Oh. IV. 
 
 of the State to control and regulate the waters within the line. 1 
 The statutes of some of the States establishing these lines re- 
 strain the littoral proprietors from extending wharves beyond 
 high-water mark without the authority of the legislature, or a 
 license from the harbor commissioners, 2 while those of other 
 States expressly grant the privilege to occupy and fill out to 
 the prescribed limits, 3 — a privilege which has been held to ac- 
 
 i Weber v. Harbor Com'rs, 16 "Wall. 
 57; Aborn v. Smith, 12 R. I. 370; 
 Engs v. Peokham, 11 R. I. 210; Brown 
 v. Goddard, 13 R. I. 76; Hardy v. 
 McCullough, 23 Gratt. 251; Wet- 
 more v. Brooklyn Gaslight Co., 42 
 N. Y. 384; Kingsland v. New York, 
 35 Hun, 458; Att. Gen. v. Hudson 
 Tunnel Co., 27 N. J. Eq. 176, 573; 
 Wilson v. Ingloes, 11 Gill & J. 351; 
 Boston Steamboat Co. v. Munson, 
 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; Kisling v. 
 Johnson, 13 Cal. 56; San Francisco 
 v. Straut, 84 Cal. 124; 24 Pac. Rep. 
 814; Guy v. Harmance, 5 Cal. 73; 
 Eldridge v. Cowell, 4 CaL 80; Stone 
 v. Elkins, 24 Cal. 127; Holladay v. 
 Frisbie, 15 Cal. 630; Knight v. Haight, 
 
 51 Cal. 169; People v. Williams, 64 
 Cal. 498; Eisenbach v. Hatfield, 2 
 Wash. St. 236; State v. Prosser, 4 id. 
 816; Wilson v. State Land Com'rs, 13 
 id. 65; Bradshaw v. Duluth I. M. Co., 
 
 52 Minn. 59. The right of eminent 
 domain may still be exercised within 
 the line. Wyman v. County Com'rs, 
 157 Mass. 55. The Mass. St. of 1866, 
 ch. 149, gave to the littoral proprie- 
 tors upon the Acushnet River, for the 
 purpose of building wharves, a pos- 
 sessory title out to the channel, suffi- 
 cient to enable them to maintain 
 trespass if their rights were invaded. 
 Hamlin v. Pairpont Manuf. Co., 141 
 Mass. 51; Haskell v. New Bedford, 
 108 Mass. 208. 
 
 2 Com. v. Alger, 7 Cush. 53; Att. 
 Gen. v. Woods, 108 Mass. 436; Att 
 
 Gen. v. Boston & Lowell R. Co., 118 
 Mass. 345; Att. Gen. v. Cambridge, 
 119 Mass. 518; Weber v. Harbor 
 Com'rs, 18 Wall. 57; State v. Bridges, 
 19 Wash. 44; Morton v. Pacific Coast 
 S. Co., 122 Cal. 352; People v. Super- 
 visors, id. 421; Plietas v. New Or- 
 leans, 51 La. Ann. 1. If harbor com- 
 missioners, 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 
 v. Martin, 43 CaL 665; People v. San 
 Francisco R. Co., 35 CaL 606; People 
 v. Klumpke, 41 CaL 263. See People 
 v. Pacific R. M. Co., 60 Cal. 323; Peo- 
 ple v. San Francisco Gaslight Co., 60 1 
 Cal. 349; id. 351, 567. As to harbor- 
 masters, see The Rhosina, 10 P. D. 24,. 
 131; Cole v. Mahoney, 65 How! Pr. 
 499; 67 id. 226; Groner v. Ports- 
 mouth, 77 Va. 488; ante, § 96, note, 
 s Bailey v. Burges, 11 R L 330 ;. 
 Engs v. Peckham, 11 R I. 210; Man- 
 chester v. Hudson, cited, 11 R. I. 224;. 
 Providence Steam Engine Co. «v. 
 Providence S. Co., 12 R. L 348; Aborn 
 v. Smith, 12 R. I. 370; 11 R 1 594;. 
 Clark v. Peckham, 9 R. I. 455, 473; 
 10 R I 35; Simmons v. Mumford, 2. 
 R L 172. See People v. New York 
 Ferry Co., 68 N. Y. 71; In re City of 
 Brooklyn, 73 N. Y. 179; People v. Van- 
 derbilt, 26 N. Y. 287; Hart v. Albany^ 
 9 Wend. 571; Hecker v. New York 
 Balance Dock Co., 24 Barb. 215; Bay- 
 City Gas Light Co. v. Industrial 
 Works, 28 Mich. 182, 184; Winpenny 
 v. Philadelphia, 65 Penn. St. 135; 
 Norfolk City v. Cooke, 29 Gratt. 430. 
 
§ 139.] PUBLIC EIGHT OF NAVIGATION. 275 
 
 crue 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. 1 The case of levees located upon the margin of a river, 
 or as near the river as is practicable for the purpose of reclaim- 
 ing the adjoining lands, is governed by similar rules. When 
 actually constructed, under authority of the State legislature, 
 such a levee becomes the conventional or artificial bank of the 
 river, denning the line of ( high- water mark in those States in 
 which riparian ownership is held limited by that line, and en- 
 titling the riparian proprietors to accretions subsequently added 
 thereto. 2 A municipal corporation cannot exact wharfage 
 dues from vessels landing at the natural bank of a river, al- 
 though within the wharf limits established by ordinance, if no 
 artificial facilities are furnished. 3 
 
 §139. Same — Subordinate authorities. — 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. 4 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 navigable waters, whether fresh or salt, by 
 
 See Texas Ry. Co. v. New Orleans, 40 lice Jury v. Britton, 15 Wall. 566; 
 
 Fed. Rep. Ill; Miller v. Mendenhall, Alcorn v. Hamer, 38 Miss. 652; Will- 
 
 43 Minn. 95. iams v. Cammack, 27 Miss. 209; Daily 
 
 i Abornu Smith, 12 R.L 370; Engs v. Swope, 47 Miss. 367; Vasser v. 
 
 v. Peckham, 11 R. I. 210; Lanew. Har- George, id. 713; Farist Steel Co. v. 
 
 bor Com'rs, 70 Conn. 685 ; post, § 165. Bridgeport, 60 Conn. 278; Smith v. At- 
 
 Under the New York statute of 1848, lantic R. Co., 25 Ohio St. 91; Wright 
 
 the owners of lands on the East v. Thomas, 26 id. 346; Texas Ry. Co. 
 
 River had not only the right to con- v. New Orleans, 40 Fed. Rep> 111. As 
 
 struct bulkheads and wharves to the to suits for breaking private artifi- 
 
 water line established in 1836, but cial levees, see Belcher v. Murphy, 81 
 
 also title to the land under water Cal. 39; Bentley it. Fischer Lumber 
 
 to that line. Wetmore v. Atlantic Co., 51 La. Ann. 451. 
 
 White Lead Co., 37 Barb. 70; People 3 Cape Girardeau v. Campbell, 26 
 
 v. Kelley, 38 Barb. 269; 14 Abb. Pr. Mo. App. 12; The Lizzie E., 30 Fed. 
 
 372. See Miller v. Mendenhall, 43 Rep. 876. 
 
 Minn. 95; 8 L. R. A. 89, and note. 4 Wales v. Stetson, 2 Mass. 146; Com. 
 
 2 Musser v. Hershey, 42 Iowa, 356, v. Charleston, 1 Pick. 180; Com., v. 
 
 363; New Orleans v. United States, Breed, 4 Pick. 460; Cape Elizabeth v. 
 
 10 Peters, 711. See Barkley v. Levee County Com'rs, 64 Maine, 456. 
 Commissioners, 93 U. S. 258; The Po- 
 
276 THE LAW Off WATEES. [Ch. IV. 
 
 constructing highways below high-water mark, or authorizing 
 dams or bridges across them. 1 In Massachusetts and other 
 States, it is held that a general statutory authority 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 pub- 
 lic 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. 2 In Connecticut such authority is held 
 to authorize by implication the construction of highways 
 below high-water mark, 3 or bridges with draws across navi- 
 gable streams. 4 In Cliarlestown v. Middlesex Commissioners, 5 
 in Massachusetts, the legislature authorized a bridge to be 
 built over a navigable stream, " either solid or on piles, leav- 
 ing sufficient passage for the water," as certain commissioners 
 might deem necessary. Under the direction of these com- 
 missioners 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 ves- 
 sels without masts when loaded or empty. It was held that 
 
 •Com. v. Coombs, 2 Mass. 489; 53; Com. v. Roxbury, 9 Gray, 451, 493; 
 
 Arundel v. McCulloch, 10 Mass. 70; Com'rs v. Holyoke Water Power Co., 
 
 Keanu. Stetson, 5 Pick. 492; Welling- 104 Mass. 446, 449; Marblehead v. 
 
 ton, Petitioner, 16 Pick. 87; Charles- County Com'rs, 5 Gray, 453; Boston 
 
 townu Middlesex Com'rs, 3 Met. 202; & Maine R. Co. v. Boston & Lowell 
 
 Henshaw v. Hunting, 1 Gray, 203; R Co., 124 Mass. 368, 371; United 
 
 Att. Gen. v. Cambridge, 16 id. 247; States , v. New Bedford Bridge, 1 
 
 Boston v. Richardson, 105 Mass. 365; Wood. & M. 407; Simmons v. Mum- 
 
 Com. v. Gloucester, 110 id. 491; Dun- ford, 2 R I. 172, 185. 
 
 bar v. Vinal, 2 Dane Abr. 695; State 3 Grot on v. Hurlburt, 22 Conn. 183; 
 
 v. Anthoine, 40 Maine, 435 ; State v. Weathersfield v. Humphrey, 20 Conn. 
 
 Wilson, 42 id. 9; Att. Gen. v. Stevens, 218; Clark v. Say brook, 21 Conn. 313; 
 
 Sax. (N. J.) 370; Tucker v. Burlington Brown v. Preston, 38 Conn. 219; Sau- 
 
 Co., id. 283; Allen v. Monmouth, 2 gatuck Bridge Co. v. Westport, 39 
 
 Beas. 68. As to the liability of a cor- Conn. 337, 350. 
 
 poration for its servant's negligent 4 Brown v. Preston, 38 Conn. 219; 
 
 management of the draw, see Butter- Bryan v. Branf ord, 50 Conn. 246. 
 
 field v. Boston, 148 Mass. 544; Briggs s 3 Met. 202. In People v. Meach, 
 
 v. N. Y. Central R. Co., 30 Hun, 291. 14 Abb. Pr. n. s. 429, it was held that 
 
 2 Ibid.; Com. v. Coombs, 2 Mass. supervisors will not be restrained 
 
 489; Arundel v. McCulloch, 10 Mass. from erecting a bridge over a stream 
 
 70; Wales v. Stetson, 2 Mass. 143; in which the tide ebbs and flows, if 
 
 Com. u Charlestown, 1 Pick. 180; it is doubtful whether the stream 
 
 Springfield v. Connecticut River R could ever be navigated. 
 ■Co., 4 Cush. 63; Com. v. Alger, 7 id. 
 
§ 140.] PUBLIC EIGHT OF NAVIGATION. 277 
 
 the stream was still navigable, and that the county commis- 
 sioners were not authorized to locate a highway over it. In 
 Marblehead v. Essex Commissioners, 1 the county commission- 
 ers were held to have no jurisdiction to lay a highway along 
 a beach forming 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 public measures for its protection and improvement. A 
 highway 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; 2 and 
 upon an indictment for creating a nuisance in a part of a 
 town- way laid out by the side of navigable water and above 
 high- water mark, it is not a defense that another part of the 
 way is below high-water mark. 3 Under the constitutional 
 provision that the judicial power of a State shall be vested in 
 the various courts, it is incompetent for the legislature to de- 
 clare it unlawful to drive piles in certain parts of a particular 
 river, and to command the courts to enjoin such acts without 
 proof of injury thereby caused, such a statute being discrimi- 
 nating and class legislation and contrary to the spirit of both 
 the State and the Federal constitutions. 4 
 
 § 140. Same — Wharves. — The 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 the next chapter. 5 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, 6 are public nuisances so far as they 
 interfere with the passage of vessels, or limit such passage to 
 a portion of the navigable channel. 7 But it is competent for 
 
 1 5 Gray, 451. 6 Com. v. New Bedford Bridge. 2 
 
 2 Henshaw v. Hunting, 1 Gray, 203; Gray, 339; Com. v. Nashua Railroad, 
 
 Clement v. Burns, 43 N. H. 609; Att. 2 Gray, 54; Com. v. Gloucester, 110 
 
 Gen. v. Old Colony R. R. Co., 12 Allen, Mass. 491. 
 
 404. 'Williams u Wilcox, 8 Ad. & El. 
 
 3 Com. v. Weiher, 3 Met 445. 314; Dimes v. Petley, 15 Q. B. 276 
 
 4 Janesville v. Carpenter, 77 Wis. Att. Gen. v. Terry, L. R. 9 Ch. 423 
 
 288; 46 N. W. Rep. 128. Att. Gen. v. Lonsdale, L. R. 7 Eq. 377 
 
 tPost, ch. 5. Atlee v. Packet Co., 21 WalL 389; 2 
 
278 
 
 THE LAW OF WATEES. 
 
 [CH. IV. 
 
 the legislature 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 the effect may be to confer privileges which are 
 wholly private and exclusive in their nature. 1 
 
 § 141. Tolls — Right to — How acquired. — Hindrances to 
 navigation, and the necessity for legislative sanction to legalize 
 them, may also arise by the exaction of charges and tolls from 
 those who navigate the sea or public rivers. It is a principle 
 of the common law that no man can take a settled and con- 
 stant toll, even on his own private land, for a common passage 
 
 Dill. 479; State v. Freeport, 43 Maine, 
 198; Knox v. Chaloner, 42 Maine, 150; 
 State v. Sturtevant, 21 Maine, 9; State 
 v. Godfrey, 24 Maine, 232; People v. 
 St. Louis, 5 Gilman, 351; Hogg v. 
 Zanesville Manuf. Co., "Wright (Ohio), 
 139; Clark v. Lake, 1 Scam. 229; Por- 
 ter v. Allen, 8 Ind. 1 ; Olson v. Mer- 
 rill, 42 "Wis. 203; Att. Gen. v. Eau 
 Claire, 37 "Wis. 400; Walker v. Shep- 
 ardson, 2 "Wis.' 384; 4 Wis. 486; Barnes 
 v. Racine, 4 Wis. 454; Yates v. Judd, 
 18 Wis. 118; In re Eldred, 46 Wis. 
 530 ; Newark Plank Road Co.u Elmer, 
 1 Stock. 754, 790; Com. v. Church, 1 
 Penn. St. 105; Hart v. Albany, 9 
 Wend. 571; 3 Paige, 213; People v. 
 Vanderbilt, 26 N. Y. 287; 28 N. Y. 
 396; 38 Barb. 282; Moore v. Com'rs, 32 
 How. Pr. 184; Att. Gen. v. Stevens, 
 Sax. (N. J.) 370; Tucker v. Burling- 
 ton Co., id.. 282; Allen v. Monmouth 
 Co., 2 Beas. 68; Atkinson v. Phila- 
 delphia R. Co., 14 Haz. Pa. Reg. 10; 
 Dimmett v. Eskridge, 6 Munf. 308; 
 State v. Dibble, 4 Jones (N. C), 107; 
 Dana i>. Jackson Street Wharf Co., 
 31 Cal. 118; Rhodes v. Otis, 33 Ala. 
 578; South Carolina R. Co. v. Moore, 
 28 Ga. 398; 24 Ga. 418; Gold v. Car- 
 ter, 9 Humph. 369; Com. v. Knowl- 
 ton, 2 Mass. 530; Borden v. Vincent, 
 24 Pick. 301; Franklin Wharf Co. v. 
 Portland, 67 Maine, 46; Plank Road 
 Co. v. Elmer, 9 N. J. Eq. 754; People 
 
 v. Gutchess, 48 Barb. 656; Selman v. 
 Wolfe, 27 Texas, 68; Sherlock v. Bain- 
 bridge, 41 Ind. 35; Morrison v. Thur- 
 man, 17 B. Mon. 249; 14 id. 371; Macon 
 R. Co. v. Pate, 50 Ga. 156; State v. 
 Merrit, 35 Conn. 314; ^Visconsin River 
 Impr. Co. v. Lyons, 30 Wis. 61 ; Enos 
 v. Hamilton, 24 Wis. 658; 27 Wis. 256. 
 I Ante, § 122; Phipp's Appeal, 28 
 Md. 380; Mayor v. State, 4 Ga. 26; 
 Martin v. O'Brien, 34 Miss. 21; Yad- 
 kin Nav. Co. v. Benton, 2 Hawks 
 (N. C), 10; Cottrill v. Myrick, 12 
 Maine, 222; Hannibal v. Winchell, 
 54 Mo. 172; Frisbie v. McClernin, 38 
 Cal. 568; Templeton v. Coburn, 48 
 CaL 563; Eldridge v. Cowell, 4 Cal. 
 41; Rush v. Jackson, 24 CaL 308; 
 Payne v. English, 79 Cal. 540; Ste- 
 vens v. Walker, 15 La. Ann. 577; 
 Pontchartrain R Co. v. Orleans Nav. 
 Co., id. 404; Delaware Canal Co. v. 
 Lawrence, 2 Hun, 163; Hoeft v. Sea- 
 man, 38 N. Y. Sup. Ct. 62; Jefferson- 
 ville v. Louisville Ferry Co., 27 Ind. 
 100; Bingham v. Doane, 9 Ohio, 165; 
 Snyder v. Rockport, 6 Ind. 237. Under 
 a charter by which the construction 
 of a railroad is authorized "to the 
 place of shipping lumber " on a nav- 
 igable river, the road may be ex- 
 tended into the water to a conven- 
 ient point for shipping. Peavey v. C. . 
 R. Co., 30 Maine, 498. 
 
§ 141.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 279- 
 
 without the king's license. 1 Kor is a grant from the Crown 
 sufficient for this purpose, unless some benefit is shown to the 
 community at large which forms a just consideration. 2 " If," 
 says Hale, 0. J., " any man will prescribe for a toll upon the 
 sea, he must allege a good consideration ; because by Magna 
 Charta and other statutes every one has a right to go and 
 come upon the sea without impediment." 3 The ownership of 
 the soil of an arm of the sea, which is not a port, does not 
 support a claim for tolls, even on the ground of immemorial 
 usage, from those who, in the usual course of navigation, ex- 
 ercise there the common rights of passage and anchorage. 4 
 The making of a port is, however, a consideration for toll; 5 
 so is the keeping of a capstan and rope necessary to assist 
 vessels ; 6 the maintenance of lights, beacons, or buoys ; 7 the 
 cleansing of a river; 8 the repairing of a port, 9 or the liability 
 
 1 Hale, De Jure Maris, oh. 3; Har- 
 grave's Law Tracts, 10, 46, 73, 78. 
 
 2Haspurt v. Wills, 1 Mod. 47; 1 
 Sid. 454; 1 Vent. 71; 2 Keb. 624, 665; 
 Vinkensterne v. Ebden, 1 Salk. 248; 
 1 Ld. Raym. 384; Hill v. Smith, 4 
 Taunt. 520; Falmouth v. George, 5 
 Bing. 286; Brett v. Beales, 10 B. .& 
 'C. 508; Gann v. Whitstable Free 
 Fishers, 11 H. L. Cas. 192; Heddy v. 
 Wheelhouse, Cro. Eliz. 558; Notting- 
 tamu Lambert, Willes, 111; Exeter 
 v. Warren, 5 Q. B. 773; Kingston 
 Docks v. La Marche, 8 B. & C. 42; 
 Jenkins v. Harvey, 1C.E&B. 877; 
 1 Gale, 23. See Woolrych on Waters, 
 299,303; Gunning on Tolls, passim; 
 •Coulson & Forbes on Waters, ch. 9, 
 
 3 Warren v. Prideaux, 1 Mod. 105; 
 Woolrych on Waters, 237; Matson 
 v. Scobell, 4 Burr. 2258; Juxon v. 
 Thornhill, Cro. Car. 132. 
 
 4 Gann v. Free Fishers, 11 K L 
 ■Cas. 193; 19 C. B. n. S. 802; Col- 
 chester v. Brooke, 7 Q. B. 339; Wool- 
 Tych on Waters, 299; Nottingham v. 
 Lambert, Willes, 111; Wilkes v. 
 Kirby, 1 Lutw. 490; 2 id. 519; Com. 
 Dig. tit. Toll Thorough, and Preroga- 
 tive, D. 48. 
 
 8 Ibid. ; Yarmouth v. Eaton, 3 Burr. 
 
 1402; Hale, De Jure Maris, oh. 3; 
 Hargrave's Law Tracts, 51; Exeter 
 v. Warren, 5 Q. B. 773; Foreman v. 
 Whitstable Free Fishers, L R. 4 H. 
 L. 281. See London v. Hunt, 2 Lev. 
 37; Wilkes v. Kirby, 2 Lutw. 1519; 
 Woolrych on Waters, 300; Topsell v. 
 Ferrers, Hob. 175; London v. Hunt, 
 3 Lev. 37. 
 
 6 Falmouth v. George, 5 Bing. 286; 
 Foreman v. Whitstable Free Fishers, 
 L. R. 4 H. L 285. 
 
 7 Ibid. ; Foreman v. Whitstable 
 Free Fishers, L. R. 2 C. P. 688; L. R. 
 3 C. P. 58C; L. R. 4 H. L. 266; Trinity 
 House v. Sorsbie, 3 T. R. 768, n. (a); 
 Matson v. Scobell, 4 Burr. 2258; Poole 
 v. Johnson, 2 W. Bl. 764; Woolrych 
 on Waters, 304; Smithett v. Blythe, 
 
 1 B. & Ad. 509; Trinity House v. 
 Clark, 4 M. & S. 288; Hamilton v. 
 Stow, 5 B. & A. 649; Rex v. Jones, 8 
 East, 451; Trinity House v. Staples, 
 
 2 Chitty, 689; Vallego v. Wheeler, 
 Cowper, 143; Rex v. Rebowe, id. 583; 
 Reg. v. Durham, 2 El. & El. 230; Rex 
 v. Tynemouth, 12 East, 46; Rex v. 
 Coke, 5 B. & C. 797. 
 
 8 Ibid. ; Haspurt v. Wills, 1 Mod. 47; 
 King v. London, 4 T. R. 21. 
 
 9 Casher v. Holmes, 2 B. & Ad. 592; 
 
280 
 
 THE LAW OF WATERS. 
 
 [Oh. IV. 
 
 to repair the same, in -case repairs are not needed. 1 And the 
 right to collect such a charge, within the limits of a port, 
 may be acquired by prescription. 2 In Foreman v. Whitstable 
 Free Fishers, 3 the respondents' claim to anchorage dues was 
 maintained upon evidence of their ownership of the soil of 
 the anchorage, of the maintenance of buoys and beacons, and 
 the immemorial payment of tolls for merchandise and anchor- 
 age, these facts being held sufficient to warrant the inference 
 that a port had once existed, although the place in question 
 was not artifically formed, but was a natural roadstead, impos- 
 ing no obligation on the owner to repair it and keep it acces- 
 sible, so as to form a consideration for the toll demanded. 
 
 § 142. Same — Under statutes. — In general, and especially 
 in this country, where grants from the Crown and prescrip- 
 tive rights of this character are comparatively unknown, a 
 toll, being in the nature of a common charge upon the public, 
 can be exacted for passing upon the sea or upon rivers only 
 under the sanction of acts of the legislature. 4 Such acts will 
 
 Jones v. Phillips, 7 Ex. 85; Wilson v. 
 Eobertson, 4 El. & Bl. 923; Ribble 
 Nav. Co. v. Hargraves, 17 C. B. 285; 
 Harvey v. Lyme Regis, L. R. 4 Ex. 
 260. 
 
 1 Vinkensterne v. Ebden, 1 Salk. 
 248; 1 Ld. Raym. 384; 5 Mod. 359; 
 Yarmouth v. Eaton, 3 Burr. 1402; 
 Mersey Docks v. Gibbs, L. R 1 H L. 
 93; Foreman v. Whitstable Free 
 Fishers, L. R. 4 H. L. 266; L. R. 3 C. 
 P. 586; L. R. 2 C. P. 688. 
 
 2 Woolrych on Waters, 238, 305; 
 Exeter v. Warren, 5 Q. B. 773; Lon- 
 don v. Hunt, 3 Lev. 37; Exeter v. 
 Trimlet, 2 Wils. 95; Wilkes v. Kirby, 
 2 Lutw. 1519; Yarmouth v. Eaton, 3 
 Burr. 1402; Sargent v. Reed, 2 Stra. 
 1228; 1 Wils. 91; Colton v. Smith, 1 
 Cowper, 47; Falmouth v. George, 5 
 Bing. 286; Pelham v. Pickersgill, 1 
 T. R. 660; Richards v. Bennett, 1 B. 
 & C. 223; Nottingham v. Lambert, 
 Willes, 111; Jenkins v. Harvey, 1 Or. 
 M. & R. 877. A mortgage of harbor 
 duties is not an interest in land 
 within the Mortmain Act. In re 
 Christmas, 33 Ch. D. 332; 30 id. 544 
 
 1L.E.4E L. 266; L. R 3 C. P. 
 578; L. R 2 C. P. 688. See Aiton v. 
 Stephen, 1 App. Cas. 456; Durham v. 
 Bishopwearmouth, 2 El. & El. 230. 
 
 4 Kingston Docks v. La Marche, 8 
 B. & C. 42; Wadsworth v. Smith, 11 
 Maine, 278; Olcott v. Banfill, 4 N. H. 
 537; State v. Olcott, 6 N. H. 74; Mc- 
 Kee v. Grand Rapids Ry. Co., 41 
 Mich. 274, 279; Pennsylvania R Co. 
 v. National Ry. Co., 8 C. E. Green, 
 441; Camden R Co. v. Briggs, 2 Zab. 
 623; Fort Plain Bridge Co. v. Smith, 
 30 N. Y. 44; Blake v. Winona R. Co., 
 19 Minn. 418; Boy kin v. Shaffer, 13- 
 La. Ann. 129; Turnpike Co. v. Illi- 
 nois, 96 U. S. 63; Bonaparte v. Cam- 
 den R Co., Bald. C. C. 205; The Ge- 
 neva, 16 Fed. Rep. 874; State v. Real 
 Estate Bank, 5 Ark. 595; McPheeters 
 v. Merimac Bridge Co., 28 Mo. 465; 
 Turnpike Road Co. v. Campbell, 44 
 Cal. 89; State v. Lake, 8 Nev. 272. 
 See Reg. v. Salisbury, 8 Ad. & EL 
 716; Duluth Lumber Co. v. St. Louis- 
 Boom Co., 17 Fed. Rep. 419. 
 
§ 142.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 281 
 
 be effectual to enforce a toll anywhere within their operation. 1 
 The franchise of collecting wharfage, 2 or of taking tolls upon 
 public bridges, ferries and canals, 3 is a part of the sovereign 
 power reserved to the States and not delegated to the general 
 government. 4 But under the constitution and laws of the 
 United States, the States or municipal corporations cannot 
 impose taxes on vessels mooring at wharves or the banks of 
 navigable rivers, except as a compensation for the advantage 
 gained and the expense of maintaining them. 5 A riparian pro- 
 prietor may open or improve an unnavigable stream, or exca- 
 vate a canal, upon his own land and for his own accommoda- 
 tion, and refuse to permit others to use it without making 
 compensation. 6 But the owner of either or both banks of a 
 stream, although he may exclude the public therefrom and 
 prohibit vessels and boats from landing thereon, could not 
 maintain a public ferry, 7 a lock in aid of navigation, 8 or a 
 
 iWoolrych on Waters, 299. A 
 bridge company chartered by a sin- 
 gle State cannot collect toll from a 
 person who passes over a part of the 
 bridge which is beyond the limits of 
 the State, unless there is an express 
 promise to pay. Middle Bridge Co. 
 v. Marks, 26 Maine, 326; South Caro- 
 lina R. Co. v. Jones, 4 Rich. Eq. (S. C.) 
 459; Claremont Bridge Co. v. Royce, 
 42 Vt. 730. 
 
 2 Pelham v. "Woolsey, 16 Fed. Rep. 
 418. 
 
 3 Morris v. State, 62 Texas, 728. 
 
 * Hudson v. State, 3 Zab. 206; 4 Zab. 
 718. 
 
 8 Cannon v. New Orleans, 20 Wall. 
 579; Packet Co. v. Keokuk, 95 U. S. 
 80; Packet Co. v. St. Louis, 100 U. S. 
 423; Vicksburg v. Tobin, id. 430; 
 Guy v. Baltimore, id. 434; St. Mar- 
 tinsville v. The Mary Lewis, 32 La. 
 Ann. 1293; New Orleans v. Wilmot, 
 31 La. Ann. 63; Huse v. Glover, 119 
 U. S. 543; ante, §35; New Orleans 
 R. Co. v. Ellerman, 105 U. S. 166. 
 
 6 Hale, De Jure Maris, ch. 3; Har- 
 grave's Law Tracts, 9, 10; Wads- 
 
 worth v. Smith, 11 Maine, 278; Dwi- 
 nel v. Barnard, 28 id. 554; Harvey v_ 
 Potter, 19 La. Ann. 264. A tow boat 
 has not such relation to a vessel in 
 tow as to make it liable for tolls au- 
 thorized by statute and due from the 
 towed vessel for passing through -a 
 private channel. The Pox, 4 Woods, 
 199. 
 
 TPost, § 144; Mills v. St. Clair Co., 
 8 How. 581; Conway v. Taylor, 1 
 Black, 603; Pennsylvania R. Co. v. 
 National Ry. Co., 23 N. J. Law, 441; 
 Prosser v. Wapello Co., 18 Iowa, 327; 
 Trustees v. Tatman, 13 III 27; Nash- 
 ville Bridge Co. v. Shelby 10 Yerger, 
 280j McRoberts v. Washburne, 10 
 Minn. 23; Norris v. Farmers' Co., 6 
 Cal. 590; Henshaw v. Supervisors, 19 
 Cal. 150; Enfield Toll Bridge Co. v. 
 Hartford R. Co., 17 Conn. 40, 64; 
 Hartford Bridge Co. v. East Hart- 
 ford, 16 Conn. 170; Hartford Bridge 
 Co. v. Union Ferry Co., 29 Conn. 229;. 
 Fitch v. New Haven Co., 30 Conn. 39; 
 Stark v. Miller, 3 Mo. 470; Young v. 
 Harrison, 6 Ga. 130; Greer v. Hauga- 
 book, 47 Ga. 282; Murray v. Menifee,. 
 
 8 Boykin v. Shaffer, 13 La. Ann. 129. 
 
282 THE LAW OF WATERS. [Ch. IY. 
 
 wharf, 1 and collect a settled toll from all who use it, without 
 prescription time out of mind, a charter from the king, or, in 
 this country, the consent of the legislature. To establish a 
 toll, the channel or passage must be open, for a fixed and rea- 
 sonable compensation, to the use of all who may have occasion 
 to use it, and must have become such a common way, by the 
 owner's consent, that he cannot maintain an action of trespass 
 against those who use it and are willing to pay the prescribed 
 -toll. 2 This general right, in favor of those paying toll, is, how- 
 ever, subject to reasonable limitations. If, for example, a com- 
 pany, authorized to construct a canal, is bound to keep it in 
 good order, it doubtless has necessarily discretionary powers 
 -essential to regulate the canal and its navigation, and, acting in 
 good faith, may exercise these powers so as to exclude steamers 
 if they injure the canal and impede the navigation. 3 
 
 § 143. Same — Same. — The provisions in State constitu- 
 tions and bills of rights, prohibiting the taking of private prop- 
 erty without due process of law or without compensation, do 
 not impair the power of State legislatures to regulate compen- 
 sation in the shape of tolls. 4 Nor are the States prevented by 
 
 20 Ark. 561 ; Cloyes v. Keatts, 18 Ark. over these streams, leads to the irre- 
 
 19; Bell v. Clegg, 25 Ark. 26; Haynes sistible conclusion that the right to 
 
 v. Wells, 26 Ark. 464; Pipkin v. maintain a public ferry was and is 
 
 Wynns, 2 Dev. (N. C.) 402. A grant common to all, and restricted only 
 
 from the State of land on a river, when interfering with special grants; 
 
 "with the appurtenances," conveys otherwise, the river was and is a 
 
 no right to maintain a public ferry, highway of wrong-doers." 
 
 Harrison v. Young, 9 Ga. 359; 2 lAnte, § 120. 
 
 Black. Com. 88, 236. See London- 2 Dwinel v. Barnard, 28 Maine, 554; 
 
 derry Bridge Com'rs v. McKeever, 27 Wood v. Truckee Turnpike Co., 24 
 
 L. R. Ir. 86, 464. In Braddock Ferry Cal. 474; Walker v. Jackson, 10 M. 
 
 Co.'s Appeal, 3 Penny. (Pa.) 32, 36, & W. 161; Bonaparte v. Camden & 
 
 the master, in an opinion accepted Amboy R. Co., Bald. C. C. 205; Per- 
 
 by the court,, after referring to the rine v. Chesapeake Canal Co., 9 How. 
 
 legislation of Pennsylvania, said: 172. See Boston & Roxbury Mill Dam 
 
 " The conclusion to be drawn is that v. Newman, 12 Pick. 476; Com. v. 
 
 the right to keep and maintain a Wilkinson, 16 Pick. 175 ;Monongahela 
 
 public ferry belonged to every ripa- Nav. Co. v. Wood, 47 Pitts. L. J. 93. 
 
 rian owner, so long as it did not con- 3 See Sheldon v. New Orleans Canal 
 
 flict with any exclusive grant. The Co., 9 Rob. (La.) 360. 
 
 paucity of exclusive grants over the 4 Munn v. People, 69 111. 80; Munn 
 
 Monongahela, Allegheny, and Ohio v. Blinois, 94 IT. S. 113; Burlington v. 
 
 rivers, compared with the number Beasley, id. 310; Peik v. Chicago Ry. 
 
 of ferries we know to be maintained Co., id. 164; Sands v. Manistee River 
 
§ 143.] 
 
 PUBLIC RIGHT OF NAVIGATION. 
 
 283 
 
 their constitutions, or by the commerce clause of the federal 
 constitution, in the absence of Congressional action there- 
 under, or by that prohibiting tonnage duties, from improving 
 their rivers or delegating this power to others. 1 State legis- 
 latures may determine the mode and extent of such improve- 
 ments; may sanction the construction and maintenance of 
 dams and locks upon navigable streams, or the removal of 
 obstructions from the channel, for the purpose of improving 
 the navigation or of facilitating the passage and collection of 
 logs and rafts; and may authorize persons or corporations 
 erecting such structures ■ to collect reasonable tolls for the in- 
 creased facilities thus afforded for public travel and transporta- 
 tion. 2 The privilege thus created is a franchise, and it is nec- 
 
 Impr. Co., 123 U. S. 288; 53 Mich. 593; 
 Blake v. Winona R. Co., 19 Minn. 418; 
 Aborn v. Dubuque Mining Co., 48 111. 
 140, 144. See Androscoggin Booms 
 v. Haskell, 7 Maine, 474; Middlesex 
 Turnpike Co. v. Freeman, 14 Conn. 91. 
 
 1 Ante, § 35; Withers v. Buckley, 
 20 How. 84; United States v. Des 
 Moines River Nav. Co., 43 Fed. Rep. 
 1; Huse v. Glover, 15 id. 292; 119 
 IT. S. 543; Thompson v. Androscog- 
 gin River Co., 58 N. H 108; Chicago 
 v. McGinn, 51 111. 266; Carondelet 
 Canal Co. v. Parker, 29 La. Ann. 430; 
 Kellogg v. Union Co., 12 Conn. 7; 
 Thames Bank v. Lovell, 18 Conn. 500; 
 Risley v. Farwell, 4 Chand. (Wis.) 106; 
 Fall v, Sutter, 21 Cal. 237; Shrunk v. 
 Schuylkill Nav. Co., 14 Serg. & R. 71; 
 Spring v. Russell, 7 Maine, 273; Moor 
 v. Veazie, 32 Maine, 343; 31 id. 360; 14 
 How. 568; Knox v. Chaloner, 42 
 Maine, 156. See Anderson v. Hill, 54 
 Mich. 477. Power reserved by the 
 government to regulate tolls is not 
 lost by non-user. Chicago, etc. R. Co. 
 v. Iowa, 94 U S. 155. 
 
 2 Ibid.; Att. Gen. v. Eau Claire, 37 
 Wis. 400; Risley v. Farwell, 4 Chand. 
 (Wis.) 106; Wisconsin River Impr. 
 Co. v. Manson, 43 Wis. 255; Tewks- 
 bury v. Schulenberg, 41 Wis. 584; 48 
 Wis. 577; Wisconsin v. Eau Claire, 
 40 Wis. 533: Stevens Point Boom Co. 
 
 v. Reilly, 46 Wis. 237; 44 Wis. 295; 
 Sauntry v. Laird-Norton Co., 100 
 Wis. 146; Osborne v. Knife Falls 
 Boom Co., 32 Minn. 412; American 
 Dock Co. v. Public School Trustees, 
 39 N. J. Eq. 409; Susquehanna Boom 
 Co. v. Dubois, 58 Penn. St. 182; Mc- 
 Keen v. Delaware Division Canal Co., 
 49 id. 424; White Deer Creek Impr. 
 Co. v. Sassaman, 67 id. 415; Hart v. 
 Hill, 1 Whart 136; West Branch Log- 
 ging Co. v. Strong (Penn.), 46 Atl. 
 Rep. 290; Boy kin v. Shaffer, 13 La. 
 Ann. 129; McReynolds v. Smallhouse, 
 8 Bush, 447; Simpson County Court 
 v. Arnold, 7 Bush, 354; La Plaisance 
 Bay Harbor Co. v. Monroe, Walk. 
 Ch. 155; People v. New York Ferry 
 Co., 68 N. Y. 71; Waterloo W. M. Co. 
 uShanahan, 128 N. Y. 345; Muske- 
 gon Booming Co. v. Evart Booming 
 Co., 34 Mich. 462; Ryerson v. Utley, 16 
 Mich. 269 ; Plecker v. Rhodes, 30 Gratt. 
 795; Moor v. Veazie, 14 How. 568; 
 32 Maine, 343; 31 Maine,' 360. Such 
 tolls are not taxes. Manistee River 
 Impr. Co. v. Sands, 53 Mich. 593; 123 
 U. S. 288. As to improvements in a 
 river by an improvement company 
 beyond the State line, see Abbott v. 
 Baltimore Steam Packet Co., 1 Md. 
 Ch. Dec. 542. If a corporation for 
 the improvement of a boundary 
 river between States is chartered in 
 
284 
 
 THE LAW OF WATERS. 
 
 [CH. IT. 
 
 essary to its validity that the grantee shall be certain. A 
 statute which purported to grant the right to collect tolls upon 
 logs floated in a navigable river, to any person or corporation 
 which should improve the navigation of such river in the 
 manner prescribed in the statute, is void for want of a cer- 
 tain grantee. 1 If the State, or its agents or grantees, in 
 improving the navigation, takes, flows, or otherwise injures 
 private property, compensation must be afforded therefor. 2 
 Statutes authorizing bridges, booms, and similar structures are 
 not construed as authorizing the taking of the private prop- 
 erty of riparian proprietors without their consent, further 
 than is necessary to give a reasonable construction to the act. 3 
 If a corporation is created " for making, laying and maintain- 
 
 both States, it may be sued in the 
 State in which its principal place 
 of business is, and its principal offi- 
 cers reside. Culbertson v. Wabash 
 Nav. Co., 4 McLean, 544. See State 
 v. St. Croix Boom Co., 60 Wis. 565. 
 
 1 Ibid. ; Sellers v. Union Lumbering 
 Co., 39 Wis. 525; Chenango Bridge 
 Co. v. Paige, 83 N. Y. 178; 8 Hun, 
 292. 
 
 2 Thompson v. Androscoggin River 
 Co., 58 N. H. 108; Orr v. Quimby, 54 
 N. H. 590; Wood v. Nashua Manuf. 
 Co., 5 N. H. 467; Lebanon v. Alcott, 
 1 N. H. 339; Moor v. Veazie, 31 
 Maine, 360; De Camp-u. Burns, 53 N. 
 Y. S. 1035; De Camp v. Dix, 159 N. 
 Y. 436; White Deer Creek Impr. Co. 
 v. Sassaman, 67 Penn. St. 415 ; Sharp- 
 less v. Philadelphia, 21 id. 147, 170; 
 Schuylkill Nav. Co. v. Freedley, 6 
 Whart. 109; Ten Eyck v. Delaware 
 Canal Co., 18 N. J. L. 200; Clay v. 
 Pennoyer Creek Impr. Co., 34 Mich. 
 204; Cooper v. Williams, 5 Ohio, 391; 
 Ryan v. Brown, 18 Mich. 196; Hamil- 
 ton v. Fond du Lac, 40 Wis. 47; Alex- 
 ander v. Milwaukee, 16 Wis. 247; 
 Green Bay Canal Co. v. Kaukauna 
 W. P. Co., 90 Wis. 370; Steele v. 
 Western Inland Lock Navigation, 2 
 Johns. 283. See Chicago v. McGraw, 
 75 111. 566; Nash v. Upper Appomat- 
 tox Co., 5 Gratt. 332; James River 
 
 Co. v. Thompson, 3 Gratt. 270; Avery 
 v. Police Jury, 12 La. Ann. 554; 
 Walker v. Board of Public Works, 16 
 Ohio, 540. If the water at a public 
 ford is raised by the dam of a naviga- 
 tion company chartered by the State 
 so as to make the ford useless, the 
 public right is restored upon the de- 
 struction of the dam. Crump v. 
 Mims, 65 N. C. 767; Bisher v. Rich- 
 ards, 9 Ohio St. 495. Where a naviga- 
 tion company, empowered by private 
 act to make a river navigable, to take 
 tolls and to alter bridges and high- 
 ways, leaving them or others as con- 
 venient in their place, it was held 
 liable to repair a bridge built by them 
 at a point where they had destroyed 
 a ford by deepening the water. Rex 
 v. Kent, 13 East, 221; Rex v. Lind- 
 sey, 14 East, 317. If lumber in a boom 
 is under the charge of its owners, and 
 not of the boom company, which is 
 empowered to charge boomage, the 
 company is not liable for injury riot 
 caused by its negligence, to lands 
 within the limits of the boom upon 
 which the lumber floats on breaking 
 adrift. Dever v. South Bay Boom 
 Co., 1 Pugsley (N. B.), 109. 
 
 3 Hood v. Dighton Bridge, 3 Mass. 
 263; Thatcher v. Dartmouth Bridge, 
 18 Pick. 501. 
 
§ 143.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 285 
 
 . ing side booms in suitable and convenient places in a river," 
 it has no authority to enter upon private lands adjoining the 
 river without the owner's consent. 1 The State or its grantees 
 are not liable for remote or incidental injuries to individuals,' 
 caused by improving the navigation of those rivers which 
 are public property, 2 or for injuries, however serious, which 
 being common to all others similarly situated, result from the 
 regulation of the navigation. 3 Tolls may be authorized for the 
 use of a stream, the navigation of which has been improved, 
 but which was navigable in its natural condition, if such navi- 
 gation is thereby facilitated. 4 But tolls cannot be exacted for 
 the passage of rafts at high water, if the navigation is then un- 
 obstructed and the rafts do not use the locks, 5 or for the use of 
 
 1 Perry v. Wilson, 7 Mass. 393. 
 
 2 Henly v. Lyme, 5 Bing. 91 ; Rex 
 v. Pegham, 5 B. & C. 350; British 
 Cast Plate Manufacturers v. Mere- 
 dith, 4 T. E. 794; Lansing v. Smith, 
 
 8 Cowen, 146; Spring v. Russell, 7 
 Greenl. 273; Parker v. Cutler Mill 
 Dam Co., 20 Maine, 353; Moor v. Vea- 
 -zie, 31 id. 360; Sugar Refining Co. v. 
 Jersey City, 26 N. J. Eq. 247; Tens- 
 man v. Belvidere Delaware R. Co., 26 
 N. J. L. 148; Hollister v. Union Co.. 
 $ Conn. 436; Hooker v. New Haven 
 Co., 15 Conn. 323; Alexander v. Mil- 
 waukee, 16 Wis. 247; Com. v. Fisher, 
 1 Penn. 462; Hart v. Hill, 1 Whart. 
 124, 136; Zimmerman v. Union Canal 
 Co., 1 Watts & Serg. 346; Shrunk v. 
 Schuylkill Nav. Co., 14 Serg. & R. 71; 
 Lehigh Bridge Co. v. Lehigh Coal 
 Co., 4 Rawle, 9; Bell v. McClintock, 
 
 9 Watts, 119; Bald Eagle Boom Co. 
 v. Sanderson, 81 Penn. St. (Pt. 2) 402; 
 Monongahela Nav. Co. v. Coons, 6 
 W. & S. 101; Schuylkill Nav. Co. v. 
 Freedley, 6 Whart. 109; Newport 
 Bridge Co. v. Foote, 9 Bush, 264; 
 Barney v. Keokuk, 94 U. S. 324; 
 Canal Appraisers v. People, 17 Wend. 
 571; 13 id. 355; Lansing v. Smith, 8 
 Cowen, 146; 4 Wend. 9; Radcliff v. 
 Brooklyn, 4 N. Y. 195;. Coster v. Al- 
 bany, 43 N. Y. 399; 52 Barb. 276; 
 
 Waddell v. New York, 8 N. Y. 95 
 Chapman v. Albany R. Co., 10 N. Y 
 360; Ely v. Rochester, 26 N. Y. 133 
 Sweet v. Troy, 62 N. Y. 630; Kara- 
 nagh v. Brooklyn, 38 Barb. 232 
 Spring v. Russell, 7 Maine, 273 
 Parker v. Cutler Mill Dam Co., 20 
 Maine, 353. 
 
 3 Ante, § 122. When a company is 
 authorized by the State to improve 
 the navigation of a stream, subse- 
 quent purchasers from the State are 
 not entitled to damages for a diver- 
 sion of the water of the stream by 
 the company, for the purpose of im- 
 proving the navigation. Black River 
 Impr. Co. v. La Crosse Booming Co., 
 54 Wis. 659. See Same v. Ketchum, 
 id. 313. A canal cut for the purpose 
 of improving the navigation of a 
 stream may be dedicated to the pub- 
 lic. Weatherby v. Meiklejohn, 56 
 Wis. 73. 
 
 4 Nelson v. Cheboygan Slackwater 
 Nav. Co., 44 Mich. 7. In this case 
 Cooley, J., doubted whether the State 
 can give to private parties the con- 
 trol of a navigable stream for im- 
 provement, with power to charge toll 
 at discretion. 
 
 5 Green River Nav. Co. v. Palmer, 
 83 Ky. 646. 
 
286 THE LAW OF WATERS. [Ch. IV. 
 
 that part of a stream where the dams or other improvements- 
 have been destroyed and not rebuilt. 1 
 
 § 144. Same — Same. — The power of a corporation to de- 
 mand toll, when chartered, like a canal company, for the pur- 
 poses of public transportation, depends upon the terms of its 
 charter and not upon the rules of the common law entitling 
 the owner of property to demand such compensation and from 
 such persons using his property as he may elect. 2 If certain 
 rates of toll are fixed by the charter of a corporation, a sub- 
 sequent act, inflicting penalties on the corporation for exceed- 
 ing the charter rates, is not a violation of the contract of the 
 charter, and is valid. 3 The right to impose toll, conferred 
 upon a company, in consideration of its undertaking an enter- 
 prise for the public benefit, is not lost by reason of the fact 
 that the work does not prove beneficial, 4 or that the improve- - 
 ments mentioned in the statute are not in all respects com- 
 pleted, 6 when such condition is not prescribed by its charter; 6 
 and the neglect or inability of a corporation to perform the 
 duties required by its charter, although sufficient to produce 
 a forfeiture, or to make it liable to indictment, 7 is a matter be- 
 
 1 Lehigh Coal & Nav. Co. v. Brown, quence of the same defects. Side 
 100 Perm. St. 338. Booms v. Weld, 6 Maine, 105; Penob- 
 
 2 Perrine v. Chesapeake Canal Co., scot Boom Co. v. Baker, 16 Maine, 
 9 How. 172. 233; Penobscot Boom Co. v. Wad- 
 
 3 Camden R. Co. v. Briggs, 22 N. J. leigh, id. 235. Bridge-tolls may con- 
 L. 623. stitute an interest in land within the 
 
 4 Bennett's Branch Impr. Co.'s Ap- statute of 9 Geo. 2, eh. 36. In re Davis, 
 peal, 65 Penn. St. 242, 251; Susque- 43 Ch. D. 27 ; In re Christmas, 55 L.T. 
 hanna Boom Co. v. Dubois, 58 Penn. n. s. 197. 
 
 St. 182. See Com. v. Allegheny Bridge 5 Tamar Nav. Co. v. "Wagstaff, 4 B. 
 
 Co., 20 Penn. St. 185; Carman v. Clar- & S. 288; Quincy Canal v. Newconib, 
 
 ion River Nav. Co., 81 Penn. St. 7 Met. 276; Carmen v. Clarion River 
 
 (Pt. 2) 412. See Enfield Toll Bridge Nav. Co., 33 Leg. Int. 239; 2 W. N. C. 
 
 Co. v. Connecticut River Co., 7 Conn. 720. See ante, § 115; Port Credit 
 
 43; Kellogg v. Union Co., 12 Conn. Harbor Co. v. Jones, 5 Q. B. (Can.) 144. 
 
 18; Com. v. Breed, 4 Pick. 460. Pro- 6 See Swift River Impr. Co. v. 
 
 prietors are liable for losses occa- Brown, 77 Maine, 40. 
 
 sioned by want of ordinary care and 7 Lumbard v. Stearns, 4 Cush. 62; 
 
 the incapacity of their piers and Com. v. Newburyport Bridge, 9 Pick, 
 
 booms to secure logs. Weld v. An- 142. If a penalty is imposed by the 
 
 droscoggin Side Booms, 6 Maine, 93. statute incorporating a bridge com- 
 
 But they are entitled to toll on logs pany for unreasonably delaying or 
 
 actually stopped, although other logs neglecting to raise the draw of the 
 
 of the same owner are lost in conse- bridge, such delay or neglect does 
 
§ 144.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 287 
 
 tween the State and the corporation, which cannot be taken 
 advantage of collaterally until it is judicially determined, 1 
 when the charter contains no reservation or condition with a 
 view to the particular interests of individuals. 2 A corpora- 
 tion which is authorized by its charter to improve the naviga- 
 tion of a river, is .not liable for injuries sustained by those 
 who navigate the river, if it has not completed the improve- 
 ment or charged toll, 3 or if the charter merely gives permis- 
 sion and does not create an obligation to make the improve- 
 ment. 4 But, being so authorized, it is bound to keep the river 
 
 Texas, 153; State v. New Orleans 
 Nav. Co., 7 La. Ann. 679; Osborne v. 
 Knife Falls Boom Co., 32 Minn. 412. 
 Upon a proceeding by the State to 
 have a valid franchise declared for- 
 feited or abandoned, the State has 
 the burden of proof. State v. Has- 
 kell, 14 Nev. 209. No action is neces- 
 sary to enforce or to judicially estab- 
 lish a forfeiture which is expressly 
 declared by statute. Upham v. Hos- 
 king, 62 Cal. 250. A franchise may 
 be adjudged forfeited upon proof of 
 long-continued and intentional non- 
 user, but only in a proceeding to test 
 the right; and a court of equity will 
 not grant an injunction when the 
 effect will be to work, by indirection, 
 a forfeiture of a charter, in which 
 there is no provision for its termina- 
 tion. Ottaquechee Woolen Co. v. New- 
 ton, 57 Vt. 451. 
 
 2 Proprietors v. Hahn, 28 Maine, 300; 
 Eiddle v. Locks & Canals, 7 Mass. 
 169. 
 
 3 James River Co. v. Early, 13 
 Gratt. 541. This was an action of 
 trespass on the case to recover the 
 value of a boat and its cargo of salt, 
 lost by striking a snag in the Kana- 
 wha river, on which the specified im- 
 provements were to be made at cer- 
 tain places only. The company was 
 held not liable for the loss, which oc- 
 curred at a place that it was not 
 charged to keep in order. See The 
 Leona, 67 Texas, 303. 
 
 4 Ante, § 115; Goodrich v. Chicago, 
 
 not operate as a forfeiture of the 
 franchise. Com. v. Breed, 4 Pick. 
 400. If the company builds its bridge 
 and takes toll, it may be indicted be- 
 fore the expiration of the time speci- 
 fied for completing the bridge, for a 
 failure to comply with the require- 
 ments of its charter. Com. v. New- 
 buryport Bridge, 9 Pick. 143. An 
 indictment for neglect to provide a 
 pier at the draw of the bridge should 
 directly aver that a bridge has been 
 built. Ibid. If a navigation com- 
 pany fails to improve the navigation 
 of a stream as required by its char- 
 ter, it will not be restrained by a 
 court of equity from collecting the 
 tolls allowed by the charter. The 
 proper proceeding is by quo warranto 
 at suit of the Commonwealth. Pix- 
 ley v. Roanoke Nav. Co., 75 Va. 320. 
 
 i Enfield Toll Bridge Co. u Con- 
 necticut River Co., 7 Conn. 46; Kel- 
 logg v. Union Co., 12 Conn. 20; Hart- 
 ford Bridge Co. v. East Hartford, 16 
 Conn. 173; Pearce v. Olney, 20 Conn. 
 557; Lewiston Steam Mill Co. v. Rich- 
 ardson Lake Dam Co., 77 Maine, 337; 
 Hamilton v. Annapolis R. Co., 1 Md. 
 553; 1 Md. Ch. 107; Com'rs v. State, 
 9 Gill, 397; New Central Coal Co. v. 
 George Creek Coal Co., 37 Md. 537; 
 Com. v. Breed, 4 Pick. 460; Shand v. 
 Gage, 9 S. C. 187; Young v. Harrison, 
 6 Ga. 130; Buncombe Turnpike Co. v. 
 McCarson, 1 Dev. & Bat. (N. C.) 306; 
 People v. Reclamation District, 53 
 Cal 346; Sterrett v. Houston, 14 
 
.288 THE LAW OF WATERS. [Ch. IV. 
 
 in a navigable condition, in consideration of the tolls it re- 
 ceives, and is liable to a navigator who is injured by its neg- 
 lect of such duty. 1 If real estate acquired 'by the corporation 
 is necessary for the uses in which the public is concerned, it 
 cannot be sold or taken on execution, apart from the incidents 
 and burdens of the franchise, so as to give the purchaser a 
 title divested of the obligations of the company. 2 In general, 
 if no provision is made in the charter, the franchise of incor- 
 poration, when granted for the purpose of constructing work^ 
 of public utility, and collecting tolls, is a personal trust and 
 not assignable by voluntary conveyance or forced sale ; 3 but a 
 legislative grant to a particular person, his associates and as- 
 signs, gives him the right to select the persons to be associated 
 with him in the enterprise. 4 If a private corporation holds an 
 entire franchise for the improvement of the navigation of a 
 river between certain points, with power to lease a portion of 
 the works, a lessee of such portion holds subject to the liabil- 
 ity to forfeiture of the entire franchise in case the lessor makes 
 default in duly improving any other portion of the stream. 8 
 Failure on the part of the corporation to improve the streams, 
 or keep them in order, as its charter prescribes, is not remedi- 
 
 20111. 445; Chicago v. McGraw, 75 111. 'ibid.; Lord v. Oconto, 47 Wis. 386; 
 
 566; Mills v. Brooklyn, 32 N. Y. 489; People v. Duncan, 41 Cal. 507; O. K. 
 
 Daniels v. Denver, 2 Col. 669. Co. v. O. B. Co., 45 CaL 365; Louis- 
 
 1 Tompkins v. Kanawha Board, 21 ville Water Co. v. Hamilton, 81 Ky. 
 W. Va. 224. 517; Tippets v. Walker, 4 Mass. 595; 
 
 2 Gueu Tide Water Canal, 24 How. East Boston Freight R Co. v. Hub- 
 257; East Alabama Ry. Co. v. Doe, bard, ,10 Allen, 459, note; Roper v. 
 114 U. S. 353; Gooch v. McGee, 83 McWhorter, 77 Va. 214; Mille Lacs 
 N. C. 59 (restricting State v. Rivers, . Impr. Co. v. Bassett, 32 Minn. 375. 
 5 Ired. 297, and Arthur v. Bank, 9 S. The distinction is between the fran- 
 &M. 394); Ammand v. Turnpike Co., chise to be a corporation and the fran- 
 13 Serg. & R. 210; Railroad Co. v. chise to maintain and operate the 
 Col well, 39 Penn. St. 337; Foster v. works; the latter may be mortgaged, 
 Fowler, 60 id. 27; Youngman v. Rail- etc. Memphis R. Co. v. Railroad Com- 
 road Co., 65 id. 278; Morris Canal Co. missioners, 112 U.S. 609; Ragan^ v. 
 v. Central R. Co., 1 C. E. Green, 419; Aiken, 9 Lea (Tenn.), 609. The mort- 
 Coe v. Railroad Co., 10 Ohio, 372. gagee of the franchise, tolls, etc., 
 See Att. Gen. v. Roanoke Nav. Co., 84 after foreclosure, can sue onlv in the 
 N. C. 705. An execution sale of the mortgagor's name. Whiteside v. Bell- 
 booms and piers of a boom company chamber, 22 C. P. (Can.) 241. 
 passes no right to the leasehold of 4 Powell v. Maguire, 43 Cal. 11. 
 shores and flats used by the company. 5 People v. Kankakee Imp. Co., 103 
 Rollins v. Clay, 33 Maine, 132. 111. 491. 
 
§ 145.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 289 
 
 able in equity, but only by quo warranto at the suit of the 
 State. 1 
 
 §145. Same — Same. — Statutes imposing toll, being in 
 derogation of common right, are strictly construed. 2 An act 
 which authorizes the erection of a toll-bridge, and the purchase 
 of flats adjoining, does not, as incident to the business of main- 
 taining the bridge, give power to build and rent wharves ; 8 
 and a company which is empowered to boom lumber, and to 
 receive toll therefor, is not entitled- to demand toll for driv- 
 ing lumber. 4 The business of improving the navigability of 
 a river for the purpose of aiding the running of logs and 
 timber therein, has a natural and legitimate connection with 
 the business ' of running logs and timber in the river when 
 improved ; and it has accordingly been held that an act creat- 
 ing an improvement company, which was afterwards amended 
 so as to include the running of logs and timber, and the col- 
 lection of tolls on logs, is not obnoxious to a constitutional 
 provision that statutes shall not contain more than one sub- 
 ject. 5 "When a corporation is created for the purpose of mak- 
 
 1 Pixley v. Eoanoke Nav. Co., 75' 
 Va. 320. 
 
 2 Sprague v. Birdsall, 2 Cowen,419; 
 Cayuga Bridge Co. v. Stout, 7 Cowen, 
 33. As to town license for letting 
 boats for hire, see Poyer v. Desplaines, 
 22 111. App. 576. 
 
 3 Toll Bridge Co. v. Osborne, 35 
 Conn. 7. Power given by statute to 
 a municipal corporation to make by- 
 laws "to regulate the anchorage, lad- 
 ing and unlading of vessels," does 
 not authorize the imposition of a 
 toll for anchorage. Reg. v. Dowling, 
 Stevens' N. B. Digest, p. 87, pi. 4. 
 And if such a corporation, being em- 
 powered by its charter to regulate the 
 navigation, anchoring and fastening 
 of vessels, and to make by-laws, etc., 
 grants the right to plaintiff to extend 
 a wharf and collect wharfage thereat, 
 the corporation cannot by contract 
 limit its power to make by-laws 
 under its charter; and may, from 
 time to time, make the plaintiff's 
 19 
 
 grant subject to such by-laws as it 
 deems necessary for vessels, as, e. g., 
 that no vessel shall lie at that wharf 
 with her bow to the south. Walker 
 v. St. John, id. p. 87, pi. 5. A con- 
 veyance of a " bridge " across a cer- 
 tain stream, " together with the toll- 
 house, stables, and outhouses of every 
 description," and "all the privileges 
 and appurtenances appertaining or 
 in any wise belonging to said bridge," 
 passes the land upon which the 
 bridge and buildings are erected. 
 Sparks p: Hess, 15 Cal. 186. 
 
 4 Bangor Booming Co. v. Whiting, 
 29 Maine, 123. 
 
 5 Yellow River Impr. Co. v. Arnold, 
 46 Wis. 214. Where, by a constitu- 
 tional provision, the subject of every 
 private or local bill was to be single 
 and expressed in its title, the title 
 of an act "to authorize the town 
 to raise money to construct a town- 
 dock," was held to indicate by rea- 
 sonable intendment the power to 
 
290 
 
 THE LAW OF "WATEES. 
 
 [CH. IV. 
 
 ing an impassable stream navigable, and no particular mode 
 of accomplishing that result is indicated by the charter, it may 
 be done by any of the known methods; 1 but the manner of 
 doing the work pointed out by the charter, if at all, must be 
 pursued. 2 If a grant from the State of the right to erect a 
 toll-bridge or wharf, or to maintain a ferry across a river, does 
 not in terms restrict the right of the legislature to make simi- 
 lar grants to others, a subsequent charter authorizing another 
 similar structure upon the same river does not violate any 
 vested rights of those to whom the privilege is first granted, 
 or require any provision for compensation to them, although 
 the effect may be to lessen their tolls and profits by the diver- 
 sion of tolls and travel. 3 
 
 charge wharfage, and the act was 
 held not in that respect unconstitu- 
 tional. Pelh'am v. Woolsey, 16 Fed. 
 Eep. 418. See Hoboken v. Pennsyl- 
 vania E. Co., 124 U. S. 656; Thomas 
 v. Wabash Ry. Co., 40 Fed. Rep. 126; 
 Astor v. New York Ry. Co., 113 N. Y. 
 93; Webb v. New York, 64 How. Pr. 
 10; Sweet v. Syracuse, 11 N. Y. S. 114; 
 Richman v. Supervisors, 77 Iowa, 513; 
 State v. Norris, 70 Md. 91 ; People v. 
 Parks, 58 Cal. 624; Doane v. Weil, id. 
 334; David v. Portland, 14 Oregon, 
 98; Golden Canal Co. v. Bright, 8 
 Col. 144; Skagit County v. McLean, 
 20 Wash. 92; Gustavel v. State (Ind.), 
 54 N. E. Rep. 123; Richards v. Stark 
 County (N. D.), 79 N. W. Rep. 863. 
 A charter to build a toll-bridge, 
 which is swept away and cannot 
 stand, is not forfeited by erecting 
 a strong levee with a small portion 
 bridged for the passage of the water. 
 Chandler v. State, 38 Ark. 197. 
 
 1 Canal Co. v. Railroad Co., 4 Gill 
 & J. 1. 
 
 2 Farnum v. Blackstone Canal Co., 
 1 Sumner, 47. Injuries by a dam. 
 erected for the improvement of the 
 navigation of a river are to be com- 
 pensated in the manner provided by 
 statute, if any, and not by action. 
 Calking v. Baldwin, 4 Wend. 667. 
 
 3 Charles River Bridge v. Warren 
 
 Bridge, 11 Peters, 420; 6 Pick. 376; 
 7 Pick. 344; Richmond R Co. v. 
 Louisa R Co., 13 How. 71; The Bing- 
 hamton Bridge, 3 WalL 51; Turn- 
 pike Co. v. State, 3 Wall. 210; Penn- 
 sylvania College Cases, 13 Wall. 190 r 
 214; Fanning v. Gregoire, 16 How. 
 524; Conway v. Taylor, 1 Black, 603: 
 Parrott v. Lawrence, 2 Dillon, 332; 
 Hopkins v. Great Northern Ry. Co., 
 
 2 Q. B. D. 224; Enfield Toll Bridge 
 Co. v. Connecticut River Co., 7 Conn. 
 48; Salem Turnpike Co. v. Lyme, 18 
 Conn. 457; Hartford Bridge Co. v. 
 Union Ferry Co., 29 Conn. 210; Fitch 
 v. New Haven R Co., 30 Conn. 39; 
 White River Co. v. Vermont Central 
 R Co., 21 Vt. 590; Mohawk Bridge 
 Co. v. Utica R Co., 6 Paige, 554: Fort 
 Plain Bridge Co. v. Smith, 30 N. Y. 
 44; Thompson v. New York R Co., 
 
 3 Sandf. Ch. 625; Aiken v. Western 
 R. Co., 20 N. Y. 370; 30 Barb. 305; 
 Chenango Bridge Co. v. Lewis, 63 
 Barb. Ill; Oswego Falls Bridge Co. 
 v. Fish, 1 Barb. Ch. 547: Re Union 
 Ferry Co., 98 N. Y. 139; Martin v. 
 O'Brien, 34 Miss. 21; Canal Co. v. 
 Railroad Co., 4 Gill <fc J. 1; Lafayette 
 Plankroad Co. v. New Albany R. Co., 
 13 Ind. 90; Wright v. Shorter, 56 Ga. 
 72; Greer v. Hangabook, 47 Ga. 282; 
 McLeod v. Savannah R Co., 25 Ga. 
 445; Shorter v. Smith, 9 Ga. 517; 
 
§ 146.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 291 
 
 § 146. Same — Exclusive privileges.— If such a legislative 
 grant gives, for an adequate consideration, privileges which 
 are clearly exclusive, it amounts to a public pledge, and, being 
 accepted by the grantee, has the force of a contract which the 
 legislature has no constitutional power to impair. 1 Where, for 
 instance, a company was authorized by its charter to construct 
 and maintain a toll-bridge within certain defined limits, it was 
 held that the franchise thus created could not be taken away 
 by a statute which authorized another bridge within the same 
 
 Washington Toll Bridge Co. v. Beau- 
 fort, 81 N. C. 491; McEee v. Wilming- 
 ton R. Co., 2 Jones (N. O), 186; Mason 
 v. Harper's Ferry Bridge Co., 17 W. 
 Va. 396; 30 id. 223; Hostler v. Mar- 
 lowe, 44 id. 707; Pratt v. Brown, 3 
 Wis. 603; Fall v. Sutter, 21 Cal. 237; 
 Norris v. Farmers' Co., 6 Cal. 590; 
 Indian Canyon Road Co. v. Robinson, 
 13 Cal. 519; Richmond R. Co. v. Rog- 
 ers, 1 Duv. (Ky.) 138; Lake v. Vir- 
 ginia R. Co., 7 Nev. 294; Piatt V. 
 Covington Bridge Co., 8 Bush, 31; 
 Chapin v. Crusen, 31 Wis. 209; Janes- 
 ville Bridge Co. v. Stoughton, 1 Pin- 
 ney (Wis.), 667; Ward v. Severance, 
 7 Cal. 126; Dyer v. Tuscaloosa Bridge, 
 2 Porter, 296; Gates v. McDaniel, 2 
 Stew. (Ala.) 211; Douglas County 
 Road Co. v. Canyonville Road Co., 8 
 Oregon, 102, 108; Canyonville Road 
 Co. v. Stephenson, id. 263; Hender- 
 son v. Maybin, 3 Rich. (S. C.) 153; 
 Trent v. Cartersville Bridge Co., 11 
 Leigh, 521 ; Tuckahoe Canal Co. v. 
 James River R. Co., id. 42; Allen v. 
 Buncombe Turnpike Co., 1 Dev. Eq. 
 119; 2 Dev. & Bat. Eq. 115. An act 
 incorporating a ferry, toll-bridge or 
 railroad is a private act. Carrow v. 
 Bridge Co., Phil. L. (N. C.) 118; Bur- 
 hop v. Milwaukee, 21 Wis. 257. A 
 grant by the State of the right " to 
 dig, mine, and remove from the beds 
 of navigable streams and waters 
 within the State " certain minerals, 
 on payment of one dollar per ton, 
 does not convey an exclusive right. 
 Bradley v. So. Carolina Phosphate 
 
 Co., 1 Hughes, 72. . But see Massot v. 
 Moses, 3 S. C. 168; Doe v. Wood, 2 B. 
 & Aid. 724. 
 
 x So held, e. g., of the exclusive 
 privilege of supplying water to a 
 city. New Orleans W. W. Co. v. 
 Rivers, 115 U. S. 674; Same v. Tam- 
 many W. W. Co., 14 Fed. Rep. 194; 
 Lehigh Water Co.'s Appeal, 102 Penn. 
 St. 515. So of a similar municipal 
 contract. Los Angeles v. Los Angeles 
 City W. Co., 61 Cal. 65; New Orleans 
 W. Co. v. Louisiana Sugar Ref. Co., 
 35 La. Ann. 1111. See Miss. & Rum 
 River Boom Co. v. Prince, 34 Minn. 
 79. Power granted by a special act 
 to a corporation to improve the navi- 
 gation of a river is not repealed by 
 a general law authorizing the incor- 
 poration of companies with similar 
 powers. Black River Impr. Co. v. La 
 Crosse Booming Co., 54 Wis. 659; 
 Sinking Fund Commissioners v. 
 Green Nav. Co., 79 Ky. 73. Or by a 
 general act upon the same subject 
 containing different provisions, if 
 the acts can be reasonably construed 
 so as to stand together. Harrisburg 
 v. Sheck, 104 Penn. St. 53; State v. 
 Sturgess, 9 Oregon, 537; 10 id. 58; 
 Justice v. Com., 81 Va. 209; Dismal 
 Swamp Canal Co. v. Com., id. 220. 
 See Schneider v. Staples, 60 Wis. 167. 
 A statute which grants to one person 
 the privilege of erecting a weir in 
 certain tide waters is not repealed or 
 modified by a subsequent general act 
 which gives to all others the same 
 right under certain conditions prece- 
 
292 THE LAW OF WATERS. [Ch. IV. 
 
 limits unless provision was made for compensation to the first 
 grantee, as in other cases where private property is taken or 
 vested rights are invaded under the right of eminent domain. 1 
 So, where the legislature granted the right to collect toll for 
 a limited time, in consideration of the capital and labor to be 
 expended in opening a canal through a slough which was not 
 navigable, it was held that the grant could not be revoked 
 without remunerating the grantee, and that he was entitled to 
 collect toll after the expiration of the term. 2 So, also, if the 
 proprietor of a wharf in a harbor is authorized by the State to 
 extend the same into the channel to a harbor line, and, before 
 the extension is made, a railroad company is incorporated with 
 power to construct its road over the fiats between the end of 
 the wharf and the harbor line, the first act is not a mere rev- 
 ocable license but a grant which is not impaired by the act of 
 incorporation. 3 But a statute which merely authorizes a cor- 
 poration to open and widen a creek or stream for the public 
 good is not a compact, and may be repealed by the legislature. 4 
 The grant by a State legislature of a charter for a ferry across 
 a navigable river does not give the grantee any right to con- 
 trol the channel of the river or to prevent its improvement 
 without compensation to him by the TJnited States. 5 A grant 
 
 dent. State w. Cleland, 68 Maine, 958; Bridge Co. v. Lewis, 63 Barb. Ill; 
 
 McKenna v. Edmundstone, 91 N. Y. Proprietors of Bridges v. Hoboken 
 
 231. Land Co., 13 N. J. Eq. 81, 503; 1 
 
 Jlbid. ; Piscataqua Bridge v. New Wall. 116; McRoberts v. Washburne, 
 
 Hampshire Bridge Co., 7 N. H. 35; 10 Minn. 23; Norris v. Farmers' Co., 
 
 Crosby v. Hanover, 36 N. H. 404; 6 CaL.590; Midland G. Co. v. Wilson, 
 
 Backus v. Lebanon, 11 N. H. 19; John- 28 N. J. Eq. 537; Fraser v. Drynan, 4 
 
 son v. Crow, 87 Penn. St. 184; Hart- Allen (N. B.), 74. 
 
 ford Bridge Co. v. East Hartford, 10 2 Grant v. Leach, 20 La. Ann. 239. 
 
 How. 511; 16 Conn. 149; 17 Conn. 79, See New Orleans E. Co. v. Ellerman, 
 
 93 ; Enfield Toll Bridge Co. v. Hartford 105 U. S. 166. 
 
 R. Co., 17 Conn. 40; The Bingham- 3 Fitchburg Railroad v. Boston & 
 
 ton Bridge, 3 Wall. 51; 27 N Y. 87; Maine Railroad, 3 Cush. 58. 
 
 Bridge Proprietors v. Hoboken Co., 1 4 Frederick v. Goshon, 30 Md. 436; 
 
 WalL 116; Hamilton Gas Light Co. v. Annapolis v. Harwood, 32 Md. 480; 
 
 Hamilton, 37 Fed. Rep 132; Crocker West Maryland R Co. v. Patterson, 
 
 v. New York, 21 Blatch. 197; Com. 37 Md. 138. 
 
 v. New Bedford Bridge, 2 Gray, 339 ; 5 Lonergan v. Mississippi River 
 
 Newburgh Turnpike Road v. Miller, Bridge Co., 2 McCrary, 451; Missis- 
 
 5 Johns. Ch. 101; Aiken v. Western sippi River Bridge Co. v. Lonergan, 
 
 R. Co., 20 N. Y. 370; Cayuga Bridge 91 III. 508; Tugwell v. Eagle Pass 
 
 Co. v. Stout, 6 Wend. 85; Chenango Ferry Co., 74 Texas, 480; Hanger v. 
 
§ 146.] PUBLIC EIGHT OF NAVIGATION. 293 
 
 of a bridge or ferry franchise, which is not in terms exclusive, 
 does not preclude a subsequent grant, to other parties, of an- 
 other franchise which impairs the value and takes away the 
 profits of the first. 1 But a statute which authorizes lands to 
 be taken for a railway must be construed strictly, and not ex- 
 tended to a taking for ferries. 2 And if a charter expressly 
 provides that no other bridge or ferry shall be maintained on 
 the same river within five miles either above or below the 
 bridge which it authorizes, the distance is to be measured by 
 the course of the river. 3 Such provision does not confer the 
 right to close up existing public fords.* An exclusive ferry 
 privilege is infringed upon by a free ferry, 5 or by a free 
 bridge. 6 A statute which prohibits the establishment of pri- 
 vate ferries within a certain distance from any public bridge 
 does not prohibit private ferries within such distance from a 
 public ferry. 7 The right to a ferry does not include the power 
 to erect a bridge, not does a right to build a bridge convey a 
 ferry franchise. 8 A ferry does not necessarily infringe upon 
 an exclusive right to maintain a bridge. 9 An exclusive right 
 to maintain a toll-bridge is not infringed by the erection of a 
 railroad bridge, or the maintenance of a railroad ferry, within 
 the specified limit. 10 If the owner of an exclusive ferry fran- 
 chise fails to properly accommodate the public, a court of equity 
 
 Little Rock Ry. Co., 52 Ark. 61; Bel- 4 Compton v. Waco Bridge Co., 62 
 
 mont Bridge v. Wheeling Bridge, 138 Texas, 715. See Wright v. Morris, 43 
 
 U. S. 287; Broadnax v. Baker, 94 Ark. 193. 
 
 N. C. 675; New York v. Ind. S. Co., 5 Chiapella v. Brown, 14 La. Ann. 
 
 22 Fed. Rep. 801. 189; Smith v. Harkins, 3 Ired. Eq. 
 
 i Fall v. Sutter, 21 Cal. 237; Gibbes 613. 
 
 v. Beaufort, 20 S. C. 213. See Innis 6 Norris v. Farmers' & Teamsters' 
 
 v. Cedar Rapids Ry. Co., 76 Iowa, Co., 6 Cal. 590; Gates v. MoDaniel, 2 
 
 165; Burkhalter v. Edwards, 16 Ga. Stew. (Ala.) 211. 
 
 593; Montgomery v. Multnomah Ry. 7 Greer v. Haugabook, 47 Ga. 282. 
 
 Co., 11 Oregon, 344; Texas Ry. Co. v. 8 Cooper v. Athens, 53 Ga. 638; Hall 
 
 Baton Rouge, 36 Fed. Rep. 845. So a v. Boyd, 14 Ga. 1; Shorter v. Smith, 
 
 mere franchise to construct water- 9 Ga. 517; Sandford v. Martin, 31 
 
 works does not preclude the city Iowa, 67. 
 
 from erecting its own waterworks. 9 Parrott v. Lawrence, 2 Dillon, 332; 
 
 Thomas v. Grand Junction, 13 Col. Piatt v. Carrington Bridge Co., 8 
 
 App. 80, infra, § 245a. Bush, 31 ; Mason n Harper's Ferry 
 
 2 Sandford v. Martin, 31 Iowa, 67. Bridge Co., 17 W. Va. 396. 
 
 3 McLeod v. Burroughs, 9 Ga. 213 ; w Lake v. V. & S. R Co., 7 Nev. 294 ; 
 Bodley v. Taylor, 5 Cranch, 191 ; Lit- Mayor v. New England Transp. Co., 
 tlepage v. Fowler, U Wheat. 215. 14 Blatch. 159; Enfleld Bridge Co. v. 
 
294: THE LAW OF WATEKS. [Oh. IV. 
 
 may decline to aid him by enjoining the infringement of his 
 right, and leave him to his action for damages. 1 Such exclu- 
 sive right may be lost- by estoppel, as by silently permitting 
 another ferry or bridge to be completed at great expense. 2 
 The provision of a charter authorizing a railroad company to 
 cross a river by a bridge or ferry, " as may be most conven- 
 ient," regards the convenience both of the navigation and the 
 railroad; and, if there is nothing in the charter to the contrary, 
 the decision as to which will be most convenient rests with the 
 railroad company, which is not deprived of the right to build 
 a bridge by the fact that a bridge would be less convenient to 
 navigation than a ferry. 3 A toll-bridge corporation, if its char- 
 ter is not exclusive, has no cause of action against others who 
 ODen a winter road near by across the river with the intention 
 of diverting travel. 4 A charter which grants to a corporation 
 the exclusive right to supply a city with water is a contract 
 which the State cannot impair under the Federal constitution. 5 
 
 § 147. Same — Remedies. — At common law a right of dis- 
 tress is incident to all tolls. 6 Persons or companies authorized 
 to receive tolls may also recover upon an express promise to 
 pay; 7 and if the statute provides no remedy for non-payment, 
 the law will imply a promise to pay, which will sustain an 
 action, 8 even though the defendant claimed an exemption from 
 
 Hartford E. Co., 17 Conn. 40- Charles & A. 793; Jenkins v. Cooke, 1 Ad. & 
 
 River ^Bridge v. Warren Bridge, 11 El. 871; Fraser v. Swansea Coal Co., 
 
 Peters, 420. id. 354; Nicholl v. Gardner, 13 Wend. 
 
 iFerrel v. Woodward, 20 Wis. 458. 288; Mangurn v. Farrington, 1 Daly, 
 
 2 Fremont Ferry Co. v. Dodge Co., 236; Warren v. McDiarmid, 34 How. 
 
 6 Neb. 18. Pr. 304; Wooster v. Blossom, 5 Jones 
 
 SEaston v. New York E. Co., 24 (N. C), 244; State v. Patrick, 3 Lev. 
 
 N. J. Eq. 49. (N. C.) 478. 
 
 4 Union Bridge Co. v. Spaulding, 63 7 Dorman v. Turnpike Co., 3 Watts, 
 N. H. 298. 126- Beeler v. Turnpike Co., 14 Penn. 
 
 5 St. Tammany W. W. Co. v. New St. 162; Penobscot Boom Co. v. Baker, ' 
 Orleans W. W. Co., 120 U. S. 64; 4 16 Maine, 233; Middle Bridge Co. v. 
 Woods, 134. Marks, 26 id. 326; Proprietors of 
 
 6 Vin. Abr. tit. Toll, 1 ; Bacon's Abr. Upper Locks v. Abbott, 14 N. H 157. 
 tit. Distress, pi. 6; Heddy v. Wheel- 8 Hopkins v. Stockton, 2 Watts & 
 house, Cro. Eliz. 558; Vinkersterne v. Serg. 163; Kellogg v. Union Co., 12 
 Ebden, 1 Salk. 248; 1 Ld. Eaym. 386. Conn. 16; Baltimore v. White, 2 Gill, 
 See Wooirych on Waters, 61, 312; 444; Quincy Canal v. Newcomb, 7 
 Dresser v. Bosanquet, 4 B. & S. 460; Met. 276. See A Coal Float, 112 
 Stourbridge Canal v. Wheeley, 2 B. Ind. 15. 
 
§ 147.] 
 
 PUBLIC EIGHT OF NAVIGATION. 
 
 295 
 
 toll and refused to pay. 1 If a company is authorized by its 
 charter to "demand and recover" tolls for the passage of 
 logs, and to stop and detain them until the tolls are paid, it 
 can maintain an action to recover toll. 2 But if a summary 
 remedy only is given by statute to enforce the payment of tolls, 
 a promise to pay them is not implied, and an action of debt or 
 assumpsit will not lie. 3 A promise to pay toll is without con- 
 sideration, if the promisor is not legally liable to pay.* If tolls 
 are paid under compulsion, or the actual or threatened exercise 
 of power possessed to exact them, from which the person of 
 whom they are demanded has no other means of relief, they 
 may be recovered back, with interest from the date of pay- 
 ment. 5 A person is not liable in damages who avoids a toll- 
 bridge and the payment of tolls, or who induces others to do so. 6 
 
 1 Central Bridge v. Abbott, 4 Cush. 
 473. See Manistee River Impr. Co. v. 
 Lamport, 49 Mich. 443. 
 
 I 2 Bear Camp River Co. v. 'Wood- 
 man. 2 Maine, 404; Penobscot Boom 
 Co. v. Baker, 16 id. 233; Bronte Har- 
 bour Co. v. White, 23 C. P. (Can.) 164. 
 
 3 Vestry of St. Pancras v. Batter- 
 bury, 2 C. P. N. s. 477: Blackburn v. 
 Parkinson, 1 El. & El. 71: Turnpike 
 Co. v. Brown, 2 P. & W. 462; Great 
 Western Ry. Co. v. Sharman, 61 L. J. 
 Q. B. 600; 40 W. R. 643; Dornian v. 
 Turnpike Co., 3 Watts, 126; Beeleri;. 
 Turnpike Co., 14 Penn. St. 162; Chest- 
 nut Hill Turnpike Co. v. Martin, 12 
 id. 361; Kidder v. Boom Co., 24 id. 
 193; Russell v. Turnpike Co., 13 Bush, 
 307; Turnpike Co. v. Van Dusen, 10 
 Vt. 197; Witt v. Jefcoat, 10 Rich. 
 <S. C.) 389. See Middle Bridge Co. v. 
 Brooks, 13 Maine, 391; State v. Dear- 
 born, 15 id. 403; Middle Bridge Co. v. 
 Marks, 26 id. 326; Chase v. Dwinal, 7 
 id. 134; Hunter v. Perry, 33 id. 159; 
 
 Penobscot Boom Co. v. Lamson. 16 
 id. 224; Proprietors v. Hahn, 28 id. 
 30t); Louisville v. Bank of United 
 States, 3 B. Mon. 138, 158; Penobscot 
 Boom Co. v. Penobscot Lumber Ass'n, 
 6f Maine, 533. 
 
 4 Waterloo Turnpike Road Co. v. 
 Cole, 51 CaL 381. 
 
 s Lehigh Canal Co. v. Brown, 100 
 Penn. St. 338; Little v. Dundas Road 
 Co., 2 C. P. (Can.) 399. Cf. Marsh v. 
 Port Hope Harbour Co., 6 O. S. (Can.) 
 100. See Wausau Boom Co. v. Dun- 
 bar, 75 Wis. 133; Appleman v. Myre, 
 74 Mich. 359. 
 
 « Wright v. Morris, 43 Ark. 193. See 
 "toll-bridge " denned in State v. Han- 
 nibal R. Co., 97 Mo. 348. As to con- 
 tracts relating to wharfage, see Tay- 
 lor v. Albemarle Steam Nav. Co., 105 
 N. C. 484; Philadelphia C. & I. Co. v. 
 New York, 21 Fed. Rep. 97 (lease). 
 Upon equality of rates of boomage, 
 see Merritt v. Knife Falls Boom Co., 
 34 Minn. 245. 
 
CHAPTER V. 
 RIPARIAN RIGHTS — BOUNDARIES. 
 
 SECTION. 
 
 148, 149. Riparian rights defined. 
 
 150-154 The right of access. 
 
 155-157. Accretions. 
 
 158, 159. The effect upon private rights of sudden changes caused by th* 
 
 currents. 
 
 160, 161. Defenses against the sea and rivers. 
 
 162-165. Apportionment of alluvion between coterminous proprietors. 
 
 166. Islands. 
 
 167,168. Wharfingout 
 
 169. The Massachusetts Ordinance of 1647. 
 
 170-173. The right to occupy flats under the usages of Connecticut, New 
 Jersey, Rhode Island and Pennsylvania. 
 
 174 The same in California. • 
 
 151,175. In New York. • • 
 
 176. In Marvland. 
 
 177. In Florida and Oregon. 
 
 178. In Virginia, North and South Carolina, Georgia and Louisiana.. 
 
 179. Wharfing out in fresh waters. 
 
 180, 181. The outward limit of the right of extending wharves, etc. 
 
 182-190. Rights of fishery. 
 
 191. The right to ice. 
 
 192. Wrecks and waifs. 
 
 193. Femes. 
 
 194 Description of boundaries upon streams. 
 
 195. Boundaries upon tide water. 
 
 196. Boundaries upon non-tidal waters. 
 
 197. Description limiting to bank. 
 
 198. The location of a stream's thread as a boundary. 
 199, 200. Boundary when limited to high-water mark or bank, 
 
 201. Course of stream not always followed as a boundary. 
 
 202. Boundaries of towns, parishes and nations upon waters. 
 
 203. Boundaries upon lakes and ponds. 
 
 §148. Riparian rights — Defined. — Riparian rights, ac- 
 cording to the strict meaning of the term, are such as follow 
 or are connected with the ownership of the banks of streams 
 or rivers. 1 Those whose lands border upon tide waters are- 
 called " littoral " proprietors, and there appears to be no word 
 
 1 Riparian is derived from Latin ripa, a river bank. 
 
§ 148.] EIPAEIAN EIGHTS. 297 
 
 or phrase of sufficiently broad meaning to include both riparian 
 and littoral, although each is sometimes used to denote the 
 other. 1 The distinction between tide waters and fresh, or be- 
 tween public and private waters, is not necessarily a material 
 consideration in determining questions relating to riparian 
 rights, since riparian rights proper depend upon the ownership 
 of land contiguous to the water, and are the same whether the 
 proprietor of such land owns the soil under the water or not. 
 In Lyon v. Fishmongers' Co., 2 Lord Selborne thus states what 
 is now to be regarded as the established law upon this subject : 
 " The rights of a riparian proprietor, so far as they relate to 
 any natural stream, exist jure naturce, because his land has by 
 nature the advantage of being washed by the stream ; and if 
 the facts of nature constitute the foundation of the right, I 
 am unable to see why the law should not recognize and follow 
 'the course of nature in every part of the same stream. "With 
 respect to the ownership of the bed of the river, this cannot 
 be the foundation of riparian rights properly so called, because 
 the word ' riparian ' is relative to the bank, and not to the bed 
 of the stream, and the connection, when it exists, of property on 
 the banks with property in the bed of the stream depends not 
 upon nature, but on grant or presumption of law. The title 
 to the soil constituting the bed of a river does not carry with 
 it any exclusive right of property in the running water of the 
 stream, which can only be appropriated by severance, and 
 which may be lawfully so appropriated by every one having 
 a right of access to it. It is, of course, necessary for the ex- 
 istence of a riparian right that the land should be in contact 
 with the flow of the stream ; but lateral contact is as good 
 jure naturce as vertical." 3 " It is true that the banks of a 
 
 1 Littoral is derived from Latin Texas, 718 ; Smith v. Power, 14 Texas, 
 
 litus, the sea-shore. It is now in gen- 146. 
 
 eral use, and should be employed 2 \ App. Cas. 662 ; L. R. 10 Ch. 679 ; 
 
 rather than " riparian," in respect to Diedrich v. Northwestern Ry. Co., 43 
 
 the shores of the sea, and also, ac- Wis. 248 ; Stevens Point Booming Co. 
 
 cording to important authorities, as v. Reiliy, 44 Wis. 295, 305 ; Morrill v. 
 
 including " riparian." Regina v. St. Anthony Falls Co., 26 Minn. 222 ; 
 
 Keyn, 2 Ex. D. 63 ; Boston v. Lecraw, Meyers v. St Louis, 8 Mo. App. 266. 
 
 17 How. 432, 433 ; West Roxbury v. 3 Miner v. Gilmour, 12 Moo. P. C. 
 
 Stoddard, 7 Allen, 158, 167 ; 9 Gray, 131 ; Chasemore v. Richards, 7 H. L. 
 
 521, note ; Hamilton v. Menifee, 11 Cas. 349, 373, 382. See, also, Lord v. 
 
298 
 
 THE LA"^ OF WATERS. 
 
 [GH. V. 
 
 tidal river, of which the foreshore is left bare at low water, is 
 ■not always in contact with the flow of a stream, but it is in 
 such contact for a great part of every day in the ordinary and 
 regular course of nature, which is an amply sufficient founda- 
 tion for a natural riparian right." All riparian rights depend 
 upon the ownership of land which is contiguous to and touches 
 upon the water; 1 and, in the case of tide waters, at common 
 law, upon the ownership of the land above and adjoining the 
 edge of the water at ordinary high-water mark. 2 They attach 
 to the land, and an express mention in the deed that they are 
 sold with it is surplusage. 3 They do not attach to any lands, 
 however near, which do not extend to the water ; 4 nor do they' 
 necessarily attach to a State grant of lands lying below the 
 tidal high-water mark. 8 An allegation in a bill in equity that 
 the plaintiff owns land " lying upon the bay " does not clearly 
 imply a water boundary. 6 A mere right of way along the 
 banks, reserved in a grant of land bounded by a river, being 
 merely an easement, does not deprive the grantee of his rights 
 as a riparian proprietor. 7 The mere opportunity, because of 
 
 Commissioners of Sidney, 12 Moo. P. 
 C. 473. 
 
 1 Jones v. Johnston, 18 How. 150; 
 Johnston v. Jones, 1 Black, 209; Bates 
 v. Illinois Central R. Co., id. 204; Peo- 
 ple v. Commissioners, 15 N. Y. S. 644; 
 Stark v. Miller, 113 Mich. 465; Boeh- 
 mer v. Big Rock Ir. Dist., 117 Cal. 19; 
 Sweringen v. St. Louis, 151 Mo. 348; 
 post, § 155, note. If there is clear 
 water between the grounds of differ- 
 ent proprietors they are not adjoin- 
 ing owners. Rowe v. Luddihgton, 51 
 Conn. 184. The owner of an acre of 
 land upon a stream, which land is 
 used for a pumping-station, is not a 
 riparian owner. Hopkinsville Bank 
 v. Western Ky. Insane Asylum (Ky.), 
 56 S. W. Rep. 525. 
 
 2 Ibid. ; Lyon v. Fishmongers' Co., 
 above quoted; Potomac S. Co. v. 
 Upper Potomac S. Co., 109 IT. S. 672, 
 683; Mc Arthur & M. 285; Deerfield 
 v. Arms, 17 Pick. 41 ; State v. Brown, 
 3 Dutch. 13, 648; Hoboken Land Co. 
 v. Hoboken, 7 Vroom, 540, 550; Hay- 
 
 den v. Long, 8 Oregon, 244. See Shir- 
 ley v. Bishop, 67 Cal. 543; New Or- 
 leans W. Co. v. Ernst, 32 Fed. Rep. 5; 
 Re State Reservation Com'rs, 37 Hun, 
 537. 
 
 3 Meyers v. Mathis, 43 La. Ann. 471 ; 
 Hanford v. St. Paul R. Co., 43 Minn. 
 104; Sands v. Gambs, 106 Mich. 362; 
 Tappendorf v. Downing, 76 Cal. 169. 
 See, contra, as to accretions on the 
 Mississippi river in Louisiana, Fer- 
 rifire v. New Orleans, 35 La. Ann. 209. 
 
 4 Ibid. ; Jones v. Westerhausen, 131 
 Penn. St. 62. 
 
 5 This depends upon the terms and 
 purpose of the grant, the user, con- 
 duct of parties, etc. Turner v. Peo- 
 ple's Ferry Co., 21 Fed. Rep. 90 (case 
 of wharfage). 
 
 6 Sullivan v. Moreno, 19 Fla. 200. 
 7 Hagan v. Campbell, 8 Porter, 9; 
 
 New York Cent. R. Co. v. Aldridge, 
 135 N. Y. 83; Stetson v. French, 16 
 Maine, 204; Stetson v. Bangor, 60 id. 
 313; Barclay v. Howell, 6 Peters, 498; 
 Parish v. Stevens, 1 Oregon, 59; St 
 
§ 148.] EIPAEIAN EIGHTS. 299 
 
 the situation of a mill, to use the tide as its motive power is 
 not an easement which, if disturbed, confers a right of action. 1 
 But if the granted premises are bounded in terms by a public 
 road which separates them from the water, they extend only 
 to the center of the road, and the grantee is not a riparian 
 owner. 2 So, if a meander line, run by government surveyors 
 in surveying the public lands, leaves between such line and the 
 bank of the stream a considerable body of land which is above 
 the ordinary stage of the water in the stream, and is covered 
 with vegetation or timber, the patent of the surveyed land is 
 limited by the meander line and the patentee is not a riparian 
 proprietor. 3 "When a title to land enclosed by a river is ac- 
 quired by disseisin, and the disseisor occupies as near the river 
 as convenient, it may amount to a possession of the whole lot, 
 if such was his intention, although there is a narrow strip un- 
 cultivated along the river; and he may thus be entitled to 
 riparian rights. 4 And a person or corporation, if entitled to 
 the exclusive possession and use of land abutting on a stream, 
 is entitled to the riparian rights incident to the land, although 
 not the owner of the fee. 5 A lessee 6 may have complete ripa- 
 
 Louis Public Schools v. Hammond, 21 Mariner v. Schulte, 13 Wis. 692: Ar- 
 
 Mo. 238; Rowan v. Portland, 8 B. Mon. nold v. Elmore, 16 Wis. 509; Yates v. 
 
 239. If the width of a street is clearly Judd, 18 Wis. 118. A right of way 
 
 defined in a town plat, land lying be- may be appurtenant to land, from 
 
 tween the street and the low-water which it is divided by a navigable 
 
 mark of a river is not thereby dedi- river. In re Lazaretto Road, 1 Ash. 
 
 cated to the public. McLaughlin v. (Penn.) 417. 
 
 Stevens, 18 Ohio, 94; Kennedy v. 3 Lammers v. Nissen, 4 Neb. 250, 452. 
 Jones, 11 Ala. 63. If the land dedi- 4 Allen v. Holton, 20 Pick. 458; 
 cated for a highway is delineated on Ridgway v. Ludlow, 58 Ind. 248. 
 a map as extending to the high- water ^Hanford v. St. Paul R. Co., 43 
 mark of tide-water, it is subject to Minn. 104; Wright v. Woodcock, 86 
 a public easement, but remains the Maine, 113. A municipal corpora- 
 property of the State. Hoboken v. tion may thus have riparian rights. 
 Pennsylvania R. Co., 16 Fed. Rep. Emporia v. Soden, 25 Kansas, '588; 
 816. See Schenley v. Pittsburgh, 104 Madison v. Mayers, 97 Wis. 399; infra, 
 Penn. St. 472. §245. But its rights are not greater 
 
 1 Folsom v. Freeborn, 13 R. L 200. than those of an individual, and 
 
 2 Banks v. Ogden, 2 Wall. 57; Peo- statutory power to control streams 
 pie v. Colgate, 67 N. Y. 512; Jewell v. leading to it does not enable it to in- 
 Lee, 14 Allen, 145; Allegheny City v. terfere with the riparian owners' 
 Morehead, 80 Penn. St. 118; Brisbine prior vested rights. Fisher v. Boun- 
 v. St. Paul R. Co., 23 Minn. 114; Allen tiful City (Utah), 59 Pac. Rep. 520. 
 
 v. Munn, 55 111. 486; Field v. Carr, 59 6 Crook v. Hewitt, 4 Wash. St. 749. 
 111. 198; Cowles v. Gray, 14 Iowa, 1; See Balance v. Peoria, 180 111. 29; 
 Grant v. Davenport, 18 Iowa, 179; Peoria v. Ballance, 61 111. App. 369. 
 
300 THE LAW OE WATEKS. [Ch. V- 
 
 rian rights, and so may a water company. 1 Eiparian rights 
 are not dependent upon the existence of a current ; they exist 
 in lakes and ponds, and also in waters which are not- navi- 
 gable in fact. 2 
 
 § 119. Same — The right of access.— Riparian rights exist 
 
 on the banks of navigable waters as well as of unnavigable 
 streams. In the former case they are subordinate to the- 
 public right of navigation ; and, while in a non-navigable river 
 all the riparian owners might combine to completely divert, 
 diminish, or pollute the stream, in a navigable river the right 
 of navigation would intervene and prevent this being done.* 
 The rights actually exercised by the proprietors of land on the 
 shores of tide water are often dissimilar from those enjoyed 
 by proprietors above the flow of the tide, since salt water is 
 less available in the arts, or for irrigation, etc., than fresh. 
 But a littoral proprietor, like a riparian proprietor, has a right 
 to the water frontage belonging by nature to his land, although 
 the only practical advantage of it may consist in the access 
 thereby afforded him to the water, for the purpose of using 
 the right of navigation. This right of access is his only, and 
 exists by virtue and in respect of his riparian property. It 
 exists, in the' case of tide waters, even when the shore is the 
 sovereign's property, both when the tide is out and when it is 
 in. 4 It is distinct from the public right of navigation, and an 
 interruption of it is an encroachment upon a private right, 
 whether caused by a public nuisance, or authorized by the leg- 
 islature. 5 In the above case of Lyon v. Fishmongers' Co., 6 it 
 was held that the power given to conservators of the Thames, 
 
 i Indianapolis W. Co. v. American «1 App. Cas. 662; L. R 10 Ch. 679. 
 
 Strawboard Co., 53 Fed. Rep. 970; 57 SeeKearnsv. Cordwainers'Co.,6C. B. 
 
 id. 1000. n. s. 388; Buccleuch v. Met. Board of 
 
 2 Turner v. Holland, 65 Mich. 453. Works, L. R. 5 H. L. 418; L. R. 3 Ex. 
 
 3 Lyon v. Fishmongers' Co., 1 App. 306; Att. Gen. v. Conservators of the 
 Cas. 662; Orr Ewing v. Colquhoun, 2 Thames, 1 H. & M. 1; Met. Board of 
 App. Cas. 656. Works v. McCarthy, LE.IEL 
 
 4 Byron v. Stimpson, 1 Pug. & B. 243; Bell v. Quebec, 5 App. Cas. 84; 
 (N. B.) 697; State v. Bridges, 19 Wash. Brown v. Gugy, 10 Jur. N. s. 525; 
 44; 40 L. E. A. 593, and note; Madi- Att. Gen. v. Wemyss, 13 App. Cas. 
 son v. Mayers (97 Wis. 399), id. 635, 192; North Shore Railway v. Pion, 14 
 and note. id. 612; Parkdale v. West, 12 App. 
 
 ''Ante, § 124; Yarmouth v. Sim- Cas. 602; 4 Harvard Law Rev. 14, 
 mons, 10 Ch. D. 518. 
 
§ 149.] 
 
 EltAEIAN EIGHTS. 
 
 301 
 
 under the act of Parliament by which they were constituted, 
 to grant a license to a riparian owner to make an embankment 
 in front of his land on the river, did not authorize the licensee 
 to embank in front of his own land so as to affect injuriously 
 the rights of an adjoining riparian owner, though such license 
 might be a justification with respect to the public right of 
 navigation. In Tates v. Milwaukee, 1 in the Supreme Court of 
 the United States, a municipal corporation, which was author- 
 ized by the legislature to establish dock and wharf lines upon 
 rivers within its limits, and to restrain and prevent encroach- 
 ments upon the rivers and obstructions thereto, declared by 
 ordinance that the plaintiff's wharf was a nuisance to the nav- 
 igation, and ordered it abated. This ordinance was of itself 
 held to be insufficient evidence 2 upon the question whether the 
 wharf was in fact a nuisance. 3 
 
 1 10 Wall. 497. 
 
 2 Miller, J., here said, with respect 
 "to lots adjoining navigable rivers: 
 " Whether the title of the owner of 
 such a lot extends beyond the dry- 
 land or not, he is certainly entitled 
 to the rights of a riparian proprietor 
 whose land is bounded by a naviga- 
 ble stream; and among those rights 
 are access to the navigable part of 
 the river from the front of his lot, 
 the right to make a landing, wharf, 
 or pier for his own use or for the use 
 of the public, subject to such general 
 rules and regulations as the legisla- 
 ture may see proper to impose for 
 the protection of the rights of the 
 public." See Dutton v. Strong, 1 
 Black, 25; Schurmeir v. Railroad Co., 
 7 Wall. 273; Atlee u Packet Co., 21 
 Wall. 389; Carli v. Stillwater Street 
 Ry. Co., 28 Minn. 373. " This riparian 
 right is property, and is valuable, 
 and, though it must be enjoyed in 
 due subjection to the rights of the 
 public, it cannot be arbitrarily or 
 capriciously destroyed or impaired. 
 It is. a right of which, when once 
 vested, the owner can only be de- 
 prived in accordance with estab- 
 lished law; and, if necessary that it 
 
 be taken for the public good, upon 
 due compensation." Generally, au- 
 thority to abate nuisances, or to reg- 
 ulate wharves, does not include the 
 power to declare that a nuisance 
 which is not so in fact. Pye v. Peter- 
 son, 45 Texas, 312; Evansville v. Mar- 
 tin, 41 Ind. 145; Everett v. Council 
 Bluffs, 46 Iowa, 66: Babcock v. Buf- 
 falo, 56 N. Y. 268. 
 
 3 See also Webber v. Harbor 
 Com'rs, 18 Wall. 57; Atlee v. Packet 
 Co., 21 Wall. 389; Richardson v. 
 Boston, 24 How. 188; Van Dolsen v. 
 New York, 11 Blatch. 454; Baltimore 
 R. Co. v. Chase, 43 Md. 23; Harrison 
 v. Sterrett, 4 H. & McHen. 540; Died- 
 rich v. Northwestern Ry. Co., 42 Wis. 
 248; Delaphine v. Chicago Ry. Co., id. 
 214; Meyers v. St. Louis, 8 Mo. App. 
 266; Myers v. St. Louis, 82 Mo. 367; 
 Barron v. Baltimore, 2 Am. Jurist, 
 203; Clark v. Peckham, 10 R. I. 35, 38; 
 9 R. I. 455; Morrill v. St, Anthony 
 Falls Co., 26 Minn. 222; Norfolk City 
 v. Cooke, 27 Gratt. 430. 435. If the 
 loss occasioned by an interruption of 
 the right of access to a highway is 
 capable of pecuniary compensation, 
 the remedy is by an action at law 
 for damages, and not by proceedings 
 
302 THE LAW OF WATERS. [Ch. Y. 
 
 § 150. Same — Same.— This right is limited to the right to 
 enter from one's own estate upon the highway, and to pass 
 from the highway to one's own estate, and does not include 
 the right to redress for an obstruction which is not against 
 the front of the plaintiff's land, even when it entirely closes the 
 highway. 1 It doubtless follows, from the important decisions 
 just referred to, that access, as thus defined, cannot, without 
 compensation, be taken away by the State, as owner in fee of 
 the bed and shores of navigable waters, or by virtue of its- 
 power to regulate and control them for public purposes. In 
 Buccleuch v. Metropolitan Board of "Works, 2 the House of 
 Lords held that the owner of an estate upon the tide waters 
 of the Thames was entitled to compensation, not only for the 
 land actually taken for the construction of a public road, but 
 also for the change of his premises from river-side to road-side 
 property, including his individual and particular right to use 
 the shore of the river in which he had no proprietary interest. 
 In "Wisconsin a riparian proprietor is entitled to compensation 
 from a railroad corporation, which so builds its road, under 
 the authority of the State, as to deprive him of access to and 
 from his land, and of the facilities which the location of the 
 land affords, although the road is constructed beyond the 
 water's edge, which is the boundary of his title. 3 This view 
 has been approved in Bhode Island 4 and Minnesota. 5 
 
 in equity for an injunction. Stone Co., 6 M. & W. 699; Chamberlain v. 
 
 v. Peckham, 12 E. I. 37. West End of London Ry. Co., 2 B. & 
 
 1 Ante, § 124; Gibson v. United S. 605; Moore v. Great Southern Ry. 
 
 States, 166 U. S. 269; Lewis v. John- Co., 10 Ir. R. C. L. 46; Regina v. 
 
 son, 76 Fed. Rep. 476; Bailey v. Phila- Rynd, 16 Ir. R C. L. 29 r Widcler v. 
 
 delphia R. Co., 4 Hair. (Del.) 389; Buffalo & Lake Huron Ry. Co., 20 
 
 Boston & Worcester Railroad v. Old Q. B. (Can.) 638; 24 id. 520; 27 id. 
 
 Colony Railroad, 12 Cush. 605; Hotz 425; Reg. v. Buffalo & Lake Huron 
 
 v. Hoyt, 135 III. 388; Shirley v. Ry. Co., 23 id. 208; In re Miller & 
 
 Benicia, 118 Cal. 344, Great Western Ry. Co., 13 id. 582; 
 
 2 L. R. 5 H. L. 418; L. R 3 Ex. 306; see infra, §§ 248, 248a. 
 
 L. R. 5 Ex. 221. See, also, the English 3 Chapman v. Oshkosh & Miss. R. 
 
 and Massachusetts cases cited ante, Co., 33 Wis. 629; Delaphine v. Chi- 
 
 g§ 122, 124. Beckett v. Midland Ry. cago R Co., 42 Wis. 214; Diedrich v. 
 
 Co., L. R. 3 C. P. 82; Met. Board of Northwestern Ry. Co., id. 248, 264; 
 
 Works v. McCarthy, L. R. 7 H. L. Holdon v. Milwaukee, 31 Wis. 38. 
 
 243: Ricket v. Met. Ry. Co., L. R. 2 * Providence Steam Engine Co. v. 
 
 H. L. 175; Bell v. Hull & Selby Ry. Providence S. Co., 12 R. I. 348, 361: 
 
 5 Brisbine v. St. Paul R. Co., 23 Minn. 114; Carli v. Stillwater Street Ry. 
 Co., 28 Minn. 373. 
 
§ 151.] 
 
 KIPARIAN EIGHTS. 
 
 303 
 
 § 151. Same — Same. — Upon the other hand it was held in 
 New York, in Gould v. Hudson River Railroad Co., 1 which was 
 prior to the decision of the Supreme Court of thellnited States. 
 in Yates v. Milwaukee, 2 that, as the owners of lands adjoining 
 a navigable river have no private right of property in the wa- 
 ters of the river, or in its shores below high-water mark, they 
 are not entitled to compensation when a railroad, constructed 
 under a grant from the legislature along the shore between 
 high and low-water mark, cuts off all communication between 
 such lands and the river otherwise than across the roadJ 5 
 It has been suggested that this doctrine may result, in New 
 York, from the civil-law doctrine, applicable to the Hudson, 
 which was the river here in question. This doctrine, which 
 rests apparently upon the ground that the injury suffered by 
 the riparian owner, though greater in degree, is the same in 
 kind as that sustained by the general pubiic and by those 
 who, not being riparian owners, have occasion to approach it 
 over that part of the bank occupied by the road, 4 is also sup- 
 ported by Tomlin v. Dubuque Railroad, 5 in Iowa, decided 
 
 Clark v. Peokham, 10 E. I. 35, 38; 9 
 E. I. 455. See Cooley, Const. Lim. 
 544, note; Cleveland E. Co. v. Ball, 5 
 Ohio St. 568; Eice v. Euddiman, 10 
 Mich. 125; Lorman v. Benson, 8 Mich. 
 18; Lehigh Valley E. Co. v. Trone, 28 
 Penn. St. 206; In re Philadelphia E. 
 Co., 6 Whart. 25, 46; Com. v. Eichter, 
 1 Penn. 467; Pittsburgh v. Scott, 1 
 Penn. St. 309, 317; Ashby v. Eastern 
 E. Co., 5 Met. 368; Dodge v. County 
 Com'rs, 3 Met. 380; Chicago, etc. E. 
 Co. v. Stein, 75 111. 41. 
 
 1 Gould v. Hudson Eiver E. Co., 6 
 N. T. 522; 12 Barb. 616; Lansing v. 
 Smith, 8 Cowen, 146; 4 Wend. 9; 
 People v. Tibbetts, 19 N. Y. 523, 528; 
 Langdon v. New York, 93 N. Y. 129, 
 144; Brooklyn Park Com'rs v. Arm- 
 strong, 45 N. Y. 234, 245; People v. 
 New York Ferry Co., 68 N. Y. 71, 78; 
 
 7 Hun, 105; People v. Vanderbilt, 26 
 N. Y. 287; People v. Canal Appraisers, 
 33 N. Y. 461, 467; People v. New York, 
 
 8 Abb. Pr. 7, 12; Manhattan Gaslight 
 Co. 17. Barker, 36 How. Pr. 233; 7 Eob. 
 
 523; Hudson Eiver E. Co. v. Loeb, 7 
 Eob. 418; Getty v. Hudson Eiver E. 
 Co., 21 Barb. 617; Wetmore. v. At- 
 lantic White Lead Co., 37 Barb. 70, 96. 
 But see Story v. New York El. E. Co., 
 90 N. Y. 122; Be New York & W. S. E. 
 Co., 29 Hun, 269, 646; 89 N. Y. 453; 
 Fowler v. Mott, 19 Barb. 204, 220-; 
 Organ v. Memphis E. Co., 51 Ark. 235 
 (partition). 
 210 Wall. 497; ante, § 149. 
 
 3 Smith 17. Eochester, 92 N. Y. 463, 
 482; ante, § 57. 
 
 4 See remarks of Beasley, C. J., in 
 Stevens v. Paterson E. Co., 34 N. J. L. 
 532, 549. 
 
 5 32 Iowa, 106. See McManus v. 
 Carmichael, 3 Iowa, 1. The follow- 
 ing decisions in Iowa recognize or 
 support Tomlin u Dubuque E. Co.: 
 In graham v. Chicago E. Co., 34 Iowa, 
 249, 252; Cook v. Burlington, 36 Iowa, 
 357, 365; Musser 17. Hershey, 43 Iowa, 
 356, 361; Kuoheman v. C. C. & D. E- 
 Co., 46 Iowa, 366, 378. The matter- 
 is not provided for by statute in this. 
 
304 
 
 THE LAW OF "WATERS. 
 
 [Oh. Y. 
 
 shortly after Yates v. Milwaukee, which is not there referred 
 to, and prior to the English cases above cited; 1 and by Stevens 
 v. Paterson E. E. Co., 2 in New Jersey, which was decided 
 just before Yates v. Milwaukee, and in which the decision of 
 the Exchequer Chamber in Buccleuch v. Metropolitan Board 
 of Works 3 was relied upon, 4 — a decision which was after- 
 wards reversed by the House of Lords upon the grounds above 
 stated." 5 When it is conceded that riparian rights are property, 
 the question as to the right to take them without compensa- 
 tion would appear to be at an end, and the above doctrine is 
 now of doubtful authority, even in !New York. 6 
 
 §152. Same — Same. — If a city so constructs its sewers 
 and drains discharging into navigable waters that their con- 
 tents are not carried away by the tides or current, but cause ac- 
 cumulations in front of a wharf and obstruct the access of 
 vessels, the owner of the wharf may recover damages against 
 the city in an action of trespass on the case, or he may obtain 
 relief by injunction against the continuance of the nuisance. 7 
 
 State. See Renwiok v. D. & N. W. 
 R. Co., 49 Iowa, 664, 669; Railway Co. 
 v. Ken wick, 102 U. S. 180; Barney v. 
 Keokuk, 94 U. S. 324; Houghton v. 
 C. D. &.M. R Co., 47 Iowa, 370. 
 
 1 Lyon v. Fishmongers' Co., 1 App. 
 Cas. 662; L. R 10 Ch. 679; Buccleuch 
 v. Met. Board of Works, L. R. 5 H. L. 
 418; L. R. 5 Ex. 222; L. R. 3 Ex. 306; 
 Met. Board of Works v. McCarthy, 
 L. R. 7 H. L. 243; Bell v. Quebec, 5 
 A. C. 84. 
 
 2 Stevens v. Paterson R. Co., 34 N. J. 
 L. 532; 20 N. J. Eq. 126. See Stock- 
 ham v. Browning, 18 N. J. Eq. 390; 
 Tinsman v. Belvidere Delaware R. 
 Co., 26 N. J. L. 148; 25 id. 255. 
 
 3L. R5Ex. 221. 
 
 4 34 N. J. L. 543, 544. 
 
 5L. R. 5 H. L. 418; Meyers v. St. 
 Louis, 8 Mo. App. 266, 276. 
 
 6 Boston v. Richardson, 19 How. 
 263, 270; Boston v. Lecraw, 17 How. 
 426; Clark v. Peckham, 10 R. I. 35; 
 9 R. I. 455; Kerr v. West Shore R. 
 Co., 37 N. Y. State Rep. 913; Buffalo 
 v. Delaware, etc. R. Co., 39 N. Y. S. 4. 
 
 See Rumsey v. N. Y. & N. E. R Co., 
 114 N. Y. 423; 125 N. Y. 681; 130 
 N. Y. 88; 133 N. Y. 79; 136 N. Y. 543; 
 63 Hun, 200; Kane v. New York EL 
 R. Co., 125 N. Y. 164, 184; Kerr v. 
 West Shore R Co., 127 N. Y. 269; 
 New York Central R. Co. v. Aldridge, 
 135 N. Y. 83; Saunders v. New York 
 Central R. Co., 135 N. Y. 613; 144 
 N. Y. 75; 24 N. Y. S. 659; 23 id. 927; 
 Sage v. New York, 41 id. 938; 154 
 N. Y. 61; Nolan v. Rockaway Park 
 Imp. Co., 76 Hun, 458; Hedges v. 
 West Shore R Co., 150 N. Y. 150; 80 
 Hun, 310; Bigaouette v. North Shore 
 Ry. Co., 17 Can. Sup. Ct. 363; Will- 
 iams v. New York, 105 N. Y. 419, 436; 
 Van Dolsen v. New York, 21 Blatch. 
 454; Shively v. Bowlby, 152 U. S. 1, 
 21 ; Chapman v. Oshkosh R Co., 33 
 Wis. 629. 
 
 7 Supra, §§ 92, 121; Breed v. Lynn, 
 126 Mass. 367, 370; Haskell v. New 
 Bedford, 108 Mass. 208, 216; Rowet). 
 Granite Bridge, 21 Pick. 344, 347; 
 District Attorney v. Lynn R. Co., 16 
 Gray, 242, 245; Hemy v. Newbury- 
 
§§ 153, 154] EIPAEIAN EIGHTS. 305 
 
 In the latter case the proof that a nuisance exists must be clear, 1 
 and the court in granting the injunction will postpone its oper- 
 ation for a reasonable time in order that the city may take 
 measures to remove the nuisance without unnecessary injury 
 to the public health or interests. 2 
 
 § 153. Same — Same. — The right of unobstructed access is 
 also limited to the front of the land, and does not include the 
 right, if the riparian owner fills out his entire frontage, to have 
 the docks or water spaces on either side kept open in order that 
 he may have access to the sides of his wharf. 3 If the adjoin- 
 ing owners do not fill up in front of their lands, the general 
 public and the owner of the improved bank may alike use the 
 water for navigation, and thus have access to the sides of the 
 wharf. 4 But the adjoining proprietors, so far as they have the 
 right to wharf out, may at pleasure close up the water spaces 
 in front of their own lands, even at the sides of another's wharf 
 which is expressly authorized by the legislature. 5 
 
 § 154. Same — Same. — The existence of this right of access 
 does not preclude any lawful exercise by the public of the 
 right of navigation or of a similar right of access by adjoining 
 proprietors. If a wharf is extended not only in front of one's 
 •own land, but also in front of that of an adjoining«proprietor, 
 it is an encroachment upon the latter's rights which may be 
 redressed by injunction. 6 In Marshall v. Ulles water Steam 
 
 port, 149 Mass. 587; Pennsylvania v. Clark v. Peokham, 10 R. I. 35; 9 R. L 
 
 Wheeling Bridge Co., 13 How. 518; 455; Central Wharf v. India Wharf, 
 
 Spokes v. Banbury Board of Health, 123 Mass. 567; Jenks v. Miller, 43 N. 
 
 L. R. 1 Eq. 42; Goldsmid v., Tun- Y. S. 927. 
 
 bridge Wells Com'rs, L. R. 1 Ch. 349; * Ibid. 
 
 L. R. 1 Eq. 161; Att. Gen. v. Colney 5 Ibid.; Keyport S. Co. v. Farmers' 
 
 Hatch Lunatic .Asylum, L. R. 4 Ch. Transp. Co., 18 N. J. Eq. 13, 511. As 
 
 146, 164; Att. Gen. v. Leeds, L. R. 5 to maintaining use and occupation 
 
 Ch. 583. for the use of a dock or unimproved 
 
 l Ibid. shore, see Easby v. Patterson, 19 Am. 
 
 2 Ibid.; Att. Gen. v. Birmingham, 4 L. Reg. n. s. 145; Moore v. Jackson, 2 
 
 K & J. 528, 548; Att. Gen. v. Brad- Abb. N. C. 211; Stewart v. Fitch, 31 
 
 ford Canal, L. R. 2 Eq. 71, 84; Att. N. J. L. 17; Hall v. Jacobs, 7 Bush, 
 
 Gen. v. Gee, L. R. 10 Eq. 131, 135; 595. 
 
 Breed v. Lynn, 126 Mass. 367, 370; 6 Thornton v. Grant, 10 R. I. 477, 
 
 Boston Rolling Mills v. Cambridge, 487; Gray v. Bartlett, 20 Pick. 186; 
 
 117 Mass. 396; post, § 223. • Maine Wharf v. Custom House 
 
 3 Gray v. Bartlett, 20 Pick 186; Wharf, 85 Maine, 175; Frink v. Law- 
 20 
 
306 THE LAW OF WATERS. [Ch. Y~ 
 
 Navigation Co., 1 the owner of the soil of a navigable lake, 
 which was a public highway, permitted a pier to be erected on 
 his land, and afterwards maintained it, and it was held that he 
 had no cause of action against the owners of steamboats who- 
 landed and embarked passengers at the pier, it appearing that 
 this structure prevented the defendants from using their own 
 adjoining land as a landing. In Original Hartlepool Collieries- 
 Co. v. Gibb, 2 it was held that a navigable river, being a public 
 highway, open to the reasonable use of all subjects of the realm, 
 a riparian proprietor was entitled to moor to his wharf for a. 
 reasonable time vessels which overlapped the wharf of an ad- 
 joining proprietor, if the free and necessary access to the latter 
 wharf was not obstructed thereby. The right of each of several 
 adjoining proprietors is the right to approach the front of his- 
 land or wharf, and one proprietor has no cause of action against 
 his neighbor, if the latter's improvement of his own estate and 
 in front thereof prevents vessels from approaching the side of 
 the former's wharf. 3 "Where A. leased to B. land in front of 
 the city of Toronto, with the use of the water adjacent, and 
 the corporation cut off the access to the water by the construc- 
 tion of an esplanade, B. was held to be still bound to perform 
 his agreement and to pay rent. 4 
 
 § 155. Accretions. — This right of access is not lost by the-- 
 gradual formation of new soil upon the margin of the water 
 caused by the action of the tides or current. Estates border- 
 ing upon navigable waters often derive a great part of their 
 value from that circumstance; and the riparian owners, if de- 
 prived of the benefit of that situation by extraneous additions, 
 would suffer hardship and injustice, even when they obtained 
 the full proportion of the land measured by the surface. 5 Land 
 
 renoe, 20 Conn. 121; Van Der Brooks i L. R. 7 Q. B. 166; Eastern Counties 
 
 v. Currier, 2 Mich. N. P. 21. In de- Ry. Co. v. Dorling. 5 C. B. n. s. 821. 
 
 ciding cases of this character the 2 5 Ch. D. 713. See Dunham T. &r. 
 
 respective convenience or inconven- "W. Co. v. Dandelin, 143 111. 409; 41 
 
 ience of the parties should be reason- 111. App. 175; ante, § 96. 
 
 ably considered. Garrett v. Square- 3 Gray v. Bartlett, 20 Pick. 186;: 
 
 briggs, 2 Hazard & W. (Pr. Edw. Isl- United States v. Bain, 3 Hughes, 593- 
 
 and) 351. See Kingsland v. New York, See Davis v. Atkins, 9 Cush. 13. 
 
 45 Hun, 198; Payne v. English, 79 * Lyman v. Snarr, 9 C. P. (Can.) 104_ 
 
 Cal. 540; Hatch u Kaighns Point 5 Deerfiald v. Arms, 17 Pick. 41, 45 ; 
 
 Perry Co. (N. J.), 16 Atl. Rep. 433. Cambre v. Cohn, 8 N. S. (La.) 576. 
 
§ 155.] 
 
 SIPAEIAN EIGHTS. 
 
 307 
 
 formed by alluvion, or the gradual and imperceptible accretion 
 from the water, and land gained by reliction, or the gradual 
 and imperceptible recession of the water, belong to the owner 
 of the contiguous land to which the addition is made. 1 There 
 is no distinction in this respect between soil gained by accre- 
 tion and that uncovered by reliction. 2 The change is imper- 
 ceptible when it is not discernible in its progress, though the 
 
 !Rex v. Yarborough, 3 B. & C. 91; 
 5 Bing. 163; 2 Bligh (N. S.), 147; 1 
 Dow (N. S.), 178; Jefferis v. East 
 Omaha Land Co., 134 TJ. S. 178; 40 
 Fed. Rep. 386; Smith v. Johnson, 71 
 id. 647; New Orleans v. United 
 States, 10 Peters, 662; County of St. 
 Clair v. Lovington, 23 Wall. 46; Rutz 
 v. Seeger, 35 Fed. Rep. 188; Roberts 
 v. Brooks, 78 id. 411 ; Perry v. Pratt, 
 31 Conn. 442; Saunders v. New York 
 Cent. R. Co., 30 Abb. N. C. 88; 135 
 N. Y. 613; 144 N. Y. 75; Morgan v. 
 Scott, 26 Penn. St. 51; Gerrish v. 
 Clough, 48 N. H. 9; Morgan v. Liv- 
 ingston, 6 Martin, 216; Livingston v. 
 Heerman, 9 Martin, 656; Ingraham 
 v. Wilkinson, 4 Pick. 268, 273; Deer- 
 field v. Arms, 17 Pick. 41; Hopkins 
 Academy v. Dickenson, 9 Cush. 551 ; 
 Salem Impr. Co. v. McCourt, 26 Ore- 
 gon, 93; Coulthard v. Stevens, 84 
 Iowa, 241 ; 35 Am. State Rep. 304 and 
 note; Naylor v. Cox, 114 Mo. 232; 
 Crandallv. Allen, 118 Mo. 403; Sweat- 
 man v. Holbrook (Ky.), 38 S. W. Rep. 
 691; 39 id. 258; Griffin v. Kirk, 47 
 111. App. 258; Spigener v. Cooner, 8 
 Rich. (S. C.) 301; Chapman v. Hos- 
 kins, 2 Md. Ch. 485; Patterson v. Gel- 
 ston, 23 Md. 432; Goodsell v. Lawson, 
 
 42 Md. 348 ; Baltimore R. Co. v. Chase, 
 
 43 Md. 23; Ridgely v. Johnson, 1 
 Bland Ch. 316, note; Barrett v. New 
 Orleans, 13 La. Ann. 105; Barre v. 
 Same, 22 id. 613; Hagan v. Campbell, 
 8 Porter, 9; Goodard v. Winchell, 35 
 Cent. L. J. 365, 368, n.; see 48 id. 
 148; Schultes' Aquatic Rights, 116; 
 2 Am. Law Journ. 283, 393. The 
 right to alluvion depends upon con- 
 tiguity, and the accretions belong to 
 
 the land immediately adjoining the 
 water, however narrow it may be, or 
 whatever may be the size of the 
 parcel behind it. Saulet v. Shepard, 
 4 Wall. 502; Bates v. Illinois Central 
 R Co., 1 Black, 204, 208; Bristol v. 
 Carroll County, 95 111. 84; Beaufort 
 v. Duncan, 1 Jones (N. C), 234; Posey 
 v. James, 7 Lea (Tenn.), 98; ante, 
 § 148. By recession of such a river 
 as the Mississippi an island belong- 
 ing to one shore may change to the 
 other. McBaine v. Johnson (Mo.), 55 
 S. W. Rep. 1031. 
 
 2 Handly v. Anthony, 5 Wheat. 380; 
 Boorman v. Sunnuchs, 42 Wis. 233, 
 244; Sapp v. Frazier, 51 La. Ann. 
 1718. In Linthicum v. Coan, 64 Md. 
 439, 454, Bryan, J., said: " If the land 
 in question was formed by gradual 
 accessions extending from the shore 
 into the river, it would belong to the 
 riparian proprietor; and this would 
 be the case notwithstanding the fact 
 that, by the influence of floods and 
 freshets, large deposits of mud may 
 have been made in the bed of the 
 river. These deposits would, of 
 course, materially contribute to the 
 formation of land, and would hasten 
 the time when it would appear above 
 the surface of the water. But the 
 leading characteristic of alluvion is 
 the gradual extension of the land 
 from the shore into the water; and 
 when this is the case it is irrelevant 
 to consider the causes which, operat- 
 ing beneath the surface of the stream, 
 have brought about the result. On 
 the other hand, if land was formed in 
 the river, and extended inwards to- 
 wards the shore, it would be the 
 
308 
 
 THE LAW OF "WATERS. 
 
 [OH. V. 
 
 fact that there has been an increase may be perceptible year 
 by year or at shorter intervals. 1 Conversely land gradually 
 ■encroached upon by navigable waters ceases to belong to the 
 former owner. 2 The external bounds of estates situated upon 
 the shore of the sea or of navigable rivers may thus gradually 
 shift as the water recedes or encroaches, although the right 
 to the shore itself of course remains in the Crown or State. 3 
 "When a fresh river changes its course and its centre, even a 
 lot not originally riparian may become so by such change and 
 acquire the riparian right to accretions. 4 If estates separated 
 by a public stream, 5 or an island and the shore, 6 both receive 
 
 property of the plaintiff, with all its 
 accretions." See note to s. C. in 53 
 Am. Eep. 219, note. 
 
 !Ibid.; Att. Gen. v. Chambers, 4 
 De G. & J. 70; Gifford v. Yarborough, 
 5 Bligh, 163; Att. Gen. v. Reeve, 1 
 Times L. R. 675; Shey v. MoHeffey, 
 1 Nova Scotia, 350; Camden Land 
 Co. v. Lippincott, 45 N. J. L. 405; 
 Gill v. Lydick, 40 Neb. 508; Donovan 
 v. New Orleans, 35 La. Ann. 461; 
 State v. Buck, 46 id. 656; Halstead 
 v. Gay, 7 Hawaiian, 587; 49 L. T. 162; 
 21 Law Rep. 1; 22 id. 513; 7 Am. L. 
 Reg. 709; Hale, De Jure Maris, ch. 1, 
 4, 6; Just. Inst. lib. 2, tit. L § 20. In 
 Boorman v. Sunnuchs, 42 Wis. 233, 
 245, it was said that if a portion of the 
 bed of a pond is laid bare within a 
 day or week, although the human 
 eye is not sufficiently acute to detect 
 the process, yet the portion laid bare 
 would not pass to the owner of the 
 -adjoining land, and that, while no 
 precise rule of universal application 
 can be laid down on the subject, yet 
 the proofs should show more than 
 the inability of a person who is 
 watching the process to detect the 
 recession of the water. In Louisiana 
 the only right to accretions as prop 
 erty is that formed on rivers and 
 running streams, and not on large 
 bodies of water, like Lake Pontchar- 
 train. Ziller v. Yacht Club, 34 La. 
 Ann. 837; Milne v. Girodeau, 12 La. 
 • 324, 
 
 2 In re Hull & Selby R Co., 5 M. & 
 W. 327; Foster v. Wright, 4 C. P. D. 
 438; Bouvier v. Stricklett, 40 Neb. 
 792; Price v. Hallett, 138 Mo. 561; 
 Wilson v. Shively, 11 Oregon, 215. 
 There must be a change in the locus 
 to constitute accretion. Sewall & 
 Day Cordage Co. v. Boston Water 
 Power Co., 147 Mass. 61. 
 
 3Scratton v. Brown, 4 B. & C. 485; 
 Rex v. Yarborough, supra; Camden 
 Land Co. v. Lippincott, 45 N. J. L 
 405; Mulvy v. Norton, 100 N. Y. 424; 
 53 Am. Rep. 215, note; Betchel v. 
 Edge water, 45 Hun, 240; Jefferis v. 
 East Omaha Land Co., 134 U. S. 178; 
 St. Louis v. Lemp. 93 Mo. 477; Min- 
 ton v. Steele, 125 Mo. 181; MoCannon 
 v. Stagg, 2 Kans. App. 479; 1 Am. & 
 Eng. Ency. of Law, 136. 
 
 * Welles v. Bailey, 55 Conn. 292. See 
 Wilhelm v. Burleyson, 106 N. C. 381; 
 Wallace v. Driver, 61 Ark. 429; Esson 
 v. Mayberry, 1 Thorn. (Nova Scotia) 
 144; Standly v. Perry, 3 S. C. R. (Can- 
 ada) 356; 2 App. 195. 
 
 5 Buse v. Russell, 86 Mo. 209. 
 
 6 Bigelow v. Hoover, 85 Iowa, 161; 
 Griffin v. Johnson, 161 111. 377; Cooley 
 v. Golden, 117 Mo. 33; Cox v. Arnold, 
 129 Mo. 337; Hahn v. Dawson, 134 
 Mo. 581; Moore v. Farmer (Mo.), 56 S. 
 W. Rep. 493; Crandall v. Smith, id. 
 633; Victoria v. Schott, 9 Tex. Civ. 
 App. 332; post, § 166. See Bennett 
 v. National S. M. Co., 103 Iowa, 207. 
 
155.] 
 
 EIPAEIAN EIGHTS. 
 
 309 
 
 accretions until they come together, the line of contact will be 
 the boundary between them. And if the upland is held sub- 
 ject to incumbrances, or has the benefit of certain rights, the 
 same attaches also to the accretions. 1 The law upon this topic 
 is based upon the maxim Qui sentit onus debet sentire commo- 
 dum } since the owner takes the chance of gradual loss as well 
 as of gradual gain ; 2 and upon the impracticability of identi- 
 fying from day to day the small additions and subtractions 
 caused by the constant action of the water. 3 The rule is the 
 same when the old boundaries are not known, and when they 
 can be ascertained. 4 But when the line along the shore is 
 
 ' That which cannot be perceived in 
 its progress is taken to be as if it 
 never had existed at all.' " Accre- 
 tions assume the quality of the land 
 to which they attach themselves. If 
 the lord of a manor is entitled to such 
 land as part of his demesne, the ac- 
 cretions become his absolutely; if he 
 is only entitled subject to a copyhold 
 interest, then they will be his subject 
 to such interest; and if the land is 
 part of the waste of the manor, the 
 lord's right to the increase will be 
 subject to the rights of the tenants 
 for commonage, etc., in the waste. 
 Hall on the Seashore, 127; Hunt on 
 Boundaries, 24. 
 
 3 Foster v. Wright, 4 C. P. D. 438. 
 
 i In re Hull & Selby Ry. Co., 5 M. 
 & W. 327; Foster v. Wright, 4 C. P. 
 D. 438; Pes v. Yarborough, 3 B. & C. 
 106; ante, p. 102, n. 8; 2 Black. Com. 
 261; Hale, De Jure Maris, chs. 1, 6; 
 Britton, Bk. 2, ch. 2; Bracton, Bk. 2, 
 ch. 2, § 1; Fleta, Bk. 3, ch. 2, §§ 2, 6; 
 Callis on Sewers, 51. In Scotland, 
 see Stewart v. Greenock Harbor 
 Trustees, 4 Scot. Ses. Cas. (3d series), 
 283; Smart v. Dundee, 8 Bro. P. C. 
 199; Todd v. Dunlop, 2 Rob. Sc. App. 
 333. The doctrine of accretions does 
 not apply to changes in the river-bed 
 or a lowering of the water, as be- 
 tween the owner of the bed by virtue 
 of a several fishery and the riparian 
 proprietors, so long as the accretions 
 remain part of the bed. Hindson v. 
 
 1 Campbell v. Laclede Gas-Light 
 Co., 84 Mo. 352. 
 
 2 County of St. Clair v. Lovington, 
 23 Wall. 46, 63 ; New Orleans v. United 
 States, 10 Peters, 662, 717; Chapman 
 v. Hoskins, 2 Md. Ch. 485; Giraud v. 
 Hughes, 1 Gill & J. 249; Berry v. 
 Snyder, 3 Bush, 266, 277; Smith v. 
 Public Schools, 30 Mo. 290; Stevens 
 v. Paterson R. Co., 34 N. J. L 532, 
 540; Betchel v. Edge water, 45 Hun, 
 240; Municipality No. 2 v. Orleans 
 Cotton Press, 18 La. 213. Black- 
 stone and others refer to the maxim, 
 De minimis lex non curat, as being 
 the foundation of the rule. 2 Black. 
 Com. 262; Rex v. Yarborough, above 
 cited; Woolrych on Waters, 445. In 
 Att. Gen. v. Chambers, 4 De G. & J. 
 55, 68, Lord Chelmsford, L. C, said: 
 "I am not quite satisfied that the 
 principle de minimis non curat lex 
 is the correct explanation of the rule 
 on this subject; because, although 
 the additions may be small and in- 
 significant in their progress, yet, 
 after a lapse of time, by little and 
 little, a very large increase may have 
 taken place which it would not be 
 beneath the law to notice, and of 
 which the party who has the right to 
 it can clearly show that it formerly 
 belonged to him, he ought not to be 
 deprived. I am rather disposed to 
 adopt the reason assigned for the 
 rule by Baron Alderson, in the case 
 of The Hull & Selby Ry. Co., viz.: 
 
310 
 
 THE LAW OF WATERS. 
 
 [CH. V. 
 
 clearly and rigidly fixed by a deed or survey, it will not, it 
 seems, afterwards be changed because of accretions, 1 although, 
 as a general rule, the right to alluvion passes as a riparian right. 2 
 The doctrine as to alluvion is equally applicable to tide waters 
 and to non-tidal rivers and lakes; 3 to land upon strong and 
 rapid rivers like the Mississippi and Missouri, 4 with unnrm 
 banks, and to those waters which do and those which do not 
 overflow their banks; and where dykes and other defenses are 
 and where they are not necessary to keep the water within its 
 proper limits. It is not applicable where the soil of another is 
 laid bare by the gradual subsidence of a mill-pond caused by 
 the decay of the dam; 5 but in general it applies to artificial 
 ponds, 6 as well as to natural waters, and to changes made by 
 artificial as well as natural causes, if the artificial cause is not 
 itself unlawful, and the gradual acquisition of the new soil 
 results from the exercise of lawful rights of property and not 
 from operations tending or intended to produce the change. 7 
 
 Ashby, |1896] 2 Ch. 1; 1 Ch. 78; 44 
 W. R. 184. 
 
 1 See 6 Property Lawyer, 347; post, 
 § 199; Cook v. McClure, 58 N. Y. 437; 
 James v. Howell, 41 Ohio St. 696; 
 Martin v. Cooper, 87 Cal. 97; Rees 
 v. MoDaniel, 115 Mo. 145; Buras v. 
 O'Brien, 42 La. Ann. 527. 
 
 2 Warren v. Chambers, 25 Ark. 120; 
 Tappendorff v. Downing, 76 Cal. 169; 
 McDonald v. Whitehurst, 47 Fed. Rep. 
 757; Municipality No. 2 v. Orleans 
 Cotton Press, 18 La. 122. 
 
 3 Foster v. Wright, 4 C. P. D. 438; 
 Ford v. Lacy, 7 H. & N. 151; Hale, 
 De Jure Maris, ch. 1 ; Barnes v. Keo- 
 kuk, 94 U. S. 324; Banks v. Ogden, 
 2 Wall. 57; County of St. Clair v. 
 Lovington, 23 Wall. 46; Lovingtonn. 
 County of St. Clair, 64 111. 56; Re veil 
 v. People, 177 id. 468; Granger i>. 
 Swart, 1 Woolw. 88; Ridgway v. Lud- 
 low, 58 Ind. 248; Bissel v. Fletcher, 
 26 Neb. 200; Benson v. Morrow, 61 
 Mo. 345; Warren v. Chambers, 25 
 Ark. 120; Denny v. Cotton, 3 Tex. 
 Civ. App. 634: Olson v. Huntamer, 6 
 S. D. 364; Egan v. Fountain (Iowa), 
 78 N. W. Rep. 912; Murry v. Sermon, 
 
 1 Hawks (N. C), 56; Giraud v. Hughes, 
 
 1 Gill & J. 249; Lamb v. Ricketts, 11 
 Ohio, 311; Niehaus v. Shepherd, 26 
 Ohio St. 40; Poynter v. Chapman, 8 
 Utah, 442; post, § 158; Burke v. Niles, 
 
 2 Hannay (N. B.), 166. 
 
 4 Jeff eris v. East Omaha Land Co., 
 134 U. S. 178: 40 Fed. Rep. 386 (under 
 IT. S. Rev. Sts. § 2396); St. Louis v. 
 Rutz, 138 U. S. 226; 35 Fed. Rep. 188; 
 Nebraska v. Iowa, 143 U. S. 359; 145 
 U. S. 519; Perkins v. Adams, 132 Mo. 
 131; Benne v. Miller, 149 Mo. 228; 
 Quinlin v. Bratley (Iowa), 80 N. W. 
 Rep. 405; Priewe v. Wis. Land Co., 
 93 Wis. 534. 
 
 s Eddy v. St. Mars, 53 Vt. 462. 
 
 '6 Cook v. McClure, 58 N. Y. 437. 
 
 7 Att. Gen. v. Chambers, 4 De G. & 
 J. 55; 4 De G. M. & G. 206; Smart v. 
 Magistrates of Dundee, 8 Bro. P. C. 119 ; 
 Seebkristo v. East India Co., 10 Moo. 
 P. C. 149; Blackpool Pier v. Fylde 
 Union, 46 L. J. M. C. 189; Adams v. 
 Frothingham, 3 Mass. 352; Saunders 
 v. New York Cent. R. Co., 144 N. Y. 
 75; Halsey v. McCormick, 18 N. Y. 
 147; 13 N. Y. 296; Dana v. Jackson 
 St. Wharf Co., 31 Cal. 118; County of 
 
$ 155.] 
 
 KIPAEIAN BIGHTS. 
 
 311 
 
 The doctrine of accretion has no application to a temporary 
 denudation of a river bed, 1 to a moving island, or to a moving 
 mass of alluvial deposits which travels more than a mile within 
 a limited number of years, and from one State to another, the 
 progress not being imperceptible in a legal sense. 2 So, if an 
 embankment lawfully made on a man's own land causes a silt- 
 ing up of sandand mud, whereby soil is gradually gained from 
 the sea, the owner of the embankment would doubtless be en- 
 titled to this increase. 3 If it clearly appears that a wharf or 
 pier built out into navigable water is a purpresture, and that 
 its position causes sand and gravel to be gradually silted up 
 ^against the adjoining land, the owner is not entitled to such 
 increase.' 1 If a stream is diverted artificially, and not imper- 
 
 >St. Clair v. Lovingston, 23 Wall. 46, 
 62; Henry v. Vermont Central R Co., 
 30 Vt. 638; Tatum v. St. Louis, 125 
 Mo. 647; Whyte v. St. Louis (Mo.), 54 
 S. W. Rep. 478; Standly v. Perry, 3 
 Can. Sup. Ct. 356; 2 Can. App. 195; 
 -23 Ch. (Can.) 507. " If," says Hunt, 
 "manufacturing or mining opera- 
 tions upon lands bordering on the 
 sea or upon a public river cause a 
 gradual silting up of rubbish, slate, 
 or other matter, either upon the 
 lands where the manufactories or 
 mines are situated, or upon the neigh- 
 boring property, the materials thus 
 accumulated would appear to be sub- 
 ject to the ordinary rule relating to 
 alluvion, just as if they had been de- 
 posited by purely natural causes. 
 "Where, however, the effect of the 
 operations and works just alluded to 
 is to produce, not a slow and gradual, 
 but a great and sudden acquisition 
 •of additional land to any proprietor 
 along the shore, the rule relating to 
 relictions applies and the property 
 gained will go to the Crown." Hunt 
 on Boundaries (2d ed.), 23. 
 
 1 Bennett v. National Starch M. Co., 
 103 Iowa, 207. 
 
 2Carrick v. Lamar, 116 IT. S/423; 
 'St. Louis v. Rutz, 138 U. S. 226; Cran- - 
 dall v. Smith, 134 Mo. 633. 
 
 3 Att. Gen. v. Chambers, 4 De Gex 
 
 & J. 68, 70; Smart v. Dundee, 8 Bro. 
 Pari. Cas. 119; Smith v. Stair, 6 Bell 
 App. Cas. 487. In Todd v. Dunlap, 2 
 Rob. Scotch Appeals, 333, it was held 
 that the grantee of land adjacent to, 
 and described in the land as bounded 
 by, a public river, had no right of 
 property in a large tract of ground 
 afterwards gained from the channel 
 of the river by the operations of the 
 grantors, who were trustees for im- 
 proving the navigation of the river. 
 In Att. Gen. v. Chamberlaine, 4 K. & 
 J. 292, where the Crown sought to 
 recover land alleged to have been 
 reclaimed from the sea by encroach- 
 ment or purpresture. and the defend- 
 ant disputed the Crown's title to the 
 soil between the then high and low- 
 water marks, the vice-chancellor said 
 that he apprehended that if the de- 
 fendant had admitted the Crown's 
 title to the soil between these lines, 
 the onus would be upon the Crown 
 to show that the ancient high-water 
 mark extended further inland than 
 at present. 
 
 4 Dana v. Jackson St. Wharf Co., 31 
 Cal. 118. Unless there has been long- 
 continued and exclusive adverse pos- 
 session. Tracy v. Norwich R. Co., 39 
 Conn. 382. See Mahon v. McCully, 1 
 Nova Scotia, 323. 
 
312 THE LAW OF WATEKS. [Ch. V. 
 
 ceptibly, there is no change in the title to the ground which is. 
 laid bare. 1 But if the State excavates the soil of navigable 
 waters, for the purpose of deepening a channel, and deposits 
 the earth in front of premises which it has previously conveyed 
 by patent, the riparian owner is entitled to this accretion. 2 So, 
 a married woman is entitled to the accretions made by her hus- 
 band or by a stranger by filling in in front of her land. 3 Al- 
 luvion includes seaweed washed upon the shore as well as sand 
 or gravel. 4 
 
 § 156. Same. — A riparian proprietor has no claim to the pro- 
 tection of the courts as to accretions which have not yet formed 
 and may never be added to his property. 5 As between vendor 
 and vendee, the right to alluvion depends upon the condition 
 of the land at the time of the transfer of the legal title; it in- 
 cludes future additions, 6 but cannot be carried back by relation 
 to the date of a title-bond under which the conveyance was 
 made. 7 If land bounded by water is leased or mortgaged, the 
 lessee or mortgagee is entitled to the benefit of accretions form- 
 ing after the date of the instrument under which he claims.* 
 So, the right to accretions passes with the land to an assignee 
 in bankruptcy. 9 And the right of dower, if not released, at- 
 taches to accretions to lands of which the husband was seized 
 during coverture, whether they accrued while he owned the 
 land or after he parted with the title. 10 
 
 JHalsey v. McCormick, 18 N. Y. Cire v. Rightor, 11 La. 140; Cochran 
 
 147; 13 N. Y. 296. v. Fort, 19 Martin, 622. If reference 
 
 2 Ledyard v. Ten Eyck, 36 Barb. 102. is made to a plan, the right to allu- 
 
 3 Dickinson v. Codwise, 1 Sand. Ch. vion is determined by the date of the- 
 214. conveyance and not the date of the 
 
 i Ante, § 25; Emans v. Turnbul), 2 plan. Jones v. Johnston, 18 How. 150. 
 
 Johns. 313, 322; Phillips v. Rhodes, See Prior v. Comstock, 17 R. I. 1; 
 
 7 Met, 523; Chapman v. Kimball, 9 The Edmondson Island Case, 42 Fed. 
 
 Conn. 38; Mather v. Chapman, 40 Rep. 15. 
 
 Conn. 382. 8 Cobb v. Lavalle, 89 111. 331; Will- 
 
 s Taylor ti. Underhill, 40 Cal. 471; iams v. Baker, 41 Md. 523. See Rutz 
 
 Blatchford v. Chicago Dredging Co., v. Kehn, 143 111. 558; Cruiksbanks v. 
 
 22 111. App. 376. Wilmer, 93 Ky. 19; Rhoades v. Ray- 
 
 6 Minneapolis Trust Co. v. Eastman, mer, 6 Ohio C. Ct. 68. Upon the 
 47 Minn. 301. question whether flats go with mort- 
 
 7 Johnston v. Jones, 1 Black, 209; gaged upland upon foreclosure, see- 
 Jones v. Johnston, 18 How. 150. See 56 Alb. L. J. 7. 
 
 Barre v. New Orleans, 22 La. Ann. 9 Kinzie u Winston, 4 Bank. Reg. 21. 
 613; Mathis v. Assessors, 46 id. 1570; "Lombard v. Kinzie, 73 111. 446; 
 Roll v. Harrington, 6 Kan. App. 159; Gale v. Kinzie, 80 111. 132; Moore v. 
 
15Y.] 
 
 EIPAEIAN EIGHTS. 
 
 313 
 
 § 157. Same. — In general the owner of a city lot bounding 
 upon water is entitled to riparian rights, including accretions.' 
 But if a street is laid out, or land is dedicated to public use, 
 along the margin of the water, the grantee of a lot on the op- 
 posite side of the street takes only to the centre of the street 
 or dedicated land, and" the original proprietor is entitled to- 
 accretions by alluvion upon the soil adjoining the river. 2 And 
 if a levee or embankment is lawfully constructed by a city 
 along the margin of waters which are the property of the 
 State to high-water mark, it is the artificial' boundary of the 
 private lots adjoining, and "accretions added thereto belong to- 
 the city as riparian owner. 3 A highway which extends across- 
 the shore to navigable water continues to the water if the 
 shore is afterwards enlarged by accretions ; 4 and the riparian 
 
 Kinzie, 80 111. 132; Hagan v. Camp- 
 bell, 8 Porter, 9. 
 
 1 Jones v. Soulard, 24 How. 41 ; Illi- 
 nois Cent. E. Co. v. Illinois, 146 U. S. 
 387; Smith v. Public Schools, 30 Mo. 
 301; Le Beau v. Gavin, 37 Mo. 556; 
 Public Schools v. Risley, 40 Mo. 356; 
 10 Wall. 91; Smith v. St. Louis, 21 
 Mo. 36; Barre Water Co. v. Carnes, 
 65 Vt. 626; Head v. Chesbrough, 13 
 Ohio Cir. Ct. 354; Yeatman v. New- 
 Orleans, 13 La. Ann. 154; Sarpy v. 
 Same, 13 id. 349; Barrett v. Same, id. 
 105; Boehleru Des Moines (Iowa), 82 
 N. W. Rep. 914. 
 
 2 New Orleans v. United States, 10 
 Peters, 662; Jones v. Soulard, 24 
 How. 41; Boston v. Richardson, 24 
 How. 188; Banks v. Ogden, 2 Wall. 
 57; Saulet v. Shepard, 4 Wall. 502; 
 Schools v. Risley, 10 Wall. 91; 40 
 Mo. 356; Cook v. Burlington, 30 Iowa, 
 94; 36 Iowa, 357; Chicago, etc. R Co. 
 v. Kelley, 105 Iowa, 106 ; Lebaume v. 
 Pocthington, 21 Mo. 36; Ellinger v. 
 Mo. Pac. Ry. Co., 112 Mo. 525; St. 
 Louis v. Same, 114 Mo. 13; Naylor v. 
 Cox, id. 232; Hall v. Conn. Mut. Life 
 Ins. Co. (Minn.), 79 N. W. Rep. 497; 
 Haslett v. New Albany, etc. R. Co., 
 7 Ind. App. 603; Morgan v. Liv- 
 ingston, 6 Martin, 19, 251; Munici- 
 pality v. Orleans Cotton Press, 18 La. 
 
 122, 240; Kennedy v. Municipality 
 No. 2, 10 La. Ann. 54; Remy v. Mu- 
 nicipality No. 2, 11 id. 148; 12 id. 500; 
 Barrett v. New Orleans, 13 id. 105, 
 154, 349; Carrollton R. Co. v. Win- 
 throp, 5 id. 36; Chambre v. Kohn, & 
 Martin, 572; Cochran v. Fort, 19 Mar- 
 tin, 622; Cire v. Rightor, 11 La. 140;: 
 Winter v. City, 26 La. Ann. 310; 
 Brisbine v. St. Paul R. Co., 23 Minn.. 
 114; Wait v. May, 48 Minn. 453; Eu- 
 reka v. McKay, etc. Co., 123 Cal. 666. 
 See Watson v. Peters, 26 Mich. 508; 
 State v. Nudd, 23 N. H. 327; Talbot 
 v. Richmond R. Co., 31 Gratt. 685;. 
 Mattlage v. New York El. R. Co., 
 14 Misc. Dec. 291; 35 N. Y. S. 704; 157 
 N. Y. 708; Holmes v. Cleveland, etc.. 
 R. Co., 93 Fed. Rep. 100; Sanitary 
 District v. Adams, 179 I1L 406. 
 
 3 New Orleans v. United States, 10' 
 Peters, 662; Musser v. Hershey, 42 
 Iowa, 356; C, B. & Q. R. Co. v. Por- 
 ter, 72 Iowa, 426; Wayzata v. Great 
 Northern Ry. Co., 50 Minn. 438; Steers 
 v. Brooklyn, 101 N. Y. 51; Dela- 
 chaise's Succession v. Maginnis, 44 
 La. Ann. 1043. 
 
 4 Wood v. San Francisco, 4 Cal. 19; 
 Eldridge v. Cowell, 4 Cal. 80; Lock- 
 wood v. New York R. Co., 37 Conn. 
 387; Mark v. West Troy, 151 N. Y. 
 453; Godfreys. Alton, 12 III 29; Bal- 
 
514: 
 
 THE LAW OF WATERS. 
 
 [Oh. V. 
 
 owner cannot, by filling in, and thus extending his land, even 
 when his right to do so is unquestioned, obstruct the public 
 right of way to the water. 1 A city, being the owner of a 
 quay, or river bank, is entitled to alluvial formations added 
 thereto, like any riparian proprietor: 2 In New Orleans v. 
 United States, 3 it was held that the dedication, to the public 
 Tise of a city, of a quay along a river bank, carried with it the 
 gradual increase by alluvion formed by the river. 
 
 § 158. Same. — "When the denudation of the soil of the 
 water is sudden and perceptible, the title is not changed. In 
 the case of tide-waters the land thus gained belongs to the 
 •Crown at common law, 4 and in this country to the State. 5 
 
 liet v. Com., 17 Penn. St. 509; Stetson 
 v. Bangor, 60 Maine, 313; Kennedy 
 ■v. Jones, 11 Ala. 63; Magrawu Hail- 
 man, 23 Pitts. L. J. 113. 
 
 1 Hoboken Land Co. v. Hoboken, 
 1S6 N. J. L. 510; Jersey City v. Morris 
 Canal Co., 12 N. J. Eq. 548, 553; 
 Newark Lime Co. v. Newark, 15 id. 
 <>4; Morris Canal Co. v. Central E. 
 Co., 16 id. 419, 437; Associates v. Jer- 
 sey City, 4 Hal. Ch. 714; People v. 
 Lambier, 5 Denio, 9; Peck v. Provi- 
 dence Steam Engine Co., 8 R. I. 353; 
 Lockwood v. New York E. Co., 37 
 Conn. 387; Frankfort v. Lennig, 1 
 Am. L. Eeg. 357; Standlyu Perry, 3 
 Can. Sup. Ct. 356; 2 Can. App. 195; 
 23 Ch. (Can.) 507; Demopolisu Webb, 
 87 Ala. 659. See In re Yonkers, 117 
 N. Y 564; Columbus, etc. Ey. Co. v. 
 Seattle, 6 Wash. 332; Seattle & M. 
 Ey. Co. v. State, 7 Wash. 150; State 
 v. Forrest, 12 Wash. 483; Eeighard v. 
 Flinn, 45 Pitts. L. J. 159. 
 
 2 New Orleans v. United States, 10 
 Peters, 662; Jones v. Soulard, 24 
 How. 41; Eemy v. Municipality, 15 
 La. Ann. 657; Cochran v. Fort, 7 
 N. S. (La.-> 626; Packwood v. Walden, 
 id. 88; Parish v. Municipality No. 2, 
 8 La. Ann. 145. 
 
 3 10 Peters, 662, 712; Hart v. New 
 Orleans, 12 Fed. Eep. 292. See Euge 
 -v. Apalachicola Oyster Co., 25 Fla. 
 
 656; Leonard v. Baton Eouge, 39 La. 
 Ann. 275; State v. Buck, 46 id. 656. 
 The city of New Orleans may with- 
 draw from public use a portion of 
 the batture in front of the city, as 
 by leasing it for a market bazaar. 
 New Orleans v. Morris, 3 Woods, 115. 
 As to the batture, see Board of 
 Liquidation v. Louisville E. Co., 109 
 IT. S. 221; Sweeney v. Shakspeare, 42 
 La. Ann. 614; Leonard v. Baton 
 Eouge, 39 id. 275; ante, § 99. 
 
 4 Eex v. Yarborough, above cited; 
 Foster v. Wright, 4 C. P. D. 438; 
 Mussumat Imam Bandi v. Hugo- 
 vind Ghose, 4 Moo. Ind. App. 405: 
 Hale, De Jure Maris, chs. 1, 4, 6; Har- 
 grave's Law Tracts, 15; 2 Black. 
 Com. 261, 262; CaUis on Sewers, 47, 
 51, 482; Woolrych on Waters, 34; 
 Dyer, 326a; Roll Abr. 170; Vin. Abr. 
 tit. Prerogative, B.; Com. Dig, tit. 
 Prerogative, D. 62; Bacon's Abr. tit. 
 Prerogative, B.; Phear's Eights of* 
 Water, 43; Att. Gen. v. Turner, 2 Mod. 
 106; 1 Keb. 301; Whitaker v. Wise, 
 2 Keb. 750; Eoyal Fishery of the 
 Banne, Sir John Davies, 59; 2 Vent. 
 188; Com. v, Alger, 7 Cush. 53; Chap- 
 man v. Kimball, 9 Conn. 38, 41; 
 Champlain E. Co. v. Valentine, 19 
 Barb. 484, 493; Hagan v. Campbell, 
 8 Porter, 9. 
 
 5 Ibid.; Boorman v. Sunnuchs, 42 
 
§ 158.] EIPAEIAN EIGHTS. 315 
 
 This is true, also, of the navigable fresh-water rivers and lakes 
 of this country in those States where the soil of such waters 
 is held to be public property like the sea, 1 the title to such 
 soil being in the State and not in the United States. 2 If nav- 
 igable waters, owned by the Crown or State, suddenly en- 
 croach upon private lands adjoining, and there are marks by 
 which their limits can be determined, the title to the soil thus 
 •covered remains in the former owner, and upon the recession 
 of the water it is restored as his property. 3 Though the over- 
 flow continues for forty years, yet if the water recedes the 
 owner has his land again. 4 Slow changes in a boundary river 
 between nations, 5 or between States after their admission into 
 the Union, do not affect their dominion and jurisdiction. 6 Where 
 the side of an island was gradually washed away by tide-water, 
 and the soil was afterwards restored by the deposit of alluvion, 
 the new soil was held to belong to the owner of the fast land. 7 
 But if the sea gradually and imperceptibly encroach upon pri- 
 vate lands, or the bounds are lost, and the situation and ex- 
 tent of the lost land cannot be ascertained, or if a mere bar or 
 shoal is formed, 8 it belongs to the Crown at common law, and 
 in this country to the State. 9 
 
 Wis. 233; Salem Impr. Co. v. Mc- v. Lewis, 28 Wkly. Law Bui. 104; 
 
 Court, 2 Oregon, 93. Cooley v. Golden, 117 Mo. 33. 
 
 1 Ibid. ; Murry v. Sermon, 1 Hawks 4 2 Roll. Abr. 168 ; Schultes' Aquatic 
 <N. C), 56; Vogelsmeier v. Prender- Rights, 122; Callis on Sewers, 51, note, 
 gast, 137 Mo. 271. See Mussumat Imam Bandi v. Hur- 
 
 2 Ibid.; 6 Op. Att. Gen. 172; 7 id. govind Ghose, 4 Moo. Ind. App. 403. 
 314. But accretions added to im- 5 8 Op. Att. Gen. 175. 
 provements made by the United 6 Indiana v. Kentucky, 136 U. S. 
 States belong to it. 5 A. G. Op. 264. 479; State v. Young, 46 Vt. 565; post, 
 See Chicago v. Ward, 169 111. 392. § 159 (end). 
 
 3 Note 7, ante, p. 310 ; Carlisle v. 7 Morris v. Brooke (Del.), 25 Alb. L. 
 Graham, L. R. 4 Ex. 361; Ford v. Journ. 90; Case of Sheyenne. Island, 
 Lacy, 7 H. & N. 151; Hale, De Jure 18 A. G. Op. 230. 
 
 Maris, chs. 1, 6; Hargrave's Law 8 Ante, §77; St. Louis Ry. Co. v. 
 
 Tracts, 2, 15; Woolrych on Waters, Ramsey, 53 Ark. 314 
 
 22, 37; Foster v. Wright, 4 C. P. D. 9 Ibid.; Dyer, 326a; 2 Roll Abr. 
 
 438; Bouvier v. Stricklett, 40 Neb. 168: Phear's Rights of Waters, 43; 
 
 792; Coulthard v. Davis, 101 Iowa, Schultes' Aquatic Rights, 122; Wool- 
 
 625; Sweatman v. Holbrook (Ky.), rych on Waters, 23, 37 ; In re Hull & 
 
 38 S. W. Rep. 691; Murphy v. Norton, Selby Railway, 5 M. & W. 327; Zet- 
 
 61 How. Pr. 197; affirmed, sub nom., land v. Glover Incorp. of Perth, L. R. 
 
 Mulry v. Norton, 29 Hun, 660; 100 2 H. L. Sc. 70; Wedderburn v. Pat- 
 
 N. Y. 424; 53 Am. Rep. 206; Willey erson, 2 Sc. Sess. Cas. (3d series) 902; 
 
316 THE LAW OF WATEKS. [Ch. Y. 
 
 § 159. Same.— When a tidal river does not work a shifting 
 of the shore, but by the irruption of its waters forms an en- 
 tirely new channel in private lands, not only does the right to 
 the soil thus covered remain in the owner, but the right of 
 fishery is his and not in the public, though the public right of 
 navigation may extend to the new channel. 1 If an uunaviga- 
 ble stream, in which the title of the riparian owners extends 
 ad, filum aqucs, slowly and imperceptibly changes its course, 
 the boundary line is at the centre of the new channel. 2 But 
 if the change is violent and visible, and arises from a known 
 cause, such as a freshet, or a cut through which a new channel 
 is formed, the original thread of the stream continues to mark 
 the limits between the two estates. 3 Where a right of several 
 fishery had been exercised to the thread of a river flowing 
 through an estuary, and the river changed its course, it was 
 held, in an action of trespass for fishing to the .thread of the 
 new river, that the middle of the new stream and not of the 
 old was the local limit of the fishery. 4 But where a river 
 which was originally within the lands of one proprietor en- 
 croached by gradual and imperceptible degrees upon the land 
 of the defendant, an adjoining proprietor, so that a strip of 
 such land became part of the river bed, it was held that the 
 first proprietor had not lost his property in the bed of the 
 stream by the gradual change of its course, and could maintain 
 an action of trespass against the defendant for fishing at a 
 
 Foster v. Wright, 4 C. P. D. 438. See R. 4 Ex. 361; Hopkins Academy v. 
 
 Hale's Amendments of Lawes, ch. 4; Dickinson, 9 Cush. 544; Gerrish v. 
 
 Hargrave's Law Tracts, 277, 278. Clough, 48 N. H 9; Niehaus v. Shep- 
 
 1 Carlisle v. Graham, L. R. 4 Ex. erd, 26 Ohio St. 40; Collins v. State, 
 366; Miller v. Little, 2 L. R. Ir. 304; 3 Texas App. 323 ; Woodbury v. Short, 
 4 id. 302; Hale, De Jure Maris, ch. 6; 17 Vt. 387; Browne v. Kennedy, 5 H. 
 Hargrave's Law Tracts, 34; Eolle & J. 195; Goodsell v. Lawson, 42 Md. 
 Abr. 390. In this country it would 348; 2 Black. Com. 262. 
 
 extend to the new channel, naviga- 3 Ibid. ; Spigener v. Cooner, 8 Rich, 
 
 ble waters being those which are (S. C.) 301 ; Lynch v. Allen, 4 Dev. & 
 
 navigable in fact. Ante, ch 3; St. Bat. 62; Dwinelu. Barnard, 28 Maine, 
 
 Louis v. Rutz, 138 U. S. 226; 35 Fed. 469: Macdonald v. Morrill, 154 Mass. 
 
 Rep. 188. In England, it would still 270; Henning v. Bennett, 63 Hun, 592; 
 
 seem to depend upon user or the fact Heckman v. Swett, 99 Cal. 303; 107 
 
 that the river was tidal. Ibid. Cal. 276; Just. Inst. lib. 2, tit. 1, § 23; 
 
 2 Ford v. Lacey, 7 H. & N. 151; 7 Bracton, 221. 
 
 Jur. n. s. 684; Foster v. Wright, 4 4 Miller v. Little, 2 L. E. Ir. 304. 
 C. P. D. 438; Carlisle v. Graham, L. 
 
§ 160.] EIPAEIAN EIGHTS. 317 
 
 point in the bed which was the latter's property before the en- 
 croachment. 1 When a stream flowing through a person's land 
 is diverted into a new channel, either artificially or by a sud- 
 den flood, affecting the rights of other riparian proprietors 
 favorably, and the owner acquiesces in the new state of the 
 stream for so long a time that new rights accrue, or may be 
 presumed to have accrued, such acquiescence is binding, like a 
 public dedication, and the stream cannot be lawfully returned 
 to its former channel. 2 If a boundary river between States 
 suddenly forms a new and distinct channel, the dominion and 
 jurisdiction of the respective States are not affected. 3 
 
 § 160. Embanking. — The owners of lands exposed to the 
 inroads of the sea or of inland waters may erect walls and 
 embankments to prevent the wearing away of the land or to 
 protect it from overflow. 4 It is lawful to embank against 
 the sea, even when the effect may be to cause the water to 
 beat with increased violence against the adjoining land, thereby 
 rendering it necessary for the adjoining land-owner to enlarge 
 or strengthen his defenses. 5 But this rule-is not applicable in 
 the case of embankments by the side of a river, whether pub- 
 lic or private. 6 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 can- 
 not exclude the superabundant water to the injury of other 
 
 1 Foster v. Wright, 4 C. P. D. 438; v. Atlantic De Laine Co., 8 R. L 305; 
 Vaughn v. Foster (Ky), 47 S. W. Rep. infra, § 202. 
 
 333. 4 Ridge v. Midland Railway, 53 J. 
 
 2 Ford v. Whitlook, 27 Vt. 265; P. 55; Barnes v. Marshall, 68 Cal. 500; 
 Woodbury v. Short, 17 Vt. 387. In the Hawley v. Sheldon, 64 Vt. 491. 
 
 last case acquiescence for ten years 5 Rex v. Pagham, 8 B. & C. 355; 
 
 was held sufficient. Rex v. Trafford, 1 B. & Ad. 874; 8 
 
 3 Missouri v. Kentucky, 11 Wall. Bing. 204; Hesketh v. Bray, 21 Q. B. 
 
 395; Indiana v. Kentucky, 136 U. S. D. 444; Gerrish v. Clough, 48 N. H. 
 
 479; Nebraska v. Iowa, 143 U. S. 359; 9, 13; 97 Am. Dec. 565, note; Hall on 
 
 145 U. S. 519; Handly v. Anthony, 5 the Seashore (2d ed.), 167, 168. See 
 
 Wheat. 380; Holbrook v. Moore, 4 post. § 213. 
 
 Neb. 437; Vattel's Law of Nations, 6 Rex v. Trafford, supra; Menzies 
 
 lib. 1, ch. 22, §§ 268, 270; 8 Op. Att. v. Breadalbane, 3 Wils. & Shaw, 243; 
 
 Gen. 175; State v. Young. 46 Vt. 565; 3 Bligh, n. s. 414; Gerrish v. Clough, 
 
 Moss v. Gibbs, 10 Heisk. 283; Collins 48 N. H. 9, 13. 
 v. State, 3 Texas App. 323. See Kent 
 
318 THE LAW OF WATEBS. [Cn. V . 
 
 proprietors. 1 The owner of land, bounding upon an inland 
 stream, may repair and restore the banks, when broken, but 
 cannot make different ones; he has also a common-law right 
 to bridge the stream if the rights of the public or of riparian 
 owners above or below him are not thereby impaired. 2 So- 
 long as his operations tend only to confine the waters within 
 their original channel, he is not responsible for damage to 
 neighboring proprietors, 3 or to a highway ; 4 but if he excavates, 
 there, and the sea entering undermines the adjoining land, or 
 percolates into and impregnates a well, he is liable for the in- 
 jury so caused. 5 The construction and maintenance by a city 
 of a dyke upon the corporate domain, to prevent overflow of 
 a natural stream, raises no obligation to keep up the dyke to- 
 prevent damage to adjacent land-owners who purchased and 
 during fifteen years made improvements, relying upon the pro- 
 tection afforded thereby. 6 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 con- 
 tinuance of his dam. 7 Erections, intended to exclude the water, 
 
 JIbid.; Mason v. Shrewsbury Ry. Pierce v. Kinney, 59 Barb. 56; Slater 
 
 Co., L R. 6 Q. B. 578, 582; Burwell v. v. Fox, 5 Hun, 544; Mailhot v. PugM, 
 
 Hobson, 12 Gratt. 322. Astoextraor- 30 La. Ann. 1359; New Orleans v. 
 
 dinary floods, see Langstaff v. Mo- Henderson, 5 La. 423; Barnes v. Mar- 
 
 Rae, 28 Can. L. J. 252; post, § 298. shall, 68 Cal. 569; Ross v. Mackey, 3 
 
 2 See Burnley Co-op. Society v. N. ZeaL L. R. (S. Ct.) 66; Dodson v. 
 Pickles, 77 L. T. 803. Parker, Ollivier, B. & F. (N. Z.) 131. 
 
 3 Menzies v. Breadalbahe, 3 Wils. As to assessment of owners of inner 
 & Shaw, 235; 3 Bligh, N. s. 414; Rex dyke protected by outer dyke need- 
 le Com'rs of Sewers, 2 B. & C. 355; ing repairs, see Wickwire v. Gould, 
 Rex v. Pagham, 8 B. & C. 355; Rex v. 3 Russell & Ch. n. s. 469; s. c. Russell 
 Trafford, 1 R & Ad. 874; 8 Bing. 204; & Ch. Eq. N. s. 245. See, also, Brown 
 Farquharson v. Farquharson, 3 Bligh, v. Windsor Ry. Co., 2 Russell & G. 
 N. s. 421; Avery v. Empire Woolen N. s. 430. 
 
 Co., 82 N. Y. 582; Jones v. Soulard, « Shelby ville Turnpike Co. v. Green, 
 
 24 How. 41; Gulf, C. & S. F. Ry. Co. 99 Ind. 205. 
 
 v. Clark, 101 Fed. Rep. 678; Rix v. 5 Mearsu Dole, 135 Mass. 508. 
 
 Johnson, 5 N. H. 520; Gerrish v. « Collins v. Macon, 69 Ga. 542. See 
 
 Clough, 48 N. H. 9; Adams v. Bar- Hoard v. Des Moines, 62 Iowa, 326^ 
 
 ney, 25 Vt. 225; Tuthill o. Scott, 43 Sandgate Urban Council v. Kent 
 
 Vt. 525; Rood v. Johnson, 26 Vt. 64, County Council, 79 L. T. 425; Coulson 
 
 72; Harding v. Whitney, 40 Ind. 379; & Forbes on Waters, 74; Cushing v. 
 
 Blaine v. Brady, 64 Md. 373; Wil- Nantasket Beach R. Co., 143 Mass. 77. 
 
 helm v. Burleyson, 106 N. C. 381; "' Jones v. Turner, 46 Barb. 527. 
 Merritt v. Parker, Coxe (N. J.), 460; 
 
§ 160.] 
 
 EIPAEIAN EIGHTS. 
 
 81fr 
 
 are illegal, if they cause the diversion of a stream from its ac- 
 customed channel, and throw the water upon the land of an 
 opposite or adjoining proprietor ; 1 and while mere apprehension 
 of danger is not sufficient to support 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. 2 If a sea-wall or em- 
 bankment 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 authorized, as against the Crown or without its sanction, 
 to erect even defenses against the sea below high-water mark. 3 
 In this country, it is doubtless a principle of general applica- 
 tion, as has been expressly held in Wisconsin, that, as a right 
 
 1 Farquharsen's Case, cited 3 Wils. 
 & Shaw, 235; Morr. Diet. 12, 787; 
 Att. Gen. v. Lonsdale, L. R. 7 Eq. 387; 
 Bickett v. Morris, 1 H. L. So. 47, af- 
 firming Aberdeen v. Menzies, Morr. 
 Diot. 12, 787; Blantyre v. Doon, 10 
 Dunlop, 542; Hamilton v. Eddington, 
 Morr. Diot. 12, 826; Burnis v. Brown, 
 Hume's Diet. 504; Gellathy's Case, 1 
 Macph. 592; Menzies v. Breadalbane, 
 3 Wils. & Shaw, 235; Hartshorn v. 
 Chaddock, 135 N. Y. 116; New Al- 
 bany R. Co. v. Higman, 18 Ind. 77; 
 Railroad Co. v. Carr, 38 Ohio St. 448; 
 Crawford v. Rambo, 45 id. 279 ; Niles 
 Works v. Cincinnati, 2 Disney (Ohio), 
 400; Longstreet v. Harkrader, 17 Ohio 
 St. 23; Cincinnati R. Co. v. Ahr, 2 
 Sup. Ct. (Ohio) 515; Ten Eycku Dela- 
 ware Canal Co., 3 Harr. (N. J.) 200; 
 Tinsman v. Delaware R. Co., 2 Dutch. 
 148; O'Connell v. East Tennessee, etc. 
 Ry. Co., 87 Ga. 246; Vernum v. 
 Wheeler, 35 Hun, 53. Necessity will 
 not justify a defendant, in order to 
 save his own property, in cutting an 
 embankment and thereby destroying 
 the plaintiff's property; qucere, as to 
 saving life. Newcomb v. Tisdale, 62 
 CaL 575. 
 
 2 Bickett v. Morris, 1 H. L. Sc. 47; 
 
 Att. Gen. v. Lonsdale, L R. 7 Eq. 387; 
 Att. Gen. v. Terry, L. R. 9 Ch. 425 p 
 Orr Ewing v. Colquhoun, 2 App. Cas. 
 839; Brownlow v. Metropolitan Board 
 of Works, 13 C. B. n. s. 768; 16 id. 546; 
 Cracknell v. Thetford, L. R. 4 C. P. 
 629; Wishart v. Wyllie, 1 Macq. 389; 
 Brown v. Gugy, 2 Moo. P. C. 341;. 
 Norbury v. Kitchen, 15 L. T. N. s. 
 501 ; Norway Plains Co. v. Bradley, 
 52 N. H. 86; Bowers v. Miss. & R. R. 
 Boom Co. (Minn.), 81 N. W. Rep. 208. 
 If the bank of a stream is washed 
 away, and its bed widened by a flood, 
 a corporation which has the fran- 
 chise of a toll-bridge across the river, 
 and is required by its charter to keep 
 the bridge in repair, is bound to ex- 
 tend the bridge to the new ban 
 Com. v. Dearfield, 6 Allen, 449. In 
 an action to recover 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 ap- 
 pears affirmatively that the condi- 
 tions are the same. Hawks v. Charles- 
 town, 110 Mass. 110. 
 3 Coulson & Forbes on Waters, 33. 
 
320 
 
 THE LAW OF WATEES. 
 
 [Oh. Y. 
 
 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 adfilum aqua, or 
 not, may, as against the public, intrude into the shoal unnavi- 
 gable water near the banks so far as may be necessary for the 
 purpose of constructing works essential to the protection of his 
 land against the action of the water. 1 Such structures are pub- 
 lic nuisances if they interfere with the navigation. 2 
 
 § 161. Same. — The owner of the soil of navigable waters 
 is not liable to keep it free from obstructions or to compen- 
 sate the adjoining owners for damage done by overflow of 
 the water, even when toll is taken for navigating thereon. 3 
 But liability to cleanse a river may arise from prescription. 4 
 So, a littoral proprietor may be bound by contract 5 or by pre- 
 scription to maintain and repair a sea-wall; 6 but the mere 
 fact that he has always maintained an embankment in front 
 of his own land, and that adjoining proprietors have not, be- 
 
 1 Diedrich v. Northwestern Ry. 
 Co., 42 Wis. 248; Delaphine v. Chi- 
 cago Ry. Co., id. 214; Boorman v. 
 Sunnuchs, id. 233; Olson v. Merrill, 
 id. 203. 
 
 2Bickett v. Morris, 1 H. L. So. 47; 
 Att. Gen. v. Lonsdale, L. E. 7 Eq. 
 377; Att. Gen. v. Terry, L. R 9 Ch. 
 425; Orr Ewing v. Colquhoun, 2 A. 
 C. 839; Atlee v. Packet Co., 21 Wall. 
 889; 2 Dillon, 479; Diedrich v. North- 
 western Ry. Co., 42 Wis. 248. 
 
 3 Hodgson v. York, 28 L. T. N. s. 
 836; Cracknell v. Thetford, L. R. 4 
 C P. 629; Parrett Nav. v. Robins, 10 
 M. & W. 593; Bridge's Case, 10 Rep. 
 33; Coulson & Forbes on Waters, 84. 
 See § 216, post 
 
 4 Lynn v. Turner, Cowper, 86. Or 
 by statute. See State v. Tucker, 54 
 S. C. 251. 
 
 6 Savannah Ry. Co. v. Lawton, 75 
 Ga. 192; Waddell v. De Jet, 76 Miss. 
 104. 
 
 6 Reg. v. Leigh, 10 Ad. & El. 398; 
 Henley v. Lyme, 2 CI. & Fin. 331; 
 Rex v. Com'rs of Sewers, 8 T. R. 312; 
 Reg. v. Same, 14 Q. B. D. 561; Keigh- 
 
 ley'sCase, 10 Coke, 139; Rooke'sCase, 
 
 5 Coke, 99; Case of the Isle of Ely, 
 
 10 Coke, 140; Wingate v. Waite, 6 
 M. & W. 739; Reg. v. Wharton, 2 B. 
 
 6 S. 719; Rex v. Com'rs of Sewers, 1 
 B. & C. 477; Griffith's Case, Moore, 
 62; Nitro-Phosphate Co. v. London 
 Docks, 9 Ch. D. 503, 921; River Wear 
 Com'rs v. Adamson, 2 App. Cas. 750, 
 780; Reg. v. Baker, L. R. 2 Q. B. 621; 
 Rex v. Paul, 2 M & R. 307; Morland 
 v. Cooke, L. R. 6 Eq. 252; Collins v. 
 Middle Level Com'rs, L. R 4 C. P. 
 279; Fobbing Levels Com'rs v. Reg., 
 
 11 App. Cas. 449; London & N. W. 
 Ry. v. Fobbing Levels Com'rs, 75 L. 
 T. 629; Sandgate U. D. Council v. 
 Kent, 79 id. 425; West Norfolk F. M. 
 Co. v. Archdale, 16 Q. B. D. 754; 19 
 L. J. 566; Callis on Sewers, 107, 151; 
 Coulson & Forbes on Waters, 27-32; 
 Hunt on Boundaries (2d ed.), 37. As 
 to the duties of conservancy com- 
 missioners, see Bramlett v. Tees Con- 
 servancy Com'rs, 49 J. P. 214 See 
 Hesketh v. Bray, 21 Q. B. D. 444; 20 
 id. 589; 8 L. T. N. & 313. 
 
§ 162.] EIPAEIAN EIGHTS. 321 
 
 cause of its existence, found it necessary to erect walls against 
 their own frontages, is not sufficient evidence to establish this 
 liability ; 1 and even a trespasser who partially removes such 
 structure, and lets in the tide, may not be liable to him. 2 The 
 owner of land, upon which exists a natural barrier against the 
 sea, may also be restrained from destroying or removing it, 3 
 upon proceedings on behalf of the Crown or public, if not of 
 individuals liable to sustain peculiar injury. Eiparian pro- 
 prietors may maintain an action for breaking levees built by 
 them, 4 but are not required to pen in the water by artificial 
 barriers for the benefit of their neighbors. 5 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 im- 
 pede the flow of the water ; and, if the overflow of a neigh- 
 boring river increases the water of the canal to the injury of 
 his premises, adjoining, he may pen up the canal, and thus ex- 
 clude the water from his premises, and will not be liable to a 
 neighbor whose land he thus causes to be flowed ; 6 but this 
 does not apply so as to permit a railroad company, in order to 
 protect its embankment from water accumulated there after 
 an unprecedented rainfall, to cut Frenches through which the 
 water is discharged upon private lands. 7 
 
 § 162. Alluvion — How apportioned. — 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 
 
 i Hudson v. Tabor, 2 Q. B. D. 290; Cush. 53,86; Crowley v. Copley, 2 La. 
 
 Att. Gen. v. Tomline, 12 Ch. D. 214; Ann. 390; Wafaon v. Marshall, 16 id. 
 
 •Collins v. Macon, 69 Ga. 542. See 67 231; Leblano v. Pittman, 26 id. 433; 
 
 L. T. 314; 20 Ir. L. T. 430; 19 L. J. O'Connor v. Stewart, 19 id. 127. 
 
 566. It seems that a covenant to re- 4 Belcher v. Murphy, 81 Cal. 39. 
 
 pair a sea-wall runs with the land, 5 Ibid. See Rowland v. Carmichael, 
 
 and would therefore bind a purchaser 77 Ga. 350. 
 
 even without notice express or im- 6 Nield v. London Ey. Co., L. R 10 
 
 plied. Morland v. Cooke, L. R. 6 Eq. Ex. 4. See Delaware & H. Canal Co. 
 
 252. v. Goldstein, 125 Penn. St. 246; Jer- 
 
 2 Koch v. Delaware, etc. R Co., 53 emy v. Elwell, 5 Ohio Cir. Ct. 379. 
 
 N. J. L. 256. 7 Whalley v. Lancashire Ry. Co., 13 
 
 3 Ibid.; Att. Gen. v. Tomline, 12 Ch. Q. B. D. 131. See Harrison v. Great 
 
 D. 214; Crompton u Lea, L. R. 19 Eq. Northern Ry. Co., 3 H. & N. 231; 
 
 115; 67L.T. 93; Philadelphia v. Scott, Myers v. Nelson (Cal.), 44 Pac. Rep. 
 
 «1 Penn. St. 80, 88; Com. u Alger, 7 801. 
 21 
 
322 
 
 THE LAW OF WATERS. 
 
 [Ch. V. 
 
 low-water mark. 1 In all cases, when practicable, every pro- 
 prietor 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, 2 without regard to islands, 3 or to the side 
 lines of the upland, unless referred to as guides in particular 
 grants, 4 or established as boundaries by the agreement or con- 
 duct of the conterminous proprietors, 5 or the acts of public 
 authorities. 6 "In general," says Merrick, J., 7 "where there 
 are no circumstancs or peculiarities in the formation of the 
 shore or the course of the channel, the lines of division are to- 
 be made to the channel in the most direct course from the lat- 
 eral 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 us^te ad 
 filum aquce, the side lines are extended to the center 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 con- 
 
 JDeerfield v. Arms, 17 Pick. 41, 44; 
 Wonson v. "Wonson, 14 Allen, 85; 
 Thornton v. Grant, 10 R. L 477,. 489; 
 Hubbard v. Manwell, 60 Vt. 235. 
 
 2 Ibid. ; Gray v. Deluce, 5 Cush. 9, 
 12; Walker v. Boston & Maine Rail- 
 road, 3 Cush. 23; Porter v. Sullivan, 
 7 Gray, 443; Att. Gen. v. Boston, 12 
 Gray, 558; Valentine v. Piper, 22 
 Pick. 96; Wonson v. Wonson, 14 
 Allen, 71, 79; Stone v. Boston Steel 
 & Iron Co., id. 230; Knight v. Wilder, 
 2 Cush. 209; Kennebec Perry Co. v. 
 Bradstreet, 28 Maine, 374; Newell v. 
 Leathers, 50 La. Ann. 162; People 
 v. Woodruff, 51 N. Y. S. 515. 
 
 3 Roberts v. Richards. 84 Maine, 1. 
 
 4 Ibid. ; Rust v. Boston Mill Corp., 
 6 Pick. 169; Dawes v. Prentice, 16 
 Pick. 435, 442; Piper v. Richardson, 
 9 Met. 158; Curtis v. Francis, 9 Cush. 
 427, 438; 9 Gray, 522; Winnisimmet 
 Co. v. Wyman, 11 Allen, 432; Stone 
 v. Boston Steel & Iron Co., 14 Allen, 
 230, 234; Clark v. Campau, 19 Mich. 
 325; Emerson v. Taylor, 9 Maine, 42. 
 Of. Hamilton v. Gould, 24 Q. B. 
 (Can.) 58. 
 
 5 Ibid.; Adams v. Boston Wharf 
 Co., 10 Gray, 521; Att. Gen. v. Boston 
 Wharf Co., 12 Gray, 553, 560; Stone 
 v. Boston Steel & Iron Co., 14 Allen, 
 230, 234; Sparhawk v. Bullard, 1 
 Met. 95; Breed v. Breed, 117 Mass. 
 593, 596; 110 Mass. 532; Central 
 Wharf v. India Wharf, 123 Mass. 561, 
 567; Jones v. Boston Mill Co., 6 Pick. 
 148; Rider v. Thompson, 23 Maine, 
 243; Treat v. Chipman, 35 Maine, 34; 
 Thornton v. Foss, 26 Maine, 405. 
 
 6 Ibid.; Brimmer v. Long Wharf, 
 
 5 Pick. 135; Valentine v. Piper, 22 
 Pick. 95; Piper v. Richardson, 9 Met. 
 163; Wheeler v. Stone, 1 Cush. 319: 
 Com. v. Alger, 7 Cush. 53, 73; Drake 
 v. Curtis, 9 Cush. 447; 9 Gray, 523: 
 Gorton v. Rice (Mo.), 55 S. W. Rep. 
 241. 
 
 '.Att Gen. v. Boston Wharf Co., 
 12 Gray, 553, 558; Ashby v. Eastern 
 R. Co., 5 Met. 368; Walker v. Boston 
 
 6 Maine R. Co., 3 Cush. 1, 23; Morris 
 v. Beardsley, 54 Conn. 338. As to the 
 apportionment of costs of proceed- 
 i ngs for division of flats, see King, 
 Petitioner, 129 Mass. 413. 
 
§ 163.] EIPAEIAN EIGHTS. 323 
 
 veyance under which the proprietors hold, 1 or the circumstances 
 of the particular case. 2 
 
 § 163. Same — Same. — "When the general course of the 
 shore or river bank approximates to a straight line, alluvial 
 deposits as well as 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. 3. 
 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 his 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. 4 In such case, the general rule 
 is to measure the whole extent of high-water mark or of 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 each proprietor as many of these parts as he 
 owned feet or rods on the old line, to draw lines from the orig- 
 inal 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. 5 If, for example, the shore line, 
 
 i Knight v. Wilder, 2 Cush. 199; S. 681; 159 N. Y. 536; Delaware R. 
 
 Batchelder v. Keniston, 51 K. H. 496; Co. v. Hannon, 37 N. J. L. 276; Miller 
 
 Bay City Gaslight Co. v. Industrial v. Hepburn, 8 Bush, 326; Rice v. Rud- 
 
 Works,'28.Mioh. 182; Clark v. Cam- diman, 10 Mich. 125; Clark v. Cam- 
 
 pau, 19 Mich. 325; Miller v. Hepburn, pau, 19 Mich. 325; Bay City Gaslight 
 
 8 Bush, 326; Irwin v. Towne, 42 Cal. Co. v. Industrial Works, 28 Mich. 182; 
 
 326 ; People v. Schermerhorn, 19 Barb. Graves v. Fisher, 5 Maine, 69. See 
 
 540; Blodgett & D. L. Co. v. Peters, Crook v. Seaford, L. R. 6 Ch. 551; 
 
 87 Mich. 498. See Inhabitants of Ipsi L. R. 10 Eq. 678; Newton v. Eddy, 23 
 
 wich, Petitioners, 13 Pick. 431; Au Vt. 319; Delord v. New Orleans, 11 
 
 • Gres Boom Co. v. Whitney, 26 Mich. La. Ann. 699; Michon v. Gravier, id. 
 
 42. 596. 
 
 2 Kreiter v. Bigler, 101 Penn. St. 94; * Deerfield v. Arms, 17 Pick. 41, 45; 
 
 Wood v. Appal, 63 id. 210. Batchelder v. Keniston, 51 N. H. 496; 
 
 3 Note 1 above; Sparhawk v. Bui- Lowndes v. Wicks, 69 Conn. 15. 
 lard, 1 Met. 106; Knight v. Wilder, 2 s Deerfield v. Arms, 17 Pick. 41; 
 
 Cush. 209; Porter v. Sullivan, 7 Gray, Tappan v. Boston W. P. Co., 157 Mass. 
 
 443; Wonson v. Wonson, 14 Allen, 71, 24; Batchelder v. Keniston, 51 N H. 
 
 79; Batchelder v. Keniston, 51 N. H. 496; Jones v. Johnston, 18 How. 150; 
 
 496, 498 ; People v. Woodruff, 56 N. Y. Johnston v. Jones, 1 Black, 209 ; South 
 
324 
 
 THE LAW OF WATEKS. 
 
 [Ch. Y. 
 
 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 between the parties on the 
 old line to the points thus determined on the new line. 1 If, 
 instead of curving inward towards the land, the course of the 
 shore bends outward, the dividing lines diverge and each pro- 
 prietor has a correspondingly greater width towards the water 
 than towards the land. 3 
 
 § 164. Same — Same. — In Deerfield v. Arms, 3 Shaw, 0. J., 
 in apportioning 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 reduced 
 by an equitable and just estimate to the general available line 
 of the land upon the water. In Bust v. Boston Mill Corpora- 
 tion, 4 in Massachusetts, flats were to be divided lying within a 
 
 Shore Lumber Co. v. C. C. Thompspn 
 Lumber Co., 94 Fed. Rep. 738; Kehr 
 v. Snyder, 114111. 313; Northern Pine 
 Land Co. v. Bigelow, 84 Wis. 157; 
 People v. Woodruff, 51 N. Y. S. 515. 
 
 1 Batohelder v. Keniston, 51 N. H. 
 496, 498; Armstrong v. Wheeler, 53 
 Conn. 428. 
 
 2 Gray v. Deluoe, 5 Cush. 9, 12, 13; 
 Porter v. Sullivan, 7 Gray, 443; Em- 
 erson v. Taylor, 9 Maine, 46; Clark v. 
 Campau, 19 Mich. 325. 
 
 3 17 Pick. 41, 46. See Irwin v. 
 Towne, 42 CaL 326. 
 
 4 6 Pick. 158. This rule is approved 
 by other courts in Johnston v. Jones, 
 1 Black, 209; O'Donnell v. Kelsey, 10 
 N. Y. 412; 4 Sand. 202; Miller v. Hep- 
 burn, 8 Barb. 332; Nott v. Thayer, 2 
 Bosw. 10; Furman v. New York, 10 N. 
 Y. 567; 5 Sand. 16; Thornton v. Grant, 
 10 R. I. 477, 488; Aborn v. Smith, 13 
 R. I. 370; Batohelder v. Keniston, 51 
 N. H. 496, 499. See, also, Deerfield v. 
 Arms, 17 Pick. 45; Sparhawk v. Bul- 
 lard, 1 Met. 107; Ashby v. Eastern R. 
 Co., 5 Met. 369; Piper v. Richardson, 
 
 9 Met. 158; Wheeler v. Stone, 1 Cush. 
 315; Knight v. Wilder, 2 Cush. 209; 
 Hopkins Academy v. Dickinson, 9 
 Cush. 544; Att. Gen. v. Boston Wharf 
 Co., 12 Gray, 560; Berry v. Raddin, 11 
 Allen, 579; Boston v. Richardson, 13 
 Allen, 151; 105 Mass. 360; Nichols v. 
 Boston, 98 Mass. 41; Charlestown v. 
 Tufts, 111 Mass. 351; Tufts v. Charles- 
 town, 117 Mass. 402; Eastern Railroad 
 v. Allen, 135 Mass. 13. In Walker v. 
 Boston & Maine Railroad, 3 Cush. 1, 
 25, it was said that there is probably 
 no reason why, upon the 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 the 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 
 
§ 164:.] EIPAEIAN EIGHTS. 325 
 
 deep cove, out of which the tide ebbed at low water, and the 
 mouth of which was so narrow that it was impossible to make 
 the division among the several proprietors by parallel lines ; 
 and it was made by running converging divisional lines from 
 high-water mark to points upon a base line across the mouth 
 of the cove, the points being fixed by giving to each propri- 
 etor 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 across the mouth of the cove. If there are adjoining 
 coves, the side lines of which would conflict, if so drawu, the 
 line between them is projected at an equal angle to the base 
 line of each cove. 2 These rules may be varied by agreement 
 between the owners of the shore or by longt-continued acqui- 
 escence in other assumed boundary lines. 8 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. 4 If 
 
 drawn to low-water mark will be material. Stone v. Boston Steel & 
 identical; but if, by reason of trie Iron Co., 14 Allen, 230. See, also, 
 curvature of the shore, they diverge Com. v. Alger, 7 Cush. 53, 69, 79; 
 from or conflict with each other, the Adams v. Boston "Wharf Co., 10 Gray, 
 land enclosed or excluded by both 521, 530; Att. Gen. v. Boston Wharf 
 lines is to be equally divided between Co., 12 Gray, 557; Wonson v. Won- 
 the adjoining proprietors. Emerson son, 14> Allen, 71, 79, 83 ; Boston v. 
 v. Taylor, 9 Maine, 42; Kennebec Richardson, 105 Mass. 358; Stockham 
 Ferry Co. v. Bradstreet, 28 id. 374; v. Browning, 18 N. J. Eq. 390; Dela- 
 Treat v. Chipman, 35 id. 34; Call v. ware R. Co. v. Hannon, 37 N. J. L. 
 Lowell, 40 id. 31. This rule, being 276; Thornton v. Grant, 10 R. I. 477; 
 more difficult of application than Aborn v. Smith, 12 R. I. 370; Clark v. 
 that adopted in Massachusetts, has Campau, 19 Mich. 325; Millers. Hep- 
 been less favorably received in other burn, 8 Bush, 326; Lowndes v. Wicks, 
 states. See Thornton v. Grant, 10 R. I. 69 Conn. 15; Groner v. Foster, 94 Va. 
 477, 488, and authorities above cited; 650. 
 
 Gray v. Deluce, 5 Cush. 9, 13. 2 Wonson v. Wonson, 14 Allen, 71 
 
 1 5 Cush. 9. The fact that in this 3 Att. Gen. v. Boston Wharf Co., 12 
 
 case it does not appear whether the Gray, 553; Valentine v. Piper, 22 
 
 low- water line, which in this State is Pick. 85; P.iper v. Richardson, 9 Met. 
 
 the boundary of the lands adjoining 155; Sparhawk v. Bullard, 1 Met. 195. 
 
 tide waters, under the ordinance of 4 Adams v. Boston Wharf Co., 10 
 
 1647 {post, § 169), was in any part Gray, 521; Winnisimmet Co. v. Wy- 
 
 within the base line,is not necessarily man, 11 Allen, 432. If opposite ripa- 
 
3"26 THE LAW OF WATERS. [Ch. Y. 
 
 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 is 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. 1 
 
 § 165. Same — Same. — In Thornton v. Grant, 3 in Ehode 
 Island, the question was whether the defendants were so con- 
 structing 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 proper limit of the plaintiffs' water front, owing to the 
 conformation of the shore. Durfee, J., in delivering the opin- 
 ion of the court, referred to the foregoing rules, and said: 
 " In the case at bar a solid rock projecting out to the main 
 channel has preserved the shore of the plaintiffs from detrition 
 at that point, but has allowed quite a deep inward curve be- 
 yond 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 proportionate 
 to the length of their original shore, the division line will pass 
 diagonally across what would ordinarily be regarded as the 
 water front 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 equi- 
 table, and which, for our present purposes, in the circum- 
 stances of this case, leads to a pretty satisfactory result. The 
 rule is this: Draw a line along the main channel in the direc- 
 tion of the general course of the current in front of the two 
 
 rian owners agree upon a boundary 3 Cush. 1. See Magee v. St. John, 23 
 
 line as to land under water which N. Bruns. 275. 
 
 they are about to fill, and one of them 2 10 R. I. 477, 489. See Rush v. 
 
 fills to this line, the other is estopped Jackson, 24 Cal. 308; Arden v. Ker- 
 
 to deny that it is the true boundary, mit, Anth. N. P. 112; Jones v. Lee, 
 
 Laverty v. Moore, 32 Barb. 347. 77 Mich. 35; Bond v. Wool, 107 N. C. 
 
 1 Walker v. Boston & Maine R. Co., 139. 
 
§ 1C6.] BIPAEIAN EIGHTS. 327 
 
 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. 1 
 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, 2 in the same State, 
 it was held, in pursuance of the rule laid down in Gray v. De- 
 luce 3 and Thornton v. Grant, 4 that the boundaries of riparian 
 estates, the proprietors of which are entitled to reclaim a curv- 
 ing shore to a harbor line established by law, are to be deter- 
 mined by running a line from the terminus of the upland 
 boundary perpendicularly to the harbor line. In Davidsen v. 
 Boston & Maine Railroad, 5 in Massachusetts, it was held that 
 one who owns a tide mill, and is also the proprietor of flats in 
 front of his mill, which are uncovered by the tide, is not enti- 
 tled, as against adjoining proprietors or the public, to the free 
 flow of the tide over his flats for the use of his mill or for 
 navigation; and that damage caused to him by the obstruc- 
 tion of the flow of tide water, in consequence of the extension 
 of solid structures upon the adjoining flats, which do not 
 wholly cut off the access to his land, is damrium absque in- 
 juria. 
 
 §166. Islands. — When islands are formed by either the 
 sudden or gradual action of tide waters within the territory 
 
 l o Cush. 9: ante, § 164 76; Stockham v. Browning, 18 N. J. 
 
 212R.I.370;llR.L594;awfe,§138; Eq. 390. As to the jurisdiction of 
 
 Manchester v. Point Street Iron equity in such cases, see id. 11 R. I. 
 
 "Works, 13 R. I. 355; Brown v. God- 594; 1 Story, Eq. Jur. § 610; Willard 
 
 dard, id. 76. It has been held, that v. Magoon, 30 Mich. 382; Perry v. 
 
 where adjoining proprietors have, Pratt, 31 Conn. 433. 
 
 by conduct and by deeds of grant 3 5 Cush. 9; ante, § 164. 
 
 and partition, for many years recog- 4 10 R. I. 477, above cited. In Bay 
 
 nized and acquiesced in a line as City Gaslight Co. v. Industrial Works, 
 
 separating their inchoate and im- 28 Mich. 182, it was held that a dock 
 
 perfect rights upon the shore, they line which was not parallel either 
 
 are bound by such acknowledgment with the thread of the stream or 
 
 and acquiescence; and that if the with the shore did not interfere with 
 
 front of the lots has not been filled the application of the rule extending 
 
 out, the line thus established will boundaries at right angles to the 
 
 extend to and terminate at a harbor thread of the stream, 
 
 line afterwards established by the 8 3 Cush. 91. 
 State. Brown v. Goddard, 13 R. L 
 
328 THE LAW OF WATERS. [Ch. V- 
 
 of the nation, they belong to the Crown at common law, and 
 ,in this country to the respective States. 1 The same is true of 
 the navigable fresh waters of this country belonging to the 
 State, 2 except that, when shoals, sandbars, or islands form 
 along the margin of the water, it is a question of fact for the 
 jury whether they are the property of the State or of the ri- 
 parian owners as accretions. 3 In general, if an island growing 
 out of the water has a fixed channel which separates it from 
 the adjacent land, the owner of such land cannot claim the 
 island as belonging to it by accretion. 4 In the case of unnavi- 
 gable fresh-water streams, and of navigable fresh rivers where 
 these are held to belong to the riparian proprietors subject to 
 the public right of navigation, the formation, if gradual and im- 
 perceptible, is the property of the riparian proprietors, whether 
 this alluvion is added to the shore or bank, or forms in the bed 
 of the river and becomes an island. 5 When an island is so- 
 formed in the bed of a private river as to divide the channel 
 and to lie partly on each side of the thread of the stream, if 
 the land on the opposite sides of the river belongs to different 
 proprietors, the island is divided between them in severalty to- 
 the extent of their lands in length according to the original 
 thread or medium line between the banks of the river, when 
 
 1 Aaite, % 6; Hale, De Jure Maris, mussel bed over which the water 
 
 ch. 4; Hargrave's Law Tracts, 37; flows at every tide is not an island, 
 
 Middletown v. Sage, 8 Conn. 221 ; but flats. King v. Young, 76 Maine, 
 
 Tracy v. Norwich E. Co., 39 Conn. 76. 
 
 382. In Missouri, unnamed and un- 2 Ibid.; ante, § 77, ch. 3; Stover v. 
 
 surveyed islands in the Mississippi Jack, 60 Penn. St. 339; Hartley v. 
 
 river were at first held to belong to Crawford, 81 id. (pt. 2) 478; Packer 
 
 the United States and not to the v. Bird, 71 Cal. 134; 137 U. S. 661; 32 
 
 State. Adams v. St. Louis, 32 Mo. Cent. L. J. 294, 297. If a body of 
 
 25; Benson v. Morrow, 61 Mo. 345. land is surrounded by water in its- 
 
 This seems, however, contrary to the flow in an ordinary stage, it is 
 
 current of authority. Pollard v. an island, although, at some periods- 
 
 Hagan, 3 How. 212; Martm v. Wad- of the year, and at extraordinary 
 
 dell, 16 Peters, 367; Barney v. Keo- tides, the water may not pass. Doe 
 
 kuk, 94 U. S. 324 As to the power v. Hill, 2 Allen (N. B.), 587; Stover v. 
 
 of the governors of Mexico to grant Jack, 60 Penn. St. 339. 
 
 islands near the coast, see United s Ante, § 77 ; Fulmore v. Jennings, 
 
 States v. Castillero, 23 How. 464; 78 CaL 634. 
 
 Same v. Osio, id. 273; 1 Hoffm. 100. *Ibid.; Dunty v. Williams, 2 Pugs- 
 
 In Texas, see State v. Delesdenier, 7 ley (N. B.), 350. 
 
 Texas, 76; Tabor v. Com'r, 29 id. 508; 5 Deerfleld v. Arms, 17 Pick. 41, 43. 
 Cowan v. Hardeman, 26 id. 217. A 
 
§ 166.] 
 
 EIPAEIAN EIGHTS. 
 
 329 
 
 the water is in its natural and ordinary stage, without regard 
 to the channel or deepest part of the stream. 1 If it is altogether 
 on one side of the dividing line, it belongs to the owner of the 
 bank on that side. 2 "When formed by a sudden change in the 
 course of the river, or by the violent action of the sea, as by 
 encircling a field, or cutting off a point of land or peninsula, or 
 draining a small lake, it remains the property of the former 
 owner. 3 If an island in a private river has been lawfully appro- 
 priated by another person, or reserved in a grant, the thread 
 of the stream midway between the island and the fast land is 
 the boundary of the adjoining owner's title. 4 A stream, in 
 
 1 Hale, De Jure Maris, ch. 6; Har- 
 grave's Law Tracts, 37; 2 Black. Com, 
 261; 3 Kent Com. 428; Ingraham v. 
 "Wilkinson, 4 Pick. 268; Bard-well v. 
 Ames, 22 Pick. 333; Hopkins Acad- 
 emy v. Dickinson, 9 Cush. 544, 552 
 Granger v. Avery, 64 Maine, 292; War 
 ren v. Westbrook M. Co., 88 id. 58, 69 
 Lodge v. Lee, 6 Cranch, 237; McCul- 
 loch v. Wall, 4 Rich. (S. C.) 68; Canal 
 Com'rs v. People, 5 Wend. 423, 443; 
 People v. Canal Appraisers, 13 id. 355; 
 Luce v. Carley, 24 id. 451 ; Walton v. 
 Tifft, 14 Barb. 216; Greenleaf v. Kil- 
 ton, 11 N. H. 530; Nichols v. Suncook 
 Manuf. Co., 34 id. 345, .349; Strange v. 
 Spalding (Ky.), 29 S. W. Rep. 137; 
 Ridgely v. Johnson, 1 Bland, Ch. 316, 
 n. ; Giraud v. Hughes, 1 Gill & J. 249. 
 
 2 Ibid. ; Grand Rapids & I. R. Co. 
 v. Butler, 159 U. S. 87; Ingraham v. 
 Wilkinson, 4 Pick. 268; Claremont 
 v, Carlton, 2 N. H. 369; Kimball v. 
 Schoff, 40 id. 190, 194; Cooper's Just, 
 lib. 2, t. 3; Schultes' Aquatic Rights, 
 119. Where an island divides a stream 
 so that only one-fourth of the water 
 passes on one side, the riparian owner 
 on that side is entitled to use all the 
 water flowing in that channel. 
 Crooker v. Bragg, 10 Wend. 260. 
 
 3 Hopkins Academy v. Dickinson, 
 9 Cush. 544; Noyesu Collins, 92 Iowa, 
 566; Belief ontaine Impr. Co. v. Nied- 
 ringhaus, 181 111. 426; Hale, De Jure 
 Maris, ch. 6; Fleta, lib. 3, ch. 2, §§ 6, 8; 
 
 Woolrych on Waters, 28, 36; 1 Swift's 
 Dig. Ill, 112; Schultes' Aquatic 
 Rights, 119, 120. 
 
 ^McCulloch v. Wall, 4 Rich. (S. C.) 
 68; Stolp v. Hoyt, 44 111. 219; Mis- 
 souri v. Kentucky, 11 Wall. 395; 
 Claremont v. Carlton, 2 N. H. 369, 
 373; Stanford v. Mangin, 30 Ga. 355; 
 Penobscot Tribe v. Veazie, 58 Maine, 
 402; Watson v. Peters, 26 Mich. 508; 
 Walker v. Board of Public Works, 16 
 Ohio, 544; Branham v. Blencoe Creek 
 Turnpike Co.,lLea (Tenn.),704; Fleta, 
 lib. 3, ch. 2, §§ 6, 8. As to what 
 boundaries in particular grants in- 
 clude islands, see Ibid.; Lunt v. Hol- 
 land, 14 Mass. 151 ; Miller v. Mann, 55 
 Vt. 475; People v. Canal Appraisers, 
 13 Wend. 355; Walton v. Tifft. 14 
 Barb. 216; Clarke v. Wagner, 76 N. C. 
 463; Claremont v. Carlton, 2 N. H. 
 369; Kimball v. Schoff, 40 N. H. 190; 
 Hartley v. Crawford, 81 Penn. St. 
 (Pt. 2) 478; Johns v. Davidson, 16 
 Penn. St. 512. As between States, 
 see Handly v. Anthony, 5 Wheat. 
 374; Howard v. Ingersoll, 13 How. 
 381; Missouri v. Iowa, 7 How. 660; 
 Missouri v. Kentucky, 11 Wall. 395. 
 A grant which purported to convey 
 "an island co*mmonly called and 
 known by the name of the Green 
 Flats,'' was held to convey the Green 
 Flats, though usually submerged and 
 not strictly an island. Brink v, Richt- 
 myer, 14 Johns. 255. A grant of ri- 
 
S30 THE LAW OF WATERS. [Ch. Y. 
 
 passing islands, may thus have two or more threads, 1 and where 
 there are two channels, with an intervening island, the middle 
 of the larger is the boundary. 2 "If," says Schultes, 3 " between 
 an island which lies nearest and belongs to a neighboring es- 
 tate, and the contrary bank of a neighbor, which is on the other 
 side of the stream, another island shall arise, then the admeas- 
 urement 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 Eiver in Indiana, claimed by the owner of the adja- 
 cent 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 pos- 
 session 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 plaintiff'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 suffi- 
 cient to support a verdict in favor of the defendants. 4 
 
 § 167. Rights in water frontage — Wharflng out. — When 
 a wharf or building is extended into the water, two questions 
 arise in determining the legality of the structure: First, 
 whether it is a purpresture, which depends upon the owner- 
 ship of the soil which it covers; 5 second, whether it is a pub- 
 
 parian land "and lands adjoining it, main channel," as it deals with ter- 
 
 bsing two or three acres, more or ritorial and proprietary rights, and 
 
 less," does not convey a small island not with navigation, may mean the 
 
 in an adjoining stream separated wider channel, through which the 
 
 from such land by the main channel, largest amount of water passes, and 
 
 Miller v. Mann, 55 Vt. 475. A grant not the deeper or more navigable 
 
 of a " river " does not convey either channel. Reg. v. Carleton, 1 Ontario, 
 
 the river bed or islands formed there- 277. 
 
 from. Jackson v. Halstead, 5 Cowen, 4 Bonewits v. "Wygant, 75 Ind. 41; 
 
 216 ; ante, § 31. Reg. v. McCormick, 18 Q. B. (Can.) 181. 
 
 l Ante, § 155; post, % 202. As to islands omitted from the gen- 
 
 2 Cessill v. State, 40 Ark. 501. eral survey of the adjacent lands, see 
 
 3 Aquatic Rights, 119; Bract, lib. 2, Webber v. Pere Marquette Boom Co., 
 ch. 2 ; Fleta, lib. 3, ch. 2, §§ 6, 8 ; Digest, 62 Mich. 626. 
 
 41, t. 1, § 56. An act which defines 5 Ryan v. Brown, 18 Mich. 196; 
 the boundary between adjoining mu- ante, ch. 1. 
 nicipalities as the "middle of the 
 
§ 168.] EIPAEIAN EIGHTS. 331 
 
 lie nuisance, as interfering with the common rights of naviga- 
 tion and fishery. By the common law, as already stated, any 
 encroachment upon 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. 1 Ey 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 pre- 
 scription, which presupposes a grant, to extend wharves be- 
 yond the ordinary high- water mark of tide waters ; and there 
 is no authority in England for the position that a simple pur- 
 presture is indictable. 2 
 
 § 168. Same. — In this country this rule is subject to rea- 
 sonable limitations, and the common rights of the people in 
 these waters, both before and since the Revolution, may be 
 said generally to be confined to what is of public use ; 3 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. 4 There is no general juris- 
 
 iHale, De Jure Maris, chs. 3, 6; Providence S. Co., 12 E. I. 348; Att. 
 
 Hargrave's Law Tracts; Att. Gen. v. Gen. v. Delaware R. Co., 27 N. J. Eq. 
 
 Parmeter, 10 Price, 378; Att. Gen. 1, 631; Mills v. Evans, 100 Iowa, 712; 
 
 v. Richards, 2 Anst. 603; Att. Gen. Brooklyn v. MaMay, 42 N. Y. S. 1063 ; 
 
 v. Johnson, 2 Wils. Ch. 87; Waverly Madison v. Mayers, 97 Wis. 399; 40 
 
 \V. Front Impr. Co. v. White (W. L. R. A. 635, and note; Gough v. 
 
 Va.), 45 L. R. A. 227, note; Revell v. Cougle (Mich.), 42 id. 161, and note; 
 
 People, 177 111. 468; ante, § 21. Alden v. Pmney, 12 Fla. 348; People 
 
 2 Ibid. ; People v. Davidson, 30 Cal. v. St. Louis, 5 Gilman, 351. 
 
 379; Dana v. Jackson Street Wharf 4 Ibid. Under the civil law one 
 
 Co., 31 Cal. 118; Gough v. Bell, 22 might construct an enclosure by the 
 
 N. J. L. 441, 477. sea, lower than the high-water mark, 
 
 3 Case v. Toftus, 39 Fed. Rep. 730; or even than the low-water mark, and 
 Chisolm v. Caines, 67 id. 285; Will- possess the ground within the limits 
 iamsburg Boom Co. v. Smith, 84 Ky. of the enclosure, because he is able 
 372; Burrows v. Gallup, 32 Conn. 493, to exercise an exclusive control over 
 500; Duttonv. Strong, 1 Black, 23, 32; it; but if the water swept away his 
 Com. v. Charleston, 1 Pick. 180, 186; enclosure, his exclusive control was 
 Com. v. Alger, 7 Cush. 53; Clement lost, and with it all his rights of own- 
 v. Burns, 43 N. H. 618; Stevens v. ership. Hadley's Int. to Roman Law, 
 Paterson R. Co., 34 N. J. L. 532; 158; Goudsmit's Roman Law, 132, 
 Providence Steam Engine Co. v, note. 
 
332 THE LAW OF WATERS. [Ch. V- 
 
 dictlon vested in our courts analogous to that exercised by the 
 English Court of Exchequer in equity. The business depart- 
 ment of that court, being divided between equity and law, in- 
 cluded upon the equity side the investigation of purprestures 
 in connection with the charge and collection of the public 
 revenues, and the recovery and protection 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 
 ground, the Supreme Court of California decided, 2 that the 
 district courts of that State had not, by virtue of their equity 
 powers, jurisdiction to order the abatement of a naked pur- 
 presture, although the State may of its own motion bring eject- 
 ment. In New Tork it is held that purprestures, like public 
 nuisances, may be abated by the courts upon proceedings on 
 behalf of the people, 3 and that the court of chancery may 
 enjoin any such appropriation of public property to private, 
 uses as will.injuriously affect the public interest.* The ques- 
 tion whether a structure erected upon the shore of a harbor 
 or of any salt waters is a purpresture is thus of less practical 
 importance in this country than in England ; while the ques- 
 tion 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. 
 
 § 169. Same — Massachusetts — Maine. — In Massachusetts 
 the colony ordinance of 1641-7 5 provided that in all creeks, 
 
 1 3 Bl. Com. 44; 4 Inst. ch. 13; Att. 28 N. Y. 396; 38 Barb. 382; People v. 
 
 Geu. v. Richards, 2 Anst. 606; Att. New York Ferry Co., 68 N. Y. 71. 
 
 Gen. v. Parmeter, 10 Price, 378; *Ibii; Att. Gen. v. Cohoes Co., 6 
 
 Att. Gen. v. Burridge, 10 Price, 350; Paige, 133; Delaware Canal Co. v. 
 
 Att. Gen. v. Johnson, 2 Wils. Ch. 101. Lawrence, 2 Hun, 163; People r- 
 
 2 People v. Davidson, 30 Cal. 379, Third Avenue R. Co., 45 Barb. 63; 30 
 392; Courtwright v. B. R. Co., 30 Cal. How. Pr. 121; People v. St. Louis, 5 
 585. Gilman, 351. 
 
 3 People v. Vanderbilt, 26 N. Y. 287; 5 Also denominated the ordinance- 
 
§ 169.] KIPARIAN ^EIGHTS. 333 
 
 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 whereso- 
 ever 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 con- 
 veyed to the owners of the upland flats which were within 
 the bounds of towns already established, but not those pre- 
 viously granted to individuals or appropriated to public uses. 1 
 It did not in terms extend to other colonies than that of Mas- 
 sachusetts; but it was a settled rule of property throughout 
 the province of Massachusetts, after the union of the colony 
 ■of Massachusetts with Plymouth and Maine, and also, with 
 Nantucket and Martha's Vineyard. 2 It applies to the open 
 seashore as well as to the creeks and arms of the sea, 3 and to 
 islands as well as the main land. 4 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. 5 It is the law of Maine, 6 
 and, as a usage, it has been recognized as applicable in New 
 
 of 1641; 1647 is the correct date as to 4 Hill v. Lord, 48 Maine, 83; Babson 
 
 flats. Forest River Lead Co. v. Salem, v. Tainter, 79'Maine, 368. 
 
 165 Mass. 193, 201. 5 Lapish v. Bangor Bank, 8 Maine, 
 
 Boston v. Richardson, 105 Mass. 85; Att. Gen. v. Woods, 108 Mass. 436; 
 
 351 ; Tappan v. Burnham, 8 Allen, 65 ; Tappen v. Boston W. P. Co., 157 Mass. 
 
 Porter v. Sullivan, 7 Gray, 441; Com. 24; ante, § 44. 
 
 v. Alger, 7 Cush. 70; Berry v. Rad- 6 Knox v. Pickering, 7 Greenl. 106; 
 
 din, 11 Allen, 577; Litchfield v. Scit- Lapish v. Bangor Bank, 8 id. 85; Em- 
 
 uate, 136 Mass. 39. erson v. Taylor, 9 id. 42; Duncan v. 
 
 2 Storer v. Freeman, 6 Mass. 435; Sylvester, 24 Maine, 482; Gerrish v. 
 Codman v. Winslow, 10 Mass. 146; Union Wharf Co., 26 id. 384; Thorn- 
 Parker v. Smith, 17 Mass. 413; Barker ton v. Foss, id. 402; Low v. Knowl- 
 v. Bates, 13 Pick. 255; Sale v. Pratt, ton, 26 id. 128; Deering v. Long 
 19 Pick. 191; Mayhew v. Norton, 17 Wharf, 25 id. 5!, 64; Partridge v. 
 Pick. 357; Com. v. Alger, 7 Cush. 53, Luce, 36 id. 16; Moulton v. Libbey, 
 76; Weston v. Sampson, 8 Cush. 347, 37 id. 485; Clancey v. Houdlette, 39 
 354; Com. v. Roxbury, 9 Gray, 451, id. 451; Montgomery v. Reed, 69 id. 
 and note, 523; Shivelyu Bowlby, 152 510; Parker v. Cutler Mill Dam Co., 
 U. S. 1. '20 id. 353; Moore v. Griffin, 22 id. 350; 
 
 3 Saleu Pratt, 19 Pick. 191; Barker Barrows v. McDermott, 73 id. 441; 
 
 v. Bates, 13 Pick. 255; Com. v. Alger, King v. Young, 76 id. 76; Parsons v. 
 
 7 Cush. 53, 76; Brackett v. Persons Clark, id. 476; Storer v. Freeman, 6 
 
 Unknown, 53 Maine, 238; Lowe v. Mass. 435 ; Dunlap v. Stetson, 4 Mason, 
 
 Knowlton, 26 Maine, 128. 349, 366. 
 
334 
 
 THE LiW OF WATEES. 
 
 [Oh. V. 
 
 Hampshire.' It did not create a mere easement, privilege, or 
 license, but was a grant of the soil to low- water mark ; 2 and 
 the State cannot take the flats of a littoral proprietor above 
 that line, or diminish their value by causing them to be per- 
 manently flooded or laid bare, except in the exercise of the 
 right of eminent domain, and by making reasonable compen- 
 sation. 3 Its purpose was to aid commerce, and to give to lit- 
 toral proprietors convenient wharf privileges; 4 and it is there- 
 fore held in Massachusetts that the low-water mark referred 
 to in the ordinance is not the line 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 advan- 
 tage. 5 The State still owns the Eats beyond that line, and the 
 soil which is permanently submerged ; 6 and the public may 
 
 i Clements. Burns, 43 K. H. 609, 
 621. See Nudd v. Hobbs, 17 N. H. 
 527; ante, §84. 
 
 2 Austin v. Carter, 1 Mass. 231; 
 Storer v. Freeman, 6 Mass. 435; Cod- 
 man v. Winslow, 10 Mass. 146; Com. 
 v. Alger, 7 Cush. 53, 70-81; Fitchburg 
 Railroad v. Boston & Maine Railroad, 
 3 Cush. 58; Walker v. Boston & Maine 
 R. Co., 3 Cush. 121 ; Com. v. Boston 
 & Maine R. Co., 3 Cush. 43; Porter v. 
 Sullivan, 7 Gray, 443; Com. v. Rox- 
 bury, 9 Gray, 451, 499, and note, 
 p. 513; Boston v. Lecraw, 17 How. 432 
 Rust v. Boston Mill Corp., 6 Pick. 158 
 Drake v. Curtis, 1 Cush. 395, 412 
 Gray v. Deluce, 5 Cush. 9; Winslow 
 v. Patten, 34 Maine, 25; Pike v. Mun- 
 roe, 36 id. 309; Parker v. Cutler Mill 
 Dam Co., 20 id. 353; Low v. Knowl- 
 ton, 26 id. 128. A littoral proprietor, 
 authorized by statute to construct 
 wharves to the channel, may main- 
 tain trespass for an invasion of his 
 rights. Hamlin v. Pairpoint Manuf. 
 Co., 141 Mass. 51. See Hastings v. 
 Grimshaw, 153 Mass. 497. 
 
 3 Ibid. ; Boston and Roxbury Mill 
 Corporation v. Newman, 12 Pick. 467, 
 482; Boston Water Power Co. v. Bos- 
 ton & Worcester R Co., 23 Pick. 360; 
 Ashby v. Eastern R. Co., 5 Met. 368; 
 
 Haskell v. New Bedford, 108 Mass. 
 208; Drury v. Midland Railroad, 127 
 id. 571; Bent v. Emery, 173 id. 495. 
 See Walker v. Shepardson, 4 Wis. 486; 
 Brown v. United States, 81 Fed. Repi 
 55. 
 
 4 The ordinance was intended 
 rather to declare private rights than 
 to promote public rights. Walker v. 
 Boston & M. R. Co., 3 Cush, 1. 
 
 5 Sparhawk v. Bullard, i Met. 95, 
 108; Storer v. Freeman, 6 Mass. 435, 
 438; Com. v. Charlestown, 1 Pick. 
 180, 183; Com. v. Boston & Maine R 
 Co., 3 Cush. 1; Walker v. Boston & 
 Maine R. Co., 3 Cush. 24; Com. v. 
 Roxbury, 9 Gray, 451, 491, and note; 
 Att. Gen. v. Boston Wbarf Co., 12 
 Gray, 553, 558; Wonson v. Wonson, 
 14 Allen, 71, 82; Att. Gen. v. Wood, 
 108 Mass. 436, 440; Sewall & Day 
 Cordage Co. v. Boston Water Power 
 Co., 147 Mass. 61. In Maine the limit 
 under this ordinance is the ordinary 
 low-water mark, as at common law. 
 Gerrish v. Union Wharf, 26 Maine, 
 384. 
 
 6 Gray v. Bartlett, 20 Pick. 186; 
 Boston Mill Co. v. Newman, 12 Pick. 
 476; Sparhawk v. Bullard, 1 Met. 95; 
 Garey v. Ellis. 1 Cush. 406; Com. v. 
 Roxbury, 9 Gray, 451, 499. 
 
§ 169.] EIPAEIAN EIGHTS. 335- 
 
 use unenclosed flats within that line for navigation, 1 and may 
 there take fish, as well those which are embedded in the soil 
 as those which are moving in the water. 2 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 unreasonably cut off the access to the 
 neighboring houses or lands. 3 By reclaiming flats, or by fix- 
 ing stakes or weirs upon them, they may also exclude the pub- 
 lic from exercising the privileges of fishing and fowling, and 
 of digging for shell-fish in the space so occupied. 4 A littoral 
 owner takes the adjoining flats as land and not as an incor- 
 poreal right, 5 and his widow is entitled to dower in his flats 
 which are unimproved at his decease. 6 And an owner of flats 
 who fills them up, and thereby prevents the ebb and flow of 
 the tide, which is valuable for drainage to adjoining uplands 
 not accessible by navigation from the sea, is not liable there- 
 for in damages. 7 As land does not pass as appurtenant to land, 8 
 it is established under this ordinance : first, that a writ of entry 
 
 1 Boston Steamboat Co. v. Munson, Lakeman v. Burnham, 7 Gray, 437 ; 
 147 Mass. 34; Henshaw v. Hunting, 1 Packard v. Rider, 144 Mass. 440. 
 Gray, 203; Com. v. Charlestown, 1 3 Boston v. Richardson, 105 Mass. 
 Pick. 180; Drake v. Curtis, 1 Cush. 365; Kean v. Stetson, 5 Pick. 495; 
 395, 413; Boston v. Lecraw, 17 How. Com. v. Charlestown, 1 Pick. 180; 
 426; Richardson v. Boston, 19 How. Same v. Alger, 7 Cush. 53; Barker v. 
 263: 24 How. 188; State v. Wilton, Bates, 13 Pick. 255; Deering v. Long 
 42 Maine, 9; Montgomery v. Reed, 69 Wharf, 25 Maine, 51; Davidson v. 
 id. 510. In the last case, it was held Boston & Maine R. Co., 3 Cush. 91.. 
 that the public right of navigation 4 Locke v. Motley, 2 Gray, 265; Ips- 
 over unenclosed flats is not an in- wich Proprietors v. Herrick, 9 Gray, 
 cumbrance within the common cov- 529; Low v. Knowlton, 26 Maine, 128; 
 enant against incumbrances. See, Matthews v. Treat, 75 Maine, 594. 
 also, Ballard v. Child, 46 Maine, 152. 5 Storer v. Freeman, 6 Mass. 435; 
 A grant of flats by the State, al- Com. v. Alger, 7 Cush. 77. 
 
 though by warranty deed with a 6 Braokett v. Persons Unknown, 53 
 
 covenant against incumbrances, to a Maine, 238; Mathewson v. Phoenix 
 
 person who agrees to fill them within Iron Foundry, 20 Fed. Rep. 281. 
 
 a certain time, does not extinguish 7 Henry v. Newburyport, 149 Mass. 
 
 the public right of navigation until 582. 
 
 the flats are filled. Boston Steamboat 8 Doane v. Broad Street Ass'n, 6 
 
 Co. v. Munson, 117 Mass. 34. Mass. 332; Com. v. Alger, 7 Cush. 53, 
 
 2 Proctor v. Wells, 103 Mass. 216; 80; Valentine v. Piper, 22 Pick. 85;. 
 
 Piper v. Richardson, 9 Met. 155.- 
 
336 THE LAW 0E WATERS- [Ch. V. 
 
 lies for flats, though unenclosed, when the owner is disseized ; 1 
 second, that trespass quare clausum f regit lies for an injury to 
 the owner's possession of flats; 2 third, that the owner may con- 
 vey 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 conveyance. 3 If the grant is expressly 
 bounded by the high-water mark, the grantee is not entitled 
 to the benefit of the ordinance. 4 But proof of title to the up- 
 land is prima facie evidence of title to the flats, and the latter 
 are presumed to pass by a grant of the former if the convey- 
 ance does not disclose a contrary intent. 5 The public may pass 
 over such parts of the shore as are bare and unimproved, with- 
 out hindrance or liability for damages to the littoral proprie- 
 tors ; 6 and the public right of fishery in tide waters includes, as 
 above stated, the right to take fish upon the shore to high-water 
 mark. 7 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. 8 It is not set- 
 tled whether the ordinance was a recognition of a previously 
 existing usage. In Massachusetts, a grant upon the seashore 
 from the colonial government prior to the ordinance did not 
 extend beyond high-water mark without express words. 9 In 
 
 1 Com. v. Alger, 7 Cush. 53, 80. upland are to be divided. Partridge 
 
 2 Ibid. ; Austin v. Carter, 1 Mass. 231. v. Luce, 36 Maine, 16. 
 
 3 Lufkin v. Haskell, 3 Pick. 356; 4 Lapish v. Bangor Bank, 8 Greenl. 
 
 Mayhew v. Norton, 17 Pick. 413; 85. 
 
 Brake v. Curtis, 1 Cush. 395, 413; 5 Valentine v. Piper, 22 Pick. 85,94; 
 Porter v. Sullivan, 7 Gray, 447; Hast- Brake v. Curtis, 1 Cush. 395, 411; 2 
 ings v. Grimshaw, 153 Mass. 497; Lap- Bane Abr. 691, 699; 9 Gray, 524; 
 ish v. Bangor Bank, 8 Greenl. 85; Beer- Charlestown v. Tufts, 111 Mass. 348; 
 ing v. Long Wharf, 25 Maine, 64; Treat Moore v. Griffin, 22 Maine. 350 ; Nick- 
 v. Strickland, 23 id. 234; Pike v. Mun. erson v. Crawford, 16 id. 245; Wins- 
 roe, 36 id. 309; Erskine v. Moulton, 66 low v. Patten, 34 id. 25; Pike v. Mun- 
 id. 276; Stone v. Augusta, 46 id. 137; roe, 36 id. 309; Snow v. Mt. Besert, 
 Knox v. Pickering, 7 id. 106; Free- etc. Co., 84 id. 14. 
 man v. Leighton (Me.), 38 Atl. Rep. 6 State v. Wilson, 42 Maine, 9. 
 542; Gratz v. Land & E. Imp. Co., 82 'Moulton v. Libbey, 37 Maine, 472; 
 Fed. Eep. 381; 40 L. R, A. 393, and Weston v. Sampson, 8 Cush. 347. 
 note. Upon a petition for the parti- 8 Walker v. Boston & Maine E. Co., 
 tion of land, described as bounded 3 Cush. 1. 
 on the sea, the flats as well as the 9 Com. v. Eoxbury, 9 Gray, 451, and 
 
§§ 170, 171.] EIPAEIAN BIGHTS. 337 
 
 Maine it has been held that private conveyances of flats before 
 the ordinance are valid. 1 
 
 § 170. Same — Connecticut. — In Connecticut the privileges 
 of the littoral proprietors, with respect to the shore, depend 
 upon usage, 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. 2 They 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 
 any other purpose without their permission. 3 This right of 
 reclamation and wharfage, while unexercised, is a franchise 
 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, 4 although it may pass by 
 implication. 5 When the right has been exercised by reclaim- 
 ing the shore, the reclaimed portions in general become inte- 
 gral parts of the owner's adjoining land. 6 
 
 § 171. Same — New Jersey. — Similar privileges are accorded 
 to littoral proprietors by the established usages of ISTew Jersey. 
 In this State the legislature may grant any portion of the un- 
 enclosed soil of its navigable waters, including the shore, with- 
 
 note; Boston v. Richardson, 105 Mass. 58 id. 144; New Haven S. Co. v. Sar- 
 
 551. gent, 50 id. 199; Prior v. Swartz, 62 
 
 iHill v. Lord, 48 Maine, 83. id. 132; 36 Am. St. Rep. 333, 336, n.; 
 
 2 Mather v. Chapman, 40 Conn. 382; Lane v. Harbor Com'rs, 70 Conn. 685; 
 
 State v. Sargent, 45 Conn. 358; Nich- Ockerhausen v. Tyson, 71 Conn. 81; 
 
 ■oIbv. Lewis, 15 Conn. 137, 143; Peck New York, etc. R. Co. v. Long, 73 
 
 v. Lock wood, 5 Day, 22; East Haven Conn. — , 43 Atl. Rep. 559. 
 
 v. Hemingway, 7 Conn. 186; Chapman 3 Ibid.; State v. Sargent, 45 Conn. 
 
 v. Kimball, 9 id. 38, 41 ; Fink v. Law- 358, 373; Lowndes v. Wicks, 69 Conn, 
 
 rence, 20 id. 117; Groton v. Hurlburt, 15. 
 
 22 id. 178; Simons v. French, 25 id. * Simons Vm French, 25 Conn. 346, 
 
 346; Burroughs v. Gallup, 32 id. 493; 352; Lockwood v. New York R Co., 
 
 Church v. Meeker, 34 id. 421; Lock- 37 Conn. 387. 
 
 wood v. New York R. Co., 37 id. 387; 6 New Haven S. Co. tt Sargent, 50 
 
 Union Wharf Co. v. Starin, 45 id. 585 ; Conn. 199. 
 
 Seeley v. Brush, 35 id. 423; Ladies' « Lockwood v. New York R. Co., 37 
 
 ■Seamen's Friend Society v. Halstead, Conn. 387, 391. 
 
338 
 
 THE LAW OF WATERS. 
 
 [Oh. V. 
 
 out making compensation to the owners of the adjoining lands.* 
 The latter may reclaim the shore to low-water mark or wharf 
 out, when this can be done without interfering with the navi- 
 gation, 2 but this is a mere license which the legislature may 
 revoke at any time before it is executed. 3 The State owns the- 
 shore; 4 and the littoral proprietors, having no legal title to- 
 unimproved flats, cannot maintain ejectment therefor, 5 although 
 
 i Stevens v. Paterson R. Co., 34 N. J. J. Eq. 209 ; United New Jersey R. Co. 
 L. 532; 20 N. J. Eq. 126, 129; State v. v. Standard Oil Co., 33 id. 123; Grey- 
 Jersey City, 25 id. 525, 530; New v. Paterson, 45 AtL Rep. 995; post, 
 York R Co. v. Yard, 43 N. J. L. 121, § 456. See Rundle v. Delaware Canal 
 632; American Dock Co. v. Trustees, v Co., 14 How. 80. A privilege conferred 
 39 N. J. Eq. 409, 446; Hoboken v. by the legislature upon certain associ- 
 
 Penn. Ry. Co., 124 IT. S. 656; Easton 
 R. Co. v. Central R. Co., 52 N. J. L. 
 267; Boon v. Kent, 42 N. J. Eq. 131; 
 New Jersey Zinc Co. v. Morris Canal 
 Co., 44 id. 398; Point Breeze Ferry Co. 
 v. Bragaw, 47 N. J. Eq. 298; Jersey 
 City v. American D. & I. Co., 54 N. J. 
 L. 215; Stockton v. Am. Lucol Co. 
 (N. J. Eq.), 36 Atl. Rep. 572; Polhamus 
 v. State, 57 N. J. L. 348; Polhamus v. 
 Bateman, 60 id. 163; Stockton v. 
 Baltimore R. Co., 32 Fed.. Rep. 9; 
 Roberts v. Brooks, 71 id. 914; 78 id. 
 411 ; Hoboken v. Pennsylvania R. Co., 
 16 id. 816; 7 N. J. L. J. 298. As to 
 Federal jurisdiction over Sandy 
 Hook and Sandy Hook Bay, see 
 Middleton v. La Compagnie Generate 
 Transatlantique, 100 Fed. Rep. 866. 
 
 ates to build docks, wharves and piers 
 in the Hudson river, and when s» 
 built to appropriate them to their 
 own use, was held not to be assign- 
 able in Morris Canal Co. v. Central R- 
 Co., 1 C. E. Green, 419. Adjacency to- 
 tide waters, and the enhanced value 
 given to land by reason of its frontage- 
 thereon, are circumstances which 
 enter into its taxable valuation. New 
 York R. Co. v. Yard, 43 N. J. L. 632; 
 State v. Carragan, 37 id. 264; State v.. 
 Jersey City, 25 id. 530. So where the' 
 privilege of reclaiming submerged 
 lands is given by statute. New York 
 R. Co. v. Hughes, 46 N. J. L. 67; State 
 v. Yard, '43 id. 121. Nor are lands- 
 wholly below high-water mark sub- 
 ject to taxation. Winants v. Jersey 
 
 2 Arnold v. Mundy, 1 Halst. 1, 10, 13 ; ' City, 42 N. J. L. 380 ; Colket v. Right- 
 
 Bell v. Gough, 21 N. J. L. 156; 22 id. 
 141; 23 id. 624, 669; Stevens v. Pater- 
 son R. Co., 34 N. J.E. 532; Newark v. 
 Sayre (N. J), 45 Atl. Rep. 985; Sim- 
 mons v. Paterson (id.), id. 995. 
 
 3 Stevens v. Paterson R. Co., 34 N. 
 J. L. 532; State v. Brown, 27 id. 13, 
 648 ; Fitzgerald v. Faunce, 46 N. J. L. 
 536, 595, 599; State v. Jersey City, 1 
 Dutch. 525; Stewart v. Fitch, 31 id. 
 17 ; "Keyport Steamboat Co. v. Farm- 
 ers' Transp. Co., 18 N. J. Eq. 13, 511; 
 Pennsylvania R. Co. v. New York R. 
 Co., 23 id. 157; Townsend v. Brown, 
 24 N. J. L. 80; State v. Jersey City, 
 42 id. 349; Cooper v. Bloodgood, 33 N. 
 
 mire, 46 id.341. See Galveston County 
 v. Galveston Wharf Co., 72 Texas, 557. 
 But a separate assessment cannot be- 
 made on land below high-water mark 
 where such land and the adjacent; 
 upland belong to the same person- 
 State v. Jersey Gity, 25 N. J. L. 525 p 
 State v. Collector, 24 id. 108. 
 
 * Amos v. Norcross, 58 N. J. Eq. — ,- 
 43 Atl. Rep. 195. 
 
 5 Ibid. See Gerrish v. Union Wharf,- 
 26 Maine, 384; Coburn v. Ames, 52; 
 Cal. 3S5; Nichols v. Lewis, 15 Conn. 
 143: Aborn v. Smith, 11 R. L 594; 12' 
 R I. 370. 
 
§ 172.] EIPABIAN EIGHTS. 339 
 
 they may be protected in equity against an unauthorized en- 
 croachment upon them by a stranger, which interferes with 
 their access to the water. 1 "Wlten the shore is reclaimed, it be- 
 comes the property of the littoral proprietor, and cannot be 
 taken for public uses, or granted by the State to other persons, 
 without compensation. 2 If a structure erected by a littoral 
 proprietor upon the shores, of this State does not interfere with 
 the navigation, it is not abatable as a nuisance or purpresture. 3 
 It seems that the common understanding in this State carries 
 the right even below low-water mark, provided there is no ob- 
 struction to the navigation. 4 The rights of the littoral propri- 
 etor 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. 5 
 
 § 172. Same — Rhode Island. — 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. 6 "Whether it originated in this ordinance or 
 in usage, the right of the littoral proprietor to wharf or em- 
 bank against his land, without license from the State, pro- 
 vided he does not interfere with the navigation, appears to 
 have been long recognized, and is supported by recent decis- 
 ions in that State. 7 But a lessee of flats from a riparian owner 
 
 ilbid.; Stookham v. Browning, 18 v. Trustees, 39 N. J. Eq. 409; Hagan 
 
 N. J. Eq. 390; State v. Brown, 27 N. v. Gaskill, 42 id. 215. See, also, upon 
 
 J. L. 13, 648; Brown v. Morris Canal this point, the early Massachusetts 
 
 Co., id. 648; Hoboken Land Co. v. case of Com.'y.Crowninshield,2Dane, 
 
 Hoboken, 36 N. J. L. 540, 550; Coburn Abr. 691. 
 
 v. Ames, 52 Cal. 385; Aborn u Smith, estate v. Brown, 27 N. J. L. 13; 
 
 11 R I. 594; 12 E. I. 370; Thornton v. American Dock Co. v. Trustees, 39 
 
 Grant, 10 R.I. 477; O'Donnell v. Kel- N. J. Eq. 409; Yard v. Ocean Beach 
 
 sey, 10 N. Y 412, 415. Ass'n, 49 id. 306. See Hagan v. Gas- 
 
 2 Bell v. Gough, 21 N. J. L. 156; 22 kill, 42 id. 215. 
 
 N. J. L. 441; 23 id. 624, 678; State v. "See Angell on Tide Waters (2d 
 
 Jersey City, 25 id. 525 ; Keyport S. Co. ed.), 237. 
 
 v. Farmers' Transp. Co., 18 N. J. Eq. 7 Providence Steam Engine Co. v. 
 
 511, 513; O'Neall v. Annett, 3 Dutch. Providence S. Co., 12 R. L 348, 363; 
 
 290, 293. Thornton v. Grant, 10 R. I. 477; Clark 
 
 3 Att. Gen. v. Delaware R. Co., 27 v. Peckham, 10 R. L 35, 38; Brown v. 
 
 N. J. Eq. 1, 631. Goddard, 13 R. L 76; Folsom v. Free- 
 
 * Elmer, J., in Bell v. Gough, 3 Zab. born, id. 200, 204; State v. Burdick, 
 
 658. See Townsend v. Brown, 24 N. 15 R. I. 239; Murphy v. Bullock (R. 
 
 J. L. 80, 85; Associates v. Jersey City, I), 37 Atl. Rep. 348. 
 4 HaL Ch. 715; American Dock Co. 
 
34.0 THE LAW OF WATEE8. [Ch. V. 
 
 is not entitled to compensation from the State when it carries 
 a bridge over the flats. 1 
 
 § 173. Same — Pennsylvania. — In Pennsylvania, tidal rivers 
 and the larger fresh streams are alike public property. 2 In 
 Tinicum Fishing Co. v. Carter, 3 the right of the defendant in 
 error to throw out nets in the Delaware Eiver, 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 em- 
 powered 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, de- 
 rived by grant from the State, extends to low-water mark, 
 not absolutely indeed in tidal streams, but subject t» the pub- 
 lic right of passage when the tide is high. 4 He has no right 
 to make any erection between high and low-water mark with- 
 out 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 de- 
 prived 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 and necessary restric- 
 tion, the right of the Commonwealth to make any erections in 
 the river for the improvement of its use as a public highway, 
 or to promote in any way the business and prosperity of the 
 people, is undoubted and unlimited." 5 
 
 1 Gerhard v. Seekonk Eiver Bridge v. Trone, 28 Perm. St. 206; Com. 
 Com'rs, 15 R. I. 334. See Soranton v. v. Church, 1 Perm. St. 105; Chess v. 
 Wheeler, 113 Mich. 565, 57 Fed. Rep. Mantown, 3 Watts, 219; Cooper v. 
 803. Smith, 9 Serg. & R 26; Freytagu 
 
 2 Ante, § 65. Powell, 1 Whart. 536; Jones v. Jan- 
 
 3 64 Perm. St. 21, 30. See, also, ney, 8 W. & S. 436; Frankford v. 
 Hart v. Hill, 1 Whart. 124, 131, 137; Lennig, 7 Phila. 403; Philadelphia 
 Com. v. Shaw, 14 Serg. & R. 9, 13; R. Co.w Morris, id. 286; Re Cramp, 13 
 Shrunk v. Schuylkill Navigation Phila. 16; Hoboken v. Penn. R. Co., 
 Co., id. 81; Naglee v. Ingersoll, 7 16 Fed. Rep. 816; 124 TJ. S. 656. 
 Penn. St. 185; Zug v. Com., 70 id. * Citing Ball v. Slack, 2 Whart. 
 138; Philadelphia v. Scott, 81 id. 80; 508. In the city of Philadelphia this 
 Simpson v. Neill, 89 id. 183; Purcell right depends upon early statutes. 
 v. Stover, 110 id. 43; Com. v. Fisher, See Gumbes v. Philadelphia (Perm.), 
 1 Penn. 462; Klingensmith v. Ground, 43 AtL Rep. 88. 
 
 5 Watts, 458; Lehigh Valley R. Co. 6 Monongahela Nav. Co. v. Coons, 6 
 
§§ 174, 175.] EIPAEIAN EIGHTS. 341 
 
 § 174. Same — California.— In California the owner of land 
 bordering upon the seashore holds presumably only to ordi- 
 nary high-water mark, and the shore itself is presumed to re- 
 main the property of the State, 1 while the right to wharf out 
 appears to be conceded. 2 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, 3 and a patent which de- 
 scribes a corner as " beginning on the seashore," places such 
 corner at ordinary high- water mark. 4 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. 5 So lands within the flow of ordinary 
 tides, the cost of reclaiming which would greatly exceed their 
 value when reclaimed for any agricultural purpose, are not 
 acquirable under a statute authorizing the sale of reclaimable 
 lands. 6 
 
 § 175. Same — New York. — In New York the general right 
 to build, without authority from the legislature, wharves in 
 
 Watts & S. 101; Susquehanna Canal Ass'n v. Knight, 85 Cal. 448; Upham 
 Co. v. Wright, 9 Watts & S. 9; Com. v. Hosking, 62 Cal. 250; Fisher v. Po- 
 tt Young Men's Ch. Ass'n, 169 Penn. lice Court, 86 Cal. 158; Oakland v. 
 St. 24; MoKeesport Gas Co. v. Car- Oakland W. F. Co., 118 Cal. 160, 249. 
 negie Steel Co., 189 id. 509; Briggs v. As to Alaska, see Lewis v. Johnson, 
 Pfeil, 42 Pitts. L. J. 38. 76 Fed. Rep. 476; Carroll v. Price, 81 
 
 iLong Beach L. & W. Co. v. Rich- id. 137. 
 
 ardson, 70 Cal. 206; Freeman v. Belle- 3 Ibid. 
 
 garde, 108 Cal. 179; Coburn v. San * Jones v. Martin, 35 Fed. Rep. 348. 
 
 Mateo County, 75 Fed. Rep. 520. 5 People v. Morrill, 26 Cal. 336; 
 
 Under a patent for land upon an un- Taylor v. Underhill, 40 Cal. 471. In 
 
 navigable stream in which the tide San Francisco v. Ellis, 54 Cal. 72, a 
 
 ebbs and flows, the high-water mark State statute authorizing the board 
 
 is prima facie the boundary. Wright of supervisors of the city and county 
 
 v. Seymour, 69 Cal. 122. of San Francisco to sell at public auc- 
 
 2 Coburn v. Ames, 52 Cal. 385; Peo- tion certain tide lands, the property 
 
 pie v. Davidson, 30 Cal. 379; Dana of the State, except so much thereof 
 
 v. Jackson Street Wharf Co., 31 Cal. as might be required for a street and 
 
 118; People v. Broadway Wharf Co., sewer, and providing that the deed 
 
 id. 33; San Francisco v. Calderwood, of the mayor should vest the title in 
 
 id. 585; Rondell v. Fay, 3a Cal. 354; the purchasers, was held not to oper- 
 
 Gunter v. Geary, 1 Cal. 462; Guy v. ate as a grant to the city and county. 
 
 Hermance, 5 Cal. 73; Teschemacher "People v. Cowell, 60 Cal. 400. In 
 
 v. Thompson, 18 Cal. 11 ; United Land this State irrigation districts are pub- 
 
342 
 
 THE LAW OF WATERS. 
 
 [Oh. Y. 
 
 tide waters, upon the soil owned by the State, is more strictly- 
 limited, and is regulated by statute. 1 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 no right of 
 reclamation as against the State, 2 and is not entitled to com- 
 pensation when a railroad is constructed along the water front 
 of his premises. 3 But when the State conveys submerged land 
 to the adjoining littoral proprietor, it passes by his conveyance 
 ©f the upland without express words. 4 The courts of New York 
 have no jurisdiction to restrain the erection of structures ex- 
 tending from the New Jersey shore into the Hudson River or 
 the Bay of New York, even though they constitute a common 
 nuisance. 5 But the city and county of New York include the 
 
 lie corporations as well as reclama- 
 tion districts. Central Ir. District v. 
 De Lappe, 79 CaL 351. 
 
 i Breen v. Locke, 46 Hun^ 291; Hall 
 v. Whitehall W. P. Co., 103 N. T. 139; 
 Bedlow v. New York Dock Co., 44 
 Hun, 378; Ziegele v. Richelieu & O. 
 Nav. Co., 38 N. Y. S. 1022; New York 
 & L. I. Bridge Co. v. Smith, 35 id. 920. 
 As to grants under statutes, see ante, 
 § 82, note. 
 
 2 People v. Commissioners, 135 N. Y. 
 447; Coxe v. State, 144 id. 396; Oakes 
 v. De Lancey, 71 Hun, 49; 133 N. Y. 
 237; Mutual Life Ins. Co. v. Voorhis, 
 71 Hun, 117; Sage v. New York, 154 
 N. Y. 61 ; People v. Saxton, 44 N. Y. S. 
 211; People v. Jessup, 51 id. 228; Oble- 
 nis v. Creeth, 67 Fed. Rep. 303. 
 
 3 Gould v. Hudson River R. Co., 6 
 N. Y. 522; 12 Barb. 616; Lansing v. 
 Smith, 8 Cowen, 146; 4 Wend. 9; Peo- 
 ple v. Tibbetts, 19 N. Y. 523, 528; 
 Brooklyn Park Com'rs v. Armstrong, 
 45 id. 234, 245 ; Wetmore v. Brooklyn 
 Gaslight Co., 42 id. 384; People v. 
 New York Ferry Co., 68 id. 71, 78; 7 
 Hun, 105; People v. Vanderbilt, 26 
 N. Y. 287; Fort Plain Bridge Co. v. 
 Smith, 30 id. 44; People v. Canal Ap- 
 praisers, 33 id. 461, 467; De Lancey v. 
 Piepgras, 138 id. 26; 63 Hun, 169; Peo- 
 ple v. New York, 8 Abb. Pr. 7, 13; 
 Manhattan Gaslight Co. v. Barker, 36 
 
 How. Pr. 233; 7 Rob. 523; Hudson 
 River R. Co. v. Loeb, 7 Rob. 418; Wet- 
 more v. Atlantic White Lead Co., 37 
 Barb. 70, 96; Getty v. Hudson River 
 R. Co., 21 id. 617. See ante, § 151 ;• Van 
 Dolsen v. New York, 21 Blatch. 454. 
 In Delaware Canal Co. v. Lawrence, 
 2 Hun, 163; 56 N. Y. 612, the defend- 
 ant had title, under patents from the 
 State, to the soil under water on 
 which the wharf was erected, and 
 it was held that the only question 
 was whether the wharf interfered 
 with the navigation. See E. G. Blaks- 
 lee Manuf. Co. v. E. G. Blakslee's 
 Sons' Iron Works, 129 N. Y. 155; 13 
 N. Y. S. 493; Dodge v. Gallatin, 130 
 N. Y. 117. 
 
 4 Archibald v. New York Central 
 R. Co., 157 N. Y. 574; 37 N. Y. S. 336, 
 1143. 
 
 » People v. Central R Co., 42 N. Y. 
 283; 48 Barb. 478; State v. Babcock, 
 30 N. J. L. 29. See The Argo, 7 Ben. 
 304; The L. W. Eaton, 9 Ben. 289; 
 Be Devoe Manuf. Co., 108 U. S. 401; 
 14 Fed. Rep. 183 and note; Atlantic 
 Dredging Co. v. Bergen Neck Ry. Co., 
 44 Fed. Rep. 2'08; Euberweg v. La 
 Compagnie Generale, 35 id. 428; The 
 Norma, 32 id. 411; The Sarah E. 
 Kennedy, 25 id. 569. Undt : , $ie U. S. 
 Rev. Stats., § 541, declaring that the 
 Southern district of New York in- 
 
■% 175. J 
 
 EIPAEIAN EIGHTS. 
 
 343 
 
 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. 1 The wharves 
 and docks erected in Brooklyn, and extending beyond the 
 natural low-water mark, are within the jurisdiction of that 
 city; 2 but the vessels which lie beyond, though fastened to 
 such wharves or docks, are within the jurisdiction of New 
 York. 3 By acts of the legislature passed in 1848 and 1850, 
 the 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 as far as the permanent water 
 line established by statute in 1836. 4 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 line of low-water mark, as it existed 
 at the date of the charters. 5 It may construct piers and 
 
 eludes "the residue of said State, 
 with the waters thereof," the United 
 States reservation at West Point is 
 included, although not strictly a 
 part of the State. Beekman v. West 
 Shore E. Co., 35 Fed. Eep. 3. 
 
 lUdall v. Brooklyn, 19 Johns. 175; 
 Stryker v. New York, 19 Johns. 179; 
 In re Furman Street, 17 Wend. 649; 
 Orr v. Brooklyn, 36 N. Y. 661; At- 
 lantic Dock Co. v. Brooklyn, 3 Keyes, 
 444; 1 Abb. Dec. 24; Livingston v. 
 Ogden, 4 Johns. Ch. 48; Ex parte 
 Vanderbilt, id. 57; Lukeu Brooklyn, 
 43 Barb. 54; Mayor v. Hart, 16 Hun, 
 380; 95 N. Y. 443; Ferguson v. Boss, 
 126 N. Y. 459; Furman v. New York, 
 5 Sand. 16; People v. Colgate, 9 Hun, 
 70S; 67 N. Y. 512; Be Wells Avenue, 
 4 N. Y. S. 301. The city and county 
 -courts of New York have concurrent 
 •criminal jurisdiction with the Fed- 
 eral courts in the harbor of New 
 York. People v. Welch, 74 Hun, 474. 
 
 2 Ibid. 
 
 3 ttridrs 5 Devato v. Eight Hundred 
 Twenty-three Barrels of Plum bago, 20 
 Fed. Rep. 510; The Craigendoran, 31 
 id. 87. Since colonial times the Brook- 
 
 lyn landing place of Fulton Ferry has 
 been owned by New York City, and 
 is exempt from taxation. People v. 
 Brooklyn Assessors, 47 Hun, 383. 
 
 4 Wetmore v. Atlantic White Lead 
 Co., 37 Barb. 78; People v. Kelsey, 
 38 Barb. 269; 14 Abb. Pr. 372; Wet- 
 more v. Brooklyn Gaslight Co., 43 
 N. Y. 384. See Kingsland v. New 
 York, 45 Hun, 198; Williams v. New 
 York, 105 N. Y. 419; Timpson v. 
 New York, 39 N. Y. S. 248. 
 
 6 See cases in next note; also, 
 Towle v. Palmer, 1 Rob. 437; 1 Abb. 
 Pr. N. s. 81; Towle v. Smith, 2 Rob. 
 489; Towle v. Remsen, 70 N. Y. 303; 
 In re New York, 135 N. Y. 253; 63 
 Hun, 632; Jar vis v. Lynch, 157 N. Y. 
 445; Schermerhorn v. New York, 3 
 Edw. Ch. 119; Verplanck u.New York, 
 2 Edw. Ch. 220; New York v. Scott, 1 
 Caines, 543; Dickinson v. Codwise, 
 1 Sand. Ch. 214; Roosevelt v. Frost, 1 
 Edw. Ch. 579: Furman v. New York, 
 10 N. Y. 567; 5 Sand. 16; Nott v. 
 Thayer, 2 Bosw. 10; Hecker v. New 
 York Balance Dock Co., 24 Barb. 215, 
 217; Vanderbilt v. New York, 2 Sand. 
 258; Turner v. People's Ferry Co., 
 
344 
 
 THE LAW OF WATEKS. 
 
 [Oh. Y. 
 
 "wharves at the public expense, and take the profits when it 
 owns the adjoining lots. 1 It may lease the public wharves- 
 so erected. 2 Since the charter of 1730, at least, the city has- 
 the right to convey this land, even below low-water mark, 
 with the privilege of building wharves thereon, and receiving 
 wharfage therefrom, 3 subject to the power of- the city to im- 
 pose in the grant or by ordinance such conditions with respect 
 to streets and wharves as are consistent with the laws of the 
 State, 4 and subject, also, to the control of the State in the es- 
 
 21 Fed. Rep. 90; New York v. Law, 6 
 N. Y. S. 628; Green v. Heruz, 35 id. 
 843. The statute of 1875, chapter 
 249, is constitutional. People v. Bal- 
 timore R. Co., 117 N. Y. 150. 
 
 i Ibid.; Marshall v. Guion, 11 N. Y. 
 461 (overruling S. C. 4 Denio, 581, 
 and Marshall v. Vultee, 1 E D. 
 Smith, 294); Thompson v. New York, 
 11 N. Y. 115; 3 Sand. 487; Furman v. 
 New York, 10 N. Y. 567; Beach v. 
 New York, 45 How. Pr. 35? ; 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 1 708, the city of New York acquired 
 the 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 v. New York, 32 Barb. 102; 
 Darlington v. New York, 31 N. Y. 
 202. See Starin v. Staten Island R 
 Co., 112 N. Y. 206; People v. Assess- 
 ors, 111 N. Y. 505; Cunard S. Co. v. 
 Voorhies, 50 N. Y. Super. Ct. 253; 
 Barge No. 6, 27 Fed. Rep. 472. 
 
 2 Com'rs v. Clark, 33 N. Y. 251; 
 Swords v. Edgar, 59 N. Y. 28; Clancy 
 v. Byre, 56 N. Y. 129; Radway v. 
 Briggs, 37 N. Y. 256; Hartford Steam- 
 boat Co. v. New York, 78 N. Y. 1; 12 
 Hun, 550; New York v. Price, 5 Sand. 
 542; Taylor «. Atlantic Ins. Co., 37 
 N. Y. 275; 9 Bosw. 369; 2 Bosw. 106; 
 New York v. Hill, 13 How. Pr. 280; 
 Taylor v. Beebe, 3 Rob. 262; Farmers' 
 
 Loan Co. v. New York, 4 Bosw. 80; 
 New York v. Huntington, 114 N. Y. 
 631; Eastman v. New York, 152 N. Y. 
 468. As to the powers of the com- 
 missioners of pilots, of the depart- 
 ment of public docks and the har- 
 bormasters of New York, and for- 
 merly of the dock-master, see Com'rs. 
 v. Vanderbilt, 31 N. Y. 265; 2 Rob. 
 367; Com'rs v. Erie Ry. Co., 41 N. Y. 
 619; 5 Rob. 366; New Yorku Tucker, 
 1 Daly, 107; Adams v. Farmer, 1 E. 
 D. Smith, 588; New York v. Rice, 4= 
 id. 604; New York v. Ryan, 2 id. 368; 
 Hoeft v. Seaman, 46 How. Pr. 24; 6- 
 J. & Sp. 62; Moore v. Com'rs, 32 How. 
 Pr. 184; People v. Mallory, 2 Sup. Ct. 
 76; 4 id. 567; 46 How. Pr. 281; 2 Hun, 
 381; Com'rs v. Frost, 4 Daly, 353; 
 People v. Doming, 1 Hilt. 271; 13 
 How. Pr. 441; Langdon v. New York, 
 6 Abb. N. C. 314; 28 Hun, 158; 59 
 Hun, 434; 93 N. Y. 129; 133 N. Y. 
 628; Hecker v. New York Balance 
 Dock Co., 24 Barb. 215; 13 How. Pr. 
 549. 
 
 3 Van Zandt v. New York, 8 Bosw. 
 375; Com'rs v. Clark, 33 N. Y. 251; 
 New York v. Starin, 42 Hun, 549; 115 
 U. S. 248; 106 N. Y. 1; New York ti. 
 New Jersey S. Nav. Co., id. 28; New 
 York v. Hill, 13 How. Pr. 280; Cod- 
 dington v. White, 2 Duer, 390; Mur- 
 ray v. New York, 1 Bosw. 539; Stev- 
 ens v. Rhinelander, 5 Rob. 285; Borell 
 v. New York, 2 Sand. 560; Philadel- 
 phia Coal & Iron Co. v. Mayor, 21 
 Fed. Rep. 97. 
 
 4 Ross v. New York, 3 Wend. 333? 
 
§ 176.] 
 
 EIPABIAN EIGHTS. 
 
 345- 
 
 tablishment of harbor lines. 1 In People v. Yanclerbilt, it was 
 held that a pier or crib erected beyond the water line estab- 
 lished by law, under a permission from the authorities of the 
 city, is abatable as a purpresture, even though it produces no 
 injury to public rights. 2 - 
 
 § 176. Same — Maryland.— In Maryland, the right of ex- 
 tending improvements in the harbor of Baltimore was secured 
 to the owners of the lands adjacent by the colonial'act of 1745 
 and by a statute passed in 1784. 3 The act of 1745 did not pre- 
 clude the State from granting to a person other than the 
 riparian owner the unoccupied soil of a navigable stream over 
 which such proprietor might otherwise have been entitled, 
 under this act, to make improvements. 4 Without such author- 
 
 Duryea v. New York, 2 Hun, 293; 4 
 Sup. Ct. 512; Vandewater v. New 
 York, 2 Sand. 258; Bedlow v. New 
 York Floating Drydock Co., 112 N. Y. 
 263. As to the effect of the Greater 
 New York charter (Laws 1897, ch. 
 378), see People v. Woodruff, 56 N. Y. 
 S. 681; 159 N. Y. 536. 
 
 1 People v. Vanderbilt, 26 N. Y. 287; 
 28 N. Y. 396; 38 Barb. 282; 25 How. 
 Pr. 140; People v. New York Ferry 
 Co., 68 N. Y. 71; 7 Hun, 105; Hart v. 
 Albany, 3 Paige, 559; People v. Cun- 
 ningham, 1 Demo, 524; Wetmore v. 
 Brooklyn Gaslight Co., 42 N. Y. 384; 
 Walsh v. New York Dry Dock Co., 
 77 N. Y. 448; Duryee v. Mayor, 96 
 N. Y. 477; 62 N. Y. 592; People v. B. 
 & O. E. Co., 50 Hun, 192; People v. 
 Bostwick, 5 N. Y. S. 79; In re River- 
 side Park Extension, 58 N. Y. S. 963. 
 As to excavating docks within the 
 bulkhead line, see White v. Tebo, 60 
 N. Y. S. 231. 
 
 2 Ibid. Land under the waters of 
 the Hudson River, either within or 
 without the water-front, may be con- 
 demned for the uses of a railroad ter- 
 minus. 'In re New York Central R. 
 Co., 77 N. Y. 248; Saunders v. New 
 York Cent. R. Co., 30 Abb. N. C. 88; 
 144 N. Y. 75; 135 N. Y. 613; Bedlow 
 v. Stillwell, 158 N. Y. 292; 91 Hun, 
 
 384; People v. Mould, 55 N. Y. S. 453; 
 Lorton v. New York, 53 id. 333. As- 
 to the wharves on Blackwell's Island, 
 see Philadelphia R. Co. v. New York, 
 38 Fed. Rep. 159. 
 
 3 Lands under the Potomac river 
 confiscated in the Revolutionary 
 War and since reclaimed by the gen- 
 eral government cannot now be re- 
 covered in the courts. Morris v. 
 United States, 174 U. S. 196. 
 
 * Casey v. Inloes, 1 Gill, 430; Wil- 
 son v. Ingloes, 11 Gill & J. 351; 6 Gill, 
 121, 152; Baltimore R. Co. v. Chase, 
 43 Md. 23, 36. See, generally, Giraud 
 v. Hughes, 19 Gill & J. 24; Smith v. 
 Yates, 2 H. & McHen. 244; Dugan v. 
 Baltimore, 5 Gill & J. 357; Harrison 
 v. Sterrett, 4 H. & McHen. 540; Balti- 
 more v. White, 2 Gill, 444; Hammond 
 v. Ingloes. 4 Md. 138; Day v. Day, 22 
 Md. 530; Patterson v. Gelston,23 Md. 
 432; The Wharf Case, 3 Bland, 361; 
 Baltimore v. McKim, id. 453; Browne 
 v. Kennedy, 5 H. & J. 195; George's 
 Creek Coal Co. v. Detmold, 1 Md. 225; 
 Young v. Frost, id. 377; Spindler v. 
 Atkinson, 3 Md. 422; Hoye v. Swan, 
 5 Md. 248; Armstrong v. Risteau, 5 
 Md. 256, 276; Mitchell v. Mitchell, 6 
 Md. 234; Page v. Baltimore, 34 Md. 
 558; Williams v. Baker, 41 Md. 523; 
 Hazlehurst v. Baltimore, 37 Md. 199, 
 
-346 
 
 THE LAW OF WATEKS. 
 
 [CH. V. 
 
 ity a stranger could not improve in front of land belonging to 
 another without the latter's consent. 1 In 1862 the legislature 
 -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 issued for land covered 
 by navigable waters in front of the property of a riparian pro- 
 prietor, so as to interfere with its prospective enjoyment by 
 him, 2 and snch land cannot be acquired by prescription. 3 
 
 § 177. Same — Florida — Oregon. — 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 channel, leaving space for the requirements of 
 ■commerce. 4 In this State navigation is subordinate to com- 
 merce, and, upon a general allegation that a wharf is being 
 constructed in navigable waters, such wharf is presumed to be 
 not a nuisance or injurious to commerce. 6 Similar rights are 
 secured to the littoral proprietors by the statutes of Oregon, 
 
 ■214; Baltimore v. St. Agnes Hospital, 
 48 Md. 419; Howard v. Moale, 2 H. & 
 J. 249; Cockey v. Smith, 3 H & J. 20; 
 Delaware R. Co. v. Stump, 8 G. & J. 
 479; Peterkin v. Ingloes, 4 Md. 175; 
 Day v. Day, id. 262; Raab v. State, 7 
 Md. 483. As to the act of 1796, see 
 Horner v. Pleasants, 66 Md. 475. 
 
 1 Ibid. ; Baltimore v. St. Agnes 
 Hospital, 48 Md. 419. See 19 A. G. 
 Op. 149. 
 
 2 Chapman v. Hoskins, 2 Md. Ch. 
 485; Day v. Day, 23 Md. 530; Patter- 
 son v. Gelston, 23 Md. 432; Goodsell 
 v. Lawson, 42 Md. 348; Garitee v. 
 Baltimore, 53 Md. 422; ante, § 175. 
 See Hawkins Point Light House, 39 
 Fed. Rep. 77; Hill v. United States, 
 id. 172; Classen v. Chesapeake Guano 
 Co., 81 Md. 258; Jacob Towne Insti- 
 tute v. Crothers, 87 Md. 569; Same v. 
 Davis, id. 591. A land-office patent 
 •conveys no title to tide lands. Chap- 
 man v. Hoskins, 2 Md. Ch. 485. 
 
 3 Sollers v. Sollera, 77 Md. 148. 
 *Geiger v. Filor, 8 Fla. 325, 339; 
 
 Alden v. Pinney, 12 Fla. 348; Fry v. 
 
 Campbell's Creek Coal Co., 37 W. Va. 
 604; Richardson v. Louisville & N. 
 R. Co., 169 TJ. S. 128, affirming s. c. 
 nom. Richardson v. Sullivan, 38 Fla. 
 90. Where the title to submerged 
 land from low-water mark to the 
 Ghannel of a river was given to ri- 
 parian owners by statute, to benefit 
 commerce, a conveyance by such an 
 owner by metes and bounds, with- 
 out reference to the river as a bound- 
 ary, the owner retaining possession 
 of structures on the submerged land 
 and the grantee understanding that 
 he got no title thereto, passes no title 
 to such submerged land as an " ap- 
 purtenance. " Rivas v. Solary, 18 Fla. 
 122. The Florida act of 1856, author- 
 izing wharves on submerged lands, 
 does not apply in the case of a pub- 
 lic park. Ruge v. Apalachicola Oys- 
 ter Co., 25 Fla. 656. See State v. 
 Black River Phosphate Co., 32 Fla. 
 82; Dumas v. Garnett, id. 64. 
 
 6 Sullivan v. Moreno, 19 Fla. 200. 
 See Axline v. Shaw, 35 Fla. 305. 
 
§ 178.] 
 
 BIPAEIAST EIGHTS. 
 
 347 
 
 under which the right to build out a wharf is held to be sev- 
 erable from the ownership of the adjoining land. 1 "Where the 
 grantor of land bounded by tide water reserved all privileges 
 around the land, he was held to retain the right of wharfing. 2 
 
 § 178. Same — Yirginia. — In Virginia it was early provided 
 by statute 3 that the limits or bounds of lands lying on the At- 
 lantic 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. 4 By a later statute, any person owning land upon a 
 
 1 Parker v. Taylor. 7 Oregon, 435, 
 44G; Olney v. Moore, 13 id. 238; John- 
 son v. Knott, id. 308; Wilson v. 
 Welch, 12 id. 353; Parker v. West 
 Coast P. Co., 17 id. 510; Lewis v. 
 Portland, 25 id. 133; Shively v. Pen- 
 noyer, 27 id. 33; Astoria Exchange 
 Co. v. Shively, id. 104; Welch v. Ore- 
 gon Ry. & Nav. Co. (Oregon), 56 Pac. 
 Rep.,417; Shively v. Bowlby, 152 U. S. 
 1; Shively v. Welch, 10 Sawyer, 136. 
 
 2 Parker v. Rogers, 8 Oregon, 183; 
 De Force v. Welch, 10 id. 507. The 
 common-law rule applies in the State 
 of Washington. Mann v. Tacoma 
 Land Co., 153 U. S. 273; Eisenbach v. 
 Hatfield, 2 Wash. St. 236; 12 L. R. A. 
 632 and note; Pierce v. Kennedy, 2 
 Wash. 324; Harbor Line Com'rs v. 
 State, id. 530; 4 id. 816; Baer v. 
 Moran Bros. Co., 2 id. 608; Scurry v. 
 Jones, 4 id. 468 ; Bellingham Bay & 
 B. C. R. Co. v. Strand, id. 311; Seattle 
 & M. Ry. Co. v. State, 7 Wash. 150; 
 Morse v. O'Connell, id. 117; State v. 
 Forrest, 8 id. 610; 12 id. 483; 13 id. 
 268; McKenzie v. Woodin, 9 id. 414; 
 Globe Mill Co. v. Bellingham Bay 
 Impr. Co., 10 id. 458; Hays v. Mer- 
 chants' Bank, id. 573; State v. For- 
 rest, 11 id. 227; Cogswell v. Forrest, 
 14 id. 1; Brown v. Car keek, id. 443; 
 Oliver v. Dupee, 16 id. 634; Tullis v. 
 Tacoma Land Co., 19 id. 140; Denny 
 v. No. Pac. Ry. Co., 19 id. 298; Seattle 
 
 & M. Ry. Co. v. Carraher (21 Wash.), 
 58 Pac. Rep. 570; State v. Bridges 
 (Wash.), 60 Pac. Rep. 66. As to ju- 
 risdiction over the Columbia river, 
 see In re Mattson, 69 Fed. Rep. 535. 
 As to Alaska, see Carroll v. Price, 81 
 Fed. Rep. 137. In Texas, see Ros- 
 borough v. Piston, 12 Tex Civ. App. 
 113. 
 
 3 1 Rev. Code of 1819, ch. 87, p. 341; 
 French v. Bankhead, 11 Gratt. 136, 
 159. In 1705, when Norfolk was made 
 a town, it was enacted that those who 
 built out into the water before their 
 own lots in the town, for the better 
 conveniency of landing and shipping 
 off goods, should have the whole bene- 
 fit of such buildings, and the land so 
 built upon should be reckoned as part 
 of their lots. 3 Hen. Stat, at L. p. 412, 
 ch. 42; Hardy v. McCullough, 23 
 Gratt. 251, 262. 
 
 * See Garrison v. Hall, 75 Va. 150, 
 holding that the act of 1780, in view 
 of its preamble, was intended, in ex- 
 empting from location and grants 
 unappropriated shores and lands ad- 
 joining, to reserve only the shores 
 and lands necessary for the common 
 enjoyment of the privilege of fishing. 
 See, also, Byrd v. Ludlow, 77 Va. 483. 
 As to granting the right to plant 
 oysters to riparian owners, see Acts 
 of 1883-4, ch. 254; Richardson v. 
 United States, 100 Fed. Rep. 714 
 
34.S THE LAW OF WATERS. [Ch. V. 
 
 watercourse may erect a wharf, pier, or bulkhead in such water- 
 course, if the navigation is not obstructed thereby and the pri- 
 vate rights of other persons are not injured. 1 Subject to these 
 conditions, a wharf may, in this State, be extended beyond low- 
 Avater mark. 2 In North Carolina the State can only grant land 
 under navigable water for wharf purposes ; 3 but for this pur- 
 pose the owners of lands upon navigable water may "make 
 entries of the land covered by water adjacent to their own, as 
 far as deep water," 4 and thereby acquire an absolute instead 
 of a qualified property. 5 The State of South Carolina owns 
 the land under navigable waters according to the common law.* 
 In Louisiana strips of land near the mouth of the Mississippi 
 river, stretching along the river, and including lands submerged, 
 being subject to overflow, belong to the State; and the oysters 
 cultivated or planted there, being benefited by the levees along 
 the river, are taxable to maintain the levee system. 7 
 
 §179. Same : — In fresh waters. — Kiparian 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 obstructing the navigation. 8 This is 
 
 i Code 1873, sec. 59, ch. 52; Norfolk 8 Dutton v. Strong, 1 Black, 1, 23; 
 
 City v. Cooke, 27 Gratt. 430; Alexan- Railroad Co. v. Schurmeir, 7 Wall, 
 
 dria Ry. Co. v. Faunce, 31 Gratt. 761, 272; 10 Minn. 82; Yates v. Milwaukee, 
 
 764; United States v. Bain, 3 Hughes, 10 Wall. 497; Atlee v. Packet Co., 21 
 
 593. Wall. 389; 2 Dillon, 479; St. Louis v. 
 
 2 Norfolk City v. Cooke, 27 Gratt. Myers, 113 U. S. 566; Leigh v. Holt, 
 430, 438: Groner v. Foster, 94 Va. 650. 5 Biss. 338; Illinois v. Illinois Central ■ 
 
 3 Gregory v. Forbes, 96 N. C. 77. R. Co., 33 Fed. Rep. 730; 146 U. a 
 «N. C. Code, § 2751; Wool v. Eden- 387; People v. Illinois Cent. R. Co., 
 
 ton, 113 N. C. 33; 115 id. 10; 117 id. 1. 91 Fed. Rep. 955; Shaw v. Susque- 
 
 5 Bond v. Wool, 107 N. C. 139. hanna Boom Co., 125 Penn. St 324; 
 
 6 State v. Pacific Guano Co., 22 S. C. Williamsburg Boom Co. v. Smith, 84 
 50; State v. Pinkney, id. 484 As to Ky. 372; Wisconsin River Impr. Co. 
 Georgia, see Shively v. Bowlby, 152 v. Lyons, 30 Wis. 61; Delaphine v. 
 U. S. 1. Chicago Ry. Co., 42 Wis. 214; Boor- 
 
 7 Buras Levee District Com'rs v. man v. Sunnuchs, id. 233; Diedrich 
 
 Mialegvich (La.), 27 S. Rep. 790. Red v. Northwestern Ry. Co., id. 248; 
 
 Pass in Louisiana, formed by a ere- Stevens Point Boom Co. v. Reilly, 46 
 
 vasse or break through the banks of Wis. 237; 44 Wis. 295; Colin v. Wau- 
 
 the Mississippi river, and navigated, sau Boom Co., 47 Wis. 314, 322; 
 
 if at all, only occasionally by oyster- Walker v. Shepardson, 4 Wis. 486; 
 
 boats, is not a part of the navigable Grant v. Davenport, 18 Iowa, 179; 
 
 waters of the United States. Leovy Haight v. Keokuk, 4 Iowa, 199; Mus- 
 
 v. United States, 177 U. S.|621. ser v. Hershey, 42 Iowa, 356; Ryan 
 
§ 179.] EIPAEIAN BIGHTS. 349 
 
 a riparian right, being dependent upon title to the bank and 
 not upon title to the river bed. 1 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. 2 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 aqu<x? This right is a mere franchise, in those localities 
 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. 4 ■ 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. 5 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. 6 But if, without authority, 
 
 v. Brown, 18 Mich. 196; Jones v. Lee, nance of the real estate. Tuck v. 
 
 77 Mich. 35; Austin v. Rutland R. Olds, 29 Fed. Rep. 738. 
 
 Co., 45 Vt. 215; Sloan v. Biemiller, 34 ! Ibid. ; Cohn v. Wausau Boom Co., 
 
 Ohio St. 492, 513; Blanchard v. Por- 47 Wis. 314, 322; Diedrich v. North- 
 
 ter, 11 Ohio, 138; Rippe D.Chicago western Ry. Co., 42 Wis. 248; Stevens 
 
 R. Co., 23 Minn. 18; Brisbine v. St. Point Boom Co. u Reilly, 44 Wis. 295, 
 
 Paul R. Co., id. 114; Morrill v. St. 304; 46 Wis. 237; Williams v. Lane, 
 
 Anthony Falls Co., 26 Minn. 222; 87 Wis. 152. 
 
 Hanford v. St. Paul R Co., 43 Minn. 2 ibid.; Lincoln v. Davis, 53 Mich. 
 
 104; Ensminger v. People, 47 I1L 384; 375; Gibson v. Kelly, 15 Mont. 417. 
 
 Chicago v. Laflin, 49 I1L 172; Meyers 3 Ibid. 
 
 v. St. Louis, 8 Mo. App. 266; Bain- i Austin v. Rutland R. Co., 45 Vt. 
 
 bridge v. Sherlock, 29 Ind. 364; Sher- 215; 21 Blatch. 358; Stockham v. 
 
 locki;. Bainbridge, 41Ind. 35; Laugh- Browning, 18 N. J. Eq. 390; Coburn 
 
 lin v. Lamasco City, 6 Ind. 223; v. Ames, 52 Cal. 385. But see Nichols 
 
 Thurman v. Morrison, 14 B. Mon. 367 ; v. Lewis, 15 Conn. 137, 143. 
 
 Morrison v. Thurman, 17 id. 257; 5 Railroad Co. v. Schurmeir, 7 Wall. 
 
 Norfolk City v. Cooke, 27 Gratt. 430, 272; 10 Minn. 82; Toledo L. S. Co. v. 
 
 434; Alexandria Ry. Co. v. Faunce, Erie S. Co., 90 Fed. Rep. 680; Grant 
 
 31 Gratt. 761, 764. Contra, in Illinois, v. Davenport, 18 Iowa, 179; Musser 
 
 see Revell v. People, 177 111. 468; v. Hershey, 42 Iowa, 356; ante, § 161. 
 
 Gordon v. Winston, 181 111. 338. The 6 Diedrich v. Northwestern Ry. Co., 
 
 dock, when erected, is an appurte- 42 Wis. 248; Larson v. Furlong, 50 
 
 Wis. 681, 691; 63 Wis. 323. 
 
350 THE LAW OF WATERS. [Ch. V. 
 
 he erects structures below low-water in navigable waters which 
 belong to the State, he loses all title to the property so placed. 1 
 The riparian right of reclamation below low-water mark may 
 be conveyed separately from the riparian estate. 2 
 
 § 180. Same — In general. — The exercise of this right to- 
 build out into navigable waters, wharves, piers and docks, 
 tends to aid navigation and commerce. The legislature may 
 authorize the extension of such structures beyond low-water 
 mark ; 3 but if not sanctioned by the legislature, they are ille- 
 gal so far as they interfere with or limit the right of naviga- 
 tion. 4 The public right of fishery, however, is subordinate to- 
 the right of navigation, and wharves and buildings upon flats 
 which are consistent with the latter right will not be declared 
 unlawful for want of legislative sanction because they exclude 
 the public from taking shell-fish or floating fish in the space 
 covered by the structure. 5 
 
 § 181. Same — To what distance. — In determining the dis- 
 tance from the bank to which a wharf or other similar struct- 
 ure may thus be extended, the rule, as generally stated, is that 
 these structures must not pass the point of navigability. 6 This 
 rule is somewhat indefinite, and, as wharves, piers, booms, and 
 the like, are valuable aids to navigation and commerce, the 
 limits would be so narrow as to make these structures practi- 
 cally useless, if the point of navigability is fixed at the line be- 
 yond which a boat, raft, or log could not float. In the case of 
 encroachments upon tide water, the question of nuisance or 
 not nuisance is one of fact. 7 With respect to encroachments, 
 the correct rule seems to be indicated in Stevens Point Boom 
 Co. v. Eeilly, 8 in Wisconsin, where it was held that the erec- 
 
 1 Ibid.; Gray v. Bartlett, 20 Pick. » Moulton v. Libbey, 37 Maine, 472; 
 
 186. See Illinois Cent. R. Co. v. Mi- Clement v. Burns, 43 N. H. 609; ante, 
 
 nois, 146 U. S. 387. §§ 87, 169. 
 
 2 Hanford v. St. Paul R. Co., 43 6 Dutton v. Strong, 1 Black, 1,23; 
 Minn. 104; Gilbert v. Eldridge, 47 Atlee v. Packet Co., 2 Dillon, 479, 
 Minn. 210; Bradshaw v. Duluth I. M. 485; 21 Wall. 389; Diedrich v. North- 
 Co., 52 Minn. 59; No. Pac. R. Co. v. western Ry. Co., 42 Wis. 248; Rippe 
 Scott & Holston L. Co., 73 Minn. 25. v. Chicago R Co., 23 Minn. 18; Bris- 
 
 3 Ante, § 140. bine v. St. Paul R. Co., id. 114, 130. 
 
 *Ante, § 134; Illinois Cent. R. Co. ' Ante, § 93. 
 
 v. Chicago, 173 I1L 471. *1G Wis. 237, 244; 44 Wis. 295; 
 
§ 182.] 
 
 EIPAEIAN EIGHTS. 
 
 351 
 
 tion 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 navigable rivers without authority from the legislature. 
 "With respect to the side lines, it is held that if the lateral 
 boundaries in a conveyance of flats are definite, the right to> 
 wharf out is confined to the area embraced within them or 
 their extension, although they form an acute angle with the 
 shore boundary. 1 
 
 § 182. Fisheries — Fresh waters. — Eiparian 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. 2 
 
 ISmon Depot Co. v. Brunswick, 31 
 Minn. 297; Atlee v. Packet Co., 21 
 "Wall. 389, 393; Cohn v. Wausau 
 Boom Co., 47 Wis. 314, 322. See, also, 
 Buszard v. Capel, 4 Bing. 137, 140; 12 
 Moore, 339; The Wharf Case, 3 Bland, 
 Ch. 361, 369. Ryan, C. J., said, in the 
 case first cited: "A pier upon Lake 
 Michigan, to aid navigation, must go 
 into water deep enough to be acces- 
 sible 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 float- 
 ing logs; must be so constructed as 
 to receive and discharge floating 
 logs. In either case, to reach naviga- 
 ble water reasonably implies reach- 
 ing it with effect to accomplish the 
 purpose; the word often signify- 
 ing 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 purposa A 
 structure in aid of navigation, which 
 would be a reasonable intrusion into 
 the waters of Lake Michigan, would 
 probably be an obstruction of navi- 
 gation 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 navi- 
 gation in most or all the logging- 
 streams within the State. The width 
 of a river may justify a liberal exer- 
 cise of the right of intrusion, or may 
 exclude it altogether. . Its extent is- 
 purely a relative question." 
 
 1 Ladies' Seamen's Friend Society 
 v. Halstead, 58 Conn. 144. General 
 authority to extend highways over 
 flats means prima facie in a direct, 
 line outwards. Ilwaco v. Ilwaco Ry. 
 & Nav. Co., 17 Wash. 652. 
 
 2 Hale, De Jure Maris, ch. 1, 5; Har- 
 grave's Law Tracts, 2, 56; 3 Kent 
 Com. 409, 417; Royal Fishery of the- 
 Banne, Davies, 149; Frearyu. Cooke, 
 14 Mass. 488; Com. v. Chapin, 5 Pick. 
 199; Vinton v. Welsh, 9 Pick. 87; 
 Waters v. Lilley, 4 Pick. 145; Com. 
 v. Alger, 7 Cush. 53, 97; McFarlin v. 
 Essex Co., 10 Cush. 304; Com'rs v. 
 Holyoke Water Power Co., 104 Mass. 
 446; Com. v. Vincent, 108 Mass. 441 - t 
 People v. Piatt, 17 Johns. 195; Hooker 
 v. Cummings, 20 Johns. 90; Trustees 
 v. Strong, 60 N. Y. 56 ; Gould v. James, 
 5 Cowen, 369; Adams v. Pease, 2 Conn. 
 481; Smith v. Miller, 5 Mason, 191; 
 Cobb v. Davenport, 32 N. J. L. 369; 
 
352 THE LAW OF WATERS. [Ch. V. 
 
 Riparian proprietors upon all such streams, whose title extends 
 adfilum aquce, can maintain an action of trespass against those 
 who draw a seine between the centre of the stream and the 
 bank of his land. 1 This exclusive right exists, also, in the case 
 of private lakes and ponds. 2 In those States in which the soil 
 of navigable fresh streams or lakes is held to be public prop- 
 erty, the right of fishing in them is a common right, as in the 
 case of tide waters. 3 In the British provinces and colonies it 
 seems that, when the bed of a non-tidal river is reserved and 
 remains the property of the Crown, the public have the same 
 common right of fishery that they have in tide waters. 4 Under 
 the Massachusetts colony ordinance of 1641—47, a littoral pro- 
 prietor, owning to low-water mark, may, by seines, weirs or 
 stakes erected on his own flats, for the purpose of catching fish, 
 exclude the public from there exercising the general privilege, 
 and this private right may be conveyed by the owner with or 
 without the upland, and with such limitations and qualifications 
 as he sees fit. 5 
 
 § 183. Same — Kinds of. — 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 ; 6 second, a free fishery, which is an exclusive franchise 
 
 Browne v. Kennedy, 5 H. & J. 195; Stoddard, 7 Allen, 158; State u. Frank- 
 
 Beckman v. Kraemer, 43 111. 447; lin Falls Co., 49 N. H. 240; Sloan v. 
 
 Heokman v. Swett, 99 Cal. 303; 107 Biemiller, 34 Ohio St. 492; Lincoln v. 
 
 Cal. 276; Lewis v. Keeling, 1 Jones Davis, 53 Mich. 375; Mendota Club 
 
 (N. C), 299; Ingram v. Threadgill, 3 v. Anderson, 101 Wis. 479; Cates v. 
 
 Dev. 59; Robertson v. Steadman, 3 "Wadlington, 1 McCord, 580; Collins 
 
 Pugsley, 621. That the legislature v. Benbury, 5 Ired. 118; 3 id. 277; 
 
 may make public the right of fishing Wilson v. Forbes, 2 Dev. 30: Ingram 
 
 in public waters, see Willow Eiver v. Threadgill, 3 Dev. 59; State v. Glen, 
 
 Club v. Wade, 100 Wis. 86; 42 L. E. 7 Jones, 321; Boatwright v. Bookman, 
 
 A. 305, and note. Eice (N. C), 447. 
 
 1 Adams v. Pease, 2 Conn. 483 ; ante, 4 Robertson v. Steadman, 3 Pugsley 
 
 § 100. (N. B.), 621. 
 
 2 Ibid.; Woolrych on Waters, 96; 5 Matthews v. Treat, 75 Maine, 594; 
 
 Cobb v. Davenport, 32 N. J. L 369; 33 Wyman v. Oliver, id. 421; Treat v. 
 
 N. J. L. 223; ante, §§ 79-85. Parsons, 84 Maine, 520. See Sollersu 
 
 3 Carson v. Blazer, 2 Binney, 475; Sollers, 77 Md. 148; ante, § 169. 
 
 Shrunk v. Schuylkill Nav. Co., 14 6 Pollexfen u Crispin, 1 Vent. 122; 
 
 S. & R. 71; Hart v. Hill, 1 Whart. Smith v. Kemp, 2 Salk. 637; Holt, 
 
 124; Tinicum Fishing Co. v. Carter, 322; Somerset v. Fogwell, 5 B. & C. 
 
 61 Penn. St. 21; West Eoxbury v. 875; Co. Litt. 122a; Marshall wUlles- 
 
§ 183.] 
 
 EIPAEIAN EIGHTS. 
 
 353 
 
 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 ; l third, a common of fishery, which resembles 
 the case of other common, and is a right or liberty of taking 
 fish in common with certain others in waters flowing through 
 another's man's land ; 2 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. 3 Much con- 
 fusion exists, however, respecting the distinctions between 
 these classes. By the apparent weight of authority a several 
 fishery may exist independently of the ownership of the soil 
 beneath the water, 4 and the land-owner may grant the banks 
 
 water Steam Nav. Co., 3 B. & S. 732, 
 744, 747; Anon.,Loft. 364; Partheriche 
 ■v. Mason, 2 Chitty, 658; Holford v. 
 Bailey, 13 Q. B. 426, 444; 8 Q. B. 1000; 
 Rex v. Old Alresford, 1 T. R. 358; 
 Seymour v. Courtenay, 5 Burr. 2814; 
 Alderman v. Hastings, 2 Sid. 8; Car- 
 'lisle v. Graham, L. R. 4 Ex. 361; 
 Mannall v. Fisher, 5 C. B. jr. S. 856; 
 Pearce v. Scotcher, 9 Q. B. D. 162; 
 Pery v. Thornton, 23 L. R. Ir. 402; 
 Miller v. Little, L. R. 2 Ir. 304; Tighe 
 v. Sinnott, [1897] 1 Ir. 140; North- 
 umberland v. Houghton, LE.5 Ex. 
 127; Queen v. Steer, 3 Salk. 291; Mal- 
 comson v. O'Dea, 10 H. L. Cas. 618; 
 Moulton v. Libbey, 37 Maine, 489; 
 Preble v. Brown, 47 id. 284; Caswell 
 v. Johnson, 58 id, 164; Freary v. 
 Cooke, 14 Mass. 488; Stoughton v. 
 Baker, 4 Mass. 522; Melvin v. Whit- 
 ing, 5 Pick. 79; 10 Pick. 295; 13 Pick. 
 184; McFarlin v. Essex Co., 10 Cush. 
 304; Chalker v. Dickinson, 1 Conn. 
 382, 510; Munson v. Baldwin, 7 Conn. 
 168; Trustees v. Strong, 60 N. Y. 56; 
 Skinner v. Hetrick, 73 N. C. 53; 
 Williamson v. Yingling, 93 Ind. 42. 
 A several fishery does not merge 
 upon its being resumed by the 
 Crown. Northumberland v. Hough- 
 ton, L. R. 5 Ex. 127. User for forty- 
 five years of certain engines for 
 catching salmon, without evidence 
 23 
 
 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. R. 3 
 Q. B. 639. The presumption is against 
 the existence 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. Collery, Ir. R. 4 C. L. 508. 
 
 i Smith v. Kemp, 2 Salk. 637; 3 
 Black. Com. 34; 3 Kent Com. 409; 
 Upton v. Dawkin, 3 Mod. 97; Child 
 v. Greenhill, Cro. Car. 553; Alder- 
 man v. Hastings, 2 Sid. 8; 1 Swift's 
 Dig. 110. 
 
 2 Smith v. Kemp, 2 Salk. 637. 
 
 3Benett v. Costar, 8 Taunt. 183; 3 
 Moore, 83; Lord Fitzwalter's Case, 1 
 Mod. 105. 
 
 4 Marshall v. Ulleswater Steam 
 Nav. Co., 3 B. & S. 732, 747; Reg. v. 
 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 b, 
 122 a; 1 Inst. 46, 56; 2 Black. Com. 
 39; Royal Fishery of the Banne, Da- 
 vies, 149; Partheriche v. Mason, 2 
 Chitty, 658; Bridges v. Highton, 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. Ben- 
 
354 
 
 THE LAW OF WATERS. 
 
 [Oh. V- 
 
 of a river with reservation of the river-bed and fishery. 1 It 
 has also been held 2 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 individ- 
 uals." 3 
 
 § 184. Same — Profit a prendre. — A right of fishery in an- 
 other'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. So a grant of 
 the exclusive right to take wild fowl on the grantor's lakes, 
 sloughs, and waters, with the privilege of ingress and egress 
 for the purpose, is a grant of a, profit d prendre and not a mere 
 license revocable at pleasure. 4 A custom thus to take any- 
 
 bury, 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; 
 Lakenian v. Butler, 17 Pick. 436. 
 
 1 Devonshire v. Pattinson, 20 Q. B. 
 D. 263; Ecroyd v. Coulthard, [1897] 2 
 Ch. 554 
 
 2Melvin v. Whiting, 7 Pick. 79; 
 13 Pick. 184; 1 Inst. 122; Woolrych 
 on Waters, 92; Schultes on Aquatic 
 Eights, 67; Carter v. Murcot, 4 Burr. 
 2162; Seymour v. Courtenay, 5 Burr. 
 2816; 3 Salk. 290, 360; Kinnersley v. 
 Orpe, Dougl. 56; Rex v. Ellis, 1 M. & 
 S. 652; Johnson v. Bloomfield, I. R. 8 
 C. L. 68. In Gibbs v. Wclicot, Holt, 
 323, Holt, C. J., said that by the grant 
 of a fishery the soil passes. 
 
 3 3 Kent Com. 411. Woolrych (on 
 Waters, 87) says: "A right of any 
 kind means, in strict legal language, 
 a profit or easement which is enjoyed 
 in the soil of another; and thus, 
 when we speak of a right of fishery, 
 
 we mean the 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 per- 
 son, we do not say correctly, that 
 such an individual has a right of fish- 
 ery, because the land and its profits 
 are so completely identified as his 
 inheritance that they cannot be sepa- 
 rated. 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 the 
 opinion that the owner of a several 
 fishery must necessarily have the soil 
 as incident to the enjoyment, will 
 consider this territorial possession as 
 the several fishery so frequently men- 
 tioned in our books." See Hindson 
 v. Ashby, [1896] 2 Ch. 1; reversing 44 
 W. R.. 184. 
 
 4 Bingham v. Salene, 15 Oregon, 208. 
 See Sterling v. Jackson, 69 Mich. 488; 
 13 Am. State Rep. 416, note. An ex- 
 clusive license can by clear language- 
 be granted to take the whole of a- 
 
.§ 185-] 
 
 EIPAEIAN EIGHTS. 
 
 355 
 
 thing from another's land is not a lawful custom, and, if avail- 
 able at all, must be set up not by an indefinite class, 1 but by- 
 prescription as belonging to some estate, and is to be pleaded 
 with a que estate. 2 " Where," says Huddleston, B., 3 " a river 
 is navigable and tidal, the public have a right to fish ; but wmere 
 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, 4 and in New York, at least, long 
 possession and user of an oyster-bed do not establish an exclu- 
 sive right in behalf of a non-resident. 5 
 
 § 185. Same — Remedies. — A fishery may be leased, 6 and 
 is so far real estate 7 that it is subject to dower. 8 Trespass lies 
 for the disturbance of an exclusive right of fishing attached to 
 
 profit a prendre of a particular kind. 
 Sutherland v. Heathcote, [1892] 1 Ch. 
 475; 65 L. T. 606. A license to fish 
 with "a rod and line " does not jus- 
 tify the use of more than one rod and 
 line at the same time. Combridge v. 
 Harrison, 72 L. T. 592. 
 
 1 Tilbury v. Silver, 45 Ch. D. 98. 
 
 2 Gatewood's Case, 6 Co. 60; Grim- 
 stead v. Marlowe, 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. McRae, 
 4 B. & S. 585; Hargreaves v. Did- 
 dams, L. R. 10 Q. B. 582; Mills v. Col- 
 chester, L. R. 2 C. P. 476; Mussett v. 
 Burch, 35 L. T. N. s. 486; Murphy v. 
 Ryan, Ir. R. 2 C. L. 143; Wickham 
 v. Walker, 7 M. & W. 63; Neill v. 
 Devonshire, 8 App. Cas. 135; 2 L. R. 
 Ir. 132; Waters v. Lilley, 4 Pick. 145; 
 McFarlin v. Essex Co., 10 Cush. 304; 
 Codman v. Evans, 5 Allen, 308, 310; 
 Beach v. Morgan, 67 N. H. 529; Cobb 
 v. Davenport, 32 N. J. L. 369; 33 id. 
 223; Tinicum Fishing Co. v. Carter, 
 
 61 Penn. St. 21. See Goodman v. Salt- 
 ash, 7 App. Cas. 633 (see post, § 331); 
 Johnson v. Barnes, 27 L T. N. s. 152; 
 Warrick v. Queen's College. 25 id. 
 254; Northumberland v. Houghton, 
 22 id. 491; Chilton v. London, 38 id. 
 498; 7 Ch. D. 735; Abbott of Strada 
 Marcella's Case, 9 Co. Rep. 24a; Bry- 
 ant v. Foot, L. R. 2 Q. B. 161; Will- 
 ingale u Maitland, L. R. 3 Eq. 103. 
 
 3 Pearce v. Scotcher, 46 L. T. n. s. 
 342; 9 Q. B. D. 162; Fitzgerald v. Fir- 
 bank, [1897] 2 Ch. 96; Albrights Cort- 
 right (N. J.), 45 Atl. Rep. 634. 
 
 4 Nickerson v. Brackett, 10 Mass. 
 217; McFarlin v. Essex Co., 10 Cush. 
 304. 
 
 5 Trustees v. Lowndes, 40 Fed. Rep. 
 625; Lowndes v. Huntington, 153 
 U. S. 1; People v. Lowndes, 55 Hun, 
 469; 130 N. Y. 455. 
 
 « Holford v. Pritchard, 3 Exch. 793; 
 Rex v. Old Arlesford, 1 T. R. 358; 
 Cooper v. Phibbs, L. R. 2 H. L. 149; 
 Swanwick v. Varney, 30 W. R. 79,; 
 State v. Sutton, 2 R I 434; State v. 
 
 'See Butrick v. Tilton, 155 Mass. 
 461. 
 
 8 Turner v. Hebron, 61 Conn. 175; 
 14 L. R A. 386, and note; Russell 
 v. Russell, 15 Gray, 159; Wyman v. 
 
 Oliver, 75 Maine, 421; Bacon's Abr. 
 Dower; Park on Dower, 252. In 
 Greyes' Case, Owen, 20, it was held 
 that fish in a pond pass to the heir 
 and not to the executor. 
 
356 
 
 THE LAW OF WATERS. 
 
 [OH. V. 
 
 the soil, 1 and apparently an action of ejectment may be main- 
 tained for a fishery, 2 but it has been held that the action of 
 forcible entry and detainer will not lie. 3 An injunction may 
 be granted, on the ground of irreparable injury, to restrain 
 such pollution of fresh water 4 or such unlawful exclusion of 
 tide waters 5 as tends to destroy a private right of fishing ; and 
 by statute the protection of private fisheries may be secured 
 with penalties. 6 
 
 Cozzens, 2 R. I. 561; New England 
 Oyster Co. v. McGarvey, 12 R. I. 385; 
 State v. Burdick, 15 R. L 239; Water- 
 town v. White, 13 Mass. 477; Belch 
 v. Miller, 32 Mo. App. 387; Jones v. 
 Johnson, 6 Tex. Civ. App. 262; East- 
 ham v. Anderson, 119 Mass. 526. In 
 the last case it was held that a per- 
 son 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 the stat- 
 ute of frauds. It seems that a tenant 
 at will in possession of land on a fresh 
 river is entitled to be treated as a 
 riparian owner with respect to the 
 right of fishing. Phair v. Venning, 
 22 N. Bruns. 362. 
 
 i Child v. Greenhill, Cro. Car. 553; 
 Smith v. Kemp, 2 Salk. 637; Holford 
 v. Bailey, 13 Q. B. 426; Russell v. 
 Stocking, 8 Conn. 236; Cobb v. Dav- 
 enport, 32 N. J. L. 369, 384; 33 N. J. 
 L. 223; Hart v. Hill, 1 Whart. 124; 
 Collins v. Benbury, 5 Ired. 118; 
 Adams v. Pease, 2 Conn. 483; Wool- 
 rych on Waters, 92. See Walker v. 
 Baird, [1892] A. C. 491. Overflowing 
 or drawing out of a fishery is a tres- 
 pass. Courtney v. Collet, 1 Ld. Raym. 
 272. 
 
 2 Molineaux v. Molineaux, Cro. Jac. 
 146; Rex v. Old Arlesford, 1 T. R. 
 338, 361; Waddy v. Newton, 8 Mod. 
 276; Woolrych on Waters, 92. See 
 post, § 471, note; Sheppard's Touch- 
 stone, 96. 
 
 3 Van Auken v. Decker, Pen. (N. J.) 
 108, 110. 
 
 <Aldred's Case, 9 Rep. 59a; Att. 
 Gen. v. Birmingham, 4 K. & J. 528; 
 Oldaker v. Hunt, 31 Eng. L. & Eq. 
 503; Seaman v. Lee, 10 Hun, 607. 
 
 5 Bridges v. Highton, 11 L. T. n. s. 
 653; Stannard v. Hubbard, 34 Conn. 
 370; Britton v. Hill, 27 N. J. Eq. 389. 
 
 624 & 25 Vict. ch. 96, § 24; 5 & 6 
 Vict. ch. 106, § 114; Caygill v. Thwaite, 
 33 W. R. 581; Greenbank v. Sander- 
 son, 49 J. P. 40; Blower v. Ellis, 50 
 J. P. 326; Wood v. Venton, 54 J. P. 
 662; Pidler v. Berry, 53 J. P. 6; An- 
 derson v. Hamlin, 25 Q. B. D. 221; 
 Briggs v. Swan wick, 10 id. 510; Bel- 
 fast Ropeworks Co. v. Boyd, 21 L. R. 
 Ir. 560, 574; Jones v. Clancy, 26 id. 
 161; Wilson v. May Fishery Co., 19 
 id. 270; Massy v. Cassidy, 13 id. 97; 
 Reg. v. Justices, 20 id. 69; Reg. v. In- 
 spectors, id. 155; Doran v. Cunning- 
 ham, id. 544; State v. Bennett, 79 
 Maine, 55; Thompson v. Smith, id. 
 160; Clinton v. Buell, 55 Cona 263; 
 Abrams v. Hempstead Auditors, 45 
 ,Hun, 272; Sutter v. Van Derveer, 47 
 Hun, 366. As to State regulation of 
 such nets or traps, see State v. Blount, 
 85 Mo. 543; Purinton v. Ladd, 58 N. H. 
 596; Lawton v. Steele, 119 N. Y. 226. 
 See Mich Acts of 1889, p. 123; S. C. 
 Acts of 1889, p. 354. An action will 
 not lie for erecting a fish weir be- 
 tween high and low-water mark in 
 an arm of the sea, whereby fish which 
 would otherwise be caught in the 
 plaintiff's weir, were caught by the 
 defendant. Cheney v. Guptill, 2 
 Hannay (N. B.), 379. 
 
§§ 186, 187.] EIPAEIAN EIGHTS. 357 
 
 § 186. Same — How exercised. — The privilege of fishing 
 must be so used as not to injure others. As the right of nav- 
 igation in public waters is of a higher character than a fishery, 
 the latter cannot be exercised in derogation of commerce. 1 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. 2 "Upon most occasions," says "Wbolrych, 3 "a man 
 may use any nets, according to his pleasure, in his several 
 fishery which he appropriates exclusively to himself, 4 but if he 
 allow another to participate in his property, he cannot be jus- 
 tified in taking the fish with such engines as would leave none 
 for his grantee ; because the principle is sio utere tuo ut alienum 
 non Icedas. Then, with respect to a common of fishery, the 
 user of nets must be regulated according to the custom of the 
 manor." 
 
 § 187. Same — Restrictions. — In "Weld v. Hornby, 5 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 ac- 
 tionable injury. And in the Irish case of Hamilton v. Done- 
 gall, 6 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 maintain- 
 ing structures which prevented fish from coming to his fishery. 
 In Leconfield v. Lonsdale, 7 it was held that the provisions of 
 Magna Charta and other early English statutes, making weir, 
 
 * Ante, % 87; Anon., 1 Camp. 517, n. 6 3 Ridgway, 267- Woolrych on 
 
 2 Warren v. Matthews, 1 Salk. 357; Waters, 189. 
 
 6 Mod. 73; Rawstrone v. Backhouse, 7 L. R 5 C. P. 657. See Rolle v. 
 
 L. R. 3 C. P. 67; Moulton v. Wilby, Whyte, L. R. 3 Q. B. 286; Sutherland 
 
 32 L. J. M. C. 164; Wilson v. Hill, 45 v. Ross, 3 A. C. 736; Pike v. Rossiter, 
 
 N. J. Eq. 367; State v. Conner (N. G), 37 L. T. 635; Spencer v. Patten, 84 
 
 11 S. E. Rep. 992; Com v. Ruggles, 10 Md. 414: Callis on Sewers, 258; Vin. 
 
 Mass. 319; Com. v. Chapin, 5 Pick. Abr. Nuisance, 3; Hale, De Jure 
 
 199; Com. v. Pease, 137 Mass. 576; Maris, chs. 3, 5; 2 Inst. 38; Case of 
 
 Boatwright v. Bookman, Rice (S.C.), Chester Mill, 10 Co. Rep. 138. A 
 
 447, 451 ; Jackson v. Lewis, Cheves remedy by statute, which provides a 
 
 (S. C), 259; Pitkin v. Olmstead, 1 penalty against those who obstruct 
 
 Root, 217. the passage of fish, is merely cumu- 
 
 3 On Waters, 131. lative, and does not prevent an ac- 
 
 4 Ibid. See State v. Skolfield, 63 tion on the case by the owner of a 
 Maine, 266. fishery. Barden v. Crocker, 10 Pick. 
 
 5 7 East, 195; 3 Smith, 244; 2 Roll. 383. 
 Abr. 142; 28 Law Mag. 323. 
 
358 
 
 THE LAW OF WATEES. 
 
 [Ch. Y. 
 
 public nuisances, applied only to navigable rivers. The main- 
 tenance of dams without fish- ways in an unnavigable streams 
 which is the outlet of a public lake, whereby the passage of 
 migratory fish from the sea to the lake is prevented, is held, in 
 Hew Hampshire, to be an indictable offense at common law, 1 
 and the right to maintain such structures cannot be acquired 
 by prescription. 2 In Massachusetts, the right to have migratory 
 fish pass up the rivers and streams to their head-waters is a 
 public right, and the riparian proprietors hold their right to 
 fish subject to the control of the legislature; but the subject 
 has been so long regulated by legislation that the only remedy 
 for obstructing the passage of fish is held to be that provided 
 by statute. 3 The rule is the same in Maine, 4 New York, 5 and 
 other States ; 6 and in Massachusetts, at least, the legislature 
 
 i State v. Franklin Falls Co., 49 N. 
 H. 240; State v. Roberts, 59 N. H. 256, 
 484; Chase v. Baker, id. 347. 
 
 2 Ibid. ; Cottrill uMyriok, 12 Maine, 
 222. 
 
 3 Stoughton v. Baker, 4 Mass. 522; 
 Randolph, v. Braintree, 4 id. 315; 
 Burnham v. Webster, 5 id. 266; Com. 
 v. McCurdy, 5 id. 324; Com. v. Rug- 
 gles, 10 id. 391; Waters v. Lilley, 4 
 Pick. 145; Watertown v. Draper, 4 id. 
 166; Com. v. Chapin, 5 id. 199; Vin- 
 ton v. Welsh, 9 id. 87; Nickerson v. 
 Brackett, 10 id. 212; Barden v. 
 Crocker, 10 id. 383; Atwood v. Cas- 
 well, 19 id. 493; Hyde v. Russell, 2 
 Cush. 251; Com. v. Alger, 7 id. 98; 
 MoFarlin v. Essex Co., 10 id. 309, 310; 
 Com. v. Essex Co., 13 Gray, 239; 
 Com'rs v. Holyoke Water Power Co., 
 104 Mass. 450; Com. v. Vincent, 108 
 id. 446; Com. v. Tiffany, 119 id. 300; 
 Com. v. Skatt, 162 id. 219; Holyoke 
 Water Power Co. v. Lyman, 15 Wall. 
 500; State v. Roberts, 59 N. H. 265, 
 484; State v. Beardsley (Iowa), 79 N. 
 W. Rep. 138. 
 
 4 Cottrill v. Myrick, 12 Maine, 222; 
 Fuller v. Spear, 14 id. 417; Lunt v. 
 Hunter, 16 id. 9; Hancock v. Eastern 
 River Lock Co., id. 303; Baker v. 
 Wentworth, 17 id. 344; Peables v. 
 
 Hannaford, id. 106 ; Parker v. Cutler 
 Milldam Co., 20 id. 353; Moulton v. 
 Libbey, 37 id. 472; State v. Skolfield, 
 63 id. 266; Yarmouth v. Skillings,45 id. 
 133 ; Penobscot Co. v. Treat, 16 id. 378 ; 
 Hancock Co. v. Eastern Co., id. 303; 
 20 id. 72; State v. Dodge, 81 id. 391; 
 Oliver v. Bailey, 85 id. 161; State v. 
 Beal, 75 id. 289. See Bristol v. Ousa- 
 tonic Water Co., 42 Conn. 403; State 
 v. Griffin, 89 Mo. 49; State v. Good- 
 win, 62 Vt. 191. 
 
 5 Shaw v. Crawford, 10 Johns. 236; 
 People v. Piatt, 17 id. 195; Hooker v. 
 Cummings, 20 id. 90, 96; People v. 
 Canal Appraisers, 33 N. Y. 461 ; Peo- 
 ple v. Doxtater, 75 Hun, 472; People 
 v. Reed, 47 Barb. 235. See in other 
 States, Hay den v. Noyes, 5 Conn. 397; 
 Hart v. Hill, 1 Whart. 132; Criswell 
 v. Clugh, 3 Watts, 330; Shrunk v. 
 Schuylkill Nav. Co., 14 S. & R. 71; 
 Budd v. Sip, 13 N. J. L. 348; Eubank 
 v. Pence, 5 Litt. (Ky.) 338. In New 
 Jersey and Vermont, the legislature 
 may provide for the protection of 
 fish in unnavigable waters. Weller v. 
 Snover, 42 N. J. L. 341; Haney v. 
 Compton, 36 id. 507. 
 
 6 See Benscoter v. Long, 157 Penn. 
 St. 208; West Point W. P. Co. v. State, 
 49 Neb. 218, 223. 
 
f 188.] EIPABIAN EIGHTS. 359 
 
 may authorize such a use of an unnavigable stream as will 
 wholly destroy a public fishery. 1 A statutory provision, that 
 passage-ways for fish shall be made in all dams upon a river, 
 is not necessarily repealed by a subsequent statute authorizing 
 dams without qualification. 2 In Woolever v. Stewart, 3 in Ohio, 
 a statute requiring the owner of a dam constructed across an 
 unnavigable stream, which had been maintained adversely for 
 twenty-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. 
 
 § 188. Same — Control hj towns. — By the common law, a 
 town has no right of property in the fisheries within its limits; 4 
 but the Crown or the State may grant to a town the right of 
 fishery within its borders. 5 By the local law of Massachusetts, 
 a town may appropriate the fish in contiguous tide waters, if 
 not appropriated by the legislature, 6 and in both Massachusetts 
 and Maine, towns have immemorially regulated the right of 
 fishing, for the common benefit, even in unnavigable streams. 7 
 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 cer- 
 tain penalty may be recovered by any one therefor in a qui 
 ■tarn action. 8 In Connecticut, towns may regulate the taking 
 
 iHowesw Grush, 131 Mass. 207. Marion, 11 Allen, 108; Eastham v. 
 
 2 Vinton v. Welsh, 9 Pick. 87. See Anderson, 119 Mass. 526; Watertown 
 
 State v. Gilmore, 141 Mo. 506. v. White, 13 Mass. 477; Taunton v. 
 
 a 36 Ohio St. 146. Caswell, 4 Pick. 275 ; Weston v. Samp- 
 
 4 Randolph v. Braintree, 4 Mass. 315 ; son, 8 Cush. 347 ; Procter v. Wells, 103 
 ■Coolidge v. Williams, 4 Mass. 140. Mass. 216; Swift v. Falmouth, 167 
 
 5 Brookhaven u Strong, 60 N. Y. 56; Mass. 115; Robinson v. Wareham, 2 
 Robins v. Ackerly, 91 N. Y 98; Paul Gray, 315; Cottrill v. Myriok, 12 
 ■y. Hazleton, 37 N. J. L. 106; Wooley Maine, 222; Peables v. Hannaford,18 
 v. Campbell, id. 163. id. 106; Fossett v. Bearce, 27 id. 117; 
 
 6 Com. v. Chapin, 5 Pick. 199; Dill 34 id. 575; Spear v. Robinson, 29 id. 
 v. Wareham, 7 Met. 438,446; Com. v. 531; State v. Gross, 89 id. 542. See 
 Hilton, 174 Mass. 29. State v. Smith, 61 Vt. 346; New Eng- 
 
 7 Ibid. ;. Nickerson v. Brackett, 10 land Trout Club v. Mather, 68 Vt. 338 ; 
 Mass. 212; Briggsw Murdock, 13 Pick. Kane v. State, 70 Md. 546. 
 
 305; Vinton v. Welsh, 9 Pick. 87; Wa- 8 Barden v. Crocker, 10 Pick. 383; 
 *ers v. Lilly, 4 Pick. 145; Allen v. Com. v. Chapin, 5. Pick. 199; Sutter 
 
360 
 
 THE LAW OE "WATEES. 
 
 [Oh. v. 
 
 of shell-fish; but a town by-law, prohibiting all persons, ex- 
 cept inhabitants of the town, from taking shell-fish in a navi- 
 gable river in the town, is void, being against common right. 1 
 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 
 required without compensation to remove a dam which ob- 
 structs the passage of fish. 2 
 
 § 189. Same — Statutory regulations. — 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, 3 or to exclude the citizens of other States from the en- 
 joyment of this privilege, 4 and may doubtless grant exclusive 
 
 v. Van Derveer, 47 Hun, 366. If two 
 or more take fish unlawfully, judg- 
 ment and satisfaction in debt qui 
 tarn against one is a bar to a like ac- 
 tion against the others. Boutelle v. 
 Nourse, 4 Mass. 431. 
 
 iHayden v. Noyes, 5 Conn. 391; 
 White v. Petty, 57 Conn. 576. In 
 Rowe v. Smith, 48 Ct. 444, 447, Par- 
 dee, J., said: "At the revolution the 
 title to the shores of the sea passed 
 from the corporate freemen of the 
 colony to the people of the State, and 
 in them remains the proprietorship 
 of fisheries, shell and floating, in its 
 navigable waters. Towns have no 
 ownership in or control over them. 
 The legislature alone can create an 
 individual proprietorship in them." 
 
 2 Woolever v. Stewart, 36 Ohio St. 
 146; State v. Glen, 7 Jones (N. C), 
 321; Cornelius v. Glen, id. 512; Bris- 
 tol v. Water Co., 42 Conn. 403; Boat- 
 wright v. Bookman, Rice (S. G), 447. 
 
 3 Lawton v. Steele, 152 IT. S. 133; 
 United States v. Alaska P. Ass'n, 79 
 Fed. Rep. 152; Com. v. Vincent, 108 
 Mass. 447 ; Com. v. Bailey, 13 Allen, 
 541; Burnham v. Webster, 5, Mass. 
 266; Nickerson v. Brackett, 10 id. 212; 
 Boutelle v. Nourse, 4 id. 431 ; Moulton 
 v. Libbey, 37 Maine, 472; Parker v. 
 Cutler Milldam Co., 20 id. 353; State 
 
 v. Murray, 84 id. 135; Donnell v. Joy, 
 85 id. 118; State v. Thompson, id. 189; 
 Perry v. Carleton, 91 id. 349; Lowndes 
 v. Dickenson, 34 Barb. 586; Tinicum 
 Fishing Co. v. Carter, 61 Penn. St. 21; 
 Kean v. Rice, 12 S. & R. 203; Com. v. 
 Lohman, 8 Kulp, 485; Bickel v. Polk, 
 5 Harr. (Del.) 325; Skinner v. Het- 
 trick, 73 N. C. 53; Hettrick'u Page, 
 82 id. 65; Gentile v. State, 29 Ind. 409; 
 State v. Boone, 30 id. 225; Stuttsman 
 v. State, 57 id. 119; Somers v. Com, 
 97 Va. 759; State v. Lewis, 134 Ind. 
 250; Lewis v. State, 148 id. 346; State 
 v. Theriault, 70 Vt. 617; Drew v. Hill- 
 iker, 56 id. 641 ; State v. Norton, 45 id. 
 258; State v. Hockett, id. 302! Budd 
 v. Sip, 13 N. J. L. 348; Shoemaker v. 
 State, Spencer (N. J.), 153; Yard v. 
 Carman, Pen. (N. J.) 943; Eastham -v. 
 Anderson, 119 Mass. 526. See Pidler 
 v. Berry, 59 L. T. N. S. 230; State v. 
 Insley, 64 Md. 28; Bradshaw v. Lank- 
 ford, 73 id. 428; 11 L. R A. 582 and 
 note: State v. Woodard, 123 N. O. 
 710; State v. Lewis, 73 Mo. App. 619. 
 4 Ibid. ; McCready v. Virginia, 94 
 U. S. 391 ; Smith v. Maryland, 18 How. 
 71; Corfield v. Coryell, 4 Wash. 371; 
 Bennett v. Boggs, Bald. 60; Martin 
 v. Waddell, 16 Peters, 367, 410, 423; 
 Dunham v. Lamphere, 3 Gray, 268; 
 ante, § 38; Moulton v. Libbey, 3T 
 
189.] 
 
 EIPAEIAN EIGHTS. 
 
 361 
 
 rights of fishing at particular places in them. 1 In those waters, 
 at least, which, whether fresh or salt, are not navigable from 
 the sea for any useful purpose, there is no restriction upon the 
 authority of a State to regulate rights of fishing,. or to make 
 any grants of exclusive rights which do not impair private 
 rights already vested. 2 Laws for the regulation of fishing are 
 public statutes, of which the courts take judicial notice. 3 A 
 statute is constitutional which provides that waste materials 
 injurious to fish shall not be cast into streams, 4 and the legis- 
 lature may prohibit, with penalties, the taking of fish with 
 nets or seines, or in the spawning season. 5 An individual may 
 plant oysters in navigable waters, and retain such exclusive 
 property therein, if in a clearly defined bed, as to entitle him 
 
 Maine, 472; Haney v. Compton, 36 
 N. J. L. 507; State v. Harrub) 95 Ala. 
 176; Gustafson v. State (Texas), 45 
 S. W. Rep. 717. As to the regulation 
 of selling, catching or importing cer- 
 tain kinds of fish, protected by the 
 State, see People v. Buffalo Fish Co., 
 62 N. Y. S. 543, 1143; McCandlish v. 
 Com., 76 Va. 1002. 
 
 1 Ibid. ; Com. v. Vincent, 108 Mass. 
 447; Burnham v. Webster, 5 Mass. 
 266; Hallock v. Dominy, 7 Hun, 52; 
 69 N.'Y. 238; Paul v. Hazleton, 37 
 N. J. L. 106, 107; Woolley v. Camp- 
 bell, id. 163; Gough v. Bell, 21 id. 157; 
 Bell v. Gough, 22 id. 441; Stevens v. 
 Paterson R. Co., 34 id. 532; Power v. 
 Tazewells, 25 Gratt. 786; Gulf Pond 
 Oyster Co. v. Baldwin, 42 Conn. 255; 
 Gallup v. Tracy, 25 Conn. 10. 
 
 2 Com. v. Vincent, 108 Mass. 447; 
 Com. v. Weatherhead, 110 Mass. 175; 
 Nickerson v. Brackett, 10 Mass. 212; 
 Cleaveland v. Norton, 6 Cush. 380; 
 Russell v. Russell, 15 Gray, 159; Com. 
 v. Tiffany, 119 Mass. 300; Com. v. 
 Perley, 130 Mass. 469; Same v. Gil- 
 bert, 160 Mass. 157; Howes v. Grush, 
 131 Mass. 207; Maney v. State, 6 Lea 
 (Tenn.), 218; People v. Bridges, 142 
 111. 30; Organ v. State, 56 Ark. 267 
 Bittenhaus v. Johnston, 92 Wis. 588 
 Com. v. Bender, 7 Penn. Co. Ct. 620 
 
 Steadman v. Robertson, 2 Pugs. & B. 
 (N. B.) 580; Swanwick v. Varney, 30 
 W. R. 79. 
 
 3 Burnham v. Webster, 5 Mass. 266'; 
 Com. v. McCurdy, id. 324. Such laws, 
 though applicable to the water and 
 not to the land, are not repugnant 
 to a constitutional provision that no 
 general law shall embrace any pro- 
 vision of a private, special, or local 
 character. Doughty v. Conover, 42 
 N. J. L. 193. See State v. Stunkle, 31 
 Kansas, 456. 
 
 4 Blydenburgh v. Miles, 39 Conm 
 484, 497; Oberich v. Gilman, 31 Wis. 
 495; Cartwright v. Canandaigua G. 
 L. Co., 32 Hun, 403. 
 
 5Com. v. Look, 108 Mass. 452; Same 
 v. Prescott, 153 Mass. 396; Smith v. 
 Look, 108 Mass. 139; Com. v. Vincent, 
 108 Mass. 441 ; Watertown v. Draper, 
 4 Pick. 165; Hyde v. Russell, 2 Cush. 
 251; Atwood u Caswell, 19 Pick. 493; 
 Cleaveland v. Norton, 6 Cush. 381; 
 Locke v. Motley, 2 Gray, 265; Hans- 
 comb v. Russell, 15 Gray, 162, 166; 
 Hathaway v. Thomas, 16 Gray, 290; 
 Lawton v. Steele, 119 N. Y. 226; Colon 
 v. Lisk, 153 N. Y. 188; Summers v. 
 People, 29 111. App. 170; Osborn v. 
 Charlevoix Circuit Judge, 114 Mich. 
 655; State v. Owen, 3 Ohio N. P. 181. 
 
362 
 
 THE LAW OF WATEKS. 
 
 [OH. Y. 
 
 to maintain a bill for an injunction 1 or an action of trespass 
 for their disturbance 2 or asportation, 3 and an indictment lies 
 against those who steal oysters so planted.* Private persons 
 may, it seems, acquire exclusive rights of fishery in navigable 
 waters by prescription as well as by grant from the State, 5 
 
 i Britton v. Hill, 27 N. J. Eq. 389. 
 
 2 People v. Decker, 10 N. Y. S. 686. 
 That the channel in a harbor may- 
 be straightened through an oyster 
 bed designated by the local author- 
 ities with the assent of the Secretary 
 of War and the harbor commission- 
 ers, see Lane v. Smith, 71 Conn. 65. 
 
 3 Colchester v. Brooke, 7 Q. B. 339; 
 Fleet v. Hegeman, 14 Wend. 42; 
 Decker v. Fisher, 4 Barb. 592; Lown- 
 des v. Dickerson, 34 Barb. 586 ; Brinck- 
 erhoff v. Starkins, 11 Barb. 248; Shep- 
 ard v. Leverson, 1 Penn. (N. J.) 391; 
 State v. Taylor, 27 N. J. L. 117; Haney 
 v. Compton, 36 id. 507; Metzger v. 
 Post, 44 id. 74; Britton v. Hill, 27 N. 
 J. Eq. 389; Arnold v. Mundy, 1 Hal. 
 1; Power v. Tazewells, 25 G-ratt. 786; 
 Phipps v. State, 22 Md. 380; McKen- 
 zie v. Hulet, N. C. Term Rep. 181. 
 See, as to construction of statutes re- 
 lating to oyster fisheries, Bigler v. 
 Morgan, 77 N. Y. 312; State v. Mister, 
 
 5 Md. 11; Willing v. Bozman, 52 Md. 
 44; Gallup v. Tracy, 25 Conn. 10; 
 Averill v. Hull, 37 Conn. 320; Bird- 
 sail v. Rose, 46 N. J. L. 361. 
 
 -"State v. Taylor, 27 N. J. L. 117; 
 State v. Taylor, 13 R. I. 541. 
 
 5 Oxford v. Richardson, 4 T. R. 437; 
 2 H. Bl. 182; Carter v. Murcot, 4 Burr. 
 2164; Ward v. Creswell, Willes, 265; 
 Fitzwalter'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, 
 Davies, 149; Lowe v. Govett, 3 B. & 
 Ad. 863; King v. Montague, 4 B. & C. 
 598; Somerset v. Fog well, 5 B. & C. 
 884; Blundell v. Catterall, 5 B. & Aid. 
 268; Malcomson v. O'Dea, 10 H. L. 
 Cas. 593 ; Carlisle v. Graham, L R. 4 
 Ex. 361; Murphy v. Ryan, Ir. R. 2 
 
 C. L. 143; Rogers v. Allen, 1 Camp. 
 309; Warrand v. Mackintosh, 15 App. 
 Cas. 52; Allen v. Donnelly, 5 Ir. C. L. 
 132; O'Neill v. Allen, 9 Ir. C. L. 132; 
 Whitstable Free Fishers v. Gann, 19 
 C. B. N. s. 803,810; Devonshire v. Hod- 
 nett, 1 Hud. & Br. (Ir.) 322; Hayes v. 
 Bridges, 1 Ridg. L. & S. 390; Brew?;. 
 Haren, Ir. R. 11 C. L. 199; Richard- 
 son v. Gray, 3 App. Cas. 1; Hale, De 
 Jure Maris, chs. 5, 6; Goodman v. 
 Saltash, 7 App. Cas. 633 (see § 31, 
 post); Northumberland v. Houghton, 
 L. R. 5 Ex. 127. Contra in Pennsyl- 
 vania, Tinicum 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 v. Strong, 60 N. Y. 56; 
 Robins v. Ackerly, 91 N. Y. 98; Ben- 
 nett v. Boggs, Bald. 60; Lay v. King, 
 5 Day, 72; Peck v. Lockwood, 5 Day, 
 22; Chalker v. Dickinson, 1 Conn. 
 382, 510; Church v. Meeker, 34 Conn. 
 421; State v. Sutton, 2 R I. 434; State 
 v. Medbury, 3 R. L 138; Yard v. Car- 
 man, 3 N. J. L 936; Paul v. Hazle- 
 ton, 37 id. 106; Wooley v. Campbell, 
 37 id. 163; Browne v. Kennedy, 5H. & 
 J. 203; Day v. Day, 4 Md. 262; Dela- 
 ware R. Co. v. Stump, 8 Gill & J. 479; 
 Chapman v. Hoskins, 2 Md. Ch. 485; 
 Parker v. Cutler Milldam Co., 20 
 Maine, 253; Moulton v. Libbey, 37 id. 
 472; Preble v. Brown, 47 id. 284; 
 Clement v. Burns, 43 N. H. 621; Wes- 
 ton v. Sampson, 8 Cush. 347; 2 Dane 
 Abr. 690; Com. v. Bailey, 13 Allen, 
 543; Lakeman v. Burnham, 7 Gray, 
 440; Proctor'D. Wells. 103 Mass. 216; 
 Com. v. Vincent, 108 Mass. 446; Hit- 
 tinger v. Eames, 121 Mass. 539, 546; 
 Paine v. Woods, 108 Mass. 169; Gough 
 
.§ 190.] 
 
 EIPAEIAN EIGHTS. 
 
 363 
 
 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 numerous 
 authorities, if made since Magna Charta. 1 In Eogers v. Allen, 2 
 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., say- 
 ing: " 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. Same — Oysters. — In Fleet v. Hegeman, 3 an action 
 of trespass was brought for taking away a quantity of oysters 
 which the plaintiff had gathered two years before, when they 
 
 v. Bell, 21 N. J. L. 156; Delaware 
 •Canal Co. v. Raritan R. Co., 16 N. J. 
 Eq. 321, 366; Collins v. Benbury, 3 
 Ired. 277; 5 Ired. 118; State v. Glen, 
 7 Jones, 821; Jackson v. Lewis, 
 Cheves (S. C), 259, 262; Woolrych on 
 Waters, 80. 
 
 1 Ibid. When ungranted lands in a 
 British province are in the Crown for 
 the benefit of the people, the exclu- 
 sive right to fish follows as an inci- 
 dent. Queen v. Robertson, 6 Can. 
 Sup. Ct 52. 
 
 2 1 Camp. 309, 313. As to setting 
 off a fishery in partition, see Howell 
 v. Robb, 3 Hal. Ch. 17. 
 
 3 14 Wend. 42. In an action of tres- 
 pass for taking oysters from the 
 plaintiff's oyster-bed, the defendant 
 cannot, under the general issue, show 
 that the locus in quo is a public river 
 from which the public have a right 
 to take oysters. Shreves v. Liveson, 
 .1 Penn. 247. See Mitchell v. Hart, 
 132 Mass. 297; Rollins v. Breed, 54 
 Hun, 485; People v. Hazen, 121 N. Y. 
 313; People v. Thompson, 30 Hun, 
 
 457; Post v. Kreischer, 32 Hun, 49; 
 Robertson v. Johnson, [1893] 1 Q. B. 
 129; Woodhouse v. Newry Nav. Co., 
 [1898] 1 Ir. 161. "Natural oyster- 
 bed " defined in State v. Willis, 104 
 N. C. 764. As to rights in oyster-beds 
 under State statutes, etc., see Hess v. 
 Muir, 65 Md. 586; State v. Insley, 64 
 Md. 28; Post v. Kreischer, 103 N. Y. 
 110; 14 Abb. N. Cas. 38; Housmanu 
 Weir, 15 id. 415; Mitchell v. Hart, 135 
 Mass. 297; Keene v. Gifford, 158 Mass. 
 120; Holt v. Follett, 65 Texas, 550 
 Rowe v. Luddington, 51 Conn. 184 
 Re Clinton Oyster Ground, 52 Conn. 
 5; Re Darien Oyster Ground, id. 61 
 Lewis v. Hartford D. Co., 68 Conn, 
 221; Birdsall v. Rose, 46 N. J. L 361 
 Johnson v. Loper, id. 321: Louisiana 
 Land & F. Co. v. Gasquet, 45 La. Ann. 
 759. See Re Bourne's Estate, 15 L. 
 R. Ir. 574. A State may exclude non- 
 residents from its oyster fisheries. 
 People v. Lowndes, 130 N. Y. 455. See 
 State v. Higgins, 51 S. C. 51. As to 
 tenants in common, see Mott v. Un- 
 derwood, 148 N. Y. 463. 
 
364 THE LAW OF WATEKS. [Ch. Y. 
 
 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 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 use. 
 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. It 
 is contended they fall within the rules of law applicable to 
 animals denominated force 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 use of 
 their natural liberty. The right of the plaintiff to the oysters 
 is within the reason of these principles. They have been rer 
 claimed, and are as entirely within his possession and control 
 as his swans or other water fowl that may float habitually in 
 the bay." 
 
 § 191. Ice — Right of harvesting. — The privilege of gath- 
 ering ice upon waters which are public property is a common 
 right. It is so held with respect to great ponds in Massachu- 
 setts and Maine. 1 The remedy for an unreasonable or excess- 
 ive use of the liberty of cutting ice on the great ponds of 
 these States is by indictment; 2 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 
 
 iHittinger v. Eames, 121 Mass. Steinkrauss, 131 Mass. 222; Tudor v. 
 
 539; Ano. Chart. 148; Cummings v. Cambridge Water Works, 1 Allen, 
 
 Barrett, 10 Cush. 186; West Roxbury 164; Brastow v. Rockport Ice Co., 77 
 
 v. Stoddard, 7 Allen, 158; Paine v. Maine, 100; McFadden uHaynes, etc. 
 
 Woods, 108 Mass. 160; Com. v. Vin- Co., 86 id. 319. 
 
 cent, 108 Mass. 441; Fay v. Salem 2 west Roxbury v. Stoddard, 1 
 
 Aqueduct, 111 Mass. 27; Gage v. Allen, 158. 
 
§ 191. J EIPABIAN EIGHTS. 365 
 
 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. 1 So, the owners of lands bordering 
 upon navigable streams, in those States where they are held 
 to be public property, 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. 2 It has been held 
 that an appropriation of the ice upon these streams is made 
 by surveying, marking and staking off the ice, if unappropri- 
 ated by others, and expending money to preserve it, and that 
 by these acts a sufficient possession is acquired to support an 
 action of trespass ; 3 but the authorities are not in harmony upon 
 this question. 4 Ice forming on a navigable fresh- water stream, 
 the bed of which belongs to the riparian proprietors, is con- 
 sidered part of the realty, as an accretion, and a person who 
 appropriates it for his own gain cannot justify the trespass on 
 the ground that its removal was advantageous to the public 
 easement of navigation. 5 The fact that the business of har- 
 vesting ice is an important industry does not justify the erec- 
 tion of a dam, without the authority of the legislature, 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. 6 It 
 has also been held that the fee of a street of an incorporated 
 village, extending along the Mississippi river, and being the 
 property of the corporation to its centre, the town authorities 
 
 iHittinger v. Eames, 121 Mass. 539; Co., 84 id. 155; 48 Alb. L. J. 504; 32 
 
 Eowell v. Doyle, 131 Mass. 474; Rock- Am. L. Reg. n. s. 166 and note. As to 
 
 port v. Webster, 174 Mass. 385. adverse possession by use in winter, 
 
 2 Wood v. Fowler, 26 Kansas, 682; see Gouverneur v. National Ice Co., 
 Hickey v. Hazard, 3 Mo. App. 480; 134 N. Y. 355; 57 Hun, 474; Hoag v. 
 Woodman v. Pitman, 79 Maine, 456; Place, 93 Mich. 450. 
 
 1 Am. State Rep. 352; Briggs v. s Washington Ice Co. v. Shortall, 
 
 Knickerbocker Ice Co., 32 N. Y. S. 101 I1L 46; 21 Am. L. Reg. n. s. 313 
 
 95. Upon the New' York statute, and notes. That a riparian owner 
 
 see Slingerland v. Int'l C. Co., 60 N. or one lawfully obtaining access to 
 
 Y. S. 12. a meandered non-navigable stream 
 
 3 ibid. may cut the ice forming thereon, see 
 
 4 See People's Ice Co. v. Davenport, Brown v. Cunningham, 82 Iowa, 512. 
 149 Mass. 322; Rowell v. Doyle, 131 As to when ice is personalty, see 13 
 Mass. 474; Woodman v. Pitman, 79 Ir. L. T. 549; 14 L. J. 635. 
 
 Maine, 456; Barrett v. Rockport Ice «Dyer v. Curtis, 72 Maine, 181. 
 
366 THE LAW OF "WATERS. [Ch. V. 
 
 may interpose to prevent a stranger removing ice formed upon 
 such street. 1 The pollution of a creek, impairing the quality 
 of the ice in the plaintiff's pond below, is ground for an in- 
 junction ; 2 and if a mill-owner unnecessarily and maliciously 
 draws off the water of the pond formed by his dam, and thus 
 destroys an ice-field, he is liable therefor to the owner of the 
 soil under the pond. 3 Ice forming upon a private fresh-water 
 stream or pond, or even a large lake to which the public- 
 have no right of access, 4 belongs exclusively to the riparian 
 proprietor, so far as formed over his land under water, and he 
 may prevent its removal by others or maintain trespass against 
 those who cut it without license. 8 The owner of an artificial 
 mill-pond, who is entitled to the water of the pond, is also 
 entitled, as against the riparian owners, to have the ice which 
 forms thereon remain, if its removal will appreciably diminish 
 the head of water at his dam; 6 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. 7 In Massachusetts, the owner of a mill- 
 dam, by proceedings under the mill act, acquires merely a 
 
 1 Brooklyn v. Smith, 104 111. 429. Park v. Washington Ice Co., 117 111. 
 
 2 Finger v. Kingston, 9 N. Y. S. 175 ; 233. 
 
 Bradley v. Warner, 21 R. I. 37; Ols- «Mill River Woollen Manuf. Ck>.v. 
 
 son v. Topeka, 42 Kansas, 709. Smith, 34 Conn. 462; Seeley v. Brush, 
 
 3 Stevens v. Kelley, 78 Maine, 445. 35 Conn. 419; Cummings v. Barrett, 
 
 4 McDonald v. Lake Simcoe Ice 10 Cush. 186; Paine v. Woods, 108 
 Co., 26 Ont. App. 411. Mass. 160, 173; Myer v. Whitaker, 
 
 5 Mill Riyer Manuf. Co. v. Smith, 55 How. Pr. 376; Marshall v. Peters, 
 34 Conn. 462; Edgerton v. Huff, 26 12 How. Pr. 218; Hazelton v. Web- 
 Ind. 35; State v. Pottmeyer, 30 Ind. ster, 46 N. Y. S. 922; Julien v. Wood- 
 287; 33 Ind. 402; Bates v. State, 31 small, 82 Ind. 568; infra, § 216. 
 
 Ind. 72; Lorman v. Benson, 8 Mich. 'Myer v. Whitaker, 5 Abb. N. C. 
 
 18; Oliver v. Olmstead, 112 Mich. 483; 173. The case was criticised in a 
 
 Eidemiller Ice Co. v. Guthrie, 42 Neb. later decision in New York. Dodge 
 
 238. See 30 Cent. L. J. 6; 3 Alb. L. J. v. Berr, 26 Hun, 246. See Reysen v. 
 
 386; 48 id. 504; 51 L. T. 23. A lessee Roate, 92 Wis. 543. As to the right 
 
 of riparian lands has the same rights, to take ice passing as an easement 
 
 Marsh v. McNider, 88 Iowa, 390. annexed to the lot conveyed, see 
 
 When riparian estates are taken by Huntington v. Asher, 96 N. Y. 604; 
 
 right of eminent domain, the value 26 Hun, 496; Knickerbocker Ice Co. 
 
 of ice privileges connected therewith v. Shultz, 41 Hun, 458; Hinckel v. 
 
 may form an element of the dam- Stevens, 54 N. Y. S. 457; Allen v. 
 
 ages. Ham v. Salem, 100 Mass. 350; Weber, 80 Wis. 531; Myers v. Bolton, 
 
 Paine v. Woods, 108 Mass. 173; Bos- 89 Hun, 343. 
 worth v. Norton, 14 R L 521 ; Hyde 
 
§ 191.] BIPAEIAN EIGHTS. 36T 
 
 right to raise the water by his dam, and 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. 1 
 When the State appropriates the fee of land for the construc- 
 tion of canals, the former owner has no right to take ice 
 therefrom; 2 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. 3 So, a railroad company, by the acquisi- 
 tion of an easement for the construction of its road across 
 another's land, gains no right to ice forming within the bound- 
 aries of its right of way. 4 In Indiana and Illinois, ice forming 
 upon private waters is held to be real estate. 5 In Michigan it 
 is held that, as the ephemeral character of ice renders it in- 
 capable of any permanent or beneficial use as part of the soil, 
 it is unlike crops or emblements, and that any sale of ice act- 
 ually formed is a sale of personalty. 6 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. 7 If wantonly destroyed while in the process 
 of formation, the value of the ice that would probably have 
 been saved for market, less the expense of storing it, is the 
 measure of damages. 8 An unexecuted license to take ice from 
 a pond passes no title to the ice. 9 
 
 ^ummings v. Barrett, 10 Cush. product, an ice company is not a. 
 
 186; Paine v. Woods, 108 Mass. 173. " manufacturing " company. People 
 
 2 Indianapolis "Water Works Co. v. v. Knickerbocker Ioe Co., 99 N. Y. 
 Burkhart, 41 Ind. 364; Cromie v. 181; 32 Hun, 475; Hittinger v. West- 
 Board of Trustees, 71 Ind. 208. See ford, 135 Mass. 258. Contra, Att. Gen. 
 Card v. McCaleb, 69 111. 314. v. Lorman, 59 Mich. 157 (Champlin, X, 
 
 3 Edgerton v. Huff, 26 Ind. 35; doubting). 
 
 Brookville Hydraulic Co. v. Butler, 7 Washington Ice Co. v. Shortall, 
 
 91 Ind. 134. 101 111. 46; Stauffer v. Miller Soap 
 
 4 Julien v. Woodsmall, 82 Ind. 568. Co., 151 Penn. St. 330; Farr v. Grif- 
 
 5 State v. Pottmeyer, 33 Ind. 402; fith, 9 Utah, 416. 
 
 30 Ind. 287; Washington Ice Co. v. 8 People's Ice Co. v. The Excelsior, 
 
 Shortall, 101 111. 46. 44 Mich. 229; 38 Am. Rep. 255, note; 
 
 6 Higgins v. Kustener, 41 Mich. 318; Handforth v. Maynard, 154 Mass. 414. 
 
 Bigelow v. Shaw, 65 Mich. 341. Stored 9 Balcom v. McQuesten, 65 N. H. 81. 
 
 ice may pass as a fixture upon a sale See Richards v. Gauffret, 145 Mass.. 
 
 of the ice-house. Hill v. Mundy, 89 486. 
 Ey. 36. As ice is not a manufactured 
 
368 THE LAW OF WATERS. [Ch. V. 
 
 § 192. Wrecks — Waifs. — By the common law, as stated by 
 Lord Mansfield, and approved by Chancellor Kent, 1 vessels or 
 goods cast 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 admiralty for the benefit of the owners, who might re- 
 claim them, though no living creature escaped from the ship- 
 wrecked vessel. The owner of land on which wreck is cast is 
 under no duty to preserve it for the owner. 2 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. 3 If the property isin 
 danger of being swept away by the sea, any person may enter 
 upon the land without license for the purpose of saving it ; 4 
 and if there is a right to take wreck, there is a right by virtue 
 of necessity to enter on land for that purpose. 5 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 maintain an action of trover for the con- 
 version of his property. 6 
 
 In the case of waifs and drift-wood floating down private 
 
 1 Hamilton v. Davis, 2 Burr. 2732; Proctor v. Adams, 113 Mass. 377; 
 2 Kent Com. 322, 359; 3 Dane Abr. Forster v. Juniata Bridge Co., 16 
 134, 144; Proctor v. Adams, 113 Mass. Penn. St. 393; Woodward v. Carl, 3 
 376; Wonson v. Say ward, 13 Pick. Luz. L. Reg. (Penn.) 227. 
 
 402 ; The Augusta, 1 Hagg. Adm. 16, 3 Dun wick v. Sterry, 1 B. & Ad. 831 ; 
 
 18, 20; Rex v. Property Derelict, 1 Barkers. Bates, 13 Pick. 255; Proctor 
 
 Hagg. Adm. 383; Rex v. Forty-nine v. Adams, 113 Mass. 376. Goods found 
 
 Casks of Brandy, 3 Hagg. Adm. 270; derelict at sea, and brought into port. 
 
 Rex v. Two Casks of Tallow, 3 Hagg. are not the property of the finders, 
 
 Adm. 294; The Pauline, 2 Rob. Adm. who are, however, entitled to salvage. 
 
 858 ; Bracton, f ol. 120, § 5 ; "Woodward Whitwell v. Wells, 24 Pick. 30 ; Ellery 
 
 v. Fox, 2 Vent. 188; Sir Henry Con- v. Cunningham, 1 Met. 112. 
 
 stable's Case, 5 Co. 108; Talbot v. 4 Proctor v. Adams, 113 Mass. 377; 
 
 Lewis, 6 C. & P. 606: Dickens v. 21 Hen. VII. 27, 28, pi. 5; Bro. Abr. 
 
 Shaw, reported in Hall on the Sea- Trespass, 213; Vin. Abr. Trespass, H. a. 
 
 shore, App. 45; Alcock v. Cooke, 5 4, pi. 24; K. a. pi. 3; Hetfield v. Baum, 
 
 Bing. 340; Stackpoole v. Queen, Ir. 13 Ired. 394, 399. 
 
 R. 9 Eq. 119; Clark v. Chamberlain, <* Anon., 6 Mod. 149; Hetfield v. 
 
 2 M. & W. 78; Legge v. Boyd, 1 C. B. Baum, 13 Ired. 394. 
 
 92; Palmer v. Rouse, 3 H. & N. 505; 6 Ibid.; Forster v. Juniata Bridge 
 
 1 Black. Com. 291; 2 id. 14; 3 id. 106; Co., 16 Penn. St. 393; Ettera Edwards, 
 
 4 id. 235; Hale, De Jure Maris, ch. 7. 4 Watts, 63. 
 
 2 Sutton v. Buck, 2 Taunt. 302, 312; 
 
§ 193.] EIPAEIAN EIGHTS. 369 
 
 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. 1 As against the owner, such propri- 
 etors are entitled to just compensation, in the nature of, sal- 
 vage, for the labor and expense of saving the property ; 2 and, 
 if they see fit to remove it from their premises, they are bound 
 to do so with as little injury as possible. 3 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, and is not at fault, he is not liable 
 for such damages and expenses. 4 The lessee of a farm adjoin- 
 ing a river is entitled to drift-wood which he takes therefrom 
 as against his lessor, unless otherwise provided in the lease. 5 
 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. 6 
 
 § 193. Ferries. — The privilege of maintaining a ferry has 
 been named among r-iparian rights. 7 But the right to main- 
 tain a ferry, which, in its very nature, implies the taking of 
 tolls, 8 is a franchise, and a fixed toll cannot be demanded for 
 
 1 Barrett v. Bangor, VO Maine, 335. 21; Wilson v. Wentworth, 25 N. H. 
 In Rogers u.Judd, 5 Vt. 223, a riparian 245; Scott v. Willston, 3 N. H. 321; 
 owner was held to have no property Ethelridge v. Jones, 8 Ire.d. 100; Col- 
 in timber floating over his land, but lard v. Eddy, 17 Mo. 354 
 
 to have an exclusive right to convert 3 Berry v. Carle, 3 Maine, 269. 
 
 to his own use such timber, moving 4 Sheldon v. Sherman, 42 N. Y. 484; 
 
 in an eddy over his land, unless re- Chase v. Corcoran, 106 Mass. 286; 
 
 claimed by the owner in a reason- Ky. Lumber Co. v. Miracle, 101 Ky. 
 
 able time. See Watson v. Knowles, 364; supra, § 102. 
 
 13 R. L 639. 5 Dyer v. Haley, 29 Maine, 277. 
 
 2 Tome v. Dubois, 6 Wall. 548; e Taylor v. Fickas, 64 Ind. 167. 
 Winslow v. Walker, 1 Hay. (N. C.) 193. 'Bowman v. Wathen, 2 McLean, 
 See Tome v. Four Cribs of Lumber, 376; Bell v. Gough, 23 N. J. L. 624, 
 Taney,533; Gentry v. Madden, 3 Ark. 676; Golconda v. Field, 108 Ind. 419; 
 127. As to rights under statutes for Hanger v. Little Rock Ry. Co., 52 
 saving waifs, see State v. Adams, 16 Ark. 61. 
 
 Maine, 67; Flanders v. Locke, 53 Cal. 8 Gray, C. J., in Att. Gen. v. Boston, 
 24 
 
370 
 
 THE LAW OF "WATERS. 
 
 [CH. Y- 
 
 the transportation of passengers or merchandise by this means 
 without the consent of the legislature. 1 It is not essential to- 
 the validity of the franchise that the owner of the ferry should 
 have ,the property in the soil on either side of the river. 2 Pref- 
 erence is frequently given by statute, in granting this privi- 
 lege, to the owners of the banks of waters across which the 
 ferry is to, be maintained, upon their making application and 
 complying with the prescribed statutory conditions. 3 But the 
 legislature may repeal at pleasure the statute giving this pref- 
 erence ; 4 and if full jurisdiction is given by a constitution to 
 boards of police or supervisors over roads, ferries and bridges, 
 it is to be exercised in conformity with the legislative enact- 
 ments, and such boards canuot create an indefeasible right of 
 property in the ferry franchises granted by them. 5 When & 
 ferry franchise is granted to one who is not a riparian propri- 
 etor, compensation must be provided if the public good re- 
 quires the taking of the land upon the banks for the purposes- 
 of the ferry, as for landings. 6 A ferry franchise may, however, 
 
 123 Mass. 460, 468, citing Hale, De 
 Jure Maris, oh. 2; Hargrave's Law 
 Tracts, 6; Woolrych on "Ways, 217; 
 North and South Shields Ferry v. 
 Barker, 2 Exch. 136, 149; 2 Dane Abr. 
 683, 684; Fay, Petitioner, 15 Pick. 
 243, 249, 250; Newburgh Turnpike v. 
 Miller, 5 Johns. Ch. 101, 112; Aiken 
 v. Western Railroad, 20 N. Y. 370, 
 379, 386. A ferry is a public high- 
 way. Londonderry Bridge Com'rs 
 v. Keever, 27 L. R. Ir. 86, 464. 
 
 Unfe, § 142; 1 Black. Com. 37, 38; 
 Mills v. St. Clair Co., 8 How. 581; 
 Conway v. Taylor, 1 Black, 603; Mills 
 v. Com'rs, 3 Scam. 53; Trustees v. 
 Tatman, 13 111. 27; Hudson v. Cuero 
 Land Co., 47 Texas, 58; Williams v. 
 Davidson, 43 id. 1 ; Nashville Bridge 
 Co. v. Shelby, 10 Yerger, 280; Mc- 
 Roberts v. Washburne, 10 Minn. 23. 
 
 2 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. 
 
 3 Mullis v. Cavins, 5 Blackf. 77; 
 Gant v. Drew, 1 Oregon, 35; Mills v. 
 
 Learn, 2 id. 215; Knott v. Frusb, id. 
 237; Beckley v. Learn, 3 Oregon, 544,. 
 570; Knott v. Jefferson Street Ferry 
 Co., 9 id. 530; Dunlap v. Yoakum, 18 
 Texas, 582; Haynes v. Wells, 26 Ark. 
 464; Lindsay v. Lindley, 20 Ark. 573 - r 
 Willard v. Forsythe, 2 Mich. N. P. 
 190. 
 
 4 Wheeling & B. Bridge Co. v. 
 Wheeling Bridge Co., 138 TJ. S. 287? 
 34 W. Va. 155; Fortain v. Smith, 114 
 Cal. 494; Hudson v. Cuero Land Co.,. 
 47 Texas, 58; Bass v. Fontleroy, 11 
 id. 698. 
 
 6 Seal v. Donnelly, 60 Miss. 658 r 
 Sullivan v. Supervisors, 58 Miss. 790? 
 Paxton v. Barrow, 59 Miss. 531; 
 Mont joy v. Pillow, 64 Miss. 705; Du- 
 four v. Stacey, 90 Ky. 288; Mason u_ 
 Harper's Ferry Bridge Co., 28 W. 
 Va. 639. 
 
 6 Ibid.; Peter v. Kendal, 6 B. & C. 
 703; Doty v. Gorham, 5 Pick. 487; 
 Prosser v. Wapello County, 18 Iowa,. 
 327: Averett v. Brady, 20 Ga. 523: 
 New York v. New York Ferry Co., 40> 
 N. Y. Sup. Ct. 232, 245; Thomas v. 
 
§ 193.] 
 
 RIPARIAN RIGHTS. 
 
 371 
 
 be acquired by prescription, 1 and so, it would seem, may the 
 right to use the river banks as a landing • 2 but the opening of 
 a lane to a ferry, and public user thereof for twenty-one years 
 
 (N. G), 277; Smith v. Harkins, 3 Ired. 
 Eq. 613; Long v. Merrill, N. C. Term 
 R. 112; Hazelip v. Lindsey, 93 Ky. 14; 
 Davis v. Connolly (Ky.), 46 S. W. Rep. 
 679. But the owner of a public ferry 
 cannot maintain an action against 
 those who use their own boats merely 
 for their own passage, or the trans- 
 portation of their own property, or 
 that of their customers without 
 charging a fee. Trent v. Carterville 
 Bridge Co., 11 Leigh, 521; Greer v. 
 Haugabrook, 47 Ga. 282; Hanson v. 
 Webb, 3 Cal. 237; California Tel. Co. 
 v. Alta Tel. Co., 22 Cal. 423; Hunter 
 v. Moore, 44 Ark. 184; Enfield Toll 
 Bridge Co. v. Hartford R. Co., 17 
 Conn. 64. If a statute, conferring an 
 exclusive right of ferry, provides a 
 penalty for its violation, no action 
 lies at common law for a disturbance 
 of the right, but the remedy is by an 
 action for the penalty. Almy v. Har- 
 ris, 5 Johns. 175. See Rohn v. Harris, 
 130 111. 525; 22 N. E. Rep. 587; Hickley 
 v. Gildersleeve, 10 C. P. (Can.) 460. 
 The keeper of a public ferry is a com- 
 mon carrier, and is as much bound 
 to furnish a safe landing as to furnish 
 a safe vessel. Walker v. Jackson, 11 
 M. & W. 161; Willoughby v. Hor- 
 ridge, 12 C. B..742, 749; Le Barron v. 
 East Boston Ferry Co., 11 Allen, 312; 
 White v. Winnisimmet Co,, 7 Cush. 
 155; Wyckofi v. Queens County 
 Ferry Co., 52 N. Y. 32; Clark v. Union 
 Ferry Co., 35 id. 485; Hazman v. Ho- 
 boken Land Co., 50 id. 53; Dudley v. 
 Camden Ferry Co., 45 N. J. L. 368; 
 Evans v. Goodrich, 46 Minn. 388; 
 Fisher V. Clisbee, 12 I1L 344; Yerkes 
 v. Sabin, 97 Ind. 141; Harvey v. Rose, 
 26 Ark. 3; Whitmore v. Bowman, 4 
 G. Greene, 148; Dudley v. Camden R. 
 Co., 42 N. J. L. 25 ; Blakeley v. Le Due, 
 IS Minn. 187; Wilson v. Sulkin, 6 
 Jones (N. C), 375; Babcock v. Herbert, 
 
 St. Louis R. Co., 37 Fed. Rep. 839; 
 Pittsburgh R. Co. v. Jones, 111 Penn. 
 St. 204; Turner v. People's Ferry Co., 
 21 Fed. Rep. 90; see Magoric v. Little, 
 25 id. 627. 
 
 1 Supervisors v. McFadden, 57 Miss. 
 618; Williams v. Turner, 7 Ga. 348; 
 Laredo v. Martin, 52 Texas, 548; Bow- 
 man v. Wathen, 2 McLean, 376. The 
 limits of the ferry, when ascertained 
 and fixed by user or otherwise, are 
 confined to one line of travel. New- 
 ton v. Cubitt, 12 C. B. n. s. 32; 13 id. 
 864; Yard v. Ford, 2 Wms. Saund. 
 174, n (a); Price v. Knott, 8 Oregon, 
 438. See next note. The right may 
 be granted to operate the ferry in 
 one direction only across the stream 
 (Power v. Athens, 99 N. Y. 592); or 
 from one side of a river. Power v. 
 Athens, 99 N. Y. 592. A corporation 
 may become a joint owner of a ferry. 
 Hackett v. Multnomah Ry. Co., 12 
 Oregon, 124. See Montgomery v. 
 Savage, 11 id. 344; Hoggard v. Monroe, 
 51 La. Ann. 683. 
 
 2 Bird v. Smith, 8 Watts, 434; ante, 
 § 105. The owner of an ancient ferry, 
 or of one that is authorized by the 
 legislature, may maintain an action 
 on the case for a nuisance, or a bill in 
 equity for an injunction, against one 
 who, without public authority, sets 
 up a ferry near by and injures his 
 business. Letton v. Goodden, L. R. 
 2 Eq. 133; 3 Black. Com. 219; Vin. 
 Abr. Nuisance, G. ; Huzzey v. Field, 
 2 C. M. & R. 432; Ipswich v. Browne, 
 Saville, 14; Jellett v. Anderson, 27 
 Grant, Ch. (Can.) 411 ; 7 Ontario App. 
 341; 37 Ch. (Can.) 420; Midland Ter- 
 minal & Ferry Co. v. Wilson, 28 N. J. 
 Eq. 537; East Hartford v. Hartford 
 Bridge Co., 10 How. 541; Stark v. Mc- 
 Gowen, 1 Nott & McCord, 387; Long 
 v. Beard, 3 Murph. (N. C.) 57; 2 id. 337; 
 Taylor v. Wilmington R. Co., 4 Jones 
 
372 
 
 THE LAW OF WATERS. 
 
 [OH. Y. 
 
 in connection with the ferry, do not establish a public right in 
 the lane by prescription. 1 
 
 § 194. Boundaries upon waters. — A stream of water is a 
 safe boundary of real estate ; 2 and when called for as a bound- 
 ary in the description of a deed, will control courses, distances, 
 the designated quantity, 3 or the corners, monuments, and 
 
 3 Ala. 392; McLean v. Burbank, 11 
 Minn. 277; Wilson v. Hamilton, 4 
 Ohio St. 722; Richards v. Fuqua, 28 
 Miss. 792; Powell v. Mills, 37 id. 691; 
 May v. Hanson, 5 Cal. 360; Johnson 
 v. Erskine, 9 Texas, 1; Albright v. 
 Penn, 14 id. 290. But a mill-owner 
 who keeps a ferry merely for his own 
 use and the convenience of his cus- 
 tomers, and who charges no ferriage, 
 is only bound to ordinary diligence. 
 Self v. Dunn, 42 Ga. 528. A ferry 
 franchise may be sold, transferred by 
 deed, or inherited. Lewis v. Gaines- 
 ville, 7 Ala. 85; Gunterman v. People, 
 138 111. 518; Greer v. Haugabrook, 47 
 " Ga. 282. See The Maverick, 1 Sprague, 
 23. A lease of a ferry (in N. B.) in 
 May " for the season of 1855 " is not 
 a lease for a year, but terminates 
 either at the closing of the river by 
 ice or on December 31, 1855. Frazer 
 v. Drynan, 4 Allen (N. B.), 74 But it 
 cannot everywhere be acquired by 
 prescription. Bird v. Smith, 8 Watts, 
 434; Sullivan v. Supervisors, 58 Miss. 
 790. See Scott v. Wilson (Ky.), 15 S. 
 W. Rep. 303. Contra, Davis v. Police 
 Jurj", 19 La. 533. Being an incorpo- 
 real hereditament, it can only be 
 transferred by deed. Mississippi 
 River Bridge Co. v. Lonergan, 91 111. 
 508. See Maybury v. Louisville & J. 
 Ferry Co., 60 Fed. Rep. 645; Brownell 
 v. Old Colony R. Co., 164 Mass. 29. It 
 may be appurtenant to land, or in 
 gross. In the former case, a convey- 
 ance of the land " with the appurte- 
 nances" passes the ferry. Reg. v. 
 Great Northern Ry. Co., 14 Q. B. 25; 
 State v. Willis, Busb. (N. C.) 223; 
 Biggs v. Ferrall, 12 Ired. 1. In the 
 
 latter case it does not. Hitchcock v. 
 Swift Island Manuf. Co., 72 N. C. 410. 
 The forfeiture of a turnpike fran- 
 chise, to which a ferry is an incident, 
 forfeits the privilege of maintaining 
 a ferry. Darnell v. State, 48 Ark 321. 
 See Potts v. Park (Ky.), 49 S. W. Rep. 
 1058. The ferry franchise may be 
 lost by nonuser. Greer v. Hauga- 
 brook, 47 Ga. 282; Smith v. Harkins, 
 3 Ired. Eq. 613; Jeffersonville v. The 
 John Shallcross, 35 Ind. 19; Brearly 
 v. Norris, 23 Ark. 514; Com. v. Hul- 
 ings, 129 Penn. St. 317. If the govern- 
 ment grants a right of ferry to A, 
 and A. leases it by unsealed writing 
 to B., the right to sue is in A. only. 
 Higgins v. Hogan, 7 Q. B. (Can.) 401. 
 A ferry is not a "street " or "public 
 road " or " bridge." Cooper v. Athens, 
 53 Ga. 638; Supervisors v. McFadden, 
 57 Miss. 618; Chick v. Newberry 
 County, 27 S. C. 419. But may be 
 " land " within the meaning of a stat- 
 ute. Queen v. Cambrian Ry. Co., L 
 R. 6 Q. B. 422; L. R 4 Q. B. 320. 
 
 1 Root v. Com., 98 Penn. St. 170. 
 
 2 Robeson v. Hornbaker, 2 Green 
 Ch. 60, 64; Hartshorn v. Wright, 1 
 Peters, C. C. 64; Beahan v. Stapleton, 
 13 Gray, 427; Davis v. Rainsford, 17 
 Mass. 207. That land bounded by 
 water on one or more sides is "in- 
 closed land" within a statute, see 
 Daly v. State (Tex. Cr. App.), 48 S. W. 
 Rep. 515. 
 
 3 Ibid.; Ayers v. Watson, 113 U. S. 
 594; Newsom v. Pryor, 7 Wheat. 7; 
 Preston v. Bowman, 6 Wheat. 582; 
 Jackson v. Camp, % Co wen, 605; 8 id. 
 30; Greenleaf v. Brooklyn Ry. Co., 3 
 N. Y. Sup. 222; Rathhun v. Geer, 64 
 
§ 194.] 
 
 BOUNDARIES. 
 
 373 
 
 meander lines of a survey. 1 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 dis- 
 tances crossing the river will be disregarded so far as they are 
 interfered with by the river. 2 The side lines of land which is 
 bounded by a river are to be continued to the stream in a 
 straight line, if not otherwise defined in the deed, 3 and the 
 specified length of such lines may be disregarded. 4 When a 
 
 Conn. 421 ; Olin v. Henderson (Mich.), 
 79 N. W. Rep. 178; Turnage v. Ken- 
 ton, 102 Tenn. 320; Waverly Water 
 Front Co. v. White, 97 Va. 176; 
 Graves v. Fisher, 5 Maine, 69; Bow- 
 man v. Farmer, 8 N. H. 402; Com. v. 
 Young Men's Christian Ass'n, 169 
 Penn. St. 24; Lampman v. Van Al- 
 styne, 94 Wis. 417; Martin v, Carlin, 
 19 Wis. 454; Davis v. Du Pont, 30 Wis. 
 170; Borkenhagen v. Vianden, 82 
 Wis. 206; Slade v. Neal, 2 Dev. & Bat. 
 61; President v. Clark, 9 Ired. 58; 
 Campbell v. Branch, 4 Jones, 313; 
 Bishop v. Morgan, 82 111. 352; Haugh- 
 ton v. Roscoe, 3 Hawks, 21; Harra- 
 mond v. McGlaughan, Taylor (N. C), 
 196; Spring v. Hewston, 52 Cal. 442; 
 Hostetter v. Los Angeles T. Ry. Co., 
 108 CaL 38; Lewis v. Lewis, 4 Ore- 
 gon, 177; Disney v. Coal Creek Min- 
 ing Co., 11 Lea (Tenn.), 607; Bailey v. 
 McConnell (Ky.), 14 S. W. Rep. 337; 
 Hunter v. Witt (Ky.), 50 S. W. Rep. 
 985; Shepherd v. Nave, 125 Ind. 226; 
 Horton v. Chevington Coal Co., 2 
 Penny. (Pa.) 25; Myers v. St. Louis, 
 82 Mo. 367; New York & T. Land Co. 
 v. Thomson, 83 Texas, 169; Brown v. 
 Milliman (119 Mich.), 78 N. W. Rep. 
 785; La Branch v. Montegut, 47 La. 
 Ann. 674. Contra, when land is sold 
 definitely by the acre or foot. Rich- 
 wine v. Jones, 140 Ind. 289. See 
 Home v. Smith, 159 U. S. 40; Schlos- 
 ser v. Cruickshank, 96 Iowa, 414. 
 Where the description, in a grant of 
 land, was " thence along shore to a 
 point due north of a small pond six 
 chains from an old fort,'' and the 
 
 pond, when the distance was meas- 
 ured shortly before trial, was, at its 
 easterly end, nine, and at its west- 
 erly end, eleven chains from the fort, 
 it was held that the actual position 
 of the pond, being a natural monu- 
 ment, should control and correct the 
 description in the deed. Archibald 
 v. Morrison, 1 Nova Scotia, 272. 
 
 i Ulman v. Clark, 100 Fed. Rep. 180; 
 Shelton v. Maupin, 16 Mo. 124; Doe 
 v. Hildreth, 2 Ind. 274, 284; Single- 
 ton v. Whiteside, 5 Yerger, 18; Meigs, 
 207; Overton v. Cannon, 2 Humph. 
 264; Simmons v. Baker, Cooke (Tenn.), 
 146; Verplank v. Hall, 27 Mich. 79; 
 Galveston Co. v. Tankersley, 39 
 Texas, 651; Sphung v. Moore, 120 
 Ind. 352. 
 
 2 Ibid. ; Phillips v. Ayres, 45 Texas, 
 601 ; Goldsmith v. White, 68 Ga. 334. 
 See Smith v. Dean, 15 Neb. 432; Blei- 
 dorn v. Pilot Mountain, etc. Co., 89 
 Tenn. 166, 204. 
 
 3 Howard v. Moale, 2 H. & Johns. 
 249; Buckley v. Gilmore, 12 Ohio, 63; 
 Hastings V- Stevenson, 2 Ohio, 8; 
 Patterson v. Trask, 30 Maine, 28 ; 
 Klingensmith v. Ground, 5 Watts, 
 458; Buckner v. Anderson, 111 N. C. 
 572; Beardsley v. Crane, 52 Minn. 
 537; Swisher v. Grumbles, 18 Texas, 
 164; Wood v. Ramsey, 71 Md. 9; 17 
 Atl. Rep. 563; Harris v. Oakley, 7 N. 
 Y. S. 232 ; Hamlin v. Pairpoint Manuf . 
 Co., 141 Mass. 51; Menasha Wooden- 
 ware Co. v. Dawson, 70 Wis. 600. 
 See Bellows v. Jewell, 60 N. H. 420; 
 Foster v. Foss, 77 Maine, 279. 
 
 4 Graves v. Fisher, 5 Maine, 69; Pol- 
 
374 
 
 THE LAW OF WATERS. 
 
 [CH. V. 
 
 deed, or survey 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 boundary of such tract, 1 and all the riparian rights inci- 
 dent to the ownership of the shore or bank pass to the grantee, 
 unless clearly reserved. 2 "Where land conveyed was described 
 in the deed as extending to a fresh stream and thence along 
 the bank, reserving the right to use the river in front for a 
 specified time, the grantee's riparian rights extend to the mid- 
 dle of the stream, and he may maintain ejectment against one 
 who, without right, does acts which exclude the plaintiff from 
 the use of the stream. 3 In case of ambiguity, parol evidence 
 is admissible to determine the identical boundary referred to 
 in a conveyance, 4 or it may be ascertained from other parts of 
 
 look v. Harris, 1 Hay. (N. C.) 252; Car- 
 raway v. Witherington, N. C. Term 
 Rep. 275; Sanborn v. Gunter, 84 
 Texas, 273. Where a grant called 
 for a certain number of poles, " to a 
 stake, crossing the river," it was held 
 that the line must cross the river, 
 though the distance terminated be- 
 fore reaching it. Whiteside v. Sin- 
 gleton, Meigs (Tenn.), 207. 
 
 1 County of St. Clair v. Lovingston, 
 23 Wall. 46, 63; Paine v. Consumers' 
 Co., 71 Fed. Rep. 626; Churchill v. 
 Grundy, 5 Dana, 100; Trustees v. 
 Wagnon, 1 A. K. Marsh. 243; Bruce 
 v. Taylor, 2 J. J. Marsh. 160; Reid v. 
 Langford, 3 id. 420; Walker v. Orr, 
 Hughes (Ky.), 38; Smith v. Evans, 
 id. 169; Bradford v. McClelland, id. 
 195 ; Cockrell v. McQuinn, 4 Mon. 62; 
 Bruce r. Morgan, 1 B. Mon. 26; French 
 v. Bankhead, 11 Gratt. 136, 157; Brown 
 v. Huger, 21 How. 305; Posey v. 
 James, 7 Lea (Tenn.), 98; Williams- 
 burg Boom Co. v. Smith, 84 Ky. 372. 
 
 2 Ibid.; Erskine v. Moulton, 84 
 Maine, 243; Richardson v. Prentiss, 
 48 Mich. 88. 
 
 3 Ibid. ; Cole v. Wells, 49 Mich. 450; 
 Nichols v. Howland, 52 Hun, 287; 
 Castle v. Elder, 57 Minn. 289; Pit- 
 man v. Nunnelly (Ky.), 32 S. W. Rep. 
 
 606; Asher L. Co. v. Lunsford (Ky.), 
 30 S. W. Rep. 968. 
 
 4 Moses v. Morse, 74 Maine, 472. 
 See Small v. Wright, id. 428; Shore 
 v. Miller, 80 Ga. 93; Dorgan v. Weeks, 
 86 Ala. 329; Bullock v. Smith, 72 
 Texas, 545; Radford v. Edwards, 88 
 N. C. 347; Jennings v. Athens Bank, 
 74 Ga. 782; Wills v. Leverich, 20 Ore- 
 gon, 168; Scull v. Pruden, 92 N. C. 
 168; Mack v. Bensley, 63 Wis. 80; 
 Whitney v. Detroit Lumber Co., 78 
 Wis. 240; Nostrand v. Knight, 123 
 N. Y. 614, 619; Flagg v. Mason, 141 
 Mass. 64; Hall v. Eaton, 139 Mass. 
 217; Moran v. Lezotte, 54 Mich. 83;, 
 Combs v. Scott, 76 Wis. 663. What 
 are boundaries is a question of law 
 for the court; where the boundaries 
 are upon the ground is a question of 
 fact upon the evidence. Farley v. 
 Deslonde, 58 Texas, 588; Hawkins v. 
 Nye, 59 id. 97. See Maguire v. Stur- 
 tevant, 140 Mass. 258. Evidence of a 
 custom among Mexicans that bends 
 in a river belong to the land on which 
 they abut, is inadmissible, in an ac- 
 tion to try title, if the parties claim 
 under deeds. Tucker v. Smith, 68 
 Texas, 473; Peck v. Clark, 142 Mass. 
 436. 
 
§ 194.] BOUNDAKIES. 375 
 
 the conveyance. 1 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 court may 
 -decide, as matter of law, that the top of the bank above the 
 ford, and not the low-water line, is the boundary, the inter- 
 vening space being more appropriate for the use of the mill. 2 
 It is not essential that the granted premises, if capable of 
 identification, should be described by boundaries, courses, dis- 
 tances, or monuments. "Where the granted premises were de- 
 scribed in the deed as "Pelican beach, near Barren, island," 
 and it appeared, in an action of ejectment, that the name 
 Pelican beach was originally applied to the salt meadows, 
 marsh and beach on the westerly end of Barren island ; that 
 an inlet, subsequently opened across the beach, separated the 
 greater portion thereof from the island, and the grantee's title 
 to the beach was undisputed, it was held that the deed was 
 not void for uncertainty, but conveyed the part of the beach 
 cut off from the island by the inlet. 3 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 incor- 
 porated in the instrument. 4 "Where the shore and a plan re- 
 ferred to in a deed were incompatible, the plan was consid- 
 ered the more certain and controlled. 5 But if a grant calls 
 
 JIbid.; Bigaouette v. North Shore Allen, 133 ;Mdverw Walker, 4 Wheat. 
 
 Ry. Co., 17 Can. S. Ct. 363. 444; 9 Cranch, 173; Blaney v. Rice, 
 
 2 Jenkins v. Cooper, 50 Ala. 419; 30 Pick. 62; Magoun v. Lapham, 21 
 Hunt v. Raplee, 44 Hun, 149; People Pick. 135; Shufeldt v. Spaulding, 37 
 v. Saxton, 44 N. Y. S. 211; post, Wis. 662; Loring v. Norton, 8 Maine, 
 %'d\8a. 61; Proprietors v. Tiffany, 1 id. 210; 
 
 3 Coleman v. Manhattan Beach Eaton v. Knapp, 29 id. 20; Walker v. 
 Imp. Co., 94 N. Y. 229; Radford v. Boynton, 120 Mass. 349; Lunt v. Hoi- 
 Edwards, 88 N. C. 347; Todd v. Lunt, land, 14 Mass. 149; Davis v. Rains- 
 148 Mass. 322. Cf. Snyder v. Proud- ford, 17 Mass. 207; Boston Water 
 foot, 15 Q. B. (Can.) 532; Hook v. Mc- Power Co. v. Boston, 127 Mass. 376; 
 Queen, 2 Grant Ch. (Can.) 490. Williams v. Boston W. P. Co., 134 
 
 4 Lincoln v. Wilder, 29 Maine, 169; Mass. 406; Att. Gen. v. Whitney, 137 
 Erskine v. Moulton, 66 id. 276; Wei- Mass. 450. 
 
 lington v. Murdough, 41 id. 281 ; Whit- s Lincoln v. Wilder, 29 Maine, 169; 
 man v. Boston & Maine Railroad, 3 Birmingham v. Anderson, 48 Penn. 
 
376 
 
 THE LAW OF WATERS. 
 
 [Ch. Y. 
 
 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. 1 A description which is so uncertain that 
 it cannot be identified is void. 2 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 will be satisfied if the line starts from any 
 point on the creek, the deed is indefinite and inoperative. 3 
 But a deed conveying all the grantor's "real estate, water 
 rights, and property of every description, real and personal, in 
 the State," is sufficient to pass the title, and the property may 
 be identified by parol evidence. 4 When 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, 5 unless particular courses are given for 
 the exterior lines. 6 A contract for land " lying on both sides 
 
 St. 253; Schenley v. Pittsburgh, 104 
 id. 472; Com. v. McDonald, 16 S. & E. 
 390; Kain v. Young, 41 W. Va. 618. 
 
 1 President v. Clark, 9 Ired. 58; 
 Jamison v. Cornell, 3 Hun, 557. See 
 Clamorgan v. Hornsby, 13 Mo. App. 
 550. 
 
 2 Des Jardins v. Thunder Bay R B. 
 Co., 95 Mich. 140; Mizell v. Euffin, 113 
 N. C. 21; Albertson v. Prewitt (Ky.), 
 49 S. W. Rep. 196; Lovejoy v. Wil- 
 lamette El. Co., 31 Oregon, 181; Cook 
 v. Oliver, 83 Texas, 559; Kernan v. 
 Baham, 45 La. Ann. 799; Carlisle v. 
 Cassady (Ky.), 46 S. W. Rep. 490; Ed- 
 wards v. Lyman, 122 N. C. 741 ; Car- 
 ter v. Clark, 92 Maine, 225; Wiggins 
 Ferry Co. v. Louisville, etc. R Co., 
 178 111. 473; Osborne v. Rice (Ga.), 33 
 S. E. Rep. 54; Edwards v. Bender (119 
 Ala.), 25 S. Rep. 1010; State v. Cooper 
 (Tenn. Ch. App.), 53 S. W. Rep. 391. 
 
 3 Le Franc v. Richmond, 5 Sawyer, 
 601; Fuller v. Williams, Busb. Eq. 
 162; Horton v. Cook, 1 Jones Eq. 
 270; McDiarmid v. McMillan, 5 Jones 
 Eq. 29; Hinchey v. Nichols, 72 N. C. 
 66; Speed v. Wilson, Sneed (Ky), 78; 
 Donnebaum v. Tinsley, 54 Texas, 362; 
 Shipp v. Miller, 2 Wheat. 316; Swan- 
 
 ton v. Crooker, 52 Maine, 415; Martin 
 v. Boon, 2 Ohio, 238; Miles v. Knott, 
 12 Gill & J. 442. Greater certainty 
 in describing the land is required in 
 a legal process, like a petition for 
 partition, than would suffice in a 
 conveyance. Miller v. Miller, 16 Pick. 
 215. Calls for waters, such as springs, 
 ponds, and streams, in a mere cham- 
 ber survey, are but slight evidence of 
 their existence. Pruner v. Brisbin, 
 98 Penn. St. 202. See Maguire v. 
 Sturtevant, 140 Mass. 258. As to the 
 effect of a plat upon an alleged right 
 of way through a canal, which does 
 not appear upon that plat, but does 
 upon others, see Charleston Rice Mill- 
 ing Co. v. Bennett, 18 S. C. 254. See 
 Home v. Munro, 7 C. P. (Can.) 433. 
 
 * Brown v. Warren, 16 Nev. 228. 
 See Sherman v. Simpson, 121 N. C. 
 129. 
 
 * Winthrop v. Curtis, 3 Maine, 110; 
 Dunn v. Hayes, 21 id. 76; Jackson v. 
 Lunt, 2 Caines, 363; Van Gordon u 
 Jackson, 5 Johns. 440; Williams v. 
 Jackson, id. 489; Jackson v. Joy, 9 
 Johns. 102. 
 
 "Keith v. Reynolds, 3 Maine, 393} 
 Donaldson v. Lucett, 2 Caines, 363; 
 
§ 195.] BOUNDARIES. 377 
 
 of Cold River," to be paid for at the rate of one hundred dol- 
 lars per acre, does not bind the purchaser to pay for the river 
 bed, although that passes by the deed. 1 In Holbert v. Edens, 2 
 in Tennessee, it was held that the purchaser, at a stipulated price 
 per acre, of land which is bounded by the meanders of a river 
 is only required to pay for the land bounded by a line running 
 with the ordinary low-water mark, and any islands which may 
 be 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 by estimation twenty-three acres, or 
 thereabouts, " but to be surveyed," 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. 3 
 
 § 195. Same — Presumptions. — "When riparian estates are 
 conveyed, the owner may reserve the land under water, but 
 the general presumption is that the purchaser's title extends 
 as far as the grantor owns in both tidal 4 and fresh waters. 5 
 The legal effect of the conveyance is determined by the terms 
 employed, and cannot be controlled by parol testimony, 6 un- 
 less there is a latent ambiguity, or the description itself is re- 
 jected as false, 7 or the identical boundary referred to in the 
 conveyance is in dispute. 8 If land is bounded by Broad River, 
 it may be shown that Catawba River was intended; 9 and 
 
 Nioholl v. Huntington, 1 Johns. Ch. 6 Fletcher v. Phelps, 28 Vt. 262; 
 
 166. Piatt v. Jones, 43 Cal. 219; Bartlett 
 
 i Daniels v. Cheshire B. Co., 20 v. Corliss, 63 Maine, 287; Nickerson 
 
 N. H. 85. v. Crawford, 16 id. 247. 
 
 2 5 Lea, 204; Greer v. Johnston, 32 7 White v. Luning, 93 U. S. 515; 
 
 Q. B. (Can.) 77. Pride v. Lunt, 19 Maine, 115; Hurley 
 
 3 Be Popple, 25 W. R, 248. See v. Morgan, 1 Dev. & Bat. 425; Beoton 
 Higinbotham v. Stoddard, 72 N. Y. v. Chestnut, 4 id. 335; Hill v. Mason, 7 
 94; 9 Hun, 1; Ardery v. Rowles, 71 Jones, 551; Slade v. Green, 2 Hawks, 
 Penn. St. 369; Shand v. Triplett, 5 218; Lynch v. Allen, 4 Dev. & Bat. 62. 
 Rich. Eq. (S. C.) 76. 8 Ibid. ; Emery v. Webster, 42 Maine, 
 
 4 Boston v. Richardson, 13 Allen, 204; Gerrish v. Towne, 3 Gray, 82; 
 155; Ingraham v. Wilkinson, 4 Pick. McCuthen v. McCuthen, 9 Porter, 650; 
 268; Pratt v. Lamson, 2 Allen, 275, Jenkins v. Cooper, 50 Ala. 419; Will- 
 284 iams v. Kivett, 82 N. C. 110; Nourse 
 
 5 Ibid.; Devonshire v. Pattinson, 20 v. Lloyd, 1 Penn. St. 2" 20; Couchman 
 
 Q. B. D. 263 ; Micklethwait v. Newlay v. Thomas, Hardin (Ky.), 277 ; Jones v. 
 
 Bridge Co., 33 Ch. D. 133. See 49 Burgett, 46 Texas, 285. 
 
 Cent. L. J. 346. 9 Middleton v. Perry, 2 Bav. 539. 
 
3T8 
 
 THE LAW OF WATERS. 
 
 [Ch. Y. 
 
 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. 1 In the case of tide waters, the ordinary high-water 
 mark is the boundary of the adjoining lands at common law; 2 
 but in those States in which the title of the owner of the up- 
 land 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. 3 In Massachu- 
 setts and Maine, a grant of the upland, made since the ordi- 
 nance 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: 4 as "by the sea," "tide 
 water," or "salt water," 5 "by the harbor," 6 "bay," 7 "cove," 8 
 " creek," 9 " river," 10 or " the stream " of a tidal river. 11 So, 
 
 1 Lowell v. Robinson, 16 Maine, 357. 
 See Eddy v. Chase, 140 Mass. 471. 
 Where land was described in a Crown 
 grant as extending to and bounding 
 upon the " margin " of the sea, it was 
 left to the jury to determine whether 
 the land reached to the water's edge 
 or stopped at a line on the top of 
 cliffs a short distance therefrom. 
 Kennedy v. Portland, Vict. L. R. (L.) 
 541. In San Francisco S. Union v 
 Irwin, 28 Fed. Eep. 708, a boundary 
 on salt water " by the water's edge," 
 was held not to include the shore. 
 See, also, Benson v. Townesend, 4 N. 
 Y. S. 860; 7 id. 162; Scholle v. New 
 York, 6 id. 785. 
 
 2 Ante, § 27; Com. v. Alger, 7 Cush. 
 53; Rogers v. Jones, 1 Wend. 237; 
 Canal Com'rs v. People, 5 Wend. 423, 
 446; Wheeler v. Spinola, 54 N. Y. 377, 
 385; Jarvis v. Lynch, 91 Hun, 349; 
 State v. Jersey City, 1 Dutch. 525; 
 East Haven v. Hemingway, 7 Conn. 
 186; Moore v. Massini, 37 Cal. 432; 
 Milne v. Girodeau, 12 La. Ann. 324. 
 
 *Ante, §169. 
 
 i A?ite, § 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. 
 
 s Boston v. Richardson, 105 Mass. 
 351, 355; 13 Allen, 155; Storer v. Free- 
 man, 6 Mass. 435, 439; May hew v. Nor- 
 ton, 17 Pick. 357; Valentine v. Piper, 
 22 Pick. 85; Green v. Chelsea, 24 Pick. 
 71; Jackson v. Boston & .Worcester 
 R. Co.,1 Cush. 575, 578; Saltonstallw 
 Long Wharf, 7 Cush. 195, 200; Doane 
 v. Willcutt, 5 Gray, 328, 335, 336. In 
 Mayor v. Hart, 16 Hun, 380, 95 N. Y. 
 443, 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 v. Richardson, 105 Mass. 
 355; Mayhew v. Norton, 17,Pick. 357; 
 Litchfield u Scituate, 136 Mass. 39. 
 
 7 Ibid.; Partridges. Luce, 36 Maine, 
 16; East Hampton v. Vail, 151 N. Y. 
 463; 71 Hun, 94, 
 
 8 Hathaway v. Wilson, 123 Mass. 
 359. 
 
 "Ibid.; Harlow v. Fisk, 13 Cush. 
 302. 
 
 io Ibid.; Trull v. Wheeler, 19 Pick. 
 240; Moore v. Griffin, 22 Maine, 350; 
 Pike v. Monroe, 36 id. 309; Brackett 
 v. Persons Unknown, 53 id. 238; King 
 v. Young, 76 id. 76. See Mobile v. 
 Emanuel, 1 How. 95; 17 Peters, 155. 
 
 11 Ibid.; Boston v. Richardson, 13 
 Allen, 155; Lapish v. Bangor Bank, 8 
 Maine, 85, 92; Thomas v. Hatch. 3 
 
§ 196.] 
 
 BOUNDARIES. 
 
 379 
 
 under this ordinance, a boundary by a tidal creek, the bed of 
 which is bare at low water, conveys prima facie to the centre 
 of the creek; 1 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. 2 A grant of " a piece of flats below high-water mark, 
 to set a shop upon, not exceeding forty feet in width," con- 
 veys flats of that width to low-water mark. 3 A creek or nat- 
 ural channel, from which the tide does not ebb, limits the 
 right to the adjoining flats. 4 
 
 § 196. Same — Fresh waters.— 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. 5 
 Thus, the term " river," when employed to designate a bound- 
 
 Sumher, 170; Dunlap v. Stetson, 4 
 Mason, 366. 
 
 1 Boston v. Richardson, 13 Allen, 
 146, 155; Harlow v. Fisk, 12 Cush. 
 302; Chapman v. Edwards, 3 Allen, 
 512. 
 
 2 Central Wharf v. India Wharf, 
 123, Mass. 561, 566; Wood v. Com'rs 
 of Bridges, 122 Mass. 394; Doane v. 
 Broad Street Ass'n, 6 Mass. 332; 
 Storeru Freeman, 6 Mass. 435; Ashby 
 v. Eastern R Co., 5 Met. 368; Wheeler 
 v. Stone, 1 Cush. 313; Ammidown v. 
 Granite Bank, 8 Allen, 285; Com. v. 
 Alger, 7 Cush. 53, 90; Jackson v. Bos- 
 ton & Worcester Railroad, 1 Cush. 
 580; 2 Bane Abr. 690, 700; 9 Gray, 
 524 See Gerrish v. Gary, 120 Mass. 
 132; Adams v. Frothingham, 3 Mass. 
 352; Palmer v. Hicks, 6 Johns. 133; 
 Hodge v. Boothby, 48 Maine, 71; 
 Brookhaven v. Strong, 60 N. Y. 56. 
 
 3 Adams v. Frothingham, 3 Mass. 
 352. 
 
 4 Sparhawk v. Bullard, 1 Met. 95; 
 Luf kin v. Haskell, 3 Pick. 355 ; Walker 
 v. Boston & Maine Railroad, 3 Cush. 
 1; Att. Gen. v. Boston Wharf Co., 12 
 Gray, 553; Porter v. Sullivan, 7 Gray, 
 441. 
 
 5 Devonshire v. Pattinson, 20 Q. B. 
 D. 263; Micklethwait v. Newlay 
 
 Bridge Co., 33 Ch. D. 133; Wright v. 
 Howard, 1 Sim. & Stu. 190; Wishart 
 v. Wyllie, 1 Macq. H. L. 389; Ecroyd 
 v. Coulthard, [1898] 2 Ch. 358, [1897J 
 2 Ch. 554; Tyler v. Wilkinson, 4 
 Mason, 397; Thomas v. Hatch, 3 Sum- 
 ner, 170; Johnson v. Anderson, 18 
 Maine, 76: Jackson v. Hathaway, 15 
 Johns. 447; Varick v. Smith, 9 Paige, 
 547; 5 Paige, 138; Walton v. Tifft, 14 
 Barb. 216; Demeyer v. Legg, 18 Barb. 
 16; Hammond v. McLachan, 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 v. Elmore, 16 
 Wis. 509; Newhall v. Ireson, 8 Cush. 
 595; Waterman v. Johnson, 13 Pick. 
 261; Buck v. Squires, 22 Vt. 484; 
 Stanford v. Mangin, 30 Ga. 355; Will- 
 iams v. Buchanan, 1 Ired. 535; Rix 
 v. Johnson, 5 N. H. 520; Hammond 
 v. Ridgley, 5 H. & J. 215; Kingsland 
 v. Chittenden, 6 Lans. 15; Muller v. 
 Landa, 31 Texas, 265. See Union 
 Pacific R. Co. v. Hall, 91 IT. S. 343; 
 Thomas v. Hatch, 3 Sumner, 170; 
 Norris v. Hall, 1 Mich. 202; Richard- 
 son v. Prentiss, 48 Mich. 88; Cole v. 
 Wells, 49 Mich. 450. 
 
380 
 
 THE LAW OF WATERS. 
 
 [Oh. V. 
 
 ary by land-owners whose title extends usque ad fllum aqum, 
 means in law the centre of the stream, 1 and prima facie the 
 centre of its main channel when there is more than one. 2 This 
 rule applies to a grant from the Crown, 3 a State, 4 or the United 
 States, 5 and to navigable as well as unnavigable fresh streams 
 where the soil of navigable fresh rivers is held to be private 
 property. 6 In New York it is held 7 that legislative grants of 
 islands in navigable fresh rivers are not conclusive against 
 the application of the common-law rule to such rivers; but in 
 Pennsylvania 8 and other States, 9 such grants have been re- 
 garded 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 
 land ; 10 by a mill-pond, created by damming a fresh-water 
 stream, 11 or by an artificial raceway. 12 It applies to city lots 
 
 ilbid. See St. Louis v. Rutz, 138 
 V. S. 226; 35 Fed. Rep. 188; Haight 
 v. Hamor, 83 Maine, 453; Runion v. 
 Alley (Ky.), 39 S. W. Rep. 849. 
 
 2 Pike u Hood, 67 N. H. 171. 
 
 3 Lord v. Coni'rs of Sidney, 12 Moo. 
 P. C. 473. 
 
 4 Boston v. Richardson, 105 Mass. 
 351, 355; 13 Allen, 156; Lunt v. Hol- 
 land, 14 Mass. 149; Cold Spring Iron 
 Works v. Tolland, 9 Cush. 492; Clare- 
 mont v. Carlton, 2 N. H. 369 ; Ex parte 
 Jennings, 6 Cowen, 518; Arthur v. 
 Case, 1 Paige, 447; Coovert v. O'Con- 
 ner, 8 Watts, 470 ; Hayes u 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. 316, n.; Camden v. Creel, 
 
 4 W. Va. 365. 
 
 5 Middleton v. Pritchard, 3 Soam. 
 510 ; Morgan v. Reading, 3 S. & M. 366 ; 
 Steamboat Magnolia v. Marshall, 39 
 Miss. 109; Gavit v. Chambers, 3 Ohio, 
 495; Hendricks v. Johnson, 6 Porter, 
 472; Jones v. Soulard, 24 How. 41. 
 
 e Ante, ch. 3; Dwyer v. Rich, Ir. R 
 4 C. L. 424; Brooklyn v. Smith, 104 
 I1L 429. 
 
 7 Ex parte Jennings, 6 Cowen, 548, 
 and note; People v. Canal Appraisers, 
 17 Wend. 571; 13 Wend. 355; Com'rs 
 v. Kempshall, 26 Wend. 404. 
 
 t>Ante, §65. 
 
 9 Ante, ch. 3. 
 
 10 Boston v. Richardson, 13 Allen, 
 155; Lawson v. Mo wry, 52 Wis. 219; 
 Warner v. Southworth, 6 Conn. 471; 
 Agawam Canal Co. v. Edwards, 36 
 Conn. 476; Goodyear v. Shanahan, 43 
 Conn. 204, 210; Nichols v. New Eng- 
 land F. Co., 100 Mich. 230; Cansler v. 
 Henderson, 64 N. C. 469 ; Hoff v. Tobey, 
 66 Barb. 347; 56 N. Y. 633. See' Mor- 
 gan v. Bass, 14 Fed. Rep. 454; Marshall 
 v. Taylor, [1895] 1 Ch. 641. Contra, 
 as to a canal, see Chamber Colliery 
 Co. v. Rochdale Canal Co., [1895] A. C. 
 564. 
 
 I'Phinney v. Watts, 9 Gray, 269; 
 Waterman v. Johnson, 13 Pick. 261; 
 Paine v. Woods, 108 Mass. 160; Brad- 
 
 12 Dunklee v. Wilton R Co., 24 N. H. Carter v. Chesapeake Ry. Co., 26 W. 
 489; Smith v. Ford, 48 Wis. 115, 163; Va. 644. 
 Pettibone v. Hamilton, 40 Wis. 402; 
 
§ 197.] BOUNDARIES. 381 
 
 bounded upon streams. 1 Even a marsh, bayou, 2 or swamp 3 
 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 as the boundary line. 4 If the land on both 
 sides of a river is owned by tenants in common, and they 
 make partition according to its course, each takes to the thread 
 of the stream. 5 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. 6 The presumption that a convey- 
 ance to the centre line was intended does not arise when land 
 is bounded by a body of water contained in an artificial reser- 
 voir 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. 7 
 
 §197. Same — Limited to the bank. — 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 determining the direction of the line to- 
 wards the river. 8 When the line along the river is to run a 
 
 ley v. Rice, 13 Maine, 198; Lowell v. Spruell v. Davenport, 1 Jones, 203; 
 
 Robinson, 16 id. 357; Mansur v. Blake, Burnett v. Thompson, 6 id. 210; 7 id. 
 
 62 id. 38; Wood v. Kelley, 34 id. 47; 407. In surveyed lands the question 
 
 Holden v. Chandler, 61 Vt. 291; Nos- often depends upon where the sur- 
 
 trand v. Durland, 21 Barb. 478; Bar- veyor's line was drawn. Allen y. 
 
 tholomew v. Edwards, 1 Houst. (Del.) Koepsel, 77 Texas, 505. 
 
 17; Mill River Co. v. Smith, 34 Conn. 5 King v. King, 7 Mass. 496. See 
 
 462; Kingslandv. Chittenden, 6 Lans. Morrill v. Morrill, 5 N. H. 134; Han- 
 
 15; Primm v. Raboteau, 56 Mo. 407. son v. Willard, 12 Maine, 142; Smith 
 
 Contra, when the pood has become v. Smith, 10 Paige, 470; Cooper v. 
 
 permanent by prescription. Board- Cedar Water Power Co., 42 Iowa, 
 
 man v. Scott, 102 Ga. 404. 398. 
 
 1 Watson v. Peters, 26 Mich. 508; 6 0-wyer v. Rich, Ir. R. 4 C. L. 424. 
 In re White's Charities, [1898] 1 Ch. 1 Hoff v. Tobey, 66 Barb. 347. 
 
 659. e child v. Starr, 4 Hill, 369, 375; 
 
 2 Turner v. Holland, 54 Mich. 300. 20 Wend. 149; Jackson v. Snow, 12 
 
 3 See post, §263. Johns. 202; Mott v. Mott, 68 N. Y. 
 4 Brumagim v. Bradshaw, 39 Cal. 246; 8 Hun, 474; Howard v. Inger- 
 
 24; Felder v. Bonnet, 2 McMullan soil, 13 How. 381, 422; Johnson v. 
 (S. C), 44; Stapleford v. Brinson, 2 Pannell, 2 Wheat. 206; Littlepage 
 Ired.311; Brooks v. Britt, 4 Dev. 481 ; v. Fowler, 11 Wheat. 215; Pike v. 
 
382 
 
 THE LAW OF WATEBS. 
 
 [OH. Y. 
 
 stated distance, the meanderings of the stream are to be fol- 
 lowed until the required distance, reduced to a straight line, 
 is attained. 1 In Luce v. Carley, 2 in New York, where the de- 
 scription began at a " tree standing on the east bank of the 
 Onondaga Kiver," and, after giving other courses and distances, 
 proceeded west to the east bank of the river; "thence south 
 
 v. Coor, id. 183; Slade v. Neal, 2 Dev. 
 & Bat. 61 ; Bruce v. Morgan, 1 B. Mon. 
 26; Calk v. Stribling, 1 Bibb, 122; 
 Horton v. Eoscoe, 3 Hawks, 21; Mor- 
 gan v. Livingston, 6 Martin, 19. See 
 Hoboken Land Co. v. Kerrigan, 31 
 N. J. L. 16; Higbee v. Camden R. Co., 
 20 N. J. Eq. 435; Fleming v. Kenny, 
 4 J. J. Marsh. 158; Hills v. Houston, 
 4 Sawyer, 195; Granger v. Swart, 1 
 Woolw. 88; Babcook v. Utter, 1 Abb. 
 (N. Y. App.) 27; 1 Keyes, 115, 397. 
 A grantee of land, who takes a deed 
 bounding by a river, is not estopped 
 thereby to set up a title afterwards 
 acquired by disseisin in land extend- 
 ing beyond the thread of the stream. 
 Kinsell v. Daggett, 11 Maine, 309. 
 See Corning v. Troy Iron Factory, 40 
 NY. 191; 34 Barb. 529. 
 
 1 Hicks v. Coleman, 25 CaL 142; 
 Sanders v. Morrison, 2 Mon. (Ky.) 110; 
 Johnson v. Brown, Sneed (Ky.), 50; 
 Vaughn v. Foster (Ky.), 47 S. W. Rep. 
 833; Galveston Co. v. Tankersley, 39 
 Texas, 651; Yoder v. Swope, 3 Bibb, 
 204. 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 
 boundaries. People v. Henderson, 40 
 Cal. 29, 32. 
 
 2 24 Wend. 451 ; Seneca Nation v. 
 Knight, 23 N. Y. 498; Halsey v. Mc- 
 Cormick, 3 Kernan, 297; County of 
 St. Clair v. Lovingston, 23 Wall. 46, 
 64; Jones v. Soulard, 24 How. 44. See 
 Hughes v. Providence & Worcester 
 R. Co., 2 R. L 515; Stiles v. Curtis, 4 
 Day, 328; Peck v. Smith, 1 Conn. 103. 
 
 Moulton, 36 Maine, 309; Bradford v. 
 Cressey, 45 id. 13; Low v. Tibbetts, 
 72 id. 92; Robinson v. White, 42 id. 
 209; Morrison v. First Nat. Bank, 88 
 id. 155; Grant v. White, 63 Penn. St. 
 271; Small wood v. Hatton, 4 Md. Ch. 
 95; Thomas v. Godfrey, 3 Gill & J. 
 42; Wood v. Appal, 63 Penn. St. 210; 
 Motley v. Sargent, 119 Mass. 231; 
 Dunlap v. Stetson, 4 Mason, 349; 
 Thomas v. Hatch, 3 Sumner, 170; 
 Hughes v. Providence R. Co., 2 R. I. 
 508; Berridge v. Ward, 10 C. B. N. s. 
 400; Kimball v. Kenosha, 4 Wis. 821; 
 Goodeno v. Hutchinson, 54 N. H. 157; 
 Reed's Petition, 13 N. H. 381; Rix v. 
 Johnson, 5 N. H 520; Leigh v. Jack, 
 28 Am. L. Reg. 540, and note; Paine 
 v. Woods, 108 Mass. 160,171; Walker 
 v. Shepardson, 4 Wis. 486; Sizer v. 
 Devereux, 16 Barb. 160; Coovert v. 
 O'Conner, 8 Watts, 470; Bishop v. 
 Seeley, 18 Conn. 393; McCullough 
 v. Wall, 4 Rich. (S. C.) 84; Jackson v. 
 Louw, 12 Johns. 252; Jones v. Petti- 
 bone, 2 Wis. 308; Weakly v, Legrand, 
 
 1 Tenn. 265; Buck v. Squiers, 22 Vt. 
 489; Marsh v. Burt, 34 Vt. 289; Mor- 
 row v. Willard, 30 Vt. 118; Maynard 
 v. Weeks, 41 Vt. 619; Buckley v. 
 Blackwell, 10 Ohio, 508; Ma'ssengill 
 v. Boyles, 4 Humph. 205; Burns v. 
 Greaves, Cooke (Tenn.), 75; Elder v. 
 Burrus, 6 Humph. 364; Martin v. 
 Nance, 3 Head, 649; Stuart v. Clark, 
 
 2 Swan, 9; Hanlon v. Hobson, 24 
 Col. 284; 42 L. R. A. 502, and note; 
 Sandifer v. Foster, 1 Hay. (N. C.) 237; 
 Hartsfield v. Westbrook, id. 258; Mc- 
 Phaul v. Gilchrist, 7 Ired. 169; Cans- 
 ler o. Henderson, 64 N. C. 469; Rogers 
 v. Mabe, 4 Dev. (N. C.) 180; Smith v. 
 Auldridge, 2 Hay. (N. C.) 382; Pender 
 
§ 198.] BOUNDAEIES. 383 
 
 along the Onondaga Kiver to the first-mentioned bounds," the 
 grant was held to extend to the centre of the stream. In Cold 
 Spring Iron Works v. Tolland, 1 in Massachusetts, the corner 
 was a tree on the bank, but the land was described as bounding 
 on the river, the centre of which was held to be the boundary 
 line. In Newton v. Eddy, 2 in Vermont, the land was described 
 as bounded " easterly on Otter creek, and down said creek to a 
 small butternut tree, marked, 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. Same — The thread. — 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 low- 
 est and deepest part of the stream, 3 and if the land upon one 
 side is gradually and imperceptibly 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 be- 
 tween their estates. 4 The " main channel " refers to that part 
 of the bed over which the principal volume of water flows. 5 
 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. 8 And if such a grant is bounded by 
 a great pond or lake, which is public property, it extends to 
 that line. 7 
 
 1 9 Cush. 492; Knight v. Wilder, 2 *Niehaus v. Shepherd, 26 Ohio St. 
 
 Cush. 210; Newhall v. Ireson, 9 Gray, 40; ante, § 166; Primm v. Walker, 38 
 
 262; 13 id. 263; Beahan v. Stapleton, Mo. 94, 98; Mincke v. Skinner, 44 id. 
 
 id. 427; Morrison v. Keen, 3 Maine, 92. 
 
 474; Mayo v. Quimby, 3 Dane Abr. 4; 5 St. Louis Packet Co. v. Keokuk 
 
 Ipswich, Petitioners, 13 Pick. 431. Bridge Co., 31 Fed. Rep. 755; Eowe v. 
 
 2 23 Vt. 319; Morrow v. Willard, 30 Smith, 51 Conn. 266. 
 
 Vt. 118. "Martin v. Nance, 3 Head, 649; 
 
 s Hopkins Academy v. Dickinson, 9 McManus v. Carmichael, 3 Iowa, 1 ; 
 
 Cush. 552; Boscawen v. Canterbury, ante, ch. 3; Wood v. Appal, 63 Penn. 
 
 23 N. H 188 ; Plymouth v. Holderness, St. 210. 
 
 cited 28 N. H. 217. As to ascertain- 7 Canal Com'rs v. People, 5 Wend, 
 
 ing the medium filum of a stream 423, 447; Gouverneur v. National Ice 
 
 immediately below its junction with Co., 134 NY. 355; 11 N. Y. Sup. 87 
 
 another stream, see McGavin v. Mc- (disapproving Ledyard v. Ten Eyck, 
 
 Intyre, 17 Ct. of Ses. (4th series) 818. 36 Barb. 102); Champlain E. Co. v. 
 
384 
 
 THE LAW OF WATERS. 
 
 [Ch.Y. 
 
 § 199. Same — The water line. — If the conveyance does 
 not bound the land by the water, but refers to the shore or 
 the land under the water as the boundary, it does not pass 
 such shore or land. 1 Thus, a Crown grant of land, described 
 as one tract situated on both sides of a tidal river, but bounded 
 by the shore, conveys no title to the land below high-water 
 mark. 2 So, under the above ordinance of 1641-7, the flats do 
 not pass, in the absence of an expressed or implied intention 
 to the contrary, 3 if the granted premises are bounded " by " 
 or " on " the " beach," 4 " shore," 5 " flats," 6 by the high- water 
 mark, 7 by a " cliff," 8 " marsh," 9 or on a " way," or " street," 
 extending along the edge of the water. 10 In Doane v. Will- 
 
 Valentine, 19 Barb. 484; Wheeler v. 
 Spinola, 54 N. Y. 377; Waterman v. 
 Johnson, 13 Pick. 261, 265; West 
 Roxbury v. Stoddard, 7 Allen, 158, 
 167; Paine v. Woods, 108 Mass. 160, 
 170; Wood v. Kelley, 30 Maine, 47, 
 55; Fletcher v. Phelps, 28 Vt. 257; 
 Austin v. Rutland R. Co., 45 Vt. 215; 
 Fowler v. Vreeland, 44 N. J. Eq. 268; 
 Sloan v. Biemiller, 34 Ohio St. 492; 
 ante, §§ 79-85; State v. Gilmanton, 9 
 N. H. 461; Hathorn v. Stinson, 10 
 Maine, 238; Dillingham v. Smith, 3 
 Maine, 370; Hardin v. Jordan, 140 
 U. S. 371; Mitchell v. Small, id. 406. 
 
 1 Boston v. Richardson, 13 Allen, 
 154; 105 Mass. 351; Hatch v. Dwight, 
 17 Mass. 289; 9 Gray, 524; Jones v. 
 Soulard, 24 How. 41; Bradford v. 
 Cressey, 45 Maine, 9; Dunlap v. Stet- 
 son, 4 Mason, 349; Niekerson v. 
 Crawford, 16 Maine, 245; Clement v. 
 Burns, 43 N. H. 616; Mendota Club 
 v. Anderson, 101 Wis. 479; Sanders v. 
 McCracken, Hardin (Ky.), 258. 
 
 2 Ante, § 19; Lock v. Cleveland, 1 
 Allen (N. B.), 390. 
 
 'Hathaway v. Wilson, 123 Mass. 
 359'; Doane v. Willoutt, 5 Gray, 328; 
 Chapman v. Edmands, 3 Allen, 512; 
 Lufkin v. Haskell, 3 Pick. 355. 
 
 4 Niles v. Patch, 13 Gray, 254; Tap- 
 pan v. Burnham, 8 Allen, 65; Litch- 
 field v. Ferguson, 141 Mass. 97; East 
 Hampton v. Kirk, 68 N. Y. 459: 6 
 Hun, 257 ; 84 N. Y. 215. This is, how- 
 
 ever, a rule of construction only, and 
 the shore will pass if other terms of 
 the description in the deed show such 
 intention. Niles v. Patch, 13 Gray, 
 254; Oakes v. De Lancey, 133 N. Y. 
 227; 71 Hun, 49. 
 
 "Storer v. Freeman, 6 Mass. 435 
 Chapman v. Edmands, 3 Allen, 512 
 Montgomery v. Reed, 69 Maine, 510 
 Brown v. Heard, 85 Maine, 294; Val- 
 entine v. Sloss, 103 Cal. 215; Freeman 
 v. Bellegarde, 108 Cal. 179; Axline v. 
 Shaw, 35 Fla. 305. 
 
 6 Storer v. Freeman, 6 Mass. 439; 
 Saltonstall v. Long Wharf, 7 Cush. 
 195; 9 Gray, 524 
 
 7 Lapish v. Bangor Bank, 8 Maine, 
 85; or "along the low-watermark." 
 Allen v. Weber, 80 Wis. 53] ; 27 Am. 
 St. Rep. 51, and note. 
 
 8 Baker v. Bates, 13 Pick. 256; East 
 Hampton v. Kirk, 84 N. Y. 215. See 
 Southampton Trustees v. Betts, 163 
 N. Y. 454. 
 
 9 Rust v. Boston Mill Corp., 6 Pick. 
 166. See Brumagim v. Bradshaw, 39 
 Cal. 24. 
 
 10 Codman v. Winslow, 10 Mass. 149; 
 Charlestown v. Tufts, 111 Mass. 348; 
 Cook v. Farrington, 10 Gray, 70; Com. 
 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. 
 
§ 200.] BOUNDARIES. 385 
 
 cutt, 1 the land was bounded " by the sea or beach," and this 
 description, referring both to the water and the land, was 
 held to convey the shore to low-water mark. So the fee in 
 the land to low-water mark passed to the grantee where the 
 described premises were bounded as following the shore, " in- 
 cluding all the privilege of the shore to low- water mark." 2 A 
 ^boundary clearly fixed along the high-water mark does not 
 change with the advance or recession of the shore line, where 
 the shore itself is private property. 3 
 
 §200. Same — Same. — 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. D wight, 4 in Massachusetts, the 
 description was : Beginning art 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 Brad- 
 ford v. Cressey, 5 in Maine, where a line was run to a creek, 
 thence " on the west bank of said creek," the river was held 
 to be excluded. So, in Child v. Starr, 6 in New York, it was 
 held that a boundary line running " eastwardly to the Genes- 
 see Biver, 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 
 
 1 5 Gray, 328; Storer v. Freeman, 6 Y. S. 1007; Hayes v. Bowman, 1 Rand. 
 
 Mass. 439; 9 Gray, 525; Boston v. 417; Daniels v. Cheshire E. Co., 20 N. 
 
 Richardson, 105 Mass. 351; Coleman H. 85. See Buck v. Squires, 22 Vt. 
 
 v. Robertson, 30 C. P. (Can.) 609. 484; Cole v. Haynes, id. 589; Sanders 
 
 2 Dillingham v. Roberts, 75 Maine, v. MoCracken, Hardin, 258. 
 
 469. 6 4 Hill, 369; 5 Denio, 599 (overrul- 
 
 3 Ante, § 155; Gilbert v. Eldridge, ing s. C. 20 Wend. 149); Halsey v. Mc- 
 47 Minn. 210; Nixon v. Walter, 41 N. Cormick, 13 N. Y. 296; Yates v. Van 
 J. Eq. 103. de Bogert, 56 N. Y. 526; Sizer v. Dev- 
 
 4 17 Mass. 289; Boston v. Richard- ereux, 16 Barb. 160; Seneca Nation 
 
 son, 13 Allen, 155. v. Knight, 23 N. Y. 498; Bissell v. 
 
 5 45 Maine, 9; Bradley v. Rice, 13 New York Central R. Co., 23 N. Y. 
 
 id. 198; Hathorn v. Stinson, 10 id. 64; Kingsland v. Chittenden, 6 Lans. 
 
 224; Lincoln v. Wilder, 29 id. 169; 15; Varick v. Smith, 9 Paige, 547; 
 
 Stone v. Augusta, 46 id. 127; Brown JSx parte Jennings, 6 Cowen, 536, and 
 
 v. Chadbourne, 31 id. 9; Erskine v. note; Kingman v. Sparrow, 12 Barb. 
 
 Moulton, 66 id. 276; Nickerson v. 201; Hammond u. McLachlan, 1 Sand. 
 
 Crawford, 16 id. 245; Dunlap v. Stet- (N. Y.) 323; Paul v. Carver, 26 Penn. 
 
 son, 4 Mason, 349; Jackson v. Halson, St. 203; Cox v. Freedley, 33 id. 129; 
 
 5 Cowen, 216; In re Rochester, 40 N. Bishop v. Seeley, 18 Conn. 393. 
 25 
 
386 THE LAW OP WATERS. [Ch. Y- 
 
 river." In Lamb v. Eiokets, 1 in Ohio, the deed called for a 
 corner on the south 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 Kock- 
 ■well v. Baldwin, 2 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, 3 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. In Sleeper v. Laconia, 4 in New Hampshire, 
 a deed describing land as bounded by a line running " n. w'y 
 to the river, thence n. e'y on the river shore," conveyed the 
 land to the middle of the river, if the grantor owned so far. 
 In the recent case of Kanouse v. Stockbower, 5 in New Jersey, 
 it was held that a devise of the remainder of the homestead 
 farm, beginning at a stake standing at the edge of a desig- 
 nated pond ; thence, etc. ; thence " to the edge of the pond ;. 
 thence by the same," was bounded by the low-water mark,, 
 and that the testator died intestate as to the land covered by 
 the pond. 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. 6 When the line is- 
 
 x ll Ohio, 311,315; Hopkins v. Kent, or forks, Doddridge v. Thompson, 9 
 
 9 Ohio, 13 ; Lough v. Machlin, 40 Ohio Wheat. 469 ; Graves v. Fisher, 5 Maine,. 
 
 St. 332. In the earlier case of McCul- 69 ; Carter v. Oldham, Hughes (Ky.), 
 
 looh v. Aten, 2 Ohio, 309, 425, where 345; Johnson v. Brown, Sneed (Ky.),. 
 
 the call was for " a white oak on the 49. 
 
 south-east bank of G. creek, thence 2 53 111. 19. See, also, Murphy v.. 
 
 down said creek, with the several Copeland, 51 Iowa, 515; 58 id. 409; 
 
 meanderings thereof," the low-water Grand Rapids R. Co. v. Heisel, 38- 
 
 mark was treated as the boundary. Mich. 62, 72; Smith v. Ford, 48 Wis. 
 
 See this case explained in Benner v. 117. 
 
 Platter, 6 Ohio, 504, 508, where it was 3 58N. Y.437. See Seymour v. Cres- 
 
 held that a call in a survey for an well, 18 Fla. 29; Jones v. Parker, 99= 
 
 unnavigable stream is a call for the N. C. 18. 
 
 main branch of such stream, and the 4 60 N._ H. 201. 
 
 boundary is the middle of the stream. » 21 Atl. Rep. 197. 
 
 See, also, as to boundaries upon 6 Lynch v. Allen, 4 Dev. & Bat. 62. 
 streams having different branches 
 
§§ 201, 202.] BOUNDAKIES. 387 
 
 described as running " with the meander of the river," the 
 sinuosities of the river are to be followed. 1 
 
 §201. Same — Divergence from the stream.— In Bow- 
 man v. Farmer, 2 in New Hampshire, the deed described one 
 line as " beginning at the mouth 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 Thomas v. Godfrey, 3 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. Same — Towns — Nations. — By the common law, 
 parishes or towns upon tide waters extend, like private es- 
 tates, only to the high- water mark, unless proved by grant, 
 prescription, or usage to include the shore. 4 When separated 
 by a fresh- water river, its thread is prima facie the boundary 
 between them, 5 the same rules of construction applying as in 
 the case of a grant from one individual to another ; 6 and if 
 
 1 Turner v. Parker, 14 Oregon, 340; 390; Hayden v. Noyes, id. 395; State 
 Taylor v. MoConigle, 120 Cal. 123. v. Eason, 114 N.' C. 787. 
 
 2 8 N. H. 403. See, also, Massengill » Rex v. Landulph, 1 Moo. & R. 393 ; 
 ■u Boyles, 4 Humph. 205; 11 Humph. Reg. v. Strand Board of Works, 4 B. 
 112. The phrase "up the brook," if & S. 526, 545; State v. Gilmanton, 44 
 not controlled by other terms in the N. H. 467; Boscawen v. Canterbury, 
 deed, calls for a line following the 23 N. H. 188; State v. Canterbury, 28 
 windings of the stream. Jackson v. N. H. 195; Crosby v. Hanover, 36 
 Louw, 12 Johns. 252; Budd v. Brooke, N. H. 404; Plymouth v. Holderness, 
 3 Gill, 198. cited 28 N. H. 217; Ipswich, Peti- 
 
 3 Thomas v. Godfrey, 3 Gill & J. tioners, 13 Pick. 431; Cold Spring 
 142; Smallwood v. Hatton, 4 Md. Ch. Iron Works v. Tolland, 9 Cush. 492; 
 95, 99; Hammond v. Ridgely, 5 H. & Boston v. Richardson, 13 Allen, 146, 
 J. 246. In Corsey v. Hammond, 1 H. 157; Warren v. Thomaston, 75 Maine, 
 & J. 190, it was left to the jury to 329; State v. Cass County Com'rs 
 decide as to the construction of the (Neb.), 78 N. W. Rep. 494. See Thorn- 
 deed, aston v. St. George, 17 Maine, 117; 
 
 4 Hale, De Jure Maris, ch. 4; Har- In re McDonough, 30 Q. B. (Can.) 
 grave's Law Tracts, 27; Reg. v. Mus- 288. A fresh stream is not changed, 
 son, 8 El. & Bk. 900; Bridgewater as a town boundary, by artificial di- 
 Trustees v. Bootle, L. R. 2 Q. B. 4; 7 version. Changing the Boundary 
 B. & S. 348; Boston v. Richardson, Line of a Town, 21 R. I. 219. 
 
 105 Mass. 358; Pratt v. State, 5 Conn. 6 Granger v. Avery, 64 Maine, 292; 
 
388 
 
 THE LAW OF WATEES. 
 
 [Ch. Y. 
 
 a stream is made the boundary between two towns, one of 
 which is set off by statute from the other, its center is the di- 
 viding line between them. 1 Between Nations or States, the 
 thread of a boundary river, whether tidal or fresh, is presum- 
 ably the line of separation, without reference to the track of 
 navigation, 2 although the use of the whole river for the pur- 
 pose of navigation, trade, and passage may be common to both 
 States, 3 which still have concurrent jurisdiction with respect to 
 the navigation across the whole stream. 4 But when one State, 
 being 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 mark. 5 This depends, however, upon consider- 
 ations derived from the law of nations, and not from the rules 
 of municipal law governing common assurances of estates. 6 
 
 Perkins v. Oxford, 66 Maine, 545; 
 supra, §§ 46, 75, 166. 
 
 'Flynn v. Boston, 153 Mass. 372. 
 See Jackson v. State, 90 Ala. 590; 
 Gilchrist v. Strong, 167 Penn. St. 
 628; Stevens v. Thatcher, 91 Maine, 
 70; Adams v. Ulmer, id. 47. 
 
 2 Cessil v. State, 40 Ark. 501. See 
 Simpson v. State, 92 Ga. 41; § 159, 
 ^.bove. 
 
 >M §§ 64, 166; The Schooner 
 Fame, 3 Mason, 147; St. Louis v. 
 Rutz, 138 U. S. 266; 35 Fed. Eep. 188 
 The Annie M. Small, 3 Sawyer, 226 
 State v. Sturgess, 9 Oregon, 537, 540 
 Wheat. Elements Int. Law, 346 
 "Wheat. Law of Nations, 577. See 
 Missouri v. Iowa, 7 How. 660; 10 
 How. 1. The eastern boundary of 
 Iowa, declared by statute to be " the 
 middle of the main channel of the 
 Mississippi River," and the western 
 boundary of Illinois, declared by an- 
 other statute to be "the middle of 
 the Mississippi River," are the filum 
 aquce, the middle of the main stream 
 of the river, and not the middle of 
 the deep water used by vessels. Iowa 
 v. Illinois, 147 U. S. 1; Dunleith 
 Bridge Co. v. Dubuque County, 55 
 Iowa, 558; Chicago, etc. Ry. Co. v. 
 
 Clinton, 88 Iowa, 188; Keokuk & H. 
 Bridge Co. v. People, 145 I1L 596; 167 
 id. 15; Kaskaskia v. McClure, 167 I1L 
 23 ; Belief ontaine Impr. Co. v. Med- 
 ringhaus, 1S1 111. 426; Roweu. Smith, 
 51 Conn. 266; Be Spier, 3 N. T. S. 438; 
 Rabun County v. Habersham County, 
 79 Ga. 248. As to the power of a 
 State to divert an interstate river, 
 see 8 Harv. L, Rev. 138; and see 29 
 Am. L. Rev. 745. 
 
 4 Wiggins Ferry Co. v. Reddig, 24 
 111. App. 260; Sanders v. St. Louis 
 Line, 97 Mo. 26. Under the TJ. S. 
 Rev. Stats, § 5346, the Federal courts 
 have no jurisdiction of a crime com- 
 mitted on an American vessel in the 
 Detroit River. Ex parte Byers, 32 
 Fed. Rep. 404. See In re Garnett, 
 141 TJ. S. 1; United States v. Rodg- 
 ers, 150 U. S. 249; 46 Fed. Rep. 1; Same 
 v. Peterson, 64 id. 145. 
 
 s Handly v. Anthony, 5 Wheat. 
 374; Howard v. IngersoU, 13 How. 
 381; Alabama v, Georgia, 23 How. 
 505; Com. v. Garner, 3 Gratt. 655. 
 
 6 Boston v. Richardson, 13 Allen, 
 146, 157. A Swamp Land Act by the 
 Federal government, granting to a 
 State all the lands surrounding a 
 lake, admits of more liberal construe- 
 
§ 203.} 
 
 B0TTNDAKIES. 
 
 389 
 
 § 203. Same — lakes and ponds. — 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 dif- 
 ferent seasons of the year, hold to ordinary low-water mark, 
 and grants bounded by such waters extend to that line, 1 the 
 word " bank " or " shore," employed in such grants, denoting 
 the margin, and making the water's edge the boundary. 2 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 by a wet or dry season or by spring freshets. 3 In the 
 case of Seaman v. Smith, 4 in Illinois, it was held that the bound- 
 ary of land described in a deed which called for Lake Michigan 
 as a line was the line of the water as it usually stands when 
 unaffected by storms or other disturbing causes. So patents 
 by the general government, of public lands bounding on navi- 
 
 tion than a private agreement (ante, 
 § 31); and may pass the title to the 
 land under water to the State; but 
 its grantees of the same lands do not, 
 by virtue of their grant, acquire title 
 to the bed of the lake, although it 
 may be estopped, by its conduct, to 
 set up its title to such parts of the 
 bed as have been reclaimed and 
 platted into lota Indiana v. Milk, 11 
 Biss. 197. 
 
 'Canal Com'rs v. People, 5 Wend. 
 423, 446; "Wheeler v. Spinola, 54 N. Y. 
 377; Champlain E. Co. v. Valentine, 
 19 Barb. 484; People v. Jones, 112 
 N. T. 597; Gouverneur v. National 
 Ice Co., 134 N. Y. 355; 11 N. Y. S. 87; 
 Fletcher v. Phelps, 28 Yt. 257; Jake- 
 way v. Barrett, 38 Vt. 316, 323: 
 Austin v. Rutland R. Co., 45 Vt. 215; 
 Mariner v. Schulte, 13 Wis. 692; 
 Slauson v. Goodrich Transp. Co., 94 
 Wis. 642; Wood v. Kelly, 30 Maine, 
 47, 55; Waterman v. Johnson, 13 
 Pick. 261, 265, explained in Paine v. 
 Woods, 108 .Mass. • 160, 170; West 
 Roxbury v. Stoddard, 7 Allen, 158, 
 167; Fay v. Salem Aqueduct Co., Ill 
 Mass. 27, 28; Mill River Woollen 
 Manuf. Co. v. Smith, 33 Conn. 463; 
 Gibson v. Kelly, 15 Mont. 417; Ladd 
 
 v. Osborne, 79 Iowa, 93; Moore v. 
 Brownfield, 7 Wash. 23; ante, §§ 82, 
 83, 85. 
 
 2 Ibid.; Axline v. Shaw, 35 Fla. 305; 
 Burke v. Miles, 2 Hannay (N. B.), 166; 
 Niles v. Burke, 1 Pugsley (N. B.), 237. 
 
 3 See Seaman v. Smith, 24 111. 521, 
 523. In Rice v. 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 attraction, and a very minute 
 tide may perhaps be detected by a 
 long and careful course of observa- 
 tion with accurate instruments, yet 
 the court must judicially notice that, 
 it must be too slight to be recognized 
 by ordinary observation, and to serve 
 any practical purpose in determining 
 the extent of riparian ownership. 
 These facts were judicially noticed 
 in Lorman v. Benson, 8 Mich. 18." 
 
 <24 111. 521. See, also, Delaphine 
 v. Chicago Ry. Co., 42 Wis. 214, 225; 
 Sloan v. Biemiller, 34 Ohio St. 492; 
 Lincoln v. Davis, 53 Mich. 375. 
 
390 
 
 THE LAW OF WATEES. 
 
 [Oh. Y. 
 
 gable lakes, are not limited by the meander lines, but the pur- 
 chasers take such lands to low-water mark. 1 If an artificial 
 pond, like a mill-pond, is created by expanding a flowing 
 stream by a dam, the title of the riparian owner extends 
 prima facie to the centre of the pond as it did previously 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. 2 And if what was originally a natural 
 
 i Hardin v. Jordan, 140 IT. S. 371; 
 16 Fed. Rep. 823, and note; Packer v. 
 Bird, 137 U. S. 366; 32 Cent. L. J. 
 291-9, and note; see ante, §§ 76-85 ; 
 Tolleston Club v. State, 141 Ind. 197; 
 Kirkpatrick v. Yates Ice Co., 45 Mo. 
 App. 335. 
 
 2Phinney v. "Watts, 9 Gray, 269 
 Paine v. Woods, 108 Mass. 160, 170 
 Waterman v. Johnson, 13 Pick. 261 
 Wheeler v. Spinola, 54 N. Y. 377 
 Eobinson v. White, 42 Maine, 209 
 Hathorn v. Stinson, 10 id. 224, 238 
 12 id. 183; Bradley v. Rice, 13 id. 198, 
 201; Wood v. Kelley, 30 id. 47; Lowell 
 v. Robinson, 16 id. 357, 361 ; Mansur 
 v. Blake, 62 id, 38; Primm v. Walker, 
 38 Mo. 94, 98. In Paine v. Woods, 108 
 Mass. 160, 170, Gray, J., states and 
 interprets the earlier Massachusetts 
 case of Waterman v. Johnson, 13 
 Pick. 261, as follows: "Waterman v. 
 Johnson, 13 Pick. 261, was the case 
 of a complaint under the mill act 
 for flowing land described in the 
 deed under which the complainant 
 claimed title as bounded by 'Jones 
 River 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 con- 
 sidered as the boundary of the com- 
 plainant's land; but admitted 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 a 
 river not navigable, to the thread of 
 the stream; upon a large natural 
 pond, having a definite low-water 
 line, to that line; and upon an artifi- 
 cial 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 permanent and to have ac- 
 quired another well-defined bound- 
 ary, — expressed an opinion that un- 
 der the peculiar circumstances 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 con- 
 sidered as the high-water mark of 
 the pond, as artificially raised, was 
 
i$ 203.] 
 
 BOUNDARIES. 
 
 391 
 
 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. 1 If the margin varies at 
 different seasons of the year, the grant includes the land which 
 is uncovered at low-water; 2 and if the pond is artificially raised 
 only in winter, and 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. 3 If land is described as 
 bounded " along the high-water mark of the pond," the bound- 
 ary is fixed and does not follow the changes in the high-water 
 mark. 4 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, notwith- 
 standing the rule which makes the high- water mark the bound- 
 ary of lands upon tide waters. 8 It should also be observed in 
 this connection that no title is acquired to the bed of a public 
 
 inconsistent with the opinion of the 
 full court; second, the only point 
 necessarily involved in the decision 
 was, that the grant was not extended 
 too far by carrying its effect to the 
 natural barrier; third, that decision 
 was equally sustained, whether the 
 parol evidence was admitted, or the 
 terms of the grant by their own force 
 extended so far; fourth, the admis- 
 sion of the parol evidence was based 
 upon the theory that the boundary 
 on the pond, as applied to the subject 
 matter, was governed by no settled 
 rule of legal construction, but created 
 a, latent ambiguity; and the rules for 
 the construction of similar grants 
 were not then as fully established in 
 this Commonwealth as they have 
 since been by the later decisions al- 
 ready referred to. For instance, in 
 Tyler v. Hammond, 11 Pick. 193, in 
 "the previous year, the court had held 
 that a boundary by a highway gen- 
 erally extended only to the margin 
 of the way — a doctrine wholly re- 
 
 pudiated by the modern decisions. 
 Newhall v. Ireson, 8 Cush. 595; Phil- 
 lips v. Bowers, 7 Gray, 21 ; Boston v. 
 Richardson, 13 Allen, 146; Stark v. 
 Coffin, 105 Mass. 328." 
 
 1 Bradley v. Rice, 13 Maine, 198; 
 Wood v. Kelley, 30 id. 47, 55; Robin- 
 son v. White, 42 id. 209; Nelson v. 
 Butterfield, 21 id. 220, 229. See the 
 last case upon the question when an 
 arm of a pond is inclosed within the 
 lines of land conveyed, so as to be 
 included in the grant. A lease for 
 500 years of a factory lot and dam 
 lot, "together with all the land which 
 may be flowed by raising said dam " 
 to a certain height, conveys all the 
 land under the pond, and passes the 
 pond of water and the fish therein, 
 as incidents of the principal grant. 
 Smith v. Miller, 5 Mason, 191. 
 
 2 Wood v. Kelley, 30 Maine, 47; 
 Stevens v. King, 76 id. 197. 
 
 3 Paine v. Woods, 108 Mass. 160. 
 * Cook v. McClure, 58 N. Y. 437. 
 
 6 Wheeler v. Spinola, 54 N. Y. 377. 
 
392 
 
 THE LAW OF WATEKS. 
 
 [Oh. V. 
 
 or a private lake, by the existence of an easement of maintain- 
 ing a dam for twenty years at its outlet, and flooding back the 
 water over the bed of the lake and the adjacent lands. 1 Such 
 overflowing does not constitute an ouster. 2 
 
 1 Perrine v. Bergen, 2 Green (N. J.), 
 355 ; Cocheco Co. v. Strafford, 51 N. H. 
 455. 461; Green v. Harman, 4 Dev. 
 (N. C.) 158; Everett v. Dockery, 7 
 Jones (N. C), 390. The person who 
 has maintained a dam at the outlet 
 of a lake or pond for twenty years, 
 and thereby held back the water, is 
 not liable to be taxed for the bed of 
 the lake, or for the lands so flowed on 
 its borders. Cocheco Manuf. Co. v. 
 Strafford, 51 N. H. 455; Mason v. Cal- 
 umet Canal Co., 150 Ind. 699; Bern- 
 hardt v. Brown, 122 N. C. 587. But 
 
 this rule "may require qualification 
 as applied to tide-mills." Eastern 
 Eailroad v. Allen, 135 Mass. 13. As to 
 the taxation of canal-beds, see Low- 
 ell v. County Com'rs, 152 Mass. 372; 
 and of sawed logs, see Farmingdale 
 v. Berlin Mills Co. (Me.), 45 AtL Rep. 
 39. A water power is not appurte- 
 nant to the dam so as to be taxed 
 therewith. Union W. P. Co. v. Au- 
 burn, 90 Maine, 60; but see 11 Harv. 
 L. Rev. 191. 
 
 2 Ibid. See Charlotte v. Pembroke 
 Iron Works, 82 Maine, 391. 
 
PART II. 
 PEIYATE WATEES. 
 
 CHAPTEE VI. 
 
 RIGHTS OF RIPARIAN PROPRIETORS IN THE NATURAL FLOW 
 AND CONDITION OF THE STREAM. 
 
 SECTION. 
 
 204. Rights of riparian proprietors to the flow of the water. 
 
 205. Ordinary and extraordinary use. 
 206-209. The right of each proprietor limited. 
 
 210. Evidence and effect of judgments. 
 211-211&. Measure of damages for flowage. 
 
 211c. Flowing caused by combination of natural and artificial causes, 
 
 212. Flowing when a public nuisance. 
 213-215. Diversion. 
 
 216. Alterations in the surface of riparian estate. 
 
 217. Diversion for irrigation. 
 
 218. Obstruction of the natural current 
 218a. Acceleration of the current 
 
 219-222. Pollution. 
 
 223. Remedies for pollution. 
 
 224. Rights of non-riparian proprietors. 
 
 225. Right of adjoining land-owners in artificial watercourses. 
 
 § 204. Riparian owners — Eights in the natural flow of 
 the stream. — Eiparian proprietors upon both navigable and 
 nnnavigable 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. 1 Each proprietor 
 
 !Shury v. Piggot, 3 Bulst 339; Junction Canal Co., 7 Exch. 282 - t 
 Poph. 166 ; Brown v. Best, 1 Wilson, Rex v. Trafford, 1 B. & Ad. 259 ; 
 174; Palmer v. Heblethwaite, Skin- Saunders v. Newman, 1 B. & Aid. 
 ner, 65, 175; Rutland v. Bowler, 258; Wood v. Waud, 3 Exch. 748; 
 Palmer, 290 ; Miner v. Gilmour, 12 Embrey v. Owen, 6 Exch. 353 ; Samp- 
 Moo. P. C. 156 ; Wright v. Howard, 1 son v. Hoddinott, 1 C. B. K. S. 590 ; 
 Sim. & Stu. 190 ; Dickinson v. Grand Lyon v. Fishmongers' Co., 1 App. 
 
394 
 
 THE LAW OF WATEKS. 
 
 [Oh. VI. 
 
 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. 1 The proprietors have no prop- 
 erty in the flowing water, which is indivisible and not the 
 subject of riparian ownership, 2 but may use it for any purpose 
 
 Cas. 662; Chasemore v. Eichards, 5 
 H. & N. 989; 2 id. 181; 7 H. L. Cas. 
 :349; Crossley v. Lightowler, L. R. 3 
 Eq. 296; Frankuni v. Falmouth, 6 C. 
 ■& P. 5; Rawstron v. Taylor. 11 Exch. 
 382; Williams v. Morland, 2 B. & C. 
 910; Bealey v. Shaw, 6 East, 208; 
 Mason v. Hill, 3 B. & Ad. 304; 5 B. & 
 Ad. 1 ; Duncombe v. Randall, Hetley, 
 32; Roberts v. Gwyrfai District Coun- 
 cil, [1899] 2 Ch. 608; Atchison v. Pet- 
 erson, 20 Wall. 507; Davis v. Getchell, 
 50 Maine, 602; 79 Am. Dec. 636, and 
 note; Pillsbury v. Moore, 44 Maine, 
 154; Johns v. Stevens, 3 Vt. 308; 
 Anthony v. Lapham, 5 Pick. 175; 
 •Cary v. Daniels, 8 Met. 466; Pratt 
 ■v. Lamson, 2 Allen, 275; Tourtelot 
 v. Phelps, 4 Gray, 370; Whitney v. 
 Eames, 11 Met. 517; Merrifield v. 
 Worcester, 110 Mass. 219; Cowles v. 
 Kidder, 24 N. H. 365; Agawam Canal 
 Co. v. Edwards, 36 Conn. 476; Bud- 
 dington v. Bradley, 10 Conn. 213; 
 Gillett v. Johnson, 30 Conn. 180; 
 " King v. Tiffany, 9 Conn. 162; Hutch- 
 inson v. Coleman, 5 HaL (N. J.) 74; 
 Bowman v. Wathen, 2 McLean, 376; 
 Dilling v. Murry, 6 Ind. 324; Mitchel 
 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 
 v. Askew, 29 Cal. 207; Hendricks v. 
 Johnston, 6 Porter, 472; Moffett v. 
 Brewer, 1 G. Greene, 348; Overton 
 v. Sawyer, 1 Jones, 308; Haynes v. 
 Gratt, 1 McCord, 543; Omelvany v. 
 Jaggers, 2 Hill (S. C), 634; Platts- 
 mouth W. Go. v. Smith, 57 Neb. 579; 
 Martin v. Jett, 12 La. 501; Davis v. 
 Fuller, 12 Vt. 178; Adams v. Barney, 
 25 Vt. 225; Martin v. Bigelow, 2 Aik. 
 
 (Vt.) 24; Howe Scale Co. v. Terry, 47 
 Vt. 109. And see cases cited 'post, 
 §214. 
 
 i Ibid. ; Tillotson v. Smith, 32 N. H. 
 94. 
 
 2 Ibid.; Acton v. Blundell, 12 M & 
 W. 324; Owen v. Field, 102 Mass. 
 104; Baltimore v. Appold, 42 Md. 
 442; Pixley v. Clark, 35 N. Y. 524; 
 Pollitt v. Long, 56 N. Y. 200; 58 Barb. 
 20; Corning v. Troy Iron Factory, 40 
 N. Y. 191; 39 Barb. 311; 34 Barb. 485; 
 6 How. Pr. 89; Clinton v. Myers, 46 
 N. Y. 511; Townsend v. McDonald, 2 
 Kern. 391; Arnold v. Foot, 12 Wend. 
 330; Lancey v. Clifford, 54 Maine, 
 487, 490; Monroe v. Gates, 48 id. 463, 
 466; 42 id. 178; Gillis v. Chase, 67 
 N. H 161; Taylor v. Fickas, 64 Ind. 
 167; Plumleigh v. Dawson, 1 Gilman, 
 544; Bliss v. Kennedy, 43 111 67; 
 Druley v. Adam, 102 I1L 177: 2 Black. 
 Com. 18; Callis on Sewers, 268; Canal 
 Trustees v. Havens, 11 HL 554; Cooper 
 v. Williams, 4 Ohio, 286; 5 Ohio, 391; 
 Frazier v. Brown, 12 Ohio St 299; 
 Tyler v. Wilkinson, 4 Mason, 397; 
 McCord v. High, 24 Iowa, 336; Meyers 
 ttSt. Louis, 8 Mo. App. 263; Merrill 
 V. Parker, Coxe (N. J.), 460; Mayor v. 
 Commissioners, 7 Penn. St. 348; Hart 
 v. Evans, 8 id. 13; McCoy v. Danley, 
 20 id. 85; Wheatley v. Christman, 24 
 id. 298;-Beidelman v. Foulk, 5 Watts, 
 308; Randall v. Silverthorn, 4 Penn. 
 St 173; Eddy v. Simpson, 3 CaL 249; 
 McDonald v. Askew, 29 CaL 200; Dal- 
 ton v. Bowker, 8 Nev. 190; Kauffman 
 v. Griesmer, 26 Penn. St. 407; Martin 
 v. Riddle, 27 id. 415; Howell v. McCoy, 
 3 Rawle, 256; Hoy v. Sterrett, 2 
 Watts, 327. 
 
§ 204.] 
 
 EIGHTS OF EIPAEIAN PROPBIETOES. 
 
 395 
 
 to which it can be applied beneficially without material injury 
 to others' rights, 1 or for which the fall of the stream may 
 make it available as a motive power. 2 They may insist that 
 their right to thus use the water shall be regarded and pro- 
 tected as property. 3 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. 4 It does not depend 
 upon appropriation or presumed grant from long acquiescence 
 on the part of other riparian proprietors above and below, 
 but exists jure natures as parcel of the land. 5 It is not sus- 
 pended or destroyed by mere non-user, s although it may be 
 ■extinguished by the long-continued adverse enjoyment of 
 others. 7 It is not affected by the use to which the water has 
 been or may be applied. 8 Nor is it impaired by unity of pos- 
 session and title in such land with the land above or below it, 9 
 
 i Ibid. 
 
 2 Ibid.; Kidd v. Laird, 15 Cal. 161. 
 
 3 Ibid. ; Nuttall v. Bracewell, L. R. 
 2 Ex. 1; Hadley v. Hadley Manuf. 
 Co., 4 Gray, 140; Gould v. Boston 
 Duck go., 13 Gray, 442, 450; Ashley 
 v. Pease, 18 Pick. 268; Blanchard v. 
 Baker, 8 Maine, 253; Keeney Manuf. 
 Co. v. Union Manuf. Co., 39 Conn. 
 582; McCalmont v. Whitaker, 3 
 Rawle, 84; Brown v. Bush, 45 Penn. 
 St. 61; Beissell v. Scholl, 4 Dallas, 
 211. Water-power, though an inci- 
 dent to property in the land, is itself 
 the subject of property. Tillotson v. 
 Smith, 32 N. H. 94; Brown v. Bush, 
 45 Penn. St. 61; Eddy v. Simpson, 3 
 Cal. 249; Kiddu Laird, 15 Cal. 161. 
 
 4 Dickinson v. Grand Junction 
 Canal Co., 7 Exch. 299; Wright v. 
 Howard, 1 Sim. & Stu. 190; Wood v. 
 Waud, 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. v. Smith, 2 Conn. 590; Parker v. 
 Griswold, 17 Conn. 299; Harding v. 
 Stamford Water Co., 41 Conn. 87, 92; 
 Gardner v. Newburgh, 2 Johns. Ch. 
 16; 7 Am. Dec. 526, note; Archer v. 
 
 Archer, 32 N. Y. S. 410; Holsman 
 v. Boiling Spring Co., 1 McCart. 343; 
 Wheatley v. Baugh, 25 Penn. St. 528; 
 Evans v. Merri weather, 3 Scam. 492; 
 Union Mill Co. v. Ferris, 2 Sawyer, 
 176; Shamleffer v. Peerless Mill Co., 
 18 Kansas, 24; Williamson v. Lock's 
 Creek Canal Co., 78 N. C. 156; 76 
 N. C. 478; Pugh v. Wheeler, 2 Dev. 
 & Bat. 50; Hill u Newman, 5 Cal. 
 445. See the excellent note to Heath 
 v. Williams (25 Maine, 209), in 43 Am. , 
 Dec. 269. 
 
 5 Ibid. 
 
 6 Sampson v. Hoddinott, 1 C. B. 
 N. s. 590; Johnson v. Jordan, 2 Met. 
 239; Whitney v. Wheeler Cotton 
 Mills, 151 Mass. 396; 7 L. R. A. 613, 
 note; Eddyu Chase, 140 Mass. 171; 
 Orr v. O'Brien, 77 Iowa, 253; 14 Am. 
 St. Rep. 277, and note; Pillsbury v. 
 Moore, 44 Maine, 154; Townsend v. 
 McDonald, 12 N. Y. 381, 391 ; 14 Barb. 
 460; Southern Marble Co. v. Darnell, 
 94 Ga. 231. 
 
 7 Ibid. ; post, ch. 11. 
 
 8 Van Sickle v. Haynes, 7 Nev. 249, 
 post. 
 
 9 Ibid. ; Hazard v. Robinson, 3 Ma- 
 son, 272. 
 
396 THE LAW OF WATEKS. [Ch. YL 
 
 or, after the expiration of the term, by a lease of the water 
 rights from an upper to a lower riparian owner. 1 It is a nat- 
 ural right which arises immediately with every new division 
 or severance of ownership. 2 "If," says Shaw, C. J., 3 "the 
 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 with 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 con- 
 vey the right of water to the grantee, or reserve the right of 
 water to himself, in express words." 
 
 § 205. Same — Ordinary use of the water. — Each riparian 
 proprietor nas a right to the ordinary use of the water flow- 
 ing past his land, for the purpose of supplying his natural 
 wants, including the use of the water for the domestic pur- 
 poses of his home or farm, such as drinking, washing, or cook- 
 ing, and for his stock. 4 For these natural uses, by the weight 
 of authority, he may, if necessary, consume all the water of 
 the stream. 5 This right is his only, and is strictly confined to 
 
 i Swift v. Goodrich, 70 Cal. 103. W. Co., 182 id. 418; Baltimore v. Ap- 
 
 2 Cary v. Daniels, 8 v Met. 466,481; pold, 42 Md. 456; Evans v. Merri- 
 
 Stookport Water Works Co. v. Pot- weather, 3 Scam. 492; Wadsworth v. 
 
 ter, 3 H. & C. 326; Hickok v. Par- Tillotson, 15 Conn. 366; Arnold v. 
 
 melee, 21 Conn. 99. Foot, 12 Wend. 330 ; Crooker v. Bragg, 
 
 3 Cary v. Daniels, 8 Met. 466, 480. 10 Wend. 260; Gilm. 544; Ferrea v. 
 
 4 Miner v. Gilmour, 12 Moo. P. C. Knipe, 28 Cal. 343; Hazeltine v. Case, 
 131, 156; Norbury v. Kitchin, 3 F. & 46 Wis. 391; Rhodes v. Whitehead, 27 
 F. 292; 9 Jur. n. s. 132; Wood v. Texas, 304; Tolle v. Carreth, 31 Texas, 
 Waud, 3 Exch. 748; 13 Jur. 472; Nut- 362; Fleming v. Davis, id. 173; Shook 
 tall v. Bracewell, L. R. 2 Exch. 1; v. Colohan, 12 Oregon, 239; Kaleru 
 Swindon Water Co. v. Wilts Canal Campbell, 13 id. 596; Swift v. Good- 
 Co., L. R. 7 H. L. 697; L. R. 9 Ch. rich, 70 Cal. 103; Drake v. Earhart 
 451; Union Mill Co. v. Ferris, 2 Saw (Idaho), 23 Pac. Rep. 541; Mud Creek 
 yer, 176; Union Mill Co. v. Dangberg, Ir. Co. v. Vivian, 74 Texas, 170. 
 
 id. 450; 81 Fed. Rep. 73; Slacks. Marsh, 5 Ibid. According to some cases 
 23 Pitts. L. J. 29 ; Stein v. Burden, 29 the use of the water for culinary 
 Ala. 127; 24 Ala. 130; Springfield v. purposes and for cattle must not de- 
 Harris, 4 Allen, 494; Anthony v. Lap- prive the other proprietors of an 
 ham, 5 Pick. 175, 177; Auburn v. equal enjoyment of the same right 
 Union W. P. Co., 90 Maine, 71; Phil- Chatfield v. Wilson, 31 Vt. 358; 28 
 adelphia v. Collins, 68 Penn. St. 106; Vt. 49; Blanchard v. Baker, 8 Maine, 
 Philadelphia & R. R. Co. v. Potts ville 253, 266; McElroy v. Goble, 6 Ohio 
 
§ 205.] EIGHTS OF BIPAEIAN PEOPEIETOES. 397 
 
 riparian land. 1 He has also the right to use it for any other 
 purpose, as for irrigation or manufactures ; 2 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 suffi- 
 cient to answer the natural wants of the different proprietors, 
 none of them can use the water for such extraordinary pur- 
 poses as irrigation or manufactures. 3 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 irrigation ; 4 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 ex- 
 ercised reasonably and with a proper regard to the right of 
 the other proprietors to apply the water to the same or other 
 purposes. 5 The term " domestic- purposes " extends to culi- 
 nary and household purposes, to the watering of a garden, 6 
 and to the cleaning and washing, feeding and supplying the 
 ordinary quantity of cattle. 7 It would appear to extend also 
 to brewing, 8 and the washing of carriages, 9 but it does not in- 
 clude such manufacturing use as the grinding, washing and 
 cooling of rubber. 10 But railway companies, as riparian own- 
 
 St. 187; Hough v. Doylestown, 4 6 Bristol Waterworks Co. v. Uren, 
 
 Brews. (Pa.) 343. 52 L. T. N. s. 655; 54 L. J. M. C. 97. 
 
 1 Williams v. Wadsworth, 51 Conn. See Watson v. Needham, 161 Mass. 
 277. 404, 410. 
 
 2 Post, § 206. " Att. Gen. v. Great Eastern Eail- 
 
 3 Union Mill Co. v. Ferris, 2 Sawyer, way, 23 L. T. s. S. 344; Lowe v. Lain- 
 176; Crandall v. Woods, 8 Cal. 136, beth Waterworks Co., cited 52 L. T. 
 141; Ellis v. Tone, 58 Cal. 289; Myers K. s. 661; Union Mill Co. v. Ferris, 2 
 & E. Co. v. Phila. etc. Ey. Co., 12 Sawyer, 176. Sucn lawful use gives 
 Montg. L. Eep. 46. no right to pollute the water. Ibid. ; 
 
 4 Weston v. Alden, 8 Mass. 136; Borton v. Minister of Mines, 12 New 
 Bent v. Wheeler, cited in Sullivan's Zealand L. R 217; Molndoe v. Jut- 
 Land Titles, 273; Perkins v. Bow, 1 land Flat G. M. Co., id. 226. 
 
 Eoot, 535; Hay ward w Mason, id. 537; 'Wilts Canal v. Swindon Water 
 Blanchard v. Baker, 8 Maine, 266. Co., L. E. 9 Ch. 457; Coulson & Forbes 
 
 5 Post, § 217; Baker v. Brown, 55 on Waters, 116. 
 
 Texas, 377; Gould v. Stafford, 77 Cal. 9 Busby v. Chesterfield Water Co., 
 
 66; 91 Cal. 146; Eobinson v. Davis, 62 El. Bk. & El. 176; Coulson & Forbes 
 
 N. Y. S. 444; Trambley v. Luterman, on Waters, 116. 
 
 6 N. Mex. 15; Mastenbrook v. Alger, 10 Para Eubber Shoe Co. v. Boston, 
 
 110 Mich. 414; Smith v. Corbit, 116 139 Mass. 155. 
 
 Cal. 587. 
 
398 THE LAW OF WATERS. [Ch. VI. 
 
 ers, 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 or secured 
 under the right of eminent domain; 1 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. 2 Even when 
 the water is to be used for strictly domestic purposes, it is not 
 lawful for one proprietor, wishing so to use 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. 3 In Roberts v. Eichards, 4 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 years, when 
 B. intercepted and appropriated nearly all the water of the 
 stream. It was held thatB. was a riparian proprietor, and as 
 such was entitled to thus take the water for ordinary, but not 
 for extraordinary, purposes. 
 
 § 206. Same — Extraordinary use. — The right to such ex- 
 traordinary use of flowing water is common to all riparian 
 proprietors. 5 It is not an absolute and exclusive right to all 
 
 1 So of a water company. Lord v. Light Co., 9 Wash. 576. See 34 Am. 
 
 Meadville W. Co., 26 W. N. C. (Penn.) & Eng. Corp. Cases, 136, 143; infra, 
 
 110. See Ingraham v. Camden W. § 245. 
 
 Co., 82 Maine, 335; Re Barre Water 2 Att. Gen. v. Great Eastern Ry. Co., 
 Co., 62 Vt. 27; Ruoh v. New Orleans, 23 L. T. n. s. 344; Sandwich v. Great 
 43 La. Ann. 275; Broadmoor Dairy Northern Ey. Co., 10 Ch. D. 707; El- 
 Co. v. Brookside W. & L Co., 24 Col. liott v. Fitchburg R Co., 10 Cush. 195;. 
 541. A municipality can claim the Pennsylvania R Co. v. Miller, 113 
 right to such use of the water when Penn. St. 34; Garwood v. New York 
 it is a riparian owner. Emporia v. Central R Co., 83 N. Y. 400; 17 Hun, 
 Soden, 25 Kansas, 588; St. Anthony 356; Clark v. Penn. R Co., 145 Penn. 
 Falls W. P. Co. v. St. Paul W. Com'rs, St. 438; Phila. & R R Co. v. Potts- 
 168 U.S. 349; Minneapolis Mill Co. v. ville W. Co., 182 id. 418; Swift v. 
 St. Paul W. Works, 56 Minn. 485; Goodrich, 70 Cal. 103. 
 Baltimore v. Day (89 Md.), 43 Atl. Rep. 3 Ferrea v. Knipe, 28 Cal. 340. 
 798; Irving u. Media, 44 W.N. C. 131; *50L. J. Ch. 297; 51 id. 944; 44L.T. 
 Boye v. Albert Lea City, 74 Minn. 291. The order was discharged, on 
 230; Effingham v. Surrells, 77 111. appeal, on undertaking. See W. N. 
 App. 460; Sparks Manuf. Co. v. New- (1881) p. 156. 
 
 ton, 45 Atl. Rep. 596; 57 N. J. Eq. 367; 5 Elliott v. Fitchburg R Co., 10 
 
 Saunders v. Bluefield & W. W. Co., Cush. 191, 196; Merrifield v. Lorn- 
 
 58 Fed. Rep. 133; Barre W. Co. v. bard, 13 Allen, 16; Middleton v. Flat 
 
 Carnes, 65 Vt. 626; Rigney v. Tacoma River Booming Co., 27 Mich. 533 ; 
 
§ 206.] 
 
 EIGHTS OF EIPARIAN PBOPEIETOES. 
 
 39£ 
 
 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. 1 
 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 unreason- 
 able use of it, whereby others are deprived in whole or in 
 part of the common benefit, is an actionable injury, 2 even 
 though there is no present actual damage, 3 and without re- 
 gard to the question whether the act which causes the injury 
 is wilful or malicious, 4 or whether notice was given that the 
 rights of others are infringed. 5 Their interest being common, 
 different owners in severalty of premises along the stream 
 may join as plaintiffs in a suit m equity to restrain such un- 
 authorized use of the stream as affects them injuriously and 
 in the same way ; 6 and the fact that the sole owner of one 
 
 Van Sickle v. Haynes, 7 Nev. 249; 
 Coffman v. Robbins, 8 Oregon, 278; 
 Miner v. Gilmore, 12 Moo. P. C. 181; 
 Chasemore v. Richards, 7 H. L. Cas. 
 349; 5 H. & N. 982; 2 H. & N. 189; 
 Embrey v. Owen, 6 Exch. 353; Tyler 
 v. Wilkinson, 4 Mason, 400; ante, 
 §204. 
 
 1 Ibid. ; Gould v. Boston Duck Co., 
 
 13 Gray, 442, 450; Haskins v. Has- 
 'kins, 9 Gray, 390; Merrifield v. Wor- 
 cester, 110 Mass. 219; Moulton v. New- 
 buryport Water Co., 137 Mass. 163; 
 Prentice v. Geiger, 74 N. Y. 341; 9 
 Hun, 350; Penn. R Co. v. Miller, 112 
 Penn. St. 34; Holden v. Lake Co., 53 
 N. H. 522; Union Mill Co. v. Dang- 
 berg, 2 Sawyer, 450; Dumont v. Kel- 
 logg, 29 Mich. 420; Patten v. Marden, 
 
 14 Wis. 473; Rudd v. Williams, 43 111. 
 385; Rhodes v. Whitehead, 27 Texas, 
 304; Batavia Manuf. Co. v. Newton 
 Wagon Co., 91 111. 230. 245; Pinney 
 v. Luce, 44 Minn. 367; Hendricks v. 
 Johnson, 6 Porter, 472; Ulbricht v. 
 Eufaula Water Co., 86 Ala. 587. In 
 Canfleld v. Andrew, 54 Vt. 1, it is 
 said that the maxim sic utere tuo ut 
 alienum non Icedas applies. 
 
 2 Ibid. ; Embrey v. Owen, 6 Excb. 
 353; Elliott v. Fitchburg R. Co., 10 
 
 Cush. 196; Davis v. Getchell, 50 
 Maine, 602; 79 Am. Dec. 636, and 
 note; Hargreaves v. Kimberly, 26 W. 
 Va. 787; Randall v. Silverthorn, 4 
 Penn. St. 173; authorities ante, § 204, 
 notes; Farrell v. Richards, 30 N. J. 
 Eq. 511; Phinizy v. Augusta, 47 Ga. 
 260; Robertson v. Miller, 40 Conn. 
 40; Barnard v. Shirley, 151 Ind. 160;. 
 41 L. R. A. 737, and note. 
 
 3 Elliott v. Fitchburg R, Co., 10- 
 Cush. 196; Amoskeag Manuf. Co. v. 
 Goodale, 46 N. H. 53; Adams v. 
 Barney, 25 Vt. 225; post, % 214 
 
 4 Honsee v. Hammond, 39 Barb. 89; 
 Hey wood v. Miner, 102 Mass. 466; 
 Twiss v. Baldwin, 9 Conn. 291 ; Law- 
 son v. Price, 45 Md. 123; Timm v. 
 Bear, 29 Wis. 254 1 post, % 290. Wil- 
 fulness alleged is not supported by 
 proof of negligence only. Harold v. 
 Jones, 98 Ala, 348. 
 
 5 Rood v. Johnson, ,26 Vt. 64 
 
 6 Emery v. Erskine, 6 Barb. 9; Reid 
 v. Gifford, Hopk. Ch. 416; Cadigan 
 v. Brown, 120 Mass. 493; Ballou v. 
 Hopkinson, 4 Gray, 324; Ronnow v. 
 Delmue, 23 Nev. 29; Grey v. Peter- 
 son, 58 N. J. Eq. — , 42 Atl. Rep. 749 j 
 ante, § 121. 
 
400 THE LAW OF WATEKS. [Ch.- VI. 
 
 mill is also tenant in common of another does not authorize 
 him to so use the water coming to his own mill as to inju- 
 riously affect the mill owned in common. 1 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 de- 
 cree 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. 2 Riparian owners upon navigable 
 waters cannot lawfully use the water so as to impair the pub- 
 lic rights of navigation and fishery; 3 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 riparian pro- 
 prietors include : first, Eights relating to the flow of the water; 
 second, Eights relating to the taking or diversion of the water; 
 third, Eights relating to the purity of the water. 
 
 §207. Same — Continued. — "It is apparent," says Mer- 
 rick, J., 6 " 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 re- 
 spective 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 inference from 
 
 1 May v. Parker, 13 Pick. 34. *Ante,'% 187. 
 
 2 Hoxsie v. Hoxsie, 38 Mich. 77. 5 Pratt v. Lamson, 2 Allen, 275, 285; 
 *Ante, § 87; People v. Gold Run Tourtellot v. Phelps, 4 Gray, 376; 
 
 Ditch Co., 66 Cal. 138; People v. Webb v. Portland Manuf. Co., 3 Sum- 
 Stratton, 25 CaL 242; Sacramento v. ner, 189; 3 Law Rep. 374, 
 Central Pac. R. Co., 61 Cal. 250. 
 
§ 208.] EIGHTS OF EIPAEIAN PEOPEIETOES. 401 
 
 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 es- 
 sential as the only practical rule by which their respective 
 rights can be accurately ascertained or effectively protected." 
 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, as an article of property or merchandise, 1 
 but each proprietor is entitled, per my et per tout, to the use 
 of his proportion of the whole bulk and volume of the water 
 as it flows down the channel, 2 even where he is not in posses- 
 sion, 3 or when different channels are on either side of an island. 4 
 It follows that, although an exclusive use of the water may be 
 acquired by an actual adverse possession and enjoyment, 5 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. 6 
 
 §208. Same — Reasonable use. — Every riparian proprie- 
 tor may make a reasonable use of the stream passing by his 
 land for purposes which are not domestic. 7 With respect to 
 diminution in quantity, or the retardation or acceleration of 
 the current, or any extraordinary use of the water, it is a ques- 
 tion of fact for the jury in each case whejther the user is rea- 
 sonable, 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. 8 This question cannot be 
 
 1 Moulton v. Newburyport Water 3 Wood. & M. 341; Standard P. G. Co. 
 Co., 137 Mass. 163. v. Butler W. Co., 45 Pitts. L. J. 165. 
 
 2 Ibid. 7 Patten v. Marden, 17 Wis. 473 ; Ul- 
 
 3 Hogg v. Connellsville W. Co., 168 bricht v. Eufaula Water Co., 86 Ala. 
 Penn. St. 456. 587; Dickson v. Carnegie, 1 Ontario, 
 
 4 Warren v. Westbrook M, Co., 86 110; Horn v. Miller, 136 Penn. St. 640: 
 Maine, 32. 142 id. 557; 9 L. E. A. 810; Green Bay 
 
 5 Post, ch. 11. Canal Co. v. Kaukauna W. P. Co., 90 
 
 6 Pratt v. Lamson, 2 Allen, 288; 6 Wis. 370. 
 
 Allen, 457; Pitts v. Lancaster Mills, 13 8 Holden v. Lake Co., 53 N. H. 552; 
 
 Met. 156; Brace v. Yale, 10 Allen, 444; Norway Plains Co. v. Bradley, 52 N. 
 
 Millsbury v. Moore, 44 Maine, 154; H. 110; Bassett v. Salisbury Manuf. 
 
 Howe Scale Co. v. Terry, 47 Vt. 109, Co., 43 N. H. 569; Amoskeag Manuf. 
 
 126; Union Mill Co. v. Ferris, 2 Saw- Co. v. Goodale, 46 N. H 53; Hayes v. 
 
 yer, 176; Stillmanu White Eock Co., Waldron, 44 N. H. 584; Elliott v. 
 26 
 
402 
 
 THE LAW OF WATERS. 
 
 [Oh. VI. 
 
 determined by the requirements of the defendant's business, 1 
 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 ; 2 but it is to be decided by considering merely 
 whether his use of the stream is reasonable and appropriate 
 to the size of the stream and the quantity of water usually 
 flowing therein. 3 The mere fact that a portion of the water 
 is lost does not give a cause of action; 4 for some of the 
 water is inevitably absorbed, wasted, or evaporated whenever 
 it is spread in a mill-pond, or when ice is taken 5 from the 
 stream, and a mill-owner may rightfully permit his gate to be 
 so far open as to keep the water from freezing ; 6 and, in such 
 cases, no action can be maintained unless the rights of others 
 are materially impaired. 7 An artificial pond formed by dam- 
 ming a stream may be drained off and the water withheld to 
 fill and cleanse it in order that the ice may be pure ; 8 and, on 
 the other hand, if a dam causes the water to be spread over a 
 wide surface, and much reduced by evaporation and absorp- 
 tion, this may give just cause of complaint to a lower pro- 
 
 Fitchburg R. Co., 10 Cush. 195; Reg. 
 v. North Midland Railway, 2 Ry. 
 Cases, pt. I, p. 1; Union Mill Co. v. 
 Ferris, 3 Sawyer, 176; Miller v. Mil- 
 ler, 9 Penu. St. 74; Arnold v. Foot, 
 12 Wend. 330; Bullard v. Saratoga 
 Manuf. Co., 77 N. Y. 525; Phillips v. 
 Sherman, 64 Maine, 171; Case v. 
 Weber, 2 Carter (Ind.), 108; Cooper v. 
 Hall, 5 Ohio, 323; Columbus Gaslight 
 Co. v. Freeland, 12 Ohio St. 392, 398; 
 Bisher v. Richards, 9 id. 495, 503; 
 Timm v. Bear, 29 Wis. 254; Dilling 
 u Murry, 6 Ind. 324; Gould v. Boston 
 Duck Co., 13 Gray, 442; Thurber v. 
 Martin, 2 Gray, 394; Hinckley v. 
 Nickerson, 117 Mass. 213; Brace v. 
 Yale, 99 Mass. 488; 97 Mass. 18; Clin- 
 ton v. Myers, 46 K Y. 511; McKee v. 
 Delaware Canal Co., 125 N. Y. 353; 
 21 Am. St. Rep. 740, n.; Wright v. 
 Shindler, 17 Oregon,;404 ; Hill v. Ward, 
 2 Gilman, 285; Dumont v. Kellogg, 
 29 Mich. 420; Red River Roller Mills 
 v. Wright, 30 Minn. 249; Hetrich v. 
 Deachler, 6 Penn. St. 32; Parker v. 
 
 Hotchkiss, 25 Conn. 321; Pool v. 
 Lewis, 41 Ga. 162; Prentice u Geiger, 
 74 N. Y. 341; 9 Hun, 350. 
 
 1 Wheatley v. Christman, 24 Penn. 
 St. 298; Brace v. Yale, 10 Allen, 447; 
 4 Allen, 393; Perley v. Marshall, 57 
 N. H. 206; Canfield v. Andrew, 54 
 Vt. 1. 
 
 2 Haskins v. Haskins, 9 Gray, 390. 
 » Gould v. Boston Duck Co., IS 
 
 Gray, 442; Springfield v. Harris, 4 
 Allen, 494; Woodin v. Wentwortlv 
 57 Mich. 278; Mason v. Hoyle, 56 
 Conn. 255. 
 
 4 Bullard v. Saratoga Manuf. Co., 
 77 N. Y. 525. 
 
 5 An injunction will not be granted 
 for thus taking ice from a stream or 
 pond without proof of real, substan- 
 tial injury. Lathrop v. Haley, 81 
 Iowa, 649. 
 
 6 Cummings v. Blanchard, 67 N. H. 
 268. 
 
 7 Seeley v. Brush, 35 Conn. 419; 
 Cummings v. Barrett, 10 Cush. 195. 
 »De Baun v. Bean, 29 Hun, 236. 
 
§ 209.] EIGHTS .OF EIPAEIAN PEOPEIETOES. 403 
 
 prietor. 1 In England it is held that any permanent encroach- 
 ment upon the alveus of a running stream may be complained 
 of by an opposite or adjacent proprietor to whose proprietary 
 right the erection is a present sensible injury, without proof 
 that actual damage has been or will be sustained therefrom.* 
 In this country it has been held that an encroachment by one 
 proprietor upon his side of the stream does not give a cause of 
 action to another proprietor without proof of appreciable in- 
 jury. 3 If a riparian owner attempts to authorize a water or 
 railroad company to take a supply from a watercourse, thereby 
 causing substantial damage to another riparian owner, such a 
 diversion cannot be regarded as a reasonable use of the com- 
 mon property between the co-owners. 4 
 
 i § 209. Same — Continued. — When the stream is so used 
 by one proprietor as t© injure another proprietor upon the 
 stream, the wrong consists in turning the water where it 
 would not naturally flow; and the source of the water is im- 
 material, if damage results, whether it is by a retardation or 
 sudden release of the water of the same or another stream, or 
 whether it is made to flow in a course where no water flowed 
 before, or in the channel of an ancient stream. 5 The injured 
 proprietor is equally entitled to redress whether the damages 
 is caused by a diversion of the water, 6 by backwater, by inun- 
 dation from above his land, 7 or by the percolation of the water- 
 through the banks. 8 Each proprietor is entitled to enjoy the 
 
 1 Ferrea v. Knipe, 28 Cal. 340. Scott, 43 Vt. 525; Doud v. Guthrie,. 
 
 2Briokett v. Morris, L. R. 1H.L. 11 Brad. (I1L) 194; 13 id. 653; Mc- 
 
 Sc. 47; Att. Gen. v. Terry, L. E. 9 Ch. Combs v. Stewart, 40 Ohio St. 647;. 
 
 425; Orr Ewing v. Colquhoun, 2 App. Winchester v. Stevens Point, 58 Wis. 
 
 Cas. 839, 853 ; Att. Gen. v. Lonsdale, 350. 
 
 L. R. 7 Eq. 377; Norbury v. Kitchen, 6 Hodges v. Raymond, 9 Mass. 316;. 
 
 15 L. T. N. s. 501; Edleston v. Cross- Gilman v. Tilton, 5 N. H. 232; Cowles. 
 
 ley, 18 L.T.N. s. 15; Menzies «. Bread- v. Kidder, 24 N. H. 364; Smith v. 
 
 elbane, 3 Bligh, N. s. 414. Agawam Canal Co., 2 Allen, 355; 
 
 3 Norway Plains Co. v. Bradley, 53 Stiles v. Hooker, 7 Cowen, 266; Good 
 
 N. H. 108; Niles Works v. Cincinnati, v. Dodge, 3 Pitts. 557; Rhodes vl 
 
 2 Disney (Ohio), 400. Whitehead, 27 Texas, 304; Strout v. 
 
 4 Higgins v. Flemington Water Millbridge, 42 Maine, 76. 
 
 Co., 36 N. J. Eq. 538; supra, § 205. 7 Byrd v. Blessing, 11 Ohio St. 365. 
 
 STillotson v. Smith, 32 N. H. 90; spi x i e y v . Clark, 35 N. Y. 520; 
 
 Butz v. Ihrie, 1 Rawle, 218; Shaw v. Cooper v. Barber, 9 Taunt. 99; Wil- 
 
 Cumiskey, 7 Pick. 76; Tuthill v. son v. New Bedford, 108 Mass. 26L 
 
404 THE LAW OF WATERS. [Ch. VI. 
 
 natural fall and current of the stream, 1 and a mill-owner can- 
 not lawfully appropriate additional power, to the injury of a 
 lower proprietor, by lowering the natural channel even on his 
 own land. 2 In Pennsylvania it is held that the method of 
 measuring the fall of the stream by instrumental levelings 
 must yield to actual visible facts; 3 but the opposite has been 
 held in Minnesota. 4 It is also to be observed that the right 
 of each riparian owner to the accustomed course of a natural 
 stream, with respect to both velocity and direction, relates to 
 the natural and apparently permanent course existing when 
 the right is asserted or questioned, and that the riparian owner 
 cannot restore the flow of the water to its former state, if it 
 has become permanently altered by long-continued natural ac- 
 cretion of gravel in the river bed. 5 
 
 § 210. Flowing — Evidence — Judgments. — It is not a tres- 
 pass to flow the land of another with water by erecting a dam 
 below his land, 6 for any one may lawfully build a dam on his 
 own land, 7 and the act, being injurious only in its consequences, 
 is to be redressed by an action on the case. 8 An injunction 
 
 J.MoCalmont v. Whitaker, 3 Rawle, N. H. 302; Delaware Canal Co. v. 
 
 84; Mack v. Bensley, 74 Wis. 112; Lee, 22 N. J.' 243; Ten Eyck v. Dela- 
 
 Oakley Manuf. Co. v. Neese, 54 Ga. ware Canal Co., 3 Harr. (N. J.) 200; 
 
 459; Dorman v. Ames, 12 Minn. 451; Vandewere v. Delaware Canal Co., 2 
 
 Plumleighu Dawson, 1 Gilman, 544; Dutch. 151; Ward v. Ward, 2 Zab. 
 
 Belfast Rope Works Co. v. Boyd, 21 699; Beissell v. Sholl, 4 Dall. 211: 
 
 L. R. Ir. 560. Hoy v. Sterrett, 2 Watts, 327 ; Whaler 
 
 2 Gleason v. Assabet Manuf. Co., v. Ahl, 29 Penn. St. 98; Oregon Iron 
 
 101 Mass. 72; Arthur v. Case, 1 Paige, Co. v. Trullenger, 3 Oregon, 1; Shaw 
 
 447; Webster v. Fleming; 2 Humph, v. Etheridge, 7 Jones (N. G), 225; 
 
 518 ; Townsend v. McDonald, 2 Ker- Saokrider v. Beers, 10 Johns. 241 ; 
 
 nan, 391. Clinton v. Myers, 46 N. Y. 517; Bul- 
 
 3 Brown v. Bush, 45 Penn. St. 61; lard v. Saratoga Victory Manuf. Co., 
 McLeod v. Lee, 17 Nev. 103. 77 N. Y. 525; 13 Hun, 43: Hill r. 
 
 4 Finch v. Green, 16 Minn. 355. Ward, 2 Gilman, 285; Johns v. Ste- 
 See Perry v. Binney, 103 Mass. 156; vens, 3 Vt 308; Schoff v. Upper Con- 
 post, § 344, note. necticut Impr. Co., 57 N. H 113. 
 
 5 Withers w Purchase, 60 L.T.N. s. 8 Ibid.; Hutchinson v. Coleman, 5 
 «19. HaL (N. J.) 74; Keller v. Stoltz, 71 
 
 6 Perrine v. Bergen, 14 N. J. L. 357; Penn. St. 356. Trespass lies under 
 
 Reynolds v. Clark, Stra. 634; Cooper the statutes of Maine. Reynolds v. 
 
 v. Hall, 5 Ohio, 320; Hicks v. Drew, Chandler River Co., 43 Maine, 513; 
 
 117 Cal. 305; 3 Black. Com. 220. Taylor v. Keeler, 50 Conn. 346; Smith 
 
 7 Ibid.; Orr Ewing v. Colquhoun, v. Scott, 1 Kerr (N. B.), l;post, § 371. 
 
 2 App. Cas. 839; Snow v. Cowles, 22 The declaration or complaint need 
 
210.] 
 
 EIGHTS OF EIPAEIAN PEOPEIETOES. 
 
 405 
 
 may also be granted in cases of flowage when there is a clear 
 violation of the plaintiff's right and irreparable injury or dan- 
 ger thereof. 1 In an action for backwater, the plaintiff, in order 
 to recover more than nominal damages, must show that the 
 water flowed back upon his land ; that a wrongful act of the 
 defendant caused it so to flow, and that he suffered injury 
 therefrom before suit brought. 3 The wrong begins when the 
 water is appreciably raised at the point where it leaves the 
 plaintiff's land or is ponded back beyond that point, 3 whether 
 
 not aver that the defendant's act was 
 wrongful or without license. Wil- 
 kinson v. Applegate, 64 Ind. 98; Akin 
 v. Davis, 11 Kansas, 580. As to acts 
 of a wife binding her husband, see 
 Enright v. Hartsig, 46 Mich. 469. As 
 to recovering interest, see Lakeside 
 Paper Co. v. State, 60 N. Y. S. 1081. 
 
 i Sheldon v. Rockwell, 9 Wis. 166; 
 Cobb v. Smith, 16 Wis. 661; Newton 
 v. Allis, 12 Wis. 378; Shannon v. 
 State, 18 Wis. 604; Halm v. Thorn- 
 berry, 7 Bush, 403; Ogle v. Dill, 55 
 Ind. 130; Carlisle v. Cooper, 21 N. J. 
 Eq. 576; Fulton v. Greacen, 36 id. 
 216; Bradwell v. Dewell, 48 Mich. 9; 
 Ronayne v. Loranger, 66 Mich. 373. 
 Under the prayer for general relief, 
 a complainant in equity is not enti- 
 tled to an injunction restraining the 
 defendant from obstructing flowage 
 on his land outside of the place where 
 the watercourse is alleged to be. Rigg 
 v. Hancock, 36 N. J. Eq. 42. In a 
 suit to lower a dam a mandatory 
 judgment may be issued to lower to 
 the proper height, but neither an ex- 
 tra allowance computed on the value 
 of the land flowed nor the expense 
 of surveys, maps, etc., are allowable. 
 Rothery v. N. Y. Rubber Co., 90 N. Y. 
 30; 24 Hun, 172; Mark v. Buffalo, 87 
 N. Y. 184. See Oliver v. N. T. Bay 
 Cemetery Co., 38 N. J. Eq. 42. 
 
 2Lewin v. Simpson, 38 Md. 468; 
 Shaf er v. Stonebraker, 4 Gill & J. 345 ; 
 Cairo, etc. Ry. Co. v. Brevoort, 62 
 Fed. Rep. 129; Godfreys. Maberry, 
 84 N. C. 255; Jones v. Lavender, 55 
 
 Ga. 228; Bolivar Manuf. Co. v. Ne- 
 ponset Manuf. Co., 16 Pick. 241; 
 Brown v. Bowen, 30 N. Y. 519; Cobb 
 v. Smith, 38 Wis. 21; Langdon v. G, 
 B. & Q. R. Co., 48 Iowa, 437; Miller 
 v. Cornwell, 71 Mich. 270; Riddle v. 
 Delaware County, 156 Penn. St. 643; 
 Denver, etc. Ry. Co. v. Pulaski Ir. 
 Ditch Co., 19 Col. 367; Orchard P. L. 
 Co. v. Brady, 53 Kansas, 420; Watts 
 v. Norfolk, etc. R. Co., 39 W. Va. 196; 
 Voligny v. Stillwater W. Co., 73 Minn. 
 181 ; Graves v. Kansas City, etc. R. 
 Co., 69 Mo. App. 574; Hughes v. Aus- 
 tin, 12 Tex. Civ. App. 178; Booker v. 
 McBride, 16 id. 348; Penfleld v. New 
 York W. Co., 6 N. Y. S. 180; 53 Hun, 
 633. Damages for a continuing tres- 
 pass are computed only to the be- 
 ginning of the action. Ibid. ; Close 
 v. Samm, 27 Iowa, 503: Rogers v. 
 Coal River Boom Co., 39 W. Va. 272. 
 See Benson v. Wilmington, 9 Houst. 
 359; Chicago, etc. R. Co. v. Robbins, 
 159 111. 598; Southard v. Brooklyn, 
 37 N. Y. S. 136. An injunction suit 
 covers acts done while it is pending. 
 Inderlied v. Whaley, 32 N. Y. S. 640. 
 3 Heath v. Williams, 25 Maine, 209; 
 Munroe v. Gates, 42 id. 178; 48 id. 
 463; Amoskeag Manuf. Co. v. Good- 
 ale, 46 N. H. 53; Alexander v. Kerr, 
 1 Rawle, 83, 89; McCalmont v. Whit- 
 aker, 3 id. 84; Graver v. Sholl, 42 
 Penn. St. 58; Mangold v. St. Louis 
 R. Co., 24 Mo. App. 52. Where the 
 erection of dams or dykes causes the 
 water to flow upon the plaintiff's 
 land, the law will imply nominal 
 
406 
 
 THE LAW OF WATERS. 
 
 [Ch. VI. 
 
 the plaintiff has a mill upon his land or not, 1 and although the 
 water does not overflow his banks. 2 The owner of the over- 
 flowed land may maintain successive actions when, as in the 
 case of the destruction of crops from year to year, the wrong 
 does not involve the destruction of the entire estate or its ben- 
 eficial use and the injuries in different years may be included 
 in a single action; '.but recovery in a single suit, for any unau- 
 thorized use of the stream, is a bar to a subsequent action, 
 where, as in the case of a permanent and complete deprivation 
 of the use of the land, or of the water of the stream, the in- 
 jury is of a permanent character and goes to the entire value 
 of the estate, 4 even though the damages awarded are unsub- 
 stantial. 5 So, too, a suit for flowing part of a tract of land pre- 
 cludes the plaintiff from maintaining another suit for flowing 
 
 Doud v. Guthrie, 13 Brad. 
 (111.) 653; Hid. 194. 
 
 i Hill v. Ward, 2 Oilman, 285; Stout 
 v. Mo Adams, 2 Scam. 67; Cory v. Sil- 
 cox, 6 Ind. 39; New Britain v. Sar- 
 gent, 42 Conn. 137; Williamson v. 
 Lock's Creek Canal Co., 76 N. C. 448; 
 78 N. C. 156; Hatch v. Dwight, 17 
 Mass. 289. 
 
 2 Garrett v. McKie, 1 Rich. (S. C.) 
 444; Chalk v. -McAlily, 11 id. 153; 
 Little v. Stanback, 63 N. C. 285; John- 
 son v. Roan, 3 Jones (N. G), 523; Bur- 
 nett 14 Nicholson, 72 N. C. 334. 
 
 s Hamilton v. Plainwell W. P. Co., 
 SI Mich. 21: Clarke v. Midland G. W. 
 Ry., [1895] 2 Ir. Rep. 294; McKee v. 
 St. Louis, etc. R. Co., 49 Mo. App. 174; 
 Bunten v. Chicago, etc. Ry. Co., 50 
 id. 414; Rarey v. Lee, 7 Ind. App. 518; 
 Louisville, etc. Ry. Co. v. Sparks, 12 
 id. 410; Cleveland, etc. Ry. Co. v. 
 ICing (Ind. App.), 55 N. E. Rep. 875; 
 ■Gulf, etc. Ry. Co. v. Calhoun (Tex. 
 •Civ. App.), 24 S. W. Rep. 362; Same 
 v. Nicholson (id.), 25 id. 54; Galveston, 
 etc. Ry. Co. v. Parr, 8 Tex. Civ. App. 
 280. But only in separate counts. 
 Ala. G. S. R. Co. v. Shahan, 116 Ala. 
 302. 
 
 * Stodghill v. C, B. & Q. R. Co., 53 
 Iowa, 341 ; Van Hoozier v. Hannibal 
 
 R. Co., 71 Mo. 145; Dickson v. Chi- 
 cago R Co., 71 Mo. 575; Close v. 
 Samm, 27 Iowa, 503; Chicago R Co. 
 v. Schaffer, 26 111. App. 280; Hester v. 
 Broach, 84 N. C. 252; Bare u Hoff- 
 man, 79 Penn. St. 71; Cumberland 
 Canal v. Hitchings, 65 Maine, 140; 
 Savannah Canal Co. v. Bourquin, 51 
 Ga. 378; Cobb v. Smith, 38 Wis. 21; 
 Fowle v. New Haven Co., 107 Mass. 
 352; 112 Mass. 334; post, § 259; 
 Lake Erie & W. Ry. Co. v. Purcell, 
 75 111. App. 573; Clark is. Lanier, 104 
 Ga. 184; Danielly v. Cheeves, 94 Ga. 
 263; Cons. H. S. Ditch Co. v. Hamlin, 
 6 Col. App. 341; Paris v. Allred, 17 
 Tex. Civ. App. 125; Springfield Ry. 
 Co. v. Rhea, 44 Ark. 258; Same r. 
 Henry, id. 360. Estoppels must be 
 mutual In an action for penning 
 back water by a dam, a plea of a 
 verdict, on a plea of not guilty, in 
 an action by' the plaintiff against a 
 tenant for years under a predecessor 
 of the defendant in title, is not good 
 on demurrer. Smith v. Wallbridge, 
 6 C. P. (Can.) 324. The time should 
 be specified, if long enough for the 
 raising of two or more crops. Inter- 
 national R. Co. v. Pape, 73 Texas, 501. 
 sSwantz v. Muller, 27 I1L App. 320; 
 Bailey v. Heintz, 71 id. 189. 
 
% 210.] 
 
 EIGHTS OF RIPARIAN PROPRIETORS. 
 
 407 
 
 another part of the same tract, if nothing prevented including 
 this in the first suit. 1 A judgment for the defendant, in a suit 
 for flowing land, is a bar to a subsequent suit between the 
 same parties and depending upon the same facts; 2 but a judg- 
 ment for the plaintiff in such suit, even for nominal damages, 
 establishes the right, and in a second action substantial dam- 
 ages may be allowed if proved. 3 When successive actions lie, 
 the statute of limitations is not a bar to an action for the con- 
 tinued flooding of land within the statutory period, although 
 the first flowage may be barred. 4 The period of limitation 
 does not begin to run until actual injury is suffered. 5 Where 
 
 i Wichita R. Co. v. Beebe, 39 Kan. 
 465; Illinois Cent. R Co. v. Wilbourn, 
 74 Miss. 284; Richardson v. Eureka, 
 110 Cal. 441. See Amrhein v. Quaker 
 City Dye Works, 192 Penn. St. 253; 
 Graves v. Hebbron, 125 Cal. 400. 
 
 2 Dick v. Webster, 6 Wis. 681; Mc- 
 Dowell v. Langdon, 3 Gray, 513; 
 'Covert v. Brooklyn, 43 N. Y. S. 310. 
 
 3 Casebeer v. Mowry, 55 Penn. St. 
 419; Plate v. New York Central Rail- 
 road, 37 N. Y. 472; Allen v. Michel, 
 38 111. App. 313; Ohio, etc. Ry. Co. v. 
 Dooley, 32 id. 228; Markt v. Dairs, 46 
 Mo. App. 272. See Reichert v. Back- 
 enstross, 24 N. Y S. 1009; Gulf, etc. 
 Ry. Co. v. Haskell, 4 Tex. Civ. App. 
 550. See Burwell v. Cannady, 3 
 Jones (N. C), 165; Boulder Co. v. 
 Lower Boulder Ditch Co., 22 Col. 
 115; Butler u Ash worth, 110 Cal. 614. 
 
 4 Spilman v. Roanoke Nav. Co., 74 
 N. C. 675; Connors v. McLaggan, 2 
 Kerr (N. B.), 446; Louisville R. Co. v. 
 Hays, 11 Lea (Tenn.), 382;- Prentiss v. 
 Wood, 132 Mass. 486; Wells v. New 
 Haven & N. Co., 151 Mass. 46; Hard- 
 ly v. Ball, 43 Kansas, 151; Austin 
 Ry. Co. v. Anderson, 79 Texas, 427; 
 Drake v. Chicago Ry. Co., 63 Iowa, 
 302. The same is true of a diversion. 
 Wright v. Syracuse R. Co., 49 Hun, 
 445; Silsby Manuf. Co. v. State, 104 
 N. Y. 562; Colrick v. Syracuse, 105 
 N. Y 503; Valley R. Co. v. Franz. 43 
 Ohio St. 623; Detwiler v. Toledo, 13 
 
 Ohio Cir. Ct. 5179; Chicago R. Co. vk 
 Glenney, 28 111. App. 364; 118 111. 487. 
 A recovery for erecting a nuisance 
 bars another action for the erection, 
 but not other actions for the con- 
 tinuance of the nuisance. Staple v. 
 Spring, 10 Mass. 72, 74; Hodges v. 
 Hodges, 5 Met. 205; Chattanooga v. 
 Dowling, 101 Tenn. 342. In McCoy 
 v. Danley, 20 Penn. St. 85, it was 
 held that, if the continuance of a 
 dam is of great value to the defend- 
 ant, and causes but inconsiderable 
 injury to the plaintiff, the latter is 
 entitled to such damages as will 
 compel an abatement of the nui- 
 sance. Bafctishell v. Reed, 18 B. C. 
 696. In White v. Moseley, 8 Pick. 
 356, it was held, upon the facts of 
 the case, that two distinct trespasses 
 were committed in removing a dam. 
 In general, punitive damages are 
 not matter of right, but rest largely 
 in the jury's discretion. Wabash R. 
 Co. v. Rector, 104 111. 296. See Kiel 
 v. Chartiers Gas Co., 131 Penn. St. 
 466. 
 
 5 Miller v. Keokuk Ry. Co., 63 Iowa, 
 680; Ridley v. Seaboard & R. R. Co., 
 124 N. C. 34, 37; Daneri v. Southern 
 Cal. Ry. Co., 122 Cal. 507; Hocutt v. 
 Wilmington & W. R. Co., 124 N. C. 
 214; Culver v. Chicago Ry. Co., 38 
 Mo. App. 130; Omaha R. Co. v. Brown, 
 29 Neb. 492; Int'l & G. N. Ry. Co. v. 
 Davis (Tex. Civ. App.), 29 S. W. Rep. 
 
408 THE LAW OF WATEES. [Ch. YL 
 
 a stream was obstructed wrongfully, and several years later 
 this act caused the plaintiff's land to be overflowed, it was held 
 that the statute of limitations ran only from the latter event. 1 
 So, where an embankment, which caused water to flow back 
 upon an upper proprietor, was abandoned, and the water 
 passed off through a cut made in it, but a similar structure 
 was afterwards built which obstructed the flow, the statute 
 was held to commence running at the completion of the 
 second embankment. 2 If a trespass is committed by break- 
 ing barriers, and water is thereby let in, the flow of water 
 is merely consequential, and a verdict for the plaintiff in a 
 suit for breaking the barriers and for damages resulting 
 "therefrom precludes the recovery of further damages. 3 JBut 
 if a trench is dug or a ditch deepened on a man's own land, 
 whereby water is injuriously diverted from a neighboring 
 stream, or the supply of water to a neighbor's mill is dimin- 
 ished, it is a continuing injury. 4 The owners of non-riparian 
 lands are entitled to use the stream for drainage, and may 
 recover on this ground when injured by backwater. 5 "Where 
 the materials of a bridge forming part of a discontinued high- 
 way were sold by a town to a riparian proprietor, he 'was held 
 
 483; Houston v. Parr (id.), 47 S. W. Water, 12 Mod. 519. See Buntin v. 
 
 Rep. 393; Cape v. Thompson (id.), 53 Chicago R Co., 41 Fed. Rep. 744. 
 S. W. Rep. 368. •'Ibid. 591; Schooh v. Foreman, 3 
 
 1 Devery v. Grand Canal Co., Ir. R Brewst. (Penn.) 157. Under a com- 
 9 C. L. 194; Ramsdale v. Foote, 55 plaint in an action to recover dam- 
 "Wis. 557; Fremont, etc. R. Co. v. Har- ages for the wrongful obstruction of 
 lin, 50 Neb. 698; Stanchfield v. New- a watercourse, alleging the tort to 
 ton, 142 Mass. 110. In separating the have been committed on a particular 
 damages thus accruing within the day, evidence of similar torts pre- 
 statutory period from those suffered viously committed is inadmissible, 
 before that time, much latitude is Noah v. Angle, 63 Ind. 425; Amos- 
 allowed to the jury. Hughes v. An- keag Manuf. Co. v. Head, 59 N. H. 
 derson, 68 Ala. 280. 332; 113 U. S. 9. In such case, the- 
 
 2 Little Rock Ry. Co. v. Chapman, opinion of a witness as to the amount 
 39 Ark. 463. See St. Louis Ry. Co. v. of damages resulting from the tort 
 Biggs, 52 Ark. 100; 12 S. W. Rep. 331 ; is inadmissible, and the jury must 
 Miller v. Hayden, 91 Ky. 215; Na- make the estimate from the facts- 
 tional Copper Co. v. Minnesota Min- proved. Ibid. ; post, § 493. 
 
 ing Co., 57 Mich. 83; Harrison v. Sul- ' Treat v. Bates, 27 Mich. 390; Bas- 
 
 phur Springs (Tex. Civ. App.), 35 S. sett v. Salisbury Manuf. Co., 43 N. H. 
 
 W. Rep. 744. 569; Johnson v. Roan, 3 Jones (N. C.),. 
 
 3 Clegg v. Dearden, 12 Q. B. 576: 523; Bowman v. New Orleans, 27 La. 
 
 Case of the Farmers of Hampstead Ann. 501. 
 
§ 211.] 
 
 EIGHTS OF BIPAEIAN PEOPEIETOES. 
 
 409 
 
 liable to the land-owners above for damages caused by the set- 
 ting back of the water in consequence of such materials remain- 
 ing in the river, and was not permitted to set up in defense that 
 he had removed greater obstructions from the river before the 
 purchase. 1 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. 2 Such evidence is only admissible in 
 mitigation of damages. 3 
 
 §211. Same — Damages. — 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, 4 or its fair rental 
 value from the time when the injury commenced to the date 
 of the writ. 5 He may show, in aggravation of damages, that 
 the fertility and future value of the overflowed land are im- 
 paired, 6 and the prospective loss of growing crops or timber 
 when reasonably certain to occur; 7 the expense of draining off 
 
 i Talbot v. Whipple, 7 Gray, 122. 
 
 2 Engard v. Frazier, 7 Ind. 294; Ger- 
 rish v. New Market Manuf. Co., 30 
 N. H. 478; Tillotson v. Smith, 32 N. H. 
 90; Webb v. Portland Manuf. Co., 3 
 Sumner, 402; Marcy v. Fries, 18 Kan- 
 sas, 353; McKellip v. Mcllhenny, 4 
 Watts, 317; Ware v. Allen, 140 Mass. 
 513; McGee v. Fox, 107 N. C. 766; 
 Rowe v. Titus, 1 Allen (N. B.), 326. 
 
 s Mize v. Glenn, 38 Mo. App. 98. 
 
 4 Phinizy v. Augusta, 47 Ga. 260; 
 Hardin v. Ledbetter, 103 N. C. 90; 
 Lake Erie & W. Ey. Co. v. Purcell, 
 75 111. App. 573; Murray v. Scribner, 
 74 Wis. 602; Noe v. Chicago R. Co., 76 
 Iowa, 300; Taylor v. B. & O. E. Co., 
 33 W. Va. 39; Nashville v. Suther- 
 land, 94 Tenn. 356; Hall v. Austin 
 (Tex. Civ. App.), 48 S. W. Rep. 53; 
 Owens v. Mo. Pac. Ry. Co., 67 Texas, 
 679; Galveston Ey. Co. v. Ware, id. 
 635. 
 
 5 Baldwin v. Calkins, 10 Wend. 167; 
 Chicago v. Huenerbein, 85 111. 594; 
 Willey v. Hunter, 57 Vt. 479; Brown 
 v. Chicago E. Co., 80 Mo. 457; Hughes 
 
 v. Austin, 12 Tex. Civ. App. 178; Mo. 
 etc. Ry. Co. v. Graham, id. 54; Austin. 
 v. Walsh (Tex. Civ. App.), 34 S. W. 
 Eep. 324; supra, § 210, n. 
 
 6 Hutchinson v. Granger, 13 Vt. 386; 
 Powell v. Lash, 64 N. C. 456; Marsh 
 v. Trullinger, 6 Oregon, 356; Pixley 
 v. Clark, 35 N. Y. 579; Craig v. Ship- 
 pensburg, 11 Penn. Sup. Ct. 490 (a 
 case of diversion above); Schieble v. 
 Law, 65 Ind. 332; Eooker v. Perkins, 
 14 Wis. 79; Bevier v. Dillingham, 18 
 Wis. 529; Brower v. Merrill, 3 Chand. 
 (Wis.) 46; Clark v. Nevada Land Co., 
 6 Nev. 203; Standish v. Washburn, 21 
 Pick. 237; Lincoln v. Copper Manuf. 
 Co., 9 Allen, 181, 190; Spilman v. 
 Eoanoke Nav. Co., 74 N. C. 675 ; Sabine 
 Ry. Co. v. Johnson, 65 Texas. 389. 
 Evidence is admissible as to how an 
 obstructing dam was constructed in 
 order to rebut alleged malice. A. C. 
 Conn Co. v. Little Suamico L. & M. 
 Co., 74 Wis. 652. , 
 
 7 Folsom v. Apple River Log Driv- 
 ing Co., 41 Wis. 602; Hayden v. Albee, 
 20 Minn. 159. See St. Louis, etc. Ry, 
 
410 THE LAW OF WATEKS. [Ch. VI. 
 
 the water standing upon or percolating through the soil; 1 the 
 injurious effect of the water upon a spring or well, whether 
 caused by flowing or percolation ; 2 the destruction of a ford ; 3 
 ■or the decrease in the productiveness of the neighboring up- 
 land by the percolation of water from the mill-pond. 4 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. 5 
 
 § 211a. Same — Continued. — 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. 6 
 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, 7 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. 8 But he is entitled to recover, if not guilty of 
 negligence, the full amount of the injury, of which the rental 
 value is one criterion, 9 although it might have been pre- 
 vented by the expenditure of a smaller amount. 10 The sup- 
 Co. v. Trigg, 63 Ark. 536; Ethridge v. 85; Potts v. Clarke,' Spencer (N. J.), 
 -San Antonio, etc. Ry. Co. (Tex. Civ. 536, 543. 
 App.), 39 S. W. Rep. 204. ' Chase v. New York Central E 
 
 ilbid.; Clark v. Nevada Land Co., Co., 24 Barb. 273. 
 6 Nev. 203; Chicago R. Co. v. Carey, 8 Van Pelt v. Davenport, 42 Iowa, 
 30 111. 514. 308; Simpson v. Keokuk, 34 id. 568; 
 
 2 Lehigh Valley E. Co. v. Trone, 28 Hoehl v. Muscatine, 57 id. 444; De- 
 Penn. St. 206; Com. v. Fisher, 1 Penn. corah Woolen Mill Co. v. Greer, 49 id. 
 462; Nealu Henry, Meigs (Tenn.), 17; 490; Chambers v. Kyle, 87 Ind. 83; 
 Payne v. Taylor, 3 A. K. Marsh. 328; Mack v. Jackson, 9 Col. 536; McClen- 
 Allen v. McCorkle, 3 Head, 181 ; Hard- eghan v. Omaha R. Co., 25 Neb. 523 ; 
 ing v. Funk, 8 Kansas, 315. If the Silver Creek Nav. Co. v. Mangum, 64 
 roots of a tree run into and pollute a Miss. 682; Lloyd v, Jones, 60 Vt. 288. 
 neighbor's well, he may sue therefor 9 St. Louis Trust Co. v. Bambrick, 
 if not abated after notice. Bucking- 149 Mo. 560. So of pollution. Louis- 
 ham v. Elliott, 62 Miss. 296. ville v. O'Malley (Ky.), 53 S. W. Eep. 
 
 s Monsonv. Brimfleld Manuf. Co., 287. 
 15 Pick. 544. io Eeynolds v. Chandler Eiver Co., 
 
 4 Trimble v. Gilbert, 3 Blackf. 218; 43 Maine, 513; Robinson v. Shanks, 
 'Cagle v. Parker, 97 N. C. 271; Ben- 118 Ind. 125; Suffolk G. M. Co. v. San 
 tonville R. Co. v. Baker, 45 Ark. 252. Miguel Co., 9 Col. App. 407; 24 Col. 
 
 5 Brown v. Atlanta, 66 Ga. 71. 468; Sterling Hydraulic Co. v. Gait, 
 
 6 West Ham Central Charity Board 81 111. App. 600 ; Townes v. Augusta, 
 e>. East London Waterworks, 82 L T. 52 S. C. 396; San Antonio & A. P. E. 
 
§ 2115.] 
 
 EIGHTS OF RIPARIAN PROPRIETORS. 
 
 411 
 
 posed 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 un- 
 certain and speculative elements to be included in the damages 
 for deprivation of the use of land. 1 But evidence is admissible 
 showing the value of the injured and other like crops at the 
 time and place of their destruction, 2 and how much the crop of 
 one year, made after the commencement of the action, was less 
 than those of former seasons. 3 
 
 § 211b. Same — Continued. — 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 water-power, if the declaration alleges such 
 loss of profits ; 4 but the measure of damages is not the loss 
 caused by the stoppage of the mill, but the loss which could 
 not be avoided by the use of other appliances. 5 A mill-owner, 
 who, having the right to use a reservoir and dam, is bound to 
 
 Co. v. Horkan (Tex. Civ. App.), 45 S. 
 W. Rep. 391. 
 
 1 Chicago v. Huenerbein, 85 111. 594; 
 Chicago v. Rock Island R. Co., 16 111. 
 •522; Sabine Ry. Co. v. Joachimi, 58 
 'Texas, 456; Harrison v. Spring Val- 
 ley H. G. Co., 65 Cal. 376; Drake v. 
 Chicago Ry. Co., 63 Iowa, 302; 
 Knowles v. Leggett, 7 Col. App. 265; 
 Chicago, etc. R Co. v. Emmert, 53 
 Neb. 237; Cheeves v. Danielly, 74 Ga. 
 712; Adams v. Stadlef, 78 111. App. 
 432. So of crops injured by a wrong- 
 ful diversion of water and loss of 
 customers occasioned thereby. Will- 
 iams v. Harter. 121 Cal. 47; Ehrgood 
 v. Moscow Water Co., 4 Lack. Legal 
 News, 151; Fitzsimmons v. Munch, 
 79 111. App. 538. Damages for flow- 
 ing land cannot be pleaded in set-off, 
 unless liquidated by agreement, and 
 pleaded as on contract. Pitts v. 
 Holmes, 10 Cush. 92. 
 
 2 Sabine Ry. Co. v. Smith, 73 Texas, 
 1; Gulf Ry. Co. v. McGowan, id. 355; 
 International Ry. Co. v. Pape, id. 501 ; 
 Kankakee R. Co. v. Horan, 131 111. 288; 
 17 III. App. 650. 
 
 3 Garrett v. Commissioners, 74 N. C. 
 388; Morris Canal Co. v. Ryerson, 27 
 N. J. L. 457; Ridley v. Seaboard & R. 
 R. Co., 124 N. C. 34, 37. 
 
 4 Plimpton v. Gardiner, 64 Maine, 
 360; Simmons V; Brown, 5 R. I. 299; 
 Sumner v. Tileston, 7 Pick. 198; Hol- 
 den v. Lake Co., 53 N. H. 552; White 
 v. Moseley, 8 Pick. 356; Crawford v. 
 Parsons, 63 N. H. 438; Taylor v. Dus- 
 tin, 43 N. H. 493; Lawson v. Price, 
 45 Md. 123; Potter v. Froment, 47 Cal. 
 165; Jutte v. Hughes, 67 N.Y. 267; 
 Ripley v. Great Northern Ry. Co., L. 
 R. 10 Ch. 435; Horton v. Hall (Pa.), 
 Chicago Legal News, Feb. 1883, p. 187; 
 Gibson v. 'Fischer, 68 Iowa, 29: 
 Woodin v. Wentworth, 57 Mich. 278; 
 Cargill v. Thompson, 57 Minn. 534. 
 See Burnett v. Nicholson, 86 N. C. 99; 
 Auger v. Cook, 39 Q. B. (Can.) 537. 
 
 5 Decorah Woolen Mill Co. v. Greer, 
 49 Iowa, 490; Amoskeag Manuf. Co. 
 v . Goodale, 46 N. H. 53 ; Thompson v. 
 Shattuck, 2 Met. 615. See Winne v. 
 Kelley, 34 Iowa, 339. 
 
4:12 THE LAW OF WATERS. [Ch. VI. 
 
 maintain the dam, but does not own the land, is entitled ta 
 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 obstruction 
 of repairs. 1 And a mortgagee who is in possession of a mill 
 privilege which is rendered useless by the flowing back of the 
 water, is entitled, as damages, to interest upon the value of 
 the privilege, when unobstructed, from the time of his taking 
 possession. 2 A declaration in case, which alleges that the de- 
 fendant unlawfully maintained a dam across a stream, whereby 
 the water was set back upon the plaintiff's land, is sustained 
 by proof that backwater was caused by the act of the defend- 
 ant in keeping the gates or sluices in the dam shut at times 
 when they should have been open. 3 If the owner of land on 
 both sides of a stream erects 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 be- 
 longing to the lower proprietor, without his license, the latter 
 is not liable for thus obstructing the wheels of the higher 
 mill. 1 
 
 § 211c. Same — Continued. — 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; 5 and evidence is 
 admissible which tends to show that it was produced by a 
 natural cause. 6 Where backwater was caused by the narrow- 
 ness of the stream below a dam, and that circumstance pre- 
 ponderated largely in producing the injury to the plaintiff's 
 
 JRobertsonu Wood worth, 42 Conn. v. Bush, 45 Penn. St. 61; Dickinson 
 
 163. See Bottomly v. Chism, 102 v. Boyle, 17 Pick. 78; Chidester v. 
 
 Mass. 465; Clement M. Co. v. Wood, Cons. People's Ditch Co., 53 Cal. 56-, 
 
 162 Mass. 173; Dexter v. Riverside & Chicago Ry. Co. v. Hoag, 90 111. 339. 
 O. Mills, 15 N. Y. S. 374. * Grigsby v. Clear Lake Water Co., 
 
 '■* Hatch v. Dwight, 17 Mass. 289. 40 Cal. 396; Miss. R. Cp. v. Archibald, 
 
 3 Hutchinson v. Granger, 13 Vt. 67 Miss. 38. See Rust v. Victoria G. 
 
 386. Dock Co., 36 Ch. D. 113; Thibodaux 
 
 " Jewell v. Gardiner, 12 Mass. 311. v. Thibodaux, 46 La. Ann. 1528. 
 
 5 Smith v. Russ, 17 Wis. 227; Brown 
 
§ 211c] 
 
 BIGHTS OF RIPARIAN PROPRIETORS. 
 
 413 
 
 land, it was held that there was no cause of action. 1 But, in 
 general, the fact that the defendant's dam is not the sole or 
 even the principal cause of the damage, if it clearly causes 
 some part of the damage, would not defeat the action 2 or jus- 
 tify a verdict for merely nominal damages. 3 A lower pro- 
 prietor is bound to construct his dam so that it will not 
 throw back the water, in times of ordinary freshets, upon the 
 land of an upper proprietor, and cannot successfully defend 
 upon the ground that his clam causes the flowage only when 
 the stream is swollen. 4 Under this rule, freshets are regarded 
 as ordinary which are well known to occur in the stream oc- 
 casionally through a period of years, although at "no regular 
 intervals. 5 In proceedings under the mill acts, which authorize 
 the flowage of others' lands, the jury, in estimating damages, 
 may consider the effect of those ordinary periodical freshets 
 which can be foreseen with reasonable certainty. 8 In Massa- 
 chusetts it is held that if a dam erected by the owner of lands 
 
 1 Bucker v. Athens Manuf. Co., 54 
 Ga. 84; Brown v. Atlanta, 66 Ga. 71; 
 Monongahela Nav. Co. v. Coons, 6 
 Penn. St. 383. So, in case of extraor- 
 dinary floods. China v. Southwicky 
 12 Maine, 238; Smith v. Agawani 
 Canal Co., 2 Allen, 358; Sprague v. 
 Worcester, 13 Gray, 193; Borchardt 
 v. Wausau Boom Co., 54 Wis. 107; 
 Loughran v. Des Moines, 72 Iowa, 
 382. A verdict for nominal damages 
 will not be set aside when the jury 
 might infer from the evidence that 
 the flowage was occasioned in part 
 by the defendant's acts, although 
 the damage mainly results from 
 other causes. Phillips v. Phillips, 34 
 N. J. L. 208; Janssen v. Lammers, 29 
 Wis. 88. 
 
 2 Ibid. ; Monmouth v. Gardiner, 35 
 Maine, 247; Riddle v. Delaware 
 County, 156 Penn. St. 643. 
 
 3 Learned v. Castle, 78 Cal. 454. 
 
 4 Bristol Hydraulic Co. v. Boyer, 67 
 Ind. 236; Dorman v. Ames, 12 Minn. 
 451; Pixley v. Clark, 35 N. Y. 525; 
 Ordway v. Canisteo, 21 N. Y. S. 835; 
 Cowles v. Kidder, 24 N. H. 381; Davis 
 v. Puller, 12 Vt. 178; Bell v. McClin- 
 
 tock, 9 Watts, 119; Roush v. Walters, 
 10 id. 86; Lehigh Bridge Co. v. Lehigh 
 Nav. Co., 4 Rawle, 9 ; Wallace v. Head- 
 ley, 23 Penn. St. 106; Casebeer v. 
 Mowry, 55 id. 419; McCoy v. Danley, 
 20 id. 85; Bierer v. Hurst, 155 id. 523; 
 Burbank v. Ditch Co., 13 Nev. 431; 
 Cobb v. Smith, 38 Wis. 21 : Borchardt 
 v. Wausau Boom Co., 54 id. 107; Ames 
 v. Cannon Manuf. Co., 27 Minn. 245; 
 Esson v. Wattier, 25 Oregon, 7 ; Au- 
 gusta v. Lombard, 93 Ga. 284; Pugh 
 v. Wheeler, 2 Dev. & Bat. 50; Rex v. 
 Trafford, 1 B. & Ad. 874; 8 Bing. 204. 
 
 5 Gray v. Harris, 107 Mass. 492; 
 Fick v. Penn. R. Co., 157 Penn. St. 
 622; Brown v. Pine Creek Ry. Co., 183 
 id. 38; Dorman v. Ames, 12 Minn. 451 ; 
 McKenzie v. Mississippi River Boom 
 Co., 29 id. 288; Mundy v. New York, 
 etc. R. Co., 27 N. Y. S. 469; Drake v. 
 New York, etc. R. Co., id. 739; Van 
 Duzer v. Elmira, etc. R. Co., id. 474; 
 Higgins v. New York, etc. R. Co., 29 
 id. 563; People v. Utica Cement Co., 
 22 111. App. 159; St. Louis, etc. R. Co. 
 v. Winklemann, 47 id. 276; infra, 
 §298. 
 
 6 Sabine v. Johnson, 35 Wis. 185, 203. 
 
411 THE LAW OF WATERS. [Ch. VL 
 
 upon both sides of an unnavigable stream does 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. 1 In New Hampshire 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. 2 In Proctor v. Jennings, 3 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 interfere with the mill, the owner of the dam 
 was held not to be responsible for such unforeseen and fortu- 
 itous circumstances. So a boom company, incorporated by the 
 legislature of Maine, which erected and maintained its boom 
 without fault or negligence, was held not liable for the flow- 
 age 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. 4 Where backwater was caused during a part of 
 each year by a peculiar grass which commenced 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. 5 And where the 
 proprietors of a canal, in order to prevent the canal bank from 
 bursting under an extraordinary 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 
 
 i Smith v. Agawam Canal Co., 2 2Cowles v. Kidder, 24 N. B, 364; 
 
 Allen, 355. See Shrewsbury v. Brown, Hooksett v. Amoskeag Manuf. Co., 44 
 
 25 Vt. 197; State v. Ousatonio Water N.'H. 105. See Bell v. McClintock, 9 
 
 Co., 51 Conn. 137; Shaw v. Susque- Watts, 119. 
 
 hanna Boom Co., 125 Penn. St. 324. 3 6 Nev. 53. See Yuba County v. 
 
 In general, if a natural cause con- Cloke, 79 Cal. 239. 
 
 tributes to an injury which could not *Lawler v. Baring Boom Co., 56- 
 
 happen without fault on the part of Maine, 443; China v. Southwick, 12 
 
 the defendant, he is liable. Dickin- Maine, 238; Plummer v. Penobscot 
 
 son v. Boyle, 17 Pick. 78; Salisbury v. Lumber Association, 67 Maine, 363. 
 
 Herchenroder, 106 Mass. 458. 5 Knoll v. Light, 76 Penn. St. 268- 
 
§ 212.] BIGHTS OF EIPABIAN PEOPEIETOES. 415- 
 
 flooded the plaintiffs' mines, and it appeared that in any event 
 the plaintiffs' works would have been thus injured, it was held 
 that the injury was damnum absque injuria, and that the plaint- 
 iffs could not recover even under the compensation clauses of 
 the statute under which the canal was constructed. 1 But the' 
 owner of a ditch or canal, who negligently permits it to be- 
 come obstructed with sand or weeds, is liable for injuries to' 
 the adjoining lands caused by deposits thereon, or by water 
 overflowing the banks during a season of periodical high water ; z 
 and the same is true when the overflowing is caused by back- 
 water which percolates through the soil. 3 
 
 § 212. Flowage causing public nuisance. — If a dam causes; 
 the water to be ponded back over a public highway, it is a com- 
 mon nuisance. 4 So it has been held indictable for a mill-owner 
 to cut his dam during a freshet and thereby to flood a public 
 road, although his purpose is merely to save the dam. 5 If the 
 owner of a mill and dam permits them to decay, and a high- 
 way is afterwards made across the land flowed by the dam, he 
 cannot grant the mill privilege and right to flow so as to au- 
 thorize his grantee to overflow the highway by a new dam on 
 the site of the old. 6 If a mill-owner negligently maintains a 
 dam or causeway, forming part of a highway which a town 
 
 1 Thomas v. Birmingham Canal 3 Pierce Mill Co. v. Koltermann, 25 
 Co., 49 L. J. Q. B. 851; 43 L. T. N. s. Neb. 722. 
 
 435. ■• Com. v. Stevens, 10 Pick. 247; 
 
 2 Chidester v. Consolidated People's Monmouth v. Gardiner, 35 Maine, 
 Ditch Co., 53 Cal. 56; 59 Cal. 197; 347; Kellogg v. Thompson, 66 N. Y. 
 Savannah v. Cleary, 67 Ga. 153; Trin- 88; State v. Phipps, 4 Ind. 515; State 
 ity Ey. Co. v. Schofleld, 72 Texas, 496. v. Eaypholtz, 32 Kan. 450; Com'r of 
 See Harrison v. Great Northern Ey. Highways v. Sperling (119 Mich.), 79 
 Co., 33 L. J. N. s. (Ex.) 266. Where N. W. Eep. 693; People v. Crounse, 
 A, with B's permission, placed a log 51 Hun, 489; Charlotte v. Pembroke 
 and rails in a ditch which bounded Iron Works, 82 Maine, 391. Onanin- 
 their lands, in order to prevent it formation for obstructing an ancient 
 from being choked by silt, and B watercourse to the injury of a high- 
 afterwards removed the obstruction way, it must appear that the travel- 
 from his own half of the ditch, ing public was hindered to make a 
 causing the ditch to become so ob- nuisance; and that is for the jury, 
 structed that A's land was over- State v. Smith, 54 Vt. 403. 
 
 flowed, A was held entitled to main- 5 State v. Knotts, 2 Spears (S. C.), 
 
 tain an action of trespass against B. 694. 
 
 Hogwood v. Edwards, Phill. N. C. B Com. v. Fisher, 6 Met. 433. 
 
 350. 
 
416 
 
 THE LAW OF WATBES. 
 
 [Oh. YL 
 
 is bound to keep in repair, he is liable to the town for such 
 repairs as are made necessary, by his negligence. 1 "When 
 water held by a dam, or standing in a ditch, 2 becomes stag- 
 nant and so corrupts the atmosphere as to impair the health 
 of the neighborhood, 3 or when, without causing illness, it 
 makes life and property in the community uncomfortable, 4 it is 
 indictable and abatable as a nuisance, 5 and ground for an ac- 
 tion, 6 or for relief in equity by injunction, 7 on the part of those 
 
 i Brookfield v. "Walker, 100 Mass. 94; 
 Andover v. Sutton. 12 Met. 182. See 
 Welton v. Worcott, 51 Conn. 259. 
 
 * Walley v. Platte & D. Ditch Co., 
 15 Col. 579. 
 
 3 State v. Close, 35 Iowa, 570 
 Gherkey v. Haines, 4 Blackf. 159 
 Rhodes v. Whitehead, 27 Texas, 304 
 State v. Gainer, 3 Humph. 39; Kown- 
 slar v. Ward, Gilm. (Va.) 127; Mayo 
 v. Turner, 1 Munf. (Va.) 405; Grace v. 
 Newton Board of Health, 135 Mass. 
 490. 
 
 4 Ibid. ; Eames v. New England 
 Worsted Co., 11 Met. 570; State v. 
 Rankin, 5 S. C. 438; Toledo v. Lewis, 
 17 Ohio Cir. Ct. 588. 
 
 5 Ibid.; King v. Wharton, 12 Mod. 
 510; Holt, 499; State v. 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. 39; Com. 
 v. Clarke, 1 Marsh. (Ky.) 323. In Vir- 
 ginia, if the dam is not near-a public 
 highway, and the health of a partic- 
 ular locality only is impaired, an in- 
 dictment will not lie. Com. v. Webb, 
 6 Rand. 726 ; Stephen v. Com., 2 Leigh, 
 759; Maire v. Gallahue, 9 Gratt. 94; 
 Kownslar v. Ward, Gilm. (Va.) 127. 
 See Smith v. ,Sedalia (Mo.), 53 S. W. 
 Rep. 907. 
 
 6 Ibid. ; Story v. Hammond, 4 Ohio, 
 376; Morris v. McCaney, 9 Ga. 160 
 Central R. Co. v. Wood, 51 Ga. 515 
 Hamilton v. Columbus, 52 Ga. 435 
 
 Ellington v. Bennett, 56 Ga. 158; Neal 
 v. Henry, Meigs (Tenn.), 17. In such 
 action, evidence showing the com- 
 parative healthfulness of the plaint- 
 iff's property before and after the act 
 complained of, is alone material to 
 the issue. Watson v. Van Meter, 43 
 Iowa, 76; Ferguson v. Firmenich 
 Manuf. Co., 77 id. 576. Except in ex- 
 traordinary cases the attorney gen- 
 eral cannot proceed at his own in- 
 stance by information in equity, as 
 relator for the State, to abate a mill- 
 dam hurtful to the public health, but 
 the case should be prosecuted by the 
 public and submitted to a jury. Att. 
 Gen. v. Hane, 50 Mich. 447. See Att. 
 Gen. v. Jamaica Pond- Aqueduct Co., 
 133 Mass. 361; Att. Gen. v. Logan. 
 [1891] 2 Q. B. 100; Wallesley U. D. 
 Council v. Williamson, [1896], 2 Q. B. 
 353. 
 
 'Carlisle v. Cooper, 21 N. J. Eq. 
 576; 19 id. 257; Holsman v. Boiling 
 Spring Co., 14 N. J. Eq. 335; Hill v. 
 New York, 15 N. Y. S. 393; Masonic 
 Temple Ass'n v. Banks, 94 Va. 695; 
 Nelms v. Morgan, 44 Ga. 617; Ogle- 
 tree v. McQuaggs, 67 Ala. 580; Thomas 
 v. Calhoun, 58 Miss. 80; Miller v. 
 Trueheart, 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. But the in- 
 junction may be allowed although 
 an indictment for the same cause is 
 pending. Raleigh v. Hunter, 1 Dev. 
 Eq. 12. 
 
§ 212.] EIGHTS OF EIPAEIAJST PEOPKIETOES. 417 
 
 suffering special injury. If a corporation, which has purchased 
 a canal, part of the public works constructed by the State, per- 
 mits 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. 1 
 Length of time does not legalize a public nuisance, 2 and if a 
 mill-pond which has existed for seventy years corrupts the air, 
 the owner may be indicted. 3 But the nuisance must actually 
 exist, and not be merely apprehended, in order to justify an 
 abatement. 4 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 
 continuance of the nuisance as precludes an action. 6 In Mas- 
 sachusetts, damages to lands not flowed by the dam, but ren- 
 dered 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. 6 And if navigable waters, subject to the jurisdiction of 
 a State, are obstructed by a dam or similar structure, which, 
 erected in pursuance of legislative authority, causes the health 
 of the neighborhood to be impaired, the person making the 
 structure is not thereby made subject to a prosecution for 
 maintaining a public nuisance nor can it be abated as such; 7 
 
 1 Delaware Division Canal Co. v. ages, or damages to any other subject 
 Com., 60 Penn. St. 367. than land, or by any other means 
 
 2 Ante, § 121 ; Wright v. Moore, 38 than raising water by a dam for mill 
 Ala. 593. If a road is used for forty purposes. The rule admits all direct 
 years without the incumbrance of a damage by raising water upon a com- 
 ditch, the right to reopen the ditch plainant'sland,orpreventingallvalu- 
 is lost. Com. v. Belding, 13 Met. 10. able growth, or by saturating it so as 
 
 3 Ibid.; State v. Rankin, 3 S. C. 438. to render it unfit to produce good 
 
 4 Gates v. Blincoe, 2 Dana, 158. See grass, by separating one part of the 
 Att. Gen. v. Revere Copper Co., 152 complainant's land from another so 
 Mass. 444. as to render bridges or causeways 
 
 8 Adams v. Popham, 76 N. Y. 410. necessary, or other direct damage." 
 
 See Heiskell v. Cobb, 11 Heisk. 638; To the same effect, see Rooker v. Per- 
 
 Mosser v. Seeley, 10 Neb. 460. kins, 14 Wis. 79; Brower v. Merrill, 
 
 6 Fuller v. Chicopee Manuf. Co., 16 3 Chand. (Wis.) 46; 3 Pin. 46. See 
 Gray, 46; Eames v. New England Smith v. Longewald, 140 Mass. 205. 
 Worsted Co., 11 Met. 570. In the 7 Depew v. Trustees, 5 Ihd. 8; But- 
 above case of Fuller v. Chicopee ler v. State, 6 Ind. 165; Neaderhouser 
 Manuf. Co., Merrick, J., said: "The v. State, 28 Ind. 257, 268; Barnes v. 
 law does not justify an allowance for Racine, 4 Wis. 494; Stoughton v. 
 remote, possible, or speculative dam- State, 5 Wis. 291 ; Harris v. Thomp- 
 27 
 
418 THE LAW OF WATEES. [Ch. VI. 
 
 but the legislature, upon providing just compensation, may 
 require the removal of such works on the ground that they 
 are detrimental to the health of the surrounding country. 1 
 If a canal company 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 towpath and forms 
 stagnant and noisome pools on adjoining land not belonging 
 to the company, it is indictable for maintaining a nuisance. 2 
 The rule of liability for endangering the public health applies 
 only to artificial waters; and the owner of swampy or over- 
 flowed lands is not guilty of a public nuisance if he neglects 
 to drain them. 3 The right of the legislature, in New Jersey, 
 to order low lands to be drained at the expense of the owners 
 is upheld under the police power. 4 
 
 §213. Diversion. — 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. 5 The distinction is to 
 
 son, 9 Barb. 350; Williams v. New v. Hull, 77 Iowa, 309; Dilling v. Mur- 
 
 York Central R. Co., 18 Barb. 222; ray, 6 Ind. 324; Robinson v. Shanks, 
 
 People u Law, 34 Barb. 514. 118 Ind. 125; New Haven W. Co. v. 
 
 i Miller v. Craig, 11 N. J. Eq. 175; Wallingford, 72 Conn. 293; 44 Atl. 
 
 Rogers v. Barker, 31 Barb. 447; The Rep. 235; Norton v. Valentine, 14 Vt 
 
 Wharf Case, 3 Bland Ch. 442. 239; Ford v. Whitlock, 27 Vt. 265; 
 
 2 Delaware Canal Co. v. Com., 60 Canfleld v. Andrew, 54 Vt. 1 ; Society 
 Penn. St. 367. v. Morris Canal Co., Sax. (N. J.) 157; 
 
 3 Woodruff v. Fisher, 17 Barb. 224. Halsey v. Lehigh Valley R Co., 45 
 
 4 Wurts v. Hoagland, 114 U. S. 606; N. J. L. 26; Webster v. Fleming, 2 
 Springer v. Lawrence, 47 N. J. Eq. Humph. 518; Hough v. Doylestown, 
 461; 49 id. 289; In re Drainage along 4 Brewst. (Pa.) 333; Brown v. Kistler, 
 Pequest River, 41 N. J. L. 175; 39 id. 190 Penn. St. 499; Shamleffer ». Coun- 
 197, 433; 40 id. 380; 42 id. 553; In re cil Grove Peerless Co., 18 Kansas, 24; 
 Drainage, 35 id. 497. See State v. Bathgate v. Irwine (126 Cal.), 58 Pac. 
 Clinton, 39 id. 656. Rep. 442. As to the measure of data- 
 
 5 Orr Ewing v. Colquhoun, 2 App. ages, for diversion, in special cases, 
 Cas. 839; Sandwich v. Great Northern see Hanover Water Co. v. Ashland 
 Ry. Co., 10 Ch. D. 707; Garwood v. Iron Co., 84 Penn. St. 279; Bare v. 
 New York Central R. Co., 83 N. Y. Hoffman, 79 id. 71; Stein v. Burden, 
 400; 17 Hun, 356; 116 N. Y. 649; Pet- 29 Ala. 127; 24 Ala. 130; Stein v. 
 tibone v. Smith, 37 Mich. 579; Hilli- Ashby, id. 521; Thayer v. Brooks, 17 
 ieru. Coleman, 73 Mich. 170; Preston Ohio, 489; Plumleigh v. Dawson, 1 
 
§ 213.] ' EIGHTS OF EIPAEIAN PBOPEIETOES. 4:19 
 
 be 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 rea- 
 sonable extent. 1 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 violation of 
 right by one party that the other has increased the usefulness 
 of the stream by means of a reservoir higher up, siuce the pri- 
 vate right of one man cannot be taken by another upon the 
 substitution of an equivalent benefit. 2 Where a lower pro- 
 prietor, with the consent of proprietors higher up the stream, 
 diverted the water above the plaintiff's land lying upon one 
 side of the stream into a channel which conducted a consid- 
 erable portion of the water around the plaintiff's land to his 
 own mill below, it was held that this was not such an inci- 
 dental obstruction or loss of the water as was necessarily con- 
 sequent upon the lawful use of the stream Dy one proprietor, 
 giving no ground for an action, 3 and that the license of the 
 upper proprietors afforded the defendant no protection as 
 against the plaintiff. 4 The question whether the injury is 
 caused by the defendant's diversion or artificial diminution or 
 by a gradual drying up of the stream is properly a question 
 of fact for the jury. 3 Where the defendant, being one of two> 
 
 Gilman, 544. As to counter-claim, N. Y. 213; Sparks Manuf. Co. v. New- 
 see Grange v. Gilbert, 44 Hun, 9. ton, 57 N. J. Eq. 367; 41 Atl. Rep. 385;. 
 
 1 Elliott v. Fitch burg R. Co., 10 45 id. 596; Montague v. Jefferson 
 Cush. 191; Auburn v. Union W. P. v County Com'rs (Kan. App.), 53 Pac. 
 Co., 90 Maine, 576; Dumont v. Kel- Rep. 145; Weiss v. Oregon Iron Co., 
 logg, 29 Mich. 430; Wadsworth v. Til- 13 Oregon, 496. Upon the landlord's 
 lotson, 15 Conn. 366; Hartzall v. Sill, liability for his tenant's diversion of 
 12 Penn. St. 248; Fulmer v. Williams, water for other purposes than those 
 122 id. 191; Coalterv. Hunter, 4 Rand, authorized by his agreement, see 
 58; Loud Gold Mining Co. v. Blake, Clement v. Gould, 61 Vt. 573. 
 
 24 Fed. Rep. 249; Learned v. Castle, 8 Wadsworth v. Tillotson, 15 Conn. 
 
 78 Cal. 454; Tucker v. Salem Flour- 266; Harding v. Stamford Water Co., 
 
 ing Mills Co., 15 Oregon, 581; New 41 Conn. 87. 
 
 York Rubber Co. v. Rothery, 10 N. Y. 4 Parker v. Griswold, 17 Conn. 288 ; 
 
 S. 872; 23 id. 247; 132 N. Y. 293; Ver- Armstrong v. Potts, 22 N. J. Eq. 92; 
 
 num v. Wheeler, 35 Hun, 53. See Larsh v. Test, 48 Ind. 130; 76 Ind. 
 
 Mills v. Chicago & N. W. Ry. Co., 103 452; 98 Ind. 301; Kimberly Co. v. 
 
 Wis. 192. Hewitt, 79 Wis. 334; 75 Wis. 371. 
 
 2 Webb v. Portland Manuf. Co., 3 5 Marsh v. Delaware R. Co., 12 N. Y. 
 Sumner, 189; Neal v. Rochester, 156 S. 376; White v. East Lake Land Co., 
 
420 THE LAW OF WATEKS. [Ch. YI. 
 
 tenants iti 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 L pond by means of a channel, dug 
 upon his own land opposite, for the purpose of driving machin- 
 ery on that land, an injunction was granted to restrain the diver- 
 sion during the\plaintiff's turn, but relief was refused against 
 the use of the channel, which was not shown to be injurious 
 to the common property, or against the diversion of the water 
 through it during the defendant's turn. 1 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. 2 A riparian proprietor cannot lawfully dig in the 
 bed of a stream, on his own side of the thread, in such manner 
 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. 4 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 rignts of an intervening proprietor. 5 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. 6 An upper pro- 
 prietor is liable in damages at law, or may, in case of irrepa- 
 rable injury, be restrained by injunction, 7 if he so diverts the 
 
 96 Ga. 445; Harper v. Mountain W. North Fork "W. Co. v. Edwards, 121 
 
 Co. (N. J. L.), 43 AtL Rep. 984. Cal. 662. 
 
 i Bliss v. Rice, 17 Pick. 23. See Al- * Olney v. Fenner, 2 R L 211. 
 
 hambra A. W. Co. v. Mayberry, 88 6 Lawson v. Mowry, 52 'Wis. 219; 
 
 Cal. 68. Medway Co. v. Romney, 9 C. B. N. s. 
 
 2 Wood v. Waud, 3 Exch. 748, 779; 575. A disuser of a State canal, and 
 Davis v. Gale, 32 Cal. 26; Druley v. a conveyance thereof to trustees for 
 Adam, 102 111. 177; Adams v. Slater, the benefit of State creditors, do not 
 8 Brad. (111.) 72. revest title in the original owners. 
 
 3 Van Hoesen v. Coventry, 10 Barb. Mason v. Lake Erie Ry. Co., 9 Biss. 
 518. See Mizell v. McGowan, 120 239; 1 Fed. Rep. 712. See Collett v. 
 N. C. 134. Vanderburgh Co., 119 Ind. 27. 
 
 * Merrittu. Parker, Coxe(N. J.), 460; 'Marble v. Adams, 46 Vjb. 496; 
 
§ 214-] 
 
 EIGHTS OF RIPARIAN PROPRIETORS. 
 
 421 
 
 stream as to cause the water to be discharged upon the land 
 or into the ditches or mines ,of a neighbor; 1 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 plaintiff's mills are situated; 2 or if he exhausts a 
 spring or marsh which is the source of a watercourse, and 
 thereby stops the stream. 3 In an action for preventing, by 
 diversion, the waters of a stream from coming to the plaint- 
 iff's mill, the return of a certain percentage of the water to the 
 stream may be considered as an element of damages. 4 And 
 one who has diverted water, but has returned it undiminished 
 in quantity, is not a necessary party to the suit, or liable there- 
 for. 5 
 
 § 214. Same — Actual damage. — Although the decisions 
 are not in entire harmony, yet, by the weight of authority, 
 neither an upper or lower proprietor can maintain an action for 
 the diversion, the raising or detention of, the water by a neigh- 
 bor upon the stream, which, being reasonable in mode and de- 
 
 Chesapeake R. Co. v. Bobbett, 5 W. 
 Va. 138; Churchill v. Baumann, 95 
 CaL541. Standing by, and permitting 
 another without objection to divert a 
 small stream at great expense, will 
 prevent the obtaining a mandatory 
 injunction. Slocumb v. C., B. & Q. R. 
 Co., 57 Iowa, 675; Muncey v. Joest, 74 
 Ind. 409. 
 
 !Musgrave v. Smith, 2 App. Cas. 
 781; Shaw v. Cummiskey, 7 Pick. 
 76; Porter v. Dunham, 74 N. C. 767; 
 Chapman v. Copeland, 55 Miss. 476; 
 Thompson v. Crocker, 9 Pick. 59; 
 Boynton v. Reese, id. 528. 
 
 2 Bennett v. Murtaugh, 20 Minn. 
 151; Curtiss v. Ayrault, 3 Hun, 487; 
 47 N. Y. 73; 5 Thomp. & C. 611; Bas- 
 sett v. Salisbury Manuf. Co., 43 N. H. 
 578. See Bearse v. Perry, 117 Mass. 
 211. 
 
 tPost, § 263; Howe v. Norman, 13 
 R I. 488; Van Wycklen v. Brooklyn, 
 118 N. Y. 424; Smith v. Brooklyn, 160 
 N. Y. 357: 52 N. Y. S. 983;. Arnold v. 
 Foot, 12 Wend. 330; Colrick v. Swin- 
 burne, 105 N. Y. 503; Fleming U 
 
 Davis, 37 Texas, 173; Wadsworth v. 
 Tillotson, 15 Conn. 366; Eulrich v. 
 Richter, 41 Wis. 318; 37 Wis. 226; 
 Williamson v. Lock's Creek Canal 
 Co., 76 N. C. 478; 78 N. C. 156; Gillett 
 v. Johnson, 30 Conn. 180; Galveston, 
 etc. Ry. Co. v. Haas (Tex. Civ. App.), 
 37 S. W. Rep. 167; 17 Tex. Civ. App. 
 309. Flood or freshet water, over- 
 flowing a stream's banks, is surface 
 water, and may be appropriated and 
 diverted. Lehigh Coal Co. v. Scran- 
 ton Gas Co., 6 Penn. Dist. Ct 291; 
 Mo. Pac. Ry. Co. v. Keys, 55 Kansas, 
 205; New York, etc. R. Co. v. Speel- 
 man, 12 Ind. App. 372; Jean v. Penn. 
 Co., 9 id. 56. See Cairo, etc. Ry. Co. 
 v. Brevoort, 62 Fed. Rep. 129; Gray v. 
 Mc Williams, 98 Cal. 157; Gring v. 
 Sinking Spring W. Co., 7 Penn. Supr. 
 Ct. 63. 
 
 4 Mannville Co. v. Worcester, 138 
 Mass. 89. 
 
 s Smith v. Logan, 18 Nev. 149; Aus- 
 tin v. Chandler (Ariz.), 42 Pac. Rep. 
 483. 
 
422 
 
 THE LAW OF WATERS. 
 
 [CH. VL 
 
 gree, is not the cause of actual perceptible damage. 1 Under 
 this rule, as no right of action accrues until injury is inflicted, 
 no prescription begins to run until that time. 2 In Sandwich 
 v. Great Northern Ky. Co., 3 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 affect the depth of the stream more than one-fifth of an 
 inch, was reasonable. Actual present 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 complained of, if continued, would bar the plaintiff's 
 right, 4 and nominal damages may be recovered in order to 
 
 i Elliott v. Fitohburg R. Co., 10 
 Gush. 191; Norway Plains Co. v. 
 Bradley, 52 N. H. 108; Amoskeag 
 Manuf. Co. v. Goodale, 46 N. H. 53; 
 Tyler v. Wilkinson, 4 Mason, 397; 
 Cooper v. Hall, 5 Ohio, 320; MoElroy 
 v. Goble, 6 Ohio St. 187; Longstreet 
 v. Harkrader, 17 id. 23; Garrett v. 
 McKie, 1 Rich. (S. C.) 444; Chalk v. 
 MoAlily, 11 id. 153; Merritt v. Brinck- 
 erhofif, 17 Johns. 306; Howatt v. Laird, 
 1 Pr. Edw. Island, 7, 21, 157; post, 
 §§ 401-425. 
 
 2 Murgatroyd v. Robinson, 7 El. & 
 Bk. 391; Cooper v. Barber, 3 Taunt. 
 99; Sturges v. Bridgman, 28 Am. L. 
 Reg. 348; Angus v. Brown, 4 Q. B. D. 
 162; Thurber v. Martm, 2 Gray, 394; 
 Gould v. Boston Duck Co., 13 Gray, 
 442; Gilmore v. Driscoll, 122 Mass. 
 207; Heath v. Williams, 25 Maine, 
 209; Crosby v. Bessey, 49 id. 539; 
 Mitchell v. Mayor, 49 Ga. 19; Hols- 
 man v. Boiling Spring Co., 14 N. J. 
 Eq.i345; Norton v. Volen^ine, 14 Vt. 
 239; Hurlburt v. Leonard, Brayt. 
 <Vt.) 202; Parker v. Hotchkiss, "25 
 Conn. 321; Keeney Manuf. Co. v. 
 Union Manuf. Co., 39 Conn. 576; Du- 
 mont v. Kellogg, 29 Mich. 420; Piatt 
 v. Johnson, 15 Johns. 213; Hoyt v. 
 Sterrett, 2 Watts, 327; Richart v. 
 Scott, 7 Watts, 462; Valparaiso City 
 W. Co. v. Dickover, 17 Ind. App. 233, 
 
 239; Anaheim Water Co. v. Semi- 
 Tropic Water Co., 64 CaL 185; Moore 
 v. Clear Lake Water- Works, 68 CaL 
 146. 
 
 3 10 Ch. D. 707; 27 W. R. 616; 
 Dakin u. Cornish, cited 6 Exch. 360; 
 Cummings v. Barrett, 10 Cush. 191; 
 Garwood v. New York Central R. 
 Co., 83 N. Y. 400; 17 Hun, 356. Cf. 
 Graham v. Northern Ry. Co., 10 Ch 
 (Can.) 259. 
 
 4 Ibid.; Rochdale Canal Co. v. 
 King, 14 Q. B. 134; 2 Sim. n. s. 78; 
 Harrop v. Hirst, L. R. 4 Ex. 43; West- 
 bury v. Powel, cited in Fineaux v. 
 Hovenden, Cro. Eliz. 663; Mellor v. 
 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 v. 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 v. Smith, 32 
 N. H. 90; Blodgett v. Stone, 60 N. H 
 167; Butrnanw. Hussey, 12 Maine, 407; 
 Heath v. Williams, 25 id. 209; Mun- 
 roe v. Stickney, 48 id. 462; Blanchard 
 v. Baker, 8 id. 253; Appletonu Fuller- 
 ton,! Gray, 186; Thompson v. Crocker, 
 
I 214.] 
 
 EIGHTS OF BIPAEIAN PEOPEIETOES. 
 
 423 
 
 prevent the acquisition of an adverse title by prescription. 1 
 A riparian proprietor may maintain an action for the diver- 
 sion of a stream without proof that he has an ancient mill 
 thereon or that he has appropriated the water to any special 
 use, 2 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. 3 As 
 against a wrong-doer, the mere possession of rights, corporeal 
 or incorporeal, is sufficient to maintain an action for their dis- 
 turbance. 4 
 
 3 Pick. 58; Bolivar Manuf. Co. v. Ne- 
 ponset Manuf. Co., 16 Pick. 341 ; New- 
 tiall v. Ireson, 8 Cush. 595; Stowell v. 
 Lincoln, 11 Gray, 434; Lund v. New 
 Bedford, 121 Mass. 286; Ware v. Allen, 
 140 Mass. 513; Cook v. Hull, 3 Pick. 
 269; Bliss v. Rice, 17 Pick. 23; Union 
 Co. v. Dangberg, 2 Sawyer, 450; Whip- 
 ple v. Cumberland Manuf. Co., 2 
 Story, 664; Webb v. Portland Manuf. 
 Co., 3 Sumner, 189; Bullard v. Sara- 
 toga Manuf. Co., 77 N. Y. 525; Crooker 
 v. Bragg, 10 Wend. 260; Baldwins. 
 Calkins, id. 167; Palmer v. Mulligan, 
 3 Caines, 307; Piatt v. Johnson, 15 
 Johns. 213 ; Van Hoesen v. Coventry, 
 10 Barb. 518; Thomas v. Brackney, 
 17 id. 654; Wadsworth v. Tillotson, 
 15 Conn. 366; Chapman v. Thames 
 Manuf. 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; Hulme 
 v. Shreve, 3 Green (N. J.), 116; Glad- 
 felter v. Walker, 40 Md. 1 ; Pastorious 
 v. Fisher, 1 Rawle, 27; Alexander v. 
 Kerr, 2 id. 83; Howell v. McCoy, 3 id. 
 256; Eipka v. Sergeant, 7 Watts & S. 
 9, 11; Beiswell v. Sholl, 4 Dallas, 211; 
 Hartzall v. Sill, 12 Penn. St. 348; 
 Graver v. Sholl, 42 id. 58; Dumont v. 
 Kellogg, 29 Mich. 422; PlumTeigh v. 
 Dawson, 1 Gilman, 544; Hill v. Ward, 
 2 id. 285; Ulbricht v. Eufaula Water 
 Co., 86 Ala. 587; Stein v. Burden, 24 
 Ala. 130; 29 Ala. 127; Stein v. Ashby, 
 •24 Ala. 521 ; Close v. Samm, 27 Iowa, 
 
 503; Watson v. Van Meter, 43 id. 76; 
 Cory v. Silcox, 6 Ind. 39; Little v. 
 Stanback, 63 N. C. 285; Pugh v. 
 Wheeler, 3 Dev. & Bat. 50; Chapman 
 v. Copeland, 55 Miss. 476; Hendrick 
 v. Cook, 4 Ga. 34; Ellington v. Ben- 
 nett, 59 Ga. 386; Green v. Weaver, 63 
 Ga. 302; Attwood v. Fricot,-17 CaL 
 37; Creighton v. Evans, 53 Cal. 55; 
 Weltonu Martin, 7 Mo. 307; Smith 
 v. McConathy, 11 Mo. 517; Haas v. 
 Choussard, 17 Texas, 588. And see 
 post, ch. 12. 
 
 1 Ibid. ; Wilts Canal Co. v. Swindon 
 Water W6rks Co., L. R. 9 Ch. 451; L. 
 R 7 H. L. 697; Plumb v. McGannon, 
 32 Q. B. (Can.), 8, 12; Mueller v. 
 Fruen, 36 Minn. 273; Shot well v. 
 Dodge, 8 Wash. 337; McGlone v. 
 Smith, 22 L. R Ir. 559. 
 
 2 Rutland v. Bowler, 3 Exch. 290, 
 774; Sands v. Trefuses, Cro. Car. 575; 
 Cox v. Matthews, 1 Vent. 237; Wright 
 v. Howard, 1 Sim. & Stu. 190; Mason 
 v. Hill, 5 B. & Ad. 1: 3 B. & Ad. 304; 
 Adams v. Barney, 25 Vt. 225; Van 
 Sickle v. Haynes, 7 Nev. 249 ; Wright 
 v. Syracuse R. Co., 49 Hun, 445; Le- 
 furgy v. N. Y. R. Co., 50 Hun, 606; 3 
 N. Y. S. 303. 
 
 3 Hay den v. Long, 8 Oregon, 344; 
 Nuttall v. Bracewell, L. R. 3 Ex. 1, 
 7, 11; Covington v. Becker, 5 Nev. 
 381; Petrie v. Hamilton College, 40 
 N. Y. S. 781. 
 
 4 Pullan v. Roughfort Bleaching 
 Co., 21 L. R. Ir. 73; Boyington v. 
 
424 THE LAW OF WATERS. [Ch. VL 
 
 i 
 
 § 215. Same. — 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 proprie- 
 tor to divert or sever a proportionate part of it. 1 He may di- 
 vert so much of the water as will not unreasonably impair 
 the rights of other proprietors. 2 In this respect there appears 
 to be no distinction between the diversion and the detention 
 or other use of the stream. One Avho 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; 3 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. 4 Upon the ground of irrep- 
 arable 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. 5 Even when serious damage" 
 is not proved, an injunction may be granted to prevent the ac- 
 quisition by prescription of an adverse right to divert ; 6 and if 
 the diversion is clearly wrongful, it is not necessary for the 
 plaintiff to prove substantial damages in order that he may be 
 entitled to an injunction. 7 
 
 Squires, 71 Wis. 276; Norris v. Glen, srbM. 
 
 1 Idaho, n. s. 590; Emerson v. Ber- 3 Stiokney v. Monroe, 44 Maine, 
 
 gin, 71 Cal. 335; Moore v. Clear 195; Buddington v. Bradley, 10 Conn. 
 
 Water Lake Co., 68 Cal. 146; Salis- 213; Johnson v. Lewis, 13 Conn. 303; 
 
 bury v. Western N. C. B. Co., 91 Brooke v. Winter, 39 Ind. 505. 
 
 N. C. 490. 4 Atlanta Mills v. Mason, 120 Mass. 
 
 1 Webb v. Portland Manuf. Co., 3 244; Chapman v. Copeman, 55 Miss. 
 
 Sumner, 189; Corning v. Troy Iron 476: Shamleffer v. Peerless Mill Co., 
 
 Factory, 40 N. Y. 191; Blanohard v. 18 Kansas, 24. 
 
 Baker, 8 Maine, 253; Curtis v. Jack- 5 Marble v. Adams, 46 Vt. 496.; 
 
 son, 13 Mass. 507; Elliott v. Fitohburg Chesapeake F». Co. v. Bobbett, 5 W. 
 
 R. Co., 10 Cush. 191 ; Vanderburgh v. Va. 138 : Wright v. Moore, 38 Ala. 593. 
 
 Vanbergen, 13 Johns. 212; Arthurs. « Franklin v. Pollard Mill Co., 88 
 
 Case, 1 Paige, 447; Parker v. Gris- Ala. 318. 
 
 wold, 17 Conn. 301; Runnels v. Bui- 7 Amsterdam Knitting Coj v. Dean, 
 
 len, 2 N. H. 532; Bare v. Hoffman, 79 162 N. Y. 278; Conkling. v. Pacific 
 
 Penn. St. 71; Plumleigh v. Dawson, Impr. Co., 87 Cal. 296. 
 Gilman, 544. 
 
§ 216.] EIGHTS OF EIPABIAN PEOPEIETOES. 425 
 
 § 216. Riparian estates — Alteration of surface.— If a lit- 
 toral proprietor so excavates on his own land as to let in the 
 sea, .which undermines his neighbor's land adjoining, he is lia- 
 ble for the injury thus caused, including the percolation of salt 
 water into the neighbor's well. 1 But 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 an- 
 other's injury, as by filling in within its banks. 2 If he digs a 
 ditch on his own 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 the water for the bene- 
 fit of a lower proprietor who attempts to erect a dam without 
 right on his own land, 3 and if after the ditch is dug such lower 
 proprietor is authorized by statute to maintain his dam, this 
 imposes no duty upon the ditch-owner to restore his land to its 
 original condition. 4 So the owner of land may cultivate it in 
 the usual manner, if reasonable, and is not liable to a lower 
 proprietor into whose mill-pond the soil is drained from his 
 land as a result of such cultivation. 5 And if he makes excava- 
 tions on his own land, in which water collects forming a pond, 
 he is not liable if a trespasser is drowned therein. 6 "Where the 
 right of flowage is given by statute without creating any ease- 
 ment in the lands of others which are overflowed, 7 as is the case 
 with respect to the mill act of Massachusetts, 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 completed, 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. 8 They are not entitled to draw 
 
 1 Mears v. Dole, 135 Mass. 508. See 103. See Peoria v. Utica Cement Co., 
 Sweeny v. Montana Cent. Ry. Co., 19 22 111. App. 159. 
 
 Mont. 163. 6 Klix v. Nieman, 68 Wis. 271 ; Over- 
 
 2 Storm v. Manohaug Co., 13 Allen, holt v. Vieths, 93 Mo. 422; McCormick 
 10; Bearse v. Perry, 117 Mass. 211; v. Horan, 81 N. Y. 86. 
 
 Stewart v. Schneider, 22 Neb. 286; 7 Murdook v. Stiokney, 8 Cush. 113; 
 
 Dayton v. Robert, 8 Ohio Cir. Ct. Lowell v. Boston, 111 Mass. 466; Bos- 
 
 649. ton Manuf. Co. v. Burgin, 114 Mass. 
 
 3 Bearse v. Perry, 117 Mass. 211. 340. 
 
 * Ibid. 8 Storm v. Manohaug Co.,- 13 Allen, 
 
 « Middlesex Co. v. McCue, 149 Mass. 10 ; post, §§ 253, 591. 
 
426 
 
 THE LAW OF WATEKS. 
 
 [Oh. VI. 
 
 off the water unreasonably after it has been raised by a dam 
 so authorized, but they may lawfully appty it to any useful 
 purpose, including that of irrigation, the watering of cattle, 
 and the taking of ice, 1 if they do not, in point of fact, and in a 
 perceptible and substantial manner, impair the right to run the 
 mill. 2 
 
 §217. Irrigation. — The right of a riparian proprietor to 
 divert the water of a stream for the purpose of irrigation is 
 recognized in England, 3 and generally in this country. 4 Ac- 
 cording to 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 nqt materially affect the appli- 
 cation of the water by other riparian proprietors. 5 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 part of the stream, 
 could not lawfully irrigate such land continually by canals 
 
 1 See supra, § 191 ; Gehlen v. Knorr, 
 101 Iowa, 700. 
 
 2 Cook v. Hull, 3 Pick. 269; Paine 
 v. Woods, 108 Mass. 160, 173; Howe 
 v. Andrews, 62 Conn. 398; § 191 above. 
 
 3 Embrey v. Owen, 6 Exch. 353; 
 Sandwich v. Great Northern Ry. Co., 
 10 Ch. D. 707, 711; Chasemore v. Rich- 
 ards, 2 H. & N. 190; 5 H. & N. 983; 7 
 H. L. Cas. 349; Sampson v. Hoddi- 
 nott, 1 C. B. n. s. 590; Greenslade v. 
 Haliday, 6 Bing. 379; Hall v. Swift, 9 
 Scott, 167; Strutt v. Bovington, 5 
 Esp. 56; Gale & "Whatley on Ease- 
 ments, 284. 
 
 4 Blanchard v. Baker, 8 Maine, 253, 
 266; Davis v. Getchell, 50 id. 604; New- 
 hall v. Ireson, 8 Cush. 595; Elliott v. 
 Fitchburg R. Co., 10 id. 194; Colburn 
 v. Richards, 13 Mass. 420; Anthony v. 
 Lapham, 5 Pick. 175; Cook v. Hull, 3 
 id. 269; Paine v. Woods, 108 Mass. 160, 
 173; Garwood v. New York Central 
 R. Co., 83 N. Y. 400, 405; 17 Hun, 356; 
 Farrell v. Richards, 30 N. J. Eq. 511; 
 Union Mill Co. v. Ferris, 2 Sawyer, 
 
 176; Union Mill Co. v. Dangberg, id. 
 450 ; Ingraham v. Hutchinson, 2 Conn. 
 584; Wadsworth v. Tillotson, 15 id. 
 366; Gillett v. Johnson, 30 id. 180; 
 Randall v. Silverthorn, 4 Penn. St. 
 173; Miller v. Miller, 9 id. 74; Mess- 
 inger's Appeal, 109 id. 285; Tolle v. 
 Correth, 31 Texas, 362; 98 Am. Dec. 
 540, and note; Fleming v. Davis, 37 
 Texas, 173; Mud Creek Ir. Co. v. Viv- 
 ian, 74 id. 170; Stein v. Burden, 29 
 Ala. 127; 24 Ala. 130; Potier v. Bur- 
 den, 38 Ala. 651; Blessing v. Blair, 45 
 Ind. 546; Lux v. Haggin, 69 Cal. 255; 
 Learned v. Tangeman, 65 Cal. 334; 
 Ferrea v. Knipe, 28 Cal. 343; Peregoy 
 v. McKissick, 79 Cal. 572; Peregoy v. 
 Sellick, id. 568; Sharp v. Hoffman, id. 
 404; Wheeler v. No. Col. Ir. Co., 10 
 Col. 582. See 35 Cent. L. J. 164. In 
 Utah, see Stowell v. Johnson, 7 Utah, 
 215. 
 
 5 Ibid. According to earlier author- 
 ities, irrigation is a natural want. 
 Ante, § 205. See, also, Pomeroy on 
 Riparian Rights, § 138. 
 
§ 218.] EIGHTS OF RIPARIAN PROPRIETORS. 427 
 
 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 natural absorption and 
 evaporation of the water employed for the purpose. 1 If the 
 water used for irrigation is not abstracted on a person's own 
 land, but is withdrawn at a distance above it or returned at a 
 distance below it, this would have a material bearing upon 
 the question of reasonable use with respect to an opposite or 
 other proprietor affected by such diversion. 2 So, a riparian 
 proprietor 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 without returning the 
 surplus into the natural channel, is liable to the owner of a 
 mill below, the operation of which is thereby impeded, 3 or to 
 another proprietor below, who only uses the water for irriga- 
 tion and is deprived of that right to an unreasonable extent. 4 
 A riparian owner, who withdraws water from a stream for 
 irrigation, cannot, after using it, lawfully discharge the sur- 
 plus upon other lands in such manner as to there increase the 
 burden of the natural servitude of drainage. 5 
 
 § 218. Obstructing the flow. — It is not lawful for one pro- 
 prietor to impede or diminish the ordinary flow of the water 
 so as to materially interfere with the enjoyment of other pro- 
 prietors; 6 and if the owner of a mill withholds or lets down 
 the water in excessive quantities, beyond what is incident to 
 the necessary or reasonable use of his mill, he is liable to an 
 
 JEmbrey v. Owen, 6 Exoh. 353, 371. 6 Boynton v. Longley, 19 Nev. 69. 
 
 2 Ibid.; Union Mill Co. v. Ferris, 2 ^Embrey v. Owen, 6 Exch. 353; 
 
 ■Sawyer) 176; Stein r. Burden, 29 Ala. Shears v. Wood, 7 Moore, 534; Hinck- 
 
 127; 24 Ala. 130; Wadsworth v. Til- ley v. Niokerson, 117 Mass. 215; Twiss 
 
 lotson, 15 Conn. 366. See post, § 534. v. Baldwin, 9 Conn. 291 ; Phillips v. 
 
 In Heinlen v. Fresno Canal Co., 68 Sherman, 64 Maine, 171; Davis v. 
 
 Cal. 35, held that evidence of injuries Winslow, 51 id. 290; Davis v. Getch- 
 
 from diversion to lands not bordering ell, 50 id. 602; Timm v. Bear, 29 
 
 on the stream, and to the plaintiff's Wis. 254; Vliet v. Sherwood, 35 id. 
 
 •cattle there pastured, was inadmis- 229; 38 id. 159; Sackrider v. Beers, 10 
 
 gible. Johns. 241 ; Hendrick v. Cook, 4 Ga. 
 
 3 Cook«. Hull, 3 Pick. 269; Colburn 241; Pool v. Lewis, 41 id. 162; Hoy v. 
 
 v. Richards, 13 Mass. 420. Sterrett, 2 Watts, 327; Hetrick v. 
 
 'Anthony v. Lapham, 5 Pick. 175; Deachler, 6 Penn. St, 32; Case v. 
 
 Cummings v. Barrett, 10 Cush. 186, Weber, 2 Ind. 108; Noah v. Angle, 63 
 
 195; Bent v. Wheeler, 3 Dane Abr. 16. id. 425. 
 
428 THE LAW OF WATERS. [Ch. VI. 
 
 action of tort at common law for any appreciable damage 
 thereby caused to a lower proprietor. 1 It is a reasonable use 
 of the stream by 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 ordinary 
 stages, is adequate to propel. 2 In times of drouth, the water 
 may be detained for such length of time as is necessary to 
 enable it to be advantageously and profitably used for suijh 
 machinery. 3 If a mill-owner, in seasons of drouth, shuts his 
 gates so as to stop the flow of the water until his pond be- 
 comes full, it is not an unreasonable exercise of his right to 
 let down the water and thereby increase the volume of the 
 stream to any extent that does not exceed the usual and nat-. 
 ural flow, or overflow the natural banks. 4 But he has no right 
 to erect machinery, requiring for its operation more water 
 than the stream supplies <in its ordinary state,- and to operate 
 such machinery by a full pond, discharging the water upon 
 those below in unusual quantities, so that they are unable to 
 use it. 5 The right to reasonably detain the water is not lim- 
 ited to extraordinary occasions or to the time necessary for 
 repairs, but applies to the ordinary use of the stream. 6 The 
 
 JClapp v. Herrick, 129 Mass. 292; derson, 69 id. 52; Egan v. Euss, 39 
 
 Thompson v. Crocker, 9 Pick. 59; La. Ann. 967; Pool v. Lewis, 41 Ga. 
 
 Soule v. Russell, 13 Met. 436; O'Brien 162; Oregon Iron Co. v. Trullenger, 3 
 
 v. St. Paul, 18 Minn. 176; Gerrish v. Oregon, 1; Proulx v. Tremblay, 7 
 
 Brown, 50 Maine, 604; Merritt v. Quebec L R 353; Keith v. Corey, 1 
 
 Brinckerhoff, 17 Johns. 306; Coloney Pugs. & B. (N. B.) 400. But see cases 
 
 v. Farrow, 36 N. Y. S. 164; Gerrish u supra, n. 1; Weare v. Chase (Me.), 44 
 
 New Market Manuf. Co., 30 N. H. Atl. Rep. 900. 
 
 478; Richards v. Peter, 70 Mich. 286. 3 ibid. 
 
 As to proceedings by a petition of 4 Drake v, Hamilton "Woolen Co., 
 
 right, where the Crown or its officers 99 Mass. 574; Wood v. Edes, 2 Allen, 
 
 obstruct the flow of water to the sup- 580 ; Brace v. Yale, 10 Allen, 444; 97 
 
 pliant 's mill, see Muskoka Mill Co. v. Mass. 18; 99 Mass. 488; Gould v. Bos- 
 
 The Queen, 28 Grant's Ch. (Can.) 563. ton Duck Co., 13 Gray, 453; Clinton 
 
 2 Pitts v. Lancaster Mills, 13 Met. v. Myers, 46 N. Y. 511. See Rock 
 
 156; Chander v. Howland, 7 Gray, Manuf. Co. v. Hough, 39 Conn. 190; 
 
 350 ; Canfield v. Andrew, 54 Vt. 1 ; Lewis v. Springfield W. Co., 176 Penn. 
 
 Merritt v. Brinckerhoff, 17 Johns. 306; St. 230; 2 Lack. L. N. 190. 
 
 Clinton v. Myers, 46 N. Y. 511; Hart- 5 Merritt v. Brinckerhoff, 17 Johns, 
 
 zell v. Sill, 12 Penn. St. 245; Whaler 306; Clinton v. Myers, 46 N. Y. 511; 
 
 v. Ahl, 29 id. 98; Bullard v. Saratoga Brace v. Yale, 10 Allen, 441. 
 
 Victory Manuf. Co., 13 Hun, 43; « Davis v. Getchell, 50 Maine, 602; 
 
 Mabie v. Matteson, 17 Wis. 1 ; Timm Denison Paper Manuf. Co. v. Robin- 
 
 v. Bear, 29 id. 254 ; Coldwell v. San- son Manuf. Co., 74 id. 116. 
 
§ 218«.] EIGHTS OF EIPAEIAN PEOPEIETOES. 429 
 
 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 obstruction 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. 1 The stoppage of a watercourse at its springhead, where 
 it has its origin, and first begins to flow in a natural channel, 
 is as unlawful as an obstruction lower down the stream; 2 and 
 the same is true of the outlet of a lake, 3 and also of flood- waters, 
 causing flowage by back-water. 4 
 
 § 218a. Acceleration of the current. — The decisions relat- 
 ing to the acceleration of the flow of the stream are not numer- 
 ous. According to the civil law any augmented flow of the 
 water, whereby the servitude of a lower proprietor is aggra- 
 vated, is unlawful, and the upper proprietor has no right to 
 insist upon a free course for the water thus sent down. 5 An 
 upper riparian owner, who removed from, the bed of the stream 
 a ledge of rock, which, by retarding the floW of the water, 
 naturally protected a lower tract from overflow, has been 
 held liable for thereby causing water and sand to overspread 
 the lower tract, although the damage was wholly done be- 
 low the point where the stream entered the lower land. 6 In 
 North Carolina, where an upper mill-owner wilfully, and with 
 intent to injure the plaintiff, accumulated a large head of water 
 by shutting down his gates, and then discharged it against the 
 plaintiff's dam, which was washed away, trespass vi et armis 
 was held a proper remedy. 7 So if a mill-owner increases the 
 natural flow of the stream by artificial means, as by turning 
 into bis mill-pond the waters of another stream, which do not 
 naturally flow there, or by damming or enlarging the outlet 
 of a lake, he is liable to an action for injury so caused to an- 
 
 i Brown v. Dean, 123 Mass. 254. 6 Grant v. Kuglar, 81 Ga. 637; Kay 
 
 2 Duddenu Clutton Union, 1 H. & v. Kirk, 76 Md. 41. See Hoyt v. Cline, 
 
 N. 627; Broadbent v. Earnsbotham, 15 N. Y. S. 337; Hartshorn v. Chad- 
 
 11 Exoh. 602; Arnold v. Foot, 12 dock, 16 id. 714. 
 
 Wend. 330; Howe v. Norman, 13 E. L 7 Kelly v. Lett, 13 Ired. 50; Hog- 
 
 488; Ford v. Lukens, 81 Ga. 633. wood v. Edwards, Phil. Law, 350; 
 
 3 See supra, % 85. McKee v. Delaware & H, Canal Co., 
 
 4 Montgomery v. Locke, 72 Cal. 75. 125 N. Y. 353. 
 
 5 Frechette v. La Compagnie Man- 
 ' ufacturiere (Quebec), 9 App. Cas. 170. 
 
430 THE LAW OF WATERS. [Ch. VI.- 
 
 other proprietor. 1 And although a land-owner may, in the- 
 reasonable use of his land, collect into an artificial stream the 
 surface-water thereof, and the water drawn from wells therein, 
 and discharge the same into a natural watercourse running 
 through his estate, yet he must not, by increasing the water- 
 course beyond its natural capacity to discharge the water, in- 
 jure adjoining or lower proprietors. 2 So he cannot materially 
 augment and impair the flowing water by adding salt water 
 pumped from a well. 3 And acceleration of the current at one 
 time cannot be made a compensation for its retardation at an- 
 other time. 4 A city is not liable because its improvements 
 cause an increased flow of a natural watercourse. 5 
 
 § 219. Pollution. — Eiparian 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 pri- 
 vate right for which those injured thereby are entitled to a 
 remedy. 6 Various sources of pollution have been held by the 
 
 iTillotson v. Smith, 32 N. H. 90; L. R. 1 Eq. 77; Fitzgerald v. Firbank, 
 
 Merritt v. Parker, Coxe (N. J.), 460; [1897] 2 Ch. 96; Bucoleuch v. Cowan, 
 
 Woodworth v. Genesee Paper Co., 2 App. Cas. 344: Young v. Bankier 
 
 46 N. Y. S. 99; Lloyd v. Thomson, 60 Distillery Co., [1893] A. C. 691; River 
 
 id. 72; Hyatt v. Albro (Mich.), 80 N. Ribble Joint Committee v. Halliwell, 
 
 W. Rep. 641; Alexander v. Winters, [1899] 2 Q. B. 385; Merrifield v. Loni- 
 
 23 Nev. 475. bard, 13 Allen, 16; Woodward v. 
 
 2 Jackman v. Arlington Mills, 137 Worcester, 121 Mass. 245; Dwight 
 
 Mass. 277; post, § 274. Printing Co. v. Boston, 122 Mass. 583; 
 
 3 Pfeiffer v. Brown, 165 Penn. St. McGenness v. Adriatic Mills, 116 
 
 267. Mass. 177; Richmond Manuf. Co. v. 
 
 4 East Jersey W. Co. v. Bigelow, 60 Atlantic De Laine Co., 10 R L 106; 
 
 N. J. L. 201. Lewis v. Stein, 16 Ala. 214; O'Riley 
 
 5 Hamilton v. Ashbrook (Ohio), 57 v. McChesney, 3 Lans. 278; 49 N. Y. 
 
 N. E. Rep. 239. 672: Townsend v. Bell, 24 N. Y. S. 
 
 e Mason v. Hill, 5 B. & Ad. 1; 3 B. 193; Gladfelter v. Walker, 40 Ind. 1; 
 
 & Ad. 304; 2 Nev. & Man. 747; Em- Muncie Pulp Co. v. Martin (Ind. App.), 
 
 brey v. Owen, 6 Exch. 153; Wood v. 55 N. E. Rep. 796; Miss. Mills Co. r. 
 
 Waud, 3 Exch. 748; Bealey v. Shaw, Smith, 69 Miss. 299; Holsman v. Boil- 
 
 6 East, 208; Aldred's Case, 9 Co. ing Spring Bleaching Co., 14 N. J. 
 
 59; Tenant v. Gold win, 2 Ld. Raym. Eq. 335; Potter v. Froment, 47 Cal. 
 
 1089; Salk. 21, 360; 6 Mod. 311; Holt, 165; Sanderson v. Pennsylvania Coal 
 
 500; Stonehewer v. Farrar, 6 Q. B. Co., 86 Penn. St. 401; 102 id. 370; 
 
 730; Lingwood v. Stonemarket Co., Mitchell v. Barry, 26 Q. B. (Can.) 416; 
 
219.] 
 
 EIGHTS OF EIPAEIAN PEOPEIETOES. 
 
 431! 
 
 courts to be actionable ; as to set up cattle-yards, hog-pens, or 
 lime-pits for calf and sheep skins so near the water as to pol- 
 lute it; 1 discharging blood from a slaughter-house into the 
 stream; 2 erecting a cess-pool, placing manure, or oil, 3 , or per- 
 mitting gas to escape, so near a well, spring, or stream, as to 
 contaminate it; 4 the casting, upon one's own land, of dirt and 
 foul water or substances which reach the stream by percola- 
 tion ; 5 the letting off of water made noxious by precipitation 
 of minerals; 6 or dye wares, or liquors, or madder, indigo, or 
 potash, 7 or sulphuric 8 or muriatic 9 acid; or vitriol, whereby 
 
 infra, § 544; 32 Am. L. Rev. 589; 
 State v. Kendall, 38 Neb. 817. An 
 allegation in an action for polluting 
 a stream that " said river flows partly 
 around and partly through plaintiff's 
 land aforesaid," sufficiently shows 
 that he is a riparian proprietor 
 thereon. Greene v. Nunnemacher, 
 36 Wis. 50. 
 
 *Year Book, Hen. II. b. 6; Moore 
 v. Webb, 1 C. B. n. s. 673; Coulson & 
 Forbes on Waters, 170; Greene v. 
 Nunnemacher, 36 Wis. 50; Hazel tine 
 v. Case, 46 Wis. 391; Smith v. Mc- 
 Conathy, 11 Mo. 517; Baltimore v. 
 Warren Manuf. Co., 59 Md. 96-, Peo- 
 ple v. Borda, 105 Cal. 636; People v. 
 Elk River M. Co., 107 Cal. 214, 221; 
 Durango v. Chapman (Col.), 60 Pac. 
 Eep. 635. 
 
 2 Att. Gen. v. Stewart, 20 N. J. Eq. 
 415; Babcock v. New Jersey Stock 
 Yard Co., id. 296; Tiede v. Schneidt 
 (Wis.), 81 N. W. Rep. 826; Woodyear 
 v. Schafer, 57 Md. 1. 
 
 3 Barton v. Union Cattle Co., 28 
 Neb. 350; State v. Frieberg, 49 Ohio 
 St. 585; Kinnaird v. Standard Oil 
 Co., 89 Ky. 468. 
 
 4 Norton v. Scholefield, 9 M. & W. 
 665; Womersley v. Church, 17 L. T. 
 N. s. 190; Millington v. Griffiths, 30 
 id. 65; Hipkins v. Birmingham Gas- 
 light Co., 6 H. & N. 250; 5 H. & 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 Penn. St. 257; Ottawa, 
 Gaslight Co. v. Graham, 35 111. 346: 
 Belvidere Gaslight Co. v. Jackson, 81 
 111. App. 424; Woodward v. Aborn, 35 
 Maine, 271 ; Carhart v. Auburn Gas- 
 light Co., 22 Barb. 297; May wood v. 
 Logan, 78 Mich. 135; Tate v. Parrish, 
 7 Mon. (Ky.) 325; post, § 288; Pensa- 
 cola Gas Co. v. Pebley, 25 Fla. 381. 
 
 5 Hodgkinson v. Ennor, 4 B. & S. 
 229,240; Carhart v. Auburn Gaslight 
 Co., 22 Barb. 297; Ball v. Nye, 99 
 Mass. 582; Barnard v. Shirley, 135 
 Ind. 547; 47 N. E. Rep. 671; Kewanee 
 v. Guilfoil, 81 111. App. 490. 
 
 6 Hodgkinson v. Ennor, 4 B. & S. 
 229; Wright v. Williams, 1 M. & W. 
 77 ; Lincoln v. Taunton Copper Manuf. 
 Co., 9 Allen, 181; Beach v. Sterling 
 Iron Co., 54 N. J. Eq. 65; Sterling 
 Iron Co. v. Sparks Manuf. Co., 55 id. 
 824; Drake v. Lady Ensley Coal Co., 
 102 Ala. 501. 
 
 7 Wood v. Sutcliffe, 16 Jur. 75. See 
 18 Journ. of Jur. 429; 21 id. 185. Or 
 salt. Mann v. Retsoff Mining Co., 49 
 App. Div. (N. Y.) 454. 
 
 8 Pennington v. Brinsop, 5 Ch. D. 
 769. 
 
 9 Stockport W. W. Co. v. Potter, 7 
 H. & N. 160. So of the discharge of 
 polluting matters which become in- 
 jurious to health by combination in 
 the watercourse or sewer. St. Hel- 
 ens Chemical Co. v. St. Helens, 1 Ex. 
 D. 196. 
 
432 
 
 THE LAW OF WATERS. 
 
 [Ch. VI. 
 
 iMerrifield v. Lombard, 13 Allen, 
 
 the boilers and machinery of a lower proprietor are cor- 
 roded; 1 discharging heated water into a stream injuriously, 2 
 or sewage ; 3 or rendering the water unfit for domestic, culi- 
 nary, 4 or mining 5 purposes, or for men or cattle to drink of, 6 
 or fish to live in, 7 or for manufacturing purposes. 8 If the pol- 
 lution affects the public, as by the destruction of fish in a pub- 
 lic river, 9 or by placing the carcass of a dead animal in a pond 
 or river, 10 or urinating in a spring near a highway, 11 from which 
 persons in the vicinity and travelers upon the highway are ac- 
 customed to drink, it is the subject of a public prosecution. 12 
 
 Worksop, 23 Beav. 198; Att. Gen. v. 
 Luton, 2 Jur. n. s. 181; Oldaker v. 
 Hunt, 6 De G. M. & G. 376; D wight 
 Printing Co. v. Boston, 122 Mass. 583; 
 Moore v. Webb.'l C. B. n. s. 673; San- 
 derson v. Pennsylvania Coal Co., 86 
 Penn. St. 401; Buckingham v. Ply- 
 mouth W. Co., 142 id. 221; People v. 
 MoCune, 14 Utah, 152. 
 
 } Ibid.; Bidder v. Croydon, 6 L. T. 
 N. s. 778; Aldred's Case, 9 Rep. 59a; 
 Seaman v. Lee, 10 Hun, 607; State v. 
 Kroenert, 13 Wash. 644; Threatt v. 
 Brewer M. Co., 49 S. C. 95; Smith v. 
 Cranford, 32 N. Y. S. 375. 
 
 8 Clowes v. Staffordshire Potteries 
 Co., L. R. 8 Ch. 125; Crossley v. Light- 
 owler, L. It. 2 Ch. 478; Ling wood v. 
 Stowmarket Co., L. R. 1 Eq. 77; Tip- 
 ping v. Eckersley, 2 K. & J. 264;- 
 Wood v. Sutoliffe, 2 Sim. N. s. 163. 
 
 9Rexu Medley, 6 C. & P. 292; Peo- 
 ple v. Truckee Lumber Co., 116 Cal. 
 397; Watson v. Toronto Gas Light 
 Co., 4 Q. B. (Can.) 158. See State v. 
 Wabash Paper Co., 21 Ind. App. 167. 
 
 10 State uWahl, 35 Kansas, 608. 
 
 11 As to cutting off the shade from 
 a spring, see Lucas v. Bishop, 15 Lea, 
 165; 52 Am. Rep. 364, and note. As 
 to the liability of municipal corpora- 
 tions for impure wells, see Danaher 
 v. Brooklyn, 119 N. Y. 241. 
 
 12 State v. Taylor, 29 Ind. 517; Board 
 of Health v. Casey, 3 N. Y. S. 399; 
 People v. Burtleson, 14 Utah, 258; 
 Att. Gen. v. Tod Heatley, [1897] 1 Ch. 
 560. 
 
 10. 
 
 2 Mason v. Hill, 3 B. & Ad. 304; 
 Wood v. Waud, 3 Exch. 748; Tipping 
 v. Eckersley, 2 K. & J. 264. 
 
 3 Att. Gen. v. Cockermouth, L. R. 
 18 Eq. 172; Att. Gen. u'Colney Hatch, 
 L. R. 4 Ch. 146; Att. Gen. v. Leeds, L. 
 R. 5 Ch. 533; Att. Gen. v. Birming- 
 ham, 4 K. & J. 528; Goldsmidv. Tun- 
 bridge Wells Com'rs, L. R. 1 Ch. 349; 
 Att. Gen. v. Kingston, 13 W. R. 888; 
 Spokes v. Banbury Board of Health, 
 L. R 1 Eq. 42; Att. Gen. v. Hackney 
 Local Board, L. R 20 Eq. 626; Poul- 
 sum v. Thirst, L R. 2 C. P. 449; Co- 
 lumbus v. Hydraulic Woollen Mills 
 Co., 33 Ind. 435; Jacksonville v. Lam- 
 bert, 62 111. 519; Bennett v. National 
 Starch M. Co., 103 Iowa, 207; Morgan 
 v. Danbury, 67 Conn. 484; People v. 
 San Luis Obispo, 116 CaL 617; Owens 
 v. Lancaster, 193 Penn. St. 436; Com. 
 v. Yost, 11 Penn. Sup'r Ct. 323. A city 
 is not liable for depreciation in the 
 rental value of property caused by 
 the bad smells of a sewer in process 
 of construction, which is not kept 
 open for an unreasonable time. Arn 
 v. City of Kansas, 14 Fed. Rep. 236. 
 
 4 Goldsmid v, Tunbridge Wells, L. 
 R. 1 Ch. 349; Howell v. McCoy, 3 
 Rawle, 256; Barton v. Union Cattle 
 Co. (Neb.), 44 N. W. Rep. 454. See 
 infra, § 288. 
 
 5 Satterfield v. Rowan, 83 Ga. 187. 
 
 6 Att. Gen. v. Birmingham, 4 Kay 
 
 & J. 528; Manchester Railway v. 
 
§ 220.] EIGHTS OF EIPAEIAN PEOPEIETOES. 433 
 
 If a business is so conducted as not only to foul adjoining 
 streams, but also to dangerously taint the atmosphere passing 
 over adjacent highways and the entire neighborhood, a suit 
 therefor by one neighboring proprietor is not au action to 
 abate a private nuisance, but a private action to abate a public 
 nuisance. 1 A dam lawfully erected across a running stream 
 becomes a public nuisance if its stopping of the current affects 
 health by the water being lowered, causing decomposed mat- 
 ter to be exposed to the air. 2 A statute which prohibits the 
 pollution of a supplying stream is constitutional, 3 and is not 
 complied with by polluting and purifying its waters before 
 they reach the storage reservoir. 4 A person cannot justify as 
 agent for another in maintaining a public nuisance ; and the 
 fact that persons have come to live within the scope of a nui- 
 sance after its creation does not prevent their complaining of 
 it. 5 If the plaintiff has himself contributed to the pollution, he 
 cannot recover therefor against an upper proprietor. 6 
 
 § 220. Same. — Proprietors upon streams may cast sewage 
 and waste material therein, if they do not thereby cause ma- 
 terial injury to public or private rights. 7 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 do- 
 
 1 Meiners v. Frederick Miller Brew- 7 Haskell v. New Bedford, 108 Mass. 
 ing Co. (Wis.), 47 N. W. Eep. 430; 208, 214; Hayes v. Waldron, 44 N. H. 
 Montezuma v. Minor, 73 Ga. 484. 580; Smith v. Barnham, 1 Ex. D. 419; 
 
 2 People v. Pelton, 159 N. Y. 537; Prentice v. Geiger, 74 N. Y. 341; 9 
 55 N. Y. S. 815. Hun, 350; O'Eiley v. McChesney, 49 
 
 3 State v. Griffin (N. H.), 39 AtL ' N. Y. 672; 3 Lans. 278; Thomas v. 
 Eep. 260. Brackney, 17 Barb. 654; Palmer v. 
 
 4 State v. Wheeler, 44 N. J. L. 88. Mulligan, 3 Caines, 307; Honsee v. 
 
 5 Bliss v. Hall, 4 Bing. N. C. 183; Hammond, 39 Barb. 89; Eidgeu Mid- 
 Reg, v. Brewster, 8 C. P. (Can.) 208; land Eailway, 53 J. P. 55; Belton v. 
 Platte & Denver Ditch Co. v. Ander- Baylor College (Tex. Civ. App.), 33 S. 
 son, 8 Col. 131; Baltimore v. Fairfield W. Eep. 680; Belton v. Central Hotel 
 Impr. Co., 87 Md. 352. Co. (id.), id. 297; High Wycombe 
 
 6 Ferguson v. Firmenich Manuf . Corp. v. Thames Conservators, 78 L. 
 Co., 77 Iowa, 576; Topeka W. S. Co. T. 463. As to pollution by non-ripa- 
 v. Potwin, 43 Kansas, 404. See Gulf, rian owners, see Beach v. Sterling 
 ete. Ey. Co. v. Eeed (Tex. Civ. App.), Iron Co., 54 N. J. Eq. 65; 55 id. 824. 
 22 S. W. Eep. 283. 
 
 28 
 
43J: THE LAW OF WATEES. [Ch. VI.. 
 
 mestic purposes, will tend to make the water more or less im- 
 pure, especially when the population becomes dense. 1 So, it- 
 is of public importance that the proprietors of useful manu- 
 factories should be held responsible only for appreciable injury 
 caused by their works and not for slight inconveniences or 
 occasional annoyances, 2 or even some degree of interference 
 with irrigation or agriculture. 3 When an injunction is sought 
 to stop large and expensive works which cause a stream to be 
 polluted, it must clearly appear that the legal remedy is in- 
 adequate, and that the plaintiff will suffer irreparable injury 
 from the continuance of the pollution. An injunction will be 
 refused if the plaintiff's premises are several miles below those 
 of the defendant, and the water of the stream in the plaintiff's 
 vicinity is not materially affected ; 4 or if, the defendant hav- 
 ing ceased to discharge the refuse-matter for nearly a year,, 
 the increase of the nuisance, if any, has not been through his 
 acts. 5 The right of each riparian owner to deposit in the 
 stream is a question of reasonable use, as in the case of the 
 detention, obstruction or diversion of the water. 6 
 
 A riparian owner is liable when he permits the drift-stuff T 
 
 1 Merrifield v. "Worcester, 110 Mass. And in regard to some debris or waste- 
 221, 222; Cator v. Lewisham Board deposits in such streams, there would 
 of Works, 5 B. & S. 143. seem to be no question. The uniform. 
 
 2 Sanderson v. Pennsylvania Coal practice, the convenience, and in 
 Co., 86 Penn. St. 401; 102 id. 370; 113 some instances the indispensable ne- 
 id. 126; 56 Am. Rep. 89, n.; Euler v. cessity, would seem sufficiently to de- 
 Sullivan, 75 Md. 616. cide such cases. Among these may 
 
 3 People v. Rogers, 12 Col. 278. be named the infusion of soap dyes, 
 J New Boston Coal Co. v. Pottsville and other materials used in rnanu- 
 
 Water Co., 54 Penn. St. 164; Rich- facturing, into the streams by which 
 ard's Appeal, 57 id. 105. the machinery is propelled. The de- 
 6 Swan v. Adams, 23 Ch. (Can.) 220. posit of saw-dust, to some extent, is 
 6 Red River Roller Mills v. Wright, nearly indispensable in the running 
 30 Minn. 249. As to the jury view- of saw-mills, and most other ma- 
 ing the polluted water, see Rudolph chinery used in the manufacture of 
 v. Penn. S. V. R. Co., 186 Penn. St. 541. wood and propelled by water power. 
 " In regard to many uses of the The reasonableness of such use must 
 water in streams," says Redfield, C. J. determine the right, and this must 
 (in Snow v. Parsons, 28 Vt. 459, 461), , depend upon the extent of detriment 
 "it has been so long settled by com- to the riparian proprietors below." 
 mon consent, or is so obvious in it- 'Jacobs v. Allard, 42 Vt. 403; Can- 
 self, that it is determinable as matter field v. Andrew, 54 Vt. 1 ; Prentice v. 
 of law. Such are the uses for irriga- Geiger, 74 N. Y. 341. See also Green 
 tion, for propelling machinery, and v. Gilbert, 60 N. H. 144; States. Q-rif- 
 f or watering cattle, and some others, fin (N. H.), 39 AtL Rep. 260; Lock- 
 
§ 220.] EIGHTS OF BIPAEIAN PEOPEIETOES. 435 
 
 from his mill to be carried, by the ordinary force of the cur- 
 rent, or by freshets which are likely to occur in the stream, 
 upon the land of a lower proprietor to his injury; 1 when he 
 injures another by an overflow of the water caused by his al- 
 lowing his dirt to accumulate in the channel of the stream, 2 or 
 in the pool of his dam; 3 or when his operations cause refuse' 
 or mud to accumulate to an unreasonable amount in a lower 
 dam 4 or mill-race, 5 or to obstruct the plaintiff's irrigating 
 ditches. 6 City sewage, though sterilized,.may be the cause of 
 an actionable injury, when it again becomes injurious by com- 
 bining with other substances. 7 So it is an actionable injury to 
 change flowing water which is naturally pure and soft in qual- 
 ity into water which, though pure, is made hard in quality by 
 the defendant's operations. 8 "When the property of others is 
 encumbered by deposits, the measure of damages is the cost 
 of removing the deposit from the premises, if less than the de- 
 preciation in value of the property, and, if greater, then the 
 difference in the value of the property. 9 "Where water is pol- 
 luted to the injury of the plaintiff's brewery, evidence of the 
 difference in sales of beer before and after the maintenance of 
 the nuisance has been held competent; 10 but interest, as dam- 
 wood Co. v. Lawrence, 77 Maine, 297; tion for this cause. Beavers v. Trim- 
 Waterman v. Buck, 58 Vt. 519; State mer, 25 N. J. L. 97. 
 v. Mitchell (W. Va.), 35 S. E. Rep. 845. sPanton v. Norton, 18 111. 496; 
 
 1 Crosley v. Bessey, 49 Maine, 539; Jones v. Crow, 32 Penn. St. 398; Law- 
 Veazie v. Dwinel, 50 id. 479; Gerrish son v. Price, 45 Md. 123. 
 v. Brown, 51 id. 256; Washburn v. « Bell v. Shults, 18 Cal. 449; Leva- 
 Gilman, 64 id. 163; Winchester v. Os- roni v. Miller, 34 Cal. 231. 
 borne, 61 N. Y. 555; 62 Barb. 337; 'Morgan v. Danbury, 67 Conn. 484; 
 Bushnellu Proprietors, 31 Conn. 150; Nolan v. New Britain, 69 id. 668; 48 
 Robinson v. Black Diamond Coal Co., Cent. L. J. 92. 
 
 50 Cal. 460. He is not, however, liable 8 John Young & Co. v. Bankier 
 for polluting material washed off his Distillery Co., [1893] A. C. 691. See 
 land into a canal by unusual and un- 6 Jurid. Review, 85. 
 expected floods. People v. Utica Ce- 9 Seely v. Alden, 61 Penn. St. 302; 
 ment Co., 22 111. App. 159. Michel v. Monroe County Supervis- 
 
 2 Carlyon v. Lovering, 1 H. & N. ors, 39 Hun, 47; Elgin Hydraulic Co. 
 784. v. Elgin, 74 111. 433; Easterbrook v. 
 
 3 Schuylkill Nav. Co. v. McDon- Erie R. Co., 51 Barb. 94; Schriver v. 
 ough, 33 Penn. St. 73; Fehr v. Schuyl- Johnstown, 24 N. Y. S. 1083; Tennes- 
 kill Nav. Co., 69 id. 161. see Coal Co. v. Hamilton, 100 Ala. 
 
 *Murgatroyd v. Robinson, 7 El. & 252. 
 Bk. 391; Brooke v. Winter, 39 Md. 10 Cunningham v. Stein, 109 111. 375. 
 505. A reversioner has a right of ac- 
 
436 THE LAW OF WATEES. [Ch. VI. 
 
 ages, will be allowed on such difference of values only when a 
 sale is actually defeated. 1 The plaintiff cannot recover for such 
 consequential injuries as might have been avoided by timely and 
 unreasonable action on his own part; 2 but the right to damages 
 is not affected by the fact that it is more economical and conven- 
 ient for the defendant to cast rubbish into the stream than to 
 dispose of it otherwise. 3 The fact that the defendant's act is 
 supported by a uniform and established usage upon the same 
 or similar streams is competent but not conclusive evidence 
 upon the question of reasonable use, inasmuch as it affords some 
 proof of the tacit consent of all parties interested to the general 
 convenience and necessity of such use. 4 The vendor of a ripa- 
 rian estate cannot, in derogation of his own grant, continue to 
 pollute the stream in front of the land sold ; 5 and a person who 
 is in actual occupation and possession of the 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. 6 "Where the defendant, in working 
 a coal mine, caused a deposit of coal dust, ashes, sand, and other 
 debris to be carried down by the water of a natural stream and 
 deposited upon the plaintiff's land, he was held liable for the 
 damage so caused, although the stream overflowed the plaint- 
 
 1 Moore v. Lan^don, 6 Mackey, 6. quired for its legitimate business, 
 
 2 Lawson v. Price, 45 Md. 123. If for the sole purpose of instituting a 
 land is bought on a stream with the suit for the flooding. Occum Co. v. 
 sole purpose of compelling its pur- Sprague Manuf. Co., 34 Conn. 529, 
 chase by the owner of an expensive 541. But, in general, the defendant, 
 quartz mill above, the operations of in an action for a trespass or nui- 
 which necessarily deposit large quan- sance, has no right to inquire into 
 tities of sand upon this land, the the good faith of the plaintiff's posses- 
 plaintiff's motive may be inquired sion. Eberhard v. Tuolumne Water 
 into upon a bill for an injunction, Co., 4 Cal. 308. 
 
 and he may be left to his remedy at 3 Ante, §§ 209, 211; Canfield v. An- 
 
 law. Edwards v. Allouez Mining Co., drew, 54 Vt. 1. 
 
 38 Mich. 46; Jenkins v. Cooper, 50 4 Ibid.; Red River Roller Mills v. 
 
 Ala. 419; Bassett v. Salisbury Manuf. Wright, 30 Minn. 249; Pennsylvania 
 
 Co., 47 N. H. 426. That the market Coal Co. v. Sanderson, 94 Penn. St 
 
 value of the land is not the true test 302; Hayes v. Waldron, 44 N. H. 580; 
 
 when the plaintiff can abate the Prentice v. Geiger, 74 N.T. 346; Snow 
 
 nuisance at any time, see N. K. v. Parsons, 28 Vt. 459; Gould v. Bos- 
 
 Pairbank Co. v. Nicolai, 167 111. 242. ton Duck Co., 13 Gray, 442. 
 
 A corporation formed for specific » Crossley v. Lightowler, L. R 3 Eq. 
 
 purposes cannot purchase or lease 279; L. R. 2 Ch. 478. 
 
 land overflowed, which is not re- 6 Honsee v. Hammond, 39 Barb. 89. 
 
§§ 221, 222.] EIGHTS OF EIPAEIAN PEOPEIETOES. 437 
 
 iff's land in its natural course. 1 In a suit for corrupting a pri- 
 vate watercourse the fact that the defendant's tortious act in- 
 creased the supply of water and was otherwise of advantage 
 to the plaintiff is immaterial, and such benefits cannot be set 
 up by way of set-off or recoupment. 2 
 
 §221. Same.— In Pennington v. Erinsop Hall Coal Co. 3 
 the plaintiffs claimed both as riparian proprietors and as hav- 
 ing a prescriptive right to use the water of the stream for the 
 purposes of their mill, and their bill for an injunction to re- 
 strain the pollution of the stream by the defendants was main- 
 tained 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 enjoy- 
 ment." " 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 be a compensation for the in- 
 jury which the continued pollution might cause to such new 
 modes of enjoyment." Respecting the difference between in- 
 jury and damage, the learned judge further said: "The pollu- 
 tion 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. Same — Joinder of wrong-doers. — 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. 4 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, 5 but the 
 
 1 Robinson v. Black Diamond Coal Green v. Gilbert, 60 N. H. 144; Mann 
 Co., 57 Cal. 412; Hindson v. Markle, v. Willey, 64 N. Y. S. 589. 
 
 171 Penn. St. 138; Columbus Coal & 4 Simpson v. Seavey, 8 Maine, 138 
 
 Iron Co. v. Tucker, 48 Ohio St. 41. 6 Sadler v. Great W. Ry. Co., [1895] 
 
 2 Sanderson v. Penn. Coal Co., 102 2 Q. B. 688; Thompson v. London 
 Penn. St. 370; 113 id. 126; ante, §213. County Council [1899] 1 Q. B. 840; 
 
 3 5 Ch. D. 769; 46 L. J. Ch. 773. See Camp v. Barre, 66 Vt. 563; Chicago, 
 Elmhirst v. Spencer, 2 Mac. & G. 45; etc. By. Co. v. Sutton, 63 Fed. Rep. 
 
438 THE LAW OF WATERS. [Ch. VI. 
 
 riparian owner may prevent each from discharging his contri- 
 bution to that which becomes in the aggregate a nuisance. 1 
 "Where suit was brought for damages to a dam filled by de- 
 posits 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 with the defendants, the latter 
 were held not liable for the whole damage caused by the de- 
 posits, or for the acts of their tenants so far as these were 
 done without their sanction. 2 So, where the plaintiff's boarders 
 left his boarding house in consequence of the corrupt and of- 
 fensive 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 pollution was liable 
 only to the extent of the wrong committed by him. 3 Miller, J., 
 said : " 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 consequences which followed in connec- 
 tion with others who had done the same or a similar act." The 
 fact, however, that the stream is fouled by others, even by a 
 large number of persons, is not a defense to a suit to restrain 
 
 394; Little Schuylkill Nav. Co. v. Cal. 146; Butler v. Ashworth, 110 
 
 Richards, 57 Perm. St. 142; Wheeler Cal. 614. All who contribute to a 
 
 v. Worcester, 10 Allen, 591 ; Blaisdell nuisance may be enjoined in equity, 
 
 v. Stephens, 14 Nev. 17; Southwest- though each one's act would not 
 
 ern R. Co. v. Lee, 47 Ga. 380; Longu separately constitute the nuisance. 
 
 Swindell, 77 N. C. 176; Richardson v. Lambton v. Mellish, [1894] 3 Ch. 163. 
 Emerson, 3 Wis. 319; Valparaiso v. 2 Little Schuylkill Nav. Co. v. Rich 
 
 Moffitt, 12 Ind. App. 250; South- End ards, 57 Penn. St. 142; Seely v. Alien, 
 
 M. Co. v. Liphart, id. 185. 61 id. 302; Little Schuylkill Nav. Co. 
 
 i Nixon v. Tynemouth Rural S. Au- v. French, 81 id. (Pt. 2) 366; Sander 
 
 thority, 52 J. P. 504; Blair v. Deakin, son v. Pennsylvania Coal Co., 86 id 
 
 id. 327; 57 L. T. N. s. 522; W.N. (1887), 401, 408; 102 id. 370; Bard v. Yohn 
 
 148; Thorpe v. Brumfitt, L R. 8 Ch. 26 id. 482; Ames v. Dorset Marble 
 
 050; Martinowsky v. Hannibal, 35 Co., 64 Vt. 10; O'Riley v. McChesney, 
 
 Mo. App. 70. The same is true of di- 3 Lans. 278; 49 N. Y. 672; Hillman 
 
 version. Evans v. Ross (Cal.), 8 Pac. v. Newington. 57 Cal. 56. 
 Rep. 88; Heilbron v. Canal Co., 76 Cal. 3 Chipman v. Palmer, 77 N. Y. 51; 
 
 11; Gould v. Stafford, 77 Cal. 66; 91 Sellick v. Hall, 47 Conn. 260. 
 
§ 222.] EIGHTS OF BIPAEIAN PEOPEIETOES. 4:39 
 
 the fouling by one, 1 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. 2 These rules are equally applicable when 
 land is flowed by the acts of several parties contributing to- 
 gether, though not in combination or concert. It is not a de- 
 fense 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. 3 An action for causing 
 the waters of a lake to overflow the plaintiff's 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. 4 In Lull v. Fox Improvement Co., 5 in Wisconsin, 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 
 
 1 Crossley v. Lightowler, L. R. 2 Ch. Canal Co., 76 Cal. 11. See infra, 
 
 482; L. R. 3 Eq. 279; Att. Gen. v. §540. 
 
 Leeds Corp., L. R. 5 Ch. 583; Wood- i Arimondu Green Bay Canal Co., 
 
 year v. Schaefer, 57 Md. 1; Babbitt 35 Wis. 41; 31 Wis. 316; Cline v. Ba- 
 
 v. Safety Fund Nat. Bank, 169 Mass. ker, 118 N. C. 780. 
 
 361; Hill v. Smith, 32 Cal. 166. So 5 19 wis. 100. See Wheeler v. 
 
 of fouling a well. Sherman v. Fall Worcester, 10 Allen, 591 ; Miller v. 
 
 River Iron Works, 5 Allen, 213. Highland Ditch Co., 87 Cal. 430; 
 
 2 Ibid.; Tipping v. St. Helen's Wright v. Cooper, 1 Tyler (Vt.), 425; 
 
 Smelting Co., 11 H. L. Cas. 642; L. R. 2 Thompson on Negligence, 1088. In 
 
 1 Ch. 66; 4 B. & S. 608; Kewanee v. an action to abate, as a miisance, a 
 
 Ladd, 68 111. App. 154; Hileman v. dam which overflows the plaintiff's 
 
 Hileman, 172 Penn. St. 323. land, brought against the person who 
 
 3 Pumpelly v. Green Bay Co., 13 constructed it, the grantees of the 
 
 Wall. 166; Jones v. United States, 48 right to use the water are not neces- 
 
 Wis. 385; Folsom v. Apple River Co., sary defendants. Newell v. Smith, 26 
 
 41 Wis. 602; Richardson v. Kier, 34 Wis. 582. The owner of a dam ex- 
 
 Cal.63;HooksettuAmoskeagManuf. poses himself to as many suits as 
 
 Co., 44 N. H. 105; Trenton Board of there are parties whose rights are in- 
 
 Health v. Hutchinson, 39 N. J. Eq. juriously affected by his wrongful 
 
 218, 569; Chicago R. Co. v. Glenney, acts. Toothaker v. Winslow, 61 
 
 118 111. 487; 28 111. App. 364. So of Maine, 123, 133. 
 •diversion. Heilbron v. King's River 
 
440 
 
 THE LAW OF WATEES. 
 
 [Oh. VI. 
 
 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. 1 In Lockwood Co. v. Law- 
 rence, 2 it was held that the claim to discharge waste and debris 
 from different mills into a stream constitutes one common in- 
 terest, though not a joint right, and, in equity, forms but one 
 cause for a suit, the bill in which, to restrain the nuisance, may 
 join all the mill-owners. 
 
 § 223. Same — Remedies. — An action for damages maybe 
 maintained by a riparian proprietor for the pollution of a 
 stream, causing injury to property, health, or business ; 3 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 incon- 
 venience of repeated and successive actions, and the danger of 
 the acquisition of an adverse right to pollute by the continu- 
 ance of the act for twenty years. 4 In order to restrain by 
 
 1 Clarke v. French, 122 Mass. 419; 
 Jaekman v. Arlington Mills, 137 Mass. 
 277; Brown v. Dean, 123 Mass. 254; 
 Williamson v. Tingling, 80 Ind. 379; 
 S. C. 93 Ind. 42; Davis v. Munro, 66 
 Mich. 485; ante, §218. 
 
 2 77 Maine, 297. As to joinder of 
 plaintiffs, see Foreman v. Boyle, 88 
 Cal. 290; Churchill v. Lauer, 84 CaL 
 233; Sullivan v. Phillips, 110 Ind. 320; 
 Lonsdale Co. v. Revere (R. I.), 44 AtL 
 Rep. 929; Story, Eq. PL (10th ed.), 
 §§ 285, 286, b, notes. In Austin v. Sny- 
 der, 21 Q. B. (Can.) 299, held that un- 
 certainty as to the amount of defend- 
 ant's liability, in an action for an in- 
 terference with a water privilege, 
 formed no ground for disturbing a 
 verdict for $40, it being impossible 
 to ascertain how much of the ob- 
 struction was caused by him and 
 how much by others. 
 
 3 Allen v. Boston, 159 Mass. 324. 
 
 4 Clowes v. Staffordshire Water Co., 
 L. R. 8 Ch. 125, 143; Pennington v. 
 Brinsop Hall Coal Co., 5 Ch. D. 769; 
 Swindon Water Co. v. Wilts Canal, 
 
 LE.7EL 705; Goldsmith v. Tun- 
 bridge Wells, L. R 1 Ch. 349; L R 
 1 Eq. 161; Crossley v. Lightowler, 
 L. R. 2 Ch. 478; L. R. 3 Eq. 279; Har- 
 rop v. Hirst, L. R 4 Ex. 43; Att Gen. 
 v. Birmingham, 4 Kay & J. 528; 
 Nuneaton Local Board v. General 
 Sewage Co., L. R 20 Eq. 127; Att. 
 Gen. v. Gee, L. R 10 Eq. 131; Coul- 
 son & Forbes on Waters, 157; Merri- 
 field v. Lombard, 13 Allen, 18; Hols- 
 man v. Boiling Spring Bleaching Co., 
 14 N. J. Eq. 335; State v. Jersey City, 
 55 N. J. Eq. 116; Lewis v. Stein, 16 
 Ala. 214; Reid v. Atlanta, 73 Ga. 523; 
 New Boston Coal Co. v. Pottsville 
 Water Co., 54 Penn. St. 164. The 
 right to an injunction at suit of a 
 riparian owner is not taken away by 
 a statute which authorizes a state 
 board of health, upon the applica- 
 tion of a city or town, to protect 
 water supplies from pollution. Har- 
 ris v. Mackintosh, 133 Mass. 228. See 
 Porter v. Newton, id. 56; Brookline 
 v. Mackintosh, id. 215; Martin v. Glea- 
 son, 139 Mass. 183. 
 
§ 223.] 
 
 EIGHTS OF EIPAEIAN PEOPEIETOBS. 
 
 441 
 
 a quia timet action an apprehended injury from fouling, the 
 plaintiff must prove imminent danger of a substantial kind or 
 that the apprehended injury will be irreparable, if it does occur. 1 
 The court may award damages in lieu of an injunction, 2 and if 
 it is established that the mischief complained of is a special in- 
 jury to a private right, eve;n though it may also amount to a 
 public nuisance, 3 the plaintiff is entitled to an injunction at 
 once, whatever inconvenience or expense it may cause to the 
 defendant. 4 Where, however, the difficulty of removing the 
 nuisance is great, the court will suspend the injunction for a 
 time to render its removal possible. 5 In granting an injunction 
 to restrain pollution by sewage matter, it is the practice m Eng- 
 land to grant an immediate injunction restraining any new 
 communications with the stream, ana to suspend the operation 
 of the order for a time to enable the defendants to comply with 
 the order by altering their works. 6 If the injury is caused by 
 
 i Fletcher v. Bealey, 28 Ch. D. 688; 
 Phillips v. Thomas, 62 L. T. 793. 
 
 2 Clowes v. Staffordshire Potteries 
 Waterworks Co., L. R. 8 Ch. 125; 
 Pennington v. Brinsop Hall Coal Co., 
 
 5 Ch. D. 769; Warwick & B. Nav. Co. 
 v. Burman, 63 L. T. 670; Wood v. Sut- 
 cliffe, 2 Sim. N. s. 163; Imperial Gas 
 Co. v. Broadbent, 7 H. L 612; Kerr 
 on Injunctions (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 v. Schweder, L. R. 9 
 Ch. 463. 
 
 3 Haskell v. New Bedford, 108 Mass. 
 216; Reg. v. Bradford Nav. Co., 34 
 L. J. N. s. (Q. B.) 191. 
 
 4 Att. Gen. v. Birmingham, 4 Kay 
 
 6 J. 520; Att. Gen. v. Kingston on 
 Thames, 34 L. J. Ch. N. s. 481; But- 
 terfoss v. State, 40 N. J. Eq. 325. 
 
 5 Ibid.; Spiker v. Banbury, L. R. 1 
 Eq. 42; Att. Gen. v. Sheffield, 3 De 
 Gex, M. & G. 304; Att. Gen. v. Leeds 
 Corp., L. R. 5 Ch. 583; Att. Gen. v. 
 Hackney, L. R. 20 Eq. 631. 
 
 6 Ibid.; Att. Gen. v. Colney Hatch, 
 L. R. 4 Ch. 146; Pennington v. Brin- 
 sop Hall Coal Co., 5 Ch. 769; Att. 
 Gen. v. Halifax, 29 L. J. Ch. 129; 
 
 Goldsmith v. Tunbridge Wells, L. R. 
 
 1 Ch. 163; L. R. 1 Eq. 349; Att. Gen. 
 v. Richmond, L. R. 2 Eq. 306; Att. 
 Gen. v. Acton Local Board, 22 Ch. D. 
 221 ; Charles v. Finchley Local Board, 
 23 Ch. D. 767; Glossop v. Heston Local 
 Board, 12 Ch. D. 102; Att. Gen. v. 
 Clerkenwell Vestry, [1891] 3 Ch. 527; 
 Kirkheaton Local Board v. Ainley, 
 [1892] 2 Q. B. 274; 60 L. J. Ch. 734; 
 Wycombe Union S. R. Authority v. 
 Parsons, [1894] 2 Q. B. 780; Yorkshire 
 County Council v. Holmfirth U. S. 
 Authority, id. 842; Hill v. Wallasey 
 Local Board, [1894] 1 Ch. 133; Ogilvi'e 
 v. Blything Sanitary Authority, 67 
 L. T. 18; Gebhardt v. Saunders, [1892] 
 
 2 Q. B. 452; Reg. v. Staines Local 
 Board, 60 L. T. 261; Derbyshire 
 County Council v. Derby, [1896] 2 
 Q. B. 297; [1897] A. C. 550; Trouzeau 
 v. Slough U. D. Council, 60 J. P. 103; 
 Peebles v. OswaldistwistleU.D. Coun- 
 cil, [1897] 1 Q. B. 625; Brown v. Dun- 
 stable Corp., [1899] 2 Ch. 378; East- 
 wood v. Honley Urban District 
 Council, [1900] 1 Ch, 781; Dent v. 
 Bournemouth Corp., 66 L. J. Q. B. 
 395, 
 
442 THE LAW OF WATEKS. [Ch. VI. 
 
 the acts of a city in discharging its sewage unlawfully, due 
 regard will be had to the public interests, to existing condi- 
 tions, and the injury which must ensue if the plaintiff's rights 
 are strictly enforced without time to make other provision for 
 the public needs. 1 The injunction in such cases will not be 
 granted except upon notice and hearing, 2 or for slight cause, 
 or upon doubtful evidence. 3 "When conditions are imposed 
 upon a public body for the public benefit, it is no excuse for a 
 breach of such conditions that their observance is not neces- 
 sary for the protection of the public. If a local board makes 
 an outfall beyond their district, and thereby pours noxious 
 matter into a stream, they cannot excuse themselves on the 
 ground that no damage is caused thereby. 4 Where acts of 
 Parliament empowered a water-works company to take water 
 from a stream, and gave them certain rights against mill-owners 
 on the stream with respect to the quantity of water to be taken, 
 but saved all other rights, the company was held to have no 
 power to foul the water so as to interfere with the rights of 
 mill-owners, and an injunction was granted to restrain the 
 pollution. 5 
 
 § 224. Non-riparian owners. — A company which is author- 
 ized by the legislature to make a lock navigation in a public 
 stream, has not the privilege of a riparian owner, and has no 
 right to swell the water at all beyond what it derives from its 
 act of incorporation. 6 So a person who has not yet acquired 
 the fee of riparian land, but has a contract for the purchase 
 
 i Att. Gen. v. Bradford Canal, L. R. (N. Y.) 375; Morgan's Appeal, 25 W. 
 
 2 Eq. 71; Lilly white v. Trimmer, 36 L. N. O. (Penn.) 532. See infra, § 545. 
 
 J. Ch. n. s. 525; Boston Rolling Mills 4 Att. Gen. v. Cockermouth Local 
 
 v. Cambridge, 117 Mass. 396; Dwight Board, L. R. 18 Eq. 172; Att. Gen. v. 
 
 v. Hayes, 150 I1L 273; Valparaiso v. Hackney Local Board, L. R 20 Eq. 
 
 Hagen, 153 Ind. 337. So as to cut- 626; Hooker v. Rochester, 37 Hun, 181. 
 
 ting off a city's water supply, caus- 5 Clowes v. Staffordshire W. W. Co., 
 
 ing water famine or danger from L. R. 8 Ch. 125. See Lea Conserv- 
 
 rires or disease. Fisk v. Hartford, 70 ancy Board v. Hartford, 1 C. & E. 
 
 Conn. 720. 299 ; Same v. Gottenham Local Board, 
 
 2 Society v. Butler, 12 N. J. Eq. 498, 64 L. T. 198; Cox v. Paddington, id. 
 264. 566. 
 
 3 Newark Aqueduct Board v. Pas- 6 Monongahela Nav. Co. v. Coon, 6 
 saic, 46 N. J. Eq. 522; Simmons v. Penn. St. 379. See 18 L. J. 463; 29 
 Paterson (N. J.), 45 Atl. Rep. 995; Sol. J. 142; Simpson v. Godmanches- 
 Rider v. Amsterdam, 31 Misc. Rep. ter, [1896] 1 Ch. 214; [1897] A C. 696. 
 
§ 224.] 
 
 EIGHTS OF EIPAEIAN PEOPEIETOES. 
 
 443 
 
 thereof, cannot claim the riparian rights connected with such 
 land. 1 The rights of a riparian proprietor with respect to the 
 stream appear not to be affected by rights which non-riparian 
 proprietors may have acquired to use the water by grant or 
 license from other riparian owners. In Whaley v. Lang, 2 and 
 Crossley v. Lightowler, 3 a non-riparian proprietor, having a 
 right to take water from a stream, was held not to be entitled 
 to maintain an action for its pollution. If the owner of land 
 which does not abut on a river takes water from the river under 
 a riparian owner's license, and, after using it for cooling certain 
 apparatus, returns it to the river unpolluted and undiminished, 
 neither neither he nor his licensor will be restrained at the suit 
 of a lower riparian owner. 4 In Bristol Hydraulic Co. v. Boyer, 5 
 
 i Smith v. Lpgan, 18 Nev. 149. See 
 Conrad v. Arrowhead H. S. Hotel Co., 
 103 Cal. 399. 
 
 23 H. & N. 675; 2 H. & N. 476. 
 
 3 L. R. 2 Ch. 476. In Hill v. Tupper, 
 2 H. & C. 121, it was held that the 
 grantee of an exclusive liberty of 
 putting or using pleasure boats on a 
 canal could not maintain an action 
 in his own name against a stranger 
 who interfered with such exclusive 
 right. In Stockport Waterworks Co. 
 v. Potter, 3 H. & C. 300, a riparian 
 proprietor granted to a water com- 
 pany the right to take water from a 
 river for supplying Stockport with 
 water, and the action was brought 
 by the company for polluting such 
 water. The majority of the court 
 held that a riparian proprietor's 
 rights with respect to the water de- 
 pend upon his possession of the land 
 on the stream, and that a convey- 
 ance by him of land not abutting on 
 the stream which affects to grant 
 water rights is valid against the 
 grantor, but does not enable the 
 grantee to she a third party for an 
 interruption of his rights. Bram- 
 well, B., dissented upon the ground 
 that a man having property may 
 grant to others estates in and enjoy- 
 
 ment of it. See Holker v. Parritt, 
 L. R. 10 Ex. 59; L. R. 8 Ex. 107; 57 
 L. T. 241; 19 S. J. 511. 
 
 4 Kensit v. Great Eastern Ry. Co., 
 27 Ch. D. 122; 23 Ch. D. 566; Ormo- 
 rod v. Todmorden Joint-Stock Mill 
 Co., 11 Q. B. D. 155; 27 S. J. 715. In 
 Nuttall v. Bracewell, L. R. 2 Ex. 1, the 
 plaintiff's mill was situate on ripa- 
 rian land, and was supplied with 
 water by an open goit, made in 1804 
 under a written agreement with the 
 adjoining proprietor above, Mr. Bag- 
 shaw, through which water was di- 
 verted from the stream, at a little 
 distance from which the mill was 
 situated, by a weir on Bagshaw's 
 land, which was called Tom Milner's 
 Ing, and was returned to the stream 
 below the milL The defendant, a 
 higher riparian proprietor, was sued 
 by the plaintiff for diverting water 
 from the stream above the weir, and 
 the action was maintained. Martin, 
 B., said: " It would be competent for 
 Mr. Bagshaw, or his successor in own- 
 ership of Tom Milner's Ing, to erect 
 a mill upon it, and take the water 
 from the stream to work it, provided 
 he neither penned back the water 
 upon his neighbor above, nor injuri- 
 ously affected the volume and flow 
 
 5 67 Ind. 236. 
 
444 THE LAW OF WATERS. [Ch. VI. 
 
 in Indiana, the plaintiff was a non-riparian proprietor whose 
 land and mills were near to but not upon the Little Elkhart 
 Kiver. The mills were propelled by water taken from that 
 river by means of a dam across it higher up the stream, and 
 conducted through a race from his dam to the mills, and thence 
 by a tail-race back into the river a short distance above its 
 confluence with the St. Joseph Eiver. The defendants' dam, 
 which was across the latter river below the junction of the 
 two streams, backed the water in the plaintiff's tail-race to the 
 obstruction of his mill-wheels. The plaintiff had an easement 
 in the land occupied by his dam, head-race, and tail-race, 
 granted for the purpose of authorizing the diversion and flow 
 of the water, but it did not clearly appear whether he had 
 acquired, the right to divert the water from all the riparian 
 owners between his dam and the mouth of his tail-race. The 
 defendants were held liable to the plaintiff. A non-riparian 
 owner's right to running water enables him to restrain an 
 upper proprietor from interfering with such right by using ' 
 or granting 2 the water for purposes which are not riparian. 
 
 § 225. Artificial watercourses. — The right to the water of 
 a river flowing in a natural channel, and the right to water 
 
 of the water of the stream to his the goit gave him a right of action 
 
 neighbor below. And the law favors against a wrongdoer. Pollock, C. B., 
 
 the exercise of such a right; it is at and Channell, B., held that the diver- 
 
 once beneficial to the owner and to sion of the stream by means of the 
 
 the commonwealth. And if this be goit was lawful, and amounted to a 
 
 so, why may not the owners of two division of the stream into two chan- 
 
 adjoining closes agree together for nels; and that the plaintiff, as a ri-, 
 
 their mutual benefit to take the water parian owner on the goit, had all the 
 
 through a goit from the close of the rights which a riparian owner would 
 
 one into the close of the other, re- have had on a natural stream. In 
 
 turning the water to the stream in cases of diversion of water, it is not 
 
 the close of the latter, and thereby necessary to show actual damages 
 
 doing no injury to any one. In point where there is a clear violation of a 
 
 of fact very many goits pass through right and threatened continuance 
 
 the land of different land-owners be- thereof. Brown v. Ashley, 16 Nev. 
 
 tween the place where the water is 311; ante, § 214. 
 
 taken from the stream and the mill ! Williams v. "Wadsworth, 51 Conn, 
 
 where it works the machinery." He 277. See Modoo Land Co. v. Booth, 
 
 was of opinion that although the 102 CaL 151: Martley v. Carson, 20 
 
 right to the flow of water in a goit Can. Sup'r Ct. 634 
 
 was an easement which could bind 2 Heilbron v. Fowler Switch Canal 
 
 the grantor only when created by Co., 75 Cal. 426. 
 deed, yet the plaintiff's possession of 
 
§ 225. J EIGHTS OF EIPAEIAN PEOPKIETOES. 445 
 
 flowing through different estates in an artificial channel, such 
 as a canal, aqueduct, or ditch, do not rest on the same princi- 
 ple. In the former case each successive riparian owner is 
 prima facie entitled to the unimpeded flow of the water in 
 its natural course and to its reasonable enjoyment as it passes 
 through his land, as a natural incident to his ownership 
 thereof; in the latter, any right to the flow of the water usually 
 depends, upon some grant or arrangement, either proved or 
 presumed, from or with the owners of the lands from which 
 the water is brought, or upon some other legal origin. 1 A 
 watercourse, though artificial, may have originated under such 
 circumstances as to give rise to all the rights that riparian 
 proprietors have in a natural and permanent stream, or have 
 been so long used as to become a natural watercourse pre- 
 scriptively. 2 "When the owners of different parcels of land 
 conduct water across such parcels in an artificial channel, and 
 do not define their respective interests in the water, they have 
 the same right to its use on their respective lots, as between 
 themselves, as would exist if the artificial watercourse were a 
 natural one. 3 In such case, there is an implied obligation upon 
 each proprietor to repair the structure within his premises, 
 unless that method of repairing is impracticable or unreasonr 
 able. 4 A person who diverts a stream through an artificial 
 
 JRameshur Pershad Narain Singh A. C. 696; [1896] 1 Ch. 214; Harma v. 
 
 v. Koonj Behari Pattuk, 4 App. Cas. Pollock, [1898] 2 Ir. 332; M'Evoy v. Gt. 
 
 121 j Wood v. Waud, 3 Exch. 777; Northern Ry. Co., [1900] 2 I. R. 325; 
 
 Greatrex v. Hay ward, 8 Exch. 293; Chamberlain v. Hemingway, 63 Conn. 
 
 Magor v. Chadwick, 11 Ad. & El. 571; 1; Green v. Carotta, 72 Cal. 267; Free- 
 
 Nield v. London Ry. Co., L. R. 10 Ex. man v. Weeks, 45 Mich. 335; Murchie 
 
 4. See supra, §161; Fox River Flour v. Gates, 78 Maine, 300; Seibert v. 
 
 Co. v. Kelley, 70 Wis. 287; McAllister Levari, 8 Penn. St. 383; Reading v. 
 
 v. Henderson, 134 Ind. 453; 141 Ind. Althouse, 93 id. 400; Roberts v. Rich- 
 
 436; Johnson u Cunningham, 56 111. ards, 44 L. T. N. S. 271; 50 L. J. Ch. 
 
 App. 593; Vought v. Columbus, etc. 297; 51 id. 944; Adams ^.Manning, 48 
 
 R. Co., 58 Ohio St. 123; Gould v. Conn. 477; 51 Conn. 5; Peter v. Cas- 
 
 Eaton, 117 Cal. 539. well, 38 Ohio St. 518; McBroom v. 
 
 2 Sutcliffe v. Booth, 32 L. J. Q. B. Thompson, 25 Oregon, 559; Mo. Pac. 
 
 136;Ivimey v. Stacker, L. R. 1 Ch. Ry. Co. v. Keys, 55 Kansas, 205; 
 
 396, 409; Nuttall v. Bracewell, L. R. MeiruKroft(Iowa),80N.W.Rep.521; 
 
 2 Ex. 1; Miner v. Gilmour, 12 Moo. Weatherby v. Meiklejohn, 56 Wis. 73; 
 
 P. C. 131; Van Breda v. Silberbauer, Powell v. Butler, 5 Ir. C. L. 309 (C. P.). 
 L. R. 3 P. C. 84; French Hoek Com'rs 3Townsend v. McDonald, 12 N. Y. 
 
 v. Hugo, 10 App. Cas. 336; Hamelin 381; 14 Barb. 460. 
 v. Bannerman, [1895] A. C. 237; Simp- * Winslow v. Fuhrman, 25 Ohio St. 
 
 son v. Godmanchester Corp., [1897] 639; Stone v. State, 138 N. Y. 124. 
 
446 THE LAW OF WATEBS. [Ch. YI. 
 
 watercourse, for his own benefit, must construct it in such a 
 manner that it will carry off, as efficiently as did the stream, 
 the water that may flow into it from such floods and rains as 
 happen in the locality. 1 If one properly opens on his own 
 land a covered drain, which it is his duty to close again in 
 order to prevent the water from setting back and overflowing 
 the adjoining land, he is not liable for any damage to his 
 neighbor's land caused by the sudden overflow of the drain, if 
 he uses ordinary care in closing it. 2 If a land-owner employs 
 an independent contractor to construct a drain, he is not liable 
 for the negligence of the latter occurring in his own work in 
 the performance of the contract; but if the thing contracted 
 to be done from its nature creates a nuisance, or if, being im- 
 properly done, it creates a nuisance and causes mischief to a 
 third person, the employer is liable. 3 When a riparian owner 
 has diverted the water into an artificial channel, and contin- 
 ued such change for more than twenty years, he cannot restore 
 it to its natural channel to the injury of other proprietors along 
 such channel who have erected works or cultivated their lands 
 with reference to the changed condition of the stream, 4 or to 
 the injury of those upon the artificial watercourse who have 
 acquired by long user the right to enjoy the water there flow- 
 ing. 5 "Where an artificial watercourse is made solely to get rid 
 of a nuisance to mines, and to enable their proprietors to get 
 the ores lying within the mineral field drained by it, the flow 
 of the water through that channel is, from the nature of the 
 case, of a temporary character, having its continuance only 
 while the convenience of the mine-owner requires it, and a user 
 of the water by others for twenty years, or a longer period, 
 affords no presumption of a grant of any right to the water in 
 perpetuity. 6 But while no right can thus be acquired by pre- 
 scription against the originator of an artificial stream of a 
 
 Fletcher v. Smith, 2 App. Cas. 4 Belknap v. Trimble, 3 Paige, 577; 
 
 781; Railroad Co. v. Carr, 38 Ohio St. Delaney v. Boston, 2 Harr. (Del.) 489; 
 
 448; Rook Island & P. Ry. Co. v. Middleton v. Gregorie, 2 Rich. (S. C.) 
 
 Krapp, 173 111. 219; 74 111. App. 158. 638; post, § 340. 
 
 2 Rockwood'y. Wilson, 11 Cush. 221; 5 Shepardson v. Perkins, 58 N. H. 
 
 Pacific Bridge Co. v. Kirkham,, 64 354 
 
 Cal. 519. e Arkwright v. Gell, 5 M. & W. 203 ; 
 
 3 Sturges v. TheoL Ed. Society, 130 Gaved v. Martyn, 19 C. B. N. s. 732. 
 Mass. 414. 
 
§ 225.] EIGHTS OF BIPAEIAN PKOPKIETOKS. 447 
 
 temporary character, yet, so long as he continues to transmit 
 the water, a prescriptive right to the continuance of the flow 
 may be acquired against those through whose land the water 
 has been accustomed to flow. 1 "Water flowing in the canal of 
 a canal company, which by statute is charged with certain 
 duties and made trustee of the canal for the public, stand upon 
 a different footing from waters flowing naturally and from 
 artificial waters of an ordinary character, with respect to the 
 capacity of other persons to acquire a right in them, and if 
 the company cannot make a grant of the water, none can be 
 presumed against them. 2 For obstructing water wrongfully 
 drained from a State canal the owner of the drain cannot re- 
 cover, if the defendant's obstruction is not on the former's 
 land. 3 
 
 1 Ibid. ; Greatrex v. Hayward, 8 ham Canal Co., 11 Jur. N. S. 71. A 
 Bxch. 291. river does not become a " canal " 
 
 2 Rochdale Canal Co. v. Radcliffe, when its navigation is improved by 
 18 Q. B. 287; Manchester Ship Canal artificial means. People v. Kanka- 
 Co. v. Rochdale Canal Co., 81 L. T. 472; kee River Impr. Co., 103 111. 491. 
 Staffordshire Canal Co. v. Birming- 8 Beekman v. Jones, 59 N. J. L. 138. 
 
CHAPTER VII. 
 
 APPROPRIATION AND RIGHTS ACQUIRED BY PRIORITY. 
 
 SECTION. 
 
 226. Effect of prior occupation. 
 
 227. This right under the mill acts of certain States. 
 
 228. Appropriations of water rights valid in the Pacific States, 
 
 229. The extent of the right acquired by priority. 
 
 230. Such right not dependent upon title to the soil. 
 
 231. It is fixed by the original appropriation. , 
 
 232. Duty to so keep ditch in repair. 
 
 233. Purpose of the appropriation. 
 
 234. Sales of water rights. 
 
 235, 236. What constitutes an appropriation. 
 
 237. Change of use. 
 
 238, 239. Prior right how lost 
 
 240. The Act of Congress of July 26, 1866 — Mining customs. 
 
 §226. Prior occupation — Effect. — At common law, the 
 right of every riparian proprietor to the use of the stream is 
 an incident to the ownership of the land bordering upon the 
 stream, and arises ex jure naturae. 1 The right exists whether 
 it is exercised or not, and the riparian proprietor may begin 
 to exercise it when he will. 2 It does not depend upon occu- 
 pancy, and is not limited by the prior occupation of others 
 not amounting to an adverse enjoyment by prescription ; 3 but, 
 the rights of the different proprietors being equal, and each 
 being entitled to the reasonable use of the stream for any law- 
 ful purpose, irrespective of the extent of his watershed, 4 it is 
 wholly immaterial who is first in time. The amount of dam- 
 ages to which one proprietor is entitled for a wrongful inter- 
 ference with his riparian rights may, indeed, vary, according 
 to the use to which he has applied the water, and the expend- 
 iture which he has made to render it available. If he has law- 
 fully appropriated the water to a beneficial use, he may sue 
 for an injury done to him in respect to such use; and if he has 
 
 i Ante, §§ 204-209. 4 standen v. New Rochelle W. Co., 
 
 2 ibid. 86 N. Y. S. 92. 
 
 3 Ibid. 
 
§ 227.] 
 
 APPR0PKIATI0N AND PBIOKITY. 
 
 449 
 
 appropriated the stream to the use of a mill newly erected, he 
 may recover from another proprietor upon the stream damages 
 for the injury to his mill occasioned by the wrongful use of 
 the stream, although before the mill was built the wrongdoer 
 might have been liable to nominal damages only. 1 This re- 
 lates, however, to an unlawful interference with an existing 
 right, and has no bearing upon the question whether the use 
 of the stream complained of is or is not lawful. 
 
 § 227. Same — Under mill acts.— The equal right of all 
 the proprietors to the use of the stream in common, being 
 thus an incident to the ownership of the land, and existing 
 jure naturm, cannot be affected by such priority of occupa- 
 tion as does not amount to an adverse prescriptive right. 2 In 
 Massachusetts and some other States there, is an important 
 limitation to the rule that no superior right to the stream is 
 acquired by mere occupancy, and the owner of land who first 
 erects a dam for the purpose of operating a mill upon his own 
 land, has the right to maintain it as against proprietors above 
 and below, 3 although it may set the water back to such a dis- 
 
 ilbid.; Mason v. Hill, 5 B. & Ad. 
 1; 3 B. & Ad. 304; Holker v. Porritt, 
 L. R 10 Ex. 59, 62; Pennington v. 
 Brinsop Hall Coal Co., 5 Ch. D. 769, 
 773; Att. Gen. v. Birmingham, 4 De 
 Gex & J. 528; Rutland v. Bowler, 
 Palmer, 290; White v. East Lake 
 Land Co., 96 Ga. 415. 
 
 2 Mason v. Hill, 5 B. & Ad. 1; 3 B. 
 & Ad. 304; 2 Nev. & M. 747; Wright 
 v. Howard, 1 Sim. & Stu. 190; Samp- 
 son v. Hoddinott, 1 C. B. n. s. 611; 
 Cocker v. Cowper, 5 Tyrw. 103; Chase- 
 more v. Richards, 2 H & N. 181; Hol- 
 ker v. Porritt, L. R. 10 Ex. 59; Piatt 
 v. Johnson, 15 Johns. 213; Merritt v. 
 Brinkerhoff, 17 id. 306; Palmer v. 
 Mulligan, 3 Caines, 397; Campbell v. 
 Smith, 3 Hal. (N. J.) 140; Pillsbury 
 v. Moore, 4 Maine, 154; Gould v. Bos- 
 ton Duck Co., 13 Gray, 450; Slattery 
 v. Harley (Neb.), 79 N. W. Rep. 151; 
 Pugh v. Wheeler, 2 Dev. & Bat. 50. 
 The earlier authorities are to the 
 contrary effect, upon the theory of 
 29 
 
 the civil law, that flowing water be- 
 longs to no one, and that the right to 
 use it depends upon'possession. Will- 
 iams v. Moreland, 2 B. & C. 910; 
 Bealy v. Shaw, 6 East, 208; Saunders 
 v. Newman,, 2 B. & Aid. 258; Cox v. 
 Mathews, 1 Vent. 137; Liggins v. 
 Inge, 7 Bing. 692; Frankumu Fal- 
 mouth, 6 C. & P. 529. 
 
 3 Hatch v. D wight, 17 Mass. 296; 
 Cary v. Daniels, 8 Met. 476; Whitney 
 v. Eames, 11 Met. 519; Gould v. Bos- 
 ton Duck Co., 13 Gray, 451; Fuller v. 
 Chicopee Manuf. Co., 16 Gray, 44; 
 Pratt v. Lamson, 2 Allen, 288; Smith 
 u. Aga warn Canal Co., id. 357; Hap- 
 good v. Brown, 102 Mass. 451 ; Low- 
 ell v. Boston, 111 Mass. 465; Wood v. 
 Edes, 2 Allen, 578. In Storm v. Man- 
 chaug Co., 13 Allen, 10, 15, Hoar, J., 
 says that the question when the 
 right secured by prior occupancy be- 
 gins, has always been determined by 
 the express language of the mill acts. 
 The same rule seems to prevail in 
 
450 
 
 THE LAW OF WATEKS. 
 
 [CH. YIL 
 
 tance and height as to prevent a proprietor above from having 
 a sufficient fall to carry a mill upon his own land, or preclude 
 any subsequent erection below him. 1 " To the extent," says 
 Bigelow, C. J., 2 " to which the descent or fall of water in a 
 stream is taken up and occupied by the erection of dams for 
 the purpose of carrying mills, the right of other owners on 
 the same stream, who have not improved their sites for the 
 creation of water-power and the driving of mills, is abridged 
 and taken away. In such case prior occupancy gives priority 
 of title." This limitation seems to be peculiar to a few States 
 only, and it is quite generally held in the other States that the 
 right to use the stream for the creation of a water-power is, 
 as in other cases, merely the right to use it in a reasonable 
 manner and to a reasonable extent without regard to the ques- 
 tion of priority. 3 Even in Massachusetts a riparian proprietor 
 has no right unreasonably to divert the water or change the 
 use of it, otherwise than in the above manner, to the injury of 
 other proprietors upon the stream, unless such right has been 
 acquired by grant or prescription; 4 and the right which a 
 
 Maine and Kentucky. Lincoln v. 
 Chadbourne, 56 Maine, 197: Heath v. 
 Williams, 25 id. 44, 209; Bailey v. 
 Rust, 15 id. 440; Tinkharn v. Arnold, 
 3 id. 120; Butman v. Hussey, 12 id. 
 407; Tye v. Catching, 78 Ky. 463. 
 
 1 Cary v. Daniels, 8 Met. 466; Pratt 
 v. Lamson, 2 Allen, 288; Wentworth 
 v. Poor, 38 Maine, 243 ; Fuller v. Chico- 
 pee Manuf. Co., 16 Gray, 44; Lincoln 
 v. Chadbourne, 56 Maine, 197; Gould 
 v. Boston Duck Co., 13 Gray, 451. 
 
 2 Fuller v. Chicopee Manuf. Co., 16 
 Gray, 43, 44. 
 
 3 Keeney Manuf. Co. v. Union 
 Manuf. Co., 39 Conn. 576, 582; Parker 
 v. Hotchkiss, 25 Conn. 321; King v. 
 Tiffany, 9 Conn. 162; Tucker v. Jew- 
 ett, 11 Conn. 324; Roath v. Driscoll, 
 20 Conn. 541; Tyler v. Wilkinson, 4 
 Mason, 397; Whipple v. Cumberland 
 Manuf. Co., 2 Story, 661; Gilman v. 
 Tilton, 5 N. H. 231; Odiorne v. Ly- 
 ford, 9 N. H. 503; Cowles v. Kidder, 
 24 N. H. 378; Hooksett v. Amoskeag 
 Manuf. Co., 44 N. H. 106; Snow v. 
 
 Parsons, 28 Vt. 463; Gibson v. Fischer, 
 68 Iowa, 29; Dumont v. Kellogg, 2» 
 Mich. 422; Ryerson v. Brown, 35- 
 Mich. 333; Timm v. Bear, 29 Wis. 
 254; Stout v. McAdams, 2 Scam. 67; 
 Wilcoxon v. McGee, 12 111. 381; Bliss 
 v. Kennedy, 43 111. 67; Rudd v. Will- 
 iams, 43 111. 385; Hendrick v. Cook, 
 4 Ga. 241; Pool v. Lewis, 41 Ga. 162 
 Beavers v. Trimmer, 25 N. J. L. 97 
 Hartzall v. Sill, 12 Penn. St. 248 
 Baldwin v. Calkins, 10 Wend. 167 
 Piatt v. Johnson, 15 Johns. 213; Mar- 
 tin v. Bigelow, 2 Aik. ( Vt.) 184; Johns 
 v. Stevens, 3 Vt. 308; Davis v. Fuller, 
 12 Vt. 178; Pugh v. Wheeler, 2 Dev. 
 & Bat. 50; Hoy v. Sterrett, 2 Watts, 
 327 ; McCalmont v. Whitaker, 3 Rawle, 
 84; Strickler v. Todd, 10 S. & R 63; 
 Whaler v. AM, 29 Penn. St. 98; 66 
 L. T. 256. 
 
 <Cowell v. Thayer, 5 Met. 253, 256; 
 Boliver Manuf. Co. v. Neponset ManuL 
 Co., 16 Pick. 241; Williams v. Nelson, 
 23 Pick. 141; Elliott v. Fitchburg R. 
 Co., 10 Cush. 191. 
 
§ 228.] 
 
 APFK0PEIATI0N AND PBIOKITY. 
 
 451 
 
 mill-owner acquires by prior occupation, " is not so absolute," 
 says Merrick, J., 1 " as to give him the control of the whole 
 stream, or to deprive other proprietors of the reasonable enjoy- 
 ment of the privileges to which they are naturally entitled." 
 
 § 228. Same — Pacific States.— In California, 2 Colorado, 3 
 Nevada, 4 and other Pacific States and Territories, 5 the com- 
 mon-law rule upon this subject is modified, owing to the pe- 
 culiar condition and need's of the settlers and miners upon the 
 public lands; and the right to running water exists without 
 private ownership of the soil, upon the ground of prior loca- 
 tion upon the land or prior appropriation of the water. Upon 
 the public lands, where there is no private ownership of the 
 soil, the rights acquired by such priority are as perfect and ab- 
 solute as if acquired by "prescription or by an express grant 
 from riparian proprietors, 6 but such right of appropriation does 
 not exist with respect to any land patented by the government. 7 
 
 1 Smith v. Agawam Canal Co., 2 
 Allen, 355, 357; Dean v. Colt, 99 Mass. 
 486; Gleason v. Assabet Manuf. Co., 
 101 Mass. 72; Thurber v. Martin, 2 
 Gray, 394 
 
 , 2 Lux v. Haggin, 69 Cal. 255; Lake- 
 side Ditch Co. v. Crane, 80 Cal. 181; 
 Ely v. Ferguson, 91 Cal. 187; Bur- 
 rows v. Burrows, 82 Cal. 564; Settlers' 
 Ditch Co. v. Hayes (Cal.), 22 Pac. Rep. 
 1152. 
 
 3 In this State, under its constitu- 
 tion, article 16, section 6, the com- 
 plaint must show an application of 
 the water to some beneficial use. 
 Farmers' High Line Canal Co. v. 
 Southworth, 13 Col. 111. 
 
 4 Reno Smelting Works v. Steven- 
 son, 20 Nev. 269; Terrett v. Mahan, 
 id. 89. 
 
 5 McGinness v. Stanfield (Idaho), 55 
 Pac. Eep. 1020. 
 
 6 Kidd v. Laird, 15 Cal. 161; Butte 
 T. M. Co. v. Morgan, 19 Cal. 609; Lick 
 v. Madden, 25 Cal. 209; Nevada Ditch 
 Co. v. Bennett, 30 Oregon, 59; Car- 
 ron v. Wood, 10 Mont. 500; Moyer v. 
 Preston (Wyom.), 44 Pac. Rep. 845; 
 Austin v. Chandler (Ariz.), 42 id. 483. 
 
 Rights against third persons are ac- 
 quired by priority of possession, but 
 as against the government the per- 
 son taking possession has no title, 
 legal or equitable, until the comple- 
 tion of his work. Bear Lake Ir. Co. 
 v. Garland, 164 IT. S. 1, 19. The stat- 
 ute applies only to lands of the gov- 
 ernment. Curtis v. La Grange W. 
 Co., 20 Oregon, 34. Possessory rights, 
 founded upon mere occupation and 
 improvements upon government land 
 are invalid as against the govern- 
 ment, but may be made the subject 
 of barter and sale between individ- 
 uals, and are subject to State taxa- 
 tion. Bishop of Nesqually v. Gibbon, 
 158 IT. S. 155, 168; Maish «. Arizona, 
 164 IT. S. 599, 609. The rights ac- 
 quired under the Pacific Railroad 
 Acts were subject to the lawful 
 claims of those who had acquired 
 the right to use the water for irriga- 
 tion. Tynon v. Despain, 22 CoL 240. 
 As to appropriation by aliens, see 
 Santa Paula W. Works v. Peralta, 113 
 Cal. 38. 
 
 7 Benton v. Johncox, 17 Wash. 277; 
 Sturr v. Beck, 6 Dak. 71; 133 U. S. 
 
452 
 
 THE LAW OE WATERS. 
 
 [OH. VII. 
 
 " The reasons," says Sanderson, 0. J., 1 " which constitute the 
 groundwork of the common law upon this subject remain un- 
 disturbed. 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 Icedas, 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." In Lux v. Haggin, 2 McKinstry, J"., said : 
 " The appropriator does hot necessarily act as the agent of the 
 State employing the power of eminent domain for the benefit 
 of the public, but by his appropriation makes the running water 
 his own, subject only to the trust that he shall employ it for 
 some useful purpose." 3 This important case established that 
 
 541 ; Shenandoah M. Co. v. Morgan, 
 106 Cal. 409; Utt v. Frey, id. 392. See 
 DeBaca v. Santo Domingo (New 
 Hex.), 60 Pac. Rep. 73. 
 
 iHill v. Smith, 27' Cal. 476, 482. In 
 Atchison v. Peterson, 20 Wall. 507, 
 512, Field, J., after referring to the 
 common-law rule by which the differ- 
 ent riparian proprietors have an equal 
 right to use the water of the stream, 
 said: "This equality of right among 
 all the proprietors on the same stream 
 would have been incompatible with 
 any extended diversion of the water 
 by one proprietor, and its conveyance 
 for mining purposes to points from 
 which it could not be restored to the 
 stream. But the government being 
 the sole proprietor of all the public 
 lands, whether bordering on streams 
 or otherwise, there was no occasion 
 for the application of the common- 
 law doctrine of riparian proprietor- 
 ship with respect to the waters of 
 those streams. The government, by 
 its silentacquiescence,assented to the 
 general occupation of the public lands 
 for mining, and, to encourage their 
 free and unlimited use for that pur- 
 pose, reserved such lands as were 
 mineral from sale, and the acquisi- 
 tion of title by settlement. And he 
 who first connects his own labor with 
 
 property thus situated and open to 
 general exploration, does, in natural 
 justice, acquire a better right to its 
 use and enjoyment than others who 
 have not given such labor. So the 
 miners on the public lands through- 
 out the Pacific States and Territories 
 by their customs, usages, and regula- 
 tions everywhere recognized the in- 
 herent justice of this principle; and' 
 the principle itself was at an early 
 period recognized by legislation and 
 enforced by the courts in those States 
 and Territories." Evidence of min- 
 ing customs is admissible under the 
 general issue. Jacob v. Day, 111 CaL 
 571. 
 
 2 69 CaL 255, 309. It was also held 
 that there is nothing to the contrary 
 in Cal. Civil Code, § 1410. See also 
 Stanford v. Felt, 71 Cal. 249; Tubbs 
 v. Wilhoit, 73 Cal. 61 ; Heilbron v. Last 
 Chance Ditch Co., 75 Cal. 117; Tur- 
 lock Irr. District v. Williams, 76 Cal. 
 360, 370; De Necochea v. Curtis, 80 
 Cal. 397; Van Bibber v. Hilton, 84 
 Cal. 585; Alta Land Co. v. Hancock, 
 85 Cal. 219, 229; Barrows v. Fox, 98 
 Cal. 63; Smith v. Hawkins (CaL), 59 
 Pac. Pep. 295 ; United Land Ass'n v. 
 Knight, id. 418, 477; Judkins v. El- 
 liott (Cal.), 12 Pac. Rep. 116. 
 
 3 The appropriation must be use- 
 
228.] 
 
 APPROPRIATION AND PRIORITY. 
 
 \ 
 
 453 
 
 the rights of riparian owners of lands which were originally 
 public lands of the United States, are determined by the com- 
 mon law; that as riparian owners, they are entitled to reason- 
 ably use the waters of natural streams for irrigation; and that, 
 after the grant from the general government, the waters of 
 such streams are not subject, without compensation, to appro- 
 priation for private purposes. The remainder of this chapter 
 is devoted to the rules applicable in the States above referred 
 to, which are already dependent in each to some extent upon 
 their constitutions and statutes, some of which are fully anno- 
 tated, and all of which are cited in the notes. 1 
 
 ful; it cannot be made for mere fu- 
 ture speculation. Toohey v. Campbell 
 (Mont.), 60 Pac. Rep. 396; Northport 
 Brewing Co. v. Perrot (Wash.), id. 403 ; 
 Millheiser v. Long (New Mex.), 61 
 Pao. Eep. 111. 
 
 1 Arizona: The act of March 21, 
 1S89, No. 34, defines the rights of par- 
 ties owning private or lateral ditches. 
 California: The Constitution of this 
 State provides that "the use of all 
 water now appropriated, or that may 
 hereafter be appropriated, for sale, 
 rental, or distribution, is hereby de- 
 clared to be a public use, and subject 
 to the regulation and control of the 
 State, in the manner prescribed by 
 law," etc. Political Code, art. 14. See 
 Merrill v. Southside Ir. Co., 112 Cal. 
 426. The Civil Code (Deering. p. 179, 
 and Sup. (1889), p. 283) provides as to 
 water easements as incidents or ap- 
 purtenances. Upon § 801, see Mc- 
 Daniel v. Cummings, 83 Cal. 515. 
 Title 8, §§ 1410 et seq. regulates the 
 appropriation of water (annotated). 
 See statutes of March 7, 15, 1887, and 
 February 16, and March 16, 1889; Ely 
 v. Ferguson, 91 Cal. 187; Wells v. 
 Mantes, 99 Cal. 583; Lillis v. Emi- 
 grant Ditch Co., 95 CaL 553; Watter- 
 son v. Saldunbehere, 101 Cal. 107; 
 People v. Elk River M. Co., 107 Cal. 
 214. The Penal Code provides: by 
 § 347, as to the poisoning of water; 
 by § 499, as to stealing water from 
 
 pipes, conduits, flumes, etc. ; by § 593, 
 as to taking or polluting the waters 
 of canals, ditches, flumes, or reser- 
 voirs; and by§ 607, as to the destruc- 
 tion of, or injury to, a bridge, dam, 
 canal, flume, aqueduct, levee, em- 
 bankment or reservoir. As to saw- 
 dust, see statutes of 1889, ch. 65. The 
 statute of 1889, ch. 68, provides as to 
 the joint liability of the owners of 
 ditches or flumes. See also post, 
 § 236, note. As to the power of water 
 commissioners appointed under the 
 act of May 15, 1854, see Charnock 
 v. Rose, 70 Cal. 189. Colorado: By 
 § 16 of the Constitution, the water of 
 every natural stream, not previously 
 appropriated, is declared to be public 
 property. See 1 Mills' Annotated 
 Statutes, ch. 69, and Mills' Sup. p. 253, 
 regulating the appropriation and 
 use of water for irrigation. In Ibid., 
 pp. 360-379, notes to art. 16 of the 
 Constitution, will be found valuable 
 notes upon the Constitutional pro- 
 visions of Western States as to water 
 rights, irrigation, ditches, diversion, 
 appropriation, contracts, etc. See 
 Strickler v. Colorado. Springs, 16 Col. 
 61 ; Armstrong v. Larimer Co. D. Co., 
 1 Col. App. 49; Water Supply & S. 
 Co. v. Larimer & Weld Ir. Co., 24 
 Col. 322; Same v. Tenney, id. 344; 
 Jar vis v. State Bank, 22 Col. 309; 
 Lund en Ir. Canal Co. v. Handy Ditch 
 Co., id. 102; Boulder & W. C. Co. v. 
 
451 
 
 THE LAW OF WATEKS. 
 
 [Ch. VII. 
 
 § 229. Prior right — Extent. — 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 
 
 Lower Boulder Ditch Co., id. 115; 
 White v. Farmers' H. C. Co., id. 191; 
 ( Farmers' Ind. Ditch Co. v. Agr. Ditch 
 Co., id. 513; Putnam v. Curtis, 7 Col. 
 App. 437; Upper Platte & Beaver 
 Canal Co. v. Ft. Morgan Res. Co. 
 (Col.), 60 Pac. Pep. 484; Crippen v. 
 Burroughs (Col.), id. 487; Rio Grande 
 Land Co. v. Prairie Ditch Co. (Col.), 
 id. 726; Cash v. Thornton, 3 CoL App. 
 475. Sees. 1742, 1762 et seq., of the Gen. 
 St. of 1883, provided for adjudicat- 
 ing water priorities. See Lamson v. 
 Vailes (Col.), 61 Pac. Rep. 231. Idaho: 
 Art. 16 of the Constitution declares 
 the use of appropriated waters, etc., 
 to be a public use, etc. Revised Stat- 
 utes of 1887, § 830 et seq. provide as 
 to floating timber, dams, booms, etc. ; 
 §§ 1335, 1336, relate to the enclosure 
 of reservoirs, etc. ; and § 3155 et seq. 
 to the appropriation of water, rights 
 of way for ditches, irrigation, etc. 
 See the important act of 1899 (Ses. 
 Laws of 1899, p. 484); Hillman v. 
 Hard wick, 28 Pac. Rep. 438; Kirk v. 
 Bartholomew, 29 id. 40; Geertson v. 
 Barrick, id. 42; Boulware v. Parke 
 (Idaho), 43 id. 680; Last Chance M. 
 Co. v. Bunker Hill Co., 49 Fed. Rep. 
 430. Montana: The Revised Stat- 
 utes (1887), § 983 et seq. provide as to 
 dams and reservoirs, appropriation, 
 and irrigation, §§ 162, 219, 255, 473 
 et seq., 1244 et seq. as to ditches; 
 §§ 1263-66 as to sales of water; §§ 171, 
 175 as to diversion; § 57, as to venue; 
 §g 63, 162, as to pollution. See Booth's 
 Ann'd Civil Code (1895), Div. II, Title 
 8, §§ 1880 et seq. As to the measure- 
 ment of water, see Laws 1899, pp. 
 117, 126. Nebraska: The Compiled 
 Statutes of 1881, ch. 16, §§ 158, 159, 
 provided for the right of way of ca- 
 nals for irrigating or water-power pur- 
 
 poses, and declared such canals to be 
 works of internal improvement. The 
 statute of 1889, ch. 68, provided as to 
 water-rights and irrigation, and the 
 right of way therefor. See new 
 Comp. Sts. of 1881 (Ann'd 9th ed., 
 1899), p. 1167. As to the power of 
 cities over streams and water-ways, 
 see statutes of 1887, pp. 126, 246. Ne- 
 vada: The General Statutes of 1885, 
 § 353 et seq. provide as to the ob- 
 struction, pollution and diversion, of 
 streams. See also §§ 4676, 4690 et seq., 
 4617, 907, 1065. The statute of Feb- 
 ruary 26, 1887, ch. 80, provides as to 
 ditches, diversion, and right of way. 
 See also statutes of 1889, p. 96, ch. 104; 
 p. 102, ch. 112, and ch. 113, p. 107; St. of 
 1891, ch. 62, p. 76; St. of 1897, p. 107. As 
 to pollution by saw-dust, see statutes 
 of 1889, ch. 15, p. 24 As to unlawful di- 
 version and waste of water, see id. ch. 
 48, p. 51. As to appropriators' rights 
 in Churchill county, see id. 65, ch. 
 65. New Mexico: By the Compiled 
 Laws of 1884, § 1 et seq. the irriga- 
 tion of fields is preferred to mills 
 and other impediments, and public 
 ditches are defined ; by § 192 corpora- 
 tions for irrigating "ditches, mining, 
 etc., are authorized ; by § 49 natural 
 springs, rivers, etc., are declared to 
 be free. See also §§ 12, 17, 26, 51, as 
 to the use of streams. The statute 
 of 1884, ch. 41, confers power to con- 
 demn right of way. The statute of 
 1887, ch. 12, provides for the forma- 
 tion of irrigation and canal corpora- 
 tions. Statute of 1889, ch. 107, re- 
 quires irrigating wells and pumps to 
 be fenced. See also statutes of 1891, 
 chs. 17, 71, 90. North Dakota: By 
 the Constitution, art. 17, § 210, " all 
 flowing streams and natural water- 
 courses shall forever remain the prop- 
 
§ 229.] 
 
 APPROPRIATION AND PRIORITY. 
 
 455 
 
 in time. 1 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, and although 
 he does not himself use all the water, but distributes it among 
 <x>-tenants or lessees; 2 to have its quality unimpaired so as not 
 to defeat the purpose of such appropriation, and to remove ob- 
 structions from the natural channel. 3 The original appropriator 
 
 erty of the State for mining, irrigat- 
 ing, and manufacturing purposes." 
 See Bigelow v. Draper, 6 N. Dak. 152. 
 As to water rights of way, see Laws 
 •of 1899, ch. 173. Oregon: See St. 1891, 
 p. 52, and the important act of Feb. 18, 
 1899, Laws of 1899, p. 172. South 
 Dakota: Session Laws of 1890, chs. 
 103, 104, provide for artesian wells and 
 irrigation, and ch. 119 provides for the 
 preservation of lakes and streams. 
 Utah: 1 Compiled Laws of 1888, 
 pp. 216, 220, provide as to water rights 
 and rights of way therefor. 2 id. 
 p. 47, provides as to irrigation. See 
 also pp. 132-136, 640; Rev. Stats. 
 (1898), Title 33; Springville v. Full- 
 mer, 7 Utah, 450; Stalling v. Ferrin, 
 id. 477. Washington: The Constitu- 
 tion, art. 21, 1, makes the use of 
 waters for irrigation, mining and 
 manufacturing purposes a public use. 
 See also Laws of 1890, pp. 21, 25, 38; 
 1 Ballinger's Ann'd Stats. (1897), 
 p. 1056; Laws of 1899, ch. 131. Wyom- 
 ing: The Constitution, art. 8, § 1, 
 makes the waters of natural streams, 
 springs, and lakes the property of the 
 State. By a statute enacted Decem- 
 ber 22, 1890, claimants of water rights 
 must prove their priority before the 
 State board of control; this act is 
 retroactive. Farm Inv. Co. v. Car- 
 penter (Wyom.), 61 Pac. Rep. 258. As 
 to partnership ditches, see Laws of 
 1897, ch. 68. 
 
 JHimes v. Johnson, 61 CaL 259; 
 Butte Canal Co. v. Vaughn, 11 Cal. 
 143; Ortman v. Dixon, 13 Cal. 38; 
 McDonald v. Bear River M. Co., 15 
 Cal. 145; 13 CaL 220; Hoffman v. 
 
 Stone, 7 Cal. 49; Irwin v. Phillips, 5 
 Cal. 140; Sims v. Smith, 7 Cal. 148; 
 Marius v. Bicknell, 10 Cal. 217; Hill 
 v. Newman, 5 Cal. 445; Leigh Co. v. 
 Independent Co., 8 Cal. 323; Sullivan 
 v. Beardsley, 55 Cal. 608; Posachane 
 W. Co. v. Standart, 97 Cal. 476; Atchi- 
 son v. Peterson, 20 Wall. 507; 1 Mon. 
 561; Basey v. Gallagher, id. 670; 1 
 Mon. 455; Stafford v. Hornbuckle, 3 
 Mon. 485; Lobdell v. Simpson, 2 Nev. 
 274; Ophir Silver M. Co. v. Carpenter, 
 4 Nev. 534; James v. Goodenough, 7 
 Nev. 324; Dalton v. Bowker, 8 Nev. 
 190; Schilling v. Rominger, 4 Col. 100; 
 Thorp v. Woolman, 1 Mon. 168; Dun- 
 niway v. Lawson (Idaho), 51 Pap. 
 Rep. 1032.' 
 
 2 Cache La Poudre Ir. Co. v. Larimer 
 & Weld Res. Co., 25 Col. 144. 
 
 3 Note 1 above; Montana Co. v. 
 Gehring, 75 Fed. Rep. 384; Barnes v. 
 Sabron, 10 Nev. 217; Nevada Water 
 Co. v. Powell, 34 Cal. 109; Gale v. 
 Tuolumne Water Co., 14 Cal. 25; Sims 
 v. Smith, 7 Cal. 148; Vernon Ir. Co. v. 
 Los Angeles, 106 Cal. 237; Cole v. Lo- 
 gan, 24 Oregon, 304; Low v. Schaffer, 
 id. 239; Low v. Rizor, 25 id. 551; Nich- 
 ols v. Mcintosh, 19 CoL 22; Conant v. 
 Jones (Idaho), 32 Pac. Rep. 250; Creek 
 v. Bozeman W. W. Co., 15 Mont. 121; 
 Smith v. Hawkins, 120 Cal. 86; Senior 
 v. Anderson, 115 Cal. 496; Nevada 
 Ditch Co. v. Bennett, 30 Oregon, 59; 
 McDonald v. Lannen, 19 Mont. 78. 
 That the legislature cannot prohibit, 
 but may regulate the appropriation 
 of water on public land for useful 
 purposes, see Larimer Co. R. Co. v. 
 People, 12 Col. 531; 8 CoL 614 
 
456 THE LAW 0E WATEES. [Ch. YIL 
 
 of all the water in a stream may increase the amount diverted 
 by enlarging his ditch at pleasure ; l but even when he appropri- 
 ates all the water of a stream, a subsequent valid appropriation 
 may be made by another of the surplus during freshets or ex- 
 traordinary high water. 2 He may apply the water to any 
 beneficial purpose, without any obligation to return it to the 
 stream from which it was taken, or to preserve its purity or 
 quantity, 3 and he may use the bed of a stream on the public 
 lands, which is not navigable, as a storage basin for water run- 
 ning to waste. 4 He is equally entitled to have his right unim- 
 paired by subsequent locators above as well as below him, 5 and 
 may peacefully abate an obstruction in the stream which in- 
 terferes with his superior claim, even when by statute an abate- 
 ment is authorized by legal remedies. 6 When the right to 
 divert is once acquired, the point of diversion and place of use 
 may be changed without loss of the priority, if the legal rights 
 of others are not injuriously affected, 7 and his right is not lost 
 when there is a mistake in locating his boundary lines. 8 Per- 
 colating 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 sup- 
 plied from the spring. 9 Subsequent appropriators do not ac- 
 
 1 James v. Williams, 31 Cal. 211; T. M.' Co. v. Morgan, 19 CaL 009; 
 Feliz v. Los Angeles, 57 CaL 73. See Hague v. Nephi Irr. Co., 16 Utah, 421. 
 Lehi Ir. Co. v. Moyle, 4 Utah, 327; ' Fuller v. Swan River P. M. Co., 12 
 Salina Creek Ir. Co. v. Salina Stock Col. 12; Paige v. Rocky Ford Ir. Co., 
 Co., 7 Utah, 456. 83 Cal. 84; Junkans v. Bergin. 67 Cal. 
 
 2 Edgar v. Stevenson, 70 Cal. 286. 267; Wimer v. Simmons, 27 Oregon, 
 'Union Mill Co. v. Ferris, 2 Saw- 1; infra, § 237. As to the right of 
 
 yer, 184; Hill v. Smith, 32 Cal. 166; diversion from a stream which is at 
 
 Bear River Co. v. York Mining Co., 8 times tributary to the plaintiff's 
 
 Cal. 327; Mokelumne Hill Co. v. stream, see Creighton v. Kaweali 
 
 Woodbury, 10 Cal. 185; Simmons v. Canal Co., 67 Cal. 221. 
 
 Winters, 21 Oregon, 35; Combs v. SMahoney u Neiswanger (Idaho), 
 
 Agr. Ditch Co., 17 Col. 146; Saint 59 Pac. Rep. 561. 
 
 v. Guerrerio, id. 448; Kirk v. Barthol- 9 Hanson v. McCue, 42 Cal. 304. See 
 
 omew (Idaho), 29 Pac. Rep. 40. An McClellan v. Hurdle, 3 Col. App.430; 
 
 appropriation is not made by merely So. Pac. R Co. v. Dufour, 95 Cal. 615; 
 
 diverting water. Farmers' Ind. Ditch Crescent M. Co. v. Silver King M. Co., 
 
 Co. v. Agr. Ditch Co., 22 Col. 513. 17 Utah, 444. See Herriman Ir. Co. 
 
 * Larimer County Res. Co. v. Peo- v. Butterfield M. Co. (18 Utah), 57 
 
 pie, 8 Col. 614 Pac. Rep. 537; Willow Creek Ir. Co. 
 
 5 Hill v. King, 8 Cal. 336. v. Michaelson (id.), 60 id. 943. 
 
 6 Stiles v. Davis, 5 Cal. 120;. Butts 
 
§ 230.] APPKOPKIATION AND PKIOKITY. 457 
 
 quire any right to the waters of springs which have been 
 previously appropriated, and which constitute the source of a 
 creek, from the fact that the means by which the waters reach 
 the creek are subterranean and not well understood. 1 
 
 §230. Same — Title to the soil unnecessary.— The right 
 
 to thus appropriate water exists without private ownership 
 in the soil as against all persons but the government or its 
 grantees. 2 Possession of public land which has not been sur- 
 veyed or patented gives rise to no riparian rights in the streams 
 which flow through it. 3 If the water of a stream on the public 
 land is appropriated and the land is afterwards patented, the 
 patentee succeeds, in the absence of statute, 4 to the right of 
 the government, unencumbered by the previous appropriation, 
 and as no prescription runs against the government, it is im- 
 material how long the water may have been appropriated and 
 used in a particular manner prior to the issue of the patent. 5 
 The first appropriator is only required to prove his priority in 
 an action against one who simply denies that he is first in 
 time. 6 The defendant, if he has no patent, cannot defeat the 
 action by proof of the paramount title of the government ; 7 
 and if a prior claim to the water exists in a third person, this 
 fact, to be available in defense, must be pleaded specially. 8 
 The doctrine of the common law that rights in a flowing 
 stream arise from riparian ownership, apart from appropria- 
 tion, has full force in these Western States, except as prior 
 appropriation is protected by local customs and statute. 9 A 
 
 1 Strait v. Brown, 16 Nev. 317. See 4 See post, § 240. 
 
 Platte Valley Ir. Co. v. Buckers Ir. 5 Ibid. ; Union Mill Co. v. Ferris, 2 
 
 Co., 25 Col. 77. Sawyer, 176; Vansickle v. Haines, 7 
 
 2 Hill v. Newman, 5 Cal. 445; Riv- Nev. 249; Pope v. Kinman, 54 Cal. 3; 
 erside W. Co. v. Gage, 89 Cal. 410; Wattier v. Miller, 11 Oregon, 329. 
 Fort Morgan L. & C. Co. v. South 6 Coryell v. Cain, 16 Cal. 567. He 
 Platte Ditch Co., 18 Cal. 1; Ronnow must show that the defendant has> 
 v. Delmue, 23 Nev. 29; Vansickle v. done him an injury. West Point Ir. 
 Haines, 7 Nev. 249 ; Parks v. Barkley, Co. v. Moroni, etc. Ir. Ditch Co. (Utah), 
 1 Mon. 514. See post, § 240. 61 Pac. Rep. 16; Abraham v. Oregon 
 
 3 Ibid.; Lake v. Tolles, 8 Nev. 285; & C. R. Co. (Oregon), 60 id. 899; Blair 
 
 Robinson v. Imperial Silver Mining v. Boswell (id.), 61 id. 341; Turners. 
 
 Co., 5 Nev. 44. But see Crandall v. Locy (id.), id. 342. 
 
 Woods, 8 Cal. 136; Nevada Canal Co. 7 Ibid. 
 
 v. Kidd, 37 Cal. 282, 312; Silver Creek 8 Humphreys v. McCall, 9 Cal. 59;. 
 
 Co. v. Hayes, 113 Cal. 142; Williams Bird v. Lisbros, id. 1. 
 
 v. Harter, 121 Cal. 47. »Healy n Woodruff, 97 Cal. 464; 
 
45S THE LAW OF WATERS. [Ch. VII. 
 
 valid appropriation may be made for the irrigation of lands 
 not situated upon or near the stream ; ' and an injunction may- 
 issue against a diversion from a ditch which is not the plaint- 
 iff's property. 3 
 
 § 231. Same — Subsequent locators. — The right of the first 
 appropriator is fixed by his appropriation, and when others lo- 
 cate upon the stream or appropriate the wafer, which is not 
 sufficient for all, he cannot enlarge his original appropriation 
 or make anj' change in the channel to their injury. 3 Each sub- 
 sequent 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 act- 
 ually appropriated or necessary for the purposes for which 
 they intended to use the water, 4 and that he shall not monop- 
 olize or waste it beyond his needs, 5 or pollute the remainder. 6 
 If a portion of the water is appropriated only for certain days, 
 •others may not 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 appropriator. 7 
 
 Bloom v. West, 3 Col. App. 212; Bath- * Ibid. See post, § 236; Rominger 
 
 gate v. Irvine, 126 CaL 135. v. Squires, 9 Col. 327; Shotwell v. 
 
 1 Hammond v. Rose, 11 Col. 524; Dodge, 8 Wash. 337; Gassertu Noyes, 
 Coffin v. Left-Hand Ditch Co., 6 Col. 18 Mont. 216; Larimer & W. Res. Co. 
 443. v. Water Supply Co., 7 Col. App. 225; 
 
 2 Post, § 240; Vansickle v. Haines, Roeder v. Stein, 23 Nev. 92. 
 
 17 Nev. 249; Crandall v. Woods, 8 » Union Mill Co. v. Dangberg, 81 
 
 CaL 136; Leigh v. Ind. Ditch Co., id. Fed. Rep. 73; In re Huntley, 85 id. 
 
 323 ; Clifford v. Larrier (Ariz.), 11 Pac. 889. 
 
 Rep. 397. 6 Suffolk G. M. Co. v. San Miguel C. 
 
 3Lobdell v. Simpson, 2 Nev. 274; M. Co., 9 Col. App. 407. 
 Proctor u Jennings, 6 Nev. 83; Barnes 'McKinneyu Smith, 21 Cal. 374; 
 v. Sabron, 10 Nev. 217; Chiatovich v. Smith v. O'Hara, 43 Cal. 371; Barnes 
 Davis, 17 Nev. 133; American Co. v. v. Sabron, 10 Nev. 217. See Heilbron 
 Bradford, 27 Cal. 360; Nevada Water v. 76 Land & W. Co., 96 CaL, 7; Al- 
 Power Co. u Powell, 34 Cal. 109: Hig- hambra Addition W. Co. v. Richard- 
 gins v. Barker, 42 Cal. 233; Wixson son, 95 Cal. 490. Where one tenant 
 v. Devine, 80 CaL 385 ; Byrne v. Crafts, in common receives all the rents and 
 73 Cal. 641 ; Alder G. M. Co. v. Hayes, profits from the business of a ditch 
 6 Mont. 31; Eagan v. Estrada (Ariz.), or mine, his co-tenant may maintain 
 56 Pac. Rep. 721; Baxter v. Gilbert, a suit against him to recover his 
 125 Cal. 580; Branstetter v. Williams share. Abel v. Love, 17 Cal. 233; 
 (Idaho), 57 Pac. Rep. 433; Quigley v. Harris v. Lloyd, 11 Mont. 390; Smith 
 Birdseye, 11 Mont. 439; Becker v. v. North C. W. Co., 16 Utah, 194. If 
 Marble Creek Ir. Co., 15 Utah, 225. one joint owner of a flume used for 
 
§ 231.] 
 
 APPROPRIATION AND PRIORITY. 
 
 459 
 
 The right of the first appropriator is not determined by a com- 
 parison of the value of the water to him and to subsequent 
 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. 2 When the prior appropriation is for a particu- 
 lar 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 
 
 mining purposes consents to the 
 opening of a ditch above, the water 
 from which injures the flume, dam- 
 ages cannot be recovered for such 
 injury by the other joint owner. 
 Crary v. Campbell, 24 Cal. 634. See 
 Arnett v. Linhart, 21 Col. 188. The 
 ■water flowing in a ditch owned by 
 tenants in common cannot be par- 
 titioned, but, in case of dispute as to 
 their respective rights, a sale and dis- 
 tribution of the proceeds may be or- 
 dered by the court. McGillivray v. 
 Evans, 27 Cal. 92; Lorenz v. Jones, 59 
 Cal. 262. See Steward v. Stevens, 10 
 CoL 440. Where a ditch for mining 
 purposes is owned by several proprie- 
 tors, and their relation is not other- 
 wise defined, they are to be regarded 
 as tenants in common of real estate, 
 and their rights are determined by 
 the rules of law applicable to such 
 tenants. Bradley v. Harkness, 27 
 Cat 69; Jones v. Parsons, 25 Cal. 100; 
 Reed v. Spicer, 27 Cal. 63 : Carpentier 
 v. Webster, id. 524; Parke v. Kilham, 
 8 Cal. 77; Meagher v. Hardenbrook, 
 11 Mont. 385. Their relation has 
 some of the incidents of a partner- 
 ship. Goodenow v. Ewer, 16 Cal. 461; 
 Jones v. Parsons, 25 Cal. 100: Duryea 
 v. Burt, 28 Cal. 569; Dougherty v. 
 Creary, 30 Cal. 290; Chase v. Steell, 9 
 Cal. 66; Bradley v. Harkness, 26 Cal. 
 69; Bissell u'Foss, 114 U. S. 252; 
 Hewitt v. Storey, 39 Fed. Rep. 719; 
 Huston v. Bybee, 17 Oregon, 140; 
 Bowman v. Ayers (Idaho), 21 Pac. Rep. 
 405; Campbell v. Shivers, 1 Ariz. 161; 
 Lytle Creek W. Co. v. Perdew, 65 
 
 Cal. 447; Fitzellv. Leaky, 72 Cal. 477; 
 Henderson v. Nicholas, 67 Cal. 152; 
 Childers v. Neely ( W. Va.),34 S. E. Rep. 
 828 ; O'Connor v. North Truckee Ditch 
 Co., 17 Nev. 245 (corporation); Haiku 
 Sugar Co. v. Birch, 4 Hawaiian, 275. 
 One partner cannot sell and convey 
 the interest of his copartner. Hen- 
 derson v. Nicholas, 67 Cal. 152. When 
 necessary, a majority of them may 
 determine the modes of carrying on 
 the business. Dougherty v. Creary, 
 30 Cal. 290. But no authority is con- 
 ferred upon one member to bind the 
 company by his contract. McCon- 
 nell v. Denver, 35 Cal. 365. One part- 
 ner does not forfeit his rights in the 
 common property by failing to pay 
 his proportion of the expenses. Kim- 
 ball v. Gearhart, 12 Cal. 27. An as- 
 sociation formed for maintaining a 
 water ditch, keeping it in repair and 
 controlling and dividing the water 
 among the stockholders, is liable to 
 any stockholder injured by the fail- 
 ure to discharge its duty properly, as, 
 e. g., where the injury is caused by 
 other stockholders above diverting 
 more water than they are entitled to 
 under pie certificate of incorpora- 
 tion. O'Connor v. North Truckee 
 Ditch Co., 17 Nev. 245. See Moss v. 
 Rose, 27 Oregon, 595. 
 
 1 Weaver v. Eureka Lake Co., 15 
 Cal. 271; Fabian v. Collins, 2 Mont. 
 510. 
 
 2 James v. Williams, 31 Cal. 211. 
 See Charnock v. Rose, 70 Cal. 189; 
 Edgar v. Stevenson, id. 286. 
 
460 THE LAW OF WATERS. [Oh. VII. 
 
 appropriator cannot afterwards extend his appropriation to in- 
 clude more water to the detriment of those who have mean- 
 while appropriated the surplus, 1 or maintain an action against 
 subsequent claimants whose acts do not impair his use aud en- 
 joyment of the water for the original purpose intended. 2 Even 
 when physical and unanticipated 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 condi- 
 tion 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 interfere with the rights of subsequent 
 locators whose acts have not caused the change. 3 The extent 
 of the original appropriation, and the extent to which subse- 
 quent acts of appropriation are subordinate to it, are questions 
 of fact for the jury ; i but if there is no evidence of a more ex- 
 tended right, and the quantity originally appropriated was 
 sufficient for the purpose designed, the use made of the water 
 for a term of years affords a proper test. 5 A temporary of 
 trivial impairment of the regularity of the flow of the stream, 
 or of the purity of the water, which does not cause actual in- 
 jury to the prior claimant, does not give him a cause of ac- 
 tion. 6 
 
 § 232. Repair of ditches. — "When water is conducted 
 through an artificial canal or ditch over another's land, the 
 owner 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 covering it with . sand ; 7 and it is not material 
 
 lOrtman v. Dixon, 13 CaL 33; Mo- Mining Co., 8 Cal. 327; "Weaver tv 
 
 Kinney v. Smith, 21 Cal. 374; Atohi- Eureka Lake Co., 15 CaL 271. 
 
 son v. Peterson, 20 Wall. 507; Basey 'Richardson v. Kier, 34 CaL 63; 37 
 
 v. Gallagher, id. 607; Kelly v. Na- Cal. 263; Wolf v. St. Louis W. Co., 10 
 
 toma Co., 6 Cal. 105. Cal. 541; Robinson v. Black Diamond 
 
 2 Hill v. Smith, 27 Cal. 476. Coal Co., 57 CaL 412; 50 Cal. 460; 
 
 3 Nevada Water Co. v. Powell, 34 Darst v. Rush, 14 CaL 81; Camp- 
 Cal. 109. bell v. Bear River Co., 35 Cal. 679; 
 
 4 Ibid. Mathews v. Kinsell, 41 Cal. 512; 
 6 Ibid. ; Ortman v. Dixon, 13 Cal. Chidester v. Cons. Ditch Co., 59 CaL 
 
 33: Winter v. Fulstone, 20 Nev. 260. 197; Flickinger v. Shaw, 87 Cal. 126; 
 
 6 Phoenix Water Co. v. Fletcher, 23 Crisman v. Heiderer, 5 Col. 589; 
 
 Cal. 481; Natoma Water Co. v. McCoy, Kearney Canal Co. v. Akeyson, 45 
 
 id. 490; Bear River Co. v. New York Neb. 635; Phila. etc. R. R. Co. V. 
 
§ 232.] APPK0PEIATI0N AND PEIOEITT 461 
 
 ■who had the prior right or title. 1 If he uses a ravine or nat- 
 tural 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. 2 The owner of a ditch 'or flume who erects a dam 
 above mining claims, which are afterwards damaged by the 
 breaking 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, 3 or if it is wholly in charge 
 of a contractor. 4 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 locators of adjoining 
 claims which are injured by the breaking of the ditch. 5 If an 
 artificial ditch is constructed across a natural watercourse, 
 which it dams up, and which in a time of flood renders it nec- 
 essary to cut the embankment of the ditch to preserve it from 
 injury, the owner of the ditch is guilty of negligence if he cuts 
 the embankment at a point where there is no natural water- 
 course, thereby turning the water upon cultivated lands, and 
 cannot claim that the injury results from the act of God. 6 So 
 the owner of a tail-race or sluicing flume has no right to run 
 it upon the dumping-ground of another, and cannot recover 
 
 Smith, 64 Fed. Rep. 679; Arave v. Cal 397. The doctrine of lateral 
 
 Idaho Canal Co. (Idaho), 46 Pao. Rep. support does not apply to " deep dig- 
 
 1024; Thomas v. Blaisdell (Nev.), 58 gings " worked by the hydraulic 
 
 Pac. Rep. 903; McCauley v. McKeig, process, where the very purpose of 
 
 8 Mont. 389. locating the ground is to tear down 
 
 1 Ibid. The plaintiff's right to dam- and wash away the gravel of the lo- 
 ages is not affected by the fact that cated claims. Hendricks v. Spring 
 he was present and could have pre- Valley M. Co., 58 CaL 190. See § 389 
 vented the injury by committing a below. "Where a lease contained a 
 trespass. Wolf v. St. Louis, 15 Cal. covenant to keep the demised prem- 
 319; 10 Cal. 541. ises in repair, " damages by the ele- 
 
 2 Ibid. See Old v. Keener, 22 Col. 6. ments or acts of Providence ex- 
 
 3 Everett v. Hydraulic Co., 23 Cal. cepted," and near by was a reservoir 
 225; Fraler v. Sears Union W. Co., 12 sufficiently protected by an embank- 
 Cal. 555; Tuolumne County Co. v. ment, which was so injured by stran- 
 Columbia W. Co., 10 CaL 194; Todd gers that it gave way and the waters 
 v. Cochell, 17 Cal. 97. rushed upon the demised premises, 
 
 * Boswell v. Laird, 8 Cal. 469. the injury was held not to be wjthin 
 
 STenney v. Miners' Ditch Co., 7 the exception. Polask v. Pioche, 35 
 
 Cal. 335; Greeley Ir. Co. v. House, 14 Cal. 416. See Bean v. Stoneman, 104 
 
 Col. 549. Cal. 49. 
 6 Turner v. Tuolumne W. Co., 25 
 
462 
 
 THE LAW OF WATEKS. 
 
 [Ch. YIL 
 
 damages from the latter for filling it up, if lie does not pre- 
 Tent the owner from dumping on his own ground. 1 But the 
 owner of the servient estate is not bound to keep the ditch in 
 repair, nor is he liable for injury thereto caused by his cattle in 
 crossing over it, or in caving in its sides while feeding near it. 2 
 
 § 233. Purpose of appropriation. — "Whether the appropri- 
 ation is for mining, as originally it was solely, or for mills, 
 for irrigation, 3 or for agricultural, horticultural, domestic or 
 municipal purposes, the rights thereby acquired now stand 
 upon the same footing, and an appropriation or use of the 
 water for one of these purposes is not justifiable when it in- 
 terferes with a prior appropriation or location for another 
 purpose. 4 The prior possessory rights of settlers on the public 
 lands for agricultural and grazing purposes yield to the rights 
 
 1 Ralston v. Plowman, 1 Idaho, N. s. 
 595. 
 
 *Durfee v. Garvey, 78 Cal. 546. 
 See Keller v. Fink (Cal.), 37 Pac. Rep. 
 411; McCarty v. Boise City Canal 
 Co. (Idaho), 10 Pac. Rep. 623. 
 
 3 See Krall v. United States, 79 
 Fed. Rep. 241 ; Mackintosh v. United 
 States, 85 id. 333; San Diego Land & 
 Town Co. v. Sharp, 97 id. 394; Char- 
 nock v. Higuerra, 111 Cal. 473; Wig- 
 gins v. Muscupiabe L. Co., 113 Cal. 
 182; Beck v. Pasadena Lake Co. (Cal.), 
 59 Pac. Rep. 387; X. Y. Ir. Ditch Co. 
 v. Buffalo Creek Ir. Co., 9 Col. App. 
 436; Beaver Brook R. Co. v. St. Vrain 
 R. Co., 6 Col. App. 130; Nephilr. Co. 
 v. Vickers, 16 Utah, 374; Middle 
 Creek Ditch Co. v. Henry, 15 Mont. 
 558; Crawford v. Minnesota Co., id. 
 153; Miller v. Perris Ir. District, 99 
 Fed. Rep. 143; 85 id. 698; Rodgers v. 
 Pitt, 89 id. 420; Huning v. Porter 
 (Ariz.), 54 Pac. Rep. 584; Church v. 
 Stillwell, 12 CoL App. 43; X Y. Ir- 
 rigating Ditch Co. v. Buffalo Creek 
 Ir. Co., 25 Col. 529; 9 Col. App. 438; 
 Colorado Milling Co. v. Larimer & 
 Weld Ir. Co. (26 Col.), 56 Pac. Rep. 
 185; Ferrea v. Chabot, 121 Cal. 233; 
 Fairbanks v. Rollins (Cal.), 54 Pac. 
 Rep. 79; May berry v. Alhambra Ad^ 
 
 dition Co., 125 Cal. 444; San Joaquin,, 
 etc. Co. v. Stanislaus County, 90 Fed. 
 Rep. 516; San Diego Flume Co. v.. 
 Souther, id. 164; Mandell v. San 
 Diego Land Co., 89 id. 295; San Diego 
 Land Co. v. Jasper, id. 274; McLure 
 v. Koen, 25 Col. 284, 289; Brown v. 
 Farmers' High-Line Canal Co. (Col.), 
 56 Pac. Rep. 183; Handy Ditch Co. v. 
 South Side Ditch Co. (CoL), 58 Pac. 
 Rep. 30; Wells v. Price (Idaho), 56 
 Pac. Rep. 266; Wilson v. Perrault 
 (id.), 54 Pac. Rep. 617; Levy v. Ortega 
 (New Mex.), id. 344; Albuquerque. 
 Land & Ir. Co. v. Guitierrez (id.), 61 
 Pac. Rep. 357; Western Ir. & Land 
 Co. v. Chapman (Kan. App.), 59 id. 
 1008. In California irrigation dis- 
 tricts are quasi-public corporations. 
 People v. Linda Vista Ir. District 
 (Cal.), 61 Pac. Rep. 86. 
 
 * McDonald v. Bear River Co., 13 
 Cal. 220; 15 CaL 145; Tartar v. Spring 
 Creek Co., 5 Cal. 395; Ramsay v. 
 Chandler, 3 Cal. 90; Leigh v. Inde- 
 pendent Ditch Co., 8 Cal. 328; Ball «- 
 Kehl, 87 Cal. 505; Ortman v. Dixon, 
 13 Cal. 34; Gibson v. Puchta, 33 Cal. 
 310; Felix v. Los Angeles, 58 Cal. 73; 
 Elms v. Same, id. 80; Basey v. Gal- 
 lagher, 20 Wall. 682; Jennison v. 
 Kirk, 98 U. S. 453; Wilson v. Higbee, 
 
§ 233.] APPROPRIATION AND PRIORITY. 463 
 
 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 agriculturist without his con- 
 sent. 1 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 con- 
 dition that a suitable aqueduct be built in its place. 2 If the 
 appropriation is for mining purposes and there are orchards, 
 gardens or houses below on the stream, the appropriated water 
 must be so used as not to injure the trees or gardens; 3 and if a 
 reservoir is constructed across a stream or ravine for the pur- 
 pose of irrigating a garden, the water cannot be lawfully di- 
 verted therefrom, or the reservoir filled with mud and washings,, 
 by persons who afterwards enter for mining purposes. 4 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. 5 The first locator of a mining claim in 
 the bed cf 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 man- 
 ner, both the channel and water of the stream, and an injury 
 to subsequent locators is damnum absque vwjioria, if caused by 
 works which are conducted with reasonable care. 6 So, if the 
 construction of dams for the purpose of working mining claims 
 
 62 Fed. Eep. 723; Crane v. Winsor, 367; Eobinson v. Black Diamond 
 
 2 Utah, 248; Munro v. Ivie, id. 535; Coal Co., 50 CaL 460; 57 CaL 412; 
 
 Lehi Ir. Co. v. Moyle, 4 Utah, 327. Travis Placer M. Co. v. Mills, 94 Fed. 
 
 1 Stokes v. Barrett, 5 Cal. 36; Tartar Eep. 909. 
 
 v. Spring Creek Co., 5 Cal. 395 ;Burdge *Eupley v. "Welch, 23 Cal. 452; 
 
 v. Underwood, 6 Cal. 45; Conger v. Levaroni v. Miller, 34 Cal. 231. 
 
 Weaver, 6 Cal. 548; Weimer v. Low- 5 Phoenix Water Co. v. Fletcher, 23 
 
 ery, 11 Cal. 104; Boggs v. Merced M. Cal. 481; Natoma Water Co. v. Mc- 
 
 Co., 14 CaL 379 ; Henshaw v. Clark, id. Coy, id. 490. So of tailings in placer 
 
 460; Gold Hill Mining Co. v. Ish, 5 mining. Fitzpatrick v. Montgomery, 
 
 Oregon, 104; Gillan v. Hutchinson, 20 Mont. 181. 
 
 16 CaL 153; Eogers v. Soggs, 22 Cal. 6 Esmond v. Chew, 15 CaL 137;. 
 444; Esminge v. Mclntire, 23 Cal. 593; Logan v. Driscoll, 19 Cal. 623; Greg- 
 Court wright v. Bear Eiver Co., 30 ory v. Harris, 43 Cal. 38; Eastlick 
 CaL 573. v. Wright, 121 Cal. 309; Nelson v. 
 
 2 Gregoryu Nelson, 41 CaL 278. O'Neal, 1 Mont. 284; Lincoln v.. 
 
 3 Wixon v. B. Water Co., 24 Cal. Eogers, id. 217. 
 
464 THE LAW OF WATEKS. [Ch. YIL 
 
 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 damnum 
 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 Icedas rather than by any 
 consideration of priority. 2 
 
 § 234. Conveyance of water rights. — The right to water 
 acquired by priority is the subject of property, and may be 
 sold and conveyed, in whole or in part, 3 either with or apart 
 from the right to the land ; 4 but the transfer of a water claim 
 does not pass a right of action for damages for a previous ille- 
 gal use of the water, 5 and . if the plaintiff fails to connect his 
 interest with those who first appropriated the waters of the 
 stream, his ©wn appropriation is to be treated as the inception 
 of his right. 6 If the water is appropriated for a mill, and this 
 is sold together with the possessory right of land on the stream, 
 the vendee becomes the owner of the water right. 7 A person 
 who sells his interest in the water of a stream, to be used in a 
 ditch above him, does not k>se his prior right over a subsequent 
 appropriator below to any flow remaining. 8 A deed of a 
 water-right ditch carries prima facie the water right with it, 9 
 though each may be sold separately ; l0 and if a ditch or flume 
 in process of construction be mortgaged, the mortgage will, if 
 such appears to be the intent, include the whole work when 
 
 1 Stone v. Bumpus, 46 Cal. 218; 40 Conroy, 104 Cal. 468; Smith v. Will- 
 Cal. 428. As to storing appropriated iams (126 Cal.), 55 Pao. Rep. 600. 
 water, see Water Supply & Storage 6 Kimball v. Gearhart, 12 Cal. 27. 
 Co. v. Larimer & Weld Ir. Co., 24 As to covenants and actions relating 
 Col. 322; 46 L. R. A. 322, and note, to irrigation, see Ferrea v. Cliabot, 63 
 As to impounding the waters of the Cal. 564; Ft. Reno Canal Co. v. Dun- 
 Rio Grande, see 34 Am. L. Rev. 103. bar, 80 Cal. 530; Weill V.Baldwin, 
 
 2 Clark v. Willett, 35 Cal. 534; Cole 64 Cal. 476; ante, § 217. 
 
 Silver M. Co. v. Virginia W. Co., 1 6 Chiatovitch v. Davis, 17 Nev. 133. 
 
 Sawyer, 470. i McDonald v. Bear River Co., 13 
 
 3 Larimer & W. R. Co. v. Cache La Cal. 220; 15 CaL 145. See Smith v. 
 Poudre Ir. Co., 8 Col. App. 237. Denniff (Mont.), 60 Pac. Rep. 398; 57 
 
 4 Strickler v. Colorado Springs, 16 id. 557. 
 Col. 61; Downing v. Agr. Ditch Co., 8 McDonald v. Askew, 29 Cal. 200. 
 20 Col. 546; Middle Creek D. Co. v. 9 Williams v. Harter, 121 CaL 47. 
 Henry, 15 Mont. 558. See Yocco v. i« Cacho La Poudre Ir. Co. v. Lari- 
 mer & Weld Res. Co., 25 CoL 144, 
 
§ 234.] 
 
 APPROPRIATION AND PRIORITY. 
 
 465 
 
 completed, and improvements afterwards put thereon, like a 
 mortgage of real estate. 1 The ditch when completed is not a 
 mere easement or appurtenance. 2 One ditch cannot be appur- 
 tenant to another ditch and pass by grant as an incident, 
 although it may pass as part and parcel of the subject matter. 3 
 It can only be sold by deed, 4 although water rights which are 
 merely possessory and appurtenant to land may be secured 
 by a purchase and possession without deed. 5 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 appropriation. 9 The vendor's 
 attempt to convey by an imperfect deed operates as an aban- 
 donment of his prior appropriation. 7 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. 8 
 In Colorado, the right of way over others' lands in order to 
 obtain water for irrigation appears to result from custom, ne- 
 
 1 Union Water Co. v. Murphy's 
 Flat Fluming Co., 22 Cal. 620. 
 
 ^ Reed v. Spicer, 27 Cal. 57; Clark 
 v. Willett, 35 Cal. 534; Hart v. Plum, 
 14 CaL 148; Merritt v. Judd, 14 Cal. 
 59; Burnham v. Freeman, 11 Col. 
 601; Wold v. May, 10 Wash. 157; Car- 
 man v. Standaker, 20 Mont. 364. 
 
 3 Ibid. ; Donnell v. Humphreys, 1 
 Mont. 518; Quirk v. Falk, 47 Cal. 453. 
 See Hungarian Hill M. Co. v. Moses, 
 58 Cal. 168; Bass v. Buker, 6 Mont 
 442; Arnett v. Linhart, 21 Col. 188. 
 
 4 Bradley v. Harkness, 26 Cal. 69; 
 Smith v. O'Hara, 43 Cal. 371; Bark- 
 ley v. Tieleke, 2 Mont. 59; Fabian v. 
 Collins, 3 Mont. 215; Hill v. Newman, 
 5 Cal. 445. If a ditch extending for 
 several miles is constructed by one 
 person and sold in sections, the pur- 
 chaser of a lower section does not 
 for all purposes have a legal interest 
 in the water flowing into the ditch 
 at its head. South Ford Canal Co. v. 
 Gordon, 6 Wall. 561; Reynolds v. 
 Hosmer, 51 Cal. 205. A labor lien on 
 the ditch takes precedence of the 
 owner's prior trust-deed. Bear Lake 
 Ir. Co. v. Garland, 164 U. S. 1; 9 Utah, 
 
 30 
 
 350. An Indian may, it seems, main- 
 tain an action for the diversion o£ 
 water which he appropriated, and 
 others may succeed to his rights. 
 Lobdell v. Hall, 3 Nev. 507. 
 
 5 Geddis v. Parrish, 1 Wash. St. 587; 
 21 Pac. Rep. 314, 587 ; Coonradt v. Hill, 
 79 Cal. 587; Newcomb v. Royce, 42 
 Neb. 323; Wood v. Lowney, 20 Mont. 
 273; Child v. Whitman, 7 Col. App. 
 117; First National Bank v. Hastings, 
 id. 129; Daum v. Conley (Col.), 59 
 Pac. Rep. 753. 
 
 6 See cases in the two preceding 
 notes. 
 
 ' Barkley v. Tieleke, 2 Mont. 59. 
 
 s Ellison v. Jackson, 12 CaL 542; 
 Sierra Union W. Co. v. Baker, 70 Cal. 
 572. Under an agreement to sell a 
 lot of land, which is part of a larger 
 tract, with the water right appurte- 
 nant to the lot, and being the pro 
 rata share of the water right for the 
 larger tract, a delivery of the water 
 is necessary, this being effected by 
 the delivery of the contract and the 
 possession of the land. Booth v. Chap- 
 man, 59 Cal. 149. 
 
4G6 
 
 THE LAW OF WATERS. 
 
 [Ch. VIL. 
 
 cessity and the peculiarity of the climate, and to exist, inde- 
 pendently of statute, as a right of local common law. 1 Such 
 a right is distinct from the right to use the water, and either 
 may be sold and conveyed separately. 2 
 
 § 235. Appropriation — What is. — The right to divert 
 water flowing through the public land, so far as it depends 
 upon priority and not upon the ownership of the adjoining 
 land, can only be acquired by actual appropriation. 3 Such 
 appropriation cannot be constructive, 4 and must be made with 
 the intention of devoting the water to some useful purpose. 5 " 
 A notice of intention to appropriate the water is not of itself 
 sufficient evidence of possession, although, in connection with 
 other acts, it may be sufficient. 6 An appropriation of riparian 
 land for a mill-site is not made by digging a ditch on public 
 land, and such an appropriation is not an appropriation of water 
 for the use of the mill. 7 "Where notice was posted, upon a tree 
 
 lYunker v. Nichols, 1 Col. 551; 
 Schilling v. Rorninger, 4 Col. 100; 
 Crisman v. Heiderer, 5 Col. 589; 
 Coffin v. Left Hand Ditch Co., 6 Col. 
 443; Thomas v. Guiraud, id. 530; 
 Knoth v. Barclay, 8 Col. 300; Lari- 
 mer Co. Reservoir Co. v. People, id. 
 614; Golden Canal Co. v. Bright, id. 
 149. Public reservoirs for the stor- 
 age of water for irrigation and do- 
 mestic uses are "internal improve- 
 ments,'' within the act of Congress of 
 March 3, 1875. Re Senate Resolu- 
 tion, 12 Col. 285. As to irrigation 
 under the Colorado constitution and 
 statutes, see Golden Canal Co. v. 
 Bright, 8 Col. 144; Knoth v. Barclay, 
 id. 300; ante, § 228, note; Farmers' 
 High Line C. Co. v. Southworth, 13 
 Col. Ill; Schwab v. Beam, 8G Fed. 
 Rep. 41; Nippel v. Forker (26 Col.), 
 56 Pac. Rep. 577. 
 
 2 Ada County Farmers' Ir. Co. v. 
 Farmers' Canal Co. (Idaho), 51 Pac. 
 Rep. 990 ; Moyer v. Preston (Wyom.), 
 44 id. 845; La Junta Canal Co. v. 
 Hess, 6 Col. App. 497; Joseph v. Ager, 
 108 Cal. 517. 
 
 3 Kelly v. Natoma Water Co., 6 Cal. 
 
 105; Twist v. Union Canal Co., id. 
 170; Eddy v. Simpson, 3 CaL 249; 
 Conger v. Weaver, 6 Cal. 548; Tuo- 
 lumne Water Co. v. Chapman, 8 CaL 
 392. 
 
 * Ibid.; Coryell v. Cain, 16 CaL 567;. 
 Kelly v. Natoma Water Co., 6 CaL 
 105; Cache La Poudre Ir. Co. v. 
 Water Supply Co., 25 Col. 161. 
 
 "Maeris v. Bicknell, 7 Cal. 261; 
 Davis v. Gale, 32 Cal. 26; Natoma 
 W. Co. v. Hancock, 101 CaL 42; 
 Smyth v. Neal (Oregon), 49 Pac. Rep. 
 850; Power v. Switzer, 21 Mont. 523; 
 Manning v. Fife, 17 Utah, 232. 
 
 « Thompson v. Lee, 8 Cal. 275; 
 Weaver v. Eureka Lake Co., 15 CaL 
 271; Kimball v. Gearhart, 12 CaL 27;. 
 Jones v. Jackson, 9 CaL 237; Fred- 
 erick v. Dickey, 91 CaL 358; Taylor v. 
 Abbott, 103 Cal. 421; Robinson v. Im- 
 perial S. M. Co., 5 Nev. 44; Columbia 
 Mining Co. v. Holter, 1 Mont. 296; 
 Floyd v. Boulder Flume Co., 11 Mont. 
 435; Sweetland v. Olsen, id. 27. 
 
 ' Robinson v. Imperial S. M. Co., 5- 
 Nev. 44: Nevada County Canal Co. v. 
 Kidd, 37 CaL 282. 
 
§ 236.] APPROPRIATION AND PRIORITY. 467 
 
 on the bank of a river, of the appropriation of a water right to 
 commence at that point, and of a right of way for a ditch of a 
 certain capacity to a bend in the river below, and this was fol- 
 lowed within six months by certain work on the ditch which 
 was insufficient to make it of practical use, and by the erection 
 of a monument at a suitable point for a mill-site below the bend 
 of the river, it was held that there was not such a possession 
 of the land traversed by the ditch or of the mill-site as to avail 
 against an entry and appropriation of them made about eleven 
 months after the posting of the notice. 1 So, the mere digging 
 of a ditch for the purpose of drainage, 2 or claiming the water 
 for speculation, 3 does not give priority over those who construct 
 ditches for the purpose of taking the water and applying it to 
 a beneficial use. 
 
 § 236. Same. — The notice of intention to appropriate water 
 must be sufficient to put a prudent man on inquiry ; 4 but such 
 notices are liberally construed. 5 If, after notice given, a ditch 
 is begun in good faith, the enjoyment does not commence 
 until its completion, but, as against others, the right dates by 
 relation from the commencement of the work, and the law 
 allows a reasonable time for completing the appropriation. 6 
 
 1 Robinson v. Imperial S. M. Co., 5 emptioner of the land who has also 
 
 Nev. 44. See "Water Supply Co. v. not complied with the statute. De 
 
 Larimer & Weld Ir. Co., 24 Col. 822; Necochea v. Curtis, 80 Cal. 397. 
 
 25 id. 53; Lavery v. Arnold (Oregon), Upon § 1925 of that Code, see Conk- 
 
 57Pac.Rep.906;CruseuMcCauley,96 ling v. Pacific Imp., 87 Cal. 290. 
 
 Fed. Rep. 369; Offield v. Ish(Wash.), Revised Statutes of Arizona (1887), 
 
 57 Pac. Rep. 809; Bathgate v. Irvine, §947, makes it a misdemeanor to 
 
 126 Cal. 135. tear down or destroy any written 
 
 2 Maeris v. Bicknell, 7 Cal. 261; Mc- notice of location erected or placed 
 
 Kinney v. Smith, 21 Cal. 374. on any land. 
 
 3 Weaver v. Eureka Lake Co., 15 s Osgood v. Eldorado Water Co., 56 
 CaL 271: Dick v. Caldwell, 14 Nev. Cal. 571; Erhardt v. Boaro, 113 U. S. 
 167; Bileu v. Paisley, 18 Oregon, 47. 527; Salazar v. Smart, 12 Mont. 395. 
 
 4 Yale on Mining Claims, 78 ; Hess 6 Ibid. ; Kelly v. Natoma Water Co. , 
 v. Winder, 30 Cal. 349; McKinney v. 6 Cal. 105; Maeris v. Bicknell, 7 Cal. 
 Smith, 21 CaL 374; North Noonday 261; Cardoza v. Calkins, 117 Cal. 106; 
 Mining Co. v. Orient Mining Co., 6 King v. Edwards, 1 Mont. 235; Wool- 
 Sawyer, 299, 503. A diversion of man v. Garringer, id. 535; Atchison 
 water, without compliance with the v. Peterson, id. 561; Murray v. Ting- 
 California Civil Code, §§ 1415, 1419, ley, 20 Mont. 260; Sieber v. Frink, 7 
 gives a right to continue the diver- CoL 148. 
 
 sion af against a subsequent pre- 
 
468 THE LAW OF WATERS. [Ch. VII. 
 
 'No unusual or extraordinary exertions are necessary in prose- 
 cuting the work, but it must be carried forward with dili- 
 gence. 1 It is a question of fact for the jury whether there has 
 been due diligence, 2 the nature of the climate and the soil, the 
 difficulty of obtaining labor, tools, or materials, and the size 
 and extent of the work being proper subjects for their consid- 
 eration. 3 If the work is not prosecuted diligently, the right 
 to use the water dates only from the time when the appro- 
 priation is perfected, and the diversion of the water is actually 
 begun, and does not relate back to the time when the first 
 step to secure it was taken. 4 The same is true if the first 
 acts, from which the appropriator seeks to date his right, do 
 not indicate an intention to appropriate the water. 5 If there 
 is great delay in the work, it is not excused by matters 
 which do not relate directly to the enterprise, such as the ill- 
 ness of the appropriator or his lack of means. 6 If the water 
 is diverted with due diligence, for the purpose of irrigation, 
 the rights of the appropriator are not necessarily limited to 
 the amount of water actually used during the first or second 
 year of the appropriation, or regulated by the number of acres 
 then cultivated, but the object in view at the time when the 
 water was first diverted is to be considered in connection 
 with the appropriation actually made. 7 The quantity of water 
 acquired by the appropriation would appear to be measured 
 by the capacity of the ditch or flume, when fully completed, 
 at its smallest point. 8 But if the general size and capacity of 
 the ditch indicate that more water is to be used than is turned 
 into it at first, a reasonable time is to be allowed to remove 
 obstructions or change the grade in order that the ditch may 
 
 1 Ibid.; Ophir Silver Mining Co. v. Athern, 34 Cal. 507; Daniels v. Lans- 
 Carpenter, 4 Nev. 534; Parke v. Kil- dale, 43 Cal. 41; Lansdale v. Daniels, 
 ham, 8 CaL 77; Keeney v. Carillo, 2 100 IT. S. 118. 
 
 New Mex. 480; Arnold v. Passavant, 5 Kimball v. Gearhart, 12 Cal. 27. 
 19 Mont. 575. / 6 Ophir Silver M. Co. v. Carpenter, 
 
 2 Weaver v. Eureka Lake Co., 15 4 Nev. 534. 
 
 Cal. 271. 7 Barnes v. Sabron, 10 Nev. 217; 
 
 3 Kimball v. Gearhart, 12 Cal. 27; "White v. Todd's Valley Co., 8 Cat 443. ' 
 Elliot v. Whitmore, 8 Utah, 253. 8 Ophir Silver M. Co. v. Carpenter, 
 
 4 Ibid. ; Irwin v. Strait, 18 Nev. 436 ; 6 Nev. 393 ; Barnes v. Sabron, 10 Nev. 
 Keeney v. Carillo, 2 New Mex. 480; 217; Caruthers v. Petaberton, 1 Mont. 
 Megerle v. Ashe, 33 CaL 74; Smith v. 111. 
 
§ 236.] APPEOPEIATION AND FBIOEITT. 469 
 
 be filled to its proper capacity. 1 The owner of the ditch or 
 flume has the exclusive and absolute control of the water 
 therein, although it does not appear to have been decided 
 whether for all purposes such water is to be regarded as his 
 private property. 2 When collected in reservoirs or pipes, and 
 separated from the source of supply, the water is personal 
 property, like harvested ice or gas in. pipes, 3 and is the subject 
 of larceny. 4 While the claimant's dam and canal are in pro- 
 cess of construction, or so much out of repair that they are 
 not available for the purpose designed, 5 and until they are in 
 a condition to appropriate the water, the use of the water by 
 others is not an injury to him, and such use affords him no 
 ground for relief, legal or equitable. 6 But the prior claimant y 
 has the right to use so much of the water as is necessary to 
 preserve his flume from injury while in the process of con- 
 struction. 7 A diversion of water which is both wrongful and 
 continuous may be restrained upon a bill in equity for an in- 
 junction, 8 but the remedy for the past diversion of a water- 
 course, 9 or for a diversion which is not continuing, or threatened 
 or likely to continue, 10 is in a court of law only. Every con- 
 tinuance of a wrongful diversion gives a new cause of action, 11 
 and a recovery in one action, in which the plaintiff alleges 
 that he is entitled to a certain quantity of water, is not res ad- 
 judicate:, upon the question of quantity. 12 The gravamen of the 
 
 1 White v. Todd's Water Co., 8 Cal. 6 Nevada County Canal Co. v. Kidd, 
 443; Dougherty v. Haggin, 56 CaL 37 Cal. 382; Harvey v. Chilton, 11 
 522. Cal. 114; Union Water Co. v. Crary, 
 
 2 Kidd v. Laird, 15 Cal. 161. 25 CaL 504. 
 
 sfieyneman v. Blake, 19 CaL 579; 'Weaver v. Conger, 10 Cal. 233; 6 
 
 Parks Canal Co. v. Hoyt, 57 CaL 44. Cal. 548. 
 
 4 Water, when severed from land, 8 Tuolumne Water Co. v. Chapman, 
 
 and artificially stored, is private prop- 8 Cal. 392 ; Bensley v. Mountain Lake 
 
 erty and the subject of larceny at Water Co., 13 Cal. 306; Stein Canal 
 
 common law. Ferens v. O'Brien, 11 Co. v. Kern Island Ir. Canal Co., 53 
 
 Q. B. D. 21; W. N. (1883) 83. The Cal. 563; Harris u.Shoutz.l Mont. 212; 
 
 Penal Code of California, § 499; the Fabian v. Collins, 3 Mont. 215. 
 
 Revised Statutes of Arizona (1887), 9 Ibid. 
 
 § 777 (see, also, § 841), etc., made it a i«Cokert>. Simpson, 7 CaL 340; Tuo- 
 
 misdemeanor to connect, with intent lumne Co. v. Chapman, 8 CaL 392. 
 
 to injure or defraud, any pipe, etc., n Toombs v. Hornbuckle, 3 Mont, 
 
 with any main, pipe, conduit, or flume 193. 
 
 for conducting water. 12 McDonald v. Bear River Co., 13 
 
 » Bear River Co. v. Boles, 24 CaL 359; Cal. 220; 15 id. 145. 
 Brown v. Smith, 10 CaL 508. 
 
470 THE LAW OF WATERS. [Ch. VII. 
 
 action is the diversion of the water, and different counts are 
 not necessary when the diversion is accomplished by different 
 means. 1 
 
 § 237. Change of use. — When water has been lawfully ap- 
 propriated, the priority thereby acquired is not lost by chang- 
 ing the use to which it was first applied, or the place at which 
 it was first employed. 2 If the original appropriation was for 
 a saw-mill, the water may be used for a grist-mill subsequently 
 erected. 3 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, 4 like a riparian proprietor, or, ceasing 
 to use it, he may hold it for sale. 5 The miner may extend his 
 flume on his own claim for the express purpose of preventing 
 a subsequent appropriator below from constructing a ditch on 
 that claim, even though the extension may not be for a useful 
 purpose. 6 But the mode of the appropriation or the point of 
 diversion cannot be changed by the first appropriator so as 
 to interfere with the rights acquired by subsequent appropri- 
 ators. 7 
 
 § 238. Prior right — How lost. — The prior right to the use 
 of the water may be lost by abandonment, or acquiescence, 8 
 
 1 Gale v. Tuolumne Water Co., 14 man v. Garringer, 1 Mont. 535; San 
 
 CaL 25; Priest v. Union Canal Co., 6 Luis W. Co. v. Estrada, 117 CaL 118; 
 
 id. 170. Schwab v. Beam, 86 Fed. Rep. 41. 
 
 2 Maoris v. Bicknell, 7 CaL 261 ; Hill 5 Fabian v. Collins, 2 Mont 510. . 
 v. Smith, 27 id. 476; Davis v. Gale, 32 eCorrea v. Frietas, 42 CaL 339; Mo- 
 id. 26; Kidd v. Laird, 15 id. 161; Ja- Kinney v. Smith, 21 id. 374; Fuller v. 
 tunn v. O'Brien, 89 id. 57; Ramelli v. Swan River P. M Co., 12 CoL 12. 
 Irish, 96 id. 214; Coffin v. Left Hand ? Columbia Mining Co. v. Holter, 1 
 Ditch Co., 6 Col. 443; Thomas v. Mont. 296; Butte Mining Co. v. Mor- 
 Guiraud, id. 530; Sieber v. Frink, 7 gan, 19 CaL 609; Jacob v. Lorenz, 98 
 id. 148; Dorr v. Hammond, id. 79; id. 332; Burris v. People's Ditch Co., 
 Greer v. Heiser, 16 id. 306. The prior 104 id. 248 ; ante, § 231 ; Simpson v. 
 appropriator of water cannot change Williams, 18 Nev. 432. 
 
 his ditch and the point of diversion s Davis v. Gale, 32 Cal. 26; Kirman 
 
 without the consent of a homestead v. Hunnewill, 93 id. 519; Hargraveu 
 
 settler on the land, to whom a cer- Cook, 108 id. 72; Dixon v. Sohermeir, 
 
 tiflcate of entry has been issued. Mc- 110 id. 582; Clyne v. Benicia W. Co., 
 
 Guire v. Brown, 106 CaL 660. 100 id. 310; Richard v. Hupp (CaL), 37 
 
 3 McDonald v. Bear River Co., 13 Pac. 920; Nichols v. Lantz, 9 Col. 
 CaL 220. App. 1 ; Dodge v. Marden, 7 Oregon, 
 
 4 Davis v. Gale, 32 Cal. 26; Wool- 456; Cole v. Logan, 24 id. 304; Turner 
 
§ 238.] 
 
 APPROPRIATION AND PRIORITY. 
 
 471 
 
 though this is not presumed, 1 and it is not proved by mere non- 
 user, 2 or by an adverse possession continued uninterruptedly 
 for the statutory period. 3 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 ; 4 if by adverse possession, the statute is not 
 prevented from running against the prior appropriator by the • 
 fact that the possessor permits a portion of the water to flow 
 down the stream for the accommodation of those using the 
 water below, 5 or that the waters of a natural stream, which 
 feed a ditch, were not appropriated in compliance with the 
 statute as to posting notices, etc. ; 6 or that an irrigating ditch 
 
 v. Cole, 31 id. 154; Scott v. Toomey, 8 
 8. D. 639; Platte Water Co. v. North- 
 ern Colorado Ir. Co., 12 Col. 525; Col- 
 orado Land Co. v. Rocky Ford, etc. 
 Co., 3 Col. App. 545; McCauley v. Mc- 
 Keig, 8 Mont. 389; Kleinschmidt v. 
 Greiser, 14 Mont. 484; Miller v. Doug- 
 las (Ariz.), 60 Pac. Rep. 722; Hewitt 
 v. Story, 51 Fed. Rep. 101; 64 id. 570; 
 Smith v. Hope M. Co., 18 Mont. 432. 
 Non-user for the statutory period re- 
 sults in the loss both of the water 
 privileges and of the incidental rights 
 of way for ditches, etc. Smith v. 
 Hawkins, 110 CaL 122, 127. See Ja- 
 tunn v. Smith, 95 Cal. 154 
 
 1 Beaver Brook R. Co. v. St. Vrain 
 R Co., 6 Col. App. 130; Hall v. Lin- 
 coln, 10 id. 360; Welch v. Garrett 
 (Idaho), 51 Pac. Rep. 405; Broadmoor 
 Dairy Co. v. Brookside Water Co., 24 
 Col. 541; Power v. Switzer, 21 Mont. 
 523. See North Powder M. Co. v. 
 Coughanour (Oregon); 54 Pac. Rep. 
 223. 
 
 2 Ada County Farmers' Ir. Co. v. 
 Farmers' Canal Co. (Idaho), 51 Pac. 
 Rep. 990; Integral Q. M. Co. v. Al- 
 toona Q. M. Co., 75 Fed. Rep. 379; 
 Foley v. Godchaux, 48 La. Ann. 466; 
 Bathgate v. Irwin, 126 Cal. 135. 
 
 3 Alta Land & W. Co. v. Hancock, 
 ■85 Cal. 219; Last Chance W. D. Co. 
 v. Heilbron, 86 Cal. 1 ; Lakeside Ditch 
 Co. v. Crane. 80 Cal. 181; Davis v. 
 Gale, 32 Cal. 26; Partridge uMcKin- 
 
 ney, 10 Cal. 181; Crandall v. Woods, 
 8 Cal. 136; American Co. v. Brad- 
 ford, 27 Cal. 360; Union Water Co. v. 
 Crary, 25 Cal. 504; Campbell v. West, 
 44 Cal. 646; Evans v. Ross (Cal.), 8 
 Pac. Rep. 88 ; Oneto v. Restano, 78 Cal. 
 374; Heintzen v. Binninger, id. 5; 
 Spargur v. Heard, 90 CaL 221; Faulk- 
 ner v. Rondoni, 104 Cal. 140; Bliss v. 
 Grayson (Nev.), 56 Pac. Rep. 231; 
 Smith v. Logan, 18 Nev. 149; Dick v. 
 Bird, 14 Nev. 161; Authors v. Bryant, 
 22 Nev. 242; Dodge v. Marden, 7 
 Oregon, 456; Huston v. By bee, 17 id. 
 140; Faull v. Cooke, 19 id. 455; Wimer 
 v. Simmons, 27 id. 1 ; Fisher v. Boun- 
 tiful City (Utah), 59 Pac. Rep. 520; 
 Stocker v. Kirtley (Idaho), id. 891; 
 Center Creek W. & Ir. Co. v. Lind- 
 say (Utah), 60 Pac. Rep. 559; Cox v. 
 Clough, 70 CaL 345. 
 
 4 Davis v. Gale, 32 Cal. 26; Ro- 
 minger v. Squires, 9 Col. 327. 
 
 5 Davis v. Gale, 32 Cal. 26; Yankee 
 Jim's Water Co. v. Crary, 25 Cal. 
 504. See McLear v. Hapgood, 85 CaL 
 555; Rockwell v. Graham, 9 Col. 36. 
 The fact that numerous persons use 
 an irrigating ditch, constructed, re- 
 paired and controlled at private ex- 
 pense, and that their respective 
 rights are not clearly denned, does 
 not show a dedication to the public. 
 Cate v. Sanford, 54 Cal. 24. 
 
 e Coonradt v. Hill, 79 Cal. 587. See 
 Ledu v. Jim Yet Wa, 67 CaL 346. 
 
472 THE LAW OF WATERS. [Ch. YII. 
 
 is used only when needed during the cropping season of each 
 year. 1 Appropriation 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 nat- 
 ural water of the stream as against a prior locator. 2 It is not 
 an abandonment of artificial waters to change the point of di- 
 version, 3 or to mingle them with the water of a natural water- 
 course 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. 4 A prescriptive right to water on the 
 public domain is not lost by a change in the stream. 5 
 
 § 239. Same. — An appropriator of water who duly 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. 6 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 chan- 
 nels from the works of the appropriator, it becomes publiri 
 juris, and the appropriators of the waters of the stream which 
 receives it are entitled to the increase according to priority. 7 
 The same is true when water is discharged into a stream as a 
 matter of convenience and without intention to reserve it. 8 In 
 controversies of this character, the person who mingles the 
 water belonging to him with that appropriated by others has 
 the burden of proof to establish his right and the absence of 
 
 1 Hesperia Land Co. v. Rogers, 83 Platte Valley Ir. Co. v. Buckers Ir. 
 
 Cal. 10. See supra, § 229. Co., 25 Col. 77; Water Supply Co. v. 
 
 * Hoffman v. Stone, 7 Cal. 46; Bur- Larimer & Weld Res. Co., id. 87; 
 
 nett v. Whitesides, 15 Cal. 35; Ana- Schulz v. Sweeny, 19 Nev. 359. 
 heim W. Co. v. Semi-Tropic W. Co., s Tolman v. Casey, 15 Oregon, 83. 
 64 Cal. 185. « Osgood v. Eldorado Water Co., 56 
 
 = Gallagher v. Montecito V. W. Co. Cal. 571. 
 (Cal.), 35 Pao. Rep. 770. ' Davis v. Gale, 32 Cal. 26; Eddy v. 
 
 4 Butte Canal Co. v. Vaughn, 11 Simpson, 3 Cal. 249. 
 Cal. 143; Brown v. Mullin, 65 Cal. 89; 8 McKinney v. Smith, 21 Cal 374 
 
§ 240.] APPBOPKIATION AND FKIORITY. 473 
 
 intent to abandon. 1 "When the water and tailings passing away 
 from a mining claim are abandoned, others may appropriate 
 them, but cannot insist that the abandonment shall be contin- 
 ued for their benefit on the ground that they have incurred 
 expense to secure the same. 2 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. 3 
 
 § 240. The Act of Congress of July 26, 1866 — Mining 
 customs. — Eiparian 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 pur- 
 poses. 4 The United States, as proprietor of the public lands, 
 has the same rights and property m the streams flowing 
 through such lands that would be possessed by any riparian 
 proprietor; 5 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. 6 The patentee of land cannot ac- 
 quire a prescriptive right to flow land 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 flowage may have continued while the 
 land was owned by the government. 7 The ninth section of 
 
 1 Butte Canal Co. v. Vaughn, 11 Ferrea v. Knipe, 28 Cal. 340; ante y 
 CaL 143; Wilcox v. Hausch, 64 CaL ch. 6. So under the Colorado con- 
 461; Sohulz v. Sweeny, 19 Nev. 359. stitution. Schwab v. Beam, 86 Fed. 
 
 2 Dougherty v. Creary, 30 Cal. 290; Rep. 41. 
 
 Woolman v. Garringer, 1 Mont 535. 5 Ibid. ; Vansickle v. Haines, 7 Nev. 
 A possessory title to land may be 249. It has no power to authorize its 
 acquired for the purpose of taking grantees of lands within a State to 
 tailings deposited thereon. Rogers?;, invade private rights of other pro- 
 Cooney, 7 Nev. 213. See Wood v. prietors. Woodruff v. North Bloom- 
 Richardson, 35 Cal. 149. field G. M. Co., 8 Sawyer, 628; 9 id.. 
 
 3 Jones v. Jacksoo, 9 Cal. 237. 441. 
 
 4 Union Mill Co. v. Ferris, 2 Saw- 6 Ibid. 
 
 yer, 176; Los Angeles v. Baldwin, 53 'Matthews v. Ferrea, 45 Cal. 51 % 
 Cal. 469; Pope v. Kinman, 54 Cal. 3; Ogburn v. Connor, 46 Cal. 347; Wil- 
 
474 
 
 THE LAW OP WATEKS. 
 
 [CH. YII. 
 
 the important Act of Congress of July 26, 1866/ is a volun- 
 tary recognition of a pre-existing right of possession, consti- 
 tuting a valid claim to its continued use, rather than the es- 
 tablishment of a new one, and the priority secured thereby 
 exists, although the three conditions named therein may not 
 all be present in the particular case. 2 A statute upon this 
 subject, like others, is of higher authority than a custom, and 
 
 kins v. McClue, 46 Cal. 656; Hutton 
 v. Frisbie, 37 Cal. 474. 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. 
 143. A mere entry upon such lands 
 gives no vested rights against the 
 government until final proof. Ellis 
 v. Pomeroy Impr. Co.. 1 Wash. 572. 
 
 !This sectioni provides that "when- 
 ever, by priority of possession, rights 
 to the use of water for mining, ag- 
 ricultural, manufacturing, or other 
 purposes, have vested and accrued, 
 and the same are recognized and ac- 
 knowledged by the local customs, 
 laws, and the decisions of courts, the 
 possessors ajid owners of such vested 
 rights shall be maintained and pro- 
 tected in the same; and the right of 
 way for the construction of ditches 
 and canals for the purposes aforesaid 
 is hereby acknowledged and con- 
 firmed: Provided, however, That 
 whenever, after the passage of this 
 act, any person or persons shall, in 
 the construction of any ditch or canal, 
 injure or damage the possession of 
 any settler on the public domain, the 
 party' committing such injury or 
 damage shall be liable to the party 
 injured for such injury or damage." 
 14 Stat, at Large, 353; 39 id. 120; U. S. 
 Rev. Stats. §§2339, 2340 ; Basey v. Gal- 
 lagher, 20 Wall. 670; Atchison v. Pet- 
 erson, id. 507; Jennison v. Kirk, 98 
 XL S. 453, 462, note; Mining Co. v. 
 Tarbet, id. 463; Bear Lake Ir. Co. v. 
 Garland, 164 U. S. 1; Thorp v. Freed, 
 1 Mont. 651; Gold Hill M. Co. v. Ish, 5 
 
 Oregon, 104; Jacob v. Day, 111 CaL 
 571; Smith v. Hawkins, 110 Cal. 122; 
 Tynon v. Despain, 22 CoL 240; Car- 
 son v. Gentner, 33 Oregon, 512; Eio 
 Grande W. Ey. Co. v. Telluride P. & 
 T. Co., 16 Utah, 125. See Acts of 
 Congress of July 9, 1870 (16 Stats, at 
 Large, 217), and of May 10, 1872 (17 
 Stats, at Large, 91); and of March 3, 
 1891; Nippel v. Forker, 9 CoL App. 
 106. 
 
 2 Miller, J., in Broder v. Water Co., 
 101 U. S. 276; 50 Cal. 621; Sparrow 
 v. Strong, 3 Wall. 97, 777; Basey v. 
 Gallagher, 20 Wall. 670; Ison v. Nel- 
 son M. Co., 47 Fed. Rep. 199; Silver 
 Peak Mines v. Valcalda, 79 id. 886; 86 
 id. 90; Isaacs v. Barber, 10 Wash. 124; 
 McGuire v. Bryvn, 106 CaL 660; Scott 
 v. Toomey, 8 S. Dak. 639; Barnes v. 
 Sabron, 10 Nev. 217. Water and ditch 
 rights which accrued and vested 
 after, as well as those accruing and 
 vesting before, the act of July 26, 
 1866, are protected by the statutes. 
 Jacob v. Lorenz, 98 Cal. 332. See 
 Sturr v. Beck, 133 U. S. 541; Drake v. 
 Earhart, 2 Idaho, 716; Scott v. Too- 
 mey, 8 S. Dak. 639; Jarvis v. State 
 Bank, 22 CoL 309; Speake v. Hamil- 
 ton, 21 Oregon, 3, 5, 8. The water 
 rights thus protected do not give rise 
 to a Federal question under the Re- 
 moval Acts. In re Helena Co., 48 Fed. 
 Rep. 609. The States cannot so au- 
 thorize the appropriation of the 
 sources of a river flowing through 
 different States as to seriously impair 
 its navigability. United States v. 
 Rio Grande Dam & Ir. Co., 174 U. S. 
 690. 
 
§ 2*0.] 
 
 ArPBOPKIATION AND PEIOEITY. 
 
 475 
 
 prevails over it in case of conflict. 1 Congress alone can con- 
 trol and dispose of the public lands in a Territory, but under 
 the above act of Congress, and the amendatory acts of 1870 2 
 and of 1872, 3 the legislative assembly of a Territory, or miners, 
 may establish laws or rules denning the extent of mining 
 claims, and regulate the modes of developing and working 
 them'. 4 The local customs mentioned 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 com- 
 mon law, but it is incumbent upon the party relying upon 
 such a custom to allege and prove it. 5 They cease to be oper- 
 ative upon falling into disuse ; but upon proof that they have 
 been in force, they are presumed to continue in force until the 
 contrary is proved. 6 Prior to the statute, rights acquired by 
 appropriation, and supported by the customs, laws, or decis- 
 ions of the State in which the land was situated, were enforced 
 
 Ubid.; Woodruff v. No. Bloomfield 
 G. M. Co., 8 Sawyer, 638; 9 id. 441; 
 Original Co. v. "Winthrop M. Co., 60 
 Cal. 631. 
 
 2 16 Stats, at Large, 217. 
 
 3 17 Stats, at Large, 91. As to the 
 rights of an alien under this statute, 
 see North Noonday Mining Co. v. 
 Orient Mining Co., 1 Fed. Rep. 522. 
 
 * Territory v. Lee, 2 Mont. 124; Orr 
 v. Haskell, id. 225; English v. John- 
 son, 17 Cal. 107; Morton v. Solambo 
 Copper M. Co., 26 CaL 527; Jackson 
 v. Eoby, 109 U. S. 440; Tenem Ditch 
 Co. v. Thorpe (Wash.), 20 Pac. Rep. 
 588. A mining custom cannot be 
 proved by parol, if there are written 
 regulations in force on the subject. 
 Ralston v. Plowman, 1 Idaho, N. s. 595. 
 
 5 Lewis v. McClure, 8 Oregon, 273; 
 Esmond v. Chew, 15 Cal. 137, 143; 
 case in 1 Fed. Rep. 522 (cited supra, 
 note 3). The statute of California, 
 enacted April 1, 1870, providing for 
 the condemnation of a right of way 
 over or through a mining claim for 
 the ditches, tunnels, etc., of another 
 mining claim, is cumulative, and 
 does not prevent the construction of 
 ditches, etc., authorized by local cus- 
 
 toms. Bliss v. Kingdom, 46 Cal. 651. 
 Under section 17 of the act of 1870, 
 the rights of a pre-emptioner, as, 
 against appropriators, date only from 
 his patent or certificate of purchase. 
 Osgood v. Eldorado Water Co., 56 
 Cal. 571; Lux v. Haggin, 69 Cal. 255. 
 A patent from the United States does 
 not conclusively limit all a prior ap- 
 propriator's right, since he may still 
 carry his ditch through the pat- 
 entee's land to a point higher up the 
 stream when necessary to give him 
 the full supply to which he is entitled. 
 Ware v. Walker, 70 Cal 591 ; Judkins 
 v. Elliott (Cal.), 12 Pac. Rep. 116; Lytle 
 Creek Water Co. v. Perdew, 65 Cal. 
 447; Kaler v. Campbell, 13 Oregon. 
 596. The filing of a homestead entry 
 of land through which a natural 
 stream flows, with no prior right to 
 divert, confers a right to have the 
 stream run in its channel without 
 diversion. Sturr v. Beck, 133 U. S. 
 541; Faull v. Cooke, 19 Oregon, 455. 
 6 Jupiter Mining Co. v. Bodie Cons. 
 Co., 11 Fed. Rep. 666; Harveyu Ryan, 
 42 Cal. 626; Williams v. Harter, 121 
 Cal. 47. 
 
476 THE LAW OF WATEKS. [Ch. VII. 
 
 only between occupants of the public land having no title to 
 the soil, 1 and the effect of the statute is to preserve this prior- 
 ity against those who have received patents to the land since 
 its enactment. 2 The statute is prospective in its operation, and 
 does not affect a patent issued before its passage, 3 or a patent 
 subsequently issued to a person who had paid for the land 
 prior to the act, entered thereon and received a certificate of 
 purchase, since the patent when issued relates to the date of 
 the entry. 4 It does not give right 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 ren- 
 dered them liable to persons on the public domain whose pos- 
 sessions might be injured by such construction. 5 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 property. 8 
 
 1 Ante, § 231. v. Parrish, 1 Wash. St. 587: Lansdale 
 
 2 Union Mill Co. v. Ferris, 2 Sawyer, v. Daniels, 100 IT. S. 118; Daniels v. 
 176, 185; Howell v. Johnson, 89 Fed. Lansdale, 43 CaL 41; Megerle v. Ashe, 
 Rep. 556; Cruse v. McCauley, 96 id. 33 CaL 74; Smith v. Athern, 34 CaL 
 369; Vansickle v. Haines, 7 Nev. 249; 507. 
 
 Hobart v. Ford, 6 Nev. 77; Shoe- 3 Union Mill Co. v. Ferris, 2 Sawyer, 
 
 maker v. Hatch, 13 Nev. 262; Rivers 176; Bybee v. Oregon, etc R. Co., 139 
 
 v. Burbank, id. 398; Jones v. Adams, U. S. 663. 
 
 19 Nev. 78; Hobart v. Wicks, 15 Nev. *Ibid.; Union Mill Co. v. Dang- 
 
 418; Broder v. Natoma Water Co., 50 berg, 2 Sawyer, 460. 
 
 CaL 621; 101 U. S. 274; Titcomb v. Mennison v. Kirk, 98 U. S. 453; 
 
 Kirk, 51 Cal. 288; Cave v. Crafts, 53 Noteware v. Sterns, 1 Mon. 311; Rob- 
 
 CaL 135; Osgood v. El Dorado Water ertson v. Smith, id. 410; Alta L. & 
 
 Co., 56 Cal. 571; Himes v. Johnson, 59 W. Co. v. Hancock, 85 CaL 219. 
 
 CaL 259; 61 CaL 259; Coffin v. Left 6 Dodge v. Marden, 7 Oregon, 456; 
 
 Hand Ditch Co., 6. CoL 443; De Ne- Wood v. Etiwanda W. Co., 122 Cal. 
 
 cochea v. Curtis, 80 Cal. 397; South 152. 
 Yuba W. Co. v. Rosa, id. 333; Geddis 
 
CHAPTEE YIIL 
 
 EMINENT DOMAIN. 
 
 SECTION. 
 
 241, 242. The extent of this right as applied to rights in watera 
 
 243. Public use. 
 
 244. Compensation necessary, and when to be made. 
 
 245. Taking of water for the supply of cities, for canals, etc. 
 
 246. Rights of riparian owners when public waters are taken. 
 
 247. Levees and assessments therefor. 
 348, 249. Consequential injuries. 
 
 250. Damages how obtained for authorized injuries. 
 
 251, 252. Damages obtainable and how estimated. 
 
 253. Validity of mill acts. 
 
 254. Public mills. 
 
 255. Change in the public use and additional burdens. .. 
 
 256, 257. Roads or bridges across streams to be provided with passage-ways 
 for the water. 
 
 258. No liability for injuries in the absence of negligence. 
 
 259. Continuing trespasses .and effect of judgments. 
 260-262. Liability of municipal corporations for flowage. 
 
 § 241. Extent of this right.— The power of the gov- 
 ernment to affect private rights of property, as the interests 
 of the public may require, which is an incident of sover- 
 eignty requiring no constitutional recognition, 1 is frequently 
 so exercised as to materially modify natural or acquired' 
 rights in water, and in the lands over which the water flows 
 or is conducted in artificial channels. Private property may 
 be thus appropriated in favor of private persons, either indi- 
 viduals or corporations, when the public service is the object 
 of the grant, as in the case of private canal,* ferry,' water or 
 
 1 United States v. Jones, 109 U. S. Briggs v. Cape Cod Ship Canal, 137 
 
 513, As to the power of an English Mass. 71 ; Dalles L. Co. v. Urquhart, 
 
 colony to cause waters to be diverted, 16 Oregon, 67 ; Chesapeake Canal Co. 
 
 see Remfry v. Surveyor General of v. Key, 3 Cranch C. C. 599; Hayden 
 
 Natal, [1896] A. C. 558. v. State, 132 N. Y. 533; Willy ard v. 
 
 2 Varick v. Smith, 5 Paige, 137; Hamilton, 7 Ohio, pt. 2. p. Ill; 
 
 Spring v. Russell, 7 Maine, 273; "Wabash Canal v. Spears, 16 Ind. 440; 
 
 3 Day v. Stetson, 8 Maine, 365; Barrington v. Neuse River Ferry Co., 69 
 N. C. 165. 
 
478 
 
 THE LAW OF WATEKS. 
 
 [CH. VIII. 
 
 aqueduct 1 companies. For such purposes the legislature may, 
 in its discretion, appropriate the fee of lands; 2 but its enact- 
 ments will, if possible, be construed and limited to create a 
 servitude only, when that is sufficient to answer the public 
 wants. 3 The use is public when it promotes the interests of a 
 considerable portion of the community, although it may not 
 benefit the community at large or particular individuals in the 
 locality; as m the case of a water supply and land condemned 
 to furnish water- works for a particular city or town, 4 or for an 
 
 Rubottom v. MoClure, 4 Blaokf. 505; 
 Chesapeake Canal Co. v. Young, 3 
 Md. 480; Black v. Delaware Canal 
 Co., 22 N. J. Eq. 130; Tide Water 
 Canal Co. v. Archer, 9 Gill & J. 479. 
 As to canals in Pennsylvania, see 
 Craig v. Allegheny, 53 Penn. St. 477; 
 "Wyoming Coal Co. v. Price, 81 id. 
 156; Robinson v. West Pennsylvania 
 E. Co., 72 id. 316; Pennsylvania 
 Canal Co. v. Billings, 94 id. 40. In 
 New York, see Woodman v. People, 
 127 N. Y. 397; Waterloo W. M. Co. u 
 Shanahan, 128 N. Y. 345; Sweet v. 
 Syracuse, 129 N. Y. 316, 643. 
 
 J Lumbard v. Stearns, 4 Cush. 60; 
 . Lowell v. Boston, 111 Mass. 464; Bur- 
 nett v. Com., 169 Mass. 417*, Talbot v. 
 Hudson, 24 Law Rep. 228; 16 Gray, 
 417; Long Island W. S. Co. v. Brook- 
 lyn, 166 U. S. 685; Pocantino W. W. 
 Co. v. Bird, 130 N. Y. 249; In re 
 Brooklyn, 143 N. Y. 596; Lynch v. 
 Forbes, 161 Mass. 302; Stevens v. Dan- 
 bury, 53 Conn. 9; State v. Atlantic 
 City W. Co., 55 N. S. L. 235; New 
 Rochelle W. Co. v. Brush, 19 N. Y. S. 
 954; Syracuse v. Glenside W. Mills, 
 73 Hun, 421 ; Syracuse v. Stacey, 86 
 Hun, 441; Wetzel v. United States, 
 25 Ct. CI. 277; Miller v. Windsor W. 
 Co., 148 Penn. St. 429; Wisconsin W. 
 Co. v. Winans, 85 Wis. 26; San Diego 
 W. Co. v. San Diego Flume Co., 108 
 Cal. 549; Nalle v. Austin (Tex. Civ. 
 App.), 21 S. W. Rep. 375; Heyneman v. 
 Blake, 19 Cal. 579; Spring Valley W. 
 Works v. Drinkhouse, 92 Cal. 528. 
 
 2 Malone v. Toledo, 34 Ohio St. 541 ; 
 Indianapolis Waterworks Co. v. Burk- 
 
 harfc, 41 Ind. 364; Nelson v. Fleming, 
 56 Ind. 310; Cromie v. Trustees, 71 
 Ind. 208; Harlow v. Rogers, 12 Cush. 
 291; Logansport v. Shirk, 88 Ind. 563; 
 Western Penn. R. Co.'s Appeal, 99 
 Penn. St. 155, 163; Frank v. Evans- 
 ville R. Co., Ill Ind. 132; Blair v. 
 Kiger, id. 193; Pickman v. Peabody, 
 145 Mass. 480; Woodbury v. Marble- 
 head Water Co., id. 509; Page v. 
 O'Toole, 144 Mass. 303; Dingley v. 
 Boston, 100 id. 559; Titus v. Boston, 
 161 id. 309; Burnett v. Com., 169 id. 
 417;- Burnett v. Boston, 174 id. 173; 
 People v. Haines, 49 N. Y. 587; Baker 
 v. Johnson, 2 Hill, 342. But see Brew- 
 ster v. J. & J. Rogers Co., 59 N. Y. S. 
 32. 
 
 3 Farmer v. Waterloo & City R. Co., 
 [1895] 2 Ch. 527; Holywell Union v. 
 Halkyn D. Co., [1895] A. C. 117; 69 L. 
 T. 705; Doncaster Union v. Man- 
 chester, S. & L. Ry. Co., 71 L. T. 585; 
 Bevan v. London P. C. Co., 67 id. 615; 
 Waller v. State, 144 N. Y. 579; Edger- 
 ton v. Huff, 26 Ind. 35; Harback v. 
 Boston, 10 Cush. 295; Conklinu Old 
 Colony R. Co., 154 Mass. 155; ante, 
 § 101; McCombs v. Stewart, 40 Ohio 
 St. 647; Weisenberger v. Miller, 7 
 OhioCir. Ct. 173; Pittsburgh R. Co. 
 v. Bruce, 102 Penn. St. 23; Holmanu. 
 Green, 2 Hazard & W. (Pr. Edw. Isl- 
 and) 320. In such case, if an aque- 
 duct is built beneath the surface, 
 evidence of the value of the fee is 
 inadmissible. Re Thompson, 12 N. Y. 
 S. 182. 
 
 *Wayland v. Middlesex, 4 Gray, 
 500; Boston W. P. Co. v. Boston Rail- 
 
§ 241.] 
 
 EMINENT DOMAIN. 
 
 479 
 
 electric light plant; 1 of booms, dams or flumes for floating- 
 lumber; 2 the reclamation of tracts of land; 3 the drainage of 
 land in order to protect the public health, 4 or to protect a high- 
 
 road, 16 Pick. 512; Smith v. Lincoln, 
 170 Mass. 488; Riche v. Bar Harbor 
 Water Co., 75 Maine, 91; Gilmer v. 
 Lime Point, 18 Cal. 229; Reddall u 
 Bryan, 14 Md. 444; Kane v. Balti- 
 more, 15 id. 240; Graff v. Baltimore, 
 10 id. 544; Badger v. South Yorkshire 
 Ry. Co., 5 Jur. n. s. 459; Haupt's Ap- 
 peai, r 125 Penn. St. 211; Spring Valley 
 "Water Works v. San Mateo Water 
 Works, 64 Cal. 123; Price v. Riverside 
 Co., 56 Cal. 431; Natoma Water Co. 
 v. Clarkin, 14 CaL 544; Att. Gen. v. 
 Eau Claire, 37 Wis. 400; Smith v. 
 Gould, 59 id." 631; Spencer Creek 
 Water Co. v. Vallejo, 48 Cal. 70; San 
 Francisco v. Spring Valley Water- 
 works, 48 Cal. 492; St. Helena Water 
 Co. v. Forbes, 62 Cal. 182; People v. 
 Stephens, id. 209; Olmsted v. Proprie- 
 tors, 46 N. J. L. 495; 47 id. 311; State 
 v. Morris Aqueduct, id. 495; Thorn v. 
 Sweeney, 12 Nev. 251; Burden v. 
 Stein, 27 Ala. 104; 24 Ala. 130; Co- 
 lumbus W. W. Co. v. Long (Ala.), 25 
 S. Rep. 702: Memphis V. Memphis 
 Water Co., 5 Heisk. 495; Matter of 
 Middletown, 82 N. Y. 196; Re New 
 Rochelle Water Co., 46 Hun, 525; 
 Stamford Water Co. v. Stanley, 39 
 Hun, 424. See State v. Salem W. Co., 
 
 5 Ohio Cir. Ct. 58; Bigelow v. Draper 
 (N. Dak.), 69 N. W. Rep. 570. Under 10 
 
 6 11 Vic. ch. 17, §§ 37, 43, a supply of 
 water for a workhouse is not for pub- 
 lic purposes, the guardians being 
 owners of the house and the inmates 
 one family. Liskeard Union v. Lis- 
 keard Water Co., 7 Q. B. D. 505. Land 
 may be condemned for a reservoir. 
 Lake Pleasanton W. Co. v. Contra 
 Costa W. Co., 67 Cal. 659. 
 
 1 Lam born v. Bell, 18 Col. 346. 
 
 2 Lawler v. Baring Boom Co., 56 
 Maine, 443; Lancaster v. Kennebeck 
 Co., 62 Maine, 272; Cohn v. Wausau 
 
 Boom Co., 47 Wis. 314; Cotton v. 
 Mississippi Boom Co., 22 Minn. 372; 
 In re Burns, 155 ,N. Y. 23; Finney v. 
 Somerville, 80 Penn. St. 59; Patter- 
 son v. Boom Co., 3 Dillon, 465. See- 
 Koopman v. Blodgett, 70 Mich. 610. 
 
 8 Tide Water Co. v. Coster, 18 N. J. 
 Eq. 518; In re Tuthill, 55 N. Y. S. 
 657; Lewis County v. Gordon, 20 
 Wash. 80; Thomas v. County Com'rs, 
 5 Ohio N. P. 449; Pay ton v. People, 
 175 111. 267; Maffet v. Quine, 93 Fed. 
 Rep. 347; Avery v. Police Jury, la 
 La. Ann. 554; Hagar v. Reclamation 
 District, 111 U S. 701; Foster v. Park 
 Com'rs, 133 Mass. 321; Snohomish 
 County v. Hay ward, 11 Wash. 429;. 
 Wilson v. Bondurant, 142 111. 645. 
 
 4 Ibid. ; Wurtsu Hoagland, 114 U.S. 
 606; Sessions v. Crunkilton, 20 Ohio- 
 St. 349; Holtz v. Com'rs, 41 id. 423; 
 Thompson v. Woods Co., 11 id. 678; 
 Donnelly v. Decker, 58 Wis. 461; Rob- 
 erts v. Smith, 115 Mich. 5; Hagar v. 
 Supervisors, 47 Cal. 222; Brown v. 
 Keener, 74 N. C. 714; Pool v. Trealer, 
 76 N. C. 297; Tedens v. Chicago San. 
 District, 149 111. 87; Wessels v. Cole- 
 bank, 174 111. 618; Ribordy v. Mur- 
 ray, 177 I1L 134; Briar v. Job's Creek 
 D. Com'rs (111.), 56 N.'E. Rep. 1042; 
 Bickerdike v. Chicago (111.), id. 1096; 
 In re Hegne-Hendrum Ditch Co. 
 (Minn.), 82 N. W. Rep. 1094; Mur- 
 phy v. Wilmington, 6 Houst. (Del.) 
 108; In re Theresa D. District, 90 
 Wis. 301; Poundstone v. Baldwin 
 (Ind.), 44 N. E. Rep. 191; Martin v. 
 Tyler, 4 N. Dak. 278; Anderson v. 
 Kerns Draining Co., 14 Ind. 199; Tin- 
 der v. Duck Pond Co., 38 Ind. 555; 
 Ross v. Davis, 97 Ind. 79; Winslow v. 
 Winslow, 95 N. C. 24; In re Ryers, 
 72 N. Y. 1; 10 Hun, 93; Re Lower 
 Chatham, 35 N. J. L. 497. 
 
480 
 
 THE LAW OF WATERS. 
 
 [On. VIIL 
 
 way by a ditch, 1 or to promote agricultural interests; 2 the 
 laying of common drains and sewers; 3 fish culture; 4 or the 
 
 i Smeaton v. Martin, 57 Wis. 364. 
 
 2 Reeves v. Wood County, 8 Ohio 
 St. 333; Patterson v. Baumer, 43 
 Iowa. 477; Norfleet v. Cromwell, 70 
 N. C. 634; 64 N. C. 1; Taylor v. Por- 
 ter, 4 Hill, 140; People v. Nearing, 27 
 N. Y. 306; People v. Haynes, 49 N. Y. 
 587; Beekman v. Saratoga E. Co., 3 
 Paige, 45; Clack v. White, 2 Swan, 
 540; Binney's Case, 2 Bland Ch. 99; 
 Oregon Cascade R. Co. v. Bailey, 3 
 Oregon, 164; Seely v. Sebastian, 4 
 Oregon, 25; Rutherford's Case, 72 
 Penn. St. 82; Blackman v. Halves, 72 
 Ind. 515; O'Reiley v. Kankakee Val- 
 ley D. Co., 32 Ind. 169; Chambers v. 
 Kyle, 67 Ind. 206; Henry v. Thomas, 
 119 Mass. 583; Dingley v. Boston, 100 
 Mass. 544 A reclamation district, or 
 a swamp land district, is a public 
 corporation. People v. Williams, 56 
 Cal. 647; Hoke v. Perdue, 62 Cal. 545; 
 People v. La Rue, 67 Cal. 526. In 
 general, drains or levees for the 
 reclamation of wet, overflowed or 
 swamp lands can be constructed 
 across the lands of others and the 
 cost assessed thereon, without the 
 owner's assent, and under the police 
 power, only when the welfare of the 
 community will be promoted. Jenal 
 v. Green Island Co., 12 Neb. 163; 
 Mason v. New Haven, 82 Mich. 435; 
 Reynolds v. Milk Grove D. District, 
 134 111. 368; Terre Haute & L. R Co. 
 v. Soice, 128 Ind. 105. The storage 
 of debris and the promotion of the 
 drainage of a district are distinct. 
 People v. Parks, 58 Cal. 624. In In- 
 diana and other Western States, laws 
 providing for the drainage of wet 
 and overflowed lands, and the as- 
 sessment of the expense upon those 
 benefited by the work, are within 
 the limits of the police power, es- 
 pecially if the work is of public util- 
 
 ity, promotes the public health, or 
 benefits a public highway. O'Reiley 
 v. Kankakee Valley B. Co., 32 Ind. 
 169; Anderson v. Baker, 98 Ind. 587; 
 Neff v. Reed, id. 341, 344; Wishmier 
 v. State, 97 Ind. 160; Ross v. Davis, 
 id. 79; Fries v. Brier, 111 Ind. 65; 
 Coolman v. Fleming, 82 Ind. 117; 
 Donalson v. Lawson, 126 Ind. 169; 
 Colfax Tp. Com'rs v. East Lake Fork 
 D. District, 127 111. 581; Matthias v. 
 Cramer, 73 Mich. 5; Muskego v. 
 Drainage Com'rs, 78 Wis. 40; Calla- 
 han v. Dunn, 78 CaL 366. The drain 
 need not be of public utility in all 
 the counties into which it extends. 
 Meranda v. Spurlin, 100'lnd. 380. The 
 proceedings are in rem. Otis v. De 
 Boer, 116 Ind. 531. Under the acts 
 of Illinois assessments can only be 
 supported by benefits. Havana Drain- 
 age Com'rs v. Kelsey, 120 111. 482. 
 And benefits may be offset against 
 damages. Winkleman v. Drainage 
 District, 24 111. App. 242. See People 
 v. O'Hair, 128 111. 20. The drainage 
 district, being a mere public, invol- 
 untary, quasi corporation, is not lia- 
 ble for the negligence or tortious 
 acts of its commissioners. Elmore 
 v. Drainage Com'rs, 135 111. 369. As 
 to taxation, see Clee v. Sanders, 74 
 Mich. 692; State v. Smith, 50 N. J. L. 
 101. County commissioners, unless 
 clearly authorized, cannot establish 
 levee districts beyond their county. 
 Moulton v. Parks, 64 Cal. 166. As to 
 drainage in England, see 8 & 9 Vict, 
 ch. 56; Re Poynder's Settled Estates, 
 30 W. R. 7. 
 
 3 Ibid. ; Hildreth v. Lowell, 11 Gray, 
 345; Lincoln v. Com., 164 Mass. 368; 
 Weed v. Boston, 172 Mass. 28: O'Reiley 
 v. Draining Co., 32 Ind. 169; State v. 
 Blake, 36 N. J. L. 442; Cincinnati v. 
 Penny, 21 Ohio St. 499; Steele v. 
 
 i Turner v. Nye, 154 Mass. 579. 
 
§ 241.] 
 
 EMINENT DOMAIN. 
 
 481 
 
 improvement of the navigation of a river. 1 Acts are held con- 
 stitutional which authorize the construction and maintenance 
 of a line or lines of tubing for the transportation of petroleum 
 or natural gas through pipes to any railroad, navigable stream, 
 etc. ; 2 and the condemnation of land for public roads leading 
 to mines, for the erection of mining machinery and shafts, 3 or 
 for a right of way for a canal or aqueduct, 4 or for a water ditch 
 used for mining, 5 or for irrigation, 6 is held to be a proper exer- 
 
 Empson, 143 Ind. 397. When a nat- 
 ural stream is converted into a sewer 
 they do not become identical as to 
 riparian rights. Baltimore v. Cowen, 
 88 Md. 447. The destruction of an 
 ■oyster bed by a city sewer may be a 
 taking. Huffmire v. Brooklyn, 162 
 N. Y. 584. 
 
 i People v. Allen, 42 N. Y. 378. See 
 He County Com'rs, 143 Mass. 424. 
 
 2 West Virginia Transp. Co. v. Vol- 
 canic Oil Co., 5 W. Va. 382; Ridg- 
 way Light Co. v. Elk County, 191 
 Penn. St. 465. See Vail v. Attica 
 <Kans. App.), 57 Pac. Rep. 1-37. 
 
 3 Bankhead v. Brown, 25 Iowa, 540; 
 Dayton M. Co. v. Seawell, 11 Nev. 
 394; Overman Silver M. Co. v. Cor- 
 coran, 15 Nev. 147. But land cannot 
 be condemned for a public road 
 which will merely benefit an indi- 
 vidual or corporation. Channel Co. 
 «. Railroad, 51 Cal. 269; Reclamation 
 District v. Hagar, 4 Fed. Rep. 366; 
 People v. Hagar, 52 Cal. 170; State 
 v. Diggs Drainage Co., 45 N. J. L. 91; 
 Zimmerman v. Canfleld, 42 Ohio St. 
 463; Garrett v. Green, 3 Penny. (Pa.) 
 370; Bryant v. Robbins, 70 Wis. 258. 
 Land within the limits of the dis- 
 trict only can be assessed for benefits 
 conferred on such lands. Moulton 
 v. Parks, 64 Cal. 166, 181. It cannot 
 be taken for the private enterprise 
 of constructing an artificial basin 
 with wharves therein, although in- 
 cidentally benefiting the public by 
 affording additional accommoda- 
 tions for business, commerce or man- 
 ufactures. Re Eureka Basin W. & 
 
 31 
 
 M. Co., 96 N. Y. 42. The use of grain 
 elevators on a wharf is not incon- 
 sistent with the condemnation as "a 
 public highway for wharf purposes." 
 Belcher Sugar R. Co. v. St. Louis 
 Grain El. Co., 10 Mo. App. 401. 
 
 ^Bigler v. Penn. Canal Co., 177 
 Penn. St. 28; Kountze v. Morris Aque- 
 duct, 58 N. J. L. 303, 695; Lancey v. 
 King County, 15 Wash. 9; Crary v. 
 Port Arthur Channel Co., 92 Texas, 
 275; 49 S. W. Rep. 703. 
 
 5 Hand Gold M. Co. v. Parker, 59 
 Ga, 419; Dalton v. Water Com'rs, 49 
 Cal. 222; Bliss v. Kingdom, 46 Cal. 
 651. The constitution of California 
 provides " that the use of water now 
 appropriated, or that may be here- 
 after appropriated, for sale, rental, 
 or distribution, is hereby declared 
 to be a public use, and subject to 
 the regulation and control of the 
 State in the manner to be prescribed 
 by law." See Cummings v. Peters, 
 56 Cal. 593; Bradley v. Fallbrook Ir. 
 District, 68 Fed. Rep. 94S; 164 U. S. 
 112. As to the right to make a ditch 
 over another's claim under the Mon- 
 tana statute, see Glass v. Basin M. 
 Co., 22 Mont. 151. 
 
 c Fallbrook Ir. District v. Bradley, 
 164 U. S. 112; 68 Fed. Rep. 948; Mil- 
 ler v. Perris Ir. District, 92 Fed. Rep. 
 263; Prescott Ir. Co. v. Flathers, 20 
 Wash. 454; Harris v. Tarbet (19 
 Utah), 57 Pac. Rep. 33; Toyaho Creek 
 Ir. Co. v. Hutchins (Tex. Civ. App.), 
 52 S. W. Rep. 101; Hewitt v. San 
 Jacinto, etc. Ir. District, 124 CaL 
 186; Cleveland S. & T. Co. v. Bear 
 
482 
 
 THE LAW OF WATEKS. 
 
 [CH. VIII. 
 
 cise of the right of eminent domain in the "West. So, a railroad 
 company may be authorized to condemn land for the purpose of 
 changing the channel of a stream where the safety of the travel- 
 ing public will be promoted thereby. 1 Eut land cannot be taken 
 for a purely private purpose, 2 without regard to the public 
 good, as for a private drain, 3 road, 4 or mining claim, 5 although 
 compensation is made or tendered. The legislature cannot 
 authorize miners to build a flume on others' lands for the pur- 
 pose of carrying off their tailings, or of enabling them to de- 
 posit them on such lands, 6 or to obtain a right of way for the 
 more convenient mining of coal. 7 It cannot empower volun- 
 tary associations to assume, without any necessity arising from 
 an interruption of their own business, the control and man- 
 agement of others' logs floating in public navigable waters, 
 and to enforce a lien against the logs for such control and 
 management. 8 So, canal commissioners, as public agents, can- 
 
 Valley Ir. Co., 93 Fed. Rep. 339; 
 Lindsay Ir. Co. v. Mehrtens, 97 
 Cal. 676; Rialto Irr. District v. Bran- 
 don, 103 Cal. 384; Emigrant Ditch 
 Co. v, Webber, 108 Cal. 88: Sand 
 Creek L. Ir. Co. v. Davis, 17 Col. 326; 
 Ellinghouse v. Taylor, 19 Mont. 462; 
 Umatilla Ir. Co. v. Barnhart, 22 
 Oregon, 389; McGehee Ir. Ditch Co. 
 v. Hudson, 85 Texas, 587; Ysleta v. 
 Babbitt, 8 Tex. Civ. App. 432; Pax- 
 ton, etc. Co. v. Farmers', etc. Co., 45 
 Neb. 884; Oury v. Goodwin (Ariz.), 
 26 Pac. Pep. 376; North Point Cons. 
 Ir. Co. v. Utah, etc. Co., 16 Utah, 246; 
 Farmers' Ind. Ditch Co. v. Agr. Ditch 
 Co., 22 Col. 513; 30 Am. L. Rev. 924. 
 See Canadian Pac. Ry. Co. v. Parke, 
 [1899] A. C. 535. The Federal courts 
 are bound by State decisions on the 
 powers of irrigation companies. San 
 Diego Flume Co. v. Souther, 90 Fed. 
 Rep. 164. As to receiverships of such 
 companies, see Atlantic Trust Co. v. 
 Woodbridge Canal Co., 79 Fed. Rep. 
 39. 
 
 1 Reusch v. C, B. & Q. R. Co., 57 
 Iowa, 687. As to successive appro- 
 priations, see Peck v. Louisville Ry. 
 Co., 101 Ind. 366. 
 
 2 New England Trout Club v. 
 Mather, 68 Vt. 338; Hansen v. Ham- 
 mer, 15 Wash. 315; Economy L & P. 
 Co. v. Cutting, 49 111. App. 422; Sulli- 
 van v. Cline, 33 Oregon, 260. 
 
 s Fleming v. Hull, 73 Iowa, 598; 
 Priewe v. Wisconsin, etc. Impr. Co., 
 93 Wis. 534; In re Tuthill (N. Y.), 57 
 N. E. Rep. 303. 
 
 * Embury v. Conner, 3 N. Y. 511; 
 State v. Driggs Drainage Co., 45 N. J. 
 L. 91. See Breaux v. Bienvenu, 51 
 La. Ann. 687. Land cannot be con- 
 demned for a railroad to convey its 
 visitors in summer to see the Niagara 
 river and the whirlpool, there being 
 no other traffic and no habitation on 
 the river. Be Niagara Falls R. Co., 
 108 N. Y. 375. 
 
 6 Lorenz v. Jacob, 63 Cal. 73. 
 
 6 Consolidated Channel Co. v. Cen- 
 tral Pacific R. Co., 51 Cal. 269. 
 
 ' Waddell's Appeal, 84 Penn. St 90. 
 See Brock v. Barnett, 57 Vt. 172. 
 
 8 Ames v. Port Huron Log Co., 11 
 Mich. 139; Butterfield v. Gilchrist, 53 
 Mich. 22 ; Quimby v. Hazen, 54 Vt. 132 ; 
 Hutton v. Webb, 124 N. C. 749; Boyle 
 v. Musser (Minn.), 79 N. W. Rep. 664; 
 Hood River L. Co. v. Wasco County 
 
241.] 
 
 EMINENT DOMAIN. 
 
 483 
 
 not appropriate the lands of others for the purpose of com- 
 pensating those who are injured by the construction of the 
 canal ; J nor can they be authorized by the legislature to take 
 from private streams more water than is necessary for canal 
 navigation and raise a revenue by resale or other disposition 
 of the surplus water. 2 There must in all cases be a real neces- 
 sity for the condemnation. 3 Drainage beneficial to two farms 
 is not a public use. 4 A railroad corporation cannot condemn 
 land for the construction of a store-house for boats of passen- 
 gers who visit a watering place on the line of its road, or for 
 the purpose of opening a highway from its road to a hotel one- 
 
 (Oregon), 57 Pac. Eep. 1017; Gray's 
 Harbor Boom Co. v. McAmmant (21 
 Wash.), 58 Pac Eep. 573. Contra, 
 where a boom company is made 
 bailee of loose logs and renders a 
 service to their owners by keeping 
 them from stranding. Duluth Lum- 
 ber Co. v. St. Louis Boom & Inipr. 
 Co., 17 Fed. Eep. 419. 
 
 iMcArthur v. Kelly, 5 Ohio, 139. 
 Property owners may be estopped by 
 their conduct from asserting that a 
 statute authorizing a public improve- 
 ment is not constitutional. Tone v. 
 Columbus, 39 Ohio St. 281. A statute 
 which purports to authorize the issue 
 of bonds by a village to aid in im- 
 proving a private water-power by a 
 dam is unconstitutional as providing 
 for public taxation for private pur- 
 poses. Coates v. Campbell, 37 Minn. 
 498. As to special legislation, see 
 Lewis County v. Gordon, 20 Wash. 
 80; Seabolt v. Com'rs, 187 Penn. St. 
 318; supra, § 189, n. 
 
 2 Buckingham v. Smith, 10 Ohio, 
 297; Cooper v. Williams, 5 Ohio, 244; 
 Little Miami Elevator Co. v. Cincin- 
 nati, 30 Ohio St. 629; Erkenbrecher 
 v. Cincinnati, 2 Cinn. (Ohio) 412; Fox 
 v. Cincinnati, 104 U. S. 783; Varick 
 v. Smith, 5 Paige, 137; 9 Paige, 547. 
 So of a water company. lie Barre 
 Water Co. (Vt.), 20 Atl. Eep. 109; Day 
 v. Pittsburg E Co., 44 Ohio St. 406. 
 Surplus water is necessary to canal 
 
 navigation, and may be sold or leased. 
 But the primary object is not to cre- 
 ate a water power, but a navigable 
 highway. Ibid. If the water is needed 
 for navigation, the lessee's right must 
 yield. State v. Board of Public Works; 
 42 Ohio St. 607. The State may aban- 
 don a leased canal and permit it to 
 be filled up and arrailroad built on its 
 site. Hoagland v. New York Ey. Co., 
 Ill Ind. 443. See Whitney v. State, 
 96 N. Y. 240; Logansport v. Shirk, 88 
 Ind. 563; Burk v. Simonson, 104 Ind. 
 173. It is not ultra vires for a canal 
 company which is authorized to draw 
 water from a public river for its char- 
 tered purpose, to agree to discharge 
 its waste water at a certain point; 
 Armstrong v. Pennsylvania E Co., 38 
 N. J. L. 1; Hoppock v. United New 
 Jersey E. Co., 27 N. J. Eq. 286; 28 id. 
 261; Att. Gen. v. Plymouth, 9 Beav. 
 67. There is no dower in the privi- 
 lege of using the surface water of a 
 canal. Kingman v. Sparrow, 12 Barb. 
 201. 
 
 3 Spring Valley Waterworks v. San 
 Mateo Water Works, 64 Gal. 123. A 
 water company cannot, however, be 
 compelled to lay its pipes along a 
 highway rather than through pri- 
 vate lands, where compensation is re- 
 quired for the new servitude. Biddle 
 v. Wayne W. W. Co., 190 Penn. St. 94. 
 
 *McQuillen v. Hatton, 42 Ohio St. 
 202. 
 
484 TUB LAW OF WATEKS. [Ch. VIII. 
 
 third of a mile distant, where its patrons are entertained. 1 A 
 statute which provides for the taking, for a private purpose, of 
 private property with the owner's consent is constitutional, and 
 such consent may be proved by parol acts and declarations, not- 
 withstanding the statute of frauds, if the act does not require 
 the consent to be in writing. 2 
 
 § 242. Same — Public use. — Within reasonable and just 
 limits the legislature has the power to determine whether a 
 particular use is public or private, and the statutes which it 
 enacts are presumed to be valid. 3 But in order to give effect 
 to the constitutional limitations by which its acts are restrained, 
 the final decision must rest with the courts in determining 
 whether the appropriation has any element of public utility, 4 
 and whether due compensation is made, 5 which will also be 
 guided by the consideration that, as these statutes are in dero- 
 gation of common right, no powers will, be implied beyond 
 what are expressly granted. 6 A constitutional provision au- 
 thorizing the taking of private property for public use amounts 
 to a declaration that for any other use such property shall not 
 be taken from the owner without his consent and transferred 
 to another. 7 The use is none the less public because a corpo- 
 
 1 Re Rochester & G. H. R. Co., 12 their requirements must be strictly 
 N. Y. S. 566. observed. Re Amsterdam Water 
 
 2 Embury v. Conner, 3 N. Y. 511; Com'rs, 96 N. Y. 351; Whiteford 
 Nunnamaker v. Columbia W. P. Co., Township v. Probate Judge, 53 Mich, 
 47 S. C. 485. 130. 
 
 3 Secombe v. Railroad Co., 23 "Wall. *Ibid.; Coster v. Tide Water Co., 
 
 108; Shoemaker v. United States, 147 18 N. J. Eq. 54, 518; Dayton Mining 
 
 TJ. S. 282; Talbot v. Hudson, 16 Gray, Co. v. Seawell, 11 Nev. 394; Chicago 
 
 417; Opinion of Justices, 8 Gray, 21; R. Co. v. Lake, 71 111. 333; Matter of 
 
 Lowell v. Boston, 111 Mass. 454; Wat- Deansville Cemetery Ass'n, 66 N. Y. 
 
 son w.Needham, 161 Mass. 404; Moore 569; Indianapolis W. W. Co. v. Burk- 
 
 v. Sanford, 151 Mass. 285; Booth v. hart, 41 Ind. 364: Campbell v. Dwig- 
 
 Woodbury, 32 Conn. 118; Allen v. gins, 83 Ind. 473; Tyler v. State, id. 
 
 Jay, 60 Maine, 124; Amoskeag Manuf. 563 ; Varner v. Martin, 21 W. Va. 534 
 
 Co. v. Head, 56 N. H. 386; Twitchell sjionongahela Nav. Co. v. United 
 
 v. Blodgett, 13 Mich. 127; Brodhead States, 148 U. S. 312. 
 
 v. Milwaukee, 19 Wis. 624; Varick v. 6 Howe v. Norman, 13 R L 488; Re 
 
 Smith, 5 Paige, 137; 9 Paige, 547; Amsterdam Water Com'rs, 96 N. Y. 
 
 Harris v. Thompson, 9 Barb. 350; 351; Harvey v. Aurora & G. Ry. Co., 
 
 Bloodgood v. Mohawk R. Co., 18 174 111. 295. 
 
 Wend. 56; Stockton R. Co. v. Stock- 'Ibid.; In re Albany Street, 11 
 
 ton, 41 Cal. 147. All eminent domain Wend. 149; Embury v. Conner, 3 
 
 statutes are strictly construed, and N. Y. 511; Concord Railroad v. Gree- 
 
§ 242.] 
 
 EMINENT DOMAIN. 
 
 485 
 
 ration created by the laws of another State is empowered to 
 condemn land for the purpose, or because such corporation 
 derives pecuniary benefit from the use of the land appropri- 
 ated. 1 A State cannot condemn beyond its own limits ; but it 
 may condemn up to the State line when such line is the thread 
 of a boundary river between States, and may thus control the 
 use of the property of a bridge corporation organized under 
 the laws of the State on the other side of the river. 2 The gov- 
 ernment of the United States may, upon providing just com- 
 pensation, authorize the taking of the property of a riparian 
 proprietor for the purpose of affording increased facilities for 
 navigation and commerce between the States ; 3 and for this 
 purpose it may .proceed in the State as well as the Federal 
 courts. 4 This it may do against the protest of a State ; 5 and 
 
 ley, 17 N. H. 47; G, B. & Q. R. Co. v. 
 Chicago, 166 U. S. 226. 
 
 i Matter of Townsend, 39 N. Y. 171. 
 The legislature, in the exercise of the 
 police power, may prescribe regula- 
 tions for vessels navigating a canal 
 owned by a corporation in behalf of 
 which the right of eminent domain 
 has been exercised. Com'rs v. Wil- 
 lamette Transp. Co., 6 Oregon, 219. 
 
 2 Crosby v. Hanover, 36 N. H. 404 
 Where power is conferred by statute 
 upon county courts of adjoining 
 counties to construct bridges across 
 boundary streams, at joint expense, 
 this is not exclusive and does not 
 take away the common-law right of 
 either county to erect such bridges 
 at its sole cost. Washer v. Bullitt 
 County, 110 U. S. 558. So as to a 
 bridge between this country and 
 Canada. Att. Gen. v. Int'l Bridge Co., 
 20 Ch. (Can.) 84. Cf. In re McDon- 
 ough, 30 Q. B. (Can.) 288; Int'l Bridge 
 Co. v. Canada Southern Ry. Co., 28 
 Grant Ch. (Can.) 114; 7 Ontario App. 
 226; Att. Gen. v. Int'l Bridge Co., 6 
 Ontario App. 537; 28 Grant Ch. 65. 
 
 3 United States v. Jones, 109 U. S. 
 513; Avery v. Fox, 1 Abb. U. S. 246; 
 Velte v. United States, 76 Wis. 278. 
 
 The owner's claim for compensation 
 is one arising out of implied con- 
 tract, within the jurisdiction of the 
 court of claims. United States v. 
 Great Falls Manuf. Co., 112 U. S. 645; 
 Mills v. United States, 46 Fed. Rep. 
 738; 12 L. R. A. 673, n. The United 
 States cannot be sued, as upon an 
 implied contract, for land devoted to 
 the public use when the plaintiff's 
 title has never been acknowledged; 
 it has not, by statute, made itself lia- 
 ble for torts committed by its offi- 
 cers; and the settled rule that it is 
 not so .liable cannot be evaded by 
 claiming upon an implied contract. 
 Hill v. United States, 149 U. S. 593; 
 German Bank v. United States, 148 
 id. 573. See United States v. Schwal- 
 by, 87 Tex. 604; Merriam v. United 
 States, 29 Ct. CI. 250; Satterlee v. 
 United States, 30 id. 31 ; Jackson v. 
 United States, 31 id. 318; Ingram 
 v. United States, 32 id. 147; Mann v. 
 United States, id. 580; Schillinger v. 
 United States, 155 U. S. 163. 
 
 * Be United States Petition, 96 N. Y. 
 227; Kohl v. United States, 91 U. S, 
 367 ; Fort Leavenworth R. Co. v. Lowe, 
 114 id. 525; Luxton v. North River 
 Bridge Co., 147 id. 337; 153 id. 525; 
 
 5 Decker v. Baltimore & N. Y. R. Co., 30 Fed. Rep. 723. 
 
486 
 
 THE LAW OF WATEKS. 
 
 [Ch. VIII. 
 
 even defects in a State statute as to providing adequate com- 
 pensation for a national improvement may be cured by Con- 
 gress. 1 
 
 United States v. Alexander, 148 id. 
 186; Samel). Truesdell, id. 196; Lincks 
 v. Amend (N. J.), 33 AtL Rep. 755; 
 Benner v. Atlantic D. Co., 134 N. Y. 
 156; Great Falls Manuf. Co. v. United 
 States, 16 Ct. CI. 160; United States 
 v. Jones, 109 U. S. 513; 48 Wis. 513; 
 Sweaney v. United States, 62 Wis. 
 396; 17 A. G. Op. 109, 137, 179, 453, 
 455, 509; 18 id. 481, 64, 66, 431; 20 id. 
 67, 129, 631; United States v. Oregon 
 Ry. & Nav. Co., 16 Fed. Rep. 524; 
 Hawkins Point Light House, 39 id. 
 77 ; In re Secretary of the Treasury, 
 
 45 id. 396 ; United States v. Engeman, 
 
 46 id. 176, 898; 45 id. 546; In re Mont- 
 gomery, 48 id. 896; Chappell v. United 
 States, 81 id. 764; Paine Lumber 
 Co. v. Same, 55 id. 854; Merriam v. 
 United States, 29 Ct. CI. 250; Smith 
 v. Same, 32 id. 295; 25 U. S. Stats. 
 357; 26 id. 315. The United States, 
 upon making just compensation, may 
 by eminent domain take real estate 
 in any State, with or without a con- 
 current act of such State, whenever 
 needed for its use in the execution of 
 any of its powers, as for arsenals, 
 fortifications, light-houses, custom- 
 houses, court-houses, barracks, hos- 
 pitals, parks, post-offices, etc. Chap- 
 pell v. United States, 160 U. S. 499; 
 United States v. Gettysburg El. Ry. 
 Co., id. 668; Hill v. United States, 149 
 id. 593. If the general government 
 acquires such land by purchase with 
 the consent of the State legislature, 
 it has exclusive jurisdiction there; if 
 otherwise acquired, it is subject to 
 exclusive Federal jurisdiction only 
 with respect to the part used for pub- 
 lic purposes. Fort Leavenworth R. 
 Co. v. Lowe, 114 U. S. 525; Chicago 
 & Pac. Ry. Co. v. McGlinn, id. 542; 
 Benson v. United States, 146 id. 325; 
 United States v. Bateman, 34 Fed. 
 
 Rep. 86; 16 A. G. Op. 592; 20 id. 611; 
 State v. Mack (Nev.), 47 Pac. Rep. 
 763, 764. When land is thus acquired 
 from a State by an act of cession, the 
 United States holds it only as pre- 
 scribed in such act. Ibid. ; Crook v. 
 Old Point Comfort Hotel Co., 54 Fed. 
 Rep. 604. The provisions of the Fifth 
 and Fourteenth Amendments that 
 private property shall not be taken 
 for public use without just compen- 
 sation, or without due process of law, 
 apply to eminent domain proceed- 
 ings by the United States, but not to 
 those taken by a State. In re Sawyer, 
 124 U. S. 200, 219; Wilson v. Balti- 
 more & P. R. Co., 5 Del. Ch. 424. The 
 United States may condemn prop- 
 erty taken under State franchises 
 upon making due compensation. 
 Monongahela Nav. Co. u United 
 States, 148 U. S. 312. The act of 
 Congress of July 15, 1882, authoriz- 
 ing the compensation to be deter- 
 mined by the court of claims with- 
 out a jury is constitutional, although 
 not requiring payment before the 
 taking. Great Falls Manuf. Co. v. 
 Garland, 25 Fed. Rep. 521; 124 U. S. 
 581. Improvements in navigable 
 waters which lessen the navigable 
 character of a river but do not take 
 private property, though impairing 
 the usefulness of a wharf, constitute 
 a tort for which damages cannot be 
 recovered in the court of claims. 
 Gibson v. United States, 29 Ct. CL 18; 
 17 A. G. Op. 109, 279; 18 id. 64. A 
 State statute, which is defective as 
 to providing compensation for a na- 
 tional improvement, may be cured 
 by Congress. Green Bay Canal Co. 
 v. Kaukauna W. P. Co., 70 Wis. 635; 
 142 U. S. 254. 
 
 1 Green Bay Canal Co. v. Kaukauna 
 W. P. Co., 70 Wis. 635; 142 U. S. 254. 
 
§ 243.] 
 
 EMINENT DOMAIN. 
 
 487 
 
 § 243. Same — Taking. — In order to constitute a taking for 
 public use, it is not necessary that the property should be ab- 
 solutely converted to public purposes, but it is sufficient if 
 its value is destroyed or permanently and seriously impaired. 
 "When real estate is actually invaded by backing water upon it 
 by means of a dam or by any superinduced additions of water, 
 earth, sand or other material, or by having any artificial struct- 
 ure placed upon it, or by dredging, whereby land is submerged, 1 
 it is a taking for which the land-owner is entitled to damages, 3 
 even in the absence of a constitutional provision that private 
 property shall not be taken for public use without compensa- 
 tion. 3 So the diversion, pollution, or other use of a private 
 stream by public authorities, impairing, changing, 4 or destroy- 
 ing the rights of riparian proprietors to the water, or to fish 
 therein, is an actionable injury or a taking for which compen- 
 sation must be provided. 5 But an act of the legislature " to 
 
 1 Bent 1). Emery, 174 Mass. 495. 
 
 -Pumpelly v. Green Bay Co., 13 
 Wall 166; King v. United States, 59 
 Fed. Rep. 9 ; Eaton v. Boston R. Co., 51 
 N. EL 504; Thompson v. Androscog- 
 gin Co., 54 id. 545; Inman v. Tripp, 
 11 R I 520, 525; Titus v. Boston, 149 
 Mass. 164; Lincoln v. Com., 164 id. 
 868; Gulf Ry. Co. v. Jones, 63 Texas, 
 524; Hollingsworth v. Tensas, 17 Fed. 
 Rep. 1 09, 118, note ; Arimond v. Green 
 Bay Canal Co., 31 Wis. 316; Petti- 
 grew v. Evansville, 25 id. 223; Winn 
 v. Rutland, 52 Vt. 481 ; Jones v. United 
 States, 48 Wis. 404; Cumberland v. 
 Willison, 50 Md. 138; Glover v. Pow- 
 ell, 10 N. J. Eq. 211; Ten Eyck v. 
 Delaware Canal Co., 18 N. J. 200; 
 Morris Canal Co. v. Seward, 23 N. J. 
 L. 219; Grand Rapids Booming Co. v. 
 Jarvis. 30 Mich. 321; Vanderlip v. 
 Grand Rapids, 73 id. 522; 16 Am. St. 
 Rep. 597, and note; Lee v. Pembroke 
 Iron Co., 57 Maine, 481; Wabash 
 Canal v. Spears, 16 Ind. 441; Mabire 
 v. Canal Bank, 11 La. Ann. 83; Hol- 
 lingsworth v. Tensas, 4 Woods, 280; 
 McKenzie v. Mississippi Boom Co., 29 
 Minn. 288; Weaver v. Mississippi 
 Boom Co., 28 Minn. 534; Carlson v. 
 
 St. Louis River Dam Co., 73 Minn. 
 128; Leitzsey v. Columbia W. P. Co., 
 47 S. C. 464. See post, § 249. "Dam- 
 aged" in a statute includes more 
 than "taken." Frankle v. Jackson, 30 
 Fed. Rep. 398; Sheehy v. Kansas City 
 Cable Ry. Co., 94 Mo. 574; 4 Am St. 
 Rep. 396, and note. Water perco- 
 lating into a mine from public 
 works, such as a tunnel, is not a tak- 
 ing. Mclntyre v. United States, 25 
 Ct. CI. 200; Alexander v. Same, id. 
 87, 329. 
 
 3 Gardner v. New burgh, 2 Johns. 
 Ch. 162; Sinnickson v. Johnson, 2 
 Harr. (N. J.) 129; Pumpelly v. Green 
 Bay Co., 13 Wall. 178; Ex parte Mar- 
 tin, 13 Ark. 199; Cairo R. Co. v. Tur- 
 ner, 31 Ark. 494. 
 
 * Smith v. Gould, 61 Wis. 31. 
 
 6 Union Canal Co. v. Stump, 81 
 Penn. St. (Pt. 2) 355; Lee v. Spring- 
 field W. Co., 176 id. 223; Valparaiso 
 v. Hagen, 153 Ind. 337; Ex parte 
 Jennings, 6 Co wen, 518; Canal 
 Com'rs v. People, 5 Wend. 423; 
 Com'rs v. Kempshall, 26 Wend. 404; 
 Huffmire v. Brooklyn, 48 N. Y. S. 
 133; In re Thompson, 35 id. 6; 
 Worcester G. L. Co. v. Worcester 
 
488 THE LAW OF WATERS. [Ch. VIIL 
 
 prevent the wilful pollution of the waters of any of the creeks, 
 ponds or brooks of the State," if designed to prohibit the pol- 
 lution of waters supplying any reservoir for distribution for 
 public use, is not such a taking, but a police regulation, forbid- 
 ding such use of private property as tends to the common in- 
 jury of the citizens of the State. 1 So a municipal ordinance 
 requiring every owner of a bakery with a well on the premises 
 to have the well filled up to the surface of the land, in order 
 that the water therefrom, used in bread sold to the public, may 
 not be impure, is a police regulation and not a taking. 2 A stat- 
 ute which authorizes a corporation to erect, on its own land, a 
 dam in a river which is a public highway only affords protec- 
 tion against an indictment for obstructing the navigation, and 
 does not protect from liability to an action for flowing others' 
 lands. 3 So, authority to maintain side booms in convenient 
 places in a river does not warrant an entry upon the close of 
 another. 4 The land of a riparian proprietor which is covered 
 with water can no more be appropriated to public use, with- 
 out just compensation, than any other, property, and if the 
 legislature authorizes a dock line to be established which pre- 
 vents a riparian owner from constructing a dock beyond such 
 line, 5 or from driving piles along the shore, 6 neither of which 
 
 County Com'rs, 138 Mass. 289; 3 Crittenden v. Wilson, 5 Co wen, 
 
 Dwight Printing Co. v. Boston, 164 165; Eastman v. Amoskeag Manuf. 
 
 Mass. 247; Nemasket Mills v. Taun- Co., 44 N. H. 143; Amoskeag Manuf. 
 
 ton, 166 Mass. 540; Harding v. Stam- Co. v. Goodale, 46 N. H. 53; Lee v. 
 
 ford Water Co., 41 Conn. 87; Walker Pembroke Iron Co., 57 Maine, 481; 
 
 v. Board of Public Works, "16 Ohio, Trenton W. P. Co. v. Raff, 36 N. J. L. 
 
 540; Avery v. Fox, 1 Abb. U. S. 246; 335. See Zemlook v. United States, 
 
 Ferrand v. Bradford, 21 Beav. 412, 73 Wis. 363; Whitehead v. Plummer, 
 
 419; Stone v. Yeovil, 1 C. P. D. 691, 76 Iowa, 181. 
 
 700; 2 id. 99; Adams v. Slater, 8 i Perry v. Wilson, 7 Mass. 393. See 
 
 Brad. (111.) 72; Smith v. Gould, 61 North River Boom Co. v. Smith, 15 
 
 Wis. 31; 59 id. 631; Clark v. Cam- Wash. 138. 
 
 bridge Co., 45 Neb. 798. 5 Walker v. Shepardson, 4 Wis. 486^ 
 
 1 State v. Wheeler, 44 N. J. L. 88. Yates v. Milwaukee, 10 Wall. 497. 
 See infra, § 244. When land is taken by the State for 
 
 2 State v. Schlemmer, 42 La. Ann. » canal, the purpose for which such 
 1166. See, also, Barbier v. Connelly, canal is designed and its practical 
 113 TT. S. 27; Powell v. Pennsylvania, enjoyment necessarily include the- 
 127 U. S. 679; Harmon v. Chicago, ground covered by water, sufficient 
 110 111. 400; Rechel v. Sweet, 159 banks, a towing path on one side and 
 U. S. 380; 37 Fed. Rep. 323. a.berme bank on the other; and th* 
 
 6 Janesville v. Carpenter, 77 Wis. 288. 
 
243.] 
 
 EMINENT DOMAIN. 
 
 439 
 
 would interfere with the public right of navigation, he is en- 
 titled to be compensated for the right of which he is thus de- 
 prived. 1 The fact that land covered by water is held subject 
 to the public right of navigation does not justify a condemna- 
 tion without compensation, or deprive the owner of the pro- 
 tection of the courts, if compensation is not made. 2 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 mort- 
 gagee, the mortgagor is the person entitled to compensation 
 when land previously mortgaged is taken for a public use. 3 A 
 licensee of a well and an hydraulic ram thereon, under a parol 
 license, cannot maintain a petition for damages for a taking 
 of the land and an interference with his right under the right 
 of eminent domain. 4 
 
 presumption is that the State took 
 land of sufficient width for all such 
 rights. Pennsylvania Canal Co. v. 
 Harris, 101 Penn. St. 80. As to waiv- 
 ing tort for diverting water, and 
 claiming the profits of a canal which 
 is a public highway, see Manchester 
 Ship Canal Co. v. Rochdale Canal 
 Prop'rs, [1899] W. N. 24. In New 
 York, the State is not liable for the 
 breaking of a canal dam causing the 
 loss of a canal boat. Zorn v. State, 
 60 N. Y. S. 1037. A State legislature 
 cannot, by contract, bind the State 
 as to matters affecting public health 
 or public morals, so as to limit the 
 future exercise of legislative power 
 on those matters. Butchers' Union 
 Co. v. Crescent City Co., Ill IT. S. 746. 
 J Land is taken for a public use 
 when it is occupied for a levee per- 
 manently on account of a break in a 
 public dam. Morris v. United States, 
 30 Ct. CI. 162. The faulty construc- 
 tion of a dam, causing injury to land, 
 is not a taking. Hayward v. United 
 States, 30 Ct. CI. 219. If the govern- 
 ment, in improving a navigable river, 
 so lessens, without occupancy or con- 
 tact, the depth of water in front of 
 a landing as to prevent the larger 
 
 class of boats from reaching it, it is 
 not liable for taking private property. 
 Friend v. United States, 30 Ct. CI. 94;. 
 Lyons v. Same, 26 id. 31; McArthur 
 v. Same, 29 id. 191. 
 
 2 Morris Canal Co. v. Jersey City, 
 26 N. J. Eq. 294. 
 
 3 Isele v. Schwamb, 131 Mass. 337. 
 See Yakima W. Co. v. Hathaway, 18 
 Wash. 377. Under a statute which 
 makes water rents a charge on land 
 paramount to all incumbrances, if 
 a mortgage is afterwards given, 
 and thereafter water is introduced 
 on the land, the lien of the water 
 rent is paramount to that of the 
 mortgage. Provident Inst'n v. Jer- 
 sey City, 113 U. S. 506. The amount 
 paid by a mortgagee for water rates 
 due, to prevent the water from being 
 cut off, is properly chargeable to the 
 mortgagor. Donohue v. Chase, 139 
 Mass. 407. 
 
 4 Clapp v. Boston, 133 Mass. 367. 
 Power conferred upon a corporation 
 by its charter to " use, rent, or sell " 
 its hydraulic powers and privileges, 
 authorizes it to mortgage them. 
 Willamette Manuf. Co. v. British 
 Columbia Bank, 119 U. S. 191. 
 
490 
 
 THE LAW OF WATERS. 
 
 [OH. VIII. 
 
 §244. Compensation. — In exercising the right of eminent 
 domain the government does not necessarily enter into a con- 
 tract, and is not, therefore, bound to complete a contemplated 
 appropriation. 1 But private property cannot be taken for pub- 
 lic use without just compensation, and this must be made in 
 money. 2 Compensation is not, however, required for a proper 
 exercise of the police power. 3 It is competent for the legisla- 
 ture to impose the expense of a public improvement, such as 
 the widening or deepening of a navigable channel, or the con- 
 struction of a canal, upon property peculiarly benefited thereby, 
 by way of taxation, and the excess of such expense over the 
 measure of particular advantage, must be paid by the public 
 at large; 4 but it cannot appoint commissioners directly to as- 
 
 iLamb v. Schottler, 54 Cal. 319; 
 Be Wells Ave. Sewer, 46 Hun, 534; 
 Moline W. P. Co. c United States, 20 
 Ct. CI. 331; Curran v. Louisville, 83 
 Ky. 628. See In re Weatherly Water 
 Co.. 7 Penn. Dist. Rep. 561. Statu- 
 tory provisions iri a local and per- 
 sonal act, providing for compensa- 
 tion for injury to A., from the escape 
 of water from the reservoirs, aque- 
 ducts or pipes of water-works pro- 
 prietors, are regarded as a contract, 
 whether made by the parties or 
 forced upon them by the legislature. 
 Rothes v. Kirkcaldy Waterworks 
 Com'rs, 7 App. Cas. 694. In United 
 States v. Great Falls Manuf. Co., 112 
 U. S. 645, it was held that a claim 
 for compensation for property taken 
 pursuant to an act of Congress is one 
 arising out of an implied contract 
 within the meaning of the statute 
 defining the jurisdiction of the court 
 of claims. If the compensation is 
 payable by monthly damages, there 
 is no obligation to continue the pay- 
 ments after the public use has ceased. 
 State v. Administrator of Public Ac- 
 counts, 26 La. Ann. 336. But dam- 
 ages caused before the abandonment 
 must be paid. Leisse v. St. Louis R. 
 Co., 72 Mo. 561. Non-user does not 
 always amount to an abandonment. 
 Curran v. Louisville, 83 Ky. 628. The 
 
 land-owner has a vested right to the 
 damages when finally settled by an 
 award. Furbish v. County Com'rs 
 (Maine), 44 Atl. Rep. 364. 
 
 2 Van Home v. Dorrance, 2 Dallas, 
 313; Carson v. Coleman, 11 N. J. Eq. 
 106; Ward v. Peck, 44 N. J. L. 42; 
 Com. v. Peters, 2 Mass. 125; Cobb v. 
 Smith, 16 Wis. 661; Livermore v. 
 Jamaica, 23 Vt. 361 ; Butler v. Sewer 
 Com'rs, 39 N. J. 665; Hyslop v. Finch 
 (99 111.), 24 Alb. L. J. 156; Jacob v. 
 Louisville, 9 Dana, 114; San Diego 
 L. & T. Co. v. Neale, 78 Cal. 80; Organ 
 v. Memphis R Co., 51 Ark. 235; Wil- 
 son v. Baltimore R. Co., 5 Del. Ch. 
 524; Zimmerman v. Canfield, 42 Ohio 
 St. 463. See McMaster v. Com., 3 
 Watts, 296; Satterlee v. Mathewson, 
 16 S. & R 179; ante, § 210. 
 
 SBudd v. New York, 143 U. S. 517; 
 Lawton v. Steele, 152 U S. 133; Henry 
 v. Roberts, 50 Fed. Rep. 902; State v. 
 Wheeler, 44 N. J. L. 88; Egan v. 
 Hart, 45 La. Ann. 1358; Hart v. Levee 
 Com'rs, 54 Fed. Rep. 559 ; Colon v. Lisk, 
 153 N. Y. 188; State v. Goodwill, 33 
 W. Va. 179; 2 Kent, Com. (14th ed.), 
 340, note; supra, § 243. Drainage of 
 swamp land without compensation 
 is not within the police power. 
 Askam v. King County, 9 Wash. 1. 
 
 * Philadelphia v. Scott, 81 Penn. St. 
 80; 9 Phila. 171; Reed v. Erie, 79 
 
§ 244.] 
 
 EMINENT DOMAIN. 
 
 491 
 
 sess damages without notice to the owner, 1 and the appraise- 
 ment must be by a jury or impartial tribunal. 2 Those whom 
 it authorizes to condemn lands cannot be empowered to assess 
 damages or benefits. 3 In the absence of express words to that 
 effect in the Constitution, it is not necessary that the compen- 
 sation 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, 4 or danger of litigation; 5 and if compensation is not first 
 made, it,must be secured by some definite and certain pledge 
 or fund. 6 An act which authorizes the flowage of land, and 
 
 Penn. St. 346; Sohuffletown Fence Co. 
 v. McAllister, 12 Bush, 312; Hatch 
 v. 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 1ST. J. 
 Eq. 54, 518; State v. Newark, 34 N. J. 
 L. 236; Reclamation District y.Hagar, 
 6 Sawyer, 567; Rexford v. Knight, 15 
 Barb. 627; Livingston v. New York, 
 8 Wend. 85; Holton v. Milwaukee, 31 
 Wis. 27; Mclntire u State, 5 Blackf. 
 384; Murphy v. Wilmington, 22 Alb. 
 L. Journ. 387. Speculative advan- 
 tages cannot be set off against the 
 damages. Palmer Coi v. Ferrill, 17 
 Pick. 58. See Petition of Mount 
 Washington R. Co., 35 N. H. 134 
 Hartwell v. Armstrong, 19 Barb. 166 
 Frederick v. Shane, 32 Iowa, 254 
 Jacob v. Louisville, 9 Dana, 114. 
 
 1 Langford v. Commissioners, 16 
 Minn. 375; Heyneman v. Blake, 19 
 Cal. 579; Reclamation District u Ev- 
 ans, 61 Cal. 104. 
 
 2 People v. Nearing, 27 N. Y. 306; 
 In re Ryers, 72 N. Y. 1; 10 Hun, 93; 
 Sparks Manuf. Co. v. Newton, 57 N. 
 J. Eq. 367; Tripp v. Overocker, 7 Col. 
 72; Goodwin v. Van Wert County 
 Com'rs, 41 Ohio St. 399. Commission- 
 ers who make void assessments are 
 functi officio, in the absence of fur- 
 ther legislative authority; but it is 
 not necessary that they should be 
 newly commissioned, if the legisla- 
 
 ture clothes them with all the au- 
 thority they could derive from a new 
 appointment. Miller v. Craig, 11 N. 
 J. Eq. 175. 
 
 3 Hessler v. Drainage Com'rs, 53 III. 
 105. The amount of property re- 
 quired for a public wharf to be con- 
 structed by a municipal corporation 
 may, it seems, be left to the discre- 
 tion of the corporation. Iron R. Co. 
 v. Ironton, 19 Ohio St. 299. 
 
 4 Pittsburgh v. Scott, 1 Penn. St. 
 309; Nichols v. Somerset R. Co., 43 
 Maine, 356; Old Colony R. Co. v. 
 Framingham W. Co., 153 Mass. 561; 
 New Haven W. Co. v. Wallingford 
 (Conn.), 44 AtL Rep. 235; Nickey v. 
 Stearns Ranchos Co. (126 Cal.), 58 Pac. 
 Rep. 459; Bonaparte v. Camden R. 
 Co., Bald. C. C. 205^ Raleigh R. Co. v. 
 Davis, 2 Dev. & Bat. 464; Bensley v. 
 Mountain Lake Water Co., 13 Cal. 
 306; Cairo R. Co. v. Turner, 31 Ark. 
 503; Weaver v. Miss. R. Boom Co., 30 
 Minn. 477. 
 
 6 Piscataqua Bridge Co. v. New 
 Hampshire Bridge Co., '7 N. H. 35; 
 Orr v. Quimby, 54 N. H. 642; San 
 Francisco v. Scott, 4 Cal. 114; Newell 
 v. Smith, 15 Wis. 101. See Ash v. 
 Cummings, 50 N. H. 591. 
 
 e Bloodgood v. Mohawk R. Co., 18 
 Wend. 9; 14 Wend. 51; Bauman v. 
 Ross, 167 U. S. 548; Kelley v. New 
 York, 27 N. Y. S. 164; Pocantico W. 
 W. Co. v. Brombacher. 17 N. Y. S. 
 
492 
 
 THE LAW OF WATEKS. 
 
 [Oh. YIIL 
 
 provides for compensation to the land-owner only by the require- 
 ment that he shall be paid the value of the land to be ascer- 
 tained by verdict in an action of trespass, affords no greater re- 
 dress than that given by the common law and is invalid. 1 But 
 an act providing for the establishment of a public landing on 
 the banks of a river is not unconstitutional, because it devolves 
 upon the owner the duty to institute proceedings for the as- 
 certainment of his damages. 2 And where compensation is not 
 required before entering upon the land taken and the assess- 
 ment of damages is to be by application therefor, in the same 
 manner as land taken for highways, the land-owner cannot 
 maintain trespass for the taking within the time limited for 
 such assessment. 3 The omission to make due compensation can 
 be taken advantage of by the owner only, and if he once as- 
 sents to the taking, it cannot afterwards be availed of by him- 
 self or those claiming under him. 4 "When the injury is merely 
 consequential, but damages therefor are directed to be paid, 
 it is not a constitutional requirement that they shall be paid 
 or secured before possession taken or the occurrence of the 
 
 661; In re Manderson, 51 Fed. Eep. 
 501; Wilmington W. P. Co. v. Evans, 
 166 111. 548; Johnson v. United States, 
 31 Ct. CI. 262; Lisleyu Lobley, 7 Ad. 
 & El. 124; Davidson v. Boston Rail- 
 road, 3 Cush. 91 ; Boynton v. Peter- 
 boro' R Co., 4 Cush. 466; Charlestown 
 Branch Railroad v. Middlesex, 7 Met. 
 78; Cushrnan v. Smith, 34 Maine, 247; 
 MoAuley v. Western Vermont R. Co., 
 33 Vt. 321; Foster u Stafford Bank, 
 57 Vt. 128; Colton v. Rossi. 9 Cal. 595; 
 McCauley v. Weller, 12 Cal. 500; Pow- 
 ers v. Bears, 12 Wis. 222; Brock v. 
 Hishen, 40 Wis. 681; Prentice v. Wal- 
 lis, 37 Miss. 172; Hall v. People, 57 111. 
 316; Doe v. Georgia R Co., 1 Ga. 524; 
 2 Kent Com. 339. The conduct of 
 the owner of land may estop him 
 from demanding the actual payment 
 of the required compensation as a 
 condition precedent. Pryzbylowicz 
 v. Missouri River R. Co., 17 Fed. Rep. 
 492. Ejectment lies if compensation 
 is not secured. Philadelphia R. Co. 
 
 v. Cooper, 105 Penn. St. 239. It is 
 waived by suing in trespass. Griffin 
 v. Jacksonville, etc. Ry. Co., 33 Fla. 
 606. A taking may be enjoined if 
 the statutory conditions are not ful- 
 filled. Willamette Iron Works v. 
 Oregon Ry. & Nav. Co., 26 Oregon, 
 224; McMillan v. Lauer, 24 N. Y. S. 
 951 ; Geurkink v. Petaluma, 112 Cal. 
 306; Penn. R. Co. v. National Docks 
 Co., 58 Fed. Rep. 929. 
 
 i Newell v. Smith, 15 Wis. 101; Ash 
 v. Cummings, 50 N. H. 613; Foster v. 
 Stafford National Bank, 57 Vt. 128; 
 Moody v. Jacksonville R Co., 20 Fla. 
 597; Pittsburg Ry. Co. v. Swinney,97 
 Ind. 586. 
 
 2 Cage v. Tracer, 60 Miss. 563. 
 
 3 Riche v. Bar Harbor Water Co., 
 75 Maine, 91. 
 
 4 Gray, J., in Haskell v. New Bed- 
 ford, 108 Mass. 214, citing Hildreth v. 
 Lowell, 11 Gray, 345; Brown v. Wor- 
 cester, 13 Gray, 31; Embury v. Con- 
 ner, 3 N. Y. 511. 
 
§ 245.] 
 
 ^EMINENT DOMAIN. 
 
 493 
 
 injury. 1 It has been held that where the State, or a county, 
 or town is to be liable for the damages caused by a taking for 
 public use, its property is a fund to which the owner may look 
 without danger of loss, and that the case of a taking by such 
 & body differs in this respect from that of an appropriation in 
 favor of a private corporation. 2 Such a distinction has not, 
 however, been always favorably regarded. 3 There are also 
 semi-public relations in which the line of divergence between 
 contracts and torts is clearly maintained. Thus an undertak- 
 ing by a water company to supply water to be used by a city 
 in extinguishing fires, gives no right of action against the com- 
 pany to an individual tax-payer whose property is burned by 
 reason of a breach of such contract, there being no privity be- 
 tween them. 4 
 
 §245. Same — Cities — Canals. — Under the right of emi- 
 nent domain, water cannot be diverted from a private stream 
 for the purpose of supplying a city, f° r canal purposes, or 
 other public use, 5 without making compensation to the riparian 
 
 1 McKinney v. Monongahela Nav. 
 Co., 14Penn. St. 65; Kochu Williams- 
 port Water Co., 65 id. 288 ; Spangler's 
 Appeal, 64 id. 387. 
 
 2 Bloodgood v. Mohawk R. Co., 18 
 Wend. 9; Chapman v. Gates, 54 N. Y. 
 133; Ash v. Cummings, 50 N. H. 621; 
 Smeaton v. Martin, 57 Wis. 364; Low- 
 ers v. Newark, 38 N. J. 151; McClin- 
 ton v. Pittsburgh R. Co., 66 Penn. St. 
 404 
 
 3 0rr v. Quimby, 54 N. H. 651; 15 
 Am. Law Reg. 199; Cushman v. 
 Smith, 34 Maine, 347. 
 
 4 Fowler v. Athens W. W. Co., 83 
 Ga. 219. 
 
 5 Harding v. Stamford Water Co., 
 41 Conn. 87; Dwight v. Boston, 122 
 Mass. 583; Lund v. New Bedford, 121 
 Mass. 286; Bailey v. Woburn, 126 
 Mass. 416; Nevins v. Peoria, 41 111. 
 502; Wells v. Bridgeport Hydraulic 
 Co., 30 Conn. 316; McCord v. High, 
 24 Iowa, 336; Stein v. Burden, 24 
 Ala. 130; 29 Ala. 127; Stein v. Ashby, 
 24 Ala. 521; 30 Ala. 363; Burden v. 
 
 Stein, 27 Ala. 104; Cooper v. Will- 
 iams, 5 Ohio, 391 ; 4 Ohio, 253 ; Conrrs 
 v. Withers, 29 Miss. 21; Hough v. 
 Doylestown, 4 Brewst. 333. A stat- 
 ute which incorporates a company 
 for supplying a village with water, 
 and provides for compensation, is 
 not unconstitutional if it does not 
 require the company to supply all 
 who apply for water. Lumbard v. 
 Stearns, 4 Cush. 60. Such a corpo- 
 ration is not a governmental agency, 
 and its property is subject to taxa- 
 tion. People v. Forrest, 97 N. Y. 97. 
 Cf. Rochester v. Rust, 80 N. Y. 302. 
 That neither the legislature nor a 
 city can gi"ant to a gas or water- 
 works company the exclusive right 
 to lay pipes and supply water in a 
 city, see Norwich Gas Light Co. v. 
 Norwich City Gas Co., 25 Conn. 19; 
 Atlantic City W. Works v. Atlantic 
 City, 39 N. J. Eq. 367, 374. Contra, 
 as to the legislature, State v. Milwau- 
 kee Gas Light Co., 29 Wis. 454. A 
 statute making water rates a charge 
 
494 THE LAW OF WATERS. [Ch. VIII. 
 
 proprietors whose rights are thereby injuriously affected. At 
 a time when the constitution of New York contained no ex- 
 press provision against taking private property for public use 
 without compensation, Chancellor Kent enjoined the trustees 
 of a village, authorized by act of the legislature to supply it 
 Avith water, from diverting a watercourse for this purpose, 
 because the act made no provision for compensation. 1 If the 
 water is abstracted by a water-works company under public 
 authority, a riparian owner below is entitled to compensation 
 for the injurious effect upon the stream, as well as for such 
 parts of his land as may be taken ; 2 and if a part of the peti- 
 tioner's land is taken by a city for a storage reservoir, he is 
 entitled to recover not only compensation for the land taken, 
 but also for the diminution in value of the remainder of the 
 lot, and it is competent for him to prove any fact which tends 
 to show that the maintenance of the reservoir will impair the 
 value of the entire lot of which it is a part. 3 The diversion 
 of the water from a natural stream by means of an artificial, 
 well, into which the water of the river percolates, is a taking 
 of the water for which damages are recoverable. 4 The fact 
 that a city owns land adjoining a stream does not authorize it 
 to supply itself with water therefrom by means of water-works 
 at a distance of several miles, and it can lawfully take, with- 
 out compensating the other riparian owners, no more of the 
 water than would supply the family of one such owner. 5 If a 
 
 upon lands in a municipality prior to Yeovil, 1 C. P. D. 691; 2 id. 99; Way- 
 
 the lien of all incumbrances does not land v. County Com'rs, 4 Gray, 500; 
 
 violate the 14th Amendment to the Fayt>. Salem Aqueduct Co., Ill Mass. 
 
 U. S. Constitution, declaring that no 27; Butler H. R. Co. v. Newark, 61 
 
 State shall deprive any person . of N. J. L. 32. 
 
 property without due process of law. 3 Johnson v. Boston, 130 Mass. 452. 
 
 Provident Inst'n v. Jersey City, 113 4 Bailey v. "Woburn, 126 Mass. 416; 
 
 U. S. 506. JEtna, Mills v. Waltham, id. 422 ; ^Etna 
 
 ■Gardner v. Newburgh, 2 Johns. Mills u Brookline, 127 Mass. 69; Cow- 
 
 Ch. 162. See Meyers v. St. Louis, 8 drey v. Woburn, 136 Mass. 409; Smith 
 
 App. 266, 275 ; Eaton v. Boston R. Co., v. Brooklyn, 46 N. Y. S. 141 ; Stoughton 
 
 51 N. H. 504, 510; Staton v. Norfolk v. Paul, 174 Mass. 148; Emporia v. 
 
 & C. R. Co. (N. C), 17 L. R A. 838, Soden, 25 Kansas, 588; post, § 281. 
 
 and note. 5 Swindon Waterworks v. Wilts & 
 
 2 Ibid.; Wilts Canal Co. v. Swindan Berks Canal, L. R. 7 H. L. 697; L. R. 
 
 Waterworks Co., L. R. 9 Ch. 451; 9 Ch. 451; Owen v. Da vies, Weekly 
 
 Bush v. Trowbridge Waterworks Co., Notes (1874), p. 195; Stainton v. Wool- 
 
 10 Ch. 459; L. R. 19 Eq. 291; Stone v. rych, 23 Beav. 225; 28 L. J. (Ch.) 300; 
 
§ 245.] 
 
 EMINENT DOMAIN. 
 
 495 
 
 statute merely provides a remedy for water taken for public 
 use, it is not to be construed as conferring power to take the 
 water; 1 but a statute which, authorizes the taking: of lands and 
 water for public use, does not limit the right in extent or to- 
 one proceeding, nor is it exhausted by a single exercise of the 
 power conferred. 2 Where an act, which authorized a city to 
 build water-works, provided that no application for damages 
 for taking the water should be made until the water was act- 
 ually diverted, and that any person whose water rights were 
 thus affected might apply for damages within one year from 
 the time when the water was first actually withdrawn, it was 
 held that a mill-owner who suffered no serious inconvenience 
 from the diversion until after the expiration of the year, was 
 not entitled to apply thereafter for damages caused by an ad- 
 ditional diversion, being entitled, at the start, to compensation* 
 for the entire capacity of the works to take. 3 Damages occa- 
 sioned by the taking to supply a city are estimated as of the 
 time of the taking, and are occasioned by the quantity of 
 water, the right to divert which is taken, irrespective of the 
 amount actually diverted. 4 
 
 Hall v. Ionia, 38 Mich. 493. See 
 §§ 148, note, 205 above. So of a local 
 authority in England. Roberts v. 
 Gwyrfai Rural Council, [1899] 2 Ch. 
 608. Upon a bill for an injunction 
 in such a case, the silence of the com- 
 plainant during the erection of the 
 water-works would not constitute an 
 equitable estoppel, as he had a right 
 to presume that the defendant's use 
 of the stream would not exceed the 
 legitimate quantity. Acquackanonk 
 Water Co. v. Watson, 29 N. J. Eq. 366; 
 Anaheim Water Co. v. Semi-Tropic 
 Water Co., 64 Cal. 185. 
 
 'Howe v. Norman, 13 R I. 488; 13 
 Rep. 155. As to the right to main- 
 tain a common-law action, when the 
 right of eminent domain has not 
 been exercised, see Irving v. Media 
 (Penn.), 45 Atl. Rep. 482. 
 
 2 Johnson v. Utica W. W. Co., 67 
 Barb. 415. 
 
 3 Ipswich Mills v. County Com'rs, 
 108 Mass. 363. Cf. Davis v. New Bed- 
 
 ford, 133 Mass. 549. The year begins 
 from the actual taking, not from a 
 vote to take. Goff v. Pawtucket, 13 
 13 R. I. 471; see Northborough v> 
 County Com'rs, 138 Mass. 263. The 
 water- works of a city, being held for 
 public use, are not liable to execu- 
 tions upon judgments for its ordinary 
 debts. New Orleans v. Morris, 105 
 U. S. 600. 
 
 4 Howe v. Weymouth, 148 Mass. 
 604; Smith v. Concord, 143 Mass. 253; 
 Cowdrey v. Woburn, 136 Mass. 409; 
 Mtna, Mills v. Waltham, 126 Mass. 
 422. In Massachusetts, when a town 
 is authorized by statute to take the 
 waters of a great pond for its water- 
 works, and makes a taking of the 
 whole water of the pond, it is to pay 
 damages as if the whole were actually 
 to be diverted under the statute; it 
 being not the amount diverted or 
 likely to be diverted, but the amount 
 described in the certificate of tak- 
 ing, that is assumed to be lost to the 
 
496 
 
 THE LAW OE WATERS. 
 
 [OH. VIII. 
 
 § 245a. As municipal corporations can only levy taxes under 
 express authority from the legislature, a city charter which 
 empowers the board of aldermen to provide water for the city 
 does not authorize the levy and collection of taxes for that pur- 
 . pose. 1 A bona fide and reasonable agreement between a city 
 and a water company for supplying water for a term of years 
 is not against public policy, nor is it invalid because it exempts 
 the company from taxation. 2 When a charter is granted to a 
 private water-works company, it does not confer an exclusive 
 privilege, unless that is granted in express terms, to supply 
 water. 3 Hence a city, though bound by its express agreements, 
 is not precluded from constructing and maintaining its own 
 water-works, or contracting with another water company, by 
 the fact that a private company has a franchise to supply it with 
 water, or by its having encouraged such company to obtain a 
 charter and to incur expense in constructing its works and lay- 
 ing its pipes ; nor is the city bound to condemn such company's 
 works in preference to building new works. 4 
 
 mill owner. iEtna Mills v. Waltham, 
 126 Mass. 422; Howe v. Weymouth, 
 148 Mass. 604; Kockport v. Webster, 
 174 Mass. 885, 392. The right of a 
 water company to take a limited 
 amount of water is not affected, as 
 to the paid riparian owners, by its 
 using the water for other purposes. 
 Hamor v. Bar Harbor W. Co., 93 
 Maine, 364. 
 
 1 Edgerton v. Goldsboro W. Co. 
 <N. C), 35 S. W. Rep. 243. As to the 
 meaning of " water-works," see West 
 Surrey W. Co. v. Chertsey Union, 
 [1894] 3 Ch. 513; Cleveland W. Co. v. 
 Redcar Local Board, [1895] 1 Ch. 168. 
 As to a water company being a 
 ■" manufacturing corporation,'' see 
 Cuyler v. City Power Co., 74 Minn. 22. 
 When a town is empowered by stat- 
 ute to take and hold land "by pur- 
 chase or otherwise " for water-works 
 it can acquire a right by prescrip- 
 tion. Smith v. Lincoln, 170 Mass. 
 488, 489. 
 
 2 Maine W. Co. v. Waterville 
 (Maine), 45 Atl. Rep. 830. 
 
 3 Stein v. Bienville Water Supply 
 Co., 141 U. S. 67; Rayburn W. Co. v. 
 Armstrong W. Co., 30 Pitts. L. J. n. s. 
 239. That an exclusive right to main- 
 tain water-works may be invalid as 
 a '• monopoly," see Thrift v. Elizabeth 
 City, 122 N. C. 31. See ante, § 146, n. 
 For canal and water-works much 
 liberty and discretion are allowed in 
 , determining the amount of water to 
 be appropriated, though not for im- 
 mediate use. Kaukauna W. P. Co. 
 v. Green Bay, etc. Co., 142 U. S. 254; 
 State v. Newark, 54 N. J. L. 62; Barre 
 W. Co. v. Carnes, 65 Vt. 626; Fre- 
 mont v. June, 8 Ohio Cir. Ct. 124. See 
 Santa Cruz v. Enright, 95 CaL 105; 
 Aliso W. Co. v. Baker, id. 268; St. 
 Louis, etc. R Co. v. Foltz, 52 Fed. 
 Rep. 627. As to storage basins, see 
 Johnson v. Boston, 130 Mass. 452. 
 
 4 Skaneateles W. W. Co. v. Skan- 
 eateles, 161 N. Y. J54; Thomas v. 
 Grand Junction, 13 Col. App. 80; 
 North Springs W. Co. v. Taooma 
 (Wash.), 58 Pac. Rep. 773; 47 L. R. A. 
 214, and note; Los Angeles v. Los 
 
§ 245a. J EMINENT DOMAIN. 497 
 
 A municipal corporation is under no liability to supply water 
 for the extinguishment of fires, even When it has a contract for 
 such supply with a water company. 1 If it maintains its own 
 water-works, it is not liable to its inhabitants if they are insuffi- 
 cient to extinguish fires. 2 In North Carolina it is held that a 
 water company agreeing with a city to supply water for the 
 extinguishment of fires is liable directly to an inhabitant of 
 the city whose property is burned because of its failure to sup- 
 ply sufficient water. 3 Quite generally elsewhere it is held that 
 a water company is not liable to the owner upon such contract 
 for the loss of his property by fire. 4 The legislature may pro- 
 tect a water supply from pollution; 5 but a water company is 
 not an insurer of the purity of the water supplied by it; it is 
 liable if it knows that it is dangerous, but a consumer, who also 
 has such knowledge when he uses it, cannot recover if injured 
 thereby. 6 A city is not liable if injury is caused without its 
 knowledge, or negligence on its part, by the impurity of the 
 water in a free public well. 7 
 
 A water company, though a^wm'-public corporation, required 
 to supply applicants without discrimination, may require them 
 to pay in advance; being such a corporation, it must, like a 
 
 Angeles City W. Co., 124 Cal. 368. As 13; House v. Houston W. W. Co., 88 
 to municipal ownership in water- Tex. 233; Waco Artesian W. Co. v. 
 works in Pennsylvania, see 37 Am. Cauble, 19 Tex. Civ. App. 417; 18 Am. 
 L. Reg. sr. s. 155. L. Rev. 380; 34 Am. L. Reg. N. s. 444. 
 i Planters' Oil Mill v. Monroe W. 5 state v. Streeper, 5 N. J. L. J. 115. 
 W. & Light Co. (La.), 27 S. Rep. 684. See State v. Griffin (N. H.), 41 L. R. 
 ' 2 Springfield F. & M. Ins. Co. v. A, 177 and note. In Massachusetts 
 Keeseville, 148 N. Y. 46; Lenzen v. bathing in water-supply ponds is pun- 
 New Braunfels, 13 Tex. Civ. App. ishedbyfine. St. 1884, ch. 172. Cities 
 335. See 9 Harv. L. Rev. 475. and towns situated in the same 
 
 3 Gorrell v. Greensboro Water Sup- water-shed may contract with each 
 ply Co., 124 N. C. 328; Knappman other for a sewer or system of sewers 
 Whiting Co. v. Middlesex W. Co. to protect any part of the source of 
 <N. J.), 45 Atl. Rep. 692. See Paducah their water supply from pollution. 
 Lumber Co. v. Paducah W. S. Co., 89 Mass. St. 1888, ch. 160. The State board 
 Ky. 340; Grand Junction W. Co. v. of health has jurisdiction to preserve 
 Grand Junction (Col. App.j, 60 Pac. the purity of a water supply, streams 
 Rep. 196. and ponds. St. 1890, ch. 441. 
 
 4 See Britton v. Green Bay W. Co., 6 Green v. Ashland W. Co., 101 Wis. 
 SI Wis. 48; Saunders v. Bluefield W. 258. 
 
 W. Co., 58 Fed. Rep. 133; Boston S. ?Danaher v. Brooklyn, 119 N. Y. 
 B. Co. v. Salem W. Co.. 94 id. 238; 241. 
 Mott v. Cherryvale W. Co., 48 Kan. 
 32 
 
498 THE LAW OF WATEKS. [Ch. YIIL 
 
 common carrier, satisfy without discrimination the demands of 
 applicants, but may adopt reasonable rules entitling it to cut 
 off the supply from those who do not pay the water rates. 1 
 A water company's unpaid bill is not a charge upon the land, 
 unless made so by statute, so as to justify its refusal to supply 
 water to a subsequent tenant. 2 The rates of a water company 
 must be reasonable; if they are not, they may be made so and 
 fixed by the public authorities or by the court. 3 
 
 § 246. Taking of public waters. — In the case of public 
 rivers, where the proprietors of the adjacent lands own 
 only to the water's edge, the riparian right to have the water 
 flow past their lands in its natural course and quantity does 
 not depend upon title to the soil under water, and, being itself 
 a right of property, cannot be taken away or impaired with- 
 out compensation. 1 This rule is supported by recent decisions,* 
 and adopted in Missouri. 6 It applies to the navigable fresh 
 rivers of New York, 7 with the exception that the riparian 
 owners upon the Mohawk River are not, by certain decisions, 
 entitled to damages for any diversion or use of the waters of 
 that river by the State. 6 In Pennsylvania, riparian owners of 
 land adjoining its large navigable rivers have not title to the- 
 river or any right to divert its waters without license from the 
 
 1 Harbison v. Knoxville W. Co. rights, without compensation. D» 
 (Tenn. Ch. App.), 53 S. W. Rep. 993. Camp v. Thompson, 44 N. Y. S. 1014; 
 
 2 Turner v. Revere Water Co., 171 see Allison v. Davidson (Tenn.), 39 S. 
 Mass. 329 ; Griffin v. Goldsboro Water W. Rep. 905. 
 
 Co., 122 N. C. 206. 5 Yates v. Milwaukee, 10 Wall. 504; 
 
 3 See Osborne v. San Diego Land Pumpelly v. Green Bay Co., 13 WalL- 
 Co., 20 Sup. Ct. Rep. 860; Los Angeles 166; Morrill v. St. Anthony Water 
 v. Los Angeles City W. Co., 177 U. S. Power Co., 26 Minn. 222. 
 
 558; Janvrin, Petitioner, 174 Mass. 6 Meyers v. St. Louis, 8 Mo. App- 
 
 514; Warsaw W. W. Co. v. Warsaw, 266; Myers v. St. Louis, 82 Mo. 367 
 
 161 N. Y. 176; Skaneateles W. W. Co. (sediment). 
 
 v. Skaneateles, id. 154; Danville v. 7 Commissioners v. Kempshall, 26 
 
 Danville W. Co., 180 111. 235; Agua Wend. 404; People v. Canal Apprais- 
 
 Pura Co. v. Las Vegas (New Mex.), 60 ers, 13 Wend. 371; 17 Wend. 616;. 
 
 Pac. Rep. 208. . Ex parte Jennings, 6 Cowen, 518;. 
 
 4 As to public ponds and lakes, see Chenango Bridge Co. v. Paige, 83 N. 
 ante, § 84. As to the power of a Y. 178; 8 Hun, 292. 
 
 State to divert an interstate river, 8 People v. Canal Appraisers, 33 N- 
 
 see 8 Harv. L. Rev. 138. A river can- Y. 461; Crill v. Rome, 47 How. Pr. 
 
 not be declared a public highway 398 ; ant e, § 57. 
 and improved, so as to injure riparian 
 
§ 247.] 
 
 EMINENT DOMAIN. 
 
 499 
 
 State. 1 A wrongful diversion of the water from these rivers 
 does not affect the title to the bed of the stream, which is pub- 
 lic property; 2 and even a grant by the legislature of the exclu- 
 sive right to the water power of a navigable stream is revocable 
 at the pleasure of the State, when the use of the water is re- 
 quired for the public. 3 The power to control these rivers, 
 retained by the State, is held to be sufficient to enable it to di- 
 vert, without compensation, the water for public improvements, 
 either by its own act or by corporations created for that pur- 
 pose. 4 In Massachusetts, riparian proprietors upon a great pond 
 cannot maintain a claim for damages for the diversion of water 
 therefrom by an aqueduct company under legislative authority. 5 
 And the same is held in Wisconsin with respect to the diver- 
 sion of water from a navigable fresh river. 6 
 
 §247. Levees. — The construction of levees for the protec- 
 tion of navigation, and of districts from overflow, is a public 
 use, 7 or, at least, an exercise of the police power; 8 and the leg- 
 islature may impose, special assessments 9 on districts or indi- 
 
 l Ante, § 65; Rundle v. Delaware 
 Canal Co., 14 How. 80; 1 Wall. Jr. 275. 
 
 2 Ibid. 
 
 3 Ibid. ; Mayor v. Com'rs, 7 Penn. St. 
 348; and authorities in next note. 
 
 4 Carson v. Blazer, 2 Binney, 475; 
 Monongahela Nav. Co. v. Coons, 6 
 Watts & S. 101; Shrunk v. Schuyl- 
 kill Nav. Co., 14 S. & E. 71; Susque- 
 hanna Canal Co. v. Wright, 9 Watts 
 & S. 9; McKeen v. Delaware Division 
 Canal Co., 49 Penn. St. 424; Philadel- 
 phia v. Collins, 68 Penn. St. 106; Phila- 
 delphia v. Gilmartin, 71 Penn. St. 140; 
 Rundle v. Delaware Canal Co., 14 
 How. 80; 1 Wall. Jr. 275. 
 
 5 Fay v. Salem Aqueduct Co., Ill 
 Mass. 27; Pickman v. Peabody, 145 
 Mass. 480. 
 
 6 Black River Impr. Co. v. La Crosse 
 Booming Co., 54 Wis. 659; ante, § 75. 
 
 1 Ante, § 35; Richardson v. Levee 
 Com'rs, 68 Miss. 539. 
 
 8 Morrison v. Morey, 146 Mo. 543. 
 
 »Baro v. Phillips Co., 4 Dillon, 216; 
 Rouse v. Hampton, 4 Am. L. T. (U. S. 
 Cts.) 195; Eldridge-y. Trezevant, 160 
 
 U. S. 452; Tide Water Co. v. Coster, 
 21 N. J. Eq. 519; Hoagland v. Wurts, 
 41 N. J. L. 175; 42 id. 553; 39 id. 197, 
 433; 114 U. S. 606; Teegarden v. Ra- 
 cine, 56 Wis. 545; Still well v. Glass- 
 cock, 91 Mo. 658; Chaffe v. Trezevant, 
 38 La. Ann. 746; Memphis Land Co. v. 
 St. Francis Levee District, 64 Ark. 258. 
 A levee district, which exercises gov- 
 ernmental functions within the dis- 
 trict's a public corporation, although 
 the statute may not expressly declare 
 it to be a corporation. Dean v. Davis, 
 51 Cal. 506. See American Stave Co. 
 v. Butler County, 93 Fed. Rep. 301. 
 Under a statute, the object of which 
 is the drainage of lands for agricult- 
 ural and sanitary purposes, the con- 
 struction of a levee several miles 
 along a river is not auxiliary to the 
 system of drainagei Updike v. 
 Wright, 81 111. 49. The right to pro- 
 ceed under a particular act is juris- 
 dictional, and must be pleaded. Rec- 
 lamation District v. Kennedy, 58 
 Cal. 124; Swamp Land District v. 
 Haggin, 64 Cal. 204. See State v. 
 
500 
 
 THE LAW OF WATERS. 
 
 [On. VIII. 
 
 viduals, 1 or authorize the issuance of bonds, for the purpose of 
 buildings them. 2 In Louisiana, where extensive inundations 
 frequently occur, it is held that the State has power to require 
 a riparian proprietor to construct levees without further com- 
 pensation than the increased value thereby given to his land, 3 
 and that if he fails to do so, the levee may be kept up at his 
 expense ; that it may tax front and rear proprietors in propor- 
 tion to the benefit received by each from a levee which affords 
 them all protection; * and that it may take as much land as is 
 necessary for the construction of these works. 5 In this State, 
 the banks of navigable rivers are subject to a servitude for the 
 
 Duffel, 41 La. Ann. 557; Excelsior 
 Planting Co. v. Green, 39 id. 455; 
 Prescott v. McNamara, 73 Cal. 236; 
 Lambert v. Mills County, 58 Iowa, 
 666; Richman v. Muscatine County, 
 70 id. 627; Freeman v. Weeks. 48 
 Mich. 255; Chapman v. Clark, 49 id. 
 305. 
 
 1 Chambliss v. Johnson, 77 Iowa, 
 ,611. 
 
 2 Woodruff v. State, 66 Miss. 298; 
 Bunch v. Wolerstein, 62 Miss. 56; 
 Woodruff v. State (77 Miss.), 25 S. 
 Rep. 483. 
 
 3 Lyons v. Hinckley, 12 La. Ann. 
 655: Cowley v. Copley, 2 id. 329. See 
 Grant v. McDonogh, 7 id. 447; Han- 
 son v. Lafayette, 18 id. 285; Tardos 
 v. Jefferson, 22 id. 58; State v. Clin- 
 ton, 26 id. 564; Bass v. State, 34 id. 
 494; Bouligny v. Dornenon, 2 Martin, 
 N. S. 455. In Hollingsworth v. Ten- 
 .sas, 4 Woods, 280; 17 Fed. Rep. 109, 
 the case of Bass v. State was consid- 
 ered, and it was held that private 
 lands cannot be taken or damaged 
 for levees without compensation, 
 either under the police power or the 
 right of eminent domain. But see 
 Eldridge v. Trezevant, 160 U. S. 452; 
 see Reelfoot L. L. District v. Daw- 
 son, 97 Tenn. 151; 20 A. G. Op. (U. S.), 
 
 .635. 
 
 4 De Ben v. Gerard, 4 La. Ann. 30; 
 Lepretre v. General Council. 8 La. 
 .Ann. 22; Police Jury v. McDonogh, 
 
 10 id. 395; 7 Martin, 8; Beard v. Mo- 
 rancy, 2 La. Ann. 347; Barataria Co. 
 v. Field, 17 id. 421 ; Lepretre v. New 
 Orleans, 10 id. 112; State v. Mer- 
 chants' Ins. Co., 12 id. 802; Jamison 
 v. New Orleans, id. 346; Yeatman v. 
 Crandall, 11 id. 220; Matter of New 
 Orleans Draining Co., id. 338; Selby 
 v. Levee Com'rs, 14 id. 434; AVallace 
 v. Sheldon, id. 498; Mason v. Police 
 Jury, 9 id. 368; Police Jury v. Huie, 
 2 id. 887; State v. Maginnis, 26 id. 
 558; Levee Com'rs v. Lorio, 33 id. 
 276; Pontchartrain R. Co. v. Levee 
 Com'rs, 49 id. 570. 
 
 6 Zenor v. Concordia, 7 La. Ann. 
 150; Yeatman v. Crandall, 11 id. 220; 
 Cash v. Whitmore, 13 id. 40i; Hun- 
 sicker v. Briscoe, 12 id. 169; Dubose 
 v. Levee Com'rs, 11 id. 165; Police 
 Jury v. Bozman, 11 id. 94; Mithoff v. 
 Carrollton, 12 id. 185; Inge v. Police 
 Jury, 14 id. 117; O'Reilley v. Oakey, 
 4 id. 22; Smith v. Buhler, 11 id. 98; 
 Levee Com'rs v. Johnson, 66 Miss. 
 248; Hart v. Levee Com'rs, 54 Fed. 
 Rep. 559; Levee Inspectors v. Crit- 
 tenden, 94 id. 613. See New Orleans 
 v. Carondelet Canal Co., 42 La. Ann. 
 6; Wilkinson v. Langridge, 51 id. 189; 
 Pickles v. McLellan Dry Dock Co., 
 38 id. 412; Booksh v. Dardenne, 36 
 id. 342; Eager v. New Orleans, id. 933; 
 Levee Com'rs v. Allen, 60 Miss. 93; 
 Cage v. Trager, id. 563; Levee Com'rs 
 v. Harkleroads, 62 id. 807. 
 
§ 2A7.] EMINENT DOMAIN. 501 
 
 public use, 1 and no prescriptive right can there be gained 
 against the public. 2 Every owner of land adjacent to such 
 rivers is bound to leave sufficient space for levees, roads and 
 other public works. 3 The law concerning the taking of private 
 property for public use does not apply to such lands upon the 
 banks of navigable rivers as may be found necessary for levee 
 purposes, and no arbitrary limit is fixed by law as to the max- 
 imum distance at which a levee may be placed back of a caving 
 bank; 4 but if the public safety requires the construction of a 
 levee upon land on which buildings have been erected at the 
 time when no immediate servitude was due to the public, and 
 the buildings are demolished for that purpose, the land-owner is 
 entitled to compensation for the buildings according to their 
 value at the time they are taken by the public. 5 In Pennsyl- 
 vania, it is held that the State may, in the interest of naviga- 
 tion, confine the water by erecting embankments between the 
 high and low-water mark of a public river, without compensa- 
 tion to a riparian proprietor; that the private interests of 
 others do not justify embanking at his expense, and that when 
 the State has made the improvement and left it in the land- 
 owner's possession, he is bound to keep it in repair. 6 In Cali- 
 fornia, a reclamation district which maintains a levee along a 
 river bank is not liable in damages when the effect is to throw 
 the water on land lower down and upon the opposite side of the 
 river. 7 But, in general, in other States, the construction of a 
 levee through private land for the advantage of the public is- 
 a matter requiring compensation to the land-owner. 8 
 
 1 Ibid.; Peart v. Meeker, 45 La. ' 4 Dubose v. Levee Com'rs, 11 La. 
 
 Ann. 431; ante, § 99. Contra, in Ann. 165; Mithoff v. Carrollton, la 
 
 Arkansas. Levee Inspectors v. Crit- id. 185. 
 
 tenden, 94 Fed. Eep. 613. 5 Mithoff v. Carrollton, 12 La. Ann. 
 
 2 La. Ice Manuf. Co. v. New Or- 185. 
 
 leans, 43 La. Ann. 217. 6 Philadelphia v. Scott, 81 Penn. St. 
 
 3 Hanson v. Lafayette, 18 La. 295. 80; Rutherford v. Maynes, 97 id. 78. 
 In Louisiana, the space which is to See 11 Harv. L. Rev. 344. 
 
 be left for public use by the adjacent 7 Lamb v. Reclamation District, 73 
 
 proprietors upon the shores of navi- Cal. 125. See Reclamation District 
 
 gable rivers for roads and levees, is a v. Turner, 104 Cal. 334 
 
 servitude imposed by law, of which 8 Horton v. Hoyt, 11 Iowa, 496; Peo- 
 
 purchasers are bound to know the pie v. Nelson, 133 111. 565; Gifford D. 
 
 existence, and form no cause for re- District v. Shroer, 145 Ind. 572; Smith 
 
 fusing to pay the price. Bourg v. v. Carlow, 114 Mich. 67. 
 Niles, 6 La. Ann. 77. 
 
502 
 
 THE LAW OF WATEKS. 
 
 [Ch. VIII. 
 
 §248. Consequential injuries. — It is within the power of 
 the legislature to change or obstruct the course of public 
 waters as the public convenience may require. 1 Those upon 
 whom authority is conferred for this purpose are not liable 
 for consequential injuries resulting from their acts, 2 but can- 
 not trespass upon or cut a channel through private lands with- 
 out making compensation for the land so taken. 3 When the 
 nvork is of a purely public character, such as the protection of 
 the country from inundation, the agents of the public, when 
 acting within the scope of their powers, are not liable for 
 mere errors of judgment or for injuries which do not amount 
 to a taking of property for public use. 4 The Bristol Dock 
 Company, being authorized by act of Parliament to improve 
 and complete the harbor of Bristol, caused such a deteriora- 
 tion of the water of the public river Avon, in the execution 
 of their works, that the owners of a brewery, who had been 
 accustomed to use the water in their business, were deprived 
 
 'Spring v. Russell, 7 Maine, 273; 
 Carson v. Coleman, 11 N. J. Eq. 106, 
 525; People v. St. Louis, 5 Gilman, 
 
 Penn. St. 254; Freeland v. Penn. E. 
 Co., 66 id. 91. A corporation has 
 been held not liable for damages re- 
 
 351 ; MoKernan v. Indianapolis, 38 suiting from an act which is ultra 
 
 Ind. 233; McMahon v. Council Bluffs, 
 
 12 Iowa, 268; Green v. Swift, 47 Cal. 
 
 536; Commissioners v. Withers, 29 see post, § 260. "The acts that a 
 
 vires. Wheeler v. Essex Public Road 
 Board, 39 N. J. L. 291. Sed qucere, 
 
 Miss. 21. 
 
 2 Ibid.; Alexander v. Milwaukee, 
 16 Wis. 247; Thompson v. Andros- 
 coggin Co., 54 N. H. 545; Arnold v. 
 Hudson River R Co., 49 Barb. 108; 
 Clark v. Saybrook, 21 Conn. 313; 
 Rogers v. Kennebec R. Co., 35 Maine, 
 319; Sumner v. Richardson Lake Co., 
 71 id. 106; Brooks v. Cedar Brook 
 Imp. Co., 82 id. 17; Tyson v. Commis- 
 sioners, 28 Md. 510; Radcliff v. Brook- 
 
 legislature may authorize, which, 
 without such authorization, would 
 constitute nuisances, are those which 
 affect public highways or public 
 streams, or matters in which the 
 public have an interest and over 
 which the public have control. The 
 legislative authorization exempts 
 only from liability to suits, civil or 
 criminal, at the instance of the State ; 
 it does not affect any claim of a pri- 
 
 lyn, 4 N. Y. 195; People v. Albany, 5 vate citizen for damages for any 
 
 Lans. 524; St. Louis Ry. Co. v. Wal- 
 brink, 47 Ark. 330. Of. Young v. 
 
 special inconvenience and discomfort 
 not experienced by the public at 
 
 Grand River Nav. Co., 12 Q. B. (Can.) large." Field, J., in Baltimore R. Co. 
 
 75; Phelps v. Same, id. 245; Neally v. 
 Bradford, 145 Mass. 561; Whetton v. 
 Clayton, 111 Ind. 360; De Baker v. 
 So. Cal. Ry. Co., 106 Cal. 257. 
 
 v. First Baptist Church, 108 U. S. 317; 
 332. 
 
 * Rex v. Pagham, 8 B. & C. 355; 
 Green v. Swift, 47 Cal. 536; Hollister 
 
 3 Carson v. Coleman, 11 N.J. Eq. v. Union Co., 9 Conn. 436. A county 
 106, 525; Hamilton v. Fond du Lac, is not liable for the act of a road 
 40 Wis. 47 ; Woodward v. Webb, 65 overseer in so placing the abutment 
 
■§ 248a.] 
 
 EMINENT DOMAIN. 
 
 5u3 
 
 of this benefit. It was held that the injury was common to all 
 the king's subjects, and that the only remedy was by indict- 
 ment, which in this case was taken away by the act of Parlia- 
 ment. 1 Where the legislature authorized the channel of a river 
 to be turned or straightened for the protection of a city, and 
 this being done at a point where the river emptied into another 
 river, the current of the first stream destroyed land upon the 
 -opposite side of the river into which it emptied, it was held 
 that such land was not taken for public use, and that the com- 
 missioners charged with the execution of the work were not 
 liable for the injury. 2 
 
 § 248a. Same. — If the piers of a bridge, which is authorized 
 by the legislature, change tidal currents, a littoral proprietor 
 is not entitled to recover the expense of structures necessary 
 to protect his land. 3 " It is incident," says Shaw, C. J., 4 " to 
 
 of a bridge that riparian land is 
 washed away. Crowell v. Sonoma 
 County, 35 Cal. 313. 
 
 i King v. Bristol Dock Co., 12 East, 
 439. In Dixon v. Metropolitan Board 
 of Works, 7 Q. B. D. 418, the defend- 
 ants, under the powers conferred 
 upon them by Parliament, properly 
 constructed a sewer, having its out- 
 fall into a certain creek above the 
 plaintiff's wharf, which it was the 
 duty of the person in charge of it to 
 open when the water rose to a cer- 
 tain height reached only in heavy 
 rainfalls. At the time of an excep- 
 tionally heavy rain, the gates were 
 opened in order to prevent the flood- 
 ing of a large district, and, the rain 
 increasing in violence, the rush of 
 water from the sewer carried away 
 a part of the plaintiff's wharf with a 
 barge moored thereto and the cargo 
 on board. It was held that, though 
 the injury was caused by opening 
 the water-gates, and not by the act 
 of God, and the defendants were 
 prima facie liable for the damage 
 done, yet as they were a public body 
 acting in the discharge of a public 
 duty, and the injury was the inevi- 
 table result of the authority given by 
 
 Parliament, they were not liable. 
 See Nitro-Phosphate Co. v. London 
 Docks Co.. 9 Ch. D. 503; Chapman v. 
 Fylde W. Co., [1894] 3 Q. B. 599; Green 
 v. Chelsea W. Co., 70 L. T. 547; ante, 
 §161. 
 
 2 Green v. Swift, 47 CaL 536. This 
 was prior to the California constitu- 
 tion of 1879. Green v. State, 73 CaL 
 39: 11 Pac. Rep. 603; Hoagland v. 
 State, 80 Cal. 500; 33, Pac. Rep. 143. 
 See Parker v. Atchison, 58 Kansas, 
 29. If a city, by statute, extends a 
 dike into a boundary river between 
 States, uninjured land-owners on the 
 opposite shore cannot complain. 
 Rutz v. St. Louis, 3 McCrary, 261; 2 
 id. 344; St. Louis v. Rutz, 138 U. S. 
 336. 
 
 3 Fitchburg R. Co. v. Boston & 
 Maine Railroad, 3 Cush. 58, 88; Hol- 
 lister v. Union Co., 9 Conn. 436; Bor- 
 chardt v. Wausau Boom Co., 54 Wis. 
 107. 
 
 * Fitchburg R. Co. v. Boston & 
 Maine Railroad, 3 Cush. 58, 88; Da- 
 vidson v. Boston & Maine Railroad, 3 
 Cush. 91 ; Thayer v. New Bedford R 
 Co., 135 Mass. 353; O'Brien v. Nor- 
 wich Railroad, 17 Conn. 372. 
 
504: THE LAW OF WATEES. [Ch. VIII. 
 
 the power of the legislature to regulate a navigable stream, so 
 as best to regulate the public convenience; and if, in so doing, 
 some damage is done to riparian proprietors, and some in- 
 creased expense thrown upon them, it is damnum absque in- 
 juria." It is also held in Vermont that if necessary erections 
 by a railroad company upon the bed of a fresh-water stream 
 cause such a change in the current that the land of a riparian 
 proprietor below is gradually washed away, such proprietor 
 cannot maintain an action for this injury, whether the erec- 
 tions were skilfully made or not ; x but in view of the decis- 
 ions elsewhere this doctrine would appear to be doubtful, if 
 applied to a case where the injury could be well avoided and 
 is clearly the result of unskilfulness or negligence. 2 In Trans- 
 portation Co. v. Chicago, 3 the Supreme Court of the United 
 States held that acts done in making public improvements, 
 which do not invade upon private property, are not a taking 
 for which compensation must be made, and that the plaintiff 
 company which owned a lot in Chicago, with dock and wharf 
 privileges, was not entitled to recover from the city damages 
 caused by obstructing a neighboring street and the Chicago 
 River by the construction of a bridge or tunnel across the river. 
 Much, however, depends upon the language of the particular 
 statute, and if that provides for damages to land "injuriously 
 affected," or for property " taken, injured, or destroyed," larger 
 damages may be awarded than for a simple taking. 4 
 
 1 Henry v. Vermont Central R. Co., rell, 51 Ind. 425; Easton v. Boston E. 
 30 Vt. 638 ; Norris v. Vermont Central Co., 51 N. H. 504. 
 
 B. Co., 28 Vt. 99; Chicago, etc. R Co. 3 99 U. S. 635; Gibson v. United 
 
 v. Moffitt, 75 I1L 524. The case is to States, 166 U. S. 269; Weis v. Madi- 
 
 be distinguished from direct injuries son, 75 Ind. 241; New London W. 
 
 like the flooding of land by back- Board v. Perry, 69 Conn. 461; ante,. 
 
 ■water or diversion. Ante, § 122. § 150. So of obstructing tidal flow 
 
 2 See Fowle v. New Haven Co., 107 and checking drainage. Mills v. 
 Mass. 352; 112 Mass. 334; Evansville United States, 46 Fed. Eep. 738. 
 
 E. Co. v. Dick, 9 Ind. 433, and note; «See infra, §§ 250, 252; Fredericks 
 
 Cobb v. Illinois & St. Louis E. Co., 68 v. Pennsylvania Canal Co., 148 Penn. 
 
 111. 233; Spencer v. Hartford E. Co., St. 317; Payne v. Kansas City, etc. 
 
 10 E. I. 14; Stone v. Augusta, 46 Ey. Co., 112 Mo. 6; Nicholson uGetch- 
 
 Maine, 127; Topsham v. Lisbon, 65 ell, 96 Cal. 394. As to the damages 
 
 id. 449; Hartshorn v. Chaddock, 135 allowed for gwasi-nuisances, such as 
 
 N. Y. 116; De Baker v. So. Cal. Ey. smells, etc., caused by a sewer, see 
 
 Co., 106 Cal. 257; Williams v. Fulmer, Com. v. Taft, 158 Mass. 526, 547. 
 151 Penn. St. 405; McOsker v. Bur- 
 
§ 249.] EMINENT DOMAIN. 505 
 
 § 24:9. Same. — Mr. Justice Story doubted whether for an 
 injury to private property the owner can be denied compen- 
 sation upon the ground that it is merely consequential, 1 and 
 the doctrine, as sometimes applied, has since been declared by 
 the Supreme Court of the United States to have been carried 
 to the utmost limit. 2 Where an embankment erected on the 
 Delaware Eiver, under authority from the legislature, for the 
 purpose of preventing the flooding of neighboring meadows, 
 obstructed a right of fishery which included the right to draw 
 nets upon the shore, the Supreme Court t>f Pennsylvania held 
 the injury to be merely consequential and not ground for an 
 action. 3 This would appear to be in conflict with those decis- 
 ions in which it is held that the right of access to and from 
 navigable waters is a private right which cannot be impaired 
 without compensation.* In that State it is held that damages 
 are not recoverable for the destruction of a ford by a public 
 improvement, 5 or the loss of a spring between the high and 
 low-water mark of a tidal river; 6 and that the erection of a 
 dam for the purpose of improving the navigation of a river 
 which is public property, and thereby causing the water to 
 flow back into the plaintiff's mill-race and to injure his fall 
 and water power, are injuries which must be suffered without 
 compensation, upon the ground that every one who buys prop- 
 erty upon a navigable stream purchases subject to the supe- 
 rior right of the State to regulate and improve it for the 
 public benefit. 7 In New York, if the improvement of the 
 navigation of a public river causes the water of a tributary 
 
 1 Charles Eiver Bridge v. Warren E. Co., 21 Perm. St. 100; Re Cooling, 
 
 Bridge, 11 Peters, 420. 19 L. J. (Q. B.) 25. 
 
 2 Pumpelly v. Green Bay Co., 13 *4nfe, §149. 
 
 Wall. 166. 6 Zimmerman v. Union Canal Co., 
 
 3 Tinicum Fishing Co. v. Carter, 90 1 Watts & S. 346. 
 
 Penn. St. 85; 61 id. 21; 77 id. 310; 6 Commonwealth v. Fisher, 1 Penn. 
 
 Shrunk v. Schuylkill Nav. Co., 14 S. 462; ante, § 65. 
 
 & E. 71. Acts of incorporation are 7 McKeen v. Delaware Canal Co., 
 
 valid which do not provide for the 49 Penn. St. 424; Monongahela Nav. 
 
 payment of consequential damages, Co. v. Coons, 6 Watts & S. 101 ; Sus- 
 but if the terms of a statute author- quehanna Canal Co. v. Wright, 9 id. 
 
 izing a public improvement provide 9; Monongahela Bridge Co. v. Kirk, 
 
 for the allowance of such damages, 46 Penn. St. 112; Ueberothu Lehigh 
 
 they are to be included. Hoffer v. Coal Co., 8 Haz. Pa. Eeg. 292. See 
 Pennsylvania Canal Co., 87 Penn. St. v Minneapolis Mill Co. v. St. Paul W. 
 
 221; Eeitenbaugh v. Chester Valley Works, 56 Minn. 485; Holyoke W. P. 
 
506 
 
 THE LAW OF WATERS. 
 
 [Oh. VIII. 
 
 stream to be so much raised as to destroy a valuable mill-site 
 situate thereon, and the stream is generally navigable, although 
 not so at the mill-site, the owner is not entitled to damages 
 under the canal laws, which provide that compensation shall 
 be made for private property taken for public use. 1 Conse- 
 quential as well as direct damages are recoverable when the 
 injury is caused by a common nuisance. 2 The grantee of a 
 ferry franchise from the legislature of a State acquires, by such 
 franchise, no property in the flow of the river, and has no 
 claim to compensation for injuries caused to him by an' im- 
 provement of the river by the United States. 3 
 
 §250. Authorized injuries — Damages. — "With, respect to 
 injuries which are not the result of negligence or bad faith 
 in the execution of the powers conferred, a corporation acting 
 under public authority is presumed to act within the scope of 
 the powers granted by its charter, and the only redress for 
 such injuries is in the mode and by the means provided by 
 statute. 4 If, for example, it is essential to divert a stream in 
 
 Co. v. Connecticut River Co., 20 Fed. 
 Rep. 71. The right to maintain an 
 action for consequential damages 
 against a corporation possessed of 
 the right of eminent domain is re- 
 versed by the new constitution of 
 Pennsylvania. Reading v. Althouse, 
 '93 Penn. St. 400; Lycoming Gas Co. 
 v. Moyer, 99 id. 615. 
 
 1 Canal Appraisers v. People, 17 
 Wend. 571; 5 Wend. 423; 13 Wend. 
 355; People v. Canal Appraisers, 33 
 N. Y. 461. The noise and vibration 
 of a pumping station of water-works 
 may be ground for damages. Morton 
 v. New York, 140 N. Y. 207. 
 
 2 Hughes v. Heiser. 1 Binney, 463; 
 Pittsburgh v. Scott, 1 Penn. St. 309. 
 
 3 Mississippi River Bridge Co. v. 
 Lonergan, 91 I1L 508; 2 McCrary, 451. 
 The prospective value of land useful 
 for a ferry landing but otherwise 
 worthless, may be allowed in esti- 
 mating damages. Little Rock Ry. 
 Co. v. McGehee, 41 Ark. 202. The im- 
 pairment of a ferry is an incident of 
 
 the land appropriation, forms a part 
 of the damages, and should not be 
 presented as a separate claim. Mark 
 v. State, 97 N. Y. 572. 
 
 4 Att. Gen. v. Conservators of the 
 Thames, 1 H. & M. 1; Att. Gen. v. 
 Metropolitan Board of Works, 1 H. 
 & M. 298; Stretton's D. B. Co. v. 
 Derby, [1894J 1 Ch. 431; Mellen v. 
 Western Railroad, 4 Gray, 301 ; Lath- 
 rop v. Grosvenor, 10 Gray, 52; Ashby 
 v. Eastern Railroad, 5 Met. 368; Ste- 
 vens v. Middlesex Canal, 12 Mass. 466; 
 Brewer v. Boston R. Co., 113 Mass. 52; 
 Hull v. Westfield, 133 Mass. 433; Dick- 
 inson v. Amherst W. Co., 139 Mass. 
 210; Boston Belting Co. v. Boston, 
 149 Mass. 44; 152 Mass. 307; Spring 
 v. Russell, 7 Maine, 273; Woods v. 
 Nashua Manuf. Co., 4 N. H. 527; Aid- 
 rich v. Cheshire R Co., 21 N. H 359; 
 Steele v. Western Island Co., 2 Johns. 
 283; Bellinger v. New York Central 
 Railroad, 23 N. Y. 42; Water Com'rs 
 v. Clark, 3 N. Y. S. 347; Re Thomp- 
 son, 45 Hun, 261; 127 N. Y. 463; Bis- 
 
§ 250.] , EMINENT DOMAIN. 507 
 
 the construction of a railroad within the lines of the land con- 
 demned, this may be done without an express grant of such 
 right, and if the attention of the jury of inquest was called to 
 the diversion, they are presumed to have included it in 'the 
 award of damages, and the owner of the land through which 
 the road passes has no further redress by suit at law or in 
 equity. 1 In such case, evidence is admissible of the profits 
 received from a mill after the water was withdrawn. 2 An 
 assignment which is void for uncertainty is not a bar to an 
 action. In McCord v. Sylvester, 3 commissioners appointed in 
 pursuance of a statute decided that the plaintiff was not en- 
 titled to damages for the diversion of a creek from his prem- 
 ises, " provided sufficient water shall be suffered to flow in 
 the channel of said creek for ordinary and necessary farm 
 purposes." This was held to be void as not properly showing 
 the. amount of water to which the plaintiff would be entitled, 
 and an action on the case against the defendants who had 
 caused the diversion was maintained. If a man deals with a 
 public body having power to take his property, claiming com- 
 pensation, and afterwards contends that they have no right 
 to take the property, a court of equity will not relieve him. 4 
 But where the occupier of a wharf on a public creek, who 
 claims compensation against town commissioners for having 
 arched over the creek and so interrupted his navigation, be- 
 lieved, at the time of the claim, that the commissioners had 
 
 enmenger v. St. Paul W. Board, 44 Ir. Co. v. Middaugh, 12 Col. 434; 
 
 Minn. 457; Terre Haute R. Co. v. Mc- Thompson v. De Weese-Dye Ditch 
 
 Kinley, 33 Ind. 274; Pittsburgh v. Co., 25 Col. 243. See Ward v. Albe- 
 
 Scott, lPenn.St. 309; Dyerti. Tuska- marie & R. R Co., 112 N. C. 168. 
 
 loosa Bridge Co., 2 Porter, 296; Mc- Only land-owners who are madepar- 
 
 Cann v. Otoe County Com'rs, 9 Neb. ties are bound by the award. Jewell 
 
 324; Fremont, etc. R. Co. v. Mattheis, v. Rochester, 68 N. H. 603. 
 
 35 Neb. 48; McOsker v. Burrell, 55 2Norwalk Borough v. Blanchard, 
 
 Ind. 425; Cumberland v. WiDison, 50 56 Conn. 491. 
 
 Md. 138; West Branch Canal Co. v. 3 32 Wis. 451. See Harris v. Social 
 
 -Mullinger, 68 Penn. St 357; Mclntire Manuf. Co., 9 R. I. 99. 
 
 v. Western R. Co., 67 N. C. 278; La- *Pentney v. Lyon Paving Com'rs, 
 
 fayette Plankroad Co. -U. New- Albany 13 W. R. 983. A railroad company 
 
 R. Co., 13 Ind. 90; Little v. Dublin which drains land as it agrees to do 
 
 Ry. Co., 7 Ir. C. L. 82. cannot be afterwards required to do 
 
 1 Baltimore R. Co. v. Magruder, 34 more because of changed conditions. 
 
 Md. 79; Stodghill v. Chicago, etc. Harrelson v. Kansas City & AtL R. 
 
 Railroad, 43 Iowa, 26; Denver City Co., 151 Mo. 482. 
 
508 THE LAW OF WATEKS. [Ch. YIIL 
 
 the power to act, but afterwards, learning that they had acted 
 illegally, at once filed his bill for a mandatory injunction, it 
 was held that he was not estopped by his claim for compensa- 
 tion, and a reference was . made to chambers to assess dam- 
 ages. 1 So an action of trespass will lie for taking soil from a 
 river bottom or upland outside of the land appropriated. 2 If 
 land is appropriated or injured by the construction of a canal 
 without authority of law, the legislature cannot, by retroact- 
 ive legislation, authorize the appointment of commissioners for 
 the appraisement of damages, and thereby deprive the land- 
 owner of his right to maintain an action. 3 An act which pro- 
 vides no means for ascertaining and paying the damages sus- 
 tained,^ invalid, and the land-owner is remitted to his remedy 
 at law ; 4 and the common-law remedy for breach of a statu- 
 tory duty is not defeated by the fact that the statute which 
 imposes the duty, but contains no provision for compensation, 
 provides a mode of enforcing the duty. 5 Compulsory powers, 
 conferred by a special act, must be expressed clearly ; if doubt- 
 ful, they will be construed in favor of the land-owner. 6 An 
 act which provides that any canal company " shall have the 
 free use of the waters and streams of the State " can apply 
 only to streams upon the public lands of the State, and the 
 right to appropriate water from a natural stream must still 
 
 ilbid. Sinnockson v. Johnson, 17 N. J. L,, 
 
 2Doud v. Mason City By. Co., 76 129. 
 
 Iowa, 438. s Ross v. Eugge Price, 1 Ex. D. 269; 
 
 'Matter of Townsend, 39 N. Y. 171. Atkinson v. Newcastle W. W. Co., L. 
 In Harding v. Stamford Water Co., R. 6 Ex. 404; Reg. v. Darlington 
 41 Conn. 87, it was held that, under Board of Health, 33 L. J. N. s. (Q. B.) 
 the provision for compensation in 305; 13 W. R. 79. 
 an amendment to the charter of a 6 Simpson v. South Staffordshire 
 corporation which authorized the W. W. Co., 11 Jur. N. s. 453. A stat- 
 diversion of water from a stream, a ute which authorizes an aqueduct 
 reasonable time should be allowed to corporation to take the waters of 
 make the compensation before issu- certain ponds, and provides that the 
 ing a perpetual injunction. See, also, damages shall be determined and re- 
 Bonaparte v. Camden R. Co., Bald, covered in the same manner as when 
 C. C. 205; Bailey v. Philadelphia R land is taken for highways, makes 
 Co., 4 Harr. (Del.) 389. adequate provision for compensation 
 
 4 Stevens v. Middlesex Canal, 12 and is valid. Brickett v. Haverhill 
 
 Mass. 466; Cogswell v. Essex Mill Aqueduct, 142 Mass. 394. See Dan- 
 
 Corp., 6 Pick. 94; Thatcher v. Dart- forth v. Groton W. Co. (Mass.), 57 N. 
 
 mouth Bridge Co., 18 Pick. 501; Lee E. Rep. 351. 
 v. Pembroke Iron Co., 57 Maine, 481 ; 
 
§ 251.] 
 
 EMINENT DOMAIN. 
 
 509 
 
 be acquired from its riparian proprietors by purchase or con- 
 demnation. 1 No separate award can be made for a water- 
 power which is an appurtenance of the land taken, nor for 
 acts done after the taking, 2 nor for riparian rights belonging 
 to the land condemned and not expressly mentioned in the 
 petition for condemnation. 3 
 
 § 251. Damages. — A land-owner who sustains injury from 
 the construction of works authorized by statute is not entitled 
 to compensation, under the provisions of the statute, unless 
 the injury is such as to give a right of action had the worlcs 
 not been authorized ; i but it does not follow, because a person 
 might have maintained an action before the statute, that he 
 would, in respect of the same cause, have a claim to compen- 
 sation after it. 5 "When land is taken for the construction of a 
 canal or other public works, its present and prospective value is 
 to be fixed at what it was worth at the time of the taking, 6 and 
 interest is properly claimed from that time. 7 Where the water 
 
 'Mud Creek Ir. Co. v. Vivian, 74 
 Texas, 170. 
 
 2 Re Depart mant of Public Parks, 
 58 Hun, 280. 
 
 SHanford v. St. Paul R Co., 43 
 Minn. 104; Port Henry v. Kidder, 57 
 N. Y. S. 102. An act which provides 
 for the assessment of the entire ex- 
 pense of a sewer, which is to receive 
 the drainage from several towns, 
 upon such towns in proportion to 
 the benefits received by the land in 
 each, is not void as a delegation of 
 legislative power. State v. Peed, 43 
 N. J. L. 186. 
 
 4 New Eiver Co. v. Johnson, 2 El. 
 & EL 435; Chamberlain v. West of 
 London Ey. Co., 2 B. & S. 605; Beck- 
 ett v. Midland Ry. Co., L. R. 3 C. P. 
 82; Metropolitan Board of Works v. 
 McCarthy, L. E. 7 H..L. 243; L. R. 8 
 C. P. 191; L. R. 7 C. P. 508; Magee 
 Furnace Co. v. Com., 166 Mass. 480. 
 See ante, § 124, note. 
 
 5 Ricket v. Metropolitan Ry. Co., L. 
 R. 2 H. L. 175; Pittsburgh v. Scott, 1 
 
 Penn. St. 309; Geddis v. Bann Res- 
 ervoir, 3 App. Cas. 430. 
 
 6 Parks v. Boston, 15 Pick. 198; 
 Moulton v. Newburyport W. Co., 139 
 Mass. 163; Butchers' Slaughtering 
 & M. Ass'n v. Com., 163 Mass. 386; 
 Joy v. Grindstone Neck W. Co., 85 
 Maine, 109; Centralia v. Wright, 156 
 111. 561; Mclntire v. State, 5 Blackf. 
 384. The value is to be estimated as 
 of the date when the injury is com- 
 plete. Philadelphia v. Linnard, 97 
 Penn. St. 242. Proceedings for ad 
 quod damnum, superseded. by a lease 
 of the desired right of flowage, held 
 to give a vested right, in Culver v. 
 Garbe, 27 Neb. 312. As to the effect 
 upon the damages of a change in the 
 plan of public works, see 31 Am. L. 
 Reg. & Rev. N. s. 536. Land-owners 
 are not deprived of the right to pro- 
 ceed for damages by the appro- 
 priator's neglect to fulfill every stat- 
 utory requirement. Bowers v. Citi- 
 zens' W. Co., 162 Penn. St. 9. 
 
 7 Bridgeman v. Hardwick, 67 Vt. 
 653. 
 
510 THE LAW OF WATERS. [Ch. YIIL 
 
 commissioners of a city took certain land for the purpose of 
 making a reservoir, and afterwards, requiring more land, took 
 that of the petitioners, to whom the land first taken did not 
 belong, it was held that the value of their land was to be esti- 
 mated as of the time of the condemnation and not of the loca- 
 tion of the improvement. 1 A statutory provision that, in the 
 assessment of damages in such cases, the benefits resulting to- 
 the owner of the land from the construction of the work shall 
 be considered, is valid, 2 but the inquiry as to the enhanced 
 value of the land is to be confined to the benefits accruing, at 
 the time of the taking, to such of the, owner's land as adjoins 
 that taken, and not to include the advantages resulting to him 
 generally. 3 If the benefits from a State canal are found to be 
 equal to the damages, the State can acquire only a conditional 
 fee in the lands taken, the condition being that the benefits 
 shall be actually received by the land-owners; and if the canal 
 is abandoned immediately after its construction, the fee in its 
 bed and banks reverts to the former owners and does not 
 pass to the grantees of the State. 4 When a company builds a 
 railroad across land through which it has previously made a 
 canal, the fact that the canal was a cheap and sufficient means 
 of conveying the land-owner's products is to be considered in 
 assessing the damages, and it is immaterial that the company 
 owned and might abandon the canal. 5 The measure of the 
 damages is the market value, for any rightful use other than 
 the public use, of that which is appropriated. 6 The value of a 
 
 1 Stafford v. Providence, 10 R. I. 65 N. Y. 64; Whitney v. Stone, 96 
 
 567; G, B. & Q. R Co. v. Ernmert, 53 N. Y 240; Willey v. Norfolk So. R. 
 
 Neb. 237. Co., 98 N. C. 263; Wichita R Co. v. 
 
 2McIntire v. State, 5 Blackf. 384; Kuhn, 38 Kansas, 104. 
 
 Atlanta v. Green, 67 Ga. 386. 6 See Harwood v. West Randolph, 
 
 3 Vanblaricum v. State, 7 Blackf. 64 Vt. 41; Baxter v. Rutland, 67 Vt. 
 209; State v. Digby, 5 Blackf. 543; 607; Cochrane v. Corn. (Mass.), 56 
 San Diego L. & T. Co. v. Neale, 78 N. E. Rep. 610; Blaney v. Salem, 160 
 Cal.63; Austin &N.W. Ry. Co. v. An- Mass. 303; Driscoll v. Taunton, id. 
 derson, 79 Texas, 427. See Beals v. 486; Fales v. Easthampton, 162 Mass. 
 Brookline, 174 Mass. l;Beals v.James, 422; Monatiquot River Mills v. Ran- 
 173 Mass. 591. dolph, 157 Mass. 345; Leonard v. Rut- 
 
 4 Kennedy v. Indianapolis, 11 Biss. land, 66 Vt. 105; Burke v. Chicago 
 13. Of. Logansport v. Shirk, 88 Ind. San. District, 152 111. 125; Miller v. 
 563. Windsor W. Co., 148 Penn. St 429; 
 
 5 Pennsylvania R. Co. v. Burnell,81 Wilson v. Equitable Gas Co., 152 id. 
 Penn. St 414. Of. Burbank v. Fay, 566; Bergen Neck Ry. Co. v. Point 
 
§ 252.] EMINENT DOMAIN. 511 
 
 pond taken for the purpose of supplying a village with water 
 is not limited to its use as a mill or ice pond, but the fact that 
 there are no other ponds in the neighborhood which would an- 
 swer the purpose may be shown in evidence. 1 So, if an island 
 is taken in a State where the floating of logs down streams is 
 a regular business, the fact that the island is adapted, in con- 
 nection with the river bank, to form booms for holding logs 
 should be considered. 2 The fact that the plaintiff's lot is sub- 
 ject to inundation from a public river, at high water, does not 
 deprive him of the right to compensation. 3 After the lapse of 
 many years it will be presumed that the damages were assessed 
 and tendered, or were waived. 4 
 
 §252. Same. — In general, only the injuries to the land 
 through which the works are constructed are included in the 
 assessment of damages. The appraisal of damages for land 
 taken for a** canal cannot include damages for trespasses on 
 other lands of the same claimant by the workmen employed 
 in constructing the canal ; 5 and if it is necessary to dig ditches 
 for the proper drainage and protection of a railroad or other 
 public work, the land should be condemned for that purpose. 6 
 But as the grant of power to execute a public work carries 
 with it authority to do whatever is strictly and necessarily in- 
 
 Breeze Ferry Co., 57 N. J. L. 163; on. See Harris v. Schuylkill, etc. R. 
 
 Colorado M. Ry. Co. v. Brown, 15 Col. Co., 141 Penn. St. 242. If an em- 
 
 193; Louisville, etc. B. Co. v. Ryan, bankment made to protect land is 
 
 64 Miss. 399; St. Louis, etc. R. Co. v. used by a railroad, and its usefulness 
 
 St. Louis U. Stock-Yards Co., 120 Mo. for that purpose is not impaired, the 
 
 541: St. Louis T. Ry. Co. v. Heiger, owner's damages are not the cost of 
 
 139 Mo. 315; United States v. Seu- the embankment, but only indem- 
 
 fert Bros. Co., 78 Fed. Rep. 520; nity for the injury. Gear v. C. C. & 
 
 Clarke v. Penn. R. Co., 145 Penn. St. D. R Co., 39 Iowa, 23. See Little Ry. 
 
 438; In re Daly, 45 N. Y. S. 785; In Co. v. McGehee, 41 Ark. 202. 
 
 re Tracy, 16 id. 606; Gibson v. Nor- 3 Enos v. Chicago Ry. Co., 78 Iowa, 
 
 walk, 13 Ohio Cir. Ct. 428. 28. 
 
 trustees v. Dennett, 5 Thomp. & 4 Blair v. Kiger, 111 Ind. 193. The 
 
 Cook (N. Y.), 217; 2 Hun, 669. See period was here forty years. 
 
 New Britain v. Sargent, 42 Conn. 137; 6 People v. Schuyler, 69 N. Y. 242. 
 
 Pingree v. County Com'rs, 102 U. S. 76. See Munkwitz v. Chicago Ry. Co., 64 
 
 2 Boom Co. v. Patterson, 98 U. S. Wis. 403. 
 
 403. In Eddings v. Seabrook, 12 6 State v. Armell, 8 Kansas, 288; 
 
 Rich. 504, it was held that the value Chicago Ry. Co. v. Cosper, 42 Kansas, 
 
 of land condemned for a public 561; Hooker v. New Haven Co., 15 
 
 wharf is not to be determined by its Conn. 312. 
 value if a wharf were already there- 
 
512 THE LAW OF WATERS. [Ch. VIII. 
 
 cident to the prosecution of the work, the grantee is not lia- 
 ble as a wrongdoer, but only in the mode provided by statute, 
 for injuries to adjacent lands, which are reasonably necessary 
 to the maintenance of the work, whether caused by draining 
 water upon them by means of a culvert, or by widening or 
 changing the bed of a stream, or by conducting the waters of 
 a, spring, opened in the construction of the work, upon land 
 not condemned, by means of an artificial channel. 1 Where 
 the owner of land taken by a railway company had built a 
 reservoir on other land belonging to him for the purpose of 
 supplying mills to be erected on the land taken, it was held 
 that the land not taken was " injuriously affected " within the 
 meaning of the statute providing for compensation, and that 
 evidence of the prospective profits to be derived from supply- 
 ing the water to the proposed mills was rightly considered in 
 the estimate of damages. 2 The assessment of damages to the 
 owners of land through which a railroad is located, may and 
 should include such injuries as the following : the expense of 
 ditches rendered necessary by the road upon parts of the land 
 not taken ; 3 the loss of a water power, even when it has not 
 been utilized, 4 or of a paramount easement in a canal ; 5 a de- 
 
 1 Curtis v. Eastern R. Co., 14 Allen, 2 Ripley v. Great Northern Ry. Co., 
 
 55; Baboock v. Western Railroad, 9 L. R. 10 Ch. 435; Palmer v. Welling- 
 
 Met. 553; Dodge v. County Com'rs, 3 ton, 9 App. Cas. 699; Reg. v. Essex, 
 
 Met. 380; Ashbyu Eastern Railroad, 33 W. R. 214; Be Stockport Ry. Co., 
 
 5 Met. 371; Brown v. Providence, etc. 33 L. J. Q. B. 741; Be Wadham Ry. 
 
 Railroad, 5 Gray, 35; Chelsea Dye- Co., 14 Q. B. 747. Of. Wilder v. 
 
 house Co. v. Com., 164 Mass. 350; In Com'rs, 41 Ohio St. 601. See ante, 
 
 re Squire, 125 N. Y. 131; Van Alstine § 124, note. As to the meaning of 
 
 v. Belden, 58 N. Y. S. 521 ; Van Buren the words " taken or damaged," see 
 
 v. Fishkill W. Co., 50 Hun, 448; Hoff- Omaha v. Kramer, 25 Neb. 489; 
 
 man v. Bloomsburg & S. R. Co., 143 Butchers' Ice Co. v. Philadelphia, 156 
 
 Penn. St. 503; Miller v. Chicago, etc. Penn. St. 54; Texas Ry. Co. v. Mead- 
 
 R. Co., 60 111. App. 51; Harrison v. ows, 73 Texas, 32. 
 
 Sulphur Springs (Tex. Civ. App.), 50 3 St. Louis R. Co. v. Mollett, 59 111. 
 
 S. W. Rep. 1064; United States v. 235; Kankakee R Co. v. Horan, 22 
 
 Taffe, 86 Fed. Rep. 830. See Green 111. App. 145. 
 
 Bay & M. Canal Co. v. Patten Paper 4 Dorian v. East Brandy wine R Co., 
 
 Co., 172 U. S. 58. As to the liability 46 Penn. St. 520; Haslem v. Galena 
 
 of a consolidated company, see Sap- R. Co., 64 111. 353; Lake Superior R. 
 
 pington v. Little Rock R. Co., 37 Ark. Co. v. Greve, 17 Minn. 322. 
 
 23. As to depositing dredged ma- 5 Whitman v. Boston & Maine Rail- 
 
 terial in front of riparian estates, road, 3 Allen, 133. 
 see Slingerland v. Int'l C. Co., 60 
 N. Y. S. 12. 
 
§ 252.] 
 
 EMINENT DOMAIN. 
 
 513 
 
 <crease in the quantity of sediment deposited on agricultural 
 land and by which it is enriched ; 1 injury and inconvenience 
 as to water caused by a division of farm or mill lands; 2 and 
 interference with drainage and the flow of natural waters. 3 It 
 is also presumed to include damages for the loss of springs upon 
 the lands through which the road passes, even though such in- 
 jury could not be anticipated. 4 In assessing damages for land 
 appropriated for a reservoir, it is to be assumed that the land 
 will be used in a skillful and proper manner, yet reasonable 
 apprehension of incidental injury to the part of the land not 
 condemned, arising from inconvenience, or from inherent de- 
 fects or unavoidable accidents, may be considered. 5 A grantor 
 of land who has reserved the privilege of a water power, and 
 the right to enter upon so much of the land as may be neces- 
 sary for an abutment on the bank of the river, has such an in- 
 terest in the land that it cannot be appropriated by a railroad 
 company without ascertaining, in the mode indicated by statute, 
 what damages he will sustain ; 6 and a tenant for years is as much 
 
 1 Concord Railroad v. Greeley, 23 
 N. H. 237. 
 
 ^Rockford R. Co. v. McKinley, 64 
 111. 338; Chicago, etc. R Co. v. Blume, 
 137 III 448; Same?;. Greiney, id. 628; 
 Gorgas v. Philadelphia, etc. R. Co., 144 
 Penn. St. 1; Rudolph v. Perm. S. V. 
 R Co., 186 id. 541; Brooks v. Daven- 
 port R. Co., 37 Iowa, 99; Kostendader 
 v. Pierce, id. 645; Mississippi Bridge 
 Co. v. Ring, 58 Mo. 491; Omaha So. 
 Ry. Co. v. Todd, 39 Neb. 818; Fre- 
 mont, etc. R Co. v. Bates, 40 Neb. 
 381; Springfield Railway v. Rhea, 44 
 Ark. 258; Springfield Railway v. 
 Henry, id. 360, 362. See Schuylkill 
 River R. Co. v. Kersey, 25 W. N. C. 
 (Penn.) 455; Sutliff v. Johnson, 17 
 Neb. 575. 
 
 3 Jones v. St. Louis Ry. Co., 84 Mo. 
 151; Moss v. St Louis Ry. Co., 85 Mo. 
 86; Upper Ten Mile P. R. Co. v. Bra- 
 den, 172 Penn. St. 460; Los Angeles v. 
 Pomeroy, 124 CaL 597; Newgass v. 
 St. Louis, etc. Ry. Co., 54 Ark. 140. 
 
 4 Peoria Ry. Co. v. Bryant, 57 111. 
 473; Lafayette Plank Road v. New 
 Albany Railroad, 13 Ind. 90; Wabash 
 
 33 
 
 Canal v. Spears, 16 Ind. 441 ; Robbins 
 v. Milwaukee R. Co., 6 Wis. 363; Aid- 
 rich v. Cheshire R. Co., 21 N. H. 359. 
 See Magee Furnace Co. v. Com., 166 
 Mass. 480; Penney v. Com., 174 Mass. 
 507; Bickford v. Hyde Park, id. 552. 
 A grant to a railroad company of 
 " the right of way over and through 
 the land for all purposes connected 
 with the construction, use, and occu- 
 pation of its railway," gives the legal 
 right to dig a well upon such right 
 of way, and to use the water sup- 
 plied by percolation for railway pur- 
 poses, although such use may mate- 
 rially diminish the supply of water 
 in a spring upon the grantor's land. 
 Hougan v. Milwaukee Ry. Co., 35 
 Iowa, 558. 
 
 * Alloway v. Nashville, 88 Tenn. 510. 
 See Thompson v. River Co., 58 N. H. 
 108; Hunt v. Iowa Cent. R. Co., 86 
 Iowa, 15; San Diego L. & T. Co. v. 
 Neale, 88 Cal. 50; Seidler v. Seely, 8 
 CoL App. 499 ; Pinckney ville v. Hutch- 
 ings, 63 111. App. 137; Same v. Rhine, 
 id. 139. 
 
 6 Galena R. Co. v. Haslem, 73 ILL 
 
514 THE LAW OF WATERS. [Ch. "VHI. 
 
 entitled to damages for the injuries caused as the owner in fee. 1 
 One who has a mere parol license from the land-owner to use 
 a well and hydraulic ram thereon cannot maintain a petition 
 for damages for interference with his use, if the land is taken 
 by a city by eminent domain. 2 
 
 § 253. Mill acts. — These acts have been sometimes regarded 
 as a proper exercise of the right of eminent domain by private 
 persons for their exclusive private benefit, and it has been con- 
 sidered that the growth and prosperity of manufacturing and 
 other industrial enterprises were of such importance to the 
 public welfare as to justify the invocation of this principle in 
 their behalf as a public use. 3 This exercise of legislative au- 
 thority does not deprive the owners of the flowed lands of 
 their property without due process of law in violation of the 
 Fourteenth Amendment of the Federal Constitution, 4 and has 
 been so long continued in many States, with the acquiescence 
 of the courts, as to practically preclude the latter from deny- 
 ing that these laws are in harmony with their constitutions. 5 ' 
 " That mills," says the Supreme Judicial Court of Massachu- 
 setts, 6 " for the sawing of lumber for the purposes of building,, 
 grinding grain for food, and the manufacture of material for 
 clothing, may be of such necessity to a community, especially 
 in the early settlement of a country, as to make their estab- 
 lishment a provision for a public service, we do not question. 
 It is doubtless within the power of the legislature to .declare 
 
 494. See Archer v. Eckerson, 42 N. ingu Funk, id. 315; Harding v. Good- 
 
 Y. S. 137. lett, 3 Yerger, 41 ; Newcomb v. Smith, 
 
 > Grand Rapids B. Co. u Jarvis. 30 1 Chand. 71; 2 Pin. 131; Thien v. 
 
 Mich. 308; Matter of Water Com'rs, Voegtlander, 3 Wis. 461; Pratt v. 
 
 4 Edw. Ch. 545. Brown, 3 id. 603; Babb v. Mackey, 10 
 
 2 Clapp v. Boston, 133 Mass. 367. id. 371; 16 id. 661; Eason v. Perkins, 
 
 3 Great Falls Manuf. Co. v. Fernald, 2 Dev. Eq. 38; Daughtry v. Warren, 
 47 N. H. 444; Amoskeag Manuf. Co. 85 N. C. 136. 
 
 v. Head, 56 N. H. 3S<5; Amoskeag 4 Head v. Amoskeag Manuf. Co., 113 
 
 Manuf. Co. v. Worcester, 60 N. H. 522; TJ. S. 9. The principal statutes are 
 
 Same v. Goodale, 62 id. 66; Olmstead here collected, on p. 17, note. 
 
 v. Camp, 33 Conn. 532, 551 ; Todd v. 5 Buraham v. Thompson, 35 Iowa, 
 
 Austin, 34 id. 78; Tyler v. Beacher, 44 421; Fisher v. Horicon Iron Co., 10 
 
 Vt. 648; Beekman v. Saratoga Rail- Wis. 351. 
 
 road Co., 3 Paige, 45, 73; Scudder v. 6 Lowell v. Boston, 111 Mass. 454, 
 
 Trenton Falls Co., 1 N. J. Eq. 694; 464; Olmstead v. Camp, 33 Conn. 552. 
 
 Venard v. Cross, 8 Kansas, 248; Hard- ' 
 
§ 253.] EMINENT DOMAIN. 515 
 
 the existence of a public exigency for the establishment of a 
 mill, for which the right of eminent domain may be properly 
 exercised ; as in the, case of the Boston & Eoxbury Mill Cor- 
 poration, and the Salem Mill-dam Corporation. What may be 
 the limits of legislative power in that direction, and whether 
 there are any limits except in the sound discretion of the leg- 
 islature, it is needless now to inquire. ¥e are satisfied that 
 the mill acts are not founded upon that power, and do not au- 
 thorize its exercise." l According to the view here adopted, 
 statutes which authorize 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. 2 This 
 is not a taking of the property of an owner of the land flowed, 
 nor is any compensation awarded by the public. 3 Upon a sim- 
 ilar 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. 4 
 
 1 In Boston & Roxbury Mill Corpo- 2 Fiske v. Frarningham Manuf. Co., 
 ration v. Newman, 12 Pick. 467, the 12 Pick. 68; Williams v. Nelson, 23 
 plaintiffs were authorized by their Pick. 141 ; Andover v. Sutton, 12 Met. 
 act of incorporation to erect and 182; Bates v. Weymouth Iron Co., 8 
 maintain a dam or dams for the pur- Cush. 553; Murdock v. Stickney, 8 
 pose of obtaining a head and fall of Cush. 113; Hazen v. Essex Co., 13 
 the waters of a navigable arm of the Cush. 475; Storm v. Manchaug Co., 
 sea, whereby to work grist mills, iron 13 Allen, 10; Lowell v. Boston, 111 
 manufactories, and mills for other Mass. 466; Hunt v. Whitney, 4 Met. 
 useful purposes, and also to make an 603; Talbot v. Hudson, 16 Gray, 417; 
 avenue over the dams for the accom- Commissioners v. Holyoke Water 
 modation of all persons at a fixed Power Co., 104 Mass. 450. 
 rate of toll. This was held to be so 3 Shaw, C. J., in Murdock v. Stick- 
 far an enterprise of a public nature ney, 8 Cush. 113. 
 as to authorize the legislature to ap- 4 Cottrill v. Myrick, 12 Maine, 222; 
 propriate the property of an individ- Com. v. Essex Co., 13 Gray, 249; State 
 ual to carry it into effect. Boston v. Mrozinski, 59 Minn. 465. Compen- 
 Water Power Co. v. Boston & Wor- sation for an injury to a private 
 cester R. R., 23 Pick. 360. right of fishery does not relieve the 
 
516 THE LAW OE WATEBS. [Ch. VIII. 
 
 In Michigan, 1 Alabama, 2 Georgia, 3 and New York, 4 mill acts 
 have been pronounced unconstitutional upon the ground that 
 they authorize the taking of private property for other than 
 public uses, and the current of modern authority, even on the 
 part of those courts which sustain the statutes, is adverse to 
 their validity if regarded as an exercise of eminent domain. 5 
 These acts, if they do not so provide expressly, are not appli- 
 cable to cases where dams are built across navigable streams.' 
 They have no extraterritorial effect, and do not apply to dams 
 built out of the State. 7 
 
 §254. Public mills. — In some States certain mills, espe- 
 cially grist mills, are made public mills by statute, being re- 
 quired by law to grind for all in due turn for regulated tolls. 
 Laws of this character have been enacted in Virginia, North 
 Carolina, Nebraska, 8 Kentucky, Tennessee, Alabama, and 
 Georgia; and the power of the legislature to exercise the right 
 of eminent domain in behalf of mills that grind grain for toll, 
 and are compellable by law to render impartial service for all, 
 appears not to have been denied. 9 In Vermont it has been 
 
 owner of a dam authorized by the Co., 35 Conn. 496; Finney v. Somer- 
 
 legislature from the duty to provide ville, 80 Penn. St. 59. 
 
 fish- ways. Commissioners v. Holy- 6 Cobb v. Smith, 16 Wis. 661; Clay 
 
 oke Water Power Co., 104 Mass. 446; v. Pennoyer Creek Impr. Co., 34 Mich. 
 
 Holyoke Co. v. Lyman, 15 Wall. 500. 204; Fox v. Holcomb, id. 298. 
 
 iRyerson v. Brown, 35 Mich. 333; 'Salisbury Mills v. Forsaith, 57 
 
 24 Am. Rep. 564, n. See Hardwell, N. H. 124; Wooster v. Great Falls 
 
 Petitioner, 2 Mich. N. P. 97; McCIary Manuf. Co., 39 Maine, 246; Saunders 
 
 v. Hartwell, 25 Mich. 139; Osborn v. v. Bluefield W. Co., 58 Fed. Rep. 133. 
 
 Charlevoix Cir. Judge, 114 Mich. 655; 8 Under the statutes of this State 
 
 Lewis v. State, 148 Ind. 346. it is not the exercise of the right of 
 
 2 Sadler v. Langham, 34 Ala. 311 ; eminent domain, but the grinding 
 
 Bottoms v. Brewer, 54 Ala. 288. for toll, that makes a mill a public 
 
 3 Loughbridge v. Harris, 42 Ga. one. Getchell v. Benton, 30 Neb. 
 
 500. 870. 
 
 * Hay v. Cohoes Co., 3 Barb. 42; 2 9 Crenshaw v. Slate River Co., 6 
 
 N. Y. 159. Rand. 245; Pick v. Rubicon Hydrau- 
 
 5 Jordan v. Woodward, 40 Maine, lie Co., 27 Wis. 433; Burgess v. Clark, 
 
 317; Jones v. Skinner, 61 Maine, 25; 13 Ired. 109; Bottoms v. Brewer, 54 
 
 Powers v. Bears, 12 Wis. 213; Fisher Ala. 288; McAfee v. Kennedy, 1 Litt. 
 
 v. Horiconlron Co., 10 id. 351; New- 92; Shackelford v. Coffee, 4 J. J. 
 
 comb v. Smith, 1 Chand. 71; Pratt v. Marsh. 40; Harding v. Goodlet, 3 
 
 Brown, 3 Wis. 603; Miller v. Troost, Yerger, 41; Sadler v. Langham, 34 
 
 14 Minn. 365; Harding v. Funk, 8 Ala. 311, 325; Hankins v. Lawrence, 
 
 Kansas, 315; Occum Co. v. Sprague 8 Blackf. 266. 
 
§ 255.] 'EMINENT DOMAIN. 517 
 
 held that a statute which required that all grain received at 
 grist mills should be well and sufficiently ground at certain 
 fixed rates of toll, but which did not require that any grain 
 should be received at such mills, could not constitutionally 
 confer the right to flow the lands of others for the purposes 
 of such a mill. 1 A State statute which authorizes towns or 
 counties to issue bonds " to aid in the construction of railroads, 
 water power, or other works of internal improvement," in- 
 cludes grist mills, whether run by water or steam, when these 
 are made public mills by statute; 2 but a steam grist mill is not, 
 in general, a work of internal improvement within the meaning, 
 of a statute which merely authorizes the issue of municipal 
 and county bonds to aid in the construction and completion of 
 such works. 3 
 
 § 255. Change of use — Additional burdens. — "When prop- 
 erty is taken for a particular public use, it does not become pub- 
 lic for all purposes. 4 The first taking does not withdraw it from 
 liability to be taken for another public use, and if an appro- 
 priation has been made for one such use under statutory au- 
 
 1 Tyler v. Beacher, 44 Vt. 648. does not revest the title to the former 
 
 2 Burlington v. Beasley, 94 U. S. owner. Haldeman v. Pennsylvania 
 310; Traver v. Merrick Co., 14 Neb. R. Co., 50 Penn. St. 425; Wyoming 
 327. Coal Co. v. Price, 81 Penn. St. 156; 
 
 3 Osborne tt Adams County, 106 XJ. Birdsall v. Cary, 66 How. Pr. 358; 
 S. 181; 109 IT. S. 1; 7 Fed. Rep. 441; United States v. Seufert Bros. Co., 87 
 Blair v. Cuming County, 111 U. S. Fed. Rep. 35; State v. Griftner (Ohio), 
 363; State v. Adams County, 15 Neb. 55 N. E. Rep. 612. So of the tow-path 
 568; State v. Clay County, 20 Neb. of a State canal, where the same is 
 452; Getchell v. Benton, 30 Neb. 870. disused and the canal, with all its 
 
 4 Grand Rapids R. Co. v. Grand appendages, is transferred to trustees 
 Rapids & Indiana R. Co., 35 Mich, for the benefit of creditors of the 
 265; West Boston Bridge v. Middle- State. Flemings Nelson, 56 Ind. 310; 
 sex, 10 Pick. 270; Worcester Railroad Mason v. Lake Erie.Ry. Co., 1 Fed. 
 v. Railroad Com'rs, 118 Mass. 561; Rep. 712. Adjoining land-owners, 
 State v. Noyes, 47 Maine, 189. Prop- who have used the waters of a State 
 erty acquired by grant from the canal, cannot enjoin its abandon- 
 State can only be taken by the State ment. Vought v. Columbus, etc. R. 
 under the right of eminent domain Co., 58 Ohio St. 123; 176 U. S. 481. 
 and upon making compensation. See Walsh v. Columbus, etc. R. Co., 
 Langdon v. New York, 93 N. Y. 129. 176 U. S. 469. Backing water up a 
 When the State condemns the fee of stream by a canal dam does not ap- 
 land for a canal, and afterwards de- propriate the fee of the stream's bed. 
 votes the land to the purposes of a Miller v. Wisenberger (Ohio), 56 N. E. 
 highway, a cessation of the latter use Rep. 454. 
 
518 THE LAW OF WATERS. [Ch. VIII. 
 
 thority, it may, under like authority, be devoted to another 
 use, without additional compensation to the owner, as when 
 land taken and used for a canal is used for a road by author- 
 ity of the legislature. 1 So the erection, by authority of the 
 legislature, of a toll-bridge in the highway across a stream 
 Avhere a ferry has previously been operated by the riparian 
 owner, imposes no new servitude upon the land, and entitles 
 its owner to no compensation. 2 So the laying of water-pipes 
 under a city street imposes no additional burden upon the 
 abutting estate. 3 But the appropriation by a railroad of land 
 previously occupied as the bank of a canal is an additional 
 easement for which the owner of the soil in fee would be en- 
 titled to recover damages. 4 So if a railroad is built across a 
 landing, 5 it is an additional burden, and if by the change from 
 one use to another, increased injury is done, 6 or easements are 
 impaired to a greater extent than before, 7 or access to the land 
 is made more difficult, 8 compensation must be made for the in- 
 jury done by a railroad in obstructing a mill-race, and that 
 done by a water company in diverting water from the stream 
 above the race, are distinct, and compensation must be made for 
 
 iMalone v. Toledo, 28 Ohio St. 643; Co., 17 Minn. 215; State v. Laverack, 
 
 34 id. 541; Hatch v. Cincinnati R. Co., 34 N. J. L. 201 ; Pittsburgh R. Co. v. 
 
 18 Ohio St. 92; Cincinnati R. Co. v. Bruce, 102 Penn. St. 23. The owners 
 
 Zinn, 18 N Ohio St. 417; Shanklin v. of lots abutting on a city street are 
 
 Evansville, 55 Ind. 240; Lostutter entitled to compensation for the use 
 
 v. Aurora, 126 Ind. 436 ; Stoudinger v. of the streets for railroad purposes, 
 
 Newark, 28 N. J. Eq. 187, 446: Chase whether the title to the street is in 
 
 v. Sutton Manuf. Co., 4 Cush. 152; them or in the city. Mollandin v. 
 
 Monatiquot River Mills v. Com., 164 Union Pacific Ry. Co., 14 Fed. Rep. 
 
 Mass. 227; Cabot v. Kingman, 166 394; Rigley v. Chicago, 102 111. 64. 
 
 Mass. 403; Chicago R. Co. v. Lake, 71 5 Railroad Co. v. Schurmeir, 7 Wall. 
 
 111. 333. But special sanction from 272; post, § 257. See Davidson v. 
 
 the legislature is necessary in such Boston Railroad, 3 Cush. 91. 
 
 case, and general laws are insuffi- 6 Gordon v. Pennsylvania R. Co. 
 
 cient. Prospect Park R. Co. v. Will- (Penn. 1878), 6 Rep. 727. 
 
 iamson, 91 N. Y. 552. 7 Whitman v. Boston & Maine Rail- 
 
 2 Jones v. Keith, 37 Texas, 394; road, 7 Allen, 313; Kansas, etc. Ry. 
 Hudson v. Cuero Land Co., 47 Texas, Co. v. Payne, 49 Fed. Rep. 114; Same 
 56. v. Le Flore, id. 119. 
 
 3 Crooke v. Flatbush W. Co.. 29 Hun, « Chicago Railroad v. Stein, 75 111. 
 245. See Bass v. Fort Wayne, 121 41; Hatch v. Cincinnati Railroad, 18 
 Ind. 389. Ohio St. 92; Gordon v. Pennsylvania 
 
 4 Lafayette R. Co. v. Murdock, 68 Railroad, 6 Rep. 727. 
 Ind. 137; Harrington v. St. Paul R. 
 
§ 255.] EMINENT DOMAIN. 519 
 
 each. 1 Property which is already held for a public use cannot 
 be condemned to another public use without legislative author- 
 ity, and the subsequent grant will not be construed as author- 
 izing the subversion or destruction of the former, unless 
 such intent appears by express words or necessary implica- 
 tion. 2 Thus, the board of public works of the State of Ohio 
 has been held to have no authority to grant to a railroad cor- 
 poration the right to lay its track along the berme-bank of a 
 navigable canal belonging to the State. 3 A railroad company, 
 which is authorized by statute to select a route for its road, 
 cannot take land which is already occupied, under authority 
 from the legislature, by a canal, 4 or by a reservoir erected by 
 a city, 5 if a public trust is already impressed upon the land. 6 
 A water company cannot condemn land which is in use as 
 a public street, when there are other means of carrying its 
 powers into effect, 7 and a public ditch cannot be constructed 
 along land already appropriated for a railroad. 8 The authority 
 given by mill acts to flow land, does not justify the flooding 
 of a public road 9 or bridge, 10 and land occupied by the United 
 States for an armory cannot be flowed under these statutes. 11 
 A private 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 pro- 
 vision in its charter to that effect ; 12 but if, after the construc- 
 
 1 Lycoming Gas Co. v. Mover, 99 s State v. Montolair Ry. Co., 35 N. 
 Penn. St. 615. J. L. 328. 
 
 2 Little Miami R. Co. v. Dayton, 23 6 In re N. Y., L. E. & W. R. Co., 99 
 'Ohio St. 510; Hickocku Hine,id. 522; N. Y. 12; Chicago & N. W. Ry. Co. v. 
 Bridgeport v. New York Railroad, 36 Chicago & E. R. Co., 112 I1L 589. 
 'Conn. 255; Be Buffalo, 68 N. Y. 167; 7.Ea;par£eManhattanCo.,22Wend. 
 Locks and Canals v. Lowell, 7 Gray, 653; Bradshaw v. Rogers, 20 Johns. 
 223; Sharon Railway's Appeal, 122 103, 735; Springfield v. Connecticut 
 Penn. St. 533; Oregon Ry. Co. v. Port- R. Co., 4 Cush. 63. 
 
 land, 9 Oregon, 231. 8 Baltimore & O. R. Co. v. North, 
 
 3 State v. Cincinnati Central R. Co., 103 Ind. 486. 
 
 S7 Ohio St. 157. See State v. Newark, 3Com. v. Stevens, 10 Pick. 247; 
 
 88 N. J. L. 529. Venard v. Cross, 8 Kansas, 248. 
 
 4 Hudson Canal Co. v. New York 10 Hooksett v. Amoskeag Manuf. 
 R. Co., 9 Paige, 323; Tuekahoe Canal 1 Co., 44 N. H. 105. 
 
 v. Tuekahoe Railroad, 11 Leigh, 42; " United States v. Ames, 1 Wood. 
 Housatonic Railroad v. Lee Railroad, & M. 76. 
 
 118 Mass. 391. 12Re Trenton "Water Power Co., 
 
 Spencer (N. J.), 659. 
 
520 THE LAW 0E WATERS. [Ch. YIIL 
 
 tion of the canal, a highway is laid out across it, its owner is 
 not bound to erect or maintain a bridge. 1 "While a corpora- 
 tion, under a general power of eminent domain, cannot, with- 
 out special authority, deprive another corporation with a like 
 power of lands held by it for a public use, yet an easement 
 may be acquired, in invitiom, by legislative authority, 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. 2 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. 3 But if the 
 legislature authorizes a bridge to be built at a point where 
 there was an ancient ferry, and provides for compensation to 
 the owner of the ferry, which is accepted, the ferry is abol- 
 ished, and such taking for public use does not transfer the 
 ferry franchise to the proprietors of the bridge. 4 The fact that 
 property is held under a covenant of quiet enjoyment from a 
 city does not prevent its board of aldermen, if authorized by 
 statute, from taking such property in laying out a street over 
 tide- waters ; 5 but private property condemned for public use 
 cannot be appropriated or leased for private use. 6 Land which 
 is merely dedicated to the public use as a levee or public land- 
 ing may be devoted by the legislature to the use of a railroad 
 company, subject to the restriction that no wharfage is to be 
 exacted, 7 and if the charter of a navigation company does not 
 make it a common carrier, or impose a public trust upon its 
 land, its wharf or dock may be condemned by a railroad cor- 
 poration. 8 
 
 1 Morris Canal Co. v. State, 24 N. J. though acquired by donation from 
 L. 62. the State, are protected by the con- 
 
 2 New York Central R. Co. v. Met. stitutional guaranties which protect 
 Gaslight Co., 63 N. Y. 326; Matter of the property of individual citizens. 
 Rochester Water Com'rs, 66 id. 413; Milam County v. Bateman, 54 Texas, 
 Be New York Central R. Co., 77 id. 153. 
 
 248: Boston Water Co. v. Boston & 4 Charles River Bridge v. Warren 
 
 Worcester Railroad, 23 Pick. 360, 397 ; Bridge, 7 Pick. 344, 352. 
 
 St. Anthony Falls W. P. Co. v. St. 5 Brimmer v. Boston, 102 Mass. 19. 
 
 Paul W. Com'rs, 168 U. S. 349; Matter « Belcher Sugar Refining Co. v. St. 
 
 of Main and Hamburg Street Canal, Louis Grain Elevator Co., 82 Mo. 121. 
 
 50 How. Pr. 70; James River Co. v. 7 Portland & W. Valley R. Co. v. 
 
 Anderson, 12 Leigh, 278. Portland, 14 Oregon, 188. 
 
 3 Benson v. New York, 10 Barb. 223. 8 R e New York Ry. Co., 99 N. Y. 12. 
 So the property rights of a county, 
 
§ 256.] 
 
 EMINENT DOMAIN. 
 
 521 
 
 § 256. Koads — Bridges — Passages for water. — When 
 individuals or corporations construct and maintain roads or 
 bridges across streams under authority conferred by the legis- 
 lature, they are bound to provide suitable passage ways for 
 the water l or ice 2 of the stream, and to keep them unob- 
 structed by drift or mud, 3 and are liable to the owners of pri- 
 vate 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, or so makes or per- 
 mits alterations in its banks or culverts, 4 as to flood the ad- 
 joining lands, is liable to an action for the injury whether any 
 portion of such land, is taken for the purposes of the road or 
 not. 5 Such, injury is not one that is taken into account in 
 
 i New Castle R. Co. v. McChesney, 
 85 Penn. St. 522; Oregon R. Co. v. 
 Barlow, 3 Oregon, 311; Whitehouse 
 v, Birmingham Canal Co., 5 H. & N. 
 928; Perley v. Chandler, 6 Mass. 454; 
 Rowe v. Granite Bridge, 21 Pick. 
 344; Blood v. Nashua Railroad, 2 
 Gray, 137; Mellen v. Western Rail- 
 road, 4 Gray, 301 ; Jones v. West Ver- 
 mont R Co., 27 Vt. 399; Addison v. 
 Rowe, 34 N. H. 396; Krug v. St. 
 Mary's Borough, 152 Penn. St. 30, 37; 
 Covert v. Cranford, 141 N. Y. 521; 
 Kerr v. Joslin, 20 ,N. Y. S. 929; Kan- 
 sas City v. Brady, 52 Kansas, 297; 
 Beatrice v. Leary, 45 Neb. 149; Bea- 
 trice v. Knight, id. 546; Manser v. 
 Northern Counties Ry. Co., 2 Rail. 
 Cas. 380; Taylor v. Baltimore R. Co., 
 33 W. Va, 39; Wallace v. Columbia, 
 etc. R. Co., 34 S. C. 62; Austin v. 
 Emanuel, 74 Tex. 621; Archibald v. 
 Mississippi R. Co., 66 Miss. 424; 67 
 Miss. 38; Brink v. Kansas City R. 
 Co., 17 Mo. App. 177; George v. Wa- 
 bash W. Ry. Co., 40 id. 433. 
 
 2 Omaha R. Co. v. Brown, 14 Neb. 
 170. 
 
 3 West v. Louisville R. Co., 8 Bush, 
 404; Chicago R. Co. v. Moffitt, 75 111. 
 524. 
 
 4 Koch v. Delaware, etc. R. Co., 54 
 
 N. J. L. 401; St. Louis, etc. R. Co. v. 
 Claunch, 41 I1L App. 592. 
 
 5 Bagnall v. London Ry. Co., 1 H. & 
 C. 544; 7 H. & Nj 723; Lawrence v. 
 Great Northern R. Co., 16 Q. B. 643; 
 Com'rs v. Peirce, 90 Fed. Rep. 764; 
 Kenney v. Kansas City, P. & G. R. 
 Co., 74 Mo. App. 301; Penley v. Maine 
 Central R. Co., 92 Maine, 59; Chicago, 
 etc. R. Co. v. O'Neill (Neb.), 78 N. W. 
 Rep. 521; Hatch v. Vermont Central 
 R Co., 25 Vt. 49, 68; Norris v. Same, 
 28 Vt. 102; King v. Iowa Midland R. 
 Co., 34 Iowa, 458; Mississippi Central 
 Railroad v. Caruth, 51 Miss. 77; Same 
 v. Mason, id. 234; Baughton v. Car- 
 ter, 18 Johns. 405; Cott v. Lewiston 
 Railroad, 36 N. Y. 214; Brown v. 
 Cayuga R. Co., 12 N. Y. 486; Robin- 
 son v. N. Y. R. Co., 27 Barb. 512; 
 Beaty v. Baltimore R. Co., 6 W. Va. 
 388; Houston R. Co. v. Knapp, 51 
 Texas, 592; Young v. Chicago Ry. 
 Co., 28 Wis. 171; Chicago R Co. v- 
 Carey, 90 111. 514; Locks & Canals tv 
 Nashua R. Co., 10 Cush. 385; Esta- 
 brooks v. Peterborough Railroad, 13 1 
 Cush. 224; March v. Portsmouth R. 
 Co., 19 N. H. 372; Hooker v. New 
 Haven R. Co., 14 Conn. 146; 15 Conn. 
 313; Nicholson v. New York R. Co., 
 22 Conn. 74; Selma R. Co. v. Keith, 
 
-522 
 
 THE LAW OF WATERS. 
 
 [CH. VIII. 
 
 measuring the compensation to the owner of land through 
 which the road is located, but the company is answerable in 
 damages by a repetition of suits, or if the flooding is perma- 
 nent and unnecessary, the obstruction may be abated by a 
 court of equity. 1 So, if a railroad company, in building its 
 road, finds it necessary to divert a stream, and for that pur- 
 pose to construct a new channel, it is bound to keep the new 
 channel in a suitable condition so as to preserve the usefulness 
 of the stream for those entitled to it. 2 Except in cases of 
 strict necessity, a railroad company has no right to divert a 
 
 53 Ga. 178; O'Connell v. East Term., 
 etc. Ry. Co., 87 Ga. 246; Hodge v. 
 Lehigh V. R. Co., 56 Fed. Rep. 195; 
 Central Trust Co. v. Wabash, etc. Ry. 
 .Co., 57 id. 441; Willitts v. Chicago, 
 -etc. Ry. Co., 88 Iowa, 281; Chicago, 
 etc. R. Co. v. Henneberry, 42 111 App. 
 126; Payne v. Kansas City, etc. Ry. 
 Co., 112 Mo. 6; Byrne V. Keokuk & 
 W. R. Co., 47 Mo. App. 383; Moor- 
 man v. Seattle <& M. Ry. Co., 8 Wash. 
 98; Gonzales Branch Ry. Co. v. Har- 
 vey (Tex. Civ. App.), 25 S. W. Rep. 
 1025; Orvis v. Elmira, etc. R. Co., 45 
 N. Y. S. 367; Treichel v. Gt. North- 
 ern Ry. Co. (Minn.), 82 N. W. Rep. 
 1110; New York, etc. R. Co. v. Ham- 
 let Hay Co., 149 Ind. 344; New York, 
 etc. R. Co. v. Speelman, 12 Ind. App. 
 372 ; Illinois Cent. R. Co. v. Wilbourn, 
 74 Miss. 284; Fleming v. Wilming- 
 ton, etc. R. Co., 115 N. C. 676; Rid- 
 ley v. Seaboard & R. R. Co., 118 N. C. 
 996; Wabash R. Co. v. Sanders, 58 
 I1L App. 213; Ohio & M. Ry. Co. v. 
 Long, 52 id. 670; James v. Kansas 
 City, etc. R. Co., 69 Mo. App. 431; 
 Mo. Pac. Ry. Co. v. Webster, 3 Kans. 
 App. 106; Int'l & G. N. Ry. Co. v. 
 Davis (Tex. Civ. App.), 29 S. W. Rep. 
 483; Toledo Ry. Co. v. Hunter, 50 111. 
 ■325; Alton R. Co. v. Deitz, 50 111. 240; 
 Ohio & M. Ry. Co. v. Webb, 142 111. 
 404; Same v. Thillman, 143 111. 127: 
 43 111. App. 78; Same v. Nuetzel, 143 
 111. 46; St. Louis, etc. R. Co. v. Brown, 
 34 111. App. 532; Peoria, etc.'Ry. Co. 
 v. Barton, 38 id. 469; St. Louis, etc. 
 
 Ry. Co. v. Yarborough, 56 Ark. 612; 
 Kansas City, etc. R Co. v. Cook, 57 
 Ark. 387; Gentry v. Richmond, etc. 
 R. Co., 38 S. C. 284; Staton v. Norfolk 
 & C. R Co., 109 N. C. 337; Knight v. 
 Albemarle & R. R. Co., 110 N. C. 58; 
 111 N. C. 80; Adams v. Durham & N. 
 R. Co., 110 N. C. 325; Louisville R. 
 Co. v. Hodge, 6 Cush. 141; Louisville 
 R Co. v. McAfee, 30 Ind. 291; Union 
 Trust Co. v. Cuppy, 26 Kansas, 754; 
 Van Orsdol v. B. R. Co., 56 Iowa, 470; 
 San Antonio, etc. Ry. Co. v. Gwynn 
 (Texas), 15 S. W. Rep. 509; Green v. 
 Taylor, etc. Ry. Co., 79 Texas, 604; 
 Broussard v. Sabine, etc. Ry. Co., 80 
 id. 329; Sellers v. Texas Cent. Ry. Co., 
 81 id. 458; Clark v. Dyer, id. 339; 
 Dallas & W. Ry. Co. v. Kinnard 
 (Texas), 18 S. W. Rep. 1062; Gulf, etc. 
 Ry. Co. v. Dunlap (id.), 26 id. 655; 
 Same v. Calhoun (id.), 24 id. 362; 
 Same v. Haskell, 4 Tex. Civ. App. 550. 
 
 1 Raleigh Air Line R. Co. v. Wicker, 
 74 N. C. 220; Brown v. Carolina Cen- 
 tral R. Co., 83 N. C. 128; Easterbrook 
 v. Erie Ry. Co., 51 Barb. 94; Selnia 
 R. Co. v. Keith, 53 Ga. 178; Evans- 
 ville R. Co. v. Dick, 9 Ind. 433; Noe 
 v. C. B. & Q. Ry. Co., 76 Iowa, 360. 
 
 2 Cott v. Lewiston R Co., 36 N. Y. 
 214; Morrell v. Long Island R. Co., 3 
 N. Y. S. 928; Lefurgy v. New York 
 R. Co., id. 302; Hannaher v. R. Co., 5 
 Dak. 1; Hatch v. Vermont Central 
 R Co., 25 Vt. 29. See Denslow v. 
 New Haven Co., 16 Conn. 98; Ours- 
 ler v. Baltimore R. Co., 60 Md. 358; 
 
I 256.] EMINENT DOMAIN. 523 
 
 stream of water from its natural channel to the injury of the 
 land-owner, 1 and if the diversion is merely convenient and not 
 necessary, it may be restrained by injunction, 2 or by a suit 
 distinct from the assessment of damages. 3 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, 4 and his damages for the flowage 
 of such other land will not be diminished because of the en- 
 hanced value given by the road to his land, in common with 
 others in the vicinity. 5 But by virtue of'such a grant the cor- 
 poration would be authorized to extend ditches from its cul- 
 verts in the grantor's land, and beyond the limits of the loca- 
 tion, 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. 6 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 rail- 
 road company the right of way over his premises, free of 
 charge, if it would construct ditches to carry off water, and the 
 aroad was constructed and the ditches dug, it was held that, after 
 the lapse of seventeen years, the land-owner was to be regarded 
 as having dedicated the right of way to the public use, and 
 
 Hodge v. Lehigh V. R. Co., 39 Fed. Hurst, 25 111. App. 98. See Hutchin- 
 
 Rep. 449; Galveston, etc. Ry. Co. v. son v. Chicago Ry. Co., 37 Wis. 582; 
 
 IBorsky, 2 Tex. Civ. App. 545. Peden v. Chicago Ry. Co., 78 Iowa, 
 
 iStodghill v. C. B. & Q. R. Co., 43 131; Lawrence v. Great Northern 
 
 Iowa, 26; Young v. Chicago Ry. Co., Ry. Co., 20 L. J. n. s. (Q. B.) 293. 
 
 28 Wis. 171; Baltimore R. Co. v. 5 Ibid. A purchaser of a mill can- 
 
 Magruder, 34 Md. 79; St. Louis Ry. not sue on a covenant made by a 
 
 Co. v. Harris, 47 Ark. 340. railroad company with its former 
 
 2 Pugh v. Golden Valley Ry. Co., 12 owner to dig a new channel for the 
 
 Ch. D. 274; 15 Ch. D. 330. mill stream, if the covenant was al- 
 
 s Jaokman v. Mo. Pac. R. Co., 15 ready broken at the time of the pur- 
 Neb. 524. chase. Junction R. Co. v. Sayers, 28 
 
 4 Norris v. Vermont Central R. Co., Ind. 318. 
 
 28 Vt. 99; St. Louis Ry. Co. v. Morris, 6 Babcock v. Western Railroad, 9 
 
 55 Ark. 622; Chicago R. Co. u Carey, Met. 553; McCarty v. St. Paul Ry. Co., 
 
 SO 111. 514; Jacksonville R. Co. v. 31 Minn. 278; Beach v. Wilmington 
 
 Cox, 91 111. 500; St. Louis Ry. Co. v. & W. R. Co., 120 N. C. 498. Contra, 
 
 Harris, 47 Ark. 340; Hoffeditz v. So. under condemnation proceedings as 
 
 Penn. Ry. Co., 18 Atl. Rep. 125; 129 to the right to dig ditches. State v. 
 
 Penn. St. 264; St. Louis Ry. Co. v. Armell, 8 Kansas, 288. 
 
524: 
 
 THE LAW OF WATEKS. 
 
 [Ch. VIII. 
 
 that the company had acquired a vested right thereto, which 
 was not forfeited by its failure to maintain sufficient ditches. 1 
 
 § 257. Same. — A railroad company is liable in damages if an 
 excavation made for its road drains a well or spring on land exca- 
 vated to but not crossed by its line; 2 if the road injuriously af- 
 fects a right of flowage, 3 a water power actually used, 4 or a land- 
 ing, 5 or causes a deposit of sand or refuse, 6 or injury to crops ; 7 
 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 giving such authority have not been 
 complied with ; 8 or if it removes a natural barrier which is not 
 on the land taken, but which protects it from floods in a neigh- 
 boring river, even after the land-owner has released all dam- 
 ages on account of the construction of the road through his 
 land. 9 If a canal company, under the power granted to take 
 
 1 Texas Ry. Co. v. Sutor, 56 Texas, 
 496; 59 id. 29. 
 
 2 Parker v. Boston & Maine Rail- 
 road, 3Cush. 107; Aldrichu Cheshire 
 R. Co., 21 N. H. 359; Peoria Railroad 
 v. Bryant, 57 III 473. As to the right 
 of a railway company to appropriate 
 a spring of water, which is private 
 property, to supply a tank, see Stro- 
 hecker v. Alabama R. Co., 42 Ga. 
 509; Hussner v. Brooklyn City R. Co., 
 30 Hun, 409; Winklemans v. Des 
 Moines N. W. Ry., 62 Iowa, 11. As 
 to springs taken by a water company 
 to supply its reservoir and conse- 
 quent injury to the land not taken, 
 see Finn v. Providence Gas Co., 99 
 Penn. St. 631. 
 
 3 Davidson v. Boston & Maine Rail- 
 road, 3 Cush. 91; Hot Spring Ry. Co. 
 v. Tyler, 36 Ark. 205. 
 
 4 Colorado M. Ry. Co. v. Brown, 15 
 Col. 193; Clark v. Penn. R Co., 145 
 Penn. St. 438. 
 
 5 Railroad Co. v. Sohurmeir, 7 Wall. 
 272; ante, § 255. 
 
 e Trinity Ry. Co. v. Schofield, 72 
 Texas, 496; Wright v. Syracuse R 
 Co., 49 Hun, 445; Wabash R. Co. v. 
 Sanders, 47 111. App. 436. 
 
 ' Chicago R. Co. v. Carey, 90 III. 
 514; Houston R. Co. v. Knapp, 51 
 Texas, 592; Sabine Ry. Co. v. Wood, 
 69 Texas, 679; Gulf Ry. Co. v. Mc 
 Gowan, 73 Texas, 355; Gulf Ry. Co. 
 v. Preston, 74 Texas, 181; Emry v. . 
 Raleigh R. Co., 102 N. C. 209; Omaha 
 Ry. Co. v. Standen, 22 Neb. 343. 
 
 s White v. South Shore R Co., 6 
 Cush. 412. In Pennsylvania the right 
 given by the act of March 23, 1803, 
 to construct a mill-dam in a navi- 
 gable stream, is a revocable license, 
 and the mill-owner cannot recover 
 for a subsequent interference with 
 this right by the construction of a 
 railroad under legislative authority. 
 Susquehanna Canal Co. v. Wright, 9 
 W. & S. 9; Monongahela Nav. Co. v. 
 Coons, 6 W. & S. 101 ; Bigler v. Antes, v 
 21 Penn. St. 288; New York R. Co. V 
 v. Young, 33 id. 175; West Branch 
 Canal Co. v. Mulliner, 68 id. 357. 
 
 s Eaton v. B. C. & M. R Co., 51 N. H. 
 504; Delaware Canal Co. v. Lee, 22 
 N. J. 243. Contra, Alexander v. Mil- 
 waukee, 16 Wis. 247, which appears 
 to be now overruled. See Arimond 
 v. Green Bay Co., 31 Wis. 316: Pum- 
 pelly v. Green Bay Co., 13 WalL 166. 
 
§ 258.] _, EMINENT DOMAIN. . 525 
 
 land by paying the value thereof, pays for a definite quantity 
 to be overflowed 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 
 therefor, even though he fails to prove satisfactorily any rais- 
 ing of the dam. 1 And if such a company enters upon land 
 before acquiring title thereto, either under their charter or by 
 the assent of the land-owner, and erects dams and works nec- 
 essary for its own purposes, and the land, with the works so 
 constructed, is afterwards conveyed by the owner to the com- 
 pany, the latter is not thereby exempted from liability to an 
 action for damages to other land of the same owner from the 
 want of proper care and skill in. the construction or repair of 
 the works. 2 "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 neg- 
 ligence of both combined to produce the injury. 3 A person 
 who purchases land adjacent to a railroad after its construction 
 can recover for damages to his crop from the overflow of streams 
 for the passage of which no sufficient drains or culverts are pro- 
 vided. 4 
 
 § 258. Same — Negligence. — 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 embankments, 5 and is entitled to select a safe and mass- 
 
 i Morris Canal Co. v. Seward, 23 * Atlantic & D. R. Co. v. Peake, 87 
 
 N. J. 219; Den v. Morris Canal Co., Va. 130. 
 
 24 N. J. 588; Plum v. Same, 2 Stock. 5 Bellinger v. New York Central R. 
 
 257. Co., 23 N. Y. 42. In Michigan, a stat- 
 
 2 Morris Canal Co. v. Ryerson, 27 ute which requires a railroad corpo- 
 
 N. J. L. 457 ; 28 id. 97 ; Trenton Water ration to build and maintain a culvert 
 
 Power v. Raff, 36 id. 335; Lehigh when a drain is run across its road- 
 
 Yalley Railroad v. McFarlan, 43 id. bed is held to be an unconstitutional 
 
 615; Valentine v. Central R. Co., 29 burden, under the constitution of 
 
 id. 60, 561 ; St. Louis Ry. Co. v. Wal- that State. Chicago & Grand Trunk 
 
 brink, 47 Ark. 330. Ry. Co. v. Chappell (Mich.), 82 N.' W. 
 
 s Bryant v. Bigelow Carpet Co., 131 Rep. 800. See Chicago, B. & Q. R. Co. 
 
 Mass. 491; Illinois Ry. Co. v. Switzer, v. Chicago, 166 17. S. 226. 
 117 I1L 399. 
 
52(5 
 
 THE LAW OF WATERS. 
 
 [Ch. YIIL 
 
 ive structure in preference to a lighter one which would less 
 obstruct the water. 1 It is not liable to an action for damages 
 if it fails to construct a culvert or bridge so as to pass ex- 
 traordinary floods; 2 if without negligence an accumulation of 
 water is set free by the breaking of a culvert in an embank- 
 ment and the land below is flooded; 3 if it has taken reasonable 
 precautions in constructing a bridge across a stream to prevent 
 unnecessary damage to the adjacent lands by flooding those 
 which are above, 4 or washing away the banks of those below ; * 
 if the road is constructed without a culvert across a cranberry 
 marsh, one side of which afterwards becomes dry ; 6 if, in a case 
 of strict necessity, it closes a watercourse and floods other por- 
 tions of the land than the part which it has taken ; 7 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 ; 8 
 nor is it liable for interest on the damages annually sustained 
 by the plaintiff. 9 
 
 i McCleneghan v. Omaha R. Co., 25 
 Neb. 523. 
 
 -Pittsburgh Railway v. Gilleland, 
 56 Perm. St. 445; Baltimore R. Co. v. 
 Sulphur Spring School District, 96 
 Penn. St. 65; s. C. 3 Penny. (Pa.) 518; 
 Sullens v. Railroad Co., 74 Iowa, 659; 
 Moore v. Railway Co., 75 Iowa, 263; 
 Noe v. Chicago Ry. Co., 76 Iowa, 360; 
 Chicago R. Co. v. Schaffer, 26 111. App. 
 280; Central R. Co. v. Kent, 84 Ga. 
 351; Gulf Ry. Co. v. Holliday, 65 
 Texas, 512; Sabine Ry. Co. v. Hadnot, 
 67 Texas, 503; Gulf Ry. Co. v. Pome- 
 roy, id. 498; Bellinger v. New York 
 Central R. Co., 23 N. Y. 42; Houston 
 R. Co. v. Parker, 50 Texas, 330. It is 
 liable to its servants for personal in- 
 juries caused by the improper condi- 
 tion and washing out of a culvert. 
 Davis v. Central Vermont R Co., 55 
 Vt. 84. So, as to personal injuries 
 caused by a defect in the road which 
 results from ditches and drains, along 
 its sides, being insufficient to protect 
 it from unprecedented floods. Ellet 
 v. St. Louis Ry. Co., 76 Mo. 518; Ely 
 v. Same, 77 Mo. 34. Loss of a passen- 
 ger's baggage by a sudden and ex- 
 traordinary flood is an act of God. 
 
 Strouss v. Wabash Ry. Co., 17 Fed. 
 Rep. 209. So of the passage-ways in. 
 a bridge, drain, or gutter maintained 
 by a city. Sprague v. "Worcester, 13 
 Gray, 193; Allen v. Chippewa Falls, 
 52 Wis. 430; Illinois Central R Co. 
 v. Bethel, 11 Brad. (111.) 17: Hopkins 
 v. Rush River, 70 Wis. 10. 
 
 * Mills v. Greenville R. Co., 13 S. C. 
 97. See § 161, ante; Indiana Ry. Co. 
 v. Adamson, 114 Ind. 282; Kankakee 
 R Co. v. Horan, 22 111. App. 145; 23 
 id. 259; 30 id. 552; 23 N. E. Rep. 621; 
 Ohio Ry. Co. v. Wachter, id. 415. 
 
 4 Mellen v. Western Railroad, 4 
 Gray, 301. See Fordyce v. Russell, 59 
 Ark. 312. 
 
 s Ante, § 248a. 
 
 6 Lyon v. Green Bay Ry. Co., 42 
 Wis. 538; Old Colony R Co. v. Miller, 
 125 Mass. 1. 
 
 7 Johnson v. Atlantic R Co., 35 N. 
 H. 569; Mason v. Kennebec Railroad, 
 31 Maine, 217. 
 
 8 Moyer v. New York Central R Co., 
 88 N. Y. 351; 24 Hun, 138; Rider v. 
 New York R Co., 65 How. Pr. 419. 
 
 9 Lamar v. Charlotte R Co., 10 S. C. 
 476. 
 
§ 259.] EMINENT DOMAIN. 527 
 
 § 259. Continuing trespasses. — 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 jury were 
 erroneously instructed in that action not to consider future 
 injuries by reason, of the maintenance of the embankment. 1 
 So, a recovery of prospective damages, in an action for so 
 constructing a road as to unnecessarily wash away the plaint- 
 iff'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. 2 If a railroad company commits a trespass 
 by digging a ditch on another's land, it does not acquire the 
 right to re-enter and fill up the ditch. The continued exist- 
 ence of the ditch is not always a continuing trespass, and if, 
 after the recovery of a judgment for the injury, new and un- 
 foreseen damage results, this does not give a new cause of 
 action. 3 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 re- 
 cover only the difference between the two amounts. 4 A rail- 
 road 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 pur- 
 pose. 5 
 
 1 Stodghill v. C, B. & Q. R Co., 53 Manson v. Maffra, 7 Vic. L. R. (L). 
 Iowa, 341; Powers v. Council Bluffs, 364. 
 
 45 id. 652; East St. Louis Ry. Co. v. 3 Kansas Pacific Ry. Co. v. Mihl- 
 
 Eisentraut, 134 111. 96; Birdu Hanni- man, 17 Kansas, 224. See Cuniber- 
 
 bal R. Co., 30 Mo. App. 365 ; Chicago land Canal v. Hitchins, 65 Maine, 140 ; 
 
 R. Co. v. Henneberry, 28 I1L App. Sims v. Ohio River & C. Ry. Co. (56 
 
 110. See Great Laxey Mining Co. v. S. C), 33 S. E. Rep. 746; Rosenthal v. 
 
 Clague, 4 App. Cas. 115; Ward v. Taylor Ry. Co., 79 Texas, 325. 
 
 Albemarle & R. R. Co., 112 N. C. 168; 4 Workman v. Great Northern Ry. 
 
 Fossum v. Chicago, etc. Ry. Co. Co., 32. L. J. N. S. (Q. B.) 279. See 
 
 (Minn.), 82 N. W. Rep. 979. § 161, ante. 
 
 2 Fowled New Haven Co., 112 Mass. * Dorian v. East Brandy wine R. 
 334; 107 Mass. 352; ante, § 210. See Co., 46Penn. St. 520; Clark v. Penn.. 
 Morris v. Receivers, 65 Fed. Rep. 584; R. Co,, 145 id. 438; Haslam v. Galena 
 
528 THE LAW OF WATERS. [Ch. VIII. 
 
 § 260. Municipal corporations — Flowage Iby.— A city or 
 town which constructs a street across a watercourse without 
 proper culverts or drains, 1 or which negligently constructs or 
 maintains the bridges or culverts in a highway across a nat- 
 ural stream, so as to cause the wa,ter 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. 2 So, if a municipal corporation changes 
 the grade of a street and thereby diverts a natural stream, 3 or 
 causes the drainage to flow into a mill-race and corrupt the 
 water, 4 it is liable to an action unless a mode of assessing the 
 damages is provided by statute. It is important to distinguish 
 between natural 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. 5 It is lia- 
 ble 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 watercourse 
 may not form a natural stream. 6 But it would not necessarily 
 
 Railroad, 64 111. 353; Young v. Har- bury, 45 Conn. 550; Haynes v. Bur- 
 rison, 17 Ga. 30; 9 Ga. 359; Paterson lington, 38 Vt. 350; Stone v. Augusta, 
 v. Boom Co., 3 Dillon, 465; Willamett 46 Maine, 127; Baltimore v. Merry- 
 Falls Co. v. Kelly, 3 Oregon, 99. See man, 86 Md. 584; Blizzard v. Dan- 
 King v. C, B. & Q. R. Co., 71 Iowa, ville, 175 Penn. St. 479; Keithsburg 
 696. v. Simpson, 70 I1L App. 467; Hunts- 
 
 iSpelman v. Portage, 41 Wis. 144; ville, v. Ewing, 116 Ala. 576; Geur- 
 
 Barden v. Portage, 79 Wis. 126; Mays- kink v. Petaluma, 112 Cal. 306; Will- 
 
 ville v. Stanton (Ky.), 14 S. W. Rep. son v. Boise City (Idaho), 55 Pac. Rep. 
 
 675; Hazard v. Council Bluffs, 87 887. 
 
 Iowa, 51; Young v. Kansas City, 27 3 Helena v. Thompson, 29 Ark. 569; 
 
 Mo. App. 101; Seifert v. Brooklyn, State w Hanna, 97 Ind. 469; ConnifE 
 
 101 N. Y. 136; Lehn v. San Francisco, v. San Francisco, 67 Cal. 45. 
 
 66 Cal. 76; San Antonio v. Gwynn 4 Columbus v. Hydraulic Woollen 
 
 (Texas), 15 S. W. Rep. 509; Wright v. Mills Co., 33 Ind. 435. 
 
 Wilmington, 92 N. C. 156. 6 Gardiner v. Camden, 86 Maine, 
 
 2 Anthony v. Adams, 1 Met. 284, 377; Byrne v. Farmington, 64 Conn. 
 
 285; Lawrence v. Fairhaven, 5 Gray, 367; Albany v. Sikes, 94 Ga. 30; Hel- 
 
 110; Perry v. Worcester, 6 Gray, 544; ena v. Thompson, 29 Ark. 569, 574; 
 
 Parker v. Lowell, 11 Gray,. 353; infra, § 272. 
 
 Sprague v. Worcester, 13 Gray, 193; "Rose v. St. Charles, 49 Mo. 509; 
 
 Wheeler v. Worcester, 10 Allen, 591; Burton v. Chattanooga, 7 Lea (Tenn.), 
 
 Hill v. Boston, 122 Mass. 358; Drew 739; Allentown v. Kramer, 73 Penn. 
 
 v. Westfield, 124 Mass. 461; Barns v. St. 406; Blakely v. Devine, 36 Minn. 
 
 Hannibal, 71 Mo. 449; Mootryf. Dan- 53. A city which attempts to change 
 
§ 261.] EMINENT DOMAIN. 529 
 
 be liable for similar injuries caused by surface water. 1 If the 
 land-owner opens an artificial watercourse across a highway 
 already established through his land, he is bound to maintain 
 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. 2 A town is not responsible for backwater , 
 caused by an obstruction placed in a culvert by a mere wrong- 
 doer. 3 The platting of a city or town is a deed in fee simple, 
 and a reservation of the right to construct and use a mill-race 
 across a street included therein gives only an easement in the 
 street to the owners, who are bound to maintain a bridge across 
 the street at this point. 4 
 
 § 261. Same. — When the legislature confers upon a munici- 
 pal 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 planning, 5 or in the mode 
 of carrying out the system legally adopted, 6 or omission to 
 take due precaution to guard against the consequences of its 
 
 the channel of a stream, must sub- Q. B. 550; Hoagland v. Sacramento, 
 
 stantially comply with the require- 52 Cal. 142. 
 
 ments of its charter. McKernan v. . i Waterloo v. Union Mill Co., 59 
 
 Indianapolis, 38 Ind. 223. Iowa, 437; Wood v. N. Y. Nat. W. 
 
 'Ibid.; Pflegar v. Hastings Ey. Co., Co., 33 Kansas, 590. See Abbott v. 
 
 28 Minn. 510; Eobbins v. Willmar, 71 Cottage City, 143 Mass. 522. 
 
 Minn. 403; Chicago, etc. E. Co. v. 6 Terre Haute v. Hudnut, 112 Ind. 
 
 Moore, 63 111. App. 1 63. 542. A sewer through private lands 
 
 2 Perley v. Chandler, 6 Mass. 454; is a taking. Smith v. Atlanta, 92 Ga. 
 
 Lowell v. Locks & Canals, 104 Mass. 119. See Betham v. Philadelphia 
 
 18; Woodruff v. Neal, 28 Conn. 165; (Penn.), 46 Atl. Eep. 448; King v. 
 
 Moran v. McClearns, 63 Barb. 185; Kansas City, 58 Kan. 334; Cummings 
 
 Woodring v. Fords Township, 28 v. Toledo, 12 Ohio Cir. Ct. 650. 
 
 Penn. St. 355; Fleming's Appeal, 65 6 Stonehouseu^nniskillen, 32 Q. B. 
 
 id. 444; Merrill v. Kalamazoo, 35 (Can.) 562; Scroggie v. Guelph, 36 id. 
 
 Mich. 211; Nobles v. Langly, 66 N. C. 534; Evansville v. Decker, 84 Ind. 
 
 •287; Boiling v. Mayor, 3 Eand. 563; 325; Hardy v. Brooklyn, 90 N. Y. 435 ; 
 
 Eyber v. County Com'rs, 49 Md. 257. Garrett v. Canandaigua, 135 N. Y. 
 
 3 Peck v. Ellsworth, 36 Maine, 393; 436; Munk v. Watertown, 22 N. Y. S. 
 
 Steele v. Southeastern Ey. Co., 16 227; Johnson v. District of Columbia, 
 34 
 
530 
 
 THE LAW OF WATERS. 
 
 [Ch. YIIL 
 
 operation ; 1 but not for injuries which are caused by a defect 
 or insufficiency 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. 2 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 indi- 
 vidual to his injury, 3 either immediately or by the force of 
 
 1 Mackey, 427; State v. Portland, 74 
 Maine, 268; Perkins v. Lawrence, 136 
 Mass. 305; Seifert v. Brooklyn, 15 
 Abb. N. Cas. 97; Van Rensselaer v. 
 Albany, id. 457; Nashville v. Suther- 
 land, 92 Tenn. 335; Seaman v. Mar- 
 shall, 116 Mich. 327; Kiesel v. Ogden 
 City, 8 Utah, 237. 
 
 i Child v. Boston, 4 Allen, 41; Em- 
 ery v. Lowell, 104 Mass. 13; 109 Mass. 
 197; Washburn & Moen Manuf. Co. 
 v. Worcester, 116 Mass. 458; Hill v. 
 Boston, 122 Mass. 358; Allen v. Bos- 
 ton, 159 Mass. 324; Ashley v. Port 
 Huron, 35 Mich. 296; Mills v. Brook- 
 lyn, 32 N. Y. 489; Hardy v. Brooklyn, 
 90 N. Y. 435; Schreiber v. New York, 
 32 N. Y. S. 744; Chan Sing v. Port- 
 land (Oreg.), 60 Pac. Rep. 718; Peru 
 v. Brown, 10 Ind. App. 597; McCarthy 
 v. Far Rockaway, 38 N. Y. S. 989; 
 Benson v. Wilmington, 9 Houst. 359; 
 Baltimore v. Schnitker, 84 Md. 34; 
 Knostman & P. F. Co. v. Davenport, 
 99 Iowa, 589; Ostrander v. Lansing, 
 111 Mich. 693; District of Columbia 
 v. Gray, 6 App. D. C. 314; Donahoe v. 
 Kansas City, 136 Mo. 657; Schroeder 
 v. Baraboo, 93 Wis. 95; Clay v. St. 
 Albans, 43 W. Va. 539; Lebanon v. 
 Twiford, 13 Ind. App. 384; Schnurr 
 v. Huntington County Com'rs, 22, id. 
 188; Lindsay v. Sherman (Tex. Civ. 
 App.), 36 S. W. Rep. 1019; Magee v. 
 Brooklyn, 45 N. Y. S. 473; Moody v. 
 Saratoga Springs, id. 365; Peoria V. 
 Eisler, 62 111. App. 26; Dallas v. Mc- 
 Allister (Tex. Civ. App.), 39 S. W. 
 Rep. 173; Com. v. Yost, 11 Penn. Sup'r 
 Ct. 323; 38 Am. L Reg. n. s. 520. It 
 
 is presumable that the Legislature- 
 intended, when practicable, that the 
 work authorized should be done with- 
 out creating a nuisance. Morse v. 
 Worcester, 139 Mass. 389; Seymour 
 v. Cummins, 119 Ind. 148. 
 
 2 Ibid. ; Johnston v. District of Co- 
 lumbia, 118 U. S. 19. 
 
 'Post, § 272; Cator v. Board of 
 Works, 34 L. J. (Q. B.) 74; Carmichael 
 v. Texarkana City, 94 Fed. Rep. 561; 
 Judd v. Hartford (72 Conn.), 44 AtL 
 Rep. 510; Winn v. Rutland, 52 Vt. 
 481 ; Ashley v. Port Huron, 35 Mich. 
 296; Burford v. Grand Rapids, 5£ 
 Mich. 98, 102; Roweu Portsmouth, 56- 
 N. H. 291; Rochester v. White Lead 
 Co., 3 N. Y. 463; Mayor v. Bailey, £ 
 Denio, 423; Lewenthal v. Mayor, 61 
 Barb. 511; 5 Lans. 532; Bradt v. Al- 
 bany, 5 Hun, 591; Nevins v. Peoria, 
 41 111. 502; Aurora v. Gillett, 56 111. 
 132; Jacksonville v. Lambert, 62 111. 
 519; Hildreth v. Lowell, 11 Gray, 
 345; Manning v. Lowell, 130 Mass. 
 21; Bohan v. Avoca Borough, 154 
 Penn. St. 404; Pettigrew v. Evans- 
 ville, 25 Wis. 223; Alexander v. Mil- 
 waukee, 16 Wis. 248; Smith v. Mil- 
 waukee, 18 Wis. 63; Champion v. 
 Craudon, 84 Wis. 405; Vincennes v. 
 Richards, 23 Ind. 381; Weis v. Madi- 
 son, 75 Ind. 241; Niles' Works v. Cin- 
 cinnati, 2 Disney, 400; Cotes v. Dav- 
 enport, 9 Iowa, 227; Kobs v. Minne- 
 apolis, 22 Minn. 159; Simmer v. St. 
 Paul, 23 Minn. 408; Dudley v. Buf- 
 falo, 73 Minn. 347; Dell Rapids Mer- 
 cantile Co. v. Dell Rapids (11 S. D.), 75 
 N. W. Rep. 898; Rychlicki v. St. Louis, 
 
§ 261.] 
 
 EMINENT DOMAIN. 
 
 531 
 
 gravitation ; 1 if it drains water through sewers and drains into 
 a canal owned by a private corporation and thereby causes in- 
 jury to the canal; 2 if, in like manner, it obstructs a mill-race; 3 
 if it unduly corrupts a natural stream, or discharges mud and 
 filth into a private dock so as to interfere with the access 
 thereto and the right to lay vessels thereat; 4 if it causes dis- 
 ease, 5 or the destruction of a natural water-course by impure 
 discharges and overflows; 6 if it constructs the sewer unskill- 
 fully, 7 or negligently suffers it to be out of repair, 8 or makes a 
 
 115 Mo. 662; Phinizy v. Augusta, 47 
 Ga. 260; Troy v. Coleman, 58 Ala. 
 570; Union Springs v. Jones, 58 Ala. 
 654; Houston v. Bryan, 2 Tex. Civ. 
 App. 553. In such cases, the cause 
 of action is not neglect in the per- 
 formance of a corporate duty, ren- 
 dering 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 prop- 
 erty of another outside the limits of 
 the public work. Hill v. Boston, 122 
 Mass. 358. The corporation is liable 
 for injuries caused by sewers of 
 which it has assumed the control 
 and management as well as those 
 which it has itself constructed. Tay- 
 lor v. Austin, 32 Minn. 247; Craw- 
 fordsville v. Bond, 96 Ind. 286; Bruns- 
 wick Gas Light Co. v. Brunswick 
 Village Corp., 92 Maine, 493. See 
 Titus v. Boston, 161 Mass. 209 
 
 1 Woodward v. Worcester, 121 Mass. 
 245; Drexel v. Lake, 127 111. 54. 
 
 2 Locks arid Canals v. Lowell, 7 
 Gray, 223. 
 
 3 Columbus v. Woolen Mills, 33 Ind. 
 435; Elgin Hydraulic Co. v. Elgin, 74 
 111. 433. 
 
 4 Haskell v. New Bedford, 108 Mass. 
 208; Clark v. Peckham, 9 R. L 455; 
 Butchers' Ice Co. v. Philadelphia, 156 
 Penn. St. 54; Richardson v. Boston, 
 19 How. 263; Smith v. Sedalia (Mo.), 
 53 S. W. Rep. 907. A city is also lia- 
 ble for diverting a natural stream 
 which deposits sand and earth in 
 front of the plaintiff's wharf and im- 
 
 pairs its value. Barron v. Baltimore, 
 4 Am. Jur. 203; ante, § 123. 
 
 5 Eufaula v. Simmons, 86 Ala. 515; 
 Jacksonville v. Doan, 145 111. 23; Ed- 
 monson v. Moberly, 98 Mo. 523. 
 
 6 Butler v. Edgewater, 6 N. Y. S. 
 174; Stoddard v. Saratoga Springs, 4 
 id. 745; Nolan v. New Britain, 69 
 Conn. 668; Joplin Cons. M. Co. v. 
 Joplin, 124 Mo. 129; Richmond v. 
 Test, 18 Ind. App. 482. 
 
 'Winon v. Rutland, 52 Vt. 481; 
 Thurston v. St. Joseph, 51 Mo. 510; 
 Edmondson v. Moberly, 98 Mo. 523; 
 Indianapolis v. Hunter, 30 Ind. 235; 
 Child v. Boston, 4 Allen, 41 ; Emery 
 v. Lowell, 104 Mass. 13; Merrifield v. 
 Worcester, 110 Mass. 216; Le wen thai 
 v. New York, 5 Lans. 532; 61 Barb. 
 511; Fleming v. Manchester, 44 L. T. 
 517; reversed in C. A. (see 3 Fisher's 
 C. L. Dig. 2135) ; Jacksonville v. Lam- 
 bert, 62 111. 519; Savannah v. Spears, 
 66 Ga. 304; Frostburg v. Hitchins,70 
 Md. 56; Frostburg v. Duffy, id. 47; 
 Gross v. Lampasas, 74 Texas, 195; 
 Nashville v. Comer, 88 Tenn. 415. 
 
 8 Ibid. ; McCarthy v. Syracuse, 46 
 N. Y. 194; Barton v. Syracuse, 36 
 N. Y. 54; 37 Barb. 292; New York v. 
 Furze, 3 Hill, 612; Gilman v. Laconia, 
 55 N. H. 130; Lloyd v. New York, 5 
 N. Y. 369; Hudson v. New York, 9 
 N. Y. 163; 5 Sand. 289; Wilson v. 
 New York, 1 Denio, 595; South Bend 
 v. Paxton, 67 Ind. 228; Hammond v. 
 Vestry of St. Pancras, L. R. 9 C. P. 
 316; Fleming v. Manchester, 44 L. T. 
 N. s. 517; Simmer v. St. Paul, 23 Minn. 
 
532 
 
 THE LAW OF WATERS. 
 
 [Ch. VIII. 
 
 change in the structure, .or has notice that such change is made 
 by others, by means of which the passage of the water or sew- 
 age is obstructed. 1 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. 2 The rule that a municipal corporation 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. 3 It is competent for the legislature 
 to authorize a city to turn a natural stream into a sewer, 4 and 
 the plaintiff must show special injury to entitle him to relief 
 otherwise than as provided by the statute. 5 
 
 § 262. Same. — Cities have been held not liable for injury 
 to others caused by the overflow of their sewers in the follow- 
 ing 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; 6 where the city omits 
 
 408; Vanderslice v. Philadelphia, 103 
 Penn. St. 102; Buchanan v. Duluth, 
 
 40 Minn. 402; Pearson v. Duluth, 40 
 Minn. 438; Pottner v. Minneapolis, 
 
 41 Minn. 73; Sherwood v. Judge, 40 
 Minn. 22; Taylor v. Austin, 32 Minn. 
 247; New Albany v. Lines, 21 Ind. 
 App. 380; Litchfield v. Whitenack, 
 78 111. App. 364. See Cohen v. Bel- 
 lenot (97 Va.), 32 S. E. Rep. 455. 
 
 iNims v. Mayor, 59 N. Y. 500; 
 Donohue v. New York, 3 Daly, 65; 
 Niles' Works v. Cincinnati, 2 Disney 
 (Ohio), 400. As to injunction, see 
 Paine v. Delhi, 116 N. Y. 228; Boston 
 Belting Co. v. Boston, 149 Mass. 44; 
 152 Mass. 307; O'Brien v. Worcester, 
 172 Mass. 348; Kranz v. Baltimore, 
 64 Md. 491. 
 
 2 Amick v. Tharp. 13 Gratt. 564. 
 
 3 Byrnes v. Cohoes, 67 N. Y. 204; 5 
 Hun, 602; post, § 270. See Cochrane 
 v. Madden, 152 Mass. 365; McBridev. 
 Akron, 12 Ohio Cir. Ct. 610. 
 
 4 Butler v. Worcester, 112 Mass. 
 541; .Diamond Match Co. v. New 
 Haven, 55 Conn. 510. See Kellogg v. 
 New Britain, 62 Conn. 232; Fisk v. 
 Hartford, 69 Conn. 375; Piatt v. Wat- 
 erbury (Conn.), 45 Atl. Rep. 154; Wat- 
 son v. New Milford (id.), id. 167; 
 Strohl v. Ephrata, 178 Penn. St. 50; 
 Com. v. Stevens, id. 543." 
 
 5 Washburn & Moen Co. v. Worces- 
 ter, 116 Mass. 458; Workman v. Wor- 
 cester, 118 Mass. 168. An interfer- 
 ence with private rights not necessa- 
 rily affected by the public needs may 
 be the ground of an action : as where 
 the workmen of the defendant, a 
 city, in digging a sewer in one of 
 its streets, uncover, and negligently 
 leave exposed, a water-pipe leading 
 to a greenhouse, so that the water 
 freezes and the owner loses his sup- 
 ply. Stock v. Boston, 149 Mass. 410. 
 
 6 Smith v. Mayor, 66 N. Y. 295; 
 4 Hun, 637; Wheeler v. Worcester, 10 
 
§ 262.] 
 
 EMINENT DOMAIN. 
 
 533 
 
 to construct a sewer, or fails to make it of sufficient size, the 
 duty of determining the location and dimensions of sewers 
 being in its nature judicial; J where the injury is caused by an 
 error of judgment, as to the required capacity of the sewer, 
 • on the part of the officers of or 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 previ- 
 ously occurred ; 3 where a public sewer overflows by the neg- 
 ligence 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, 4 or contrary to its pro- 
 visions, 5 or when surface water flows into a cellar which is not 
 connected by a drain with the public sewer, 6 or where an in- 
 
 Allen, 591: Allen v. Boston, 159 Mass. 
 324; Good v. Altoona, 162 Penn. St. 
 493; Nashville v. Sutherland, 92Tenn. 
 335. As to water mains, see Fidelity, 
 etc. Co. v. Seattle, 16 Wash. 445. A 
 city cannot by prescription gain im- 
 munity from clearing a stream used 
 as a sewer. Owens v. Lancaster, 182 
 Penn. St. 257. There is no Massachu- 
 setts general law authorizing towns, 
 in their corporate capacity, to lay out 
 or construct drains or sewers. See 
 Lemon v. Newton, 134 Mass. 476. 
 
 i Mills v. Brooklyn, 32 N. Y. 489; 
 Kosmak v. New York, 53 Hun, 329; 
 Flagg v. Worcester, 13 Gray, 601; 
 Little Rock v. Willis, 27 Ark. 572; 
 Carr v. Northern Liberties, 35 Penn. 
 St. 324; Fair v. Philadelphia, 88 id. 
 309; Collins v. Same, 93 id. 272; Sul- 
 livan v. Pittsburgh, 40 W. N. C. 547; 
 Harper v. Milwaukee, 30 Wis. 365; 
 Netzer v. Crookston City, 59 Minn. 
 244. 
 
 2 Van Pelt v. Davenport, 42 Iowa, 
 308; Rozellu. Anderson. 91 Ind. 591. 
 But see Helena v. Thompson, 29 Ark. 
 569; Leeds v. Richmond, 102 Ind. 372; 
 Atchison v. Challis, 9 Kans. 612; De- 
 troit v. Corey, 9 Mich. 165; Philadel- 
 phia R. Co. v. Anderson, 94 Penn. St. 
 351; Los Angeles Cem. Ass'n v. Los 
 
 Angeles, 103 Cal. 461; DeBakeru. So. 
 CaL Ry. Co., 106 Cal. 257. In Van 
 Pelt v. 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. 
 
 s Watson v. Kingston, 114 N. Y. 88; 
 Madison v. Ross, 3 Ind. 236; Cold- 
 water v. Tucker, 36 Mich. 474; Pow- 
 ers v. Council Bluffs, 50 Iowa, 197; 
 German Th. School v. Dubuque, 64 id. 
 736; Haney v. Kansas City, 94 Mo. 
 334; Taubert v. St. Paul, 68 Minn. 
 519; Scott.u Provo City, 14 Utah, 31; 
 Jordan v. Mt. Pleasant, 15 id. 449; 
 Allen v. Chippewa Falls, 52 Wis. 430; 
 Savannah v. Cleary, 67 Ga. 153. So 
 personal injuries caused by a wash- 
 out. McPherson v. St. Louis Ry. Co., 
 97 Mo. 253; Murphy v. Indianapolis, 
 83 Ind. 76. 
 
 4 Ranlett v. Lowell, 126 Mass. 431. 
 See Terry v. New York, 8 Bosw. 504; 
 Stoddard v. Saratoga Springs, 4 N. Y. 
 S. 745; Sheridan v. Salem, 148 Mass. 
 196; Henderson v. Minneapolis, 32 
 Minn. 319. 
 
 5 Breuck v. Holyoke, 167 Mass. 258. 
 
 e Barry v. Lowell, 8 Allen, ' 127; 
 Dewein v. Peoria, 24 111. App. 396. 
 
534: THE LAW OF WATERS. [Ch. VIII. 
 
 jury is caused by water accumulated in a square left below 
 grade in making a public improvement. 1 Where a canal boat 
 moored to a city wharf alongside and beneath the opening of 
 a large main sewer was sunk during a heavy shower by the 
 water issuing from the sewer, the city was held not liable. 2 A 
 county, being an arm or branch of the State government, is"" 
 not, in the absence of statute, liable for the neglect or wrong- 
 ful acts of its officers, such as the flooding of land in the erec- 
 tion of a county jail. 3 
 
 i Herriog v. District of Columbia, 3 * Downing v. Mason County, 87 Ky. 
 
 Mackey, 572. 208. But, as to pollution by alms- 
 
 2 Behan v. New Tork, 24 Fed. Eep. house sewage, see Lefrois v. Monroe 
 
 239. County, 162 N. "Y. 563. 
 
CHAPTER IX. 
 
 SURFACE AND SUBTERRANEAN WATERS — MINES. 
 
 SECTION. 
 
 263, 264 Surface water defined. 
 
 265. The common-law rule as to such water. 
 
 266. The rule of the civil law. 
 
 267. Rights in surface water not analogous to rights in watercourses. 
 
 268. Exclusion of surface water. 
 
 269. Municipal corporations — Surface water in streets. 
 
 270. Ibid. — Duty as to sewers and gutters. 
 
 271. Surface water collected and discharged through artificial channels. 
 272, 273. Ibid. — Municipal and railroad corporations. 
 
 274 Land-owner may drain into a watercourse by artificial channels. 
 
 275. He may, at common law, shut out surface water by embanking. 
 
 276. But he cannot do this under the civil law. 
 
 277. Exclusion of surface water flowing in highways. 
 
 278. Discharge of polluted surface water. 
 
 279. Prescriptive rights. 
 
 280. Percolating waters. 
 
 281. Underground waters having a denned channel and course. 
 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 actionabla 
 
 289. Sinking of land caused by withdrawing subterranean waters. 
 
 290. Malicious motive as a cause of action. 
 
 291. Property in petroleum oil beneath the surface. 
 292, 293. Eaves-drip. 
 
 294 Mines — Flow of subterranean waters. 
 
 295. Increasing the flow of such waters artificially is actionable. 
 
 296. Fletcher v. Rylands. 
 
 297, 298. Proximate and remote causa 
 
 § 263. Surface water — Defined. — Water spread over the 
 surface of land, or gathering into natural depressions, 1 or into 
 
 1 Jeffers v. Jeffers, 107 N. Y. 650; West v. Taylor, 16 Oregon, 165; Pyle 
 Bloodgood v. Ayers, 108 N. Y. 400; u Richards, 17 Neb. 180; Jones v. Wa- 
 37 Hun, 356 ; 2 Am. St. Rep. 443, note ; bash Ry. Co., 18 Mo. App. 251 ; Kan- 
 Kelly v. Dunning, 39 N. J. Eq. 482; sasu.Swope, 79 Mo. 446; Parke County 
 
536 THE LAW OF WATERS. [Ch. IX. 
 
 swamps, 1 or bayous, or percolating the soil beneath the surface, 
 if flowing in no definite channel, does not constitute a water- 
 course, and is not subject to the principles of law regulating 
 the rights of riparian owners. 2 Surface water may be said to 
 form a watercourse at the point where it begins to form a 
 reasonably well-defined channel with bed, banks or sides, and 
 current, 3 although the stream itself may be very small, and 
 the water may "not flow continuously; 4 and surface water 
 ceases to be such after entering within the banks of a water- 
 course, 5 or forming a lake. 6 Mere surface drainage through a 
 ditch extending across different tracts of land does not form 
 a watercourse. 7 By the common law no rights can be claimed 
 jure natures in the flow of surface water, and its detention, 
 expulsion, or diversion is not an actionable injury, even when 
 
 Com'rs v. Wagner, 138 Ind. 609; Kan- I1L 354; 28 111. App. 110; Wadsworth 
 
 sas City R. Co. v. Eiley, 33 Kan. 374; .v. Smith, 11 Maine, 278; Gibbs v. 
 
 Rummell v. Lamb, 100 Mich. 424; 26 Williams, 25 Kan. 214; Palmer v. 
 
 Cent L J. 26; 17 id. 42, 62; 29 id. 289. Waddell, 22 Kan. 352; Schlichler v. 
 
 The decisions here collected upon Phillipy, 67 Ind. 201; Hoyt v. Hud- 
 
 " surface water " are not completely son, 27 Wis. 656; Fryer v. Warne, 29 
 
 exhaustive, like those upon the other Wis. 511 ; Eulrich v. Richter, 37 Wis. 
 
 titles of this work, as they are very 226; 41 Wis. 318; Luther v. Winni- 
 
 numerous and contain much repeti- simmet Co., 9 Cush. 171; Barnes iv 
 
 tion. Sabron, 10 Nev. 217; ante, §41; Mo 
 
 1 Warmack v. Brownlee, 84 Ga. 196 ; Kinley v. Union Co., 42 Wis. 203 ; 47 
 St. Louis Ry. Co. v. Schneider, 30 Mo. Wis. 324; Green v. Carotto, 72 CaL 
 App. 620; Cleveland, etc. Ry. Co. v. 267; Ferris v. Wellborn, 64 Miss. 29; 
 Huddleston, 21 Ind. App. 620. See Benson v. Chicago R Co., 78 Mo. 504; 
 supra, §213. Sewage flowing through Hahn v. Miller, 68 Iowa, 745; Cairo, 
 a populous city is not a natural water- etc. R. Co. v. Brevoort, 62 Fed. Rep. 
 course. Murphy v. Wilmington, 5 129; 23 Am. L. Rev. 372. 
 
 Del. Ch. 281. 3 Hebron Gravel Road Co. v. Har- 
 
 2 Supra, §41;Swettu Cutts, 50 N. vey, 90 Ind. 192; Arthur v. Grand 
 H. 439; Morrison v. Railroad Co., 67 Trunk Ry. Co., 22 Ont. App. 89. 
 Maine, 353; Stanchfleld v. Newton, <Hawley v. Sheldon, 64 Vt. 491; 
 142 Mass. 110, 116; Wagner v. Long Churchill v. Lauer, 84 Cal. 233; Sim- 
 Island R. Co., 5 Thomp. & C. (N. Y.) mons v. Winters, 21 Oregon, 35 ; M'or- 
 163; 2 Hun, 633; 70 N. Y. 614; Earl rissey v. C, B. & Q. R Co., 38 Neb. 
 v. De Hart, 12 N. J. Eq. 280; 72 Am. 406; Wolf v. Crothers, 21 Penn. Co. 
 Dec. 395, note; Shields v. Arndt, 3 Ct. 627. 
 
 Green Ch. 234; Carlisle v. Cooper, 21 5 Ibid.; Jones v. Hannovan, 55 Mo. 
 
 N. J. Eq. 576, 581; 19 id. 256; Curtis 462; Lux v. Haggin, 69 Cal. 255. 
 
 v. Ayrault, 47 N. Y. 73; Livingston ^Schaefer v. Marthaler, 34 Minn. 
 
 v. McDonald, 21 Iowa, 160; Boynton 487. 
 
 u'Gilman, 53 Vt. 17; Thunder Bay ' Stanchfleld v. Newton, 142 Mass. 
 
 B. Co. v. Speechley, 31 Mich. 336; Chi- 110; Dissette v. Lowrie, 6 Ohio N. P. 
 
 cago, etc. Ry. Co. v. Henneberry, 153 392. 
 
§ 264.] SURFACE WATEKS. 537 
 
 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 averment which the plaintiff must prove 
 in order to maintain his 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. 1 But if a well-defined, nat- 
 ural stream empties into a swamp or lake, where all definite 
 channel is lost, and emerges again into a well-defined channel 
 below, it is a question of fact dependent upon the extent of 
 the swamp or lake, whether it is the same stream ; and if it 
 is, the owners of land upon the lower stream have riparian 
 rights, and an owner of land upon the stream above the swamp 
 or lake is not entitled to divert water therefrom to their in- 
 jury. 2 
 
 § 264. Same. — 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. 3 In broken regions of country, intersected 
 by long, deep ravines, or surrounded by high, steep hills or 
 bluffs, 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 such waters partake 
 more of the nature of natural streams than of ordinary surface 
 water, and, to a certain extent, are governed by the same 
 
 i Griffith v. Jenkins, 2 Allen, 589; 108 Mass. 219; Gillett v. Johnson, 30 
 
 Munkers v. Kansas City R. Co., 60 Conn. 180; Briscoe v. Drought, 11 Ir. 
 
 Mo. 334. C. L. 250; Hinkle v. Avery, 88 Iowa,. 
 
 2 Mansford v. Ross, 4 N. Z. L. R. 47; Naegely v. Saginaw, ,100 Mich. 
 (S. Ct.) 290; 5 id. (Ct. of App.) 33; 532; Rigney v. Tacoma L. & W. Co., 
 Byrne v. Minneapolis Ry. Co., 38 Minn. 9 Wash. 576 ; Munkres v. Kansas City 
 212; Case v. Hoffman, 84 Wis. 438; R. Co., 72 Mo. 514; Hebron Gravel 
 72 N. W. Rep. 390; Ne-Pee-Nauk Club Road Co. v. Harvey, 90 Ind. 192; Rob- 
 v. Wilson, 96 Wis. 290; Yazoo, etc. R. inson v. Shanks, 118 Ind. 125; Lam- 
 Co. v. Davis, 73 Miss. 678; Warmack bertu Alcorn, 144111. 313; New York, 
 v. Brownlee, 84 Ga. 196; St. Louis Ry. etc. R. Co. v. Speelman, 12 Ind. App. 
 Co. v. Schneider, 30 Mo. App. 620. 372; Alcorn v. Sadler, .66 Miss. 221. 
 
 3 Ante, § 41; Macomber v. Godfrey, 
 
538 THE LAW OF WATERS. [Ch. IX. 
 
 rules ; and no one has a right to obstruct or divert such wat- 
 ers so as to cast them upon the property of others to their in- 
 jury. 1 Eut in general, in order to constitute 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. 2 The water 
 from a flowing stream, when spread over the adjoining land 
 by a freshet, has been treated as surface water. 3 
 
 §265. Same — The common-law rule. — According to the 
 rule of the common law, which is accepted in England, Massa- 
 chusetts, Maine, Yermont, New York, New Hampshire, Ehode 
 Island, New Jersey, Michigan, Minnesota, "Wisconsin, "Washing- 
 ton, New Mexico, Texas, etc., a land-owner may appropriate to 
 his own use or expel from his land all mere surface water or 
 superficially percolating waters, in draining his soil for agri- 
 culture, 4 in collecting it for domestic purposes, 5 or for the sole 
 purpose of depriving an adjoining owner of it, 6 and any person, 
 from whose land it is withheld or whose water supply is de- 
 pleted, will, in the absence of an express grant, 7 have no right 
 of action for such diversion or obstruction. 8 Surface water is 
 regarded as a common enemy which every proprietor may fight 
 
 1 Grand Junction Canal Co. v. Shu- mer, 26 Penn. St. 407; Lessard v. 
 gar, L. R. 6 Ch. 483; Bowlsley v. Stram, 62 Wis. 112. 
 
 Speer, 31 N. J. L. 351; Kelly v. Dun- ^Cass v. Dicks, 14 Wash. 75. See 
 
 ning, 39 N. J. Eq. 482; McClure v. Gilfillan v. Schmidt, 64 Minn. 29; 
 
 Red Wing, 28 Minn. 186; Ramsdale Campbell v. Nicolini (Tex. Civ. App.), 
 
 v. Foote, 55 Wis. 557, 561; Town v. 35 S. W. Rep. 74; infra, § 275. 
 
 Mo. Pac. Ry. Co., 50 Neb. 768; post, 4 GreatrexuHayward,8Exch.291; 
 
 § 271. Wood v. Waud, 3 id. 748; Broadbent 
 
 2 Palmer v. Waddell, 22 Kan. 352; v. Ramsbotham, 11 id. 602; Buffum 
 Gibbs v. Williams, 25 id. 214; Dnion v. Harris, 5E.1 243; Walter v. New 
 Pacific Ry. Co. v. Dyche, 31 id. 120; Mexico & S. P. Ry. Co., 165 U. S. 593; 
 Chicago R. Co. v. Morrow, 42 id. 339; Sweet v. Conley, 20 R. I. 381; Ben- 
 Town v. Mo. Pac. Ry. Co., 50 Neb. 768; thall v. Seifert, 77 Ind. 302; Cairo R. 
 Dre wett v. Sheard, 7 C. & P. 465 ; Dud- Co. v. Houry, id. 364 ; Wilson v. Dun- 
 den v. Clutton Union, 1 H. & N. 627; can, 74 Iowa, 491; Gembler v. Echter- 
 Rex v. Trafford, 8 Bing. 204; Stafford- hoff (Tex. Civ. App.), 57 S. W. Rep. 
 shire Canal v. Birmingham Canal, 313; Davison v. Hutchinson, 44 N. J. 
 L. R. 1 H. L. 254, 273; Rochdale Canal Eq. 474. 
 
 v. Radcliffe, 18 Q. B. 287; Reynolds v. 5 Rawstron v. Taylor, 11 Exch. 369. 
 
 Mc Arthur, 2 Peters, 417; 438; Bangor « Chatfield v. Wilson, 28 Vt. 49. 
 
 v. Lansil, 51 Maine, 521: Arnold v. 'Rawstron v. Taylor, 11 Exch. 369. 
 
 Foot, 12 Wend. 330; Earle v. De Hart, 8 Barkley v. Wilcox, 86 N. Y. 140; 
 
 12 N. J. Eq. 283; Kauffman v. Griese- 19 Hun, 320; Buffum v. Harris, 5 R. L 
 
§ 266.] 
 
 SURFACE WATEES. 
 
 539 
 
 or get rid of as best he may ; and a town is not answerable for 
 allowing such water to cross its highway upon adjoining land. 1 
 In New Hampshire, 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. 2 
 
 §266. Same — The civil-law rule.— By the civil law, the 
 lower of two adjacent estates owes a servitude to the upper to 
 receive all the natural drainage; and the lower owner cannot 
 reject nor can the upper withhold the supply, although either, 
 for the sake of improving his land, according to the ordinary 
 modes of good husbandry, may somewhat interfere with the 
 natural flow of the water. 3 Interference with the natural flow 
 of surface water is regarded as a nuisance, for which nominal 
 
 243; Chatfield v. Wilson, 28 Vt. 49; 
 Hoyt v. Hudson, 27 Wis. 656; Rams- 
 dale v. Foote, 55 id. 557, 561; Rowe v. 
 St. PaulRy. Co., 41 Minn. 384; 16 Am. 
 St. Rep. 706, n.; Cass v. Dicks, 14 
 Wash. 75. • See Ennor v. Barwell, 3 
 Gift. 410, 423 et seq.; Curtis v. Ayrault, 
 47 N. Y. 73; 35 L. T. 362. 
 
 *Flagg v. Worcester, 13 Gray, 601; 
 Franklin v. Fisk, 13 Allen, 211; 
 Walker v. Old Colony & Newport R. 
 Co., 103 Mass. 10, 13, 14; Beals v. 
 Brookline, 174 id. 1, 20. 
 
 2 Bassett v. Salisbury Manuf. Co., 
 43 N. H. 569; Swett v. Cutts, 50 id. 
 459. See Hoyt v. Hudson, 27 Wis. 
 656, and Hurdman v. North Eastern 
 Railway, 3 C. P. D. 168, 173, as to rea- 
 sonable use. See also Williamson v. 
 Lock's Creek Canal Co., 76 N. C. 478; 
 78 id. 156. 
 
 3 Martin v. Jett, 12 La. 561; 32 Am. 
 Dec. 120, and note; Lattimore v. 
 Davis, 14 La. 161; Hays v. Hays, 19 
 id. 351 ; Adams v. Harrison, 4 La. Ann. 
 165; Delahoussaye v. Judice, 13 id. 
 587; Hooper v. Wilkinson, 15 id. 497; 
 Barrow v. Laudry, id. 681; Minor v. 
 Wright, 16 id. 151; Gillis v. Nelson, 
 id. 275; Bowman v. New Orleans, 27 
 id. 502; Sharpe v. Levert, 51 id. 1249; 
 
 KaufEman v. Griesemer, 26 Penn. St. 
 407; Martin v. Riddle, 26 id. 415, n.; 
 Miller v. Laubach, 47 id. 147; Hayes 
 v. Hickleman, 68 id. 324; 8 Watts & 
 S. 40; Butler v. Peck, 16 Ohio St. 334; 
 Tootle v. Clifton, 22 id. 247; Gillham 
 V. Madison County R. Co., 49111. 484; 
 Gormley v. Sanford, 52 id. 158; Hicks 
 v. Silliman, 93 id. 255; Helm v. Rich- 
 mond, 72 111. App, 516; Throop v. 
 Griffin, 77 id. 505 ; Crosville v. Stuart, 
 id. 513; St. Louis Merchants Bridge 
 T. Ry. Co. v. Pepper, 84 id. 116; Over- 
 ton v. Sawyer, 1 Jones (Law), 308; 
 Porter v. Durham, 74 N. C. 767; Miz- 
 zell v. McGowan, 125 N. C. 439; Crab- 
 tree v. Baker, 75 Ala. 91; Farris v. 
 Dudley, 78 id. 124; Laumier v. Francis, 
 23 Mo. 181; Jones v. Hannovan, 55 
 id. 462; Walker v. New Mexico, etc. 
 R. Co., 165 U. S. 593; Arn v. City of 
 Kansas, 4 McCrary, 558; Livingston 
 v. McDonald, 21 Iowa, 160; Podhaisky 
 v. Cedar Rapids, 106 id. 543; Ogburn 
 v. Connor, 46 CaL 346; Brown v. Mc- 
 Allister, 29 id. 573; McDaniel v. Cum- 
 mings, 83 id. 515; 22 Pac. Rep. 216; 
 Goldsmith v. Elsas, 53 Ga. 186; Mc- 
 Cormick v. Kansas City R. Co., 70 Mo. 
 359. 
 
540 
 
 THE LAW OF WATEKS. 
 
 [Ch. IX. 
 
 damages may be recovered without proof of actual damage, 1 
 and which may be restrained by injunction, when the injury, 
 as in the case of an embankment obstructing the flow of the 
 water, is permanent and continuing. 2 The courts of Pennsyl- 
 vania, Illinois, North Carolina, Alabama, Kentucky, Tennessee, 
 California, and Louisiana have adopted this rule, and it has 
 been referred to with approval by the courts of Ohio and Mis- 
 souri. 3 
 
 § 267. Same — Watercourses. — A land-owner may change 
 the grad^ of its surface, and if, in the absence of grant, pre- 
 scription, or mutual stipulation, 4 mere surface water or the 
 natural drainage is displaced, obstructed, or caused to accu- 
 mulate upon adjoining land, 5 or upon a street or highway, 6 no 
 right of action arises. 7 In Adams v. "Walker, 8 the Supreme 
 Court of Connecticut decided that a person cannot grade his 
 lot and thereby turn surface water upon another's land to pre- 
 vent it from flowing into his well, or for any other lawful 
 
 ilbid.; Tootle v. Clifton, 22 Ohio 
 St. 247. To maintain the action, the 
 water must be increased, or cast on 
 the plaintiff's land in a manner dif- 
 ferent from the natural manner. 
 Schrope v. Pioneer Tp. (Iowa), 82 N. 
 W. Rep. 466. 
 
 2 Nininger v. Norwood, 72 Ala. 277; 
 Boss ti. Mackeney, 46 N. J. Eq. 140; 
 Sheldon v. Cole, 3 Ohio Dec. 473; 
 Carland v. Aurin (Tenn.), 53 S. W. 
 Rep. 940; Grimstead v. Sanders (Ky.), 
 56 id. 665. 
 
 3 Ibid. ; Barkley v. Wilcox, 86 N. Y. 
 140, 145; 19 Hun, 320; Carriger v. East 
 Tenn. R Co., 7 Lea, 388; Louisville R. 
 Co. v. Hays, 11 id. 382; Waverly v. 
 Page (Iowa), 40 L. R. A. 465, and note; 
 Oftelie v. Hammond (Minn.), 80 N. 
 W. Rep. 1123; Wilton v. Murray, 12 
 Manitoba, 35. In Arkansas and South 
 Carolina, a modified doctrine is 
 maintained, following neither the 
 strict rule of the common or the 
 civil law, but applying the law to 
 the circumstances of each case. See 
 Little Rock Ry. Co. v. Chapman, 39 
 
 Ark. 463; Waldrop v. Greenwood R. 
 Co., 28 S. C. 157; 23 Am. L. Rev. 387. 
 
 4 Luther v. Winnisimmet Co., 9 
 Cush. 171; Dickinson v. Worcester, 7 
 Allen, 19; Rawstrom v. Taylor, 11 
 Exoh. 369; Bigelow, C. J., in Gannon 
 v. Hargadon, 10 Allen, 106; Jordan 
 v. St. Paul Ry. Co., 42 Minn. 172; 
 Cushing v. Pires, 124 Cal. 663; People 
 v. Com'rs, 181 111. 177; 54 N. E. Rep. 
 923; Baker v. Allen, 66 Ark. 271; C, 
 C, C. & St. L. Ry. Co. v. Logan 
 County Com'rs, 17 Ohio Cir. Ct. 436. 
 
 6 Luther v. Winnisimmet Co., 9 
 Cush. 171; Goodale v. Tuttle, 29 N. Y. 
 451. 
 
 6 Bangor v. Lansil, 51 Maine, 521. 
 Unless it cuts off access to houses. 
 Louisville v. Seibert (Ky.), 51 S. W. 
 Rep. 310; ante, §§ 124, 149. But see 
 Toledo v. Lewis, 17 Ohio Cir. Ct. 588. 
 
 'Morrill v. Hurley, 120 Mass. 99 
 Parks v. Newburyport, 10 Gray, 28 
 Flagg v. Worcester, 13 Gray, 601 
 Dickinson v. Worcester, 7 Allen, 19 
 Bangor v. Lansil, 51 Maine, 521 ; Good- 
 ale v. Tuttle, 29 N. Y. 451. 
 
 8 34 Conn. 466. 
 
§ 268.] SUEFAOE WATERS. 541 
 
 purpose. But the general common-law rule l is that " the 
 right of an owner of land to occupy and improve it in such 
 manner and for such purposes as he may see fit, either by 
 changing the surface, or the erection of buildings or other 
 structures thereon, is not restricted or modified by the fact 
 that his own land is so situated with reference to that of ad- 
 joining owners, that an alteration in the mode of its improve- 
 ment 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 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 accustomed to flow." In 
 Hurdman v. North Eastern Kail way, 2 it was held that a claim 
 that rain-water, by reason of the defendant raising the surface 
 of its land by earth deposits, made its way through the de- 
 fendant'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 judgment of the court of ap- 
 peal, distinguished Wilson v. "Waddell 3 as applying to damage 
 resulting from surface water in the natural user of land, and 
 said that " if any one, by artificial erection on his own land, 
 causes water, even though arising from natural rain-fall only, 
 to pass into his neighbor's land, and thus substantially to in- 
 terfere with his enjoyment, he will be liable to an action at 
 the suit of him who is so injured." It is a question of negli- 
 gence whether 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. 4 
 
 § 268. Same — Excluding. — According to the common-law 
 rule, as established in Massachusetts and New Jersey, an owner 
 of land may erect structures upon it of any size, height, or depth, 
 irrespective of their effect upon mere surface water or the nat- 
 ural drainage. 5 So he may cultivate his soil in the ordinary 
 
 1 Gannon v. Hargadon, 10 Allen, 4 Rockwood v. Wilson, 11 Cush. 221; 
 106, 109; ante, § 265. Edgar v. Walker, 106 Ga. 454. 
 
 2 3 C. P. D. 168; Crabtree v. Baker, 5 Parks v. Newburyport, 10 Gray, 
 75 Ala. 91,94. See Broder v. Saillard, 28; Bates v. Smith, 100 Mass. 181; 
 2 Ch. D. 692, 700. Bowlsby v. Speer, 2 Vroom, 351 ; Gan- 
 
 3 2 App. Cas. 95. non v. Hargadon, 10 Allen, 106; Peck 
 
54:2 THE JLAW Off WATEKS. [Ch. IX. 
 
 way for garden purposes and bring thereon manure and ashes, 
 although his neighbor's mill-pond is encroached upon by the 
 large amount of solid matter carried thence into the pond by 
 surface drainage. 1 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. Arm- 
 strong, 2 in Pennsylvania, decided that the owner of a city lot 
 must so improve it as to prevent its surface water from an- 
 noying an adjoining owner. It is held in Illinois that the 
 owner of an inferior estate in the country is not bound to re- 
 ceive the surface water coming to his land in larger quantities 
 or at different times than it would come but for the voluntary 
 act of his neighbor; that the collecting and discharging of sur- 
 face water upon such estate in streams is a continuous tres- 
 pass, for which successive actions will lie ; 3 but that the upper 
 proprietor is not liable when he plows his land, and makes 
 drains, for the purpose of agriculture only, in the customary 
 mode among farmers in raising crops. 4 A-n owner of vacant 
 and unimproved city lots is not liable to an action for his fail- 
 ure to prevent mere surface water, accumulating thereon from 
 natural causes, from passing thence upon the land of an adjoin- 
 ing proprietor to his injury, 5 although the washings of streets 
 and deposits of garbage by third persons may have caused the 
 land to slope in that direction. 6 If the owner of a city lot 
 
 v. Goodberlett, 109 N. Y. 180; Char Co. v. Ahr, 2 Cincin. 504; Whitney v. 
 
 deayne v. Robinson, 55 Conn. 345. Sanders, 3 Pittsburgh, 226; Phinizy 
 
 See Street v. Andrews, 115 N. C. 417; v. Augusta, 47 Ga. 260; Freudenstein 
 
 Lincoln, etc. E. Co. v. Sutherland, 44 v. Heine, 6 Ma App. 287; Gormley v. 
 
 Neb. 526; Beatrice v. Leary, 45 Neb. Sanford, 50 111. 158. 
 
 149 ; Johnson v. Chicago, etc. Ry. Co., 3 Mellor v. Pilgrim, 3 Brad. (111.) 476; 
 
 80 Wis. 641 ; infra, § 275. Bellows v. 7 id. 306; Hicks v. Silliman, 93 111. 
 
 Sackett, 15 Barb. 96, decided that an 255. See Templeton v. Voshloe, 72 
 
 owner of a house, from the roof of Ind. 134; Cairo E. Co. v. Stevens, 73 
 
 which rain-water fell through a Ind. 278; Dayton v. Rutherford, 128 
 
 broken gutter upon his own land, 111. 271; Totel «. Bounefoy, 123111. 653; 
 
 and injured the foundations of an Anderson v. Henderson, 124 111. 164. 
 
 adjoining house, was liable. 4 Knoll v. Mayer, 13 Brad. (111.) 203; 
 
 1 Middlesex Co. v. McCue, 149 Mass. Ribordy v. Murray, 70 111. Ap. 527; 
 103. Illinois Cent. R Co. v. Miller, 68 Miss. 
 
 2 8 W. & S. 40; Young v. Leedom, 760. 
 
 67Penn.St. 351; Vanderwiele v. Tay- 5 Morrill v. Hurley, 120 Mass. 99; 
 lor, 65 N. Y. 341; Livingston v. Mo Vanderwiele v. Taylor, 65 N. Y. 341. 
 Donald, 21 Iowa, 160; Cincinnati R. "Ibid. 
 
§ 269.] SURFACE WATEES. 543 
 
 builds a house on it, damming up surface water on an adjacent 
 lot so as to cause injury to the house, he cannot recover. 1 Such 
 an owner may be obliged, by reason of changes and improve- 
 ments in the surrounding lots, to care for accumulations of sur- 
 face water thereby caused on his lot, 2 especially when the 
 discharge upon such land has been long continued. 3 An owner 
 of a city lot, on which surface water accumulates by the rais- 
 ing of a street and the adjacent land and becomes stagnant, 
 is not liable for the nuisance. 4 
 
 § 269. Same — Municipal corporations. — Cities and towns 
 have the same control over streets, highways, and public places, 
 in respect 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 surface water, naturally collecting 
 thereon in rain and snow, to flow upon the lands of adjoining 
 owners, no liability arises at common law; 5 and such a corpo- 
 ration may prevent the escape of surface water upon its high- 
 ways from such lands, although such highways have been laid 
 out and their grade established by law. 6 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. 7 It has been held that a city, in changing the 
 grade of a street, and thereby causing the water accumulating 
 thereon to flow upon adjacent private property, will not be liable 
 for damages thereby caused, unless the work was done in an 
 unskillful and negligent manner, 8 or the adjacent owner could 
 
 iDoerbaum v. Fischer, 1 Mo. App. (Del.) 243; Roll v. Augusta, 34 Ga. 
 
 149. 326; Corcoran v. Benicia, 96 Cal. 1; 
 
 2 Thomas v. Kenyon, 1 Daly, 132; Teager v. Fairmont, 43 W. Va. 259; 
 Schnitzius v. Bailey, 48 N. J. Eq. 409. Jordan v. Benwood, 42 W. Va. 312; 
 
 3 Reed v. Cheney, 111 Ind. 387. West Bellevue v. Huddleson, 23 W. 
 
 4 Barry v. Com., 2 Duv. (Ky.) 95. N. C. (Penn.) 240. See under the civil- 
 See infra, § 278. law rule, Keithsburg v. Simpson, 7Q 
 
 5 Flagg v. Worcester, 13 Gray, 601; III App. 467; Stanford v. San Fran- 
 Turner v. Dartmouth, 13 Allen, 291; cisco, 111 Cal. 198; Lampe v. San 
 Gray, J., in Emery v. Lowell, 104 Francisco, 124 CaL 546; Holmes v. 
 Mass. 13, 16; Hubbard v. Webster, Calhoun County, 97 Iowa, 360; 38 Am. 
 118 Mass. 599; Wakefield v. Newell, L. Reg. N. s. 707. 
 12 R. I. 75; Lynch v. New York, 76 6 Keith v. Brockton, 136 Mass. 119. 
 N. Y. 60; Carll v. Northport, 42 NY. 'Franklin v. Fisk, 13 Allen, 211; 
 S. 576; Imler v. Springfield, 55 Mo. Cedar Falls v. Hansen, 104 Iowa, 189. 
 119; Alden v. Minneapolis, 24 Minn. 8 Muscatine v. Wallace, 4 G. Greene 
 254; Clark v. Wilmington, 5 Harr. (Iowa), 373; Ellis v. Iowa City, 29 
 
5ii THE LAW OF WATERS. [Ch. IX. 
 
 not have prevented the injury at moderate expense or by or- 
 dinary efforts. 1 A city which employed a contractor to regu- 
 late and grade one of its streets was held liable, after the 
 expiration of the contract, for excavations which the con- 
 tractor had made, which it had the right and power to change 
 by taking charge of and completing the work, and which di- 
 verted upon the plaintiff's land surface water which had pre- 
 viously flowed in a natural channel. 2 
 
 §270. Same — Sewers and gutters. — 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. 3 In constructing 4 or 
 raising the grade of a street or highway it is not bound to pro- 
 vide means of escape for accumulations of mere surface water 
 thereby caused on adjacent land, nor is it liable for such ob- 
 struction. 5 It is not liable when surface water collected in 
 the catch-basins or gutters constructed by its agents beneath 
 a highway percolates through the soil into an adjoining cellar, 6 
 
 Iowa, 229; Russell v. Burlington, 30 Huffer, 30 id. 235; St. Louis v. Gurno, 
 
 id. 262; Damon v. Lyons City, 44 12 Mo. 414. 
 
 id. 276. See Guest v. Church Hill * Dickinson v. Worcester, 7 Allen, 
 
 Com'rs (Md.), 45 Atl. Rep. 882; Downs 19; Hoyt v. Hudson, 27 Wis. 656; 
 
 v. Ansonia (Conn.), 46 Atl. Rep. 243. Waters v. Bay View, 62 id. 642; Hen- 
 
 1 Simpson v. Keokuk, 34 Iowa, 568; derson v. Minneapolis, 32 Minn. 319; 
 
 Bartle v. Des Moines, 38 id. 414; Cubit Springfield v. Spence, 39 Ohio St. 665; 
 
 v. O'Dett, 51 Mich. 347. Buchert v. Boyertown, 1 Mona. 
 
 2Vogel v. New York, 92 N. Y. 10. (Penn.), 577; Stewart v. Clinton, 79 
 
 'Ante, § 261; Barry v. Dowell, 8 Mo. 603; North Vernon v. Voegeler, 
 
 Allen, 127; Wilson v. New York, 1 89 Ind. 77; Rozell v. Anderson, 91 id. 
 
 Denio, 595; Mills v. Brooklyn, 32 N. 591; Princeton v. Gieske, 93 id. 102; 
 
 Y. 489; Kavanagh v. Brooklyn, 38 Green v. Harrison County, 61 Iowa, 
 
 Barb. 232; Acker v. Newcastle, 48 311; Parker v. Nashua, 59 N. H. 402; 
 
 Hun, 312; Schmidt v. Rowse, 35 Mo. Clark v. Wilmington, 5 Harr. (Del.) 
 
 App. 288; Fair v. Philadelphia, 88 243; Wilson v. New York, 1 Denio, 
 
 Penn. St. 309; Can v. Northern Lib- 295; Gould v. Booth, 66 N. Y. 62; 
 
 erties, 35 id. 324; Alden v. Minneapo- Lynch v. Mayor, 76 N. Y. 60. See 
 
 lis, 24 Minn. 254; Atchison v. Challis, Carr v. Northern Liberties, 35 Penn. 
 
 9 Kan. 603. So, if such water results St. 324. 
 
 from an extraordinary storm. Allen 5 Kearney v. Themanson, 48 Neb. 
 
 v. Chippewa Falls, 52 Wis. 430. See 74; Cummings v. Toledo, 12 Ohio Cir. 
 
 Leavenworth v. Casey, McCahon Ct. 650. 
 
 (Kan.), 125, 132; Logansport v. 6 Kenniston v. Beverly, 146 Mass. 
 
 Wright, 25 Ind. 512; Indianapolis v. 467. 
 
"§ 271. J SUEFACE WATEBS. 545 
 
 or for the' obstruction of surface water by a street horse-rail- 
 road track, properly authorized, constructed, and operated. 1 
 A city, which, in the construction of a street, made a fill across 
 a natural drain for surface water, and flooded an adjoining 
 owner's property, was held liable in Kentucky. 3 A municipal 
 corporation is not liable for the non-exercise of its powers to 
 construct gutters or other means of draining surface water; 3 
 and it may abandon a sewer or drain, constructed for the pur- 
 pose of carrying off surface water, if it does not leave the ad- 
 joining owners in a worse position than they would be if the 
 sewer or drain had never been made. 4 In Illinois, a city is 
 liable for insufficiency of a gutter causing surface water to 
 overflow upon an adjacent lot, 5 but not for the entire damage, 
 if the owner contributed thereto by stopping up a drain. 6 In 
 Iowa, a city is liable for the failure to provide, when practi- 
 cable, temporary means for the escape of surface water while 
 raising the grade of a street, causing its escape upon adjoining 
 premises-. 7 
 
 §271. Same — Artificial channels. — An owner of land 
 has no right to rid his land of surface water, or superficially 
 percolating water, by collecting it in artificial channels and 
 discharging it through or upon the land of an adjoining pro- 
 prietor. 8 This is alike the rule of the common and civil law; 9 
 
 1 Swenson v. Lexington, 69 Mo. 157. Jackman v. Arlington Mills, 137 Mass. 
 See Damour v. Lyons City, 44 Iowa, 277; Murray v. Archer, 5 N. Y. S. 326; 
 276, contra. Foot v. Bronson, 4 Lans. 47; Hicks 
 
 2 Kemper v. Louisville, 14 Bush v. Silliman, 93 111. 255; Kauffman v. 
 (Ky.), 87. Griesemer, 26 Penn. St. 415; Martin 
 
 'Lynch v. Mayor,. 76 N. Y. 60; v. Riddle, 26 id. 415, n. ; Miller v. Lau- 
 
 Millsu. Brooklyn, 32 N. Y. 489; Flagg bach, 47 id. 154: Butler v. Peck, 16 
 
 v. Worcester, , 13 Gray, 601; Roll v. Ohio St. 334; Culbertson v. Knight, 
 
 Augusta, 34 Ga. 326; Fair v. Phila- 152 Ind. 121; Rychlicki v. St. Louis, 
 
 ■delphia, 88 Penn. St. 309. 98 Mo. 497; 14 Am. St. Rep. 651; 
 
 4 Atchison v. Challis, 9 Kans. 603. Foster v. St. Louis, 71 Mo. 157; Davis 
 
 5 Divon v. Baker, 65 111. 518. v. Crawfordsville, 119 Ind. 1; 12 Am. 
 
 6 Paris v. Cracraft, 85 111. 294 St. Rep. 361 and note; Davis v. Lond- 
 
 7 Cotes v. Davenport, 9 Iowa, 227; green, 8 Neb. 43; Kearney v. Thoe- 
 Ross v. Clinton, 46 Iowa, 606. mason, 25 Neb. 147; Fremont R. Co. 
 
 8 White v. Chapin, 12 Allen, 516; v. Marley, id. 138; Alcorn v. Sadler, 
 
 » Barkley v. Wilcox, 86 N. Y. 148; W. Va. 808; Chapel v. Smith, 80 Mich. 
 19 Hun, 320; Gregory v. Bush, 64 100; Coverdaleu Smith (CaL), 60 Pac. 
 Mich. 37; Fremont R. Co. v. Marley, Rep. 851. 
 ■25 Neb. 138; Knight v. Brown, 25 
 35 
 
546 
 
 THE LAW OF WATEBS. 
 
 [Oh, IX. 
 
 and a municipal corporation has no greater right in this re- 
 spect than a private land-owner. 1 The channel must be defi- 
 nite, but the injured land need not adjoin a highway, in order 
 to make a city liable. 2 A land-owner may drain his land by 
 artificial ditches and thereby cause the water to pass more 
 rapidly and with increased volume on the adjacent land of the 
 lower proprietor, if the same water would not naturally flow 
 in a different direction, and he acts with a proper regard for 
 his neighbor's welfare, the relative advantage and injury to the 
 two tenements being elements for the jury's consideration;* 
 and a riparian proprietor may collect, in an artificial channel, 
 surface water which naturally flows from his estate into a 
 watercourse running through or by such estate, and thereby 
 discharge such water into . the natural stream, although the 
 
 66 Miss. 221 ; Anderson v. Henderson, 
 124 111. 164; Dayton v. Drainage 
 Com'rs, 128 I1L 271; Weidekin v. 
 Snelson, 17 I1L App. 461; Livingston 
 v. McDonald, 21 Iowa, 160; Hogen- 
 son v. St. Paul Ry. Co., 31 Minn. 224; 
 Kelly v. Dunning, 39 N. J. Eq. 482; 
 Gray v. Knoxville, 88 Tenn. 99; Pad- 
 dock v. Somes, 102 Mo. 226; Schuster 
 
 O'Brien v. St. Paul, 25 Minn. 331. 
 See Noonan v. Albany, 79 N. Y. 470» 
 Cumberland v. Willison, 50 Md. 138; 
 Field v. West Orange, 36 N. J. Eq. 
 118; 37 id. 600; Evansville v. Decker, 
 84 Ind. 325; Blakely v. Deyine, 36 
 Minn. 53; Manning v. Lowell, 130> 
 Mass. 21; Stanchfield v. Newton, 14a 
 Mass. 110; Sullivan v. Phillips, lift 
 
 v. Albrecht, 98 "Wis. 241; Eesser v. Ind. 320; Denver v. Rhodes, 9 CoL 
 
 Davis, 100 Iowa, 745; Keating v. Pitt- 
 son, 8 Kulp, 421 ; Rath v. Zembleman, 
 49 Neb. 351; Stinson v. Fishel, 93 
 
 554; Clark v. Rochester, 43 Hun, 271; 
 Smith v. Atlanta, 75 Ga. 110; Davis. 
 v. Crawfordsville, 119 Ind. 1; Rarey 
 
 Iowa, 656; Lincoln St. Ry. Co. v. Ad- v. Lee, 16 Ind. App. 121; Lafferty 
 
 ams, 41 Neb. 737; Sharpe v. Scheibel, 
 162 Penn. St. 341; Horton v. Sullivan, 
 97 Mich. 282; Wharton v. Stevens, 84 
 Iowa, 107; Martin v. Gainesville R. 
 Co., 78 Ga. 307; Porter v. Durham, 74 
 N. C. 767. See Goldsmith v. Elsas, 
 53 Ga. 186; Gillis v. Nelson, 16 La. 
 Ann. 275; Sowers v. Schiff, 15 La. 
 Ann. 300 ; ante, § 264. Jutte v. Hughes, 
 67 N. Y. 267, decided that a land- 
 owner, who conducted from the 
 roofs of his houses, in leaders and 
 drains to the privies, water beyond 
 their capacity, whereby it overflowed 
 to the injury of an adjoining owner, 
 was liable for his failure to prevent 
 the overflow. 
 
 l Weis v. Madison, 75 Ind. 241; 
 North Vernon v. Voegler, 89 Ind. 79; 
 
 v. Girardsville, 1 Mona. (Penn.) 513 
 Young v. Commissioners, 134 I1L 569 
 Elgin v. Hoag, 25 111. App. 650 
 Keithsburg v. Simpson, 70 id. 467; Ja- 
 cobson v. Van Boening, 48 Neb. 80; 
 Jordan v. Ben wood, 42 W. Va. 312; 
 Yeager v. Fairmont, 43 W. Va. 259; 
 Cannon v. St Joseph, 67 Mo. App. 
 367; Nicolai v. Wilkins (Wis.), 80 N: 
 W. Rep. 939; Carll v. Northport, 43 
 N. Y. S. 076; Bedell v. Sea Cliff, 46 
 id. 226. 
 
 2 Manning v. Lowell, 130 Mass. 21,. 
 24; Collins t;. Waltham, 151 Mass. 
 196. 
 
 3 Hughes v. Anderson, 68 Ala. 280; 
 Sheehan v. Flynn, 59 Minn. 436. Se» 
 ante, § 265. 
 
§ 272.] 
 
 SURFACE WATERS. 
 
 547 
 
 latter is thereby increased in volume. 1 This right exists only 
 with respect to waters of which the watercourse is the natural 
 outlet ; 2 and if the plaintiff cuts trees on the bank of the ditch 
 so that the banks cave in and discharge its waters, with the 
 surface water added thereto, upon his land, this may be pleaded 
 by counter-claim. 3 
 
 § 272. Same — Municipal and railroad corporations. — 
 
 Cities and towns have no greater rights than individuals 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 own- 
 ers; 4 or to construct ditches upon private lands for public 
 
 Ubid.; Waffle v. New York Cen- 
 tral R Co., 53 N. Y. 11; McCormick 
 v. Horan, 81 N. Y. 86; Gannon v. 
 Hargadon, 10 Allen. 106; Miller v. 
 Laubaoh, 47 Penn. St. 154; Kanka- 
 kee District v. Lake Fork S. D. Dis- 
 trict, 130 111. 261; Lambert v. Alcorn, 
 144 111.' 313. See Rudel v. Los An- 
 geles County, 118 Cal. 281. 
 
 2 Ibid.; Tillotson v. Smith, 32 N. H. 
 90; Baltimore v. Appold, 42 Md. 442. 
 
 3 Knight v. Brown, 25 W. Va. 808. 
 See Mulberger v. Koenig, 62 Wis. 558. 
 
 *Anle, § 261; Plummer v. Sturte- 
 vant, 32 Maine, 325; Inman v. Tripp, 
 11 E. I. 520; Byrnes v. Cohoes, 67 
 N. Y. 204; 5 Hun, 602; Noonan v. 
 Albany, 79 Hun, 470; Bastable v. 
 Syracuse, 8 Hun, 587; 72 N. Y. 64; 
 Moran v. McClearns, 63 Barb. 185; 44 
 How. Pr. 30; Sleight v. Kingston, 11 
 Hun, 594; 73 N. Y. 592; Anchor B. 
 Co. v. Dobbs Perry, 32 N. Y. S. 371; 
 Pettigrew v. Evansville, 25 Wis. 223; 
 Pontiac v. Carter, 32 Mich. 164; Ash- 
 ley v. Port Huron, 35 id. 296; Rice v. 
 Flint, 67 id. '401; Pye v. Mankato, 36 
 Minn. 373; Ashberry v. West Seneca, 
 11 N. Y. S. 306; Eshleman v. Martic, 
 152 Penn. St. 68; Bealafeld v. Verona, 
 188 id. 627; King v. Granger, 21 R. I. 
 94; Burnett v. New York, 55 N. Y. S. 
 893; New Albany v. Lives, 21 Ind. 
 App. 380; Thorntown v. Fugate, id. 
 537; Galbraith v. Yates (Minn.), 82 
 
 N. W. Rep. 683; Elgin v. Welch, 16 
 I1L App. 483; Smith v. Milwaukee, 
 18 Wis. 63; Field v. West Orange, 36 
 N. J. Eq. 118; Union v. Durkes, 38 
 N. J. L. 21; Smith v. Alexandria, 33 
 Gratt. 208; Gillison v. Charleston, 
 16 W. Va. 282; Russell v. Burlington, 
 30 Iowa, 262; Weyrcan v. Jefferson, 
 61 Mo. 55; Arn v. City of Kansas 
 (Mo.), 4 McCrary, 558; Los Angeles 
 C. Ass'n v. Los Angeles, 103 Cal. 461 ; 
 Indianapolis v. Lawyer, 38 Ind. 348; 
 Weis v. Madison, 75 Ind. 241; Nevins 
 v. Peoria, 41 111. 502; Aurora v. Gil- 
 lett, 56 111. 132; Aurora v. Reed, 57 
 111. 29; Bloomington v. Brokaw, 77 
 111. 194; Shawneetown v. Mason, 82 
 111. 337; Stack v. East St. Louis, 
 85 111. 377; Elgin v. Kimball, 90 111. 
 356; Aurora v. Love, 93 111. 521; 
 O'Brien v. St. Paul, 25 Minn. 331; 
 Lee v. Minneapolis, 22 Minn. 13; 
 Churchill v. Beethe. 48 Neb. 87; 
 Phinizy v. Augusta, 47 Ga. 260. So, 
 if such water escapes through a break 
 in a gutter. Alton v. Hope, 68 111. 
 167. A fortiori, if a city or an indi- 
 vidual thus discharges foul sewage 
 or refuse with surface water. Winn 
 v. Rutland, 52 Vt. 481; Elliott v. Oil 
 City, 129 Penn. St. 570; Rychlicki v. 
 St. Louis, 98 Mo. 497; Butler v. Edge- 
 water, 6 N. Y. S. 174; Defer v. De- 
 troit, 67 Mich. 346; Price v. Oakland 
 H. Creamery Co., 87 Wis. 536; Jack- 
 
548 
 
 THE LAW OF WATEES. 
 
 [CH. IX. 
 
 uses without compensation. 1 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, 2 
 unless it appears that the plaintiff could have prevented the 
 injury by ordinary efforts or at moderate expense. 8 But it is 
 not liable when surface water is turned upon private land by 
 a change in the grade of a street, 4 or when, being collected in 
 catch-basins or gutters, constructed by its agents beneath a 
 street, it percolates thence into a cellar and causes injury. 5 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 adjacent 
 private premises. A city is liable if the embankment of a street 
 horse railroad, properly authorized, causes the surface water of 
 a large district to flow upon adjoining premises, 7 or if a similar 
 injury is caused by its unlawful raising of a street above the 
 established grade. 8 A city cannot maintain a culvert across a 
 street, and discharge a pond of stagnant water upon adjoining 
 premises, 9 even though it did not construct the culvert. 10 In 
 
 sonvilleu Lambert, 62 111. 519; Board 
 of Health v. Maginnis Cotton Mills, 
 46 La. Ann. 806. 
 
 i Cauble v. Hultz, 118 Ind. 13; Ran- 
 dall v. Christiansen, 76 Iowa, 169; 
 Fromm v. Ide, 23 N. Y. S. 56; Houston 
 v. Bryan, 2 Tex. Civ. App. 553; Mc- 
 Cullough v. Denver, 39 Fed. Rep. 307; 
 Albany v. Sikes, 94 Ga. 30; Downing 
 v. More, 12 Col. 316. 
 
 2 Byrnes v. Cohoes, 67 N. Y. 204; 
 Mairs v. Manhattan Real Estate 
 Ass'n, 89 N. Y. 498; Indianapolis 
 v. Lawyer, 38 Ind. 348; Damour v. 
 Lyons City, 44 Iowa, 276; Kearney 
 v. Thoemason, 25 Neb. 147; Gray v. 
 Knoxville, 85 Tenn. 99; Bush v. Port- 
 land, 19 Oregon, 90; Bronson v. Wall- 
 ingford, 54 Conn. 513; Collins v. Keo- 
 kuk, 91 Iowa, 293; Harp v. Baraboo, 
 101 Wis. 368; Effingham v. Surrells, 
 77 111. Ap. 460; Thorntown v. Fugate, 
 21 Ind. App. 537; Beach v. Scran- 
 ton, 5 Lack. L. News, 25 ; Watson v. 
 Kingston, 43 Hun, 367. 
 
 3 Simpson v. Keokuk, 34 Iowa, 568. 
 
 4 Ibid.; McCray v. Fairmont (W. 
 Va.), 33 S. E. Rep. 245; Lampe.u San 
 Francisco, 124 Cal. 546; supra, % 269. 
 
 5 Kennison v. Beverly, 146 Mass. 
 467; Comanche v. Zettlemoyer (Tex. 
 Civ. App.), 40 S. W. Rep. 641. 
 
 6 38 Conn. 90. Commissioners of 
 highways cannot authorize individu- 
 als to drain their lands by digging a 
 ditch along the highway. Johnson 
 v. Rea, 12 Brad. (111.) 331. 
 
 7 Damour v. Lyons City, 44 Iowa, 
 276. See Swenson v. Lexington, 69 
 Mo. 157; Callahan v. Des Moines, 63 
 Iowa, 705. 
 
 8 Addy v. Janesville, 70 Wis. 401; 
 Herring v. District of Columbia, 3 
 Mackey, 572; Atlanta v. Word, 78 
 Ga. 276; Spangler v. San Francisco, 
 84 CaL 12; Morris v. Council Bluffs, 
 67 Iowa, 343; Gilluly v. Madison, 63 
 Wis. 518. 
 
 9 Kobs v. Minneapolis, 22 Minn. 
 150; Jewett v. Sweet, 178 I1L 96, af- 
 
 w Crawfordsville v. Bond, 96 Ind. 236. 
 
§ 273.] SURFACE WATERS. 549 
 
 Massachusetts, one whose premises have been flooded by great 
 quantities of surface water passing through an artificial chan- 
 nel, must seek his remedy under the statute. 1 In Inman v. 
 Tripp, 2 in Khode Island, the city of Providence was held liable 
 for damages occasioned to the plaintiff's property, in exercis- 
 ing 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 re- 
 sulting from a defect in a street, though caused by surface 
 water, 3 or for diverting waters from a natural channel ; * and 
 in Pennsylvania a city is held liable for obstructing surface 
 water and causing it to pass upon land over which it would 
 not naturally flow. 5 
 
 § 273. Same — Same. — A railroad corporation duly au- 
 thorized by law has no other or different rights regarding 
 surface water or superficially percolating waters, and if its 
 road-bed obstructs or diverts the natural flow of such water's, 
 no right of action, by the common law, arises to adjoining 
 owners of land, 6 the presumption being that the damages to 
 
 firming Com'rs v. Sweet, 77 111. App. "Walker v. Old Colony R. Co., 103 
 
 641; Noble v. St. Albans, 56 Vt. 522. Mass. 10, 16; Wagner v. Long Island 
 
 iFlaggu Worcester, 13 Gray, 601; E. Co., 2 Hun, 633; 5 Thomp. & C. 
 
 Turner v. Dartmouth, 13 Allen, 291. 163; 70 N. Y. 614; Conhocton Co. v. 
 
 See Cochrane v. Maiden, 152 Mass. Buffalo R. Co., 3 Hun, 523; 5 Thomp. 
 
 365. & C. 651; Raleigh R. Co. v. Wicker, 
 
 211 R I 520. 74 N. C. 220; O'Connor v. Fond du 
 
 3 Murphy v. Indianapolis, 83 Ind. Lac R. Co., 52 Wis. 526; Clausen v. 
 
 76. Chicago & N. W. Ry. Co. (Wis.), 83 
 
 * Vogel v. New York, 92 N. Y. 10. N. W. Rep. 146; Louisville R. Co. v. 
 
 5 Torrey v. Scranton City, 133 Penn. McAfee, 30 Ind. 291 ; Indianapolis R. 
 
 St. 173. See Slack v. Lawrence Town- Co. v. Smith, 52 id. 428; Hill v. Cin- 
 
 ship (N. J.), 19 Atl. Rep. 663; Bates v. cinnati Ry. Co., 109 id. 511; Clark v. 
 
 Westborough. 151 Mass. 174; Miller Hannibal R Co., 36 Mo. 202; Hosher 
 
 v. Morristown, 47 N. J. Eq. 62; Ruth- v. Kansas City R. Co., 60 Mo. 329; 
 
 erford v. Holley, 105 N. Y. 632; Gil- Munkers v. Kansas City R. Co., 60 Mo. 
 
 feather v. Council Biuffs, 69 Iowa, 334; Abbott v. Kansas City R Co., 
 
 310. 83 Mo. 271; Schneider v. Mo. Pac. 
 
 6 Whalley v. Lancashire Ry. Co., 50 Railway, 29 Mo. App. 68; Burke v. 
 
 L. T. N. s. 472; Walker v. New Mex- Same, id. 370; Atchison R Co. v. 
 
 ico, etc. R. Co., 165 U. S. 593; Greeley Hammer, 22 Kansas, 763; Baltzeger v. 
 
 v. Maine R Co., 53 Maine, 200; Mor- Carolina Midland Ry. Co., 54 S. C. 242; 
 
 rison v. Bucksport R. Co., 67 id. 353; Parker v. Norfolk & C. R. Co., 123 
 
550 
 
 THE LAW OF WATEES. 
 
 [CH. IX. 
 
 which they are entitled were included in the compensation 
 assessed. 1 The same is true where the road-bed obstructs an 
 artificial ditch through which the natural surface water on 
 the plaintiff's land is conducted to a river. 2 Under the civil- 
 law rule, a railroad corporation is liable for causing surface 
 water to accumulate on adjoining lands by embankments or 
 any artificial means ; 3 but, in the absence of evidence that the 
 corporation is under any legal obligation to maintain ditches, 
 it is not liable for failing to keep open ditches for the purpose 
 of leading water off the plaintiff's land. 4 And if a railroad, 
 
 N. C. 71. See Bagnall v. London R. 
 • Co., 31 L. J. (Exch.) 480. Contra, 
 under the civil law. Gillham v. Mad- 
 ison R. Co., 49 111. 484; Alton R Co. 
 v. Deitz, 50 111. 210; Toledo Ry. Co. v. 
 Hunter, 50 111. 325; Shane v. Kansas 
 R. Co., 71 Mo. 237 (a divided court); 
 Cincinnati R. Co. v. Ahr, 2 Cincin. 
 504; Carriger v. East Tennessee R. 
 Co., 7 Lea, 388; Cornish v. Chicago 
 R Co., 49 Iowa, 378; Galveston, etc. 
 R. Co. v. Becht (Tex. Civ. App.), 21 
 S. W. Rep. 971; Same v. Borsky (id.), 
 id. 1011; Baltimore, etc. R. Co. v. 
 Hackett, 87 Md. 224; Sinai v. Louis- 
 ville, etc. Ry. Co., 71 Miss. 547; Can- 
 ton, etc. R Co. v. Paine (Miss.), 19 S. 
 Rep. 199; Yazoo, etc. R Co. v. Davis, 
 73 Miss. 678; Jungblum v. Minneap- 
 olis, etc. R. Co., 70 Minn. 153 ; Fleming 
 v. Wilmington & W. R. Co., 115 N. C. 
 676; Fremont, etc. R. Co. v. Harlin, 
 50 Neb. 698: Parker v. Norfolk, etc. 
 R Co., 119 N. C. 677; Reinhartu Sut- 
 ton, 58 Kansas, 726; Egener v. New 
 York, etc. Ry. Co., 38 N. Y. S. 319; 
 Sentman v. Baltimore & O. R. Co., 78 
 Md. 223; St. Louis, etc. R. Co. v. Ellis, 
 58 111. App. 110; Shahan v. Ala. Gt. 
 So. R. Co., 115 Ala. 181; Ala. Gt. So. 
 R. Co. v. Shahan, 116 Ala. 302; Bun- 
 derson v. Burlington, etc. R. Co., 43 
 Neb. 545 ; Kenney v. Kansas City, etc. 
 R Co., 69 Mo. App. 569; DeLapp v. 
 Same, id. 572; Powers v. St. Louis, 
 etc. Ry. Co., 71 id. 540; Savannah, 
 etc. R. Co. v. Buford, 106 Ala. 303; St. 
 
 Louis, etc. Ry. Co. v. Anderson, 62 
 Ark. 360; Norfolk & W. R. Co. v. 
 Carter, 91 Va. 587; Mo. etc. Ry. Co. 
 v. Bishop (Tex. Civ. App.), 34 S. W. 
 Rep. 323; Texas & P. Ry. Co. v. Pad- 
 gett, 14 Tex Civ. App. 435; Dobbins 
 v. Mo. etc. Ry. Co., 91 Texas, 60; San 
 Antonio, etc. Ry. Co. v. Mohl (id.), 
 id. 22. In Alton R. Co. v. Deitz, 50 
 111. 210, held that a street railroad 
 which laid its track across a street 
 gutter, is liable for the obstruction 
 of surface water. See Indianapolis 
 Ry. Co. v. Smith, 52 Ind. 428; Lionw 
 Baltimore City Pass. Ry. Co. (Md.), 
 44 Atl. Rep. 1045. 
 
 i Clark v. Hannibal R Co., 36 Mo. 
 202; Raleigh R Co. v. Wicker, 74 
 N. C. 220; Fleming v. Wilmington & 
 W. R. Co., 115 N. C. 676; Walker v. 
 Old Colony Ry. Co., 103 Mass. 10; 
 Cassidy v. Same, 141 Mass. 174; 
 Rathke v. Gardner, 134 Mass. 14. 
 
 2 O'Connor v. Fond du Lac Ry. Co., 
 52 Wis. 526; Pettigrew v. Evansville, 
 25 Wis. 223. 
 
 3 Toledo Ry. Co. v. Morrison, 71 111. 
 616; Little Rock Ry. Co. v. Chapman, 
 39 Ark. 463; Louisville R Co. v. Hays, 
 11 Lea (Tenn.), 382; Wallace v. Kan- 
 sas City & S. Ry. Co., 47 Mo. App. 
 491; Ecton v. Lexington & E. Ry. 
 Co. (Ky.), 53 S. W. Rep. 523; Kirk v. 
 Kansas City, etc. R. Co., 51 La. Ann. 
 664, 667. 
 
 < Field v. Chicago Ry. Co., 76 Mo. 
 614,. 
 
I 274.] 
 
 SUKFACE WATEBS. 
 
 551 
 
 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. 1 Damages caused by the dis- 
 placement or obstruction of surface water may be included in 
 the assessment of damages under the statute caused by the 
 original construction of the railroad. 2 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. 3 A 
 city has been held liable for permitting a railroad corporation 
 to so use its streets as to cast surface water on the plaintiff's 
 land. 1 
 
 §274. Same — Draining into watercourses. — The owner 
 of land has a right to discharge the natural drainage of his 
 
 1 Adams v. Hastings R. Co., 18 
 Minn. 260; Miohell v. New York R. 
 Co., 36 Hun, 177; Chicago R. Co. v. 
 Glenney, 28 111. App. 364; Drake v. 
 Chicago Ry. Co., 63 Iowa, 302; Wil- 
 lits v. Chicago R. Co., 80 Iowa, 531 ; 
 Hanlin v. Chicago Ry. Co., 61 Wis. 
 515; Galveston Ry. Co. v. Tait, 63 
 Texas, 223; Same v. Seymour, id. 345; 
 Gulf Ry. Co. v. Helsley, 62 id. 593; 
 Sahine Ry. Co. v. Broussard, 75 id. 
 597; Omaha R. V. Co. v. Brown, 29 
 Neb. 492; Davidson v. Oregon R. Co., 
 11 Oregon, 136; Maysville, etc. R. Co. 
 v. Ingram (Ky.), 30 S. W. Rep. 8( 
 Rowe v. St. Paul Ry. Co., 41 Minn. 
 384; 16 Am. St. Rep. 706, and note; 
 Ryan v. Miss. Valley R. Co., 62 Miss.. 
 162; Chamberlain v. Baltimore R. Co., 
 66 Md. 518. 
 
 2 Walker v. Old Colony R. Co., 103 
 Mass. 1, 16; Morrison v. Bucksport R 
 Co., 67 Maine; 353; Grand Rapids R. 
 Co. v. Horn, 41 Ind. 479; Rockford 
 R. Co. v. McKinley, 64 111. 338. See 
 Proprietors of Locks, etc. v. Nashua 
 R. Co., 10 Cush. 385; Hatch v. Ver- 
 mont R. Co., 25 Vt. 49. In Waterman 
 v. Connecticut R. Co., 30 Vt. 610, it was 
 held that a railroad company may, as 
 a question of prudence and care, be 
 required to have regard to the pre- 
 
 vention of damage to a land-owner 
 by the accumulation of surface water 
 when the geographical formation and 
 surrounding circumstances are such 
 a£ to make it apparent to reasonable 
 men that such precautions are nec- 
 essary; and that ordinarily this is a 
 question of fact. This may not be 
 everywhere the law. Hanlin v. Chi- 
 cago Ry. Co., 61 Wis. 515, 529. 
 
 3 Curtis v. Eastern R. Co., 98 Mass. 
 428; Toledo R Co. v. Morrison, 71 
 111. 616; St. Louis R. Co. v. Capps, 
 72 I1L 188; Jacksonville R. Co. v. 
 Cox, 91 111. 500; McCormick v. Kan- 
 sas City R Co., 57 Mo. 433; 70 Mo. 
 359; Raleigh Railroad v. Wicker, 74 
 N. C. 220; Chicago R. Co. v, Conners, 
 25 111. App. 561; Same v. Riley, id. 
 569; Lincoln, etc. R. Co. v. Suther- 
 land, 44 Neb. 526; Gilbert v. Savan- 
 nah R. Co., 69 Ga. 396; Bourdier v. 
 Morgan's La. R. Co., 35 La. Ann. 947; 
 G., C. & S. F. R. Co. v. Donahoo, 59 
 Texas, 128; Springfield Railway v. 
 Henry, 44 Ark. 360; Deigleman v. 
 N. Y. Ry. Co., 12 N. Y. S. 83; Whal- 
 ley v. Lancashire, etc. Ry. Co., 13 Q. 
 B. D 131. 
 
 4 Torpey v. Independence, 24 Mo. 
 App. 288. 
 
552 THE LAW OF WATEES. [Ch. IX, 
 
 land, and the surface water accumulating thereon, into a water- 
 course, whereby it becomes a part thereof, 1 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 
 the stream, provided its natural capacity is not exceeded, 2 and 
 those whose supply is rendered more variable cannot com- 
 plain. 3 The land-owner may, for his own convenience, cleanse 
 and wall up a natural spring on his land if the natural flow of 
 water therefrom in the usual channel is not so increased as to- 
 materially injure his neighbor upon whose land the water 
 passes. 4 
 
 §275. Same — Embanking. — The owner of land may, by 
 the common law, 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. 5 One can^ 
 not enter upon another's land to erect a barrier. 6 In hilly re- 
 gions, 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 prob- 
 ably be modified, such waters having some of the character- 
 
 1 Sparks Manuf. Co. v. Newton, 57 cester, 7 Allen. 19; Gannon v. Harga- 
 
 N. J. Eq. 367. don, 10 id. 106; Murphy v. Kelley, 
 
 ■ Wheeler v. Worcester, 10 Allen, 68 Maine, 52l ; Eulrich v. Richter, 37 
 
 591; McCormick v. Horan, 81 N. Y. Wis. 226; Schlichter v. Phillipy, 67 
 
 86; Williams v. Gale, 3 H. & John. Ind. 201; Lessard v. Stram, 62 Wis. 
 
 231; Miller v. Laubach, 47 Penn. St. 112; Farris v. Dudley, 78 Ala. 124; 
 
 154; Foot v. Bronson, 4 Lans. 47; Crabtree v. Baker, 75 Ala. 91 ; White 
 
 Treat v. Bates, 27 Mich. 390. See v. Sheldon, 35 Hun, 193; Burke v. 
 
 Jones v. Hannovan, 55 Mo. 462; Mo. Pac. Ry. Co., 29 Mo. App. 370; 
 
 Noonan v. Albany, 79 N. Y. 470; Da- Schneider v. Same, id. 68; Boyd v. 
 
 vison v. Hutchinson, 44 N. J. Eq. 474; Conklin, 54 Mich. 583; McBryan v. 
 
 Wagner v. Chaney, 19 111. App. 546 ; Canadian Pac. Ry. Co., 29 Can. Sup. 
 
 Hoester v. Hemsath, 16 Mo. App. 485. 359; Ostrom v. Sills, 28 id. 4S5; 24 
 
 s Waffle v. New York R. Co., 58 Ont. App. 526. A fortiori, to shut 
 
 Barb. 413; 53 N. Y. 11; Waffle v. out foul water. Beard tt Murphy, 37 
 
 Barber, 61 Barb. 130. See Rudel v. Vt. 99. Even if drift-wood carried 
 
 Los Angeles County, 118 CaL 281. along by floods be deposited on an- 
 
 See supra, § 218a. other's land. Taylor v. Fickas, 64 
 
 4 Ibid. Ind. 167. 
 
 5 Ashley v. Wolcott, 11 Cush. 192; » Grant v. Allen, 41 Conn. 156. 
 Bigelow, C. J., in Dickinson v. Wor- 
 
§§ 276, 277.] sueface wateks. 553 
 
 istics of watercourses. 1 Martin v. Kiddle, 2 in Pennsylvania, 
 decided thata person could not obstruct an artificial flow of 
 surface water and turn it upon a third person who is not re- 
 sponsible for the flow. In Missouri a riparian proprietor is 
 held not to be entitled, by erecting an embankment, to divert 
 the natural course of water overflowing from a river in a flood 
 and turn it upon his neighbor's land. 3 
 
 §276. Same — Same — Under civil law.— 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. 4 If the owner 
 of the dominant estate drains his land in such a manner as to 
 injure the owner of the servient estate, and his act is not in 
 the interest of good husbandry, it is an injury for which the 
 latter has a remedy by action or by the preventive remedy of 
 injunction. 5 And it is an actionable injury, without proof of 
 actual damage, to prevent the flowing off of surface water by 
 the erection of an embankment on one's own land. 6 
 
 § 277. Same — In highways. — An owner of premises adja- 
 cent to a street or highway may place any obstruction thereon 
 to shut out the flow of mere surface water from such street or 
 highway, and will not be liable to an action by the city or 
 town for damage thereby suffered. 7 A city lot may be so im- 
 
 1 Palmer v. Waddell, 22 Kans. 352. Farkas v. Towns, 103 Ga. 150; Peck 
 See Bowlsby v. Speer, 2 Vroom, 35; v. Harrington, 109 111. 611. Evidence 
 Hoyt v. Hudson, 27 Wis. 656; Mitch- of prospective damage held incom- 
 ell v. Bain, 142 Ind. 604; Simpson v. petent in Hargreaves v. Kimberly, 
 Stillwater W. Co., 62 Minn. 444. 26 W. Va. 787. See ante, § 2G6. 
 
 2 26 Penn. St. 415 n.; Davidheiser 5 Herrington v. Peck, 11 Brad. (111.) 
 v. Ehoads, 25 W. N. C. 513. 62; Livingston v. McDonald, 21 Iowa,. 
 
 3 Shane v. Kansas City E. Co., 71 160. See Weddell v. Hapner, 124 Ind. 
 Mo. 237; 36 Am. Rep. 480, and note. 315; Vannest v. Fleming, 79 Iowa, 
 See Gray v. Mo Williams, 98 Cal. 157; 638; 18 Am. State Rep. 387; ante, 
 29 Am. L. Rev. 311. § 218a. 
 
 4 Overton v. Sawyer, 1 Jones (Law), 6 Tootle v. Clifton, 22 Ohio St. 247; 
 308; Porter v. Durham, 74 N. C. 767; Butler v. Peck, 16 id. 334. 
 
 Tootle v. Clifton, 22 Ohio St. 247; 'Franklin v. Fisk, 13 Allen, 211; 
 
 Hicks v. Silliman, 93 I1L 255; Lau- Bangor v. Lansil, 51 Maine, 521; 
 
 mieru Francis, 23 Mo. 181; Ogburn Limerick Co.'s Appeal, 80 Penn. St. 
 
 v. Connor, 46 Cal. 346; McDaniel v. 425; Merrick, J., in Flagg v. Wor- 
 
 Cummings, 83 Cal. 515; Louisville cester, 13 Gray, 601, 607. 
 R. Co. v. Hays, 11 Lea (Tenn.), 382; 
 
554 THE LAW OF WATEKS. [Ch. IX. 
 
 proved by its owner as to cast rain-water into the street at the 
 established grade without liability for injury by such water to 
 a lot below grade. 1 In general, road drainage is governed by 
 the same rule as farm drainage. 2 
 
 § 278. Same — Pollution. — A land-owner who places nox- 
 ious substances on his land, polluting the surface water or super- 
 ficially percolating waters passing thence upon the premises of 
 an adjoining owner to his injury, will be liable in an action 
 for such pollution, 3 although there is no occupied house on the 
 latter's premises; 4 and the right to discharge surface water 
 down a natural watercourse does not justify an unreasonable 
 discharge of sewage. 5 But a land-owner across whose lot foul 
 water flows from a higher source upon a lower estate, without 
 any fault on his part, has been held not liable. 6 In general, the 
 owner of unoccupied land is required to see that it does not be- 
 come a nuisance even through the acts of third persons, but is not 
 civilly liable when the evil is created by natural causes only. 7 
 
 §279. Same — Prescriptive rights. — An owner of land, 
 the natural drainage of which flows over the land of an ad- 
 
 1 Phillips v. Waterhouse, 69 Iowa, Aldrich v. Wetmore, 56 Minn. 20; 
 199; Sentner v. Tees, 132 Penn. St. Lookett v. Fort Worth, etc. R. Co., 
 216. 78 Texas, 211; Parker v. Laredo, 9 
 
 2 Pre-emption H. Com'rs v. Whit- Tex. Civ. App. 221. As to indictment 
 sitt, 15 111. App. 318; Palmer v. O'Don- therefor and its effect, see Waters v. 
 nell, id. 324; Vale Mills v. Nashua, 63 Newark, 56 N. J. L. 361; Adams Hotel 
 N. H. 136; Durgin v. Neal, 82 Cal. 595; Co. v. Cobb (Ind. Ter.), 53 S. W. Rep. 
 Croysdale v. Sunbury-on-Thames 478. 
 
 Urban Council, [1898] 2 Ch. 515. *Busch v. New York Ey. Co., 12 
 
 3 Brown v. Ilius, 27 Conn. 84; N. Y. S. 85. 
 
 Ludeling v. Stubbs, 34 La. Ann. 935; 6 Charles v. Finchley Local Board, 
 
 Gawtry v. Leland, 31 N. J. Eq. 385. 48 L. T. n. s. 596; Durrant v. Brank-' 
 
 See Beard v. Murphy, 37 Vt. 99; some Urban Council, [1897] 2 Ch. 291; 
 
 Winn v. Rutland, 52 Vt. 48; Jack- Thomas v. Concordia C. Co., 68 Mo. 
 
 sonvilleu Lambert, 62 111. 519; Pekin App. 350; Watson v. Milford (Conn.), 
 
 v. McMahon, 154 id. 141; Jutte v. 45 Atl. Rep. 167; Correll v. Cedar 
 
 Hughes, 67 N. Y. 267; Daggett v. Rapids (Iowa), 81 N. W. Rep. 724; 
 
 Cohoes, 7 N. Y. S. 882; Crossland v. ante, § 261. 
 
 Pottsville, 126 Penn. St. 511; Livezey 6 Brown v. McAllister, 39 CaL 573. 
 
 v. Schmidt, 96 Ky. 441; Maguire v. See Sellick v. Hall, 47 Conn. 260; 
 
 Carters ville, 76 Ga. 84; 36 Cent. L. J. Barring v. Com., 2 Duv. (Ky.) 95. 
 
 212. As to stagnant or polluted water 7 See Att. Gen. v. Tod Heatley, 
 
 injuring health, see Busch v. New [1897] 1 Ch. 560; Roberts v. Harrison, 
 
 York, etc. Ry. Co., 12 N. Y. S. 85; 101 Ga. 773; infra, § 363. 
 
§ 280.] 
 
 SUBTEEBANEAN WATEES. 
 
 555 
 
 joining owner, cannot by any lapse of time gain a right by 
 prescription to have such "flow continue, if at any time the 
 owner of the lower estate chooses to interrupt or divert such 
 flow: 1 And the continued flowing of mere surface water or 
 of the natural drainage upon or across land, either in natural 
 or artificial channels, for any length of time, will not, in gen- 
 eral, confer any right by prescription upon the owner of the 
 land or any one using the water for any purpose to compel the 
 continuance of such flow in the same manner and direction. 2 
 But the owner of land, by collecting into artificial channels 
 the surface water or superficial drainage there flowing, and 
 discharging such accumulations upon or across the land of an 
 adjoining owner adversely for a sufficient length of time, may 
 acquire an easement in such adjacent land for the continuance 
 of such discharge ; 3 and under the civil law prescriptive rights 
 may be gained in surface drainage as well as in watercourses. 4 
 
 §280. Underground waters — Percolations. — Water per- 
 colating through the ground beneath the surface, either with- 
 out a definite channel, or in courses which are unknown and 
 unascertainable, belongs to the realty in which it is found. 5 
 
 'Parks v. Newburyport, 10 Gray, 
 28; Dickinson v. "Worcester, 7 Allen, 
 19; Foster, J., in White v. Chapin, 12 
 Allen, 516; Swett v. Cutts, 50 N. H. 
 439. 
 
 2 Wood v. Waud, 3 Exch. 748 
 Greatrex v. Hayward, 3 Exch. 291 
 Broadbent v. Ramsbotham, 11 Exch. 
 602; Rawstron v. Taylor, id. 369 
 White v. Sheldon, 8 N. Y. S. 212 
 White v. Chapin, 12 Allen, 516; Stod- 
 dard v. Filgur, 21 111. App. 560; Rib- 
 ordy v. Pellachoud, 28 id. 303; Boyn- 
 ton v. Longley, 19 Nev. 69. 
 
 3 Claxton v. Claxton, Ir. R 7 C. L. 
 23; White v. Chapin, 12 Allen, 516; 
 Earl v. De Hart, 1 Beas. 280; Schnitz- 
 iusu Bailey, 48 N. J. Eq. 409; Conklin 
 v. Boyd, 46 Mich. 56; Alcorn v. Sadler, 
 71 Miss. 634; ante, § 225. 
 
 4 Louisville R. Co. v. Mossman, 90 
 Tenn. 157 : Leidlein v. Meyer, 95 Mich. 
 586. 
 
 5 Chasemore v. Richards, 7 H. L. 
 
 Cas. 349; 5 H. & N. 988; Dickinson 
 v. Grand Junction Canal Co., 7 Exch. 
 282; Acton v. Blundell, 12 M. & W. 
 324; Hammond v. Hall, 10 Sim. 552; 
 Cooper v. Barber, 3 Taunt. 99; Bal- 
 ston v. Bensted, 1 Camp. 463; Galgay 
 v. Great Southern Ry. Co., 4 Ir. C. L. 
 456; Chase v. Silverstone, 62 Maine, 
 175; Roathw Driscoll, 20 Conn. 533; 
 Brown v. Illius, 27 Conn. 84; 25 Conn. 
 593; Ocean Grove C. M. Ass'n v. As- 
 bury Park Com'rs, 40 N. J. Eq. 447; 
 Taylor v. Fickas, 64 Ind. 167; Delhi v. 
 Youmans, 45N. Y. 362; s. c. 50 Barb. 
 316; Dexter U.Providence Aqueduct 
 Co., 1 Story, 387; Wheatley v. Baugh, 
 25 Penn. St. 528; 64 Am. Dec. 721, 
 note; Hough's Appeal, 1,02 Penn. St. 
 442; 48 Am. Rep. 193, note; Haldeman 
 v. Bruckhart, 45 Penn. St. 514; Cole- 
 roan v. Chadwick, 80 id. 81; Trout v. 
 McDonald, 83 id. 126; Lybe's Appeal, 
 106 id. 626; Williams v. Ladew, 161 
 id. 283; Smith v. Adams, 6 Paige, 
 
556 
 
 THE LAW OF WATERS. 
 
 [Oh. IX. 
 
 The rule that a man may freely and absolutely use his prop- 
 erty, so long as he does not directly invade that of his neigh- 
 bor, or consequentially injure his clearly denned rights, is appli- 
 cable to the interruption of sub-surface supplies of water or of 
 a stream, and the damage resulting therefrom is not the sub- 
 ject of legal redress. 1 The land-owner may, therefore, make a 
 ditch to drain his land, or dig a well thereon, or open and work 
 a quarry upon it, or otherwise change its natural condition, al- 
 though by so doing he interrupts the underground sources of a 
 spring or well on his neighbor's land. 2 The only remedy for 
 the latter is to sink his own well deeper. 3 He may take the 
 water which would otherwise pass by natural percolation into 
 the adjoining land, or draw off the water which may come by 
 natural percolation from that land, 4 and no adverse right to 
 prevent the exercise of this privilege can be acquired by pre- 
 
 435; 24 Wend. 585; Ellis v. Duncan, 
 
 29 N. Y. 466; 21 Barb. 230; Radcliff 
 v. Brooklyn, 4 N. Y. 195, 200; Pixley 
 v. Clark, 35 N. Y. 520; 32 Barb. 268; 
 Goodale v. Tuttle, 29 N. Y. 466; Bliss 
 v. Greeley, 45 N. Y. 671; Frazier v. 
 Brown, 12 Ohio St. 294; Dissette v. 
 Lowrie, 6 Ohio N. P. 392; Chatfleld 
 v. Wilson, 28 Vt. 49; 31 Vt. 358; Clark 
 v. Conroe, 38 Vt. 469; Tampa W. W. 
 Co. v. Cline, 37 Fla. 586; Taylor v. 
 Welch, 6 Oregon, 19a ; Gould v. Eaton, 
 111 Cal. 639; 117 Cal. 539; Reid v. 
 Reid. 112 Cal. 274; Mosier v. Caldwell, 
 7 Nev 363; Meyer v. Taeoma L. & W. 
 Co., 8 Wash. 144; Willis v. Perry, 92 
 Iowa, 297; New Albany R. Co. v. Pet- 
 erson, 14 Ind. 112; Bassett v. Salis- 
 bury Manuf. Co., 43 N. H. 573; 30 
 Cent. L. J. 269; 23 Am. Law Rev. 376; 
 
 30 Am. Law Reg. N. s. 237; Davis v. 
 Afong, 5 Hawaiian, 216. See So. Pac. 
 R. Co. v. Dufour (Cal.), 19 L. R. A. 92, 
 and note; 20 L. J. 121; 7 Sol. J. 601; 
 15 id. 523; 19 id. 371; 19 Ir. L. T. 177, 
 321 ; 76 L. T. 295 ; 23 Am. L. Reg. N. S. 
 513; 30 id. 237; 2 id. 65; Swett v. Cutts 
 (50 N. H. 439), 11 Am. L. Reg. 11, and 
 note. 
 
 i Ibid. 
 
 2 Ibid.; Edwards v. Haeger, 180 I1L 
 
 99. This applies to a locator on pub- 
 lic land whose well drains the well 
 of an adjoining prior appropriator of 
 the percolating waters. Sullivan v. 
 Northern Spy M. Co., 11 Utah, 438. 
 A contract to dig a well does not 
 warrant the finding of water. Lit- 
 trell v. Wilcox, 11 Mont. 77. See Book 
 v. New Castle W. N. Co., 151 Penn. 
 St. 499; Genni v. Hahn, 82 Wis. 90. 
 The terms of a deed may preclude 
 the grantor from draining a well. 
 Minard v. Currier, 67 Vt. 489. As to 
 contracts for the digging of wells. 
 Bee e. g., Gregory v. United States, 33 
 Ct. CI. 434; Schulz v. Tessman, 92 
 Texas, 488; Harris v. Perkins (Miss.), 
 25 S. Rep. 154; Boston v. Hewitt 
 (Okl.), 58 Pac. Rep. 619; Sherzer v. 
 Buckholz (Iowa), 78 N. W. Rep. 818; 
 Barnes v. Rawson (id.), 82 id. 947; 
 McPherson v. San Joaquin County 
 (126 Cal.), 56 Pac. Rep. 802; Richison 
 v. Mead (S. D.), 80 N. W. Rep. 131; 
 Rankin v. Wever, 78 111. App. 86. 
 
 3 New River Co. v. Johnson, 2 El. & 
 El. 445; Brain v. Marfell, 41 L. T. N. s. 
 455; Razzo v. Varni, 81 Cal. 289. 
 
 * Ibid. ; Wilson v. New Bedford, 108 
 Mass. 261, 265. 
 
§ 281.J SUBTEEEANEAH WATEES. 557 
 
 scription. 1 In Nevada it is held that a spring cannot be law- 
 fully diverted to the injury of a prior appropriator to whom its 
 waters naturally flow through a creek by percolation from the 
 spring. 2 And in Massachusetts a town which constructs a sewer 
 on land taken for that purpose, and thereby drains a well fed 
 by percolation through the soil, and situated upon land not 
 taken and not adjoining land taken, is liable in damages to its 
 owner. 3 The owmer of land who grants to a railroad a right 
 of way grants only an easement, and remains the owner of 
 springs thereon, as well as of streams and minerals, and he may 
 thereafter continue to make any lawful use of the land. 4 
 
 § 281. Same — In defined and known channels.— If under- 
 ground currents of water flow in defined and known channels, 
 the rules of law which govern the use of similar streams flow- 
 ing upon the surface of the earth are applicable to them ; 5 but 
 if it does not appear that the waters which come to the sur- 
 face are supplied by a definite flowing stream, they are pre- 
 sumed to be formed by the ordinary percolations of water in 
 the soil. 6 Some such presumption is necessary on account of 
 the difficulty of determining whether the water flows in a 
 channel, but in all other respects there appears to be no dis- 
 
 iChasemore v. Richards, 7 H. L. H. L. Cas. 374; Cole Silver M. Co. v. 
 
 Cas. 349; 5 H. & N. 982; Smith v. Virginia Water Co., 1 Sawyer, 470; 
 
 Kendrick, 7 C. B. 546; Dickinson v. Hale v. McLea, 53 Cal. 578; Collins 
 
 Grand Junction Canal Co., 7 Exch. v. Chartiers V. G. Co., 131 Penn. St. 
 
 282; Rawstron v. Taylor, 11 Exch. 143; 17 Am. St. Rep. 791, and note; 
 
 369; Svvett v. Cutts, 50 N. H. 439; 2 Cur. Comment, 304; Lybe's Appeal, 
 
 Wheelock v. Jacobs, 70 Vt. 162; 106 Penn. St. 626; Craig v. Shippen- 
 
 Wheatley v. Baugh, 25 Penn. St. 528; burg, 7 Penn. Supr. Ct. 526; Willis v. 
 
 €4 Am. Dec. 721, 727, note; Frazier v. Perry, 92 Iowa, 297; Redman v. For- 
 
 Brown, 12 Ohio St. 294; Carbrey v. man, 83 Ky. 214; Keeney u Carillo, 
 
 Willis, 7 Allen, 367; Roath v. Dris- 2 New Mex. 480; Taylor v. Welch, 6 
 
 coll, 20 Conn. 533. Oregon, 200; Shively v. Hume, 10 id. 
 
 2 Strait a. Brown, 16 Nev. 317. See 96; Cross v. Kitts, 69 Cal. 217; Cas- 
 Leonard v. Shatzer, 11 Mont. 422. talia T. C. Co. v. Castalia S. Co., 8 
 
 3 Trowbridge uBrookline, 144 Mass. Ohio Cir. Ct. 194; Wyandot Club v. 
 139. See Elster v. Springfield, 49 Ohio Sells, 6 Ohio N. P. 64 ; Strait v. Brown, 
 St. 82. 16 Nev. 317 ; Smith v. Adams, 6 Paige, 
 
 4 Smith v. Holloway, 124 Ind. 329. 433; Mahan v. Brown, 13 Wend. 261; 
 See Howe v. Harding, 84 Texas, 74; 34 Cent. L. J. 367. 
 
 ante, §249. 6 Hanson v. McCue, 42 Cal. 303; 
 
 5 Ibid.; Dickinson v. Grand June- Metcalf v. Nelson, 8 S. Dak. 87; Far- 
 tion Canal Co., 7 Exch. 282; Chase- well v. Sturgis W. Co. (S. Dak.), 73 N. 
 more v. Richards, 2 H. & N. 186; 7 W. Rep. 916. 
 
558 THE LAW OF WATERS. [Ch. IX. 
 
 tinction between subterranean waters and those upon the sur- 
 face. 1 In this connection, " defined " means a contracted and 
 bounded channel, though the course of the stream may be 
 undefined by human knowledge, and " known," which is not 
 here synonymous with " visible," refers to knowledge by rea- 
 sonable inference. 2 The stream is not apparent when the sub- 
 terranean water flows in an unknown channel which could be 
 ascertained by excavation. 3 An action will equally lie for the 
 obstruction or misuse of subterranean or of surface water after 
 it has become a part of an open stream or spring, 4 and the 
 owner of land has no right to construct his well or other struct- 
 ure in such manner as to create upon his own land an artificial 
 underground current of water from a running stream. 5 A 
 person who appropriates underground water by intercepting 
 and storing it, will be restrained from discharging it upon or 
 into his neighbor's land or mine, although, if not intercepted, 
 it might have found its way there by percolation. 6 In New 
 Hampshire a different rule from that above stated has been 
 adopted, it being held, with respect to both surface water not 
 gathered into a stream, and to water percolating through the 
 soil, that the land-owner's right to obstruct or divert it is lim- 
 ited to what is necessary in the reasonable use of his own 
 land; 7 and, in general, the exemption from liability for with- 
 drawing water from a neighbor's well or spring by percola- 
 tion does not exist when the acts complained of violate a grant 
 or covenant. 8 "With respect to the statute of limitations there 
 is no distinction between trespasses above and below the sur- 
 face of the earth, and it is not material whether the plaintiff 
 
 iM'Nab v. Robertson, [1897] A. C. Covert v. Cranford, 141 N. T. 521; 
 
 129; Swett v. Cutts, 50 N. H. 439. Forbell v. New York, 56 N. Y. S. 790; 
 
 2 Black v. Ballymera Com'rs, 17 L. 61 id. 1005; Wilson v. Ward (126 Cal.), 
 R. Ir. 459; Los Angeles v. Pomeroy, 56 Pac. Rep. 573; Emporia v. Soden, 
 125 Cal. 420. 25 Kans. 588. 
 
 3 Ewart v. Belfast Poor Law Guard- ° West Cumberland Iron Co. v. 
 ians, 9 L. R Ir. 172. Kenyon, 6 Ch. D. 773/ 
 
 * Delhi v. Youmans, 45 N. Y. 362; 'Bassett v. Salisbury Manuf. Co, 
 
 50 Barb. 316; Leavenworth v. Pros- 43 N. H. 569; Swett v. Cutts, 50 N. H. 
 
 pect Rock W. Co., 8 Kulp, 310; Sad- 439. 
 
 dler v. Lee, 66 Ga. 45; Razzo v. Varni, 8 Johnstown Cheese Manuf. Co. v. 
 
 81 Cal. 289. Veghte, 69 N. Y. 16; Whitehead u 
 
 6 Ante,% 245; Grand Junction Canal Parks, 2 H. & N. 870; Cook v. Chil- 
 
 Co. v. Shugar, L. R. 6 Ch. 483; JEtna cott, 3 Ch. D. 694. 
 Mills v. Brookline, 127 Mass. 69, 71; 
 
§§ 282, 283.] .. SUBTEKBANEAN WATERS. 559 
 
 has knowledge of the cause of action within the time limited 
 by the statute. 1 But no right can be acquired by prescription 
 in mere percolating waters. 2 In city streets wells may be' abol- 
 ished as a sanitary measure without compensation to the own- 
 ers of lots. 3 
 
 § 282. Acton y. Blundell. — In Acton v. Blundell, 4 decided 
 in 1843, in the Exchequer Chamber, the plaintiff's mill was 
 carried by water raised from a well on his land. This supply 
 of water was destroyed by a coal-pit dug by the defendant on 
 his own land at a distance of half a mile from the well. The 
 loss was held to be damnum absque injuria. Tindal, C. J., 
 said : " In the case of a well sunk by a proprietor in his own 
 land, the water which feeds it from a neighboring soil does 
 not flow openly in the sight of the neighboring proprietor, but 
 through the hidden veins of the earth beneath its surface ; no 
 man can tell what changes these underground sources have 
 undergone in the progress of time ; it may well be that it is 
 only yesterday's date that they first took the course and di- 
 rection which enabled them to supply the well ; again, no pro- 
 prietor knows what portion of water is taken from beneath his 
 own soil; how much he gives originally, or how much he trans- 
 mits only, or how much he receives; on the contrary, until the 
 well is sunk, and the water collected by draining into it, there 
 cannot properly be said, with reference to the well, to be any 
 flow at all." " There is no limit of space within which the 
 claim of right to an underground spring can be confined." 
 
 § 283. Later English decisions. — In Dickinson v. Grand 
 Junction Canal Co., 5 the Court of Exchequer held, in 1852, that 
 the defendants who sank a well upon their own premises, and 
 thereby prevented water from percolating in its natural course 
 into a river on which the plaintiff's mill was situated, to his 
 damage, were liable therefor at common law. But in 1856, the 
 same court held, in Broadbent v. Kamsbotham, 6 that where the 
 
 1 Hunter v. Gibbons, 1 H. & N. 459; Whetstone v. Bowser, 29 Penn. St. 
 
 Hawk v. Minnioh, 19 Ohio St. 466; 59; Hoag v. Pierce, 65 Hun, 424. 
 
 Williams v. Pomeroy Coal Co., 37 id. 3 Ferrenbaoh v. Turner, 86 Mo. 416. 
 
 583. 4 12 M. & W. 324, 350, 351. 
 
 2 Bealey v. Shaw, 6 East, 208; Bal- 5 7 Exoh. 282. 
 
 ston v. Bensted, 1 Camp. 463. See 6 11 Exch. 602; Rawstronv. Taylor, 
 
 11 Exch. 369. 
 
560 THE LAW OF WATERS. [Ch. IX. 
 
 plain tiff's mill had, for more than fifty years, been worked by 
 •a brook supplied with water from a pond filled by rain, a shal- 
 low well supplied by subterranean waters, a swamp and a well 
 formed by a stream issuing from the side of a hill, all which 
 waters occasionally overflowed and ran down the defendant's 
 land in no defined channel into the brook, the plaintiff had no 
 right, as against the defendant, to the flow of any of these 
 waters. 
 
 § 284. Same. — In the leading case of Chasemore v. Eich- 
 ards, 1 the plaintiff's mill had been propelled for more than 
 sixty years by the River Wandle which had its rise in the 
 town of Croyden, and was largely fed by the rain falling upon 
 a large territory which included the town, and percolating 
 through the ground to the river. The defendants sunk a deep 
 well in their land a quarter of a mile from the source of the 
 river for the purpose of supplying the town with water, and 
 thereby abstracted so much of the underground water, which 
 would otherwise have found its way into the river, as to ap- 
 preciably retard the mill. The action was brought for this 
 cause, and judgment was given for the defendants by the 
 Court of Exchequer in 1856. In the Exchequer Chamber this 
 was affirmed, all the judges concurring in the opinion deliv- 
 ered by Cresswell, J., except Coleridge, J., whose dissenting 
 opinion was based upon the maxim sic utere tuo ut alienum 
 non Imdas? In the House of Lords the former judgment was 
 unanimously re-affirmed, although Lord "Wensleydale hesitated 
 as to sustaining the view of the other judges in its full extent. 
 The decision in Broadbent v. Eamsbotham was followed, and 
 that in Dickinson v. Grand Junction Canal Co. was disap- 
 proved. In New Eiver Co. v. Johnson, 3 the plaintiff was held, 
 upon the authority of the foregoing decisions, to have no 
 cause of action against the defendant for acts which prevented 
 water from percolating into her well, or for abstracting from 
 the well water which had already found its way there. In 
 Eegina v. Metropolitan Board of Works, 4 the prosecutor's es- 
 
 '7H.L. Cas. 349; 5 H. & N. 982; 2 well as the common law. Keg. v. 
 
 H. & N. 168; Hodgkinson v. Ennor, 4 Bruce, 10 Lower Can. 117. 
 
 B. & S. 229 (1863). " 3 B. & S. 710 (1863); Chase v. Sil- 
 
 2 2 El. & El. 435 (1860). verstone, 62 Maine, 175. 
 
 3 This is a maxim of the civil as 
 
§ 285. J SUBTEKRANEAN "WATERS. 561 
 
 tate was situate in part upon a gravel bed, -which was imbedded 
 in a basin of clay, and in which there had existed from time 
 immemorial, on the lower part of the premises, a pond fed by 
 powerful springs at its bottom. The water overflowed one 
 edge of the clay-basin, and formed a rivulet which ran through 
 the grounds and supplied ornamental ponds there, and which 
 was used for the cattle and for supplying the garden. The 
 defendants constructed a sewer under a highway near by, and 
 cut through the gravel bed and basin of clay, the immediate 
 effect of which was to prevent the springs from finding their 
 way into the pond, which, with the rivulet and other ponds, 
 became dry in consequence. The case was held not distin- 
 guishable from that of Chasemore v. Richards. 
 
 § 285. Wheatley v.Baugh. — In "Wheatley v. Baugh, 1 Lewis, 
 C. J., said: "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." 2 "So a subterranean 
 stream which supplies a spring with water cannot be diverted 
 by the proprietor above for the mere purpose of appropriat- 
 ing the water to his own use." 3 " 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 throw the 
 water back on his neighbor above, so the latter is bound, as a 
 correlative obligation, to permit it to flow to his neighbor 
 below." " The 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." " 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, 
 
 135 Penn. St. 528, 531, 533. 46 N. Y. S. 141; Merrick W. Co. v. 
 
 2Broadbent v. Ramsbotham, 11 Brooklyn, 53 id. 10; Forbell v. New 
 
 Excb, 602, Dudden v. Clutton Union, York, 61 id. 1005; Whetstone v. Bow- 
 
 1 H. & N. 627; Bunting v. Hicks, 70 ser, 29 Penn. St. 59. Suit may be 
 L. T. 455; Mostyn v. Atherton, [1899] brought either for trespass on the 
 
 2 Ch. 360; Bruening v. Dorr, 23 Col. land or for taking water therefrom. 
 195; "Wilson v. Ward (Col.), 56 Pac. Metcalf v. Nelson, 8 So. Dak. 97. 
 Rep. 573; Arnold v. Foot, 12 Wend. 3 Smith v. Adams, 6 Paige, 435. 
 330; Smith v. Brooklyn, 160 N. Y. 357- 
 
 86 
 
562 THE LAW OF WATERS. [Ch. IX. 
 
 although its destruction be caused by excavations on the land 
 of an adjacent proprietor.". 1 
 
 § 286. Private agreements. — In Ballacorkish Co. v. Har- 
 rison, 2 the Privy Council 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 water through the 
 defendant's land was held to give merely the right to the water 
 after it had risen in the well, and that the interception of per- 
 colating 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 are determined by the deed, 
 and not by the rights which the parties would possess as 
 riparian proprietors or otherwise. 4 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. 5 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. 6 A grant of a well passes a fee in the land 
 
 1 Citing Parker v. Boston & Maine 4 See Davis v. Spaulding, 157 Mass. 
 R Co., 3 Cush. 107. See New Albany 431; Paine v. Chandler, 134 N. Y. 385: 
 Railroad v. Peterson, 14 Ind. 112; Furner v. Seabury, 135 N. T. 50; 
 Atchison, etc., R. Co. v. Long, 46 Steele v. Todd, 158 Penn. St. 515. 
 Kan. 701. Where the plaintiff and another per- 
 2 L. R. 5 P. C. 49. son leased adjoining lands for min- 
 3 41 L. T. N. s. 455. See Howe v. ing from the defendant, the plaintiff 
 Lowell, 171 Mass. 575; Blood v. Mil- was held not entitled to recover upon 
 lard, 172 id. 65; Huston v. Leach, 53 the defendant's covenant of quiet 
 Cal. 262; Monmouth M. Co. v. Reg- enjoyment because such other per- 
 mier, 49 111. App. 385. " It makes no son's workings tapped underground 
 difference whether the damages arise water which flowed from his mine 
 by the water percolating away, so into the plaintiff's through a lime- 
 that it ceases to flow along channels stone fissure. Harrison v. Muncaster, 
 through which it previously found [1891] 2 Q. B. 680. 
 its way to the spring or well, or 5 Whitehead v. Parks, 2 H. & N. 
 whether, having found its way to 870; Northam v. Hurley, 1 EL & BL 
 the spring or well, it cease's to be re- 665. 
 
 tained there." Ballacorkish Mining 6 Magoon v. Harris, 46 Vt. 264, 271. 
 
 Co. v. Dumball, 29 L. T. N. a 658. See Bell v. Sausalito Land Co. (Cal.),. 
 
§§ 287, 288.] SUBTERRANEAN WATERS. 563 
 
 occupied by the well, 1 and the well 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. 2 "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. 3 
 
 §287. Harwood t. Benton, etc. — In Harwood v. Benton, 1 
 m Yermont, 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. Salisbury Manuf. Co. 5 In Cole Silver Mining Co. v. 
 "Virginia Water Co., 6 in the Circuit Court of the United States, 
 it was held that, in the "West, where rights in water are ac- 
 quired by prior appropriation, 7 one who in working a mining 
 claim excavates a tunnel opening a subterranean flow of water 
 which is appropriated and enjoyed for several years, is entitled 
 to an injunction against one who constructs a tunnel beneath his 
 owu and thereby intercepts and diverts the flow of the water. 
 
 §288. Pollution of wells. — 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. 8 " To 
 suffer filthy water," says Foster, J., in Ball v. Nye, 9 " to per- 
 
 33 Pac. Rep. 449; Dungarvan Guard- ' Ante, oh. 7. 
 
 iansu Mansfield, [1897] llr. 430 ; infra, 8 Wood ft Waud, 3 Exch. 748; 
 
 § 804a, n. Hodgkinson v. Ennor, 4 B. & S. 229; 
 
 Johnson v. Rayner, 6 Gray, 107. 9 Jur. n. s. 1152; Baird v. William- 
 
 2 Mixer v. Reed, 25 Vt. 254; Clark son, 15 C. B. n. s. 376; Smith v. Ken- 
 v. Conroe, 38 Vt. 469, 474 driok, 7 C. B. 515; Embrey v. Owen, 
 
 3 Woodcock v. Estey, 43 Vt. 515. 6 Exch. 353; Kinnaird v. Standard 
 See Proprietors v. Braintree W. S. Oil Co. (Ky.), 7 L. R. A. 451; Frazier 
 Co., 149 Mass. 478. v. Brown, 12 Ohio St. 312; Pixley v. 
 
 *32 Vt. 724 Clark, 35 N. Y. 520; 39 Cent. L. J. 
 
 5 43 N. H. 569. See Odell v. Nyack 363, n.; ante, § 219. 
 
 W. W. Co., 36 N. Y. S. 206. 9 99 Mass. 582, 584; Goodrich v. 
 
 6 1 Sawyer, 470. See Fresno Mill- Burbank,97 Mass. 22; Wilson v. New 
 
 ing Co. v. Fresno Canal & Ir. Co., 126 Bedford, 108 Mass. 261. 
 Cal. 640; Vineland Ir. District v. 
 Azima Ir. Co., id. 486; infra, § 543. 
 
564 THE LAW OF WATEES. [Ch. IX. 
 
 colate 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 
 pretense 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. 1 Fouling an underground stream, which 
 flows into the plaintiff's mill stream or colliery, is an action- 
 able injury. 2 When it is clearly proved that a place of sepul- 
 ture or such a structure as a gas reservoir or privy vault will 
 corrupt wells or springs, a court of equity may grant relief by 
 way of injunction, 3 and it appears to be immaterial that the 
 
 1 Tenant v. Goldwin, 2 Ld. Raym. the two cases." See, also, Brown 
 1089; 6 Mod. 311; Womersley v. v. Illius, 27 Conn. 84; 25 Conn. 583; 
 Church, 17 L. T. n. S. 190; Rylands Greencastle v. Hazelett, 23 Ind. 186; 
 v. Fletcher, L. R. 3 H. L. 330; Jacobs Ballard v. Tomlinson, 26 Ch. D. 194; 
 v. Worrell, 15 Leg. Int. 139; Ottawa 24 Am. L. Reg. N. s. 634, and note; 
 Gaslight Co. v. Graham, 35 111. 346; S. C. 29 Ch. D. 115; Snow v. White- 
 28 111. 73; Wahle v. Reinbach, 76 I1L head, 27 Ch. D. 588. See 32 Alb. L. J. 
 322; Decatur Gaslight Co. v. Howell, 289; Pope v. Boyle, 98 Mo. 527; 
 92 111. 19; Iliff v. School Directors, 45 Haugh's Appeal, 102 Penn. St. 42; 48 
 111. App. 419; Pottstown Gas Co. v. Am. Rep. 193, note; Collins v. Char- 
 Murphy, 39 Penn. St. 257; Shuter v. tier V. G. Co., 131 Penn. St. 143; 16 
 City, 3 Phila. 228. In Upjohn v. Rich- Cent. L. J. 65; 30 id. 269; Louisville 
 land Township, 46 Mich. 542, 549, & N. R. Co. v. Simpson (Ky.), 33 S. 
 Cooley, J., pointedly observes: "If W. Rep. 395. 
 
 withdrawing the water from one's 2 'Hodgkinson v. Ennor, 4 B. & S. 
 
 well by an excavation on adjoining 239; Turner v. Mirfield, 34 Beav. 390. 
 
 lands will give no right of action, it See Brady v. Detroit S. Co., 102 Mich, 
 
 is difficult to understand how cor- 277. 
 
 rupting its waters by a proper use 3 Ibid. ; Clark v. Lawrence, 6 Jones 
 
 of the adjoining premises can be Eq. 83; Haugh's Appeal, 102 Penn, 
 
 actionable, when there is no actual St. 42; Daniel v. Princeton (Ky.), 22 
 
 intent to injure and no negligence. S. W. Rep. 324; Lowe v. Prospect 
 
 The one act destroys the well, and Hill Cem'y Ass'n (Neb.), 78 N. W. 
 
 the other does no more; the injury Rep. 488. 
 is the same in kind and degree in 
 
§ 289.] 
 
 SUBTERRANEAN "WATERS. 
 
 565 
 
 nuisance was existing and noticeable, when the plaintiff dug 
 or built upon his land. 1 If the water of a well is rendered im- 
 pure by an escape of gas therein, the fact that other causes 
 contributed to make it unfit for use is not a bar to an action, 
 but may be shown to affect the amount of damages. 2 
 
 § 289. Sinking of land. — A man who is entitled to take 
 minerals has no right to withdraw from his neighbor or 
 grantor the support of adjacent or superincumbent soil, 3 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. 4 In Smith v. Thackerah, 6 the de- 
 fendants dug a well near the plaintiff's land, which sank in 
 consequence, and a building erected thereon within twenty 
 years fell. It appearing that if the building had not been on 
 
 i Perrine v. Taylor, 43 N. J. Eq. 128. 
 See Mowday v. Moore, 133 Perm. St. 
 598. 
 
 2 Sherman v. Fall River Iron Works 
 Co., 5 Allen, 213. 
 
 3 Darley Main Colliery Co. v. Mitch- 
 ell, 11 A. C. 127 4 ; 14 Q. B. D. 125; 
 Dixon v. White, 8 A. C. 833; Crum- 
 bie v. Wallsend Local Board, [1891] 
 1 Q. B. 503; Bell v. Dudley, [1895] 1 
 Ch. 182; Cabot v. Kingman, 166 Mass. 
 403; Stimmel v. Brown, 7 Houst. 219; 
 Curry v. Cincinnati, 12 Ohio Cir. Ct. 
 736; Burgner v. Humphrey, 41 Ohio 
 St. 340; Lorson v. Met. St. By. Co. 
 (110 Mo. 234), 33 Am. St Rep. 439, n.; 
 infra, § 295, n. A grant of land for 
 specific works, such as a canal, im- 
 ports prima facie a right of reason- 
 able and necessary support. Lon- 
 don & N. W. Ry. v. Evans, [1893] 1 
 Ch. 16; [1892] 2 Ch. 432. Contra, 
 when land is taken for water-works 
 by right of eminent domain. Con- 
 sett W. Co. v. Ritson, 22 Q. B. D. 318, 
 702; Knowles v. Lancashire & Y. Ry., 
 14 A. C. 248; 20 Q. B. D. 391. See 
 Chamber Colliery Co. v. Rochdale 
 Canal Co., [1885] A. C. 564; New Moss 
 
 Colliery Co. v. Manchester, etc. Ry. 
 Co., [1897] 1 Ch. 725. 
 
 4 Popplewell v. Hodkinson, L. R. 4 
 Ex. 248; Humphries v. Brogden, 12 
 Q. B. 739; Partridge v. Scott, 3 M. & 
 W. 230; Elliot v. North Eastern Ry. 
 Co., 10 H. L. Cas. 333; 1 H. & J. 145; 
 Wilson v. Waddell, 2 A. C. 95; Jacob 
 v. Day, 111 Cal. 571. As to digging 
 and draining quicksand or mud, see 
 Jordeson v. Sutton, etc. Gas Co., 
 [1899] 2 Ch. 217; Braisted v. Brook- 
 lyn & R. B. R. Co., 61 N. Y. S. 674. 
 Asphalt, being a viscous and semi- 
 fluid substance, with no angle of re- 
 pose, is not on the same footing as 
 water, and an action lies against the 
 owner of adjacent land for with- 
 drawing support from land by drain- 
 ing away from under it such asphalt, 
 and also for the value of the asphalt 
 so removed. Trinidad Asphalt Co. 
 v. Ambard, [1899] A. C. 594; [1899] 2 
 Ch. 260, n.; 81 L. T. 132. 
 
 s L. R. 6 C. P. 564. See Littledale 
 v. Lonsdale, 2 H. Bl. 267, 299; [1899] 
 2 Ch. 233, n.; Gately v. Martin, [1900] 
 2 I. R. 269; Columbus v. Willard, 7 
 Ohio Cir. Ct. 113; Slavin v. State, 152 
 N. Y. 45. 
 
566 
 
 THE LAW OF WATEKS. 
 
 [Oh. IX. 
 
 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. The mine-owner has no right 
 to move his surface-supports, when that will cause a large 
 amount of surface water from above his mine to pass into a 
 lower mine adjoining, through openings between the two 
 
 mines.' 
 
 § 290. Draining wells — Motive. — In Greenleaf v. Francis, 2 
 it was held that, in the absence of any agreement subjecting 
 his estate to another, or of rights acquired by adverse enjoy- 
 ment, the owner may consult his own convenience in his oper- 
 ations above or below the surface of his land ; that each owner 
 of adjoining estates has the absolute dominion of the soil, ex- 
 tending 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 for mere 
 malice." 3 In a later case before the same court, 4 Wells, J., 
 
 1 Lord v. Carbon Iron Manuf. Co., 
 38 N. J. Eq. 452; Carlin v. Chappel, 
 101 Penn. St. 348; Nelson v. Hoch, 14 
 Phila. 655. 
 
 2 18 Pick. 117, 122. 
 
 3 See, also, Wheatley v. Baugh, 25 
 Penn. St. 528; Haldeman v. Bruck- 
 hart, 45 id. 514; Hoy v. Sterrett, 2 
 Watts, 327; Roath v. Driscoll, 20 Conn. 
 533; Radcliff v. Brooklyn, 4 N. Y. 
 195; Panton v. Holland, 17 Johns. 92; 
 Chatfield v. Wilson, 28 Vt. 49; 31 Vt. 
 358; Harwood v. Benton, 32 Vt. 724, 
 737; Radcliff v. Mayor, 4 Comst. 195; 
 Bellows v. Saokett. 15 Barb. 96; Ellis 
 v. Duncan, 21 Barb. 230; Springfield 
 W. W. Co. v. Jenkins, 62 Mo. App. 
 74; Wyandot Club Co. v. Sells, 3 
 Ohio N. P. 210. 
 
 4 Walker v. Cronin, 107 Mass. 555, 
 564. In Chesley v. King, in Maine 
 (74 Maine, 164, 175, 177), Barrows, J., 
 said: "The general 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 competition, he 
 
 'has a right to be free from malicious 
 and wanton interference, disturbance 
 and annoyance.' The dictum in 
 Walker v. Cronin, ad verse to this same 
 doctrine as it was shadowed forth 
 in Greenleaf v. Francis, 18 Pick. 117, 
 seems to be based upon what we con- 
 ceive to be the erroneous assumption 
 that the owner of a spring has no 
 rights whatever in water percolating 
 through the soil of adjacent proprie- 
 tors, because his rights therein are 
 assuredly subject to the paramount 
 claims of the owner of the soil, op- 
 erating 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 this point 
 which we get from Acton v. Blundell, 
 Roath v. Driscoll, Wheatley v. Baugh, 
 hereinbefore cited, and from Panton 
 v. Holland, 17 Johns. 92, 98, and from 
 the instructions approved in Green- 
 leaf v. Francis, 18 Pick. 119, than 
 with that given in Chatfield v. Wil- 
 son." 
 
§ 291.] SUBTEEEA3TEAN WATEES. _ 567 
 
 referring to Greenleaf v. Francis, said: "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 advantages, or cause 
 a loss to him, without violating any legal right; that is, the 
 motive in such cases is immaterial." 1 This is now the settled 
 rule. 2 A similar decision was made in Wheatley v. Baugh ; 3 
 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 or 
 damage, might be actionable ; and the case of Parker v. Boston 
 <fc Maine Railroad 4 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, 5 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, irrespective of the intent. 
 
 § 291. Petroleum oil. — Petroleum oil, like subterranean 
 water, is included in the comprehensive idea which the law at- 
 taches to the word land, and will be protected as a part of the 
 soil in which it is found. 6 Like water it is not the subject of 
 
 iFrazieru Brown, 12 Ohio St. 294; 2 lbid.; Bradford Corp. v. Pickles, 
 
 Chatfield v. Wilson, 28 Vt. 49; Mahan [1895] A. C. 587; 1 Ch. 145; [1894] 3 
 
 v. Brown, 13 Wend. 261; Paine v. Oh. 53; Lippinoott v. Lasker, 44 N. J. 
 
 Chandler, 134 N. Y. 385; Delhi v. You- Eq. 120; 39 Alb. L. J. 84, n. 
 
 mans, 50 Barb. 316. See, also, South » 25 Penn. St. 528. 
 
 Royalton Bank v. Suffolk Bank, 27 * 3 Cush. 107. 
 
 Vt. 505; Harwood v. Benton, 32 Vt. 5 72 N. Y. 39; Kiff v. Youmans, 86 
 137 ; Mahon v. Brown, 13 Wend. 261 ; N. Y. 324 ; 20 Hun, 123 ; Smith v. Brook- 
 Eawstron v. Taylor, 11 Exch. 369; lyn, 46 N. Y. S. 141. 
 McCune v. Norwich City Gas Co., 30 6 Kier v. Peterson, 41 Penn. St. 357, 
 Conn. 521, 524; Clark v. Clapp, 14 362; 2 Pitts. 1*1; Chicago Oil Co. v. 
 E. I. 248. The acts of public officers United States Petroleum Co., 57 Penn. 
 in diverting a stream are to be judged St. 83; Stoughton's Appeal, 88 id. 198; 
 according to the lawfulness of the Hague v. Wheeler, 157 id. 324; Marsh- 
 acts and not by their motives. Moran all v. Mellon, 179 id. 371 ; Knupp v. 
 v. McClearns, 60 Barb. 388; Benja- Bright, 186 id. 181; Wagner v. Mal- 
 min v. Wheeler, 8 Gray, 409: Morri- lory, 58 N. Y. S. 526; Townsend v. 
 son v. Howe, 120 Mass. 565. State, 147 Ind. 624; Hail v. Reed, 15 
 
568 
 
 THE LAW OF WATERS. 
 
 [Oh. IX. 
 
 property except while in actual occupancy, and a grant of either 
 water or oil is not a grant of the soil or of anything for which 
 ejectment will lie. 1 The same is true of natural gas. 2 A lease 
 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, 3 and a- proportionate share 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. 4 
 
 B. Mon. 479; Williamson v. Jones, 39 
 W. Va. 231; Bettman v. Harness, 42 
 W. Va. 433; State v. Ohio Oil Co., 150 
 Ind. 21 ; Murray v. Allred, 100 Tenn. 
 100; Kelley v. Ohio Oil Co., 57 Ohio 
 St 317; Moore v. Jennings (W. Va.), 
 34 S. E. Rep. 793. As to exercising 
 the right of eminent domain to con- 
 demn a right of way for oil or nat- 
 ural-gas pipes, see Consumers' Gas 
 Trust Co. v. Harless, 131 Ind. 446; Mc- 
 Gregor v. Equitable Gas Co., 139 Penn. 
 St. 230; Clements v. Philadelphia Co., 
 184 Penn. St. 28. As to partition of 
 petroleum lands, see Hall v. Vernon 
 (W. Va.), 34 S. E. Rep. 764. So of nat- 
 ural gas. Westmoreland & Cambria- 
 N. Gas Co. v. De Witt (Penn.), 29 Am. 
 L. Reg. N. s. 93, 102, 105; Greenfield 
 Gas Co. v. People's Gas Co., 131 Ind. 
 599; People's Gas Co. v. Tyner, id. 277; 
 48 Cent. L. J. 470. As to restraining 
 the wasting of natural gas, see Town- 
 send v. State, 147 Ind. 624; 11 Harv. 
 L. Rev. 265. As to restricting its ex- 
 portation, see 33 Am. L. Rev. 896; 36 
 Am. L. Reg. N. s. 664. As to licensing 
 its sale, see In re Wilson (New Mex.), 
 60 Pac. Rep. 73. An oil well is a 
 " structure " within a mechanic's lien 
 statute. Haskell v. Gallagher, 20 Ind. 
 App. 224. As to locating petroleum 
 lands under the United States placer 
 mineral laws, see Nevada Sierra Oil 
 Co. v. Miller, 97 Fed. Rep. 681. One 
 who stores or transports petroleum 
 by pipes and tanks is liable for its 
 escape causing filth and danger on 
 land, or pollution of wells or springs. 
 Hauck v. Tide Water P. L. Co., 153 
 
 Penn. St. 366; McGregor v. Camden 
 (W. Va.), 34 S. E. Rep. 936. A statute 
 prohibiting such escape is constitu- 
 tionally valid. Ohio Oil Co. v. In- 
 diana, 177 U. S. 190. Increase of in- 
 surance rates on houses, caused by 
 the proximity of an oil-pipe line, does 
 not make the line a nuisance. Ben- 
 ton v. Elizabeth, 61 N. J. L. 411, 693. 
 As to escaping and percolating gas 
 injuring vegetation, see Wichita Gas 
 Co. v. Wright (Kans. App.), 59 Pac. 
 Rep. 1085. A description of premises 
 in a conveyance which is sufficiently 
 broad to include everything within 
 the meaning of the word " land," in- 
 cludes a spring of water thereon. 
 Clark v. Conroe, 38 Vt. 469. A reser- 
 vation in a deed, of "all minerals,"' 
 does not include petroleum oil. Dun- 
 ham v. Kilpatrick, 101 Penn. St. 36. 
 
 1 Dark v. Johnston, 55 Penn. St. 164; 
 Rynd v. Rynd Farm Oil Co., 63 id. 397; 
 Karns v. Tanner, 66 id. 297; Union 
 Petroleum Co. v. Bliven Petroleum 
 Co., 72 Penn. St. 173. 
 
 2 Funk v. Haldeman, 53 Penn. St 
 229; McGuire v. Wright, 18 W. Va. 
 507. 
 
 3 Baker v. Dale, 3 Pitts. 190; Chand- 
 ler v. Pittsburgh Plate-Glass Co., 20 
 Ind/ App. 165; Jones v. Forest Oil 
 Co., 47 Pitts. L. J. 58. 
 
 * Henry v. Colby, 3 Brewst 171. 
 As to oil leases, see Mississinewa 
 M. Co. v. Andrews, 22 Ind. App. 523; 
 Ahrns v. Chartiers Valley Gas Co., 
 188 Penn. St. 249; Stone v. Marshall 
 Oil Co., id. 602; Delaware, etc. R. Co. 
 v. Breckenridge (N. J.), 41 Atl. Rep. 
 
^§ 292, 293.] 
 
 SUBTERRANEAN "WATERS. 
 
 569 
 
 § 292. Eaves-drip. — 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, especially when the roof is 
 so constructed as to collect the water, is liable therefor in an 
 action on the case. 1 If the water so falling penetrates his 
 neighbor'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 ; 2 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. 3 
 
 § 293. Same. — The owner of a house is not liable to his 
 neighbor for eaves-drip, unless there is some neglect of duty 
 on his part; 4 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, 5 although the 
 mere fact that the defendant's building has been in the same 
 condition for more than twenty years does not sustain the 
 
 966; 43 Atl. Rep. 1097; Ohio Oil Co. 
 v. Lane, 59 Ohio St. 307; Northwest- 
 ern Ohio N. G. Co. v. Tiffin, id. 420; 
 Elmendorf v. Classen (Texas), 49 S. 
 W. Rep. 1013; Foster v. Elk Fork Oil 
 Co., 90 Fed. Rep. 178; Cassell v. Cro- 
 thers, 193 Penn. St 359; Fisher v. 
 Guffey, id. 393; Aye v. Philadelphia 
 Co., id. 451; lams v. Carnegie Nat. 
 Gas Co., 194 id. 72; Colgan v. Forest 
 Oil Co., id. 234; Young v. Forest Oil 
 Co., id. 243; Jones v. Forest Oil Co. 
 (Penn.), 44 AtL Rep. 1074; Trees v. 
 Eclipse Oil Co. (W. Va.), 34 S. E. Rep. 
 933; Huggins v. Daley, 99 Fed. Rep. 
 606. There is an implied covenant 
 of right of entry and quiet enjoy- 
 ment in an oil and gas lease. Knotts 
 v. McGregor (W. Va.), 35 S. E. Rep. 
 899 ; Diamond Plate Glass Co. v. Echel- 
 berger (Ind. App.), 56 N. E. Rep. 233. 
 iFay v. Prentice, 1 C. B. 828; 
 Tucker v. Newman, 11 Ad. & El. 40; 
 Garraty v. Duffy, 7 R. I. 746; Under- 
 wood v. Waldron, 33 Mich. 232; 
 Simonds v. Pollard, 53 Vt. 343; Mar- 
 tin v. Simpson, 6 Allen, 102; Bellows 
 
 v. Sackett, 15 Barb. 96; Hazeltine v. 
 Edgmand, 35 Kansas, 202; Joseph 
 Schlitz B. Co. v. Compton, 142 111. 
 511; Lotz v. Scott, 103 Ind. 155; 36 
 Cent. L. J., 110; infra, § 293; The 
 mere projection of eaves over a 
 boundary line is not trespass quare 
 clausum f regit. Bureau v. Marshall, 
 55 Mich. 234. 
 
 2 Gould v. McKenna, 86 Penn. St. 
 297; Murphy v. Lally, 173 Mass. 365; 
 Crommelin v. Coxe, 30 Ala. 318; 
 Meister v. Lang, 28 I1L App. 624. 
 
 3 Tanner v. Volentine, 75 111. 624. 
 
 4 Underwood v. Waldron, 33 Mich. 
 239; McHugh v. Curtis, 48 Mich. 263; 
 Barry v. Peterson, id. 263; Kaveny 
 v. Troy, 108 N. T. 571; Hartman v. 
 Pittsburgh I. P. Co., 159 Penn. St. 
 442; Armstrong v. Luco, 102 Cal. 272. 
 
 5 Lady Browne's Case, Palmer, 446, 
 cited in Sury v. Pigott, Popham, 166; 
 Baten's Case, 9 Rep. 536; Jones v. 
 Peskett, 1 M. & S. 234; Battishill v. 
 Reed, 18 C. B. 696; Cherry v. Stein, 
 11 Md. 1; Carbrey v. Willis, 7 Allen, 
 364; Conner v. Woodfill, 126 Ind. 85. 
 
570 THE LAW OF WATERS. [Ch. IX. 
 
 burden of proof, which is upon him. 1 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. 2 The right to 
 have water fall from the eaves of a house into a neighbor's en- 
 closure does not justify casting the water into the same en- 
 closure in a larger body by means of a spout. 3 And a private 
 land-owner who paves his yard, thus rendering it less pene- 
 trable by water, and conducts the water in leaders from the 
 croofs of his houses to his yard in quantities beyond the ca- 
 pacity of the drains to carry away, thereby flowing his neigh- 
 bor's premises, is bound to prevent the water thus accumulat- 
 ing 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. 4 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 dis- 
 charged 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 neigh- 
 bor or of a traveler upon a highway. 5 
 
 § 294. Mines.. — In the case of subterranean mines, if one 
 owner removes barriers by a trespass, as by extending his 
 works into his neighbor's mine, he is bound to protect such 
 mine from inundation. 6 But when a recovery has been had 
 
 1 Hooten v. Barnard, 137 Mass. 36. peril. Bates v. Westborough, 151 
 
 2 Thomas v. Thomas, 2 C. M. & R. Mass. 174, 181; Fitzpatrick v. Welch, 
 34; Harvey v. Walters, L. R. 8 C. P. 174 Mass. 486. See 33 Am. L. Rev. 
 162. 30& 
 
 3 Reynolds v. Clarke, 2 Ld. Raym. * Jutte v. Hughes, 67 N. T. 267. 
 1399; 8 Mod. 172; Gill v. Edouin, 15 fi Shipley v. Fifty Associates, 106 
 Rep. 109, 113, n.; Schwab v. Cleve- Mass. 194; 101 Mass. 251; Milford v. 
 land, 28 Hun, 458. One who arranges Holbrook, 9 Allen, 17, 23; Brooks v. 
 a roof and gutter in such a way that Curtis, 4 Lans. 283; Walsh v. Mead, 
 the first will collect water and the 8 Hun, 387. See Garland v. Towne, 
 second manifestly will discharge it 55 N. H. 55, where the question of 
 upon a neighbor's land unless pre- negligence in such a case was treated 
 vented, has notice that he threatens as one of fact for the jury. The o'c- 
 harm to his neighbor of a kind which cupier is prima facie liable. Leonard 
 the law in its adjustment of their v. Storer, 115 Mass. 86; ante, § 113. 
 conflicting interests only permits ° Firmstone v. Wheeley, 13 L. J. 
 bim knowingly to inflict at his own (N. s.) Exch, 361; 2 DowL & L. 203; 
 
§ 295.] SUBTERRANEAN WATERS. 571 
 
 against him for the trespass, he is not liable in damages for 
 the consequential and continued flow of the water, since he 
 cannot enter upon another's land for the purpose of remedy- 
 ing his tortious act. 1 It is the natural right of each of the 
 owners of two adjoining mines, where neither is subject to any 
 servitude to the other, to work his own in the manner most 
 convenient and beneficial to himself, although the natural con- 
 sequence 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. 2 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. 3 
 
 § 295. Subterranean waters -- Increasing the flow. — 
 
 "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 prin- 
 ciple applies wherever anything which causes injury to an- 
 other's close was not in or upon the land in its natural condi- 
 tion, 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 an imperfection in 
 the mode of doing it. 5 If a miner collects and appropriates 
 the water for his own benefit, he is responsible for its future 
 
 Westminster Brymbo Coal Co. v. 3 Trower v. Chadwick, 6 Bing. N. C. 
 
 Clayton, 36 L. J. Ch. 476; Ha ward v. 1; 8 Scott, 1; Bainbridge on Mines 
 
 Banks, 2 Burr. 1113; Doutyu. Bird, 60 (4th ed.), 297; Hurdman v. North 
 
 Penn. St. 48. As to erecting barriers Eastern Ey.' Co., 3 C. P. D. 168. 
 
 against water in mines, see Mo- 4 Baird v. Williamson, 15 C. B. N. s. 
 
 Knight v. Batcliff, 44 Penn. St. 156. 376; 12 W. E. 150; Whitehouse v. 
 
 iClegg v. Dearden, 12 Q. B. 561; Fellowes, 30 L. J. C. P. 305; Fletcher 
 
 Taylor v. Stendall, 7 Q. B. 634. v. Eylands, 3 H. L. 330, 339; Mitchell 
 
 2 Smith v. Kendrick, 7 C. B. 515; v. Darley Main Colliery Co., 11 A. C. 
 
 Tenant v. Goldwin, 1 Salk. 21; 6 Mod. 127; 14 Q. B. D. 125; Lord v. Carbon 
 
 511; 2 Ld. Eaym. 1089; Fletcher v. Iron Manuf. Co., 38 N. J. Eq. 452; 42 
 
 Eylands, L. E. 3 H. L. 330, 338; Bag- id. 157; Jones v. Eobinson, 116 I1L 
 
 nail v. London Ey. Co., 7 H. & N. 423 ; 543. See Elwell v. Crowther, 31 Beav. 
 
 1 H. & C. 544; ante, § 290. See Jegon 163. 
 
 v. Vivian, L. E. 6 Ch. 742. 5 Ibid. 
 
572 
 
 THE LAW OF WATEKS. 
 
 [Ch. IX. 
 
 course, even when it comes to another's land through natural 
 channels. 1 "Where the defendant by his coal works disturbed 
 the soil above, which was naturallyimpervious to water, and 
 caused fissures by the subsidence 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 water- 
 tight as the undisturbed state of the strata;, 2 or to prevent the 
 withdrawal by percolation of water from the wells and springs 
 of the superjacent land. 3 The owner of two adjoining mines, 
 who in working the lower stops up an opening from the higher,. 
 
 2 Wilson v. Waddell, 2 App. Cas. 
 95. In Pennsylvania, a mine-owner 
 is bound to leave sufficient support 
 for the surface; and if he withdraws 
 such support, whereby the surface 
 sinks and cracks, allowing surface 
 water to flow into his mine, and 
 thence into the mine of an adjoining 
 owner, he is liable for the resulting 
 damage. Horner v. Watson, 79 Penn. 
 St. 243; Jones v. Wagner, 66 id. 439. 
 See § 289 above. So of the destruc- 
 tion of a spring caused by the falling 
 in of the surface for want of suffi- 
 cient support. Barnes v. Berwind, 3 
 Penny. (Pa.) 140. 
 
 3 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 id. 81 ; 
 Trout v. McDonald, 83 id. 144 A 
 lessor who, in quarrying, caused 
 water to percolate into, and to flood 
 his lessee's , mine, was held liable on 
 his covenant for quiet enjoyment in 
 Shaw v. Stenton, 2 H. & N. 858. See 
 Harrison, etc. Co. v. Muncaster, [1891] 
 2 Q. B. 680. As to a landlord's lia- 
 bility for constructing a nuisance by 
 permitting rubbish and filth to ac- 
 cumulate in a well, see Kern v. MyU, 
 80 Mich. 525. 
 
 1 West Cumberland Iron Co. v, 
 Kenyon, 11 Ch. D. 782; 6 Ch. D. 773; 
 Musgrove v. Smith, 37 L. T. 367. In 
 West Cumberland Iron Co. v. Ken- 
 yon, the defendants sunk a shaft in 
 their mining property, which tapped 
 water formerly finding its way into 
 old workings in their ground, and 
 thence percolating into the plaintiff's 
 mines. The defendants then made a 
 borehole at the bottom of the shaft, 
 admitted to be not in due course of 
 mining, but to get rid of the water, — 
 the effect of which was to let off the* 
 water into the above old workings, 
 whence it percolated into the plaint- 
 iff's mines precisely as if the shaft 
 and borehole had never been made. 
 Mr. Justice Fry (in 6 Ch. D. 773) de- 
 cided that the defendants, by mak- 
 ing 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. D. 782) it was held, 
 reversing his decision, that the de- 
 fendants' act was not an appropria- 
 tion, the effect 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 getting there. See Genet v. Del- 
 aware & H. Canal Co., 122 N. Y. 505. 
 
§ 296.] 
 
 SUBTERRANEAN "WATERS. 
 
 573 
 
 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 plaint- 
 iff's was caused by a trespass of the plaintiff's predecessor. 1 
 An injunction will issue where the damage will be inevitable, 
 or the workings are clearly improper, 2 if applied for within a 
 reasonable time after the commencement of the workings,' or 
 after the right to damages has been established by action at 
 law. 4 
 
 § 296. Fletcher t. Rylands. — In Fletcher v. Eylands, 5 the 
 owners of a mill constructed a reservoir for the purpose of 
 accumulating water from their own and adjoining lands, and 
 employed an engineer 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 communicated with ancient coal workings, the existence 
 of which was then unknown to the defendants or to any of 
 
 i Lomax v. Stott, 39 L. J. Ch. 834. 
 In Locust Mountain Coal Co. v. Gor- 
 rell, 9 Phila. 247, Agnew, J., held at 
 nisi prius, that a mine-owner, who, 
 in extending a gangway, struck an 
 opening that had been wrongfully 
 made by a trespasser up the dip of 
 his coal vein, is not justified in turn- 
 ing the water flowing down the 
 gutter of the gangway 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. 
 
 2 Crompton v. Lee, L. R 19 Eq. 115; 
 Robinson v. Byron, 18 Ves. 517; Beau- 
 ford v. Morris, 6 Hare, 340; Mex- 
 borough v. Bower, 7 Beav. 127; Stral- 
 ley v. Pearson, 28 W. K. 752; Lord v. 
 Carbon Iron Manuf. Co., 38 N. J. Eq. 
 452; 42 id. 157; Thomas Iron Co. v. 
 Allentown Mining Co., 28 id. 77. See 
 Tyler M. Co. v. Last Chance M. Co., 
 SO Fed. Rep. 15. 
 
 3 Ibid.; Birmingham Canal Co. v. 
 Lloyd, 18 Ves. 515. 
 
 * Ibid. 
 
 SL R. 3 H. L. 330; L. R. 1 Ex. 
 
 (Ex. Ch.) 265; 4 H. & C. 263; 3 H. & 
 C. 784; Smith v. Fletcher, 2 A. C. 
 781; L. R 7 Ex. 305; Wilson v. New- 
 berry, L. R. 7 Q. B. 31; Musgrave v. 
 Smith, 47 L. J. 4; 37 L. T. 367; Dunn 
 v. Birmingham Canal Nav. Co., L. R. 
 7 Q. B. 244; L. R. 8 Q. B. 42; Hum- 
 phreys v. Cousins, 2 C. P. D. 239; 
 Crowhurt v. Amersham Burial Board, 
 4 Ex. D. 5; 27 Am. L. Reg. 348; Chal- 
 mers v. Dixon, 3 Sessions Cases (4th 
 Series), 461; Nugent v. Smith, 1 C. 
 P. D. 423; Box v. Judd, 1 C. P. 423: 
 Ponting v. Noakes, [1894] 2 Q. B. 281; 
 Black v. Christchurch F. Co., [1894] 
 A. C. 48; Cahill v. Eastman, 18 Minn. 
 324; Knapheide v. Eastman, 20 Minn. 
 478; Gilham v. Madison County R. 
 Co., 49 111. 484; The Nitro-Glycerine 
 Case, 15 Wall. 524; Parrot v. Barney, 
 1 Sawyer, 423; 1 Deady,405; Gorham 
 v. Goss, 125 Mass. 232. See Wilson 
 v. Newberry, L. R. 7 Q. B. 31; Hurd- 
 man v. North-Eastern Ry. Co., 3 C. 
 P. D. 168; Cattle v. Stockton Water 
 Works, L. R. 10 Q. B. 453; Firth v. 
 Bowling Green Co., 47 L. J. C. B. 
 358; Defiance W. Co. v. dinger, 54 
 Ohio St. 532. 
 
574 THE LAW OF WATEES. [Ch. IX, 
 
 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 sus- 
 tained, and the defendants were held liable upon the ground 
 that " foreign water had been sent down upon the plaintiffs, 
 and that the defendants' Jack of knowledge thus became im- 
 material. The principle established is thus stated and illus- 
 trated by Mr. Justice Blackburn in the Court of Exchequer 
 Chamber : " We think that the true rule of law is, that the per- 
 son who, for his own purposes, brings on his lands and collects 
 and keeps there anything likely to do mischief 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 conse- 
 quence of its escape. 1 He can excuse himself 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 unneces- 
 sary to inquire what excuse would be sufficient. The general 
 rule, as above stated, seems, on principle, just." The principle 
 thus established has since been applied to injuries resulting to 
 adjoining land from the percolation of the waters of an arti- 
 ficial reservoir 2 or canal 3 through the soil ; to water allowed 
 
 1 This principle seems to apply Rep. 1049. See Rothes v. Kircaldy, 7 
 when a person uses a thing of a dan- App. Cas. 694, the case of a water- 
 gerous character on a public high- works company, imposing similar 
 way and causes injury to another, liability. Damages from such col- 
 Hilliard v. Thurston, 9 Ont. App. 514, lected water or other injurious niat- 
 523. ter is held not to give a cause of ac- 
 
 2 Wilson v. New Bedford, 108 Mass. tion, when resulting from a third 
 261; Gray v. Harris, 107 id. 492; Ful- person's act or default, or when the 
 ler v. Chicopee Manuf. Co., 16 Gray, storage was made for the common 
 46; Pixley v. Clark, 35 N. Y. 520; benefit of both parties, or if the 
 Reed v. State, 108 id. 407; Baltimore owner was not negligent and was 
 B. Co. v. Ranstead, 78 Md. 501; Syl- using his land in an ordinary and rea- 
 vester v. Jerome, 19 Col. 128: Lari- sonable manner. Gill v. Edouin, 72 
 mer County Ditch Co. v. Zimmerman, L. T. 579. 
 
 4 Col. App. 78; Texas & P. Ry. Co. v. 3 Evans v. Manchester Ry. Co., 36 
 O'Mahoney (Tex. Civ. App.), 50 S. W. Ch. D. 626; Bartlett v. Moyers, 88 
 
296.] 
 
 SraTERRANEAN WATEBS. 
 
 575 
 
 to collect in a cellar and to percolate into the plaintiff's cellar- 
 or well adjoining; 1 to dampness caused in the plaintiff's house 
 by an artificial deposit near by of spongy soil and clay ; 2 to coal 
 refuse washed down stream by an exceptional flood; 3 to dam- 
 age caused by the neglect of the occupier of a house to adjoin- 
 ing premises from the escape of sewage from defective drains 
 under the first house. 4 In New York, 5 New Hampshire, 6 and 
 New Jersey, 7 the doctrine of Fletcher v. Eylands is qualified, 
 and it is held to be a question of fact for the jury whether the 
 defendant was guilty of negligence. If an artificial accumu- 
 lation of water is for the benefit of both plaintiff and defend- 
 ant, as where they are respectively tenants of the upper and 
 lower stories in the same house, the principle of Fletcher v. 
 Eylands does not apply, and the defendant is liable only for 
 ordinary negligence. 8 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 ; 9 " 
 
 Hay v. 
 
 Md. 715; Canadian Pao. Ey. Co. v. 
 Parke, 81 L.T. 127; supra, % 232. The 
 damages for this cause are recover- 
 able only to the date of the writ, and 
 not for a permanent injury. Aid- 
 worth v. Lynn, 153 Mass.; 10 L. R. A. 
 210, and note. 
 
 i Snow v. Whitehead, 27 Ch. D. 588; 
 Ballard v. Tomlinson, 26 id. 194; 29 
 id. 116. As to an artificial change in 
 the course of a natural stream, caus- 
 ing percolation into a cellar, see 
 Jones v. Westerhausen, 131 Penn. St. 
 62. 
 
 2 Hurdman v. North-Eastern Ey. 
 Co., 26 W. R 489; 3 C. P. D. 168. See 
 Broder v. Saillard, 2 Ch. D. 700; Bern- 
 hardt v. Mentasti, 42 Ch. D. 685. 
 
 3 Elder v. Lykens V. C. Co., 157 
 Penn. St. 490. 
 
 4 Humphreys v. Cousins, 2 C. P. D. 
 239; Hodgkinson v. Ennor, 4 B. & S. 
 241. See Abelson v. Brockman, 54 
 J. P. 119. As to salt water in pipes, 
 see Hartman u Tully P. L. Co., 25 
 N. Y. S. 24. 
 
 5 Losee v. Buchanan, 51 N. Y. 476. 
 See Seldon v. Delaware Canal Co., 23 
 Barb. 362; Bellinger v. New York 
 
 Central E. Co., 23 N. Y. 47; 
 Cohoes Co., 2 Comst. 159. 
 
 « Garland v. Towne, 55 N.' H. 55. 
 See Brown v. Collins, 53 N. H. 443; 
 Swett v. Cutts, 50 N. H. 439. 
 
 7 Marshall v. Wei wood, 38 N. J. L. 
 339. See, also, Hoyt v. Hudson, 27 
 Wis. 656; Pettigrew v. Evansville, 25 
 Wis. 223; Proctor v. Jennings, 6 Nev. 
 83; Simonton v. Loring, 68 Maine,. 
 164; Murphy v. Gillum, 73 Mo. App. 
 487. 
 
 s Carstairs v. Taylor, L. E. 6 Ex. 217 ; 
 Eoss v. Fedden, L. E. 7 Q. B. 661 ; Bell 
 v. Twentyman, 1 Q. B. 766. See Mar- 
 shall v. Cohen, 44 Ga. 489; Cattle v. 
 Stockton W. W. Co., L. E. 10 Q. B. 
 453. That a reservoir may be " land 
 covered with water," within a stat- 
 ute of taxation, see Southwalk & V. 
 W. Co. v. Hampton Urban D. Coun- 
 cil, [1899J 1 Q. B. 273; [1899] W. N. 238. 
 
 9 Dunn v. Birmingham Canal Co., 
 L. E. 7 Q. B. 244; L. R. 8 Q. B. (Ex. Ch.) 
 42; Dudley Canal Nav. Co. v. Graze- 
 brook, 1 B. & Ad. 59; Blyth v. Birm- 
 ingham W. W. Co., 25 L. J. Ex. 212; 
 Great Western Ry. Co. v. Braid, 1 
 Moo. P. C. N. a 101; Bligh v. Rat- 
 
576 THE LAW OF WATEKS. [Ch. IX. 
 
 or when the accumulation is not made by the land-owner inten- 
 tionally and for his own benefit, as in the case of the destruc- 
 tion of a house by fire, in the uncovered cellar of which water 
 collects and flows thence against the walls of an adjoining 
 house built after the destruction of the first housp. 1 Under an 
 act, which empowers a company to make a canal, making sat- 
 isfaction for injuries to mines, compensation may be required 
 by the owners of a coal mine under the canal for coal properly 
 left for the security of the canal or the mine, but such owners 
 are liable in damages for working the mine to the injury of the 
 canal. 2 
 
 § 297. Proximate and remote cause. — "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 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. 3 So, where the defend- 
 
 liangan E. D. Board, [1898] 2 Ir. 205; of irrigation and the public benefit, 
 Eaton v. B. C. & M. E. Co., 5 N. H. and these were protected by the local 
 504. So, of vis major (extraordinary law. Madras Ey. Co. v. The Zemindar, 
 freshets), causing a boom to obstruct 30 L. T. n. s. 771 ; 22 W. E 865. Irri- 
 navigation. McMillan v. Southwest gation, if reasonable, is not action- 
 Boom Co., 1 Pugs. & B. (N. B.) 715. able because it causes lower land to 
 A municipal corporation is liable in become soggy. Lisonbee v. Monroe 
 its private capacity for the negligent Ir. Co., 18 Utah, 343; 54 Pac. Eep. 43. 
 maintenance of its water-works. Es- 1 Trustees v. Hutchinson, 2 Pugs. 
 berg-Gunst Cigar Co. v. Portland & B. (N. B.) 523; Quinn v. Chicago 
 (Oreg.), 55 Pac. Eep. 961. A street- E. Co., 63 Iowa, 510; Thum v. Ehodes, 
 railroad companymay lawfully throw 12 CoL App. 245. As to defective 
 snow from the track upon » street, water-pipes on adjoining premises, 
 but may be held liable by a jury, if see Comstock v. New York C. R. Co., 
 it casts the snow into the gutter and 48 Hun, 225. 
 
 thereby so obstructs the flow of water 2 Knowles v. Lancashire Ey. Co., 14 
 
 as to flood the plaintiff's premises. App. Cas. 248; 20 Q. B D. 391; Crom- 
 
 Short v. Baltimore City Passenger ford Canal Co. v. Cutts, 5 Ey. Cases, 
 
 Ey. Co., 50 Md. 73. The doctrine of 442; Consett W. W. Co. v. Eitson, 22 
 
 Fletcher v. Eylands has been held by Q. B. D. 318, 702; Chamber Colliery 
 
 the.privy council not to apply in India Co. v. Eochdale Canal Co., [1895], A. 
 
 where water was stored from time C. 564. 
 
 immemorial in tanks for the purposes 3 Nichols v. Marsland, 2 Exch. Div. 
 
§ 298.] 
 
 STOTEKKANEAN WATERS. 
 
 577 
 
 ants' reservoir, constructed with sluices, connected with a 
 main drain or watercourse, from which the reservoir was sup- 
 plied, and with sluices by which the surplus water was re- 
 turned into a 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 ap- 
 pearing 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 circum- 
 stances. 1 
 
 § 298. Same. — A person may lawfully collect water by 
 means of a dam, or in ditches, canals, culverts, 2 or pipes, and 
 is not liable in such a case for injuries caused by the escape of 
 the water, in the absence of negligence on his own part, 3 or 
 
 1; L. E. 10 Exch. 255; Fletcher v. 
 Smith. 2 App. Cas. 781 ; L. R 9 Ex. 64; 
 L. E. 7 Ex. 805: Eiver Wear Com'rs 
 ■v. A damson, 26 W. E. 217. Mellish, 
 L. J., here said: "If, indeed, the 
 making of the reservoir was a wrong- 
 ful act in itself, it might be right to 
 hold the defendant liable for the con- 
 sequences of his own wrongful act, 
 even although occasioned by the act 
 of God, just as be would be liable in 
 the case of an absolute contract. But 
 the making of a reservoir is not itself 
 a wrongful act, unless, as in Fletcher 
 v. Eylands, it is on land the peculiar 
 character of which allows the water 
 to escape and do damage." See Maho- 
 ney v. Libbey, 123 Mass. 20; Gorham 
 v. Goss, 125 Mass. 232. See McLean 
 v. Crosson, 33 Q. B. (Canada) 448 (case 
 of diversion of freshet through un- 
 lawful ditch). As to the land-owner's 
 liability for the drowning of a tres- 
 passer in a deep pool of surface- 
 water collected on his land, see 
 Peters v. Bowman, 115 CaL 345; Dob- 
 bins v. Mo. etc. By. Co., 91 Texas, 60; 
 Price v. Atchison W. Co., 58 Kansas, 
 37 
 
 551; Cooper v. Overton, 102 Tenn. 
 211; Bowman v. Omaha (Neb.), 80 N. 
 W. Eep. 259; 12 Harv. L. Eev. 206; 
 49 Cent. L. J. 222; Delaware, L. & 
 W. E. Co. v. Reich, 61 N. J. L. 635; 
 Anderson v. No. Pac. Ry. Co., 19 
 Wash. 340. As to such liability on 
 the part of a ditch company, see Big 
 Goose & Beaver Ditch Co. v. Morrow 
 (Wyo.), 59 Pac. Rep. 159; Stendal v. 
 Boyd (Minn.), 47 Cent. L. J. 75, n. 167; 
 11 Harv. L. R. 349. 
 i Box v. Judd, 4 Exch. D. 76. 
 
 2 Baltimore R Co. v. Sulphur Spring 
 School District, 96 Penn. St. 65. 
 
 3 Livingston v. Adams, 8 Cowen, 
 175; Shrewsbury v. Smith, 12 Cush. 
 177; Blyth v. Birmingham Water Co., 
 11 Exch. 781; Noyes v. Shepherd, 30 
 Maine, 173; China v. Southwick, 12 
 Maine, 238; Lehigh Bridge Co. v. Le- 
 high Coal Co., 9 Rawle, 9; Bell v. Mc- 
 Clintock, 9 Watts, 120; Pollet v. Long, 
 56 N. Y. 200; New York v. Bailey, 3 
 Denio, 433 ; Lapham v. Curtis, 5 Vt. 
 371; Frye v. Moore, 53 Maine, .583; 
 Hoffman v. Tuolumne Water Co., 10 
 Cal. 413; Campbell v. Bear River Min- 
 
578 
 
 THE LAW OF WATERS. 
 
 [OH. IX. 
 
 when the work is clone by competent and independent con- 
 tractors. 1 There is, therefore, no liability where a dam, which 
 is properly constructed and kept in repair, breaks and causes 
 injury to lands below, because of an extraordinary flood or 
 other act of Grod, 2 or when, in consequence of great and ex- 
 ceptional floods, it injures a land-owner above or below, 8 al- 
 though liability for even these injuries may arise from the 
 terms of a statute by which the works are expressly author- 
 ized. 4 The owner of the dam is held responsible for that de- 
 gree of care, skill and diligence in its construction and main- 
 tenance which men of ordinary prudence are accustomed, in 
 similar cases, to employ. 5 If the injury is caused by hazardous 
 experiments, by the imperfect construction of a dam or canal em- 
 bankment or negligence in maintaining it, 6 or in opening flood- 
 gates, 7 the owner is liable. And if a stream is subject to extraor- 
 
 ing Co., 35 Cal. 683; Tenney v. Min- 
 ers' Ditch Co., 7 Cal. 335; Wolf v. St. 
 Louis Water Co., 10 Cal. 541; Everett 
 v. Hydraulic Flume Tunnel Co., 33 
 Cal. 225; Fraler v. Sears Water Co., 
 13 Cal. 555; Weiderkind v. Tuolumne 
 County W. Co., 65 Cal. 431; Wright 
 v. Holbrook, 52 N. H. 120; Washburn 
 V. Gilmau, 64 Maine, 163, J6S; Mc- 
 Arthur v. Green Bay Canal Co., 34 
 Wis. 139; 11 Ir. L. T. 188; 12 Ir. L. T. 
 399, 507; 23 Sol. J. 599; 10 L. T. 469; 
 37 Co. Ct. Chronicle, 198. 
 i Boswell v. Laird, 8 Cal. 469. 
 
 2 Ibid. ; Rogers v. Central Pac. R. 
 Co., 67 Cal. 607; Lisonbee v. Monroe 
 Ir. Co., 18 Utah, 343; Grand Valley 
 Ir. Co. v. Pitzer (Col. App.), 59 Pac. 
 Rep. 420; supra, § 311c. 
 
 3 Ibid. ; Young v, Leedom,"67 Penn. 
 St. 351; McCoy v. Danley, 20 id. 89; 
 s. C. 59 Am. Dec. 680, and note; Mo- 
 nongahela Nav. Co. v. Coon, 6 Barr, 
 379: Smith v. Agawam Canal Co., 2 
 Allen, 358; Weiderkind v. Tuolumne 
 County Co., 65 Cal. 431 ; Moore v. Los 
 Angeles, 72 Cal. 387; Brown v. At- 
 lanta, 66 Ga. 71. 
 
 4 Rothes v. Kirkcaldy W. W. Com'rs, 
 7 App. Cas. 694. 
 
 8 Ibid.; Todd v. Cochell, 17 Cal. 97; 
 "Verran v. Baird, 150 Mass. 141; Rich 
 
 v. Keshena Imp. Co., 56 Wis. 287; 
 Cottrell v. Marshall Infirmary, 24 N. 
 Y. S. 381; Gilson v. Delaware & H. 
 Canal Co.. 65 Vt. 213: 36 Am. St Rep. 
 803, n. ; Kentucky Lumber Co. v. 
 Miracle, 101 Ky. 364. 
 
 6 Cahill v. Eastman, 18 Minn. 324; 
 Knapheide v. Eastman, 20 id. 478; St. 
 Anthony Palls W. P. Co. v. Eastman. 
 30 id. 377; Gniadck u Northwestern 
 Impr. Co., 73 id. 87; Porters. Pequon- 
 noc Manuf. Co., 17 Conn. 349; Tuo- 
 lumne Water Co. v. Columbia Water 
 Co., 10 CaL 193. So in case of per- 
 sonal injuries on a railroad. Crouse 
 v. Chicago & N. W. Ry. Co., 102 Wis. 
 196. The right to be negligent can- 
 not be gained by prescription. Jen- 
 kins v. Hooper Ir. Co., 13 Utah, 100. 
 A complaint by a turnpike company 
 against a land-owner for negligently 
 constructing his fence across a. 
 stream, so that it obstructs the water, 
 etc., whereby the plaintiff's bridge- 
 was destroyed, is bad on demurrer if 
 it fails to negative contributory neg- 
 ligence by the plaintiff. SteveDS v. 
 Lafayette Gravel Road Co., 99 Ind. 
 392. 
 
 i Hunter v. Pelham Mills, 52 S. C. 
 279. 
 
§ 298.] 
 
 STJBTEBEANEAN WATEES. 
 
 579 
 
 dinary 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. 1 A dam ©r levee 
 may be cut to save life and property, when clearly necessary 
 to that end. 2 Similar principles apply to the owners of booms, 
 who are not liable for lumber lost by inevitable accidents or 
 the unavoidable dangers of the river. 3 The owner of an irrigat- 
 ing ditch who carelessly passes water into and through it be- 
 yond its reasonable capacity, and thereby causes it to overflow 
 its banks upon the land of another proprietor, injuring the lat- 
 ter's fruit trees and vines, is liable for such injury under the 
 Colorado statutes. 4 
 
 J Gray v. Harris, 107 Mass. 493; 
 New York v. Bailey, 2 Denio, 133; 
 Darling v. Thompson, 108 Mich. 215; 
 Townes v. Augusta, 46 S. C. 15; Geor- 
 gia R. Co. v, Bohler, 98 Ga. 184; 
 Borchsenius v. Chicago, etc. Ry. Co., 
 96 Wis. 448; ante, § 211c. It is the 
 settled law of Louisiana and in ac- 
 cordance with the natural state of 
 things as they exist in the alluvial 
 portion of that State, that the break- 
 ing of a crevasse in the Mississippi 
 river levee is a fortuitous or foreseen 
 event within the meaning and scope 
 
 of La. Code, arts. 2697, 2699. Viterbo 
 v. Friedlander, 120 U. S. 707; 24 Fed. 
 Rep. 320; Jackson v. Michie, 33 La. 
 Ann. 723; see Koerber v. New Or- 
 leans Levee Board, 51 id. 523; Fors- 
 dick v. Supervisors (77 Miss.), 25 S. 
 Rep 294 i 
 
 2 Newcomb v. Tisdale, 62 Cal. 575. 
 
 8 Brown v. Susquehanna Boom Co., 
 109 Penn. St. 57. 
 
 4 Gen. Stats. §§ 312, 1728, 1733; 
 Greeley Ir. Co. v. House, 14 Col. 549; 
 King v. Miles City Ir. Ditch Co., 16 
 Mont 463. 
 
CHAPTER X. 
 CONTRACTS AND COVENANTS. 
 
 SECTION. 
 
 299. Easements in general 
 
 300. Creatable by deed only. 
 
 301. Easements in gross and appurtenant 
 
 302. Covenants personal and real 
 302a. Conditions. 
 
 303. Easements as encumbrances against warranty. 
 304 Water easements as to quantity and power. 
 
 304a. Words and phrases passing the water privilege and the soil 
 
 305. Appurtenances. 
 
 806-309. Secondary easements. 
 
 310. Reservations 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, 318a. 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-actionabla 
 
 327. Damages. 
 
 328. Repairs. 
 
 § 299. Easements. — In addition to the rights which ripa- 
 rian proprietors possess ex jure naturce, other rights may 
 be acquired in watercourses known as^ easements. An ease- 
 ment is a privilege -without profit which the owner of one 
 tenement has in an adjoining tenement, by which the servient 
 owner is obliged to suffer or not to do something on his own 
 
§ 299.] CONTKACTS AND COVENANTS. 581 
 
 land for the advantage of the dominant estate. 1 Easements in 
 watercourses appear to be exclusively affirmative, 2 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. 3 The grantor of land through which a stream of 
 water flows may reserve the water privilege, or he may con- 
 vey the use of the water in whole or in part, leaving the fee 
 of the land vested in the grantor. 4 A grant of riparian land, 
 together with the use of the water of the stream for operat- 
 ing the grantee's mill, "free from interference or detention," is 
 to be construed as subject to the reasonable use of the stream 
 by the grantor, according to general principles of law, inde- 
 pendent of the grant. 5 If a miller purchases the water privi- 
 lege adjoining his mill, the right of soil remaining in the orig- 
 inal proprietor, he gains an incorpore'al hereditament ; 6 but if 
 he buys the land itself over which the water flows, he has a 
 corporeal tenement, and the right which he possesses in re- 
 
 1 Termes de la Ley, tit. Easement; v. Mclntyre, 4 id. 638 (pipes outside of 
 
 Monsey v. Ismay, 3 H. & 0. 497; granted privilege); Fitch v. Belding, 
 
 MunrouMeech, 94 Mich. 596; Smith 49 Conn. 469; Reno Water Co. v. 
 
 v. Chicago, etc. Ey. Co., 83 "Wis. 271; Leete, 17 Nev. 203. As to equitable 
 
 Nunnelly v. Southern Iron Co., 94 easements, see 29 Am. L. Reg. N. s. 73. 
 
 Tenn. 397; Wyatt v. Larimer & W. 2 See post, § 340. 
 
 Ir. Co., 18 Col. 298; Quinlan v. Noble, 3 It is improper to assign, as part 
 
 75 CaL 250. Easements may come of dower, a right of way over other 
 
 into existence (1) by express public land, or the right to use water-pipes 
 
 grant by an act of the Legislature; laid therein. Price v. Price, 7 N. Y. S. 
 
 (2) by express private grant, (a) inter 474. 
 
 vivos, (b) by testament; (3) by implied 4 Rood v. Johnson, 26 Vt. 64; Miller 
 
 grant, when the intention is implied v. Lapham, 44 Vt. 416; Soule v. Rus- 
 
 to grant the easement together with sell, 13 Met. 436; Gould v. Stafford, 91 
 
 property which is expressly granted, CaL 146. 
 
 as on severance of tenements; (4) by 5 Red River Roller Mills v. Wright, 
 
 prescription, which requires enjoy- 30 Minn. 249. See Sidwell v. Greig, 
 
 ment as of right for a particular 40 N. Y. S. 968; Hazelton v. Webster, 
 
 period. Prescription is either by 46 id. 922. 
 
 (a) common law, or (b) by statute. 6 The right of maintaining a pond 
 
 Innes on Easements (2d ed.), 3. For or reservoir upon another's land is an 
 
 grants of easements, upon special easement. Johnson v. Skillman, 29 
 
 facts and clauses, see Ludlow v. Gier- Minn. 95; Watuppa Reservoir Co. 
 
 hon, 6 N. Y. S. 121 (" adjoining dock v. Mackenzie, 132 Mass. 71 ; Tuttle v. 
 
 surface"); Fort Edwards W. Works Harry, 56 Conn. 194 
 
582 THE LAW OF WATEES. [Ch. X. 
 
 spect to the watercourse is real. 1 In the former case the right 
 acquired is an easement and not a profit a prendre, since run- 
 ning water, whether above or below the surface of the earth, 
 is not a product of soil and does not remain in any one place. 2 
 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 only, sustainable by proof of 
 custom by the inhabitants.' So the privilege of laying pipes 
 in another's land for the purpose of taking water, and of en- 
 tering upon the land to lay, repair, or renew such pipes, is an 
 interest in the realty which is assignable, descendible, and de- 
 visable, 4 when the grant contains words of inheritance. 8 The 
 right to water in wells or cisterns is an interest in land, al- 
 though not a profit a prendre, and may be claimed by custom. 6 
 If the plaintiff's claim is upon a contract, there must always 
 be some privity between the parties. Thus, a town which re- 
 pairs a bridge cannot recover against neighboring mill-owners 
 upon a claim for reimbursement unless there is some relation 
 between them showing an express or implied promise. 7 
 
 § 300. Created only by deed. — An easement in a water- 
 course can only be created by deed ; 8 and when so created, 
 
 ilbid.; Woolrych on Waters, 146; 113\Mass. 68; Hankey v. Clark, 110 
 Trudeau i>. Field, 69 "Vt 446; Branson Mass. 262; French v. Morris, 101 
 v. Studabaker, 133 Ind. 147; Sterling Mass. 68; Lonsdale Co. v. Moies, 21 
 
 Hydraulic Co. v. Williams, 66 I1L 393 
 Seymour v. Lewis, 13 N. J. Eq. 439 
 Eckert v. Peters, 55 N. J. Eq. 379 
 
 Law Rep. 664; Williams v. Wads- 
 worth, 51 Conn.' 277; Nellis v. Mun- 
 son, 108 N. Y. 453; 24 Hun, 575; 
 
 Morgan v. Mason, 20 Ohio, 401 ; Wall Wright v. Newton, 130 Mass. 552; 
 
 v. Cloud, 3 Humph. 181, 184; Smith Dority v. Dunning, 78 Maine, 381; 
 
 v. Ford, 48 Wis. 166. Wilder v. Wheeler, 60 N. H. 351; Cole 
 
 2 Race v. Ward, 4 El. & Bl. 702; v. Lake Co., 54 N. H 242; Jones 
 Mounsey v. Ismay, 3 H. & C. 486; v. Pettibone, 2 Wis. 308; Peaslee 
 Shuttleworth v. La Feming, 19 C. B. v. Tower, 62 N. H. 434; McMullin v. 
 n. s. 687; Manning v. Wasdale, 5 A. Wooley, 2 Lans. 394; Warren v. 
 & E. 758; Sutherland v. Heathcote, Carey, 145 Mass. 78. 
 
 [1892] 1 Ch. 475; Engel v. Ayer, 85 5 wilder v. Wheeler, 50 N. H. 351; 
 
 Maine, 448; Ring v. Walker, 87 id. Salem Capital F. M. Co. v. Stay ton 
 
 550; Columbia W. P. Co. v. Columbia W. D. Co., 13 Sawyer, 99; Whitney 
 
 El. St. Ry. Co., 43 S. C. 154; Owen v. v. Richardson, 59 Hun, 601. 
 
 Field, 102 Mass. 90; Hill v. Lord, 48 «lbid.; Tyler v. Bennett, 5 Ad. & 
 
 Maine, 83, 99; 3 Kent Com. 427. El. 377. 
 
 3 Ibid. 7 North Providence v. Dyerville 
 
 4 Goodrich v. Burbank, 12 Allen, Manuf. Co., 13 R I. 45. 
 
 459; 97 Mass. 22; Amidon v. Harris, 8 Co. Litt. 9a; Hewlins v. Shippam, 
 
% 300.] 
 
 CONTRACTS AND COVENANTS. 
 
 583 
 
 the grantor cannot derogate from the deed, and the nature 
 and extent of the rights of the parties can only be determined 
 thereby. 1 But a mere license does not create an easement, and 
 may be valid though by parol. 2 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 reason of his main- 
 tenance of a dam at an improper height. 3 The above rule ap- 
 plies equally whether the water flows in a natural or artificial 
 •channel, or is mere surface or percolating water; 4 and whether 
 all the interest in the soil beneath the water is conveyed, or 
 only so much as is necessary for a due enjoyment of the water, 
 yet the interest is of such a character that it cannot pass by 
 parol. 5 No water easement, however, will arise under a deed, 
 
 5 B. & C. 221, 229; Cooker v. Cowper, 
 it C. M. & R. 418; Cook v. Stearns, 11 
 Mass. 533; Fuller v. Plymouth, 15 
 Pick. 81; Short v. Woodward, 13 
 •Gray, 86; Stevens v. Stevens, 11 Met. 
 251; Banghart v. Flummerfelt, 43 
 N. J. L. 28; Carlton v. Redington, 21 
 N. H. 291; Stevens v. Dennett, 51 
 N. H. 324; Fuhr u Dean, 29 Mo. 116; 
 Miller v. Auburn & Syracuse R. Co., 
 <> Hill, 61; Brown v. Woodworth, 5 
 Barb. 550; Russell v. Scott, 9 Cowen, 
 279; Wiseman v. Lucksinger, 84 
 N. Y. 31; People v. Page, 58 N. Y. S. 
 
 239; v. Deberry, 1 Hayw. (N. C.) 
 
 ■248; Watrous v. Watrous, 3 Conn. 
 373; Foot v. New Haven Co., 23 
 Conn. 214; Moore v. Sinks, 2 Ind. 157; 
 Thoemke v. Fiedler, 91 Wis. 386. 
 Under the statutes of Ohio, an un- 
 sealed written license to enter upon 
 and imbed water pipes in another's 
 land, with privilege to enter and re- 
 pair them, creates no incumbrance 
 upon the land- as against a subse- 
 quent purchaser. Wilkins v. Irvine, 
 33 Ohio St. 138. 
 
 1 Northam v. Hurley, 1 E. & B. 665; 
 Whitehead v. Parks, 2 H. & N. 878; 
 ■Sharp v. Waterhouse, 7 E. & B. 816; 
 Tipping v. Eckersley, 2 K. & J. 273; 
 Risien v. Brown, 73 Texas, 135; Wood 
 v. Saunders, L. R, 10 Ch. 582; Fin- 
 
 linson v. Porter, L. R. 10 Q. B. 188; 
 United Land Co. v. Great Eastern 
 Ry. Co., L. R. 10 Ch. 586; Collins v. 
 Slade, 23 W. R. 199; Chicosa Ir. Ditch 
 Co. v. El Moro Ditch Co., 10 Col. App. 
 376; Consolidated Canal Co. v. Mesa 
 Canal Co. (Ariz.), 53 Pao. Rep. 575. 
 As to the burden of proof to show a 
 breach of covenant, see Bangs v. 
 Waterville & F. Light Co., 92 Maine, 
 559. 
 
 2 Lawrence v. Springer, 49 N. J. Eq. 
 289; Richards v. Gauffret, 145 Mass. 
 486; Shirley v. Crabb, 138 Ind. 200; 
 Kleeb v. Bard, 7 Wash. 41 ; Columbus 
 R. Co. v. City Mills Co. (Ga.), 34 S. E. 
 Rep. 581; iw/m,§322. 
 
 3 Hopper v. Lutkins, 3 Green Ch. 
 149. 
 
 4 Rawstron v. Taylor, 11 Exch. 369; 
 Whitehead v. Parks, 27 L. J. Exch. 
 169. 
 
 SBullen v. Runnels, 2 N. H. 255; 
 Hall v. Chaffee, 13 Vt. 170; Tanner 
 v. Volentine, 75 III. 624; Wood v. 
 Edes, 2 Allen, 580; Seidensparger v. 
 Spear, 17 Maine, 123; Clement v. 
 Durgin, 5 Greenl. 9; Brand v. Doane, 
 17 Conn. 402; Fitch v. Seymour, 9 
 Met. 462; Smith v. Goulding, 6 Cush. 
 154; Seymour v. Carter, 2 Met. 250; 
 Cobb v. Fisher, 121 Mass. 170. 
 
584 THE LAW OF WATERS. [Ch. X. 
 
 giving a mere right of election to the grantee, unless the grantee 
 exercises his election during his lifetime. 1 A covenant which is 
 annexed to the realty becomes, upon a total breach, a mere per- 
 sonal right which remains with the covenantee or his personal 
 representatives and does not pass with the land. 2 Where a 
 railroad company, 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 main- 
 tain ah action against the company for failure to fulfil the 
 above provision in the manner agreed upon. 3 A personal cove- 
 nant made in general terms is to be construed, in determining 
 whether there has been a breach, with such implied exceptions 
 and qualifications as necessarily grow out of the subject-matter 
 or the context.* 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. 5 
 
 § 301. In gross or appurtenant. — An easement is not 
 presumed to be a mere personal right, or in gross, when it 
 may fairly be regarded as appurtenant to some other estate; 6 
 but if there is nothing connecting the privilege with such other 
 estate, it does not pass with the land to an assignee. 7 "Where 
 
 i Vanderburgh v. Van Bergen, 13 6 Spensley v. Valentine, 34 Wis. 
 
 John. 212. See Jackson v. Van Buren, 154; Dennis v. Wilson, 107 Mass. 592; 
 
 13 id. 525. Bank of North America v. Miller, 24 
 
 2 Spencers Case, 1 Smith's Lead. Alb. Law Journ. 35; 6 Fed. Rep. 545; 
 
 Cal. 165. 7 Sawyer. 163 ; Spencer v. Kilmer, 151 
 
 8 Junction E. Co. v. Sayers, 28 Ind. N. Y. 390; McMillian v. Lauer, 24 K 
 
 318. See Cape v. Thompson (Tex. Y. S. 951; Witt v. Jefferson (Ky.), 18 
 
 Civ. App.), 53 S. W. Eep. 368. S. W. Eep. 229. Louisville E. Co. v. 
 
 * Fitch v. Belding. 49 Conn. 469; Koelle, 104 111. 455, holds the same; 
 
 Ferrea v. Chabot, 121 Cal. 233; Ap- also that the grant of a right of way 
 
 pleton Paper & Pulp Co. v. Kimberly to several persons may be a right ap- 
 
 & Clark Co., 100 Wis. 195. purtenant as to some of them, and in 
 
 5 Mill-dam Foundry v. Hovey, 21 gross as to others. A right of profit 
 
 Pick. 417, 442; Green v. Kelley, 3 a prendre may be transferred in 
 
 Harr. (N. J.) 246; Spencer, 544 A gross, or it maybe attached to, and 
 
 covenant by a landed proprietor, not pass as an appurtenance with, other 
 
 to permit the owner of an adjoining land. Huntington v. Asher, 96 N. Y. 
 
 tract of land to cut a ditch through 604; 26 Hun, 496. 
 
 the grantor's premises, is not against 7 Ackroyd v. Smith, 10 C. B. 164; 
 
 public policy. Jacobs v. Davis, 34 Linthicum v. Ray, 9 Wall. 241; Spen- 
 
 Md. 204. cer v. Spencer, 2 Ired. 96; Molina 
 
§ 302.] CONTRACTS AND COVENANTS. 585 
 
 an upper tract 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 an- 
 nexed to the upper tract so as to pass with it to an assignee. 1 
 A covenant to repair a canal, dug for the purpose of drain- 
 ing the lands of the parties to the covenant, runs with such 
 lands and binds a subsequent purchaser in fee. 2 So the cove- 
 nant of a railroad corporation to build its track above the 
 overflow of a river is a covenant running with the land. 3 But 
 a deed-poll which conveys to a railroad company for its road- 
 bed the fee of a strip of land, and contains the condition sub- 
 sequent " that the system of drainage shall remain the same 
 as now, and ditches to remain of such a depth as to allow, as 
 heretofore, 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 vio- 
 lated, is not liable in damages to the grantor, in the absence 
 of a personal covenant, for its mere failure to remove obstruc- 
 tions placed in the ditches by the first company. 4 
 
 §302. Covenants personal and real. — Eights in water- 
 courses 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 come by conveyance or assignment. 5 A cove- 
 Water Power Co. v. "Waters, 10 Brad. 5 Sharp v. Waterhouse, 7 E. & R, 
 (111.) 159, 178; Clark v. Brown, 70 816; Howard Manuf. Co. v. Water 
 Iowa, 139; Haithcock v. Swift Island Lot Co., 53 Ga. 689; Batavia Manuf. 
 Manuf. Co., 72 N. C. 410. Co. v. Newton Wagon Co., 91 111. S30; 
 
 1 Spencer v. Spencer, 2 Ired. 96. See Hurxthal v. Hurxthal, 45 W. Va. 584; 
 Stanton v. Sauk Eapids Co., 74 Minn. Hottell v. Farmers' Prot. Ass'n, 25- 
 286. Col. 67; Norman v. Wells, 17 Wend. 
 
 *Norfleet v. Cromwell, 74 N. C. 1; 136; Horn v. Miller, 136 Penn. St. 
 70 N. C. 634. See Butler H. R Co. v. 640; 142 id. 557. See Hinckel v. 
 Newark, 61 N. J. L. 32. Stevens, 54 N. Y. S. 457; Clay v. Hart, 
 
 3 St. Louis Ry. Co. v. O'Baugh, 49 55 id. 43; Electric City Land Co. v. 
 Ark. 418; Peden v. Chicago Ey. Co., West Ridge Coal Co., 187 Penn. St 
 73 Iowa, 328. 500; Akin v. Marshall Oil Co. (Penn.), 
 
 * Hammond v. Port Royal Ry. Co., 41 Atl. Rep. 748; Case v. Hoffman, 
 16 S. C.567. 100 Wis. 314; 9 L. R. A. 810; post, 
 
5S6 THE LAW OF WATEKS. [Ch. X. 
 
 nant by a lessor, or by one of the owners of two 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. 1 So the grantor's agreement for an 
 open space between the street which the granted lots adjoin 
 and the water, 2 or 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. 8 
 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 re- 
 pairs " in proportion 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. 4 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. 5 If the owner of a 
 public warehouse on a navigable river conveys the adjoining 
 premises and at the same time takes from the purchaser a 
 " penal bond by which the latter binds himself, his representa- 
 tives and assigns, not " to permit or allow a warehouse or 
 
 § 447. It seems that the burden of to be allowed to repair dam if in- 
 
 a covenant, which does not involve jured by an extraordinary flood. 
 
 a grant, never runs with the land at 2 Delogny v. Mercer, 43 La. Ann. 
 
 law. Austerberry v. Oldham Co., 29 205; Fitzgerald v. Barbour, 55 Fed. 
 
 Ch. D. 750. There may, however, be Eep. 440; Greenwood R Co. v. New 
 
 an easement burdening the estate York, etc. R. Co., 134 N. Y. 435. 
 
 by acquiescence, amounting to an a Holmes v. Buckley, Prec. in Chan, 
 
 equitable estoppel. Gould v. Part- 39; 1 Eq. Cas. Ab. 27; Morse v. Ald- 
 
 ridge, 64 N. Y. S. 870. rich, 19 Pick. 449: Bronson v. Coffin, 
 
 i Jordain v. Wilson, 4 B. & Aid. 108 Mass. 175, 184; Van Rensselaer 
 
 266; Holmes v. Buckley, Prec. in v. Read, 26 N. Y. 558, 574; Nye v. 
 
 Chan. 39; 1 Eq. Cas. Ab. 27; Ster- Hoyle, 120 N. Y. 195; "Woodruff v. 
 
 ling Hydraulic Co. v. Williams, 66 Trenton Water Power Co., 10 N. J. 
 
 111. 393; Noonan v. Orton, 27 Wis. Eq. 489; Carr v. Lowry, 27 Penn. St. 
 
 272, 300; 4 Wis. 335; 22 Wis. 84; 257; Doyle v. San Diego L. & T. Co., 
 
 Thompson v. Shattuck, 2 Met, 615; 46 Fed. Rep. 709. 
 
 Hurd v. Curtis, 7 Met. 94; Maxon v. i Wooliscroft v. Norton, 15 Wis. 198. 
 
 Lane, 102 Ind. 364. Philps v. St. 5 Lindeman v. Lindsey, 69 Penn. St. 
 
 John Water Co., 4 Allen (N. B.), 24, 93; Jamison v. McCredy, 5 Watts & 
 
 also holds that a reasonable time is S. 129. 
 
§ 302.] 
 
 CONTRACTS ANB COVENANTS. 
 
 587 
 
 place for the shipping or receiving of goods either upon or 
 through said premises," such covenant may be enforced by 
 the covenantee, his representatives, heirs or assigns against - 
 the covenantor, his heirs, and purchasers with notice. 1 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 certifi- 
 cate, does not run with the land or bind the assignee of the 
 lessee. 2 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 privity of estate be- 
 tween the contracting parties. 3 "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 
 
 iRobbins v. Webb, 68 Ala. 393. 
 Such a covenant is held not to be 
 against public policy. Ibid.; post, 
 §§ 447-449; Stearns v. Richmond 
 Paper Manuf. Co., 86 Va. 1034; Weill 
 v. Baldwin, 64 Cal. 476; Table Mt. W. 
 Co. v. Chavanne, 70 Cal. 616; Cady v. 
 Springfield W. W. Co., 134 N. Y. 118; 
 Shaber v. St. Paul W. Co., 30 Minn. 
 179, 183. The assignee of a covenant 
 running with the land, who parts 
 with his estate therein previous to 
 bringing his action, parts with his 
 action also. Wallace v. Vernon, 1 
 Kerr (N. B.), 5. Where the owners 
 of land below low-water mark in a 
 harbor granted to the owner of a lot 
 fronting thereon the right to extend 
 a wharf built upon his own lot, below 
 low- water mark; and the lot-owner 
 covenanted, for himself, his heirs 
 and assigns, not to erect buildings 
 on the wharf, extended the wharf 
 beyond low-water mark, and then 
 assigned to the defendants, who 
 erected buildings on the wharf, it 
 
 was held that the defendant was 
 bound by the covenant as to build- 
 ings and estopped from denying that 
 the wharf was subject to the condi- 
 tions of the grant, although the low- 
 water mark had receded to the outer 
 end of the wharf since the grant was 
 made, and the defendant claimed the 
 land to the new low-water line as an 
 accretion. St. John v. Smith, 3 Allen 
 (N. B.), 103. That, when the soil is 
 washed away, a covenant as to acre- 
 age does not run with the land, see 
 33 Am. L. Rev. 302. 
 
 2 Congleton v. Pattison, 10 East, 
 130; Keppell v. Bailey, 2 Myl. & K. 
 517. 
 
 3 Spencer's Case, 3 Co. 16; 1 Smith's 
 Lead. Cas. (7th Am. Ed.) 137; Webb 
 v. Russell, 3 T. R. 393; Hurd v. Curtis, 
 19 Pick. 459; Plymouth v. Carver, 16 
 id. 183; Wheelock v. Thayer, id. 68; 
 Lynn v. Mount Savage Iron Co., 34 
 Md. 603; Lawrence v. Whitney, 115 
 N. Y. 410. 
 
588 THE LAW OF WATEKS. [Ch. X. 
 
 ran with the mill-site. 1 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 re- 
 pair 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. 2 A reservation of the right to use water 
 in a particular manner, for the accommodation of land which 
 remains vested in tb\e grantor, is an assignable interest, al- 
 though the right is reserved to him without words of inherit- 
 ance, and without naming his assigns. 3 Covenants are as capa- 
 ble of running with incorporeal hereditaments as with those 
 which are corporeal. 4 An unsealed writing, signed by a former 
 owner of the land, which purports to convey the right of flow- 
 ing the same and to release all claims for damages therefor, 
 does not bind the land, or estop subsequent grantees of the land 
 to recover damages for the flowing thereof in future. 5 So, a 
 verbal license to enter and connect with a public drain does not 
 run with the land. 6 
 
 § 302a. Conditions. — "Where a conveyance was made of a 
 mill-dam or pond of water and mill-race, and a perch of land 
 on each side thereof for the use of a certain mill with the land 
 thereto belonging, " and for no other use whatsoever," the title 
 was held to be a base fee, determinable on disuser as a pond. 7 
 But subsequent conditions, relied on to work a forfeiture, must 
 be created by express terms or clear implication and are strictly 
 construed. The words will, if possible, be construed as a reser- 
 
 i Wheeler v. Sohad, 7 Nev. 204; 19 Pick. 449; London v. Richmond, 3 
 
 Target v. Lloyd, 2 Vent. 277; Mitchell Vern. 421; 1 Bro. P. C. 30; Merriman 
 
 v. Warner, 5 Conn. 497. v. Russell, 2 Jones Eq. 470. 
 
 2 Lyon v. Parker, 45 Maine, 474 4 Baldy v. Wells, 3 Wils. 26 ; Sterling 
 That the right to rent may pass, see Hydraulic Co. v. Williams, 66 111. 393. 
 Manderbach v. Bethany Orphans 6 Cobb v. Fisher, 121 Mass. 169. 
 Home, 109 Penn. St. 231. " Estes v. China, 56 Maine, 407. 
 
 3 Kennedy v. Scovil, 12 Conn. 317, 7 Scheetz v. Fitzwater, 5 Penn. St. 
 326; 14 Conn. 62; Morse v. Aldrich, 126. 
 
§ 303.] CONTKACTS AND COVENANTS. 589 
 
 vation or covenant rather than as a condition. 1 And a mere 
 declaration in the grant that it is for a special purpose, with- 
 out other words, will not be held to be a condition. 2 
 
 § 303. Incumbrances against warranty. — 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, 
 although the grantee knew of their existence. 3 Where the 
 defendant, who conveyed to the plaintiff, with covenants of 
 warranty and seisin, a tract of land having a spring thereon, 
 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 was held to be a breach of the covenants in 
 the plaintiff's deed.* 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 general cove- 
 nant against incumbrances that, prior to the conveyance, the 
 grantor had lawfully erected a dam and thereby caused water 
 to flow upon the granted premises ; 5 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. 6 The ex- 
 istence of a right in the mill-owner to cleanse the natural 
 channel 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." 7 If a mill 
 
 1 Union Canal Co. v. Young, 1 Scriver v. Smith, 30 Hun, 129. Thus, 
 
 Wharton, 410; Cook v. Trimble, 9 an easement to out ice may violate 
 
 Watts, 15; First M. E. Church v. Old such covenant. Weiss v. Binnian, 178 
 
 Columbia Public Ground Co., 103 111.241; 78 111. App. 292. 
 
 Penn. St. 608; Keysar v. Co veil, 62 4 Clark v. Conroe, 38 Vt. 469; Lamb 
 
 N. H. 283. v. Danforth, 59 Maine, 322. See 
 
 2 Ibid.; Packard v. Ames, 16 Gray, Groomeu. Ogden City Corp., 10 Utah, 
 
 327; Laberee v. Carleton, 53 Maine, 54; Blanks u Ripley, 8 Tex. Civ. App. 
 
 211; Pinkum v. Eau Claire, 81 Wis. 156. 
 
 301; Fresno M. Co. v. Fresno Canal 5 Kidder v. George, 18 N. H. 511; 
 
 Co. (Cal.), 36 Pac. Rep. 412. post, §§ 451-455. 
 
 3 Huyck v. Andrews, 113 N. Y. 81; 6 Kurtz v. McCune, 22 Wis. 628; 
 
 Fresno Canal Co. v. Rowell, 80 Cal. Alexander v. Kerr, 2 Rawle, 83; 
 
 114; Same v. Dunbar, id. 530; Iseleu Knapp v. White, 23 Conn. 529. 
 
 Arlington S. Bank, 135 Mass. 142; ' Prescott v. Williams, 5 Met. 429. 
 
590 THE LAW OF WATERS. [Ch. X. 
 
 and water privilege are excepted in a grant of land bounding 
 upon a stream, the exception includes a right to flow the 
 land so far as may be necessary or has been customary, 1 and 
 the existence of this easement is not a breach of a covenant 
 against incumbrances. 2 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 flow- 
 age, 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 at the height at which the grantee can rightfully 
 keep it. 3 Upon the conveyance of a piece of land by metes and 
 bounds which was described as " containing two acres, more or 
 less, and embraces all the mill privilege on the Eochester 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 
 privilege existed within the boundaries of the land. 4 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 purchasers 
 acquire title after the erection of the dam, under patents re- 
 ferring to a map which represents their lands as flowed to the 
 extent claimed. 5 
 
 § 304. Quantity and power. — 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 aperture of known dimensions and fall in a certain time, 6 
 
 1 The mere height of the dam is 5 Colvin v. Burnet, 2 Hill, 620. 
 not the only consideration, as to a 6 Canal Co. v. Hill, 15 Wall. 94; 
 
 new dam of the same height farther Bardwell v. Ames, 23 Pick. 333; 
 
 up the stream, since its width and Wright v. Newton, 130 Mass. 552; 
 
 shores may so differ as to make the Washburn & Moen Manuf. Co. v. 
 
 retardation and amount held varia- Salisbury, 152 Mass. 346; San Diego 
 
 ble. Stafford v. Maddox. 87 Ga. 537. Flume Co. v. Chase, 87 CaL 561: Read 
 
 2 Pettee v. Hawes, 13 Pick. 323; v. Erie Ry. Co., 97 N. Y. 341 ; Powers 
 
 Davis v. Wilson, 6 Cush. 206. v. Hibbard, 114 Mioh. 533; Marshall 
 
 3 Hall v. Gale, 20 Wis. 292. v, Hershey, 185 Penn. St. 238; Van 
 
 4 Pray v. Great Falls Manuf. Co., Horn v. Clark (N. J. Eq.), 44 AtL Rep. 
 38 N. H. 442. See Cummings v. Par- 643. 
 
 ker, 61 N. H 516. 
 
§ 304.] CONTRACTS AND COVENANTS. 591 
 
 or it may be of such water-power as is necessary to propel cer- 
 tain machinery. 1 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; 2 nor is it necessary that it should be an- 
 nexed to a mill or limited in location. 3 Eights 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 pre- 
 cisely as if granted by deeds containing no conveyance of land. 4 
 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 ex- 
 ercised independently by a dam erected on land other than 
 the grantor's. 5 If land is granted with the right, should it be- 
 come 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 the 
 grantee is at liberty to erect and maintain the dam upon his 
 own land. 6 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. 7 
 
 !The acquiescence of millwrights 4 De "Witt v. Harvey, 4 Gray, 486; 
 
 in the accuracy of " Leflel's Tables " Pratt v. Lamson, 2 A lien, 275 ; Schuyl- 
 
 as to the grinding power of specified kill Nav. Co. v. Moore, 2 Whart. 477. 
 
 water-power is common knowledge 6 Kilgore v. Hascall, 21 Mich. 502; 
 
 on their part, and makes their com- Olmstead u Abbott, 61 Vt. 281. The 
 
 putations on that basis admissible in express mention, in a deed, of the 
 
 evidence. Garwood v. N. Y. Central right to take water from one source 
 
 R. Co., 45 Hun, 128. excludes by implication the right to 
 
 2 Mayor v. Com'rs, 7 Penn. St. 348; take water from any other. Hare v. 
 
 Gray v. Saco W. P. Co., 85 Maine, Horton, 5 B. & Ad. 715; Warden v. 
 
 526; Vermont Central R. Co. v. Hills, Balch, 59 N. H. 468; Coolidge v. 
 
 23 Vt. 681; Society v. Holsman, 1 Hagar, 43 Vt. 9. 
 
 Halst. Ch. 1'26. « Barber v. Nye, 65 N. Y. 211; see 
 
 3 Hurd v. Curtis, 7 Met. 94, 114; Turner v. Seabury, 13 N. Y. S. 12; 
 
 Cargill v. Thompson, 50 Minn. 211; Hall v. Sterling Iron Co., 26 id. 143; 
 
 City Power Co. v. Fergus Falls W. 148 N. Y. 432. 
 
 Co., 55 Minn. 172; Eastman v. Par- 'Robinson v. Imperial S. M. Co., 5 
 
 ker, 65 Vt. 643. See Clinton G. L. Co. Nev. 44. 
 v. Fuller, 170 Mass. 82. 
 
592 
 
 THE LAW OF WATEKS. 
 
 [Oh. X. 
 
 § 304a. When the soil passes. — "A grant of a watercourse 
 in law," says Jessel, M. R., 1 " 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 
 context, I apprehend that it would not mean anything but the 
 easement, a right to the flow of the water." In Egremont v. 
 Williams, 2 it was held that the reservation or exception, in a 
 lease, of a watercourse flowing through a meadow was only 
 an exception of the water itself, and not of the channel through 
 which it flowed. A grant of a "pool," or "gulf," or of a 
 " pond " may pass the land which is covered by water, 3 or a 
 right of access to the wharf for vessels over the submerged soil 
 owned by the grantor. 4 So a grant of a " well," or " spring," 
 or " wharf " is effectual to pass the soil as well as the thing 
 conveyed. 5 Upon the sale of a division of a canal belonging 
 
 i Taylor v. St. Helens, 6 Ch. D. 264, 
 271. 
 
 211 Q. B. 688. 
 
 3 Co. Lit. 5; Goodrich v. Eastern 
 Railroad, 37 N. H. 149, 164 See ante, 
 §§ 31, 166, note. In a deed of a piece 
 of land "together with the mill 
 privilege, saw-mill, and erections be- 
 longing to the same; and also the 
 pond or flowage above the said mill," 
 the words " pond or flowage " con- 
 vey no right to the soil of the mill- 
 pond, but only an easement to dam 
 the water and overflow the land for 
 the purposes of the mill below. Her- 
 bertson v. Cunningham, 1 Pugsley 
 (N. B.), 235. So it has been held that 
 a grant of a river eo nomine does not 
 pass the soil under the water, or an 
 island in the river, but only the right 
 of fishery therein. Jackson v. Hal- 
 stead, 5 Cowen, 216; Co. Lit. 4b; 
 Com. Dig. tit. Grant, E. 5. But a 
 Crown grant of a lake proprio nom- 
 ine, with all profits, hereditaments, 
 etc., reserving to the Crown all mines 
 and minerals, has been held to con- 
 
 vey the soil of the lake. Burke v. 
 Niles, 2 Hannay (N. B.), 166. 
 
 4 Langdon v. New York, 93 N. T. 
 129. See Brown v. Pancoast, 34 N. J. 
 Eq. 321. A reservation in a deed of 
 "the wharf and wharf franchises" 
 does not include a house partly on 
 the premises, built on piles adjoining 
 and " butting up " against the wharf, 
 but not being a part of the wharf. 
 Upham v. Hosking, 62 Cal. 250. See 
 Coburn v. Ames, 80 Cal. 243; Perry 
 v. Penn. R Co., 55 N. J. L. 178; Brown 
 v. Carkeek, 14 "Wash. 443; Adams v. 
 Rogers, 26 Can. Sup. Ct. 159. 
 
 5 Ante, § 286; Johnson v. Rayner, 6 
 Gray, 107; Jamaica Pond Aqueduct 
 v. Chandler, 9 Allen, 159. A sale of a 
 "pier," or " wharf," carries the right 
 of wharfage. Wis wall i>. Hall, 3 Paige, 
 313; Smith v. New York, 68 N. Y. 552. 
 See Carroll v. New York Life Ins. 
 Co., 67 Hun, 438. " Wharf " may in- 
 clude the grantor's adjacent flats. 
 Ashby v. Eastern R. Co., 5 Met. 368. 
 See Buszard v. Capel, 8 B. & C. 141; 
 Hall v. Snowden, [1899] 2 Q. B. 136; 
 
§ 305.] 
 
 CONTRACTS AND COVENANTS. 
 
 593 
 
 to the State of Indiana, " including its banks, margins, tow- 
 paths, side-cuts, feeders, basins, right of way, dams, water-power, 
 structures, and all the appurtenances thereunto belonging," cer- 
 tain 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, were held to pass by the conveyance. 1 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. 2 
 
 § 305. Appurtenances. — If a "mill" be granted, reserved, 
 or devised, 3 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 ; 4 also, the fixtures used 
 in operating the mill, including its machinery, race, 5 booms, 
 etc., in use or in their appropriate position at the time of the 
 
 Owen v. Field, 102 Mass. 90; Mixer 
 *>. Reed, 25 Vt. 254; Woodcock v. 
 Estey, 43 Vt. 515; Sands v. Gambs, 
 106 Mich. 362; Brooklyn v. Mackay, 
 42 N. Y. S. 1063. See " pi,er " defined 
 in The Haxby, 95 Fed. Rep. 170. 
 
 i Sheets v. Selden, 2 Wall. 177. If a 
 deed of a mill and mill-privilege con- 
 tains the words " grant, bargain and 
 sell," and the grantor afterwards 
 •erects a dam on his own land further 
 down the stream, thereby overflow- 
 ing the grantee's land and prevent- 
 ing his mill from working, there is a 
 breach of the covenant for quiet en- 
 joyment. Wells v. Trenholm, 2 Allen 
 <N. B.), 371. 
 
 2 Williams v. Baker, 41 Md. 523. 
 See Hinckley v. Peay (Utah), 60 Pac. 
 Rep. 1012. 
 
 'Bacon v. Bowdoin, 22 Pick. 401; 
 Webster v. Potter, 105 Mass. 414; 
 Blaine v. Chambers, 1 Serg. & R. 169. 
 See Harlan v. Moore, 9 Watts, 360. 
 
 4 Forbush v. Lombard, 13 Met. 109; 
 Auburn Congr'l Church v. Walker, 
 124 Mass. 71; Leonard v. White, 7 
 38 
 
 Mass. 6; Farrar v. Cooper, 34 Maine, 
 394; Esty v. Baker, 48 id. 495; Crosby 
 v. Bradbury, 20 id. 61; Whitney v. 
 Olney, 3 Mason, 280; Voorhees v. Bur- 
 chard, 55 N. Y. 98; 6 Lans. 176; Van 
 Horn v. Richardson, 24 Wis. 245; La- 
 noue v. McKinnon, 19 Kansas, 408. See 
 Barbour v. Lyddy, 49 Fed. Rep. 896; 
 Weis v. Meyer, 55 Ark. 18. The same 
 rule applies to exceptions in a grant. 
 Moulton v. Trafton, 64 Maine, 222. A 
 ditch and water right used to oper- 
 ate a mine, may likewise be an ap- 
 purtenance to the mine, within the 
 meaning of the words "mining 
 grounds " in a statute. McShane v. 
 Carter, 80 Cal. 310; Painter v. Pasa- 
 dena L. & W. Co., 91 Cal. 74. See 
 Crooker v. Benton, 93 Cal. 365; Frank 
 v. Hicks, 4 Wyom. 502; Sloan v. 
 Glancy, 19 Mont. 704; Dietz v. Mis- 
 sion Transfer Co., 95 Cal. 92; Sim- 
 mons v. Winter, 21 Oregon, 35; 27 
 id. 1 ; Coventon v. Seufert, 23 Oregon, 
 548. 
 6 Curtis v. Norton, 58 Mich. 511. 
 
594 
 
 THE LAW OF WATEKS. 
 
 [Oh. X. 
 
 conveyance, 1 and the water privileges appurtenant and essen- 
 tial to the mill, as corporeal hereditaments. 2 But this right 
 to continue the flooding of the grantor's lands to the same 
 extent as when the grant was made, 3 does not apply to grants 
 of land from the government. 4 A grant of land, on which a 
 mill stands, passes a raceway which is necessary for the con- 
 venient working of the mill, 5 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." 6 A deed which does not mention 
 water-rights, but conveys land "with the buildings thereon 
 and appurtenances," does not pass the grantor's right to bring 
 water from a stream on other land by a pipe terminating at 
 
 1 Farrar v. Stackpole, 6 GreenL 154; 
 Lampman v. Milks, 21 N. Y. 510; Ot- 
 tumwa Woolen Mill Co. v. Hawley, 
 44 Iowa, 57; John Spry Lumber Co. 
 v. The C. H. Green, 76 Mich. 320; 
 Rogers v. Prattsville Manuf. Co., 81 
 Ala. 483. 
 
 2 Blake v. Clark, 6 GreenL 436; 
 Maddox v. Goddard, 15 Maine, 218; 
 Baker v. Bessey, 73 id. 472, 478; Sea- 
 vey v. Jones, 43 N. H. 441; Miller v. 
 Miller, 15 Pick. 57; Pettee v. Hawes, 
 13 Pick. 323; Preseott v. White, 21 
 Pick. 341; Crittenden v. Field, 8 Gray, 
 621; Hapgood v. Brown, 102 Mass. 
 453; Richardson v. Bigelow, 15 Gray, 
 146; Whittenton M. Co. v. Staples, 164 
 Mass. 319; Frink v. Branch, 16 Conn. 
 260, 273; Smith v. Moodus W. P. Co., 
 35 Conn. 392; Brugger v. Butler, 6 
 Oregon, 459; Jackson v. Trullinger, 9 
 id. 393; Bank of North America v. 
 Miller, 7 Sawyer, 163, 170; 6 Fed. Rep. 
 545; Gibson v. Brock way, 8 N. H. 465; 
 Wickersham v. Bills, 8 Ind. 387; But- 
 ler Hard Rubber Co. v. Newark, 61 
 N. J. L. 32; Jarvis v. Seele Milling 
 Co., 173 111. 192; Hadden v. Shoutz, 15 
 111. 581; Leggett v. Kerton, 2 Rich. 
 (S. C.) 156; Page v. Esty, 54 Maine, 
 319; Wall v. Cloud, 3 Humph. 181; 
 Neaderhouser v. State, 28 Ind. 257; 
 Scott ^'Michael, 129 Ind. 250; Sim- 
 
 mons v, Cloonan, 81 N. Y. 557; Spen- 
 cer v. Kilmer, 151 N. Y. 390; Dexter 
 S. Co. v. Frontenac Paper Co., 46 N. 
 Y. S. 363; Hill v. National Bank, 97 
 U. S. 450. See Swasey v. Brooks, SO 
 Vt. 692; 34 Vt. 451; Spaulding v. Ab- 
 bott, 55 N. H 423; Andrews v. Na- 
 tional F. Works, 76 Fed. Rep. 166; 
 Tucker v. Jones, 8 Mont. 225. A ripa- 
 rian proprietor is not prevented, be- 
 cause a river is navigable in fact, 
 from acquiring an interest in its 
 water-power which he can sell with 
 and as appurtenant to a parcel of his 
 land. Hamelin v. Bannerman, [1895] 
 A. G 237. 
 
 3 See Eastman v. St. Anthony Falls 
 W. P. Co., 43 Minn. 60. 
 
 * Wilcoxon v. McGehee, 12 111. 381. 
 
 5 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 v. Louw, 9 Johns. 298; Eshel- 
 man v. Snyder, 82 Ind. 498. An iron 
 water-pipe may constitute an arti- 
 ficial watercourse appurtenant to 
 re.al estate. Standart v. Round Val- 
 ley W. Co., 77 CaL 399. 
 
 « Miller v. Bristol, 12 Pick. 550. See 
 Mack v. Bensley, 74 Wis. 112; River- 
 dale Park Co. v. Westcott, 74 Md. 311. 
 
§ 305.] 
 
 CONTRACTS AND COVENANTS. 
 
 595 
 
 his house on the land. 1 The conveyance of "ferry ways," 
 which are permanent structures, includes the land under them 
 and used with them ; 2 and the grant of a " water ditch " will 
 include another water ditch by which it is fed and without 
 which it would be useless. 3 The term " mill-site " is sufficient 
 to pass the mill, the water-power immediately connected there- 
 with, and the right to use it by the erection of a dam ; 4 but 
 the grant of the " liberty " or " privilege " 5 of using the waters 
 of a stream, 6 or the conveyance of a right of way over land for 
 a mill-race, 7 is the grant of an easement only, and not of a fee. 
 The grant of a " dam " includes an easement in the mill-pond. 8 
 Land cannot pass as appurtenant to other land ; 9 but while a 
 conveyance of land transfers whatever is properly and lawfully 
 appurtenant to the subject of the grant, it does not convey an 
 
 lege to build mills in a river-bed, the 
 grantee cannot maintain trespass be- 
 fore actual entry in the exercise of 
 the privilege. Frink v. Hill, Stevens' 
 N. B. Digest, 131, 384 So, where A. 
 grants all his right, title and inter- 
 est in and to the " water privilege " 
 merely of a piece of land described, 
 it creates only an easement. Wilson 
 v. Sinclair, 3 Allen (N. B.), 343. 
 
 " Hadley v. Hadley Manuf. Co., 4 
 Gray, 140; Jamaica Pond Aqueduct 
 Corp. v. Chandler, 9 Allen, 159. 
 
 i Miller v. Vaughn, 8 Oregon, 333. 
 
 8 Maddox v. Goddard, 15 Maine, 
 218; Sabine v. Johnson, 35 Wis. 185; 
 Hutchinson v. Chicago Ry. Co., 37 
 Wis. 582, 604; Cross v. Pike, 59 Vt. 
 324; Green Bay Canal Co. v. Hewitt, 
 66 Wis. 461; Monmouth v. Plimpton, 
 77 Maine, 556. A levy upon a darn 
 and water-power connected there- 
 with is not a bar to a subsequent levy 
 on the bottom of the stream, the one 
 affecting the dominant, the other the 
 servient estate. Eagle Manuf. Co. v. 
 Van Leonard, 67 Ga. 648. 
 
 9 See supra, § 169; Whyte v. Build- 
 ers' League, 52 N. Y. S. 65. Easements 
 only, and not a fee, pass as appurte- 
 nant. Howard v. Britton, 67 N. H. 
 484. 
 
 'Williams v. Wadsworth, 51 Conn. 
 277. 
 
 2 Gerrish v. Gary, 120 Mass. 132. As 
 to wharves, see supra, § 304a. 
 
 3 Donnell v. Humphreys, 1 Mon. 518. 
 * Stackpole v. Curtis, 32 Maine, 383; 
 
 Curtis v. Smith, 35 Conn. 158; Wood 
 v. Sawin, 4 Gray, 322; Le Roy v. 
 Bradley, 4 Paige, 77; Tabor v. Brad- 
 ley, 18 N. Y. 113. But not a reservoir 
 dam above, belonging to the grantor, 
 but not within the boundaries named 
 in the deed. Brace v. Yale, 4 Allen, 
 303. See, however, Elliott v. Shep- 
 herd, 25 Maine, 371. The term "mill- 
 dam " does not include a dam built 
 at the outlet of a lake to raise the 
 waters for purposes of navigation, 
 although used to propel mills. Ari- 
 mond v. Green Bay Canal Co., 35 
 Wis. 41. A river bank, or a structure 
 built to support a break in such bank, 
 . is not a dam so as to render a person 
 who injures it liable under a statute 
 which provides a penalty against 
 those who injure dams, unless such 
 injury draws off the water of a mill- 
 pond. People v. Gage, 23 Mich. 93. 
 See Burnham v. Kempton, 44 N. H. 
 78; Dyer v. Cranston Print Works 
 Co., 17 R. I. 774; Colwell v. May's 
 Landing Co., 4 C. E. Green, 245. 
 5 Under a crown grant of the privi- 
 
596 THE LAW OF WATEKS. [Ch. X. 
 
 •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. 1 "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 grantee did not acquire the right of flood- 
 ing the grantor's land, it not appearing that the grantor knew 
 of the existence of the mill or dam when the deed was exe- 
 cuted. 3 
 
 § 306. Secondary easements. — The grant of water ease- 
 ments carries with them by implication, as secondary or sub- 
 sidiary easements, everything that is beneficially necessary or 
 incident to the grant, whether mentioned or not as " privi- 
 leges," " appurtenances," or the like. 3 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 
 held that a grant of an easement may be implied under cir- 
 
 1 Green v. Collins, 86 N. Y. 246; 20 Rackley u Sprague, 17 Maine, 281; 
 Hun, 474; Adams v. Conover, 87 N. Y. Maddox v. Goddard, 15 id. 218; Wy- 
 422; 22 Hun, 424; Brace v. Yale, 4 man v. Farrar, 35 id. 64; Hammond 
 Allen, 393; Illinois Central R. Co. v. v. Woodman, 41 id. 177; Pickering v. 
 Wren, 43 I1L 77. A grant of a part Stapler, 5 Serg. & R 107; Valley Pulp 
 of land conveys the easement of a & Paper Co. v. West, 58 Wis. 599; 
 private sewer as appurtenant. Fitz- Diffendal v. Virginia Ry. Co., 86 Va. 
 patrick v. Mik, 24 Mo. App. 435. 459; Swartz v. Swartz, 4 Penn. St. 
 
 2 Tabor v. Bradley, 18 N, Y. 109. 353. That a grant of land includes 
 
 3 Pomfret v. Ricroft, 1 Wms. Saund. rents for an easement to flow the 
 321, 323, and note 6; 1 Sid. 429; Hodg- granted premises, see Pollock v. 
 son v. Field, 7 East, 613, 622; Hunch- Cronise, 12 How. Pr. 363. There is 
 liffe v. Earl of Kinnoul, 5 Bing. N. C. no implied grant of the right to con- 
 1; Osborn v. Wise, 7 C. & P. 761; nect with a city sewer underacon- 
 Dodd v. Burchell, 1 H. & C. 118; veyance by metes and bounds. Bum- 
 United States v. Appleton, 1 Sumner, stead v. Cook, 169 Mass. 410. An 
 491, 501 ; Grant v. Chase, 17 Mass. 443, easement in the nature of an ease- 
 448; Hazard v. Robinson, 3 Mason, ment of necessity need not be ex- 
 272, 276; Whitney v. Olney, 3 id. 280; pressly reserved in a conveyance of 
 Kent v. Waite, 10 Pick. 138; Oliver v. the property affected thereby. Shu- 
 Dickinson, 100 Mass. 114, 117; Hollen- brook v. Tufnell, 46 L. T. 886; infra, 
 beck v. McDonald, 112 id. 247, 250; § 362. 
 
§ 307.] CONTRACTS AND COVENANTS. 597 
 
 cumstances where there would be none of a reserved ease- 
 ment. 1 But there must be a reasonable necessity for such an 
 implication, 2 mere convenience not being enough, 3 and the use 
 must be reasonable. 4 "What will pass as impliedly appurte- 
 nant to the easement granted is a question for the jury. 5 Of 
 two constructions that will be selected which gives to such 
 appurtenant privileges the more convenient and reasonable 
 mode of enjoyment, 6 or which accords with the practical con- 
 struction given and acted on by the parties. 7 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. 8 The 
 use of such an appurtenant right Will vary 'as the necessity 
 varies, 9 and when the necessity for such an implied easement 
 ceases,- the right to its enjoyment also ends. 10 The purchaser 
 of the land over which a visible drain is maintained under au- 
 thority from his grantor, takes subject to the servitude thus 
 created. 11 
 
 §307. Same. — The grant of a "mill-privilege" or "privi- 
 lege of a mill " will include the land on which the mill and 
 its appendages stand, and the land and water actually and 
 commonly used therewith and necessary to its enjoyment, 12 
 including, as well the water in the raceway, 13 as a right to re- 
 
 1 Johnson v. Jordan, 2 Met. 234; son v. Burroughs, 90 Wis. 316; Ben- 
 post, § 354. nett v. Kennebec Fibre Co., 87 Maine, 
 
 2 Brigham. v. Smith, 4 Gray, 297; 162. 
 
 Leonard v. Leonard, 2 Allen, 543; ? Dexter S. Co. v. Frontenac P. Co., 
 
 Pettingill v. Porter, 8 id. 1; Parker v. 46 N. Y. S. 363; Dexter v. Jefferson 
 
 Bennett, 11 id. 388; Oliver v. Pit- P. Co., 50 id. 557. 
 
 man, 98 Mass. 46. 8 Holmes v. Seely, 19 Wend. 507. 
 
 'Nichols v. Luce, 24 Pick. 102; 9 Seeley v. Bishop, 19 Conn. 128. 
 
 White v. Leeson, 5 H. & N. 53; post, 10 Holmes v. Goring, 2 Bing. 76; 
 
 g 362. Viall v. Carpenter, 14 Gray, 126; Col- 
 
 «Tomlin v. Fuller, 1 Ventr. 48. lins v. Prentice, 15 Conn. 39, 423 ^ 
 Under an express grant of a certain Pierce v. Selleck, 18 Conn. 321. 
 quantity of water, the grantee will n Kelly v. Dunning, 43 N. J. Eq. 62. 
 not be restrained from wasting a part ,2 Moore v. Fletcher, 16 Maine, 63. 
 of the granted quantity. Home El. Parol evidence is admissible to show- 
 Light Co. v. Globe Tissue Paper Co., whether an ambiguous paper, which, 
 146 Ind. 673, 680. recites the purchase of a " mill-seat,"' 
 
 5 Hall v. Benner, 1 Penn. 402. includes the land under the mill- 
 
 6 Morris v. Edginton, 3 Taunt. 24; pond. Towner v. Thompson, 82 Ga. 
 Dand v. Kingscote, 6 M. & W. 174; 740. 
 
 Tinker v. Forbes, 136 III 221; Glea- 13 Wetmore v. White, 2 Caines' Cas> 
 
598 THE LAW OF WATERS. [Ch. X. 
 
 ceive or discharge the water from the mill by an existing race- 
 way through other land of the grantor. 1 Mere distance be- 
 tween the principal thing and the incident to be enjoyed is 
 immaterial ; 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. 2 A conveyance of a 
 water right includes the necessary use of land for the founda- 
 tion of a " dam ; " 3 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 equiv- 
 alent to "flume; " 4 and if of "mills and dam," it will include 
 the flowage of the grantor's land as then flowed, 5 or as it must 
 inevitably be flowed by their fair and proper use, 6 as by a 
 tightening or necessary raising of the dam to secure a suffi- 
 cient head. 7 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, was assigned to one of sev- 
 eral 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 fur- 
 ther easement theretofore used with it or necessary to its en- 
 joyment, 9 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 
 
 87; Strickler v. Todd, 10 Serg. & R. 14 Ohio St. 10; Ely v. Stewart, 11 
 
 63; Morgan v. Mason, 20 Ohio, 401, Md. 408. 
 
 a case of a judgment sale. That an 2 Perrin v. Garfield, 47 Vt. 304. 
 
 injury to a raceway is an injury to 3 Conwell v. Brookhart, 4 B. Mon. 
 
 the mill, see Butz v. Ihrie, 1 Rawle, 580, 584. 
 
 218. In those States where the ao- 4 Kennedy v. Scovil, 12 Conn. 317. 
 knowledgment and record of a town 5 Preble v. Reed, 17 Maine, 169; 
 or city plat amounts to a dedication Hills v. Dey, 14 Wend. 204; Kestler 
 of the streets platted, a reservation, v. Verble, 7 Jones (N. C), 185. See 
 in such plat, of the right to construct Safford v. Gaysville Manuf. Co. (71 
 and use a mill-race across one of Vt.), 42 Atl. Rep. 615. 
 such streets gives to the land-owner c Butler v. Huse, 63 Maine, 447; 
 only an easement in the street. Albee v. Hayden, 25 Minn. 267; Hot- 
 Waterloo v. Union Mill Co., 59 Iowa, tell v. Farmers', etc. Protective Ass'n, 
 437; ante, § 260. 25 Col. 67. 
 
 1 New Ipswich Woolen Factory v. 7 Brugger v. Butler, 6 Oregon, 459. 
 
 Batchelder, 3 N. H. 190; Morgan v. 8 Morse v. Marshall, 11 Allen, 229. 
 
 Mason, 22 Ohio, 401; Elliott v. Sallee, » Blake v. Clark, 6 GreenL 436. 
 
§§ 308, 309.] CONTRACTS AND COVENANTS. 599 
 
 in connection with it covered a portion of a part allotted to 
 another. 1 
 
 § 308. Same. — If a "saw-mill" is conveyed "with a con- 
 venient 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, 2 and a right to the use of a mill- 
 pond carries the privilege to float logs in it for mill use. 3 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. 4 Where a lease of a mill was granted to one 
 who was described as a "bleacher ".and the premises were de- 
 scribed 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 dis- 
 charge refuse from his works into the stream in the same man- 
 ner 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 making. 5 If a 
 "right of drainage" is granted, the right of passing house- 
 sewage through the drain is not granted. 6 
 
 § 309. Same. — A grant of a right to use water as "accus- 
 tomed to do " will include all of that so used, whether such cus- 
 tomary use has ripened into a strict right or not ; 7 but a custom 
 of the owner of a lot to vary the course of a stream upon it to 
 meet the emergencies of his business of brick-making, but with- 
 out at any time preventing its traversing the whole lot, 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 wholly divert it from flowing through the 
 lower portion of the lot. 8 A conveyance of one of two an- 
 
 !Kilgour v. Ashcom, 5 H. & John. 5 Hall v. Lund, 1 H. & C. 676. 
 
 83. eWetmore v. Fiske. 15 E. I. 354. 
 
 2 Thompson v. Androscoggin See Munsion v. Eeid, 46 Hun, 399. 
 
 Bridge, 5 Greenl. 62; Thompson v. 7 Avon Manuf. Co. v. Andrews, 30 
 
 Banks, 43 N. H. 540. Conn. 476. Of. Hoskins v. Brawn, 76 
 
 3 Beals v. Stewart, 6 Lans. 408. Maine, 68 (boom privilege); Hogg v. 
 
 i Dyer v. Depui, 5 Wharton, 584. Bailey, 41 W. N. C. (Perm.) 168. 
 
 Mining ditches do not pass under a 8 Macomber v. Godfrey, 108 Mass. 
 
 jsheriflf's deed without express men- 219. 
 tion. White v. Barlow, 72 Ga. 887. 
 
600 THE LAW OF WATEES. [Ch. X. 
 
 cient mills, eo nomine, which comprise the entire mill privileges 
 of a stream, carries with it such a proportion of the whole 
 right in the stream as the water used to drive the mill con- 
 veyed 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. 1 
 
 § 310. Reservations — Exceptions. — A grantor may with- 
 hold easements in water privileges, either by way of reserva- 
 tion or exception, 2 which become binding upon the grantee 
 upon his acceptance of the deed, 3 cover what is excluded from 
 the grant, 4 and, in the case of an exception, enure to the bene- 
 fit of his heirs and assigns without words of inheritance, 5 unless 
 it is plain that an exception in favor of the grantor only is 
 intended. 6 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 
 conveyance, 7 the words are often used indiscriminately, and 
 effect will be given to the intention of the parties irrespective 
 of the words employed. 8 Thus, where a conveyance to A. was 
 
 1 Crittenden v. Field, 8 Gray, 621, Keeler v. Wood, 30 Vt 243; Wheeler 
 627. v. Brown, 46 Penn. St. 197. See Mem- 
 
 2 Wade v. Howard, 6 Pick. 492; phis & St. Louis Packet Co. v. Grey, 
 Knox v. Silloway, 10 Maine, 201; Co- 9 Bush, 137; New York v. New York 
 ohecoManuf. Co. uWhittier, 10 N. H. Cent, R Co., 23 N. Y. S. 562. 
 
 305; Bo wen v. Conner, 6 Cush. 132, 6 Jamaica Pond Aqueduct Co. v. 
 
 136; Barnes v. Lloyd, 112 Mass. 224, Chandler, 9 Allen, 159, 170, citing 
 
 232; Peck v. Conway, 119 Mass. 546, Shep. Touchstone, 100; Curtis v. 
 
 549; Blood v. Millard, 17 Mass. 65; Gardner, 13 Met. 461. See Buffum v. 
 
 Pennsylvania E. Co.'s Appeal, 125 Hutchinson, 1 Allen, 58. 
 
 Penn. St. 189; Edgett v. Douglass, 144 7 Case v. Haight, 3 Wend. 632; 
 
 id- 95. Winthrop v. Fairbanks, 41 Maine, 
 
 3 Newell v. Hill, 2 Met. 180; Vick- 307; Garland v. Hodsdon, 46 id. 511. 
 erie v. Buswell, 13 Maine, 289; Emer- scocheco Manuf. Co. v. Whittier, 
 son v. Mooney, 50 N. H. 315. 10 N. H. 305; Cutter v. Tufts, 3 Pick. 
 
 4 GreenIeaf v. Birth, 6 Pet. 302, 310; 272; Bowen v. Conner, 6 Cush. 132, 
 
 Mower v. Hutchinson, 9 Vt. 242. 135; Hill v. Cutting, 107 Mass. 597; 
 
 5 Winthrop v. Fairbanks, 41 Maine, Bowman v. Wathen, 3 McLean, 366; 
 
 307; Ring v. Walker, 87 id. 550; Emer- Haggerty v. Lee, 50 N. J. Eq. 464; 54 
 
 son v. Mooney, 50 N. H. 315; Claflin N. J. L. 580; Smith v. Cornell Uni., 
 
 v. Boston & A. R. Co., 157 Mass. 48D; 45 N. Y. S. 640; Mount v. Hambley,. 
 
§ 311.J CONTRACTS AND COVENANTS. 601 
 
 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, " reserv- 
 ing " all the rights of A., his heirs and assigns therein, was- 
 held to create an exception, and not a reservation. 1 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. 2 In the case of a reser- 
 vation, as of a mill-site, the whole premises vest in the grantee 
 until the grantor or his assigns exercise the right reserved, 3 and 
 a power of revocation of an easement, reserved in a demise, is 
 valid and may be exercised partially as well as wholly. 4 By 
 accepting a deed containing a reservation and covenant the 
 grantee may become a covenantor. 5 A clause in a deed of con- 
 veyance reserving an easement operates as a grant of a newly 
 created easement, and the reservation is to be practically re- 
 garded as a counter grant by the grantee. 6 
 
 § 311. Same — Certainty. — An exception or reservation of a 
 water right will be 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 
 tannery at the time the deed was given, and not its capacity. 8 
 
 50 id. 813; Knowlton v. New York, 5 Cooper v. Louanstein, 37 N. J. Eq. 
 
 etc. R. Co. (72 Conn.), 44 Atl. Rep. 284, 308; Pope v. Bell, id. 495. So of 
 
 8; Price v. La wson, 74 Md. 499; Miller a parol reservation accepted and 
 
 v. Shenandoah Pulp Co., 38 W. Va. acted on. Ague v. Seitsinger, 85 
 
 558; Witt v. Jefferson (Ky.), 18 S. W. Iowa, 305. L 
 
 Rep. 229. Hurd v. Curtis, 7 Met. 94, « Ibid. ; Goold v. Great Western 
 
 held the words " except the reserve " Deep Coal Co., 2 De G. J. & S. 600. 
 to be equivalent to " except and re- 7 Case v. Haight, 3 Wend. 632; 
 
 serve." ■ Howard v. Wadsworth, 3 Greenl. 471 ; 
 
 1 Stockwell v. Couillard, 129 Mass. Bryan v. Idaho Quartz M. Co., 73 Cal. 
 231; Smith v. Furbish, 68 N. H. 123. 249; Brigham v. Ross, 55 Conn. 373; 
 
 2 Barnes v. Burt, 38 Conn. 541. Mack v. Bensley, 63 Wis. 80; Emery 
 3 Dygert v. Matthews, 11 Wend. 35; v. Three Rivers, 78 Mich. 438. 
 
 Newmarket Manuf. Co. v. Pendergast, 8 Wyman v. Farrar, 35 Maine, 64. 
 
 '24N. H. 54. See Thompson v. Greg- See Terry v. Smith, 47 Hun, 333; 
 
 oiy, 4 John. 81; State v. Suttle, 115 Groat v. Moak, 26 id. 380; Watson v, 
 
 N. C. 784. Bartlett, 62 N. H. 447; Moore v. Wil- 
 
 4 Ex parte Miller, 2 Hill, 418. der, 66 Vt. 33. 
 
602 THE LAW OF WATERS. [Gh. X. 
 
 If an exception does not clearly designate the particular por- 
 tion meant of the property conveyed, it fails for uncertainty. 1 
 In a grant of land "excepting one acre and one-half acre, 
 which is reserved for the use and flowing of water for the 
 mill," the exception was decided to be void for uncertainty. 2 
 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. 3 "Where the question was whether 
 a certain creek or cove was excluded or included in the prem- 
 ises conveyed by deed, and the evidence made either hypoth- 
 esis possible, a reservation in the deed of the use of the cove 
 for certain purposes was held to be strong prima facie evi- 
 dence of its inclusion. 4 
 
 §312. Same — Must be unambiguous.— An exception or 
 reservation of something not embraced in the premises con- 
 veyed would be simply void, there being nothing for it to 
 operate upon, 5 and 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. 6 An exception or reservation of a mill in a grant 
 of land includes not only the land beneath it, but whatever is 
 necessary to its beneficial use as an appurtenant water privi- 
 lege, 7 land sufficient for a mill-pond, 8 and a right of flowing 
 land so far as may be necessary, 9 words in a grant that are 
 
 *Co. Litt. 142a; Hull v. Leonard, Cutter v. Tufts, 3 Pick. 272; Sprague 
 
 1 Pick. 31; Wusthoff v. Dracourt, 3 v. Snow, 4 Pick. 54; Jewett v. Picker, 
 
 Watts, 240. A deed from A. to B. 68 Maine, 377; Wells v, Garbutt, 132 
 
 with the words "C.'s mill-seat ex- N. Y. 430; Denton v. Leddell, 23 N. J. 
 
 cepted " conveys no title to C. beyond Eq. 64. 
 
 an easement therein for a mill-site, a " Allen v. Scott, 21 Pick. 25; Ham- 
 dam, and a flowage right. Everett mond v. Woodman, 41 Maine, 177, 
 v. Dockery, 7 Jones (N. C), 290. See 203; Green v. Goff, 153 111. 534. 
 Memphis & St. Louis Packet Co. v. 8 Jackson v. Vermilyea, 6 Cowen, 
 Grey, 9 Busli, 137. 677. In Gregg v. Birdsall, 53 Barb. 
 
 2 Darling v. Crowell, 6 N. H. 421. 402; 35 How. Pr. 345, where there 
 
 3 Thompson v. Gregory, 4 Johns. 81. was a reservation for sawing lumber 
 
 4 Small v. Wright, 74 Maine, 438. and of flowage for that purpose, the 
 5 Hurd v. Curtis, 7 Met. 94, 110; latter right was held co-extensive 
 
 Cocheco Manuf. Co. v. Whittier, 10 with the former. 
 N. H. 305. 9Pettee v. Hawes, 13 Pick. 323; 
 
 6 Lambert v. Bennet, 3 Smith, 34; Vickerie v. Buswell, 13 Maine, 289. 
 
§ 313.] CONTRACTS AND COVENANTS. 603 
 
 effective to pass being equally effective to except. 1 If the ex- 
 ception is for so long " as the said grantee occupies said privi- 
 lege with mills," the existence of the mills marks the limit. 2 
 And if the reservation be of the right of mining coal and 
 sinking air-shafts, the grantor is entitled to place his buildings 
 on the surface, to make a pond on the surface for the collec- 
 tion of water to run his machinery, and to use a part of the 
 surface as a dump. 3 A reservation of " all watercourses suit- 
 able for the erection of mills " gives a right to all the mill-sites 
 on the granted land, whenever the grantor chooses to make a 
 location, 4 for all the purposes that he may choose, 5 including, 
 however, natural, not artificial, mill-sites. 6 A reservation to a 
 grantor, and to his heirs and assigns, of a certain water privi- 
 lege for the benefit of his saw-mill, cannot be availed of by a 
 grantee of other land of his, but not of the saw-mill, for. any 
 purpose. 7 If a reference to breast-wheels in the reservation of 
 the right to draw water from a pond is intended merely to de- 
 scribe the quantity of water, the breast-wheels may be removed 
 and turbin-wheels substituted therefor. 8 
 
 § 313. Same — Unity of possession. — "When the dominant 
 estate and servient estate become united in the person of the 
 same owner, easements in and to the use of waters resting upon 
 the latter in favor of the former become extinguished. 9 A 
 natural watercourse, however, which is inseparably annexed 
 to the soil, and passes with it, not as an easement or appurte- 
 nance, but as parcel of it, is never extinguished or suspended 
 by such unity of possession. 10 If, however, the owner, after 
 
 1 Blake v. Madigan, 65 Maine, 523; 9 Lady Brown's case, cited in Sury 
 
 Cox v. McClure, 71 Conn. 729. v. Pigot, Popham, 166, 170; Palmer, 
 
 2 Moulton v. Trafton, 64 Maine, 218. 444, 446; Canham v. Fisk, 2 Cr. & J. 
 
 See Esty v. Currier, 98 Mass. 500; 126; Thomas v. Thomas, 2 Cr. M. & 
 
 Linthicum v. Ray, 9 Wall. 241; R 34; Ivimey v. Stoker, L. R 1 Ch. 
 
 Shelby v. Chicago, etc. R. Co., 143 396, 407; Ritger v. Parker, 8 Cush. 
 
 111. 385. 145 ; Atwater v. Bodfish, 11 Gray, 151 ; 
 
 3 Wardwell v. Watson, 93 Mo. 107. Stevens v. Dennett, 51 N. H. 324, 330; 
 
 4 Russell v. Scott, 9 Cowen, 279; Kieffer v. Imhofl, 26 Penn. St. 438, 
 Butz v. Ihrie, 1 Rawle, 218. 443; Pearce v. McGlenaghan, 5 Rich. 
 
 5 French v. Car hart, 1 Comst. 96. (S. C.) 178; McAllister v. Devane, 76 
 * Armstrong v. Masten, 11 Johns. N. C. 57. 
 
 189. 10 Woolrych, Waters, 234; Bui. N. P. 
 
 7 Judd v. Wells, 12 Met. 504. 74; Hazard v. Robinson, 3 Mason. 272; 
 
 8 Coburn v. Middlesex Co., 142 Mass. Johnson v. Jordan, 2 Met. 239 ; Tucker 
 264. . v. Jewett, 11 Conn. 311; ante, § 204, 
 
604 THE LAW OF WATEES. [Ch. X. 
 
 unity of possession, does not interrupt existing easements in 
 the use or enjoyment of water, a subsequent grant by him of 
 either estate, or any portion of either, will carry therewith all 
 the water privileges and burdens existing at the time of the 
 conveyance. 1 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 two 
 feet in height, and that the upper mill had a right to be kept 
 free from obstruction. 2 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. 3 
 
 § 314. Same — Necessary or continuous oasements. — Ease- 
 ments which are necessary to the enjoyment of an estate, such 
 as gutters and drains, are called continuous easements. They 
 do not, like discontinuous easements, 4 come to an end by 
 mere unity of possession, but will revive on severance, 5 like 
 ways of necessity, 6 because thej^ are subsisting easements, pro- 
 vided the necessity for them has not ceased, 7 unless the owner 
 during the unity has by some positive act shown his desire to- 
 no longer enjoy them. 8 The unity of title and possession, such 
 
 1 Nicholas v. Chamberlain, Cro. Jac. Pond Aqueduct v. Chandler, 9 Allen, 
 121; Morris v. Edgmgton, 3 Taunt. 159, 164; Durel v. Boisblanc, 1 La. 
 24; Pyer v. Carter, 1 H. & N. 916; Ann. 407. 
 
 Elliott v. Sallee, 14 Ohio St. 10; Grant 5 Sury v. Pigot, Popham, 166; Pal- 
 
 v. Chase, 17 Mass. 443; Philbrick v. mer, 444; Pheysey v. Vicary, 16 M. & 
 
 Ewing, 97 Mass. 133; Seymour v. W. 484; Hazard v. Robinson, 3 Mason, 
 
 Sage, 13 N. J. Ea. 439; Perry v. Par- 272; Lampman v. Milks, 21 N. Y. 
 
 ker, 1 Woodb. & M. 280; Manning v. 505; Larsen v. Peterson. 53 N. J. Eq. 
 
 Smith, 6 Conn. 289; Dunklee v. Wil- 88. 
 
 ton R. Co., 24 N. H. 489. See Cary v. 6 Clark v. Cogge, Cro. Jac. 170; Jor- 
 
 Daniels, 8 Met, 466. den v. Atwood, Owen, 121; Holmes 
 
 2 Hazard v. Robinson, 3 Mason, 272. v. Goring, 2 Bing. 83. See Proctor v. 
 See Brace v. Yale, 4 Allen, 393. See Hodgson, 10 Exch. 824; Kingsley v. 
 also Seeley v. Bridges', 13 Neb. 547. Gouldsborough Land Impr. Co., 86 
 
 3 Barrett v. Parsons, 10 Cush. 367; Maine, 279. 
 
 Haskins v. Haskins, 9 Gray, 390; 7 Viall v. Carpenter, 14 Gray, 126; 
 
 Bloom v. West, 3 Col. App. 212. Collins to. Prentice, 15 Conn. 39, 423; 
 
 4 Worthington v. Gimson, 2 El. & Pierce v. Selleck, 18 Conn. 321; Seeley 
 El. 618; Pearson v. Spencer, 1 B. & v. Bishop, 19 Conn. 128. 
 
 S. 571; 3 B. & S. 761. See Jamaica » Copie v. I. de B. 11 Hen. 7, 25; 
 
§ 315.] OONTBACTS AND COVENANTS. 605 
 
 as will extinguish, and not merely suspend, an easement in 
 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 term of five hundred years, one of 
 which had an easement for drip in the bther ; ' the vesting of 
 two estates in the same person as mortgagee without foreclos- 
 ure, 2 and the holding an estate in a dock in fee by a defective 
 title, and an easement in the same by a valid title, 3 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, 
 there is not such unity of possession as will extinguish in whole 
 or in part the water easements of the tenants in common. 4 If 
 A. enjoys adversely a water easement 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 ease- 
 ment by user, by reason of the former unity of possession in 
 himself. 5 An easement in a watercourse may also be extin- 
 guished by operation of law, as by filling it up and laying out 
 over it a highway. 6 
 
 §315. Partition. — 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 dif- 
 ficulty, hardship, or inconvenience resulting from so doing. 7 
 This partition need not necessarily be by metes and bounds, 
 
 Robins v. Barnes, Hob. 131 ; Pyer v. 446; Wright v. Freeman, 5 H. & John. 
 
 Carter, 1 H. & N. 916, 921. See Dodd 467. 
 
 v. Burohell, 1 H. & C. 113. 7 Hanson v. Willard, 12 Maine, 142; 
 
 1 Thomas v. Thomas, 2 C, M. & R. Smith v. Smith, 10 Paige, 470; Morrill 
 84; James v. Plant, 4 A. & E. 749. See v. Morrill, 5 N. H. 134; Hamilton v. 
 Kavanagh v. Coal Mining Co., 14 Ir. Farrar, 128 Mass. 492; Austin v. Rut- 
 C. L. 82. ' land R. Co., 17 Fed. Rep. 466. Doan 
 
 2 Ritger v. Parker, 8 Cush. 145. v. lietcalf , 46 Iowa, 120, seems to in- 
 
 3 Tyler v. Hammond, 11 Pick. 193. timate that partition is confined to 
 
 4 Bliss v. Rice, 17 Pick. 23; Atlanta cases where "practicable." Undi- 
 Mill v. Mason, 120 Mass. 244, 251. vided interests in a ferry, including 
 
 5 Manning v. Smith, 8 Conn. 289. both ferry and landings, may be par- 
 
 6 Hancock v. Wentworth, 5 Met. titioned. Rohn v. Harris, 130 I1L 525. 
 
THE LAW OF WATERS. [Ch. X. 
 
 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 
 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. 1 In a partition 
 of land lying on each side of the watercourse between tenants 
 in common, by assigning the land on either side to each re- 
 spectively, the dividing line between the two tracts will be 
 the thread of the stream. 2 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. 3 An ancient 
 partition into proportionate parts of a water privilege, origi- 
 nally owned by one proprietor, but for a long series of years 
 occupied by different persons in severalty, and transferred from 
 time to time between themselves by deed, levy, or descent, 
 will be presumed, as it has been used, excepting as to what has 
 been disposed of by common consent.* 
 
 § 316. Dividing estates. — In a partition one part of the 
 common premises may be assigned to a party charged with an 
 easement for the benefit of another party, to which another 
 portion was assigned by metes and bounds, 5 as of flowage as 
 the wafer had been wont to flow back before partition. 6 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 by a compensation to be paid by one party to another 
 therefor. 7 "Water, however, conducted in ditches for mining 
 
 1 Hanson v. Willard, 12 Maine, 142; 2 King v. King, 7 Mass. 496. 
 
 Warren v. Westbrook M. Co., 88 id. 3 Miller v. Miller, 13 Pick. 237. 
 
 58; Smith v. Smith, 10 Paige, 470; 4 Munroe v. Gates, 48 Maine, 463. 
 
 Morrill v. Morrill, 5 N. H. 134; Cooper See Clark v. Debaugh, 67 Md. 430; 
 
 v. Cedar Rapids W. P. Co., 42 Iowa, Forrest Milling Co. v. Cedar Falls 
 
 398. See Kane v. Parker, 4 Wis. 123, Mill Co., 103 Iowa, 619. 
 
 131; Spensley v. Janesville Cotton 5 Smith v. Smith, 10 Paige, 470, 479; 
 
 Manuf. Co., 62 Wis. 549; Mulberger Martin t>. Martin, 95 Va. 26. 
 
 v. Koenig, 62 Wis. 558; Janesville 6 Hills u Dey, 14 Wend. 204. 
 
 Cotton Mills v. Ford, 55 Wis. 197; 82 Tg m ith v. Smith, 10 Paige, 470; 
 
 Wis. 416; United N. J. R. Co. v. Lpng Cooper v. Cedar Rapids W. P. Co., 42 
 
 Dock Co., 38 N. J. Eq. 142. Iowa, 398. 
 
§ 317.] CONTRACTS AND COVENANTS. COT 
 
 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 permanently end the disputes 
 of such tenants in common. 1 Equity will intervene to prevent 
 the removal of a dam and the building a new one higher up 
 the stream by a grantee under a deed of partition of a water 
 privilege, 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," which 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 expense. 2 Equity will not order a sale, under 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, the one half to be used with each mill,, 
 in the hands of different proprietors. 3 
 
 § 317. Pipes and aqueducts. — "When the privilege is granted 1 
 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. 4 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 increasing its head by a dam, but if the right is 
 granted to draw water from any and all springs 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 en- 
 titled to take all the water from the springs which is in good 
 
 i McGillivray v. Evans, 27 Cal. 92 
 Glassell v. Verdugo, 108 CaL 503 
 McDaniel v. "Walker, 46 S. C. 43 
 
 mining and other useful purposes," 
 was held to sufficiently allege that 
 the property can be partitioned only 
 
 Lorenz v. Jacobs, 59 Oal. 262. In the by a sale and distribution, 
 
 last case a statement that the par- 2Matteson v. Wilbur, 11 R I. 545. 
 
 ties as tenants in common held and 3 Smith v. Smith, 10 Paige, 470. 
 
 possessed " a certain water ditch, run- 4 Bissell v. Grant, 35 Conn. 288. See 
 
 ning from and taking water from " a Paschall v. Passmore, 15 Penn. St. 
 
 creek and " conducting the water of 295; Arnold v. Farr, 61 Vt. 444; Paine 
 
 said creek " to a certain point " for v. Chandler, 5 N. Y. S. 739. 
 
608 THE LAW OF WATEES. [Ch. X. 
 
 faith required for use on the granted premises, and to make 
 such reasonable arrangements as are really necessary to enable 
 him to use all the water. 1 Where in a deed of land with 
 "one hundred and fifty inches of water 2 for propelling machin- 
 ery," to be furnished by the grantor on the premises conveyed 
 in a flume or race and to be taken 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 opeuings than would be discharged at a 
 point as low as the surface of the river " at said premises by 
 an aperture of one 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 and fifty square inches 
 at the side of the main race or flume as low as the surface of 
 the river. 3 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 occupy- 
 ing 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. 4 
 
 § 318. Construction. — Grants of the right to use Water are 
 to be so construed as to substantially secure the rights which 
 appear to have been contemplated by the parties, and the lit" 
 eral reading of the conveyance will not be followed if a more 
 liberal construction does not impair the rights of the other 
 party. 5 If the grant of a water-power leaves it doubtful 
 whether the kind of mill mentioned indicates the quantity of 
 
 Stevens v. Wiggin, 56 N. H. 308; 'Atlanta Mills v. Mason, 120 Mass. 
 
 Walker v. Stewart, 18 Law Rep. 396. 244; Merrill v. Calkins, 74 N. Y. 1; 10 
 
 See Zimmler v. San Louis W. Co., 57 Hun, 495 ; Esty v. Baker, 50 Maine, 
 
 Cal. 221. 325 ; Salado College v. Davis, 47 Texas, 
 
 2 As to the meaning of "inches of 131; Madore's Appeal, 129 Penn. St. 
 
 water," see, also, Janesville Cotton 15; Warren Manuf. Co. v. Hoffman, 
 
 Mills v. Ford, 82 Wis. 416; Jackson 62 Md. 165; Hathaway v. Mitchell, 34 
 
 M. Co. v. Chandos, id. 437. Mich. 164; Doan v. Metcalf, 46 Iowa, 
 
 3 Blanchardu. Doering, 21 Wis. 477; 120. If the owner of the whole 
 
 23 Wis. 200; Clyne v. Benicia W. Co., length of a river grants "a certain 
 
 100 CaL 310; Norris v. Showerman, part " of it, he conveys a part of the 
 
 Walker Ch. 206; 2 Dougl. (Mich.) 16. whole length. Bullen v. Eunnels, 2 
 
 * Noyes v. Hemphill, 58 N. H. 536; N. H 255. 
 27 Alb. L. Jour. 157; French v. 
 Marstin, 24 N. H 440. 
 
§ 318.] CONTRACTS AND COVENANTS. 609 
 
 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 favor- 
 able to the grantee without being more onerous to the 
 grantor. 1 "When it appears that the granted privilege is a 
 given quantity of power, not limited to a specific purpose, it 
 may be apportioned to any purpose whatever, and by any per- 
 son to whom it may be assigned' or transferred. 2 And even if 
 the grant is limited, it may carry ancillary easements neces- 
 sary to the full enjoyment of what is granted. 3 Thus a deed 
 of a mill-site, with the appurtenant rights of constructing a 
 canal through the grantor's land and of drawing water from 
 a pond for the use of a mill on the land conveyed, carries by 
 implication the right to maintain the pond, although the deed 
 expressly provides that no rights,, privileges, easements, or ap- 
 purtenances shall pass by implication. 4 So the granted right 
 to dig a canal through another's land confers the right to de- 
 posit the excavated soil upon the canal bank. 5 A grant of the 
 right to take water from a river anywhere on the grantor's 
 land, and to cut and maintain a canal capable of carrying suf- 
 ficient water for the grantee's needs, authorizes the grantee to 
 deepen, widen or prolong the ditch to obtain water when made 
 necessary by a change in the river bed or any similar cause. 6 
 If, under a grant of an unlimited right to flow, at the first set- 
 
 1 Ashley v. Pease, 18 Pick. 275; v. Swift, 89 Mich. 503; Salado College 
 
 Pratt v. Lamson, 2 Allen, 281 ; Wame- v. Davis, 47 Texas, 131. 
 
 sit Power Co. v. Sterling Mills, 158 2 Ibid. ; Tourtellotw. Phelps, 4 Gray, 
 
 Mass. 435; Groat v. Moak, 94 N. Y. 374; Casler v. Shipman, 35 N. Y. 533; 
 
 115; Hall v. Sterling Iron Co., 148 Comstock v. Johnson, 46 N. Y. 615; 
 
 N. Y. 432; Hart well v. Mutual Life Drummond v. Hinckley, 30 Maine, 
 
 Ins. Co., 50 Hun, 497; Palmer v. Angel, 433; Deshon v. Porter, 38 id. 289; Dow 
 
 23 N. Y. S. 397; Johnston v. Hyde, 33 v. Edes, 58 N. H. 193; Clement v. 
 
 N. J. Eq. 632; Warner v. Cushman, Gould, ■ 61 Vt. 573; Hathaway v. 
 
 •82 Maine, 168; Carlton Mills Co. v. Mitchell, 34 Mich. 164; Rockwell v. 
 
 Silver, id. 215; Covel v. Hart, 56 id. Highland Ditch Co., 1 Col. App. 396. 
 
 518; Hines v. Robinson, 57 id. 324; 3 Hansen v. Farmers' Co-op. Cream- 
 
 Kaleri'. Beaman, 49 id. 207; Garland ery, 106 Iowa, 167; Gravel v. Little 
 
 v. Hodson, 46 id. 511; Dyer v. Crans- Falls Impr. Co., 74 Minn. 416. 
 
 ton Print Works, 21 R. I. 64; Miller 4 St. Anthony Falls W. P. Co. v. 
 
 v. Lapham, 46 Vt. 525; 44 id. 416; Minneapolis, 41 Minn. 270. 
 
 Albee v. Huntley, 56 id. 454; Dewey 5 Wheeler v. Wilder, 61 N. H. 2. 
 
 v. Williams, 40 N. H. 222; Leavitt v. 6 Salem Capitol Flour Mills Co. v. 
 
 Towle, 8 id. 96; Cornwell Manuf. Co. Stayton W. D. Co., 33 Fed. Rep. 146. 
 39 
 
610 THE LAW OF WATEES. [Ch. X. 
 
 tlement 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. 1 
 
 § 318a. Same. — If the easement described in the grant is- 
 clearly limited to a defined locality, a substantial change in 
 the place or manner of the enjoyment will not be permitted. 2 
 But when a water easement is granted in general or indefinite 
 terms, rendering the construction doubtful, contemporaneous- 
 acts of the parties, giving a practical construction to the 
 grant, will be deemed to express their intention. 3 Thus a right, 
 to erect a dam within certain limits is fixed by building it within, 
 those limits by mutual consent. 4 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 de- 
 termined by what the parties did immediately after the grant, 
 under a mutual agreement, defining the site and height of the- 
 dam. 5 And when the parties have once exercised the right, 
 the grantee cannot change the manner of its enjoyment at his. 
 pleasure. 6 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, 7 
 and pipes of the same size, if relaid, must be sunk in the same 
 place. 8 If a boundary is variable, as a pond which is raised. 
 
 1 3 Swift's Sys. 86; Barret v. Hos- 4 Boynton v. Eees, 8 Pick. 329. 
 
 mer, 1 Root, 271. 5 Dryden v. Jepherson, 18 Pick. 385. 
 
 2 Jaqui v. Johnson, 27 N. J. Eq. 526, 6 Jennison v. Walker, 11 Gray, 423; 
 552; 25 id. 410; Simpson v. Wabash Evangelical Orphans' Home v. Buf- 
 R. Co., 145 Mo. 64. falo Hydraulic Co., 64 N. Y. 561; 4, 
 
 3 Makepeace v. Bancroft, 12 Mass. Hun, 419; Smith v. Beach, 39 N. Y. S- 
 469; Davis v. Rainsford, 17 Mass. 207; 351; Jones v. Percival, 5 Pick. 485; 
 Allen v. Bates, 6 Pick. 460; Dryden Choateu Burnham, 7 Pick. 274; Wyn- 
 v. Jepherson, 18 Pick. 385; Stone v. koop v. Burger, 12 John. 222. See 
 Clark, 1 Met. 378; Bannon v. Angier, Forbes v. Com., 172 Mass. 289; Brad- 
 2 Allen, 128; Farrar v. Cooper, 34 ley v. Warner, 21 R I. 37. 
 
 Maine, 394; Simpson v. Blaisdell, 85 'Onthank v. Lake Shore R. Co., 71 
 
 id. 199; Davidson v. Fowler, 1 Root, N. Y. 194; 8 Hun, 131. See Hender- 
 
 358; Curtis v. La Grande W. Co., 20 son v. McAllister, 141 Ind. 436. 
 
 Oregon, 34; Place v. Proctor, 2 Penny. 8 Woodcock v. Estey, 43 Vt. 515; 
 
 (Pa.) 264; ante, § 194; Gifford Ho- Jennison v. Walker, 11 Gray, 423; 
 
 siery Co. v. Pitman Manuf. Co., 63 N. Furner v. Seabury, 13 N. Y. S. 12; 
 
 H. 500; May berry v. Alhambra Ad- Marsh v. Haverhill Aqueduct Co., 134 
 
 dition W. Co., 125 Cal. 444. Mass. 106. 
 
§ 319.] CONTRACTS AND COVENANTS. 611 
 
 more or less at various times by a dam, parol evidence is ad- 
 missible to show what line was actually agreed on at the time 
 of the conveyance ; * and if the boundary is uncertain, as is 
 sometimes the case with alluvion, a court of equity may quiet 
 the title of the claimants, and apportion the added soil upon 
 just principles, irrespective of the statute of frauds. 2 A bound- 
 ary 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. 3 
 A grant of the right to raise the water of a stream two inches 
 above a certain stake does not make the grantee liable in dam- 
 ages if floods cause the water to rise- higher. 4 
 
 § 319. Same. — A conveyance of water rights should be con- 
 strued in the light of preliminary agreements and surrounding 
 circumstances, rendering the purpose of the parties plain. 5 A 
 general grant of water easements will be construed in connec- 
 tion with any express stipulations that may be contained in the 
 demise in view of the character of the right granted. 6 In 
 Prentiss v. "Wood, 7 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 responsible for all damages that may be done by flow- 
 ing in consequence of said dam, excepting as hereinafter pro- 
 vided, 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 
 
 1 Waterman v. Johnson. 13 Pick. L. A. Iron Co. v. Lake Superior Iron 
 
 261; Quigley v. De Haas, 98 Penn. St. Co. (Mich.), 76 N. W. Rep. 395. 
 292. 3 Hull v. Fuller, 4 Vt. 199. 
 
 2 1 Story, Eq. Jur. § 611; Tork v. 4 Thatcher v. Baker, 109 Penn. St. 
 
 Pilkington, 1 Bro. Ch.*40; 1 Atk. 282; 32. 
 
 Pearcy v. Bybee, 20 Oregon, 385; 5 Salmon Falls Manuf. Co. v. Ports- 
 Conn. River Lumber Co. v. Olcott mouth Co., 46 N. H. 249. See Wink- 
 Falls Co., 65 N. H. 290; Bresler v. ley v. Salisbury Manuf. Co., 14 Gray, 
 Pitts, 58 Mich. 347; Salem Impr. Co. 443: Smith v. Thayer, 155 Mass. 48. 
 v. McCourt, 26 Oregon, 93. See Dice 6 Watts v. Kinney, 6 Hill, 82; 
 uMcCauley, 22 Oregon, 456; Love v. Phelps v. Tourtellot, 9 Gray, 102; 
 Morrill,-19 id. 545; King v. Brigham, Kennedy v. Scovil, 12 Conn. 317. See 
 23 id. 262; Ashurst v. McKenzie, 92 Hatch v. Dwight, 17 Mass. 289; Ran- 
 Ala. 484; Humboldt County v. Lander dall v. Silverthorn, 4 Penn. St. 173. 
 County, 22 Nev. 248; Pittsburgh & '118 Mass. 589. 
 
612 THE LAW OF WATERS. [Ch. X. 
 
 said wheel 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 dam- 
 ages, with the proviso that he was not to pay A. and B. any 
 damages unless it flowed the water back upon their wheel, 
 the clause as to the back-flow upon their wheel being a limita- 
 tion of the right to flow without paying damages, not a lim- 
 itation of the right granted to build a dam as high as C. should 
 need. In the construction of a gra'nt and reservation, the ob- 
 vious intention of the parties will govern. 1 In Chadwick v. 
 Marsden, 2 a reservation in a lease of " the free running of 
 water and soil coming from any other buildings 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 adjoining land. 
 
 § 320. Use, when restricted. — "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 mentioned in the grant. He may use the water in a differ- 
 ent 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. 3 This rule applies 
 both to reservations and grants. 4 If the use of water is 
 
 1 Moore v. Fletcher, 16 Maine, 63; v. Battle, 15 Mass. 313; Adams v. 
 Provost v. Calder, 2 Wend. 517; Mar- Warner, 23 Vt. 395; Eogers v. Ban- 
 shall v. Niles, 8 Conn. 369; Nioodemus croft, 20 Vt. 250; Rood v. Johnson, 26 
 v. Nicodemus, 41 Md. 529. Vt. 64; Davis v. Muncey, 38 Maine, 
 
 2 L. R. 2 Ex. 285. 90; Deshon v. Porter, 38 id. 293; Covil 
 
 3 Luttrell's Case, 4 Co. 86; Hale v. v. Hart, 56 id. 518; Blake v. Madigan, 
 Oldroyd, 14 M. & W. 789; Watts v. 65 id. 522; Doan v. Metcalf, 46 Iowa, 
 Kelson, L. R. 8 Ch. 166; Casler v. 120; Allen v. San Jose L. & W. Co., 
 Shipman, 35 N. Y. 533; Cromwell 92 CaL 138. See Richards v. Koenig, 
 v. Selden, 3 Comst. 253; Merrill v. 24 Wis. 360; Atkins v, Thompson, 155 
 Calkins, 74 N. Y. 1; 10 Hun, 495; Mass. 326. 
 
 Terry v. Smith, 47 Hun, 333; Cress 4 Ibid.; Miller v. Lapham, 44 Vt. 
 v. Varney, 17 Penn. St. 496; Biglow 416; 46 Vt. 525. 
 
§ 320.] 
 
 CONTRACTS AND COVENANTS. 
 
 613 
 
 granted for a certain purpose, with a prohibition against cer- 
 tain other specified uses, the grantee may use it for any pur- 
 pose not prohibited. 1 It is, however, within the power of the 
 grantor to limit the use of the water granted to a specific 
 purpose.' and not merely in quantity, and, in determining 
 whether such was the intention, the situation and circum- 
 stances of the parties may be taken into consideration. 2 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. 3 To a suit for the violation of a 
 covenant respecting the joint use of water, it is no answer to 
 say that alterations would not be injurious, or to prove even 
 that they are beneficial to the complainant. 4 Thus, a defend- 
 ant has been held liable for increasing the size of a flume, al- 
 though it was more advantageous to the plaintiff. 5 The grantee 
 of the right to use the surplus water not required by a certain 
 
 1 Iszard v. Mays Landing "W. P. Co., 
 31 N. J. Eq. 511; 34 N. J. Eq. 556. 
 
 2 Strong v. Benedict, 5 Conn. 210; 
 De Witt v. Harvey, 4 Gray, 486; Sib- 
 ley v. Hoar, id. 232; Tourtellott v. 
 Phelps, id. 370, 374; Garland v. Hod- 
 son, 46 Maine, 511; Ashley v. Pease, 
 18 Pick. 268; Peck v. Conway, 119 
 Mass. 546; Borst v. Empie, 1 Selden, 
 33; Shed v. Leslie, 22 Vt. 498; Mc- 
 Kelway v. Seymour, 29 N. J. L. 321; 
 Washabaugh v. Oyster, 18 Penn. St. 
 497. 
 
 'Jordan v. Mayo, 41 Maine, 552; 
 Samuels v. Blanchard, 25 Wis. 329. 
 Where an indenture, made in 1841, 
 provided that " in case there is not at 
 any time a full supply of water 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 sea- 
 son of scarcity as the custom and 
 business of the mill might require; 
 and that, if the work done in six 
 hours by the wheel substituted for 
 the one in the mill when the cove- 
 nant 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 1841. 
 Howe Scale Co. v. Terry, 47 Vt. 109, 
 123; Loverin v. Walker, 44 N. H. 489. 
 See Davis v. Muncey, 38 Maine, 90; 
 Star Manuf. Co. v. Fairbanks, 3 Nova 
 Scotia, 46. 
 
 i Dickenson v. Grand Junction Ca- 
 nal Co., 15 Beav.260; Hulme u.Shreve, 
 3 Green Ch. 116; Johnston v. Hyde, 
 32 N. J. Eq. 446; Dewey v. Bellows, 9 
 N. H. 282; Jewett v. Whitney, 43 
 Maine, 242; Howe Scale Co. v. Terry, 
 47 Vt. 109; Carver v. Miller, 4 Mass. 
 558. 
 
 6 Dewey v. Bellows, 9 N. H 282. 
 
614 THE LAW OF WATERS. [Ch. X. 
 
 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 de- 
 ficiency.* 
 
 § 321. Statute of frauds.— Water rights are, in general, in- 
 terests connected with the land, and', as such, are within the 
 statute of frauds. The right to an easement, 2 or to flow an- 
 other's land by a mill-dam, 3 or by the drippings from a roof, 4 
 to flow water through a drain or ditch, 5 or to erect a mill on 
 another's land, 6 is an interest in land which cannot pass by 
 parol, and if the right is to continue for more than a year, an- 
 other clause of the statute of frauds applies, also. 7 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 pur- 
 pose, as the creation of mills or hydraulic works, is void under 
 the statute. 8 The right to enter upon another's land for the 
 purpose of repairing a dam and embankment necessary to the 
 working of a mill, and erected by the consent of the owner, of 
 the land, can only be acquired by a deed or prescription. 9 So, 
 a ferry franchise is real estate, and can onlybe transferred by 
 deed. 10 A verbal license to take water I'mifl |j||i another's 
 land gives the licensee no such interest inl^^m as will en- 
 title him to recover damages for the pollution of the water 
 therein. 11 
 
 1 Sumner, v. Foster, 7 Pick. 32. Hoffman, 100 Wis. 314; Westfall v. 
 
 2 Clanton v. Scruggs, 95 Ala. 279. Perry (Tex. Civ. App.), 23 S. W. Rep. 
 
 3 Woodward wSeely.ll 111.157; Wil- 740. 
 mingtonW.P.Co.uEvans,166Ill. 548; SMumford v. Whitney, 15 Wend. 
 Cook v. Pridgen, 45 Ga. 331; Harris 380; Moulton v. Faught, 41 Maine, 
 v. Miller, Meigs (Tenn.), 158; Carter 298; Weare v. Chase (Ma), 44 Atl. 
 v. Harlan, 6 Md. 20; French v. Owen, Rep. 900; Phillips v. Tompson, Uohn. 
 2 Wis. 250 ; Clute v. Carr, 20 Wis. 531 ; Ch. 131. 
 
 Thompson v. Gregory, 4 Johns. 81. "Cook v. Stearns, 11 Mass. 533; 
 
 4 Tanner v. Volentine, 75 111. 624. Jackson v. Litch, 62 Penn. St. 451. 
 
 5 Deyo v. Ferris, 22 111. App. 154; 24 « Dundy v. Chambers, 23 III 369; 
 id. 416; Totel v. Bonnefoy, 23 id. 55; ante, § 193, a. 
 
 Parker v. Wilson, 66 id. 91 ; Hayes v. u Ottawa Gaslight Co. v. Thompson, 
 
 Fine, 91 CaL 391; Pifer v. Brown, 43 39 111. 598; Clark v. Close, 43 Iowa, 
 
 W. Va. 412. 92. An agreement to sink an arte- 
 
 'Trammell v. Trammell, 11 Rich, sian well supplying a certain quan- 
 
 (S. C.) 471 ; Eostwick v. Leach, 3 Day, tity of water does not require it to be 
 
 476. potable or fit for washing or making 
 
 7 Deyo v. Ferris, supra; Case v. steam. American Well-works v. Riv- 
 
■§ 322.] CONTRACTS AND COVENANTS. 615 
 
 § 322. Parol license — While an easement can only be cre- 
 ated by deed, 1 yet a license, which is a permission to do some 
 act or series of acts on the licensor's land, without having any 
 ■permanent interest in it, may be given verbally as well as by 
 writing. 2 A parol grant of the privilege of floating timber 
 <lown a private stream, not involving the occupation of the 
 land, is a mere license and not within the statute of frauds. 3 
 An agreement between the owner of an artificial watercourse 
 and a railroad company, whereby ;the former permits the lat- 
 ter 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. 4 An agree- 
 ment to accept a certain annual compensation for damages 
 occasioned by flowing land by a mill-dam, 8 or an agreement 
 not to demand damages for flowing one's land, if the other 
 party will er*ect a mill and dam, 6 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 stativ(fl Ks leases for a year to be created by parol, 
 such an agreen^ft may be treated as a valid lease from year 
 to year, until terminated by notice. 7 If the owner of land as- 
 sists as a laborer in building and repairing a dam which he 
 knows will flow his land, says that the mill will benefit the' 
 
 ers, 36 Fed. Rep. 880. As to warranty timan v. Smith, 4 East, 107; Cook v. 
 
 of a certain quantity of water from G, B. & Q. R. Co., 40 Iowa, 451; 
 
 & well to be dug, see Johnston v. Beaver v. Reed, 9 Q; B. (Can.) 152; 
 
 Johnston (Neb.), 43 N. W. Rep. 754. Losh v. Penn. Canal Co., 103 Penn. 
 
 As to reasonable enjoyment by a St. 515. 
 
 ..grantee whose grantor reserves the 'Rhodes v. Otis, 33 Ala. 578; Pur- 
 water not used, see Wilcox v. Ken- sell v. Stover, 110 Penn. St. 43. 
 dall, 63 N. H. 609. 4 Hamilton Hydraulic Co. v. Cin- 
 
 1 Ante, § 300. In the "West, a parol cinnati R. Co., 29 Ohio St. 341, 
 assignment of his interest by a set- 6 Short v. Woodward, 13 Gray, 86. 
 tier on public land, though without 6 -Smith v. Goulding, 6 Cush. 154; 
 ■consideration, is valid. Wood v. Clement v. Durgin, 5 Greenl. 9. See 
 Lowney, 20 Mont. 273; Hindman v. Seidenspargeru Spear, 17 Maine, 123; 
 Rizor, 21 Oregon, 112. Smith u Holloway, 124 Ind. 329. 
 
 2 Morrill v. Mackman, 24 Mich. 279; 7 Morrill v. Mackman, 24 Mich. 279. 
 Whitmarsh v. Walker, 1 Met. 313; See Banghart v. Flummerfelt, 43 
 Taylor v. Waters, 7 Taunt 374; Fen- N. J. L. 28. 
 
616 THE LAW OF WATERS. [Ch. X. 
 
 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. 1 Upon such facts, it is for the jury to say whether a 
 license was in fact given. 2 If acts are performed upon an- 
 other's estate under licenses asked and obtained from time to 
 time, or without causing any damage, 3 long enjoyment cannot 
 be as of right so as to give rise to a custom or prescription. 4 
 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 contract need not be uniformly exercised to its full ex- 
 tent. 5 But an easement, whether acquired by grant or by pre- 
 scription, 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. 6 Thus, 
 evidence is admissible to prove a verbal agreement, which has 
 been carried into effect, whereby a previously executed con- 
 veyance of a right to a watercourse through the granted prem- 
 ises, by courses and distances, was modified so as to change 
 the course of the water for the mutual accommodation of the 
 parties. 7 
 
 § 323. Same — When revocable. — "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 comple- 
 tion of the work, 8 whether the acts affecting the licensor's 
 land are done upon the land of the licensee or that of a third 
 
 iBatohelder v. Sanborn, 24 N. H. 191; Tmkham v. Arnold, 3 Greenl. 
 
 474; Watkins v. Peek, 13 N. H. 360. 120; Stevens v. Morse, 5 id. 26. 
 
 2 Johnson v. Lewis, 13 Conn. 303; 5 Lacy v. Arnett, 33 Penn. St. 169. 
 Swartz v. Swartz, 4 Penn. St. 353; 6 Morse v. Copeland, 2 Gray, 302, 
 Corning v. Gould, 16 Wend. 531; 804; Dyer v. Sandford, 9 Met. 395; 
 Christmas v. Oliver, 10 Q. B. 181; Curtis v. Noonan, 10 Allen, 406; 
 Corning v. Troy Iron Factory, 40 Winter v. Brockwell, 8 East, 308; 
 N. Y. 191; 39 Barb. 311; Smith v. Liggins v. Inge, 7 Bing. 682; 5 Moore 
 Scott, 1 Kerr (N. R), 1. & P. 712; 9 L. J. C. P. 202. 
 
 3 Hathorn v. Stinson, 12 Maine, 183; 7 Le Fevre v. Le Fevre, 4 S. & E. 
 Nelson v. Butterfield, 21 id. 220. 241. 
 
 4 Mills v. Colchester, L. R. 2 C. P. 8 Selden v. Delaware Canal Co., 29 
 476; Cocker v. Cowper, 1 Cr., M. & R, N. Y. 634; Miller v. Auburn R. Co., 
 418; Corning v. Troy Iron Factory, 6 Hill, 61; Carter v. Page, 4 Ired. 
 34 Barb. 485; 39 Barb. 311; 40 N. Y. 424-8; Baker v. Chicago R Co., 57 
 
§ 323.] 
 
 CONTRACTS AND COVENANTS. 
 
 617 
 
 person. 1 Where a land-owner verbally authorized his neigh- 
 bor to construct and use perpetually a ditch over the former's 
 estate for the purpose of draining the latter's land, such license 
 was held to be irrevocable by the grantee of the licensor, after 
 the construction and continued use of the drain, although un- 
 foreseen injuries resulted therefrom. 2 If a licensee, under 
 authority so conferred for a consideration, makes large invest- 
 ments for the enjoyment of a permanent easement, the licensor 
 is estopped to revoke, the license, unless the licensee can be 
 placed in statu quo, 3 and equity will decree specific perform- 
 ance, as in other cases of part performance, 4 especially if ade- 
 quate compensation in damages cannot be obtained. 5 The 
 more recent decisions and the weight of authority are to the 
 effect that, both at law and in equity, the doctrine that an ex- 
 
 Mo. 265; Blaisdell v. Portsmouth 
 Railroad, 51 N. H. 483; Sterling v. 
 "Warden, id. 217; Marston v. Gale, 24 
 N. H. 176; Clauser v. Jones, 100 Ind. 
 123; Saucer v. Keller, 129 Ind. 475; 
 Allen v. Mansfield, 82 Mo. 688; Addi- 
 son v. Hack, 2 Gill, 221; Peay v. Salt 
 Lake City, 11 Utah, 331. 
 
 1 Magee v. St. John, 23 N. Bruns. 
 275, 292, and cases cited above. 
 
 2 Hodgson v. Jeffries, 52 Ind. 334; 
 Dwight v. Hayes, 150 111. 273; Mene- 
 ley v. Carson, 55 111. App. 74; Leka 
 v. Baker, id. 76; McBroom v. Thomp- 
 son, 25 Oregon, 559; Garrett v. Bishop, 
 27 id. 349; Cook v. C. B. & Q. B. Co., 
 40 Iowa, 451, 455; Bloomington v. 
 Burke, 12 Brad. (111.) 314; De Graf- 
 fenried v. Savage, 9 Col. App. 131; 
 Tynon v. Despain, 22 CoL 240; Mid- 
 dlebrook v. Mayne, 96 Ga. 449. 
 
 3 Lane v. Miller, 27 Ind. 534; Maffet 
 v. Quine, 93 Fed. Bep. 347; Bowman 
 v. Bowman (Oregon), 57Pac. Rep. 546; 
 Raritan W. P. Co. v. Veghte, 21 N. J. 
 Eq. 463; 19 id. 142; Morton B. Co. v. 
 Morton, 47 id. 158; Lawrence v. 
 Springer, 49 id. 289; 31 Am. St. Rep. 
 702, 716, n.; Hall v. Chaffee, 13 Vt. 
 150; Foot v. New Haven Co., 23 Conn. 
 214; Morse v. Copeland, 2 Gray, 302; 
 Blanchard v. Baker, 8 GreenL 253; 
 
 Androscoggin Bridge v. Bragg, 11 N. 
 H. 102; Eerick v. Kern, 14 S. & R 267; 
 Mumford v. Whitney, 15 Wend. 380; 
 Addison v. Hack, 2 Gill, 221; National 
 W. W. Co. v. Kansas City, 65 Fed. 
 Rep. 691; Van Ohlen v. Van Ohlen, 
 56 111. 528; Pitzman v. Boyce, 111 Mo. 
 387; Sheffield v. Collier, 3 Kelly (Ga.), 
 82; Risien v. Brown, 73 Texas, 135; 
 Grimshaw v. Belcher, 88 Cal. 217; 
 Flick v. Bell (Cal.), 42 Pac. Rep. 813. 
 
 ^McManus v. Cooke, 35 Ch. D. 681; 
 CookuPridgen,45 Ga. 331; Winham 
 v. McGuire, 51 Ga. 578; Wynn v. 
 Garland, 19 Ark. 23; Le Fevre v. Le- 
 Fevre, 4 S. & R. 241; McKellip v. Mc- 
 Ilhenny, 4 Watts, 317; Lee u Mc- 
 Leod, 12 Nev. 280; Goochu. Sullivan, 
 13 id. 78; Clark v. Glidden, 60 Vt. 
 702; Olmstead v. Abbott, 61 id. 281; 
 Flickinger v. Shaw, 87 Cal. 126; Dor- 
 ris v. Sullivan, 90 Cal. 279; Colorado 
 Land Co. v. Adams, 5 Col. App. 190; 
 Ferguson v. Spencer, 127 Ind. 66; 
 Nicol v. Tackaberry, 10 Ch. (Can.) 
 109; Hamilton Woolen Co. v. Moore, 
 25 Fed. Rep. 4. As to improvements 
 affecting the statute of frauds, see 
 Wright v. Raftree, 181 111. 464. 
 
 sSnowden v. Wilas, 19 Ind. 10; 
 Stephens v. Benson, id. 367; Metcalf 
 v. Hart, 3 Wyom. 513. 
 
618 
 
 THE LAW OF WATERS. 
 
 [Ch. X. 
 
 ecuted license is irrevocable is confined to those licenses under 
 which, when executed, it cannot be claimed that any estate or 
 interest in lands passes, 1 and to licenses which are given upon 
 a valuable consideration. 2 In case of laches, 3 or express ac- 
 quiescence, 4 equity will not interfere by injunction to enforce 
 the rights acquired under 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 justification for afterwards causing an increase in 
 the quantity of the water so flowed. 5 A parol license to en- 
 large a canal justifies an increase in its depth as well as its 
 width, and, while in force, relieves the licensee from any conse, 
 quences which may naturally flow from such enlargement. 6 
 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 
 
 valid agreement which could be en- 
 forced in equity. Nor does the fact 
 of the performance of the agreement 
 render it effectual and valid unless 
 the acts of performance are so clear, 
 definite and certain in their object 
 and design, as to refer exclusively to 
 a complete and perfect agreement 
 of which they are a part execution." 
 See, also, Wheeler v. Reynolds, 66 N. 
 Y. 227; Wiseman v. Lucksinger, 84 
 id. 31; Dermott v. State, 99 id. 101; 
 Kivett v. McKeithan, 90 N. C. 106. 
 
 3 Weller v. Smeaton, 1 Bro. Ch. 
 572; Birmingham Canal Co. v. Lloyd, 
 18 Ves. 517; Anon. 2 Eq. Cas. Abr. 
 523, pi. 3; Williams v. Jersey, 1 Cr. 
 & Ph. Ch. 92; Jones v. Eoyal Canal 
 Co., 2 Molloy, 319; Hulmeu Sbreve, 
 3 Green Ch. 116; McLeodtt Dial, 63 
 Ark. 10. 
 
 4 Cobb v. Smith, 16 Wis. 661; 23 
 Wis. 261; Foster v. Bear V. Ir. Co., 
 65 Fed. Rep. 836. 
 
 5 Carter v. Page, 8 Ired. 190. 
 
 6 Selden v. Delaware Canal Co., 29 
 N. Y. 634; 24 Barb. 362; West v. Fox 
 River P. Co., 82 Wis. 647. 
 
 iClutew. Carr, 28 Wis. 531; Hazel- 
 ton v. Putnam, 3 Pin. (Wis.) 107; 3 
 Chand. 117; French v. Owen, 2 Wis. 
 230; Fryer v. Warne, 29 id. 511; Reno 
 Water Co. v. Leete, 17 Nev. 203; Cook 
 v. Stearns, 11 Mass. 533; Boston & 
 Providence R. Co. v. Doherty, 154 
 Mass. 314; Houston v. Laffee, 46 N. 
 H. 505; Batchelder v. Hibbard, 58 id. 
 269; Van Ohlen v. Van Ohlen, 56 I1L 
 528. See 31 Am. L. Rev. 514 The 
 rule, as sometimes stated, that an ex- 
 ecuted license cannot be counter- 
 manded, is not applicable to licenses 
 which, if given by deed, would create 
 an easement; but to licenses which, 
 if given by deed, would extinguish 
 or modify an easement. Morse v. 
 Copeland, 2 Gray, 302. 
 
 2 Babcockw Utter, 1 Abb. Dec. 27; 
 1 Keyes, 115, 397. See Thoemke v. 
 Fiedler, 91 Wis. 386; Lavery v. Ar- 
 nold (Oregon), 57 Pac. Rep. 906. In 
 Cronkhite v. Cronkbite, 94 N. Y. 323, 
 328, Miller, J., said of such licenses: 
 " Even when a consideration is paid 
 the right of revocation exists where 
 the terms of the agreement are not 
 of such a nature as to make out a 
 
§ 324. J CONTBACTS AND COVENANTS. 619 
 
 by means of it. 1 A verbal license to erect a bridge, or aque- 
 duct, 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, 2 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. 3 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, notwith- 
 standing the statute of frauds. 4 By a common agreement of 
 all parties interested, though merely verbal, a new channel 
 may doubtless be made for a stream, the water turned into it, 
 and the old watercourse abandoned or obliterated, and the new 
 channel be thereafter the only channel. 5 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 appears that the other party paid his instal- 
 ments as required by the agreement and both acted upon it as 
 binding. 6 
 
 § 324:. Same — Same. — A parol license may be revoked, so 
 long as it remains unexecuted, although a consideration for it 
 has been paid, 7 and the licensor's offer is accepted, 8 and it ter- 
 minates with the death of the licensor. 9 A license by a ripa- 
 
 i Pitman v. Poor, 38 Maine, 237; 6 Reedy v. Smith, 42 Cal. 245. 
 Moulton v. Faught, 41 Maine, 298. 7 'Beidelman v. Foulk, 5 Watts, 308; 
 
 2 Wingard v. Tift, 24 Ga. 179; Hall Dark v. Johnson, 55 Penn. St. 164; 
 v. Boyd, 14 Ga. 1; Farmers. McDon- Owen v. Field, 12 Allen, 457; Hew- 
 ald, 59 Ga. 509; Allen v. Fiske, 42 Vt. lins v. Shippam, 5 B. & C. 222; Bryant 
 462; Carleton v. Redington, 21 N. H. v. Whistler, 8 id. 288; Totel v. Bonne- 
 291; Coles v. Kidder, 24 N. H. 364; foy, 123 111. 653; 23 111. App. 55; Mo- 
 Hepburn v. McDowell, 17 S. & R. 383. Clellan v. Taylor, 54 S. C. 430; Pifer 
 
 3 Brown v. Bowen, 30 N. Y. 519. v. Brown, 43 W. Va. 412; 28 Alb. L. 
 See Smith v. Margerum, 21 Penn. Co. J. 144, 165. 
 
 Ct. 209. 8 Taylor v. Gerrish, 59 N. H. 569; 
 
 4 Eastham v. Anderson, 119 Mass. Great Falls W. W. Co. v. Great North- 
 526. As to husband acting as wife's ern Ry. Co., 21 Mont. 487; Yeager v. 
 agent, see Emerson v. Bergen, 71 Cal. Woodruff, 17 Utah, 361. 
 
 335. » Bridges v. Purcell, 1 Dev. & Bat. 
 
 5 Dunklee u'Wilton R. Co., 24 N. H. 492. 
 489, 506; Wetmore v. White, 2 Caines, 
 
 87; Pratt v. Lamson, 2 Allen, 275. 
 
620 THE LAW OF WATERS. [Ch. X. 
 
 rian proprietor for the building of a bridge on his premises is 
 revocable, and is revoked by a conveyance of the property. 1 
 "Where A. and B. agreed by an unsealed 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. 2 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 tram- 
 way 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 by both parties, A.'s license to 
 throw the waste from the mill into the stream was irrevocable. 3 
 Upon the revocation of a license to erect a dam upon another'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. 4 A 
 parol license cannot be assigned by the licensee, 5 and is pre- 
 sumed to be inoperative if not acted upon within a reasonable 
 time. 6 The land-owner may even proceed to use his land as if 
 the license had not been given, and thus revoke it without no- 
 tice, 7 and it is revoked by his conveyance of the land without 
 further notice. 8 But an abandonment will not be presumed 
 where the enjoyment of the license is interrupted by a provi- 
 dential cause, without laches or fault on the part of the licen- 
 
 1 Jackson v. Baboook, 4 John. 418; 6 Ruggles v. Lesure, 24 Pick. 187; 
 Drake v. Wells, 11 Allen, 141; Dark-y. Carleton v. Redington, 21 N. H. 291; 
 Johnston, 55Penn. St. 164, 171; Max- Johnson v. Skillman, 29 Minn. 41; 
 well v. Bay City Bridge Co., 41 Mich. Nunnelly v. Southern Iron Co., 94 
 453; Clark v. Close, 43 Iowa, 92 ; Root Tenn. 397; Beaver v. Reed, 9 Q. B. 
 v. Wadhams, 107 N. Y. 384, (Can.) 152. The licensee may sue a 
 
 2 Dodge -y. McClintock, 47 N. H. 383; stranger who impairs his right. 
 East Jersey Iron Co. v. Wright, 32 N. Miller v. Greenwich Tp., 62 N. J. L. 
 J. Eq. 248. 771. 
 
 3 Thompson v. McElarney, 82 Penn. « Hill v. Lord; 48 Maine, 83; Hoit 
 St. 174; Lacy v. Arnett, 33 id. 199; v. Stratton Mills. 54 N. H. 109. 
 Johnson v. Skillman, 29 Minn. 95, 'Wilson v. St. Paul Ry. Co., 41 
 144. Minn. 56. 
 
 4 Woodbury v. Parshley, 7 N. H. swinne v. Ulster C. S. Inst, 37 
 237. Hun, 349. 
 
§ 325.] CONTRACTS AND COVENANTS.' 621 
 
 see. 1 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. 2 
 
 §325. Misrepresentations.— The right of a riparian pro- 
 prietor to the use of a stream is so valuable that misrepre- 
 sentations as to the benefits or disadvantages arising therefrom 
 may afford a cause of action for fraud or deceit. 3 If the vendor 
 of land which the vendee wishes, with the knowledge of the 
 vendor, to purchase for a stock-ranch represents that the land 
 sold was upon a certain creek, when, in fact, the land was not 
 supplied with water from that creek or any other source, and 
 was worthless as a stock-ranch, the sale may be set aside at 
 suilj of the vendee, although the vendor made the statement 
 in ignorance of the truth, and refused to enter such descrip- 
 tion in the warranty clause of the deed. 4 So, if the vendor of 
 a river plantation makes positive representations as to its 
 comparative safety from overflow, which are inducements to 
 the vendee to purchase, the latter may recoup, to the extent 
 of his injury, in a suit in chancery by the vendor to enforce 
 security for the purchase-money; 5 and if the land is dimin- 
 ished in value by the overflow, and the representations are 
 false and fraudulent, a court of equity will rescind the con- 
 tract. 6 If a positive declaration is made that a sluiceway con- 
 nected 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 
 
 1 Southwestern R. Co. v. Mitchell, 4 Pendervis v. Gray, 41 Texas, 326. 
 
 69 Ga. 114. See Sisson v. Kaper, 105 Iowa, 599. 
 
 2 Blanchard v. Baker, 8 Greenl. 253, 5 Estell v. Myers, 54 Miss. 174; Rey- 
 
 which suggested that the right might nolds v. Cox, 11 Ind. 262; Durrett v. 
 
 still be "enjoyed by a diagonal or Simpson, 3 Mon. 517; Oakes v. Miller, 
 
 wing dam." See Thomas v. Junction 11 Col. App. 374; Kerns v. Perry 
 
 City Ir. Co., 80 Texas, 550. (Tenn. Ch. App.), 48 S. W. Rep. 729. 
 
 3 Farrisu Ware, 60 Maine, 482; Hill So, of misrepresentations which in- 
 
 v. Wilson, 88 Cal. 92; Gilpin v. Smith, duce the vendee to believe that he is 
 
 11 S. & M. 109; Sargent v. Gutterson, to have a right to a greater height 
 
 13 N. H. 467; Winston v. Gwathmey, of dam than he can rightfully main- 
 
 8 B. Mon. 19, 23; White v. Hardin, 5 tain. Scheible v. Slagle, 89 Ind. 323. 
 
 Dana, 154; Long v. Weller, 29 Gratt. 6 Alexander v. Beresford, 27 Miss. 
 
 347; Fenley v. Moody, 104 Ga. 790. 747. 
 See Green v. Turner, 86 Fed. Rep. 
 837. 
 
622 THE LAW OF WATERS. [Ch. X. 
 
 Vendee may rely upon the representations, and may maintain 
 an action for deceit against the vendor if such representations 
 are false and fraudulent. 1 So, fraudulent representations, as 
 to the extent of the right to the use of a sewer, are cause for 
 an action for fraud and deceit. 2 
 
 § 326. Promissory representations. — Promissory repre- 
 sentations, 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," 3 are not fraudulent, 
 though proved to be erroneous ; 4 nor are representations that 
 the dam supplied " about three times as much " power as was 
 conveyed, where the dam furnishes the vendee the full amount 
 conveyed to him. 5 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 insufficient, 
 the vendees were held not entitled to relief in equity, upon 
 the ground that the vendors had made no fraudulent conceal- 
 ment of their means. 6 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 thus raising the water, 
 if it appears that the prospective flowage could be ascertained 
 bjr personal inspection ; that neither party possessed any means 
 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. 7 An affirma- 
 tion that land which is, in fact, imperfectly watered is " uncom- 
 monly rich water meadow-land " will not render the contract 
 
 i Faribault v. Sater, 13 Minn. 223. Krause v. Busacker (Wis.), 81 N. W. 
 
 2 Whitney v. Allaire, 1 N. Y. 305; Rep. 406. 
 
 Green v. Collins, 86 N. Y. 246, 253. « Turner v. Cape Fear Nav. Co., 2 
 
 3 Morrison v. Koch, 32 Wis. 254; Dev. Eq. 236. 
 
 Banta v. Savage, 12 Nev. 151. 7 Sanford v. Nyman, 23 Mich. 326; 
 
 4 Clark v. Ralls, 50 Iowa, 275; Roe- Wright v. Gully, 28 Ind. 475. Cf. 
 mer v. Conlon, 45 N. J. Eq. 234. Henry v. Pindar, 22 Ch. (Can.) 257; 
 
 5 Morrison v. Koch, 32 Wis. 254; James v. Freeland, 5 id. 302; Hickson 
 Wells v. Day, 124 Mass. 38. See v. Clark, 25 id. 173. 
 
§§ 327, 328.] CONTRACTS AND COVENANTS. 623- 
 
 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. 1 And if a spring, which was repre- 
 sented 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. 2 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 purchaser, a 
 deficiency of twenty acres in the land sold will not, in the ab- 
 sence of fraud, justify a rescission of the contract. 3 
 
 § 327. Damages. — Damages for the breach of a covenant 
 against incumbrances, when the incumbrance is of a perma- 
 nent character and impairs the value of the premises, such as 
 an easement 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 
 diminished value of the premises. 4 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. 8 
 
 § 328. Repairs. — Mill-owners on either side of a stream are 
 jointly liable to keep the dam between them in repair, 6 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. 7 The grantee 
 of an ancient mill, the water from which has. passed off, from 
 
 1 Scott v. Hare, 1 Sim. 13. Maine, 555; Ladner v. Balsley, 103 
 
 2 Winston v. Gwathmey, 8 B. Mon. Iowa, 674; Witherbee v. Meyer, 155 
 19, 23; Jasper v. Hamilton, 3 Dana, N. Y. 446; Fort v. Orndoff, 7 Heisk. 
 280. 167; Pengra v. Wheeler, 24 Oregon, 
 
 3 Pollock v. Wilson, 3 Dana, 25. 532; ante, § 211b. 
 
 4 Mitchell v. Stanley, 44 Conn. 312. 6 Eunnels v. Bullen, 2 N. H. 532. 
 s Winne v. Kelley, 34 Iowa, 339; ?Boynton v. Rees, 9 Pick. 527; 
 
 Rogers v. Bemis, 69 Penn. St. 433. Webb v. Laird, 59 Vt. 108; Tullar u. 
 See Mullen u Penobscot L. D. Co., 90 Baxter, id. 467. 
 
621 THE LAW OF WATEKS. [Ch. X. 
 
 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 manner 
 doing no unnecessary damage, 1 and to make repairs 2 and im- 
 provements, etc., necessary to its full enjoyment. 3 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, 4 and to take 
 earth and stones from the bottom of the pond for that pur- 
 pose. 5 A person with a right to use a well and pump on 
 another's land, each being bound to pay for repairs propor- 
 tionately, cannot maintain an action against the latter before 
 a request and a refusal to repair. 6 Under the general rule 
 that a lessor, in the absence of an express agreement, is not 
 bound to make any repairs, 7 leases of a farm with "water 
 privileges from the mill-pond for turning a wheel to drive a 
 saddle-tree manufactory," 8 and of "so much of the surplus 
 water of a canal " as might be necessary to propel a mill of a 
 certain kind, 9 have been held not to bind the lessor to keep the 
 mill-dam in repair, and sufficient water in 1 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 property and land " to 
 
 1 Presoott v. White, 21 Pick. 341; of the mill-wheel. Openshaw v. Ev- 
 
 White v. Chapin, 12 Allen, 516, 521; ans, 50 L. T. N. s. 156. 
 
 Eoberts v. Roberts, 55 N. Y. 275. ■» Frailey v. Waters, 7 Penn. St. 221. 
 
 2 Daniel v. Chaffin, 28 Iowa, 327; 5 Miller v. Scolfield, 12 Conn. 335. 
 
 Jones v. Adams, 162 Mass. 224; Burris 6 Doane v. Badger, 12 Mass. 65; 
 
 v. People's Ditch Co., 104 Cal. 248. Calvert v. Aldrich, 99 Mass. 74, 76. 
 
 3 Beals v. Stewart, 6 Lans. 408; 7 Pomf ret v. Eicroft, 1 Wms. Saund, 
 Huntington v. Asher, 96 N. Y. 604; 321, n.; Colebeck v. Girdlers Co., 1 
 26 Hun, 496. Pico v. Colimas, 32 Cal. Q. B. D. 234; Hugall v. McKean, 33 
 578, while admitting the general W. R 588; Hollingsworth v. Atkins, 
 principle that a person enjoying an 46 La. Ann. 515. Sheets v. Selden, 7 
 easement in the land of another, Wall. 416, decided that a lessee, under 
 may enter thereon to keep it in re- a water-power lease, providing for an 
 pair, declared that a water commis- abatement of rent for every failure 
 sioner, under the statute to regulate of water, cannot, having forfeited 
 watercourses, etc., had no authority the estate by non-payment of rent 
 as such to repair a watercourse, or after due proceedings had, set up a 
 to make an entry to remove an ob- claim for repairs to the water-chan- 
 struction. Upon an agreement for nel made necessary by the landlord's 
 letting a farm, lands and mill, the gross negligence. See Oneto v. Res- 
 tenant's covenant to repair the " mes- tano, 89 Cal. 63. 
 suages and buildings" includes repair 8 Morse v. Maddox, 17 Mo. 569. 
 
 9 Trustees v. Brett, 25 Ind. 409. 
 
§ 328.] CONTBACTS AND COVENANTS. 625 
 
 keep the mill in good repair," while it may embrace an obliga- 
 tion to keep the tail-race in as good repair as at the date of the 
 agreement 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. 1 A bond to build and keep a bridge in repair 
 for four years 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. 2 One who cuts a race-way across a highway is 
 bound to bridge it and to keep the bridge in repair. 3 The 
 owner of a water-mill benefited by a reservoir higher up the 
 stream, who promises to pay his proportionate share of the cost 
 of necessary repairs, if made, is liable on their completion, in 
 an ordinary action upon an account annexed. 4 
 
 i Middlekaufl v. Smith, 1 Md. 329. County v. Graves, 32 Mo. 479, -where 
 
 See Bird v. Elwes, L. R. 3 Ex. 225; the bridge was burned, on the ground 
 
 Jones v. De Coursey, 42 N. Y. S. 578; that the agreement to repair was 
 
 Spencer v. Hamilton, 113 N. C. 49; merely a means to find out if the 
 
 Sharp v. Parker (108 Ga.), 34 S. E. builder had properly constructed the 
 
 Rep. 135; Union Water Power Co v. bridge. 
 
 Pingree, 91 Maine, 440. 3 West Bend v. Mann, 59 Wis. 69. 
 
 2 Gath wright v. Callaway County, 4 Mullett v. Bemis, 100 Mass. 92. 
 10 Mo. 663. Contra, Livingston 
 40 
 
CHAPTER XL 
 
 PRESCRIPTION — 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 prescriptive rights in easements and land. 
 
 334, Prescriptive right, how acquired — The adverse use must be in- 
 consistent with 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. — Restricted by conditions, or by negative adverse rights. 
 
 341. Ibid. — Burden of proof. 
 
 342. Prescriptive righjs limited by the user. 
 343, 344. Ibid. — Height of the water held by a dam. 
 345, 346. Pollution of water by prescription. 
 
 347. Particular use not preventing the acquisition cf another right of 
 user by prescription. 
 348-351. A prescriptive right may be abandoned, or lost by acquiescence. 
 
 352. Prescriptive right when the enjoyment is of a temporary nature! 
 
 353. Right to flowage 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 of implied grants. 
 
 § 329. Acquisition of prescriptive rights. — No one can 
 
 acquire an easement in his own estate. 1 But, in the absence 
 of an express grant of such right from another, an easement 
 in water may arise: first, by prescription; second, upon sev- 
 erance 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 " pre- 
 
 » Ritger v. Parker, 8 Cush. 145 ; White v. Chapin, 12 Allen, 516, 5ia 
 
§ 329.] 
 
 PRESCRIPTION. 
 
 627 
 
 scription " is strictly applicable only to incorporeal heredita- 
 ments and not to land ; ' and, under the ancient rule of the 
 common law, the use of the incorporeal right, in order to sup- 
 port a title by prescription, must have continued immemorially, 
 that is, have had a commencement before the reign of Rich- 
 ard I. 2 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. 3 It is now 
 generally held that a continued use in a particular manner 
 and without opposition through twenty years, corresponding 
 to the period usually prescribed by statutes of limitations for 
 an entry on lands, is sufficient for the purpose. 4 Under this 
 
 i Wilkinson v. Proud, 11 M & W. 
 33; Carlyoni;."Lovering, 1 H. & N. 
 784; Hall on the Seashore (2d ed.), 
 22; Caldwell v. Copeland, 37 Penn. 
 St 427, 431 ; Ferris v. Brown, 3 Barb. 
 105 ; Tinicum Fishing Co. v. Carter, 
 61 Penn. St 21 ; Preston v. Hull, 77 
 Iowa, 309. 
 
 * 1 Black. Com. 75; 2 id. 263; 
 Bract lib. 2, ch. 22. 
 
 3 Falmouth v. Innys, Mosely, 87; 
 Hillary v. Waller, 12 Ves. 261 ; Finch 
 v. Eesbridger, 2 Vern. 390; Hill v. 
 Smith, 10 East, 476 ; Trotter v. Harris, 
 2 Younge & J. 285 ; Jackson v. Har- 
 vey, 1 Cr. M. & R 51 ; Saunders v. 
 Newman, 1 B. & Aid. 258 ; Bailey v. 
 Applegard, 8 Ad. & EL 161 ; French 
 Hoek Commissioners v. Hugo, 10 App. 
 Cas. 336; Hazard v. Robinson, 3 
 Mason, 272, 275 ; Wallace v. Fletcher, 
 30 N. H 444 ; Rogers v. Mabe, 4 Dev. 
 180. 
 
 * Lewis v. Price, 2 W. Saund. 175 ; 
 Angus v. Dalton, 3 Q. B. D. 85 ; Claw- 
 son v. Primrose, 4 Del. Ch. 643, 657 ; 
 Ricard v. Williams, 7 Wheat. 59; 
 Coolidge v. Learned, 8 Pick. 504; 
 Sargent v. Ballard, 9 Pick. 251 ; Mel- 
 vin v. Whiting, 10 Pick. 295 ; Barnes 
 v. Haynes, 13 Gray, 188; Blake v. 
 Everett, 1 Allen, 248; Pierre v. 
 Fernald, 26 Maine, 436 ; Mitchell v. 
 
 Walker, 2 Aik. (Vt.) 269 ; Shumway v. 
 Simons, 1 Vt 53; Wakins v. Peck, 
 13 N. H. 360; Wallace v. Fletcher, 
 30 N. H. 434 ; Olney v. Fenner, 2 R 
 I. 211 ; Horner v. Stillwell, 35 N. J. L. 
 307; Townsend v. McDonald, 12 N 
 Y. 381; Parker v. Foote, 19 Wend 
 309 ; Miller v. Garlock, 8 Barb. 153 
 Shreve v. Voorhees, 2 Green. Ch. 25 
 Campbell v. Smith, 3 Halst 140 
 Carlisle v. Cooper, 19 N. J. Eq. 256 
 Postlethwaite v. Payne, 8 Ind. 104 
 Smith v. Russ, 17 Wis. 227 ; Rooker 
 v. Perkins, 14 Wis. 79; Cobb v. 
 Smith, 16 Wis. 661 ; 38 Wis. 21 ; Sher- 
 wood v. Vliet, 20 Wis. 441 ; Haag v. 
 Delorme, 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; Phinizy v. Augusta, 47 Ga, 260; 
 Cuthbert v. Lawton, 3 McCord, 194 : 
 Felton v. Simpson, 11 Ired. 84 ; Grif- 
 fin v. Foster, 8 Jones, 337 ; Powell v. 
 Lash, 64 N. C. 456. It is twenty-one 
 years in- Ohio and Pennsylvania. 
 Tootle v. Clifton, 22 Ohio St 247 
 Buckingham v. Smith, 10 Ohio, 288, 
 299 ; Cooper v. Smith. 9 S. & R 26 
 Strickler v. Todd, 10 S. & R. 63 
 Biedelman v. Foulke, 5 Watts, 308 
 Workman v. Curran, 89 Penn. St 
 226. Fifteen years in Vermont and 
 
628 
 
 THE LAW OF WATERS. 
 
 [Ch. XI 
 
 rule, the use must have assumed its character as adverse twenty- 
 years before the right can accrue; but recent acts, acquiesced 
 in by the owner, may go to the jury as evidence that the use 
 has been in derogation of the owner's right for the full term of 
 twenty years. 1 The modern doctrine of prescription has thus 
 become a legal fiction adopted for the purpose of quieting an- 
 cient possessions. 2 A right may even be acquired by uninter- 
 rupted user and a lost grant presumed, where the origin is 
 traceable to a deed granting the user in a way that would be 
 bad as being the grant of an easement in gross. 3 A prescrip- 
 tion differs from a custom in that it is personal, being alleged 
 in the person, as in a man and his ancestors or predecessors 
 in title, while a custom is local and serves for the inhabitants 
 
 Connecticut. Norton v. Valentine, 14 
 Vt. 239; Ford v. Whitlock, 27 Vt. 265; 
 Shrewsbury v. Brown, 25 Vt. 197; 
 Arbuckle v. Ward, 29 Vt. 43; Rogers 
 v. Bancroft, 20 Vt. 250; Ingraham v. 
 Hutchinson, 2 Conn. 584; Parker v. 
 Hotchkiss, 25 Conn. 321; Sherwood 
 v. Burr, 4 Day, 244; Rogers v. Page, 
 Brayt. (Vt.) 169. Ten years in Texas 
 and Alabama. Haas v. 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 Geor- 
 gia and Tennessee. 
 
 !Nash v. Peden, 1 Speers, 22. In 
 Lehigh Valley R. Co. v. McFarlan, 43 
 N. J. L. 605, 617, Depue, J., said: "At 
 common law there was no fixed 
 period of prescription. Rights 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., ch. 8, the limitation in writs of 
 right dated from the reign of Henry 
 II. By 3 Edw. I., ch. 39, the limita- 
 tion was fixed from the reign of 
 Richard I. By 21 Jac. I., ch. 16, the 
 time for bringing possessory actions 
 was limited to twenty years after the 
 right accrued. These statutes ap- 
 
 plied only to actions for the recovery 
 of land; none of them embraced ac- 
 tions in which the right to an incor- 
 poreal hereditament was involved. 
 But by judicial construction an ad- 
 verse user of an easement for the 
 period mentioned 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. Alle- 
 gation of the loss of the grant ex- 
 cused profert and bringing the in- 
 strument into court." 
 
 2 Kingston v. Horner, 1 Cowper, 
 102; Eldridge v. Knott, id. 214; Jack- 
 son v. McCall, 10 Johns. 377; Dosoris 
 Pond Co. v. Campbell, 50 N. Y. S. 819; 
 Folsom v. Freeborn, 13 R. I. 200; 26 
 Sol. J. 122. 
 
 3 Simpson v. Godmanchester, [1897] 
 A. C. 696; 73 L. T. 90, 423. See Phil- 
 lipps v. Halliday, [1891] A. C. 228; 
 Eliot v. Bristol, 72 L. T. 752. 
 
§ 330.] 
 
 PBESCRIPTION. 
 
 629 
 
 .of a town, etc., or relates to insensible things, as a devise of 
 lands. 1 
 
 §330. Proof rebutting lost grant — Pleading. — Accord- 
 ing to some decisions, long-continued and uninterrupted pos- 
 session is merely evidence from which a jury would be justified 
 in presuming a grant; 2 but, by the weight of authority in this 
 country, while the presumption of a lost deed may be rebutted 
 by contradicting or explaining the facts upon which it rests, 
 yet it cannot be overcome by proof in denial of a grant. 3 The 
 adverse enjoyment of the water in a stream for a less period 
 than twenty years is not sufficient to warrant a presumption 
 of a grant, and no superior right in the stream is acquired by 
 mere priority of occupation. 4 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 ob- 
 struct it by backwater. 5 If the plaintiff in his declaration relies 
 upon a prescriptive right to use the water, he cannot recover 
 
 1 See § 86, above; Foiston v. Crach- 
 roode, 4 Co. 31 b. ; Jenkin v. Vivian, 
 Poph. 201. 
 
 2 Wallace v. Fletcher, 30 N. H. 446, 
 citing Keymer v. Summers, B. N. P. 
 74; Campbell v. Willson, 3 East, 294; 
 Gray v. Bond, 5 Moore, 327; 2 B. & B. 
 627; Cross v. Lewis, 2 B. & C. 686; 
 Darwin v. Upton, 2 W. Saund. 175a; 
 
 'Livett v. Wilson, 3 Bing. 115; Jones 
 v. Jones, 2 Kerr, 265. 
 
 3 Lehigh Valley R. Co. v. McFarlan, 
 43 N. J. L. 605; Coolidge v. Learned, 
 8 Pick. 504; Edsonv.MunselI,10 Allen, 
 568; Wallace v. Fletcher, 30 N. H. 434, 
 448; Pillsbury v. Moore, 44 Maine,154; 
 Burnham v. Kempton, 44 N. H. 88; 
 Winnipisseogee Lake Co. v. Young, 40 
 ft. H. 433; Tracy v. Atherton, 36 Vt. 
 510; 2 Greenl. Evid. § 539. * To the 
 same effect are numerous English 
 authorities. Dougal v. Wilson, 2 W. 
 Saund. 175a; Darwin v. Upton, id.; 
 Hed v. Holcroft, 1 B. & P. 400; Bals- 
 ton v. Bensted, 1 Camp. 463; Bealey 
 v. Shaw, 6 East, 208; Bright v. Walker, 
 
 1 Cr. M. & E. 217; Jenkins v. Harvey, 
 id. 894; Hillary v. Waller, 12 Ves. 239; 
 Wright v. Howard, 1 Sim. & Stu. 203; 
 Mason v. Hill, 3 B. & Ad. 304; 5 B. & 
 Ad. 1; Ring v. Pugsley. 2 Pugs. & B. 
 (N. B.) 303. The right to flow land by 
 a pond created by a dam attached to 
 an ancient mill-site, is a prescriptive 
 right in a que estate. Sargent v. Gut- 
 terson, 13 N. H. 467. A modern deed 
 granting the right to open river locks 
 in times of flood does not exclude 
 proof of such right by prescription. 
 Simpson v. Godmanchester, [1897], A. 
 C. 696; [1896] 1 Ch. 214. 
 
 4 Prescott v. Phillips, cited 6 East, 
 283; Rex v. Wardroper, 4 Burr. 2024; 
 Tyler v. Wilkinson, 4 Mason, 396; Gil- 
 man v. Tilton, 5 N. H. 231; Campbell 
 v. Smith, 3 Halst. 146; Sherwood v. 
 Burr, 4 Day, 244; Buddington v. Brad- 
 ley, 10 Conn. 213; Davis v. Fuller, 12 
 Vt. 178; Pugh v. Wheeler, 2 Dev. & 
 Bat. 50. 
 
 5 Sumner v. Tileston, 7 Pick. 198; 
 ante, ch. 7. 
 
630 THE LAW OF WATERS. [Ch. XL 
 
 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. 1 So, upon the other hand, a plea of a gen- 
 eral right to a watercourse is not sustained by proof of a par- 
 ticular right acquired by adverse enjoyment, 2 nor can the de- 
 fendant, in an action for diverting a watercourse, avail of a 
 right so acquired, unless set up in his answer. 3 
 
 § 331. Disabilities. — Prescription thus depends, at the pres- 
 ent day, upon the presumption of a previous grant or agree- 
 ment which has been lost by lapse of time. 4 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. 5 
 An insane person cannot make a binding grant of his real es- 
 tate, and no prescription begins to run against him until his 
 death or the removal of the disability. 6 So, no presumption 
 of a grant arises, from the adverse enjoyment of an easement, 
 against a minor or married woman. 7 In the case of a reversion, 
 the time of prescription does not begin to run against the re- 
 versioner, 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 
 
 1 Rudd v. Williams, 43 111. 385. of the adverse enjoyment and the 
 
 2 Darlington v. Painter, 7 Penn. St. expiration of the twenty years will 
 473; Wetmore v. Robinson, 2 Conn, not defeat the prescriptive right. 
 529; Burbank v. Bitch Co., 13 Nev. Wallace u Fletcher, 30 N. H. 434; 
 431; Meyer v. Horst, 106 Penn. St. Tracy v. Atherton, 36 Vt. 503; An- 
 552. drews v. Mulford, 1 Hayw. (N. C.) 
 
 3 Matthews v. Ferrea, 45 Cal. 51. 322; Mercer v. Selden, 1 How. 37; 
 
 4 Rust v. Lowe, 6 Mass. 97; Morse v. Peck v. Randall, 1 Johns. 176; Moores 
 Copeland, 2 Gray, 305; Edson v. Mun- v. White, 6 Johns. 360; Dekay v. Bar- 
 sell, 10 Allen, 557, 567; Howes v. rah, 2 Green (N. J.), 288: Clark t\ 
 Grush, 131 Mass. 207; Lehigh Valley Richards, 3 id. 347; McFarland v. 
 R. Co. v. McFarlan, 43 N. J. L. 605; Stone, 17 Vt. 165. But the minority 
 _Re Clark, 4 N. Y. S. 259. of an heir who succeeds to the dom- 
 
 5 Barker v. Richardson, 4 B. & Aid. inant tenement during the twenty 
 579; Ricard v. Williams, 7 Wheaton, years has been held to interrupt the 
 109; Hill v. Lord, 48 Maine, 96; prescription. Melvin v. Whiting, 13 
 Ayraud v. Babin, 19 Martin (La.), 471; Pick. 184; Watkins v. Peck, 13 N. H. 
 Jackson v. Johnson, 5 Cowen, 74. 360; Lamb v. Crosland, 4 Rich. (S. C.) 
 
 6 Edson v. Munsell, 19 Allen, 557; 536. 
 
 Currier v. Gale, 3 Allen, 328; Clarity 7 Reimer v. Stuber, 20 Penn. St. 458; 
 
 v. Sheridan, 91 Iowa, 304. The gen- Watkins v. Peck, 13 N. H. 360. See 
 
 eral rule is that an intervening dis- Tyler v. Wilkinson, 4 Mason, 402. 
 
 ability between the commencement . 
 
§ 331.] PRESCRIPTION. 631 
 
 may permit easements to be acquired by user which will be 
 valid during his tenancy. 1 "Where a company was authorized 
 by act of Parliament to construct 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. 2 In 
 Burbank v. Fay, 3 in New York, it was held that, as the canal 
 commissioners could not grant the State canals, no right ad- 
 verse to the State could be acquired by a private use of the 
 waters of such canals, whether adverse or by permission. In 
 Goodman v. Mayor of Saltash, 4 the defendants claimed, as two 
 free inhabitants of ancient tenements in a borough, and also 
 as free inhabitants of the borough and as subjects of the realm, 
 to have, as of right and by immemorial usage, the privilege of 
 dredging for oysters in a public navigable river, and the plaint- 
 iffs, who represented the borough corporation and its lessees, 
 claimed to be possessed of a several oyster fishery in the river, 
 which fishery the usage tended to destroy. The plaintiffs 
 proved a prescriptive right to a several fishery, and it was 
 
 'Saunders v. Annesley, 2 Sob. & 2 Rochdale Canal Co. v. Radcliffe, 
 
 Let 101; Baxter v. Taylor, 4 B. & Ad. 18 Q. B. 315; Staffordshire Canal v. 
 
 72; Barker v. Richardson, 4 B. & Aid. Birmingham Canal, L. R 1 H. L. 254; 
 
 578; Wood v. Veal, 5 B. & Aid. 454; 11 Jur. 71; National Manure Co. v. 
 
 Doe v. Reed, id. 232; Gray v. Bond, 2 Donald, 4 H. & N. 8; Preston v. Ful- 
 
 Bro. & Bing. 667; Dawson v. Norfolk, wood Local Board, 34 W. R. 196; 
 
 1 Price, 246; Daniel v. North, 11 East, Sapp v. Northern Central Ry. Co., 51 
 
 372; Yard v. Ford, 2 W. Saund. 175a; Md. 125; Armstrong v. Pennsylvania 
 
 McGregor v. Wait, 10 Gray, 72; R. Co., 38 N. J. L. 1; Lehigh Valley 
 
 Parker v. Franiingham,, 8 Met. 260; R. Co. v. McFarlan, 43 id. 605, 621; 
 
 Lund v. New Bedford, 121 Mass. 286; ante, § 225. 
 
 Wallace v. Fletcher, 30 N. H. 434; 3 65 N. Y. 57. See Jessup v. Loucks, 
 Tinsman v. Belvidere R. Co., 25 N. J. 55 Penn. St. 350; Cass v. Pennsylva- 
 nia 255; Schenley v. Com., 36 Penn. St. nia R. Co., 51 id. 351; Hoadley v. San 
 29; Reimer v. Stuber, 20 id. 458. The Francisco, 50 Cal. 265. 
 same is true of a mortgagee. Murphy 4 7 App. Cas. 633; 5 C. P. D. 431; 7 
 v. Welch, 128 Mass. 489, Leasing the Q. B. D. 106. See Re Faversham Free 
 servient estate to a tenant after the Fishermen, 36 Ch. D. 329, reversing 
 time of prescription has begun to run s. c. 56 L. T. 422 ; In re Christ Church 
 would not prevent the acquisition of Inclosure Act, 38 Ch. D. 520, 530. See 
 the right. Cross v. Lewis, 2 B. & C. also Tighe v. Sinnott, [1897] 1 Ir. 140. 
 4386; Mebane v. Patrick, 1 Jones, 23. 
 
632 THE LAW OF WATEES. [Ch. XT. 
 
 held that the defendants' claim of immemorial user was not a 
 profit a prendre in alieno solo, and that a reasonable pre- 
 sumption should be made as to the lawful origin of the usage, 
 namely, that the original grant to the corporation was subject 
 to a trust or condition in favor of the defendants. In a recent 
 case, where there was no corporation and the persons exercis- 
 ing the privilege were not all of one class, it was held that the 
 circumstances of the enjoyment must be carefully looked to. 1 
 
 § 332. Easements — Land.— The title to an easement by 
 adverse user is also to be distinguished from a title to land 
 claimed by adverse possession. In the latter case a mere ver- 
 bal protest or prohibition to occupy the premises is not suffi- 
 cient without entry to defeat the right acquired by disseisin. 2 
 But in the case of an easement, the title rests chiefly on the 
 owner's acquiescence 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. 3 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 hia 
 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 interrup- 
 tion of the easement, and that it was not necessary to use act- 
 ual force to eject, in order to break the continuity of posses- 
 sion and use. 4 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 easement 
 by prescription. 5 In Kimball v. Ladd, 6 the Supreme Court of 
 
 J Tilbury v. Silva, 45 Ch. D. 98. the owner of land flowed by thfr 
 
 2 Workman v. Curran, 89 Penn. St. dam. Jessup v. Loucks, 55 Penn. St. 
 226; Smith v. Miller, 11 Gray, 145; 350. 
 
 Bowen v. Guild, 130 Mass. 121. * Powell v. Bagg, 8 Gray, 441; Con- 
 
 3 Ibid.; Chicago Ry. Co. v. Hoag, nor v. Sullivan, 40 Ct. 26; Tracy v. 
 90 I1L 339; Stillman v. White Rook Atherton, 36 Vt. 514; Ingraham v. 
 Co., 3 Wood. & M. 533, 549; Nichols Hough, 1 Jones, 39. 
 
 v. Aylor, 7 Leigh, 546 ; Field v. Brown, 5 Postleth waite v. Payne, 8 Ind. 104 ; 
 
 24 Gratt. 74; Tyler v. Wilkinson, 4 Eaton v. Swansea Waterworks Co.,. 
 
 Mason, 397; Pierce v. Cloud, 42 Penn. 17 Q. B. 267. See Langford u Poppe, 
 
 St. 102. Where a dam is built under 56 Cal. 73; Wilkins v. Nicolai, 99> 
 
 authority from the State, acquies- Wis. 178. 
 
 cence is not presumed on the part of 6 42 Vt. 747. 
 
§ 333.] PEESCRIPTION. 633 
 
 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. Same — Same. — Long enjoyment of an easement es- 
 tablishes a right to the easement, but not to the land itself, 1 
 and the acquisition, 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. 2 A riparian proprietor 
 whose title extends usque ad filum aquce, may acquire by pre- 
 scription the right to maintain a dam across the stream and 
 to abut it on the opposite shore. 3 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, give 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 per- 
 son situated above on the stream. 4 If a highway extending 
 across a stream is used as a dam for twenty years without in- 
 terruption on the part of the State, or objection on the part of 
 the owner of land which is flowed by the pond, the latter can- 
 not maintain an action for the injury to his land. 6 In support 
 
 Schuylkill Nav. Co. v. Stover, 2 Kempton, 44 N. H. 78; Chauvet v. 
 
 Grant Cas. 462; Coleman v. State, Hill, 93 Cal. 407; Hopper v. Hopper, 
 
 134 N. Y. 564; Frederick v. Dickey, 146 Penn. St. 365. 
 
 91 Cal. 358; De Lancey v. Hawkins, *Trask v. Ford, 39 Maine, 437; 
 
 49 N. Y. S. 469; Terre Haute, etc. R. Chalk v. McAlily, 11 Rich. (S. C.) 153; 
 
 Co. v. Zehner, 15 Ind. App. 273. Perrin v. Garfield, 37 Vt. 304; Thomp- 
 
 2 Everett v. Dockery, 7 Jones (N. C), son v. Androscoggin Bridge, 5 Maine, 
 
 390. See Keyser v. Covell, 62 N. H. 62; Dry den v. Jepherson, 18 Pick. 
 
 283. 392; Dean v. Goddard, 55 Minn. 290. 
 
 'Bliss v. Rice, 17 Pick. 23; Pratt v. 5 Borden v. Vincent, 24 Pick. 301; 
 
 Lamson, 2 Allen, 275, 288; Beidelman Lawrence v. Fairhaven, 5 Gray, 114; 
 
 v. Foulk, 5 Watts, 308; Burnham v. Perley v. Hilton, 55 N. H. 444. 
 
634 THE LAW OF WATERS. [Ch. XL 
 
 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 defendant, but along the bed of the river beyond the 
 defendant's land. 1 Title to a riparian estate gained hy adverse 
 possession carries also accretions added to such estate. 2 In 
 Eidgway v. Ludlow, 3 in Indiana, it was held that a title ac- 
 quired 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 accompanied by any as- 
 sertion of ownership. 
 
 §334. Prescriptive right — Consistency. — In order to es- 
 tablish the presumption of a right or easement in the lands or 
 waters of another person, the enjoyment must have been un- 
 interrupted, adverse, and under a claim of right, and with the 
 knowledge of the owner, 4 whose knowledge binds his grantee. 5 
 It must have been inconsistent with or contrary to the inter- 
 ests 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. 6 If the use or enjoyment has been consistent 
 
 1 Jones v. Williams, 2 M. & W. 326; 175 111. 354; Ingraham v. Hutchinson, 
 
 Att. Gen. v. Portsmouth, 25 W. R. 2 Conn. 584; Eastman v. Amoskeag 
 
 559; Moore on the Foreshore, 558. Mamif. Co., 47 N. H. 71; Flora v. Car- 
 
 2 Chicago, etc. Ry. Co. v. Groh, 85 bean, 38 N. Y. Ill; Iselin v. Starin, 
 Wis. 641; Bellefontaine Impr. Co. v. 144 N. Y. 453; Mayville v. Wilcox, 16 
 Niedringhaus, 118 111. 426. See Ocean N. Y. S. 15; Trask v. Ford, 39 Maine, 
 CityAss'nuShriver(N. J.L.), 46 Atl. 437; Smith v. Miller, 11 Gray, 145;- 
 Rep. 690. That such title does not Kilburn v. Adams, 7 Met. 33; Han- 
 extend to the thread of the stream, nefin v. Blake, 102 Mass. 297; Perrin 
 see Stanberry v. Mallory, 101 Ky. 49. v. Garfield, 37 Vt 310; Arnold v. 
 
 3 58 Ind. 248. See Clarke v. Wag- Stevens, 24 Pick. 110; Hughesville 
 
 ner,74N. C. 791; Mitchells Bridgers, W. Co. v. Person, 182 Penn. St. 450; 
 
 113 N. C. 63. Wilson v. Wilson, 4 Dev. 154, '■>.• 
 
 *Livett v. Wilson, 3 Bing. 115; & Ibid.; Franklin v. Pollard Mill Co., 
 
 Coalter v. Hunter, 4 Rand..(Va.) 58; 88 Ala. 318. 
 
 Stokes v. Upper Appomattox Co., 3 6 Morse v. Williams, 62 Maine, 445; 
 
 Leigh, 318; Chicago, etc. Ry. Co. v. Brace v. Yale, 10 Allen, 444; Whit- 
 
 Hoag, 90 I1L 339; Wahls v. Brandt, neyu Wheeler Cotton Mills, 151 Mass. 
 
§ 334.] PRESCRIPTION. 635 
 
 with the continuance of his right or title, no such presump- 
 tion 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 clam must not have merely permit- 
 ted the water to flow as demanded without intending to ac- 
 knowledge any right on the part of the lower proprietor, for 
 so equivocal an act would not justify a presumption of an ad- 
 verse user or enjoyment. 1 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 they 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 proprietors, and would not be deemed 
 to confer any right or to take away any title or privilege. 2 If, 
 on the other hand, the 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, af- 
 fords a conclusive presumption of a grant of such appropria- 
 tion and use. 3 The right when established by adverse user 
 
 396; Linen v. Maxwell, 67 N. H. 370; 25; Hunt v. Iowa Cent. R. Co., 86 
 Smith v. Hope M. Co., 18 Mont. 432. Iowa, 15. This is upon the princi- 
 A mere squatter on an unappropri- pie that no prescriptive right is ac- 
 ated island cannot acquire a pre- quired where the person against 
 ecriptive right thereto. In re New whom the right is claimed could not 
 York, 18 N. Y. 8. 82; Daveis v. Col- have interrupted or prevented the 
 lins, 43 Fed. Rep. 31; Alta L. & W. exercise of the subject of the sup- 
 Co. v. Hancock, 85 Cal. 219. posed grant. Webb v. Bird, 13 C. B. 
 
 iVIiet t>. Sherwood, 35 Wis. 229; 38 n. s. 841; Winship v. Hudspeth, 10 
 
 Wis. 159. Exch. 5; Chasemore v, Richards, 7 
 
 2 Brace i'. Yale, 10 Allen, 444; Thur- H. L. Cas. 349; Union Mill Co. v. 
 
 ber v. Martin, 2 Gray, 394; Gould v. Ferris, 2 Sawyer, 176; Nelson v. But- 
 
 Boston Buck Co., 13 Gray, 451; Don- terfield, 21 Maine, 220. 
 nell v. Clark, 19 Maine, 174; Parker 3 Ibid. ; Newhall v. Ireson, 8 Cush. 
 
 v. Hotchkiss, 25 Conn. 321; Keeney 595; Cape v. Thompson (Tex. Civ. 
 
 Manuf. Co. v. Union Manuf. Co., 39 App.), 53 S. W. Rep. 368. The _erec- 
 
 Conn. 576; Piatt v. Johnson, 15 Johns, tion of a new and higher dam in 
 
 213 ; Shreve v. Voorhees, 2 Green Ch. place of an old one is not an infringe- 
 
C36 THE LAW OF WATERS. [Ch. XL 
 
 not only bars the remedy but extinguishes the original right. 1 
 "Where a judgment of ouster is entered, upon an information 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 pre- 
 scriptive right to maintain the same as against the owner of 
 the land which it flows. 2 ., 
 
 § 335. Same — Continuity. — In order to support an ease- 
 ment by prescription, the adverse use must have been contin- 
 uous. 3 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 scnj length of user of a ditch 
 or dam entirely on one's own land be connected with a con- 
 sequential injury resulting therefrom to a neighbor's land and 
 continued for an insufficient period. 4 But the times of en- 
 joyment by an ancestor and his heir, or by a seller and the 
 purchaser, may be counted together in order to make up the 
 requisite period, 5 and it is sufficient prima facie proof of a 
 
 merit of another's prescriptive right Earnhart, 10 Ired. 516; Haag v. De- 
 
 to use the water, if such use is not lorme, 30 Wis. 594; Holland v. Long, 
 
 thereby prejudiced. Rogers v. Bruce, 7 Gray, 486; Olney v. Gardiner, 4 M. 
 
 17 Pick. 184. & W.496. 
 
 iBicknell v. Comstock, 113 U. S. Sargent v. Ballard, 9 Pick. 251; 
 149; Ballard v. Struckman, 123 111. Leonard v. Leonard, 7 Allen, 277; 
 636; Weed v. Keenan, 60 Vt. 74; Hill v. Crosby, 2 Pick. 466; Kent v. 
 Parker v. Atchison (Kans.), 48 Pac. Waite, 10 Pick. 138; Melvin v. Whit- 
 Rep. 631. ing, 13 Pick. 184; Williams v. Nelson, 
 
 2 Campbell v. Talbot, 132 Mass. 174. 23 Pick. 141; McFarlin v. Essex Co., 
 
 3 Monmouth Canal Co. v. Hartford, 10 Cush. 304; Sawyer v. Kendall, id. 
 1 C. M. & R. 631; Eaton v. Swansea 244; Okeson v. Patterson, 29 Penn, 
 Waterworks Co., 17 Q. B. 267; Ward St. 22; Costello v. Harris, 162 id. 397; 
 v. Robins, 15 M. & W. 237; Pollard v. Benson v. Soule, 32 Maine, 39; Cole- 
 Barnes, 2 Cush. 191 ; Tyler v. Mather, v. Bradbury, 86 id. 380. If the differ- 
 9 Gray, 177; Bodfish v. Bodfish, 105 ent parties do not claim under the 
 Mass. 317; Alta L. & W. Co. v. Han- same title, or one of them within the- 
 cock, 85 Cal. 219; Smith v. Green, twenty years occupies by permission, 
 109 Cal. 228. of the owner of the servient tene- 
 
 4 Mansur v. Blake, 62 Maine, 38 ; ment, the continuity is broken. Win- 
 Polly v. McCall, 37 Ala. 20; Round- ship v. Hudspeth, 10 Exch. 5; Benson. 
 tree v. Brantley, 37 Ala. 544; Wilder v. Soule, 32 Maine, 39; Perrin v. Gar- 
 v. Clough, 55 N. H. 359; Reed v. field, 37 Vt. 309. 
 
§ 336.] prescription. 637 
 
 prescription for a general easement, as of a right of 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. 1 An 
 occasional suspension or interruption of the enjoyment will 
 not defeat the right, if it arises from such causes as the dry- 
 ness of the season ; 2 a temporary failure to exercise the right to 
 the extent claimed; 3 or fluctuations in the flow of the stream. 4 
 So an entry by stealth, or for purposes other than those con- 
 nected with the right to enter, will not break the continuity 
 of exclusive possession in another. 5 So a temporary suspension 
 of the user by agreement, or the temporary substitution of 
 another user for the particular one exercised, is not an inter- 
 ruption; as where A., by agreement with B., makes a canal 
 across a way over his close and builds a bridge over the canal by 
 which B. may cross. 6 But an agreement between the parties, 
 upon sufficient consideration, that suit to recover possession 
 shall not be brought during the life-time of either party, breaks 
 up the adverse character of the holding.* And a clear abandon- 
 ment of a material part, as of a long ditch, may forfeit the right 
 to claim a prescriptive right to the other parts. 8 If the posses- 
 sion is adverse to the real owner, it need not be adverse to the 
 whole world. 9 Merely disputing the right is not sufficient. 10 
 
 § 336. Same — Same. — The diversion of water from a 
 stream by means of a trench is substantially continuous, al- 
 
 iDare v. Heathcote, 35 L. J. N. S. Young, 40 N. H. 436; Tyler v. Wilkin- 
 
 Ex. 245; Cowling v. Higginson, 4 M. son, 4 Mason, 397; Perrinu Garfield, 
 
 & W. 245; Davies v. Stephens, 7 0. & 37 Vt. 310. See Curtis v. Angier, 4 
 
 P. 570. Gray, 547; Plympton v. Converse, 42 
 
 2 Hall v. Swift, 6 Scott, 167; Tyler Vt. 712; Carr v. Foster, 3 Q. B. 581. 
 
 v. Wilkinson, 4 Mason, 397; Geranger s Burrows v. Gallup, 32 Conn. 493. 
 
 v. Summers, 2 Ired. 229; Haag v. "Payne v. Sneddon, 1 Moo. & Rob. 
 
 Delorme, 30 Wis. 591. 382; Lovell v. Smith, 3 C. B. N. s. 120; 
 
 3 Wood v. Kelley, 30 Maine, 47. See Reynold v. Edward, Willes, 282 ; Davis 
 Bodfish v. Bodfish, 105 Mass. 317; v. Morgan, 4 B. & C. 8. 
 
 Branch v. Doane, 18 Conn. 233; 17 id. 7 Dietrick v. Noel, 42 Ohio St. 18. 
 402; Westerns. Flanagan, 120 Mo. 61, 8 Davis v. Herbert, 71 111. App. 257. 
 Pirn v. St. Louis, 122 id. 654; Corn- ^Liddon v. Hodnett, 22 Fla. 442. 
 well Manuf; Co. v. Swift, 89 Mich. "Cox v. Clough, 70 Cal. 345; Mc- 
 
 503; Alcorn v. Sadler, 71 Miss. 634. George v, Hoffman, 133 Penn. St. 381. 
 
 4 Winnipisseogee Lake Co. v. 
 
638 THE LAW OF WATEES. [Ch. XL 
 
 though exercised only in certain months, or when subject to 
 interruption during a part of each year by the owner of the 
 land through which the trench is dug. 1 "Where a prescriptive 
 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 uninterruptedly 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 different persons, one of whom exer- 
 cised the right of flowage for the purpose of floating logs, and 
 another for the purpose of working mills. 2 If a watercourse is 
 first obstructed by a temporary dam erected to aid in the con- 
 struction 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 main- 
 tained is not to be computed as part of the period of prescrip- 
 tion for setting back the stream. 3 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 prescrip- 
 tive right of flowage is interrupted and must begin anew. 4 The 
 use, without objection, of a stream during a period of abundance 
 cannot be the foundation of a prescriptive right. 5 
 
 §337. Same — Notoriety. — The user to be adverse must 
 be attended by such circumstances of notoriety that the per- 
 son against whom the right is exercised may have reasonable 
 notice that the right is claimed against him, and be enabled 
 to resist its acquisition by suit at any time before the period 
 of prescription has elapsed. 6 Thus, the occasional use of flash 
 
 1 Bolivar Manuf. Co. v. Neponset Gardiner, 4 M. & W. 500. See Dana 
 Manut Co., 16 Pick. 241; Cowell v. v. Valentine, 5 Met. 8. 
 
 Thayer, 5 Met. 257; Swan v. Munch, 5 Anaheim Water Co. v. Semi-Tropic 
 
 65 Minn. 500. Water Co., 64 Cal. 185. 
 
 2 Davis v. Brigham, 29 Maine, 391; 6 Gilford v. Winnipisseogee Lak& 
 Kent v. Waite, 10 Pick. 138. Co., 52 N. H. 262; Solomon r. Vint- 
 
 3 Branch w Doane, 17 Conn. 402, 419; ners' Co., 4 H. & N. 602; O'Neil v. 
 18 Conn. 233. See Durgin v. Leigh- Blodgett, 53 Vt. 213; Emery v. Eal- 
 ton, 10 Mass. 56. eigh R, Co., 102 N. C. 209; Cox «. 
 
 4 Carlisle v. Cooper, 19 N. J. Eq. Ward, 107 JN\ C. 507; Elster v. Spring- 
 256; Metz v. Darney, 25 Penn. St. 519; field, 49 Ohio St. 82. 
 
 Barber v. Nye, 65 N. Y. 221; Olney v. 
 
§ 338.] ERESCKIPTION. 639 
 
 boards for brief periods, when little or no injury may be done, 
 does not amount to that open and uninterrupted use which 
 is required. 1 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 ac- 
 quired; 2 but their 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. 8 
 It is a question of fact for the jury whether such user has es- 
 tablished the right; 4 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. 5 The maintenance of a mill-dam is an act of suffi- 
 cient notoriety to raise a presumption of knowledge on the 
 part of the land-owner; 6 but the long continued use of a drain 
 beneath different houses would not give rise to such presump- 
 tion, if the course of the drain was not known to any of the 
 owners of the houses. 7 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 ad- 
 verse possession to the bed of the pond in the absence of fur- 
 ther notice of such a claim to its owner. 8 The raising of grass- 
 upon land rendered unfit by overflow for other cultivation, if 
 done openly, constitutes adverse possession. 9 
 
 § 338. Same — Not permissive. — The enjoyment must also 
 be as of right, and not by license or merely permissive. 10 " If," 
 
 1 Pierce v. Travers, 97 Mass. 306; who have no interest and make no 
 Marcly v. Shults, 29 N. Y. 346; Hall use of the dam is irrelevant. Buck- 
 v. Augsbury, 46 id. 622; Carlisle v. lin v. Truell, 61 N. H. 503. 
 
 Cooper, 21 N. J. Eq. 596. 6 Pen-in v. Garfield, 37 Vt. 311. See 
 
 2 ibid. Green Bay & M. Canal Co. v. Kau- 
 3 Ibid.; Marcly v. Shults, 29 N. Y. kauna W. P. Co., 90 Wis. 370. 
 
 346. 7 Carbrey v. Willis, 7 Allen, 368; 
 
 ■"Noyes v. Silliman, 24 Conn. 15; Hannefin v. Blake, 102 Mass. 297. 
 
 Branch v. Doane, 18 id. 233; 17 id. 8 Eddy v. St. Mars, 53 Vt. 462. 
 
 402; Pollard v. Barnes, 2 Cush. 191. 9 Merrill v. Tobin, 30 Fed. Eep. 738. 
 
 5 Sumner v. Tileston, 7 Pick. 198. See ante, § 22. 
 
 Evidence of complaints made by i° Cholmondeley v. Clinton, 2 Jac.& 
 
 those having no interest to others W. 1; Bright v. Walker, 1 C. M. & 
 
€40 
 
 THE LAW OF WATEBS. 
 
 [Ch. XL 
 
 says Chapman, J., 1 " 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. 2 So an occupa- 
 tion of land under a parol gift from the owner is an occupa- 
 tion as of right. 3 So if under a parol contract by a tenant in 
 common. 4 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 ac- 
 quired by it." 5 The long-continued maintenance of pipes for 
 a water supply across a lot of land will not justify the infer- 
 ence of a grant, if the right to the water supply was founded 
 upon a revocable license which has been revoked. 6 Entry 
 upon lands under a contract of purchase cannot be the founda- 
 tion of an adverse possession, until the contract is renounced ; 7 
 and if a grant is clear, possession beyond what is granted and 
 admitted cannot be presumed adverse. 8 The owner of a ferry, 
 
 E. 219; Baker v. Boston, 1? Pick. 
 184; White v. Chapin, 97 Mass. 101; 
 Kilburn v. Adams, 7 Met. 33; Paine 
 v. Hutchins, 49 Vt. 317; Blaine v. 
 Ray, 61 Vt. 566; Coffrinu. Cole, 67 Vt. 
 226; Williams v. Barber, 104 Mich. 
 31; Postlethwaite v. Payne, 8 Ind. 
 104; Mebane v. Patrick, 1 Jones (N. 
 C), 23; Hall v. McLeod, 2 Met. (Ky.) 
 98; Wiseman v. Lucksinger, 84 N. Y. 
 31; Hoch v. Manhattan Ry. Co., 13 
 N. Y. S. 633; Corning v. Troy Iron 
 Factory, 40 N. Y. 191; Babcock v. 
 Utter, 1 Keyes, 115, 391; 1 Abb. Deo. 
 27; Ingraham v. Hough, 1 Jones, 39; 
 Great Falls W. W. Co. v. Gt. North- 
 ern Ry. Co., 21 Mont. 487; Yeager v. 
 Woodruff, 17 Utah, 361; Vaughan v. 
 Rupple, 69 Mo. App. 583; Winter 
 v. Winter, 8 Nev. 129. The mere fact 
 that the use began in a trespass does 
 not shqw that it was not continued 
 under a claim of right. Sibley v. 
 Ellis, 11 Gray, 417; Santa Cruz v. En- 
 right, 95 Cal. 105; Ball v. Kehl, id. 
 606. 
 
 1 Stearns v. Janes, 12 Allen, 582. 
 
 2 Ashley v. Ashley, 4 Gray, 197; 
 Kimbrall v. Walker, 7 Rich. (S. C.) 
 422. 
 
 3 Sumner v. Stevens, 6 Met. 337; 
 Legg v. Horn, 45 Conn. 415. 
 
 4 Leonard v. Leonard, 10 Mass. 281; 
 Ingalls v. Newhall, 139 Mass. 268. 
 
 5 Cheever v. Pearson, 16 Pick. 266; 
 Becker, v. Church, 115 N. Y. 562; 
 Crpnkhite v. Cronkhite, 94 N. Y. 323; 
 Eckerson v. Crippen, 39 Hun, 419; 
 Taylor v. Gerrish, 59 N. H. 569; Pio- 
 neer Wood Pulp Co. v. Chandos, 78 
 Wis. 526; Lambe v. Manning, 171 111. 
 612. 
 
 6 Johnson v. Knapp, 150 Mass. 267. 
 See Thoemke v. Fiedler, 91 Wis. 386; 
 Costello v. Harris, 162 Penn. St. 397; 
 Chase v. Middleton (Mich.), 82 N. W. 
 Rep. 612. ■ 
 
 7 New York v. Law, 125 N. Y. 380. 
 See Brown v. King, 5 Met. (Mass.) 173. 
 
 8 Heermans v. Schmaltz, 10 Biss. 
 323. 
 
§ 339.] prescription. 641 
 
 who, having opened, as an approach thereto, a lane through 
 his land, which he constantly kept in repair, and which the 
 public used for more than twenty-one years, barred up the 
 lane on ceasing to use the ferry, was held not liable to indict- 
 ment for obstructing a highway, the public user being merely 
 permissive. 1 
 
 § 339. Same — Same. — The presumption of a grant is re- 
 butted if the person prescribing for the easement acknowledges 
 the right of the owner within twenty years, though he does it 
 under a mistake of his own rights. 2 So the asking leave to 
 exercise the right from time to time within the period of pre- 
 scription 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; 3 but the right, when 
 fully established by adverse use, is not lost by asking and re- 
 ceiving 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. 4 It is not necessary that there 
 should be an express claim of the right by the person who en- 
 joys it, or an express admission of the right by the owner of 
 the land. 5 If the owner of a dam admits that it has been 
 raised, and promises to restore the former height when an- 
 other dam is built, he may still gain a prescriptive right in 
 favor of the increased height, as against other persons than 
 the one to whom the admission and promise were made. 6 
 
 1 Root v. Com., 98 Penn. St. 170. a purchase, and pays for the land, or 
 
 2 Mitchell v. Walker, 2 Aik. (Vt.) purchases it and takes a deed which 
 266; New York v. Mott, 15 N. Y. S. is defective, the ensuing possession 
 22; Jensen v. Hunter (Cal.), 41 Pac. of the purchaser is prima facie under 
 Hep. 14. a claim of title in himself, and is, 
 
 3 Monmouthshire Canal Co. v. Har- therefore, adverse. South School 
 ford, 1 C. M. & R. 614; 5 Tyrwh. 58; District v. Blakeslee, 13 Conn. 235. 
 Tickle v. Brown, 4 Ad. & El. 369,382; 4 Tracy v. Atherton, 36 Vt. 503; 
 Beasley v. Clarke, 2 Bing. N. C. 705, Perrin v. Garfield, 37 Vt. 304. 
 
 709; Watkins v. Peck, 13 N. H. 360; 5 Blake v. Everett, 1 Allen, 248; 
 Willey v. Hunter, 57 Vt. 479; Pierce Johnson v. Gorham, 38 Conn. 513; 
 v. Cloud, 42 Penn. St. 102. Any pos- Law v. McDonald, 9 Hun, 23. 
 session of land which is accompanied 6 Lynn v. Thomson, 17 S. C. 129. In 
 by the recognition of a superior title Outram v. Maude, 17 Ch. D. 391; 29 
 still existing, is not adverse to that W.R. 818, the plaintiff was yearly ten- 
 title. Griswold v. Butler, 3 Conn, ant, from 1791 to 1836, of an under- 
 246. But when a person takes pos- ground channel for conducting water 
 session under a parol agreement for from the plaintiff's mill through the 
 41 
 
642 THE LAW OF WATEBS. [Ch. XI. 
 
 There can be no prescription in conflict with a statute, 1 A 
 statute which prohibits the discharge of polluting matter into- 
 sources of water supply for a city or town prevents the acquis 
 sition of a prescriptive right to foul a stream as against such 
 city or town. 2 
 
 § 340. Same — Conditions in the negative. — Prescriptions 
 may 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. 3 It was early declared that a 
 custom may be in the negative, but that, by way of prescrip- 
 tion, the claim must be affirmative. 4 But it is held, that, 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 the restoration of the water to its natural 
 course. 5 In Felton v. Simpson, 6 the Supreme Court of North 
 Carolina held that the 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„ 
 
 landlord's land. This demise was de- 3 Brook v. Willett, 2 H. Black. 224p 
 
 termined in 1836, and a demise of a Paddock v. Forrester, 3 Man. & G. 
 
 new channel, for pure water only, 903; Gray's Case, 5 Bep. 79; Carlisle 
 
 continued in force until 1867, when v. Cooper, 21 N.J. Eq. 597; Mitchell v. 
 
 it was determined by the defendant, Walker, 2 Aik. (Vt.) 270; Watkins 
 
 the landlord's successor. The plaint- v. Peck, 13 N. H. 360, 375. See Smith 
 
 iff, however, continued to use the old v. Musgrove, 32 Mo. App. 241. 
 channel for foul water from 1836 to 4 Colchester v. Goodwin, Carter, 68. 
 
 1879. It' was held, that, being a ten- As to the distinction between custom 
 
 ant, he had not acquired an ease- and prescription, see ante, § 329. 
 ment by prescription in the old chan- 5 Shepardson v. Perkins, 58 N. IL 
 
 nel, although the user thereof was 354; Middleton v. Gregorie, 2 Rich, 
 
 uninterrupted. (S. C.) 631, 638; Delaney v. Boston, 2 
 
 i See Middleton v. Griffiths, 30 L. T. Harr. (Del.) 489; Belknap v. Trimble,. 
 
 N. s. 65; Traill v. M'Allister, 25 L. R. 3 Paige, 577; Smith v. Musgrove, 32 
 
 Ir. 524; Martin v. Gleason, 139 Mass. Mo. App. 241 ; Mathewson v. Hoffman,. 
 
 183. 77 Mich. 420. So of the right to keep 
 
 8 Brookline v. Mackintosh, 133 Mass. the end of an ancient ditch closed 
 
 215; Bloomington v. Costello, 65 111. which has been closed for twenty 
 
 App. 407. So a statute which re- years. Drewett v. Sheard, 7 C. & P. 
 
 quires fishways in dams negatives a 465. 
 
 prescriptive right to maintain a dam 6 Hired. 84. See King v. Chicago- 
 
 previously authorized without such R. Co., 71 Iowa, 696. 
 ways. Parker v. People, 111 111. 581. 
 
§ 341.] PRESCRIPTION. 643 
 
 could not gain a prescriptive right to the benefit of this protec- 
 tion, inasmuch as there was nothing which could be granted, 
 and no adverse possession of anything 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 ease- 
 ment imposed, because it is attended with incidental advan- 
 tages to the latter ; but the former may, if he chooses, cease to 
 exercise it entirely. 1 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 is served. "Where a canal company was au- 
 thorized, but not required, by 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 bene- 
 fit, 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. 2 
 
 § 341 . Same — Burden of proof. — 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 main- 
 tenance of the claim may be contradicted and disproved. 3 If 
 
 1 Beeston v. Weate, 5 El. & Bk. 986; 5 M. & W. 220; Greatrex v. Hay ward, 
 Magor v. Chad wick, 11 Ad. & El. 571; 8 Exch. 291; ante, § 225. In the first 
 North Eastern Railway v. Elliot, 1 of these cases, Cochran, C. J., said 
 John. & H. 154; Arkwright v. Gell, 5 that it is in the essence of an ease- 
 M. & W. 208; Wood v. Waud, 3 Exch. ment to divert a stream that it exists 
 748; Greatrex v. Hayward, 8 Exch. for the benefit of the dominant tene- 
 291; Brymbo "Water Co. v. Lesters ment alone; that its exercise for the 
 Lime Co., 8 R. 329; Sparks Manuf. Co. benefit of that tenement cannot op- 
 v. Newton (N. J. Eq.), 41 Atl. Rep. erate to create a new right for the 
 385; White v. Chapin, 12 Allen, 516; benefit of the servient owner; and 
 Yale v. Brace, 99 Mass. 488; Read v. that, like any other right, its exer- 
 Erie Ry. Co., 97 N. Y. 341; Canton cise may be discontinued, if it be- 
 Iron Co. v. Biwabik B. Co., 63 Minn, comes onerous or ceases to be bene- 
 367 ; Kray v. Muggli (Minn.), 79 N. W. ficial to the party entitled. See Peter 
 Eep. 964; Dunham v. Joyce, 129 Mo. 5. v. Caswell, 38 Ohio St. 518, 522. 
 
 2 Mason v. Shrewsbury Ry. Co., 3 Haight v. Price, 21 N. Y. 241; 
 L. R. 6 Q. B. 578; Arkwright v. Gell, Bradley Fish Co. v. Dudley, 37 Conn. 
 
644 THE LAW OF WATERS. [Ch. XI. 
 
 the possession is adverse and unexplained, the jury should re- 
 gard it as strong ground on which to found the presumption 
 of a grant. 1 If the use of the easement for twenty years is 
 unexplained, it will be presumed to be uuder a claim of right,, 
 and adverse, and be sufficient to establish a title by prescrip- 
 tion, and it is incumbent upon the owner of the servient tene- 
 ment to show that the use was under some license or special 
 contract inconsistent with a claim of right. 2 So proof of a 
 qualified right as to time is to be produced by the party who 
 claims that it was so qualified. 3 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,* but it is to be observed that it is not the mere want of 
 possession by the original owner, however long-continued, but 
 the adverse possession of the claimant, which establishes the 
 latter's right. 5 
 
 §342. Same — Limited by user. — Eights gained by pre- 
 scription are limited in extent by the previous enjoyment, and 
 cannot be materially varied to the injury of others, 6 unless the 
 
 136, 148; Smith v. Miller, 11 Gray, sumption is not diminished when the 
 
 149; Carlisle v. Cooper, 19 N. J. Eq. owners of the two tenements claim 
 
 256; American Co. v. Bradford, 27 under a common grantor. Whiter. 
 
 CaL 360; Miller v. Stowman, 26 Ind. Chapin, 12 Allen, 52a 
 
 143; Ogle v. Dill, 55 Ind. 130. 3 Matter of Water Com'rs, 4 Edw. 
 
 i Campbell v. Wilson, 3 East, 303; Ch. 545; Finch v. Resbridger, 2 Ver- 
 
 Bullen v. Runnels, 2 N. H. 255; Ste- non, 391. 
 
 vens v. Taft, 11 Gray, 33; Chalk v. ^Townsend v. Downer, 32 Vt. 183; 
 
 McAlily, 11 Rich. 153; Esling v. Will- Bradley Fish Co. v. Dudley, 37 Conn, 
 
 iams, 10 Penn. St. 126; Chicago, etc. 136; Boyer v. Little Falls, 38 N. Y. S. 
 
 R. Co. v. Gardner, 66 I1L App. 44; 114. 
 
 Ring v. Pugsley, 2 Pugs. & B. (N. B.) = Ketchum v. Mighton, 14 Q. B. 
 
 303. (Can.) 99. 
 
 2 White v. Chapin, 12 Allen, 516, 6 Bealy v. Shawl 6 East, 208; Brown 
 
 519; Perrin v. GarBeld, 37 Vt. 310; v. Best, 1 Wils. 174; Strutt v. Boving- 
 
 Hammond v. Zehner, 21 N. Y. 118; don, 5Esp. 56; Crossleyy. Lightowler, 
 
 Law v. McDonald, 9 Hun, 23; Mel vin L. R. 2 Ch. 478; L. R. 3 Eq. 279; 
 
 v. Locks & Canals, 16 Pick. 137; Clarke v. Somersetshire Drainage 
 
 White v. Loring, 24 Pick. 319; Gar- Com'rs, 57 L. J. M. C. 96; Blackburne 
 
 rett v. Jackson, 20 Penn. St. 331; v. Somers, 5 L. R Ir. 1; Carlisle v. 
 
 Steffyu Carpenter, 37 id. 41; Wil- Cooper, 21 N. J. Eq. 594; 19 id. 256; 
 
 son v. Wilson, 4 Dev. 154; Cross v. 17 id. 525; Middlesex Co. v. Lowell, 
 
 Lewis, 2 B. & C. 686; Miller v. Gar- 149 Mass. 509; Norway Plains Co. v. 
 
 lock, 8 Barb. 153; Hart v. Vose, 19 Bradley,' 52 N. H. 86, 103; Hogg v. 
 
 Wend. 365. The force of the pre- Bailey, 5 Penn. Sup. Ct. 426; Irving 
 
§ 343.] PRESCRIPTION. 64-5 
 
 new use has been the same continuously for a long period of 
 years, and is itself a prescriptive right. 1 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, 2 and establishes no right to permit 
 it to overflow injuriously upon the land through which it is 
 established. 3 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 highway 
 caused by an increased flow of the water in the channel result- 
 ing from a higher and tighter dam erected in place of that 
 first built. 4 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 conversion of the ditch 
 into the tail-race of a mill, and its enlargement and deepening 
 for that purpose. 5 "Where the user consists in taking fish on a 
 beach without a capstan and reel, this does not authorize set- 
 ting up a capstan and reel on such beach for the purpose of 
 taking fish more conveniently. 6 So the use of a private stream 
 by about twelve persons, three or four times a year, for float- 
 ing logs during thirty years does not establish a general right 
 of public use. 7 
 
 §343. Same — Height of the water. — The extent of the 
 right of flowage acquired by adverse enjoyment over another's 
 
 v. Media (Perm.), 45 Atl. Rep. 482; 2 Porter v. Durham, 74 N. C. 767. 
 
 Russell V. Scott, 9 Cowen, 279; Wilk- See Dietz v. Mission Transfer Co., 95 
 
 low v. Lane, 37 Barb. 244; Prentice Cal. 92; St. Croix Land Go. v. Ritchie, 
 
 v. Geiger, 74 N. Y. 341; Baldwin v. 78 Wis. 492; Pioneer Wood-pulp Co. 
 
 Calkins, 10 Wend. 167; Archibald v. v. Chandos, id. 526; Shaugnessey v. 
 
 New York Cent. R. Co., 37 N. Y. S. Leary, 162 Mass. 108. 
 
 336; Shearer v. Middleton, 88 Mich. _ 3 Tucker v. Salem Flouring Mills 
 
 621; A. P. Cook Co. v. Beard, 108 Co., 13 Oregon, 28. 
 
 Mich. 17; Peterson v. McCullough, 4 Shrewsbury v. Brown, 25 Vt. 197. 
 
 50 Ind. 35; Mitchell v. Parks, 26 Ind. 5 Darlington v. Painter, 7 Penn. St. 
 
 354; Cooper v. Great Falls C. Co., 94 473. 
 
 Tenn. 588. 6 Hart v. Chalker, 5 Conn. 311. See 
 
 1 Prentice v. Geiger, 9 Hun, 350; 74 Melvin v. Whiting, 13 Pick. 184; Mc- 
 
 N. Y. 341 ; Cotton v. Pocassett Manuf. Farlin v. Essex Co., 10 Cush. 304. 
 
 Co., 13 Met. 429; Stein v. Burden, 24 • Meyer v. Phillips, 97 N. Y. 485. 
 Ala. 130. 
 
646 THE LAW OF WATEES. [Ch. XL 
 
 land is not determined by ascertaining how long the claim- 
 ant's dam or mill has been in existence, or by the claim which 
 he makes during the period of prescription. 1 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, 2 and it is incumbent upon the claimant 
 to show that his privilege entitles him to pond it as high as at 
 present. 3 The period of limitation begins to run from the 
 time when the land was first flowed or received actual injury, 4 
 and not from the erection and completion of the dam or ob- 
 struction. 5 To an action for damages by the owner of lands 
 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 plea -was held to be bad, as it did not allege pre- 
 vious user that caused damage to the plaintiff's lands. 6 
 
 § 344. Same — Same. — The general rule is that the height 
 of the dam, when in good condition and repair, including such 
 
 iHulme v. Shreve, 3 Green Ch. 116; grant differs from one by prescrip- 
 
 Carlisle v. Cooper, 21 N. J. Eq. 594; 19 tion, in that the right of the grantee 
 
 id. 256; 17 id. 525; Horner v. Stillwell, in the grant is not affected by the 
 
 35 N. J. L. 307 ; Burnham v. Kempton, fact that he has not at all times ex- 
 
 44 N. H. 78; Bucklin v. Truell, 54 eroised his privilege to its full extent. 
 
 N. H. 122; Russell v. Scott, 9 Cowen, Lacy v. Arnett, 33 Penn. St. 169. See 
 
 279; Baldwin v. Calkins, 10 Wend. Cooper v. Great Falls C. Co., 94 Tenn. 
 
 167; Rogers v. Bruce, 17 Pick. 184; 588. 
 
 O'Brien v. Enright, Ir. R. 1 C. L. 718; 3 Morris v. Commander, 3 Ired. 510. 
 
 Flight v. Thomas, 10 Ad. & El. 590; * Hempsted v. Cargill, 46 Minn. 118. 
 
 Smith v. Russ, 17 Wis. 227; Sabine v. 5 Hurlburt v. Leonard, Brayt. (Vt.) 
 
 Johnson, 35 Wis. 185, 202; Powell v. 202; Nelson v. Butterfield, 21 Maine, 
 
 Lasb, 64 N. C. 456; Jenkins v. Conley, 220; Wentworth v. Sandford Manuf. 
 
 70 N. C. 353; Grigsby v. Clear Lake Co., 33 id. 547; Delaware Canal Co. 
 
 Co., 40 Cal. 407. v. Wright, 21 N. J. L. 469; Williams 
 
 2 Ibid.; Postlethwaite v. Payne, 8 v. Mills County, 71 Iowa, 367; Haisch 
 
 Ind. 104; Mentz v. Darney, 25 Penn. v. Keokuk Ry. Co., id. 806; ante, 
 
 St. 519; Stiles v. Hooker, 7 Cowen, § 210. 
 
 266; Ellington v. Bennett, 59 Ga. 286; « O'Brien v. Enright, Ir. R. 1 C. L. 
 
 Smith v. Russ, 17 Wis. 227; Murray 718; 15 W. R. 637. See Murray v. 
 
 v. Scribner, 70 Wis. 228. A claim by Scribner, 74 Wis. 602. 
 
§ 344.] 
 
 PRESCRIPTION. 
 
 647 
 
 parts and appendages as make its efficient height' in its ordi- 
 nary 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 pond- 
 age of the dam by its being drawn down by use. 1 This rule 
 regulates the right of the owner of a dam who claims by pre- 
 scription, 2 although it is not essential to the existence of such 
 right that the same quantity was used each year, especially in 
 streams subject to extraordinary rainfalls or droughts. 3 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 pur- 
 pose. 4 He may at his pleasure make alterations or improve- 
 ments or increase the'capacity of the machinery which is pro- 
 pelled by the water, if the burden upon the servient tenement 
 is not increased. 5 So, it is not necessary that the dam should 
 
 i Carlisle v. Cooper, 21 N. J. Eq. 
 595; Cowell v. Thayer, 5 Met. 253, 
 258; Bliss v. Rice, 17 Pick. 23; Jack- 
 son v. Harrington, 2 Allen, 242; Win- 
 nipisseogee Lake Co. v. Young, 40 
 N. H. 420; Gilford v. Winnipisseogee 
 Lake Co., 52 N. H. 262; Turner v. 
 Hart, 71 Mich. 128; 27 Cent. L. J. 
 407; Manier v. Myers, 6 B. Mon. 134; 
 Vickerie v. Buswell, 13 Maine, 289; 
 Wood v. Kelly, 30 id. 47; Alder if. 
 Say ill, 5 Taunt. 454; Gerenger v. 
 Summers, 2 Ired. 229; Baker v. Mc- 
 Guire, 53 Ga. 245; Maguire v. Baker, 
 57 Ga. 107; Lane v. Miller, 27 Ind. 
 534. In Cowell v. Thayer, 5 Met. 258, 
 it was held that the right to main- 
 tain a particular dam, acquired by 
 prescription or grant, includes the 
 right to tighten and repair such dam, 
 although the consequence may be a 
 greater flowing than had been usual. 
 This rule does not apply where there 
 is an express agreement, Short v. 
 Woodward, 13 Gray, 86; and is dis- 
 approved in Wisconsin and New 
 Hampshire. Smith v. Rust, 17 Wis. 
 227; Sabine v. Johnson, 35 Wis. 185; 
 Burnham v. Kempton, 44 N. H. 90; 
 Griffin v. Bartlett, 55 N. H. 123; Car- 
 
 lisle v. Cooper, supra. The height of 
 a dam should be fixed by experi- 
 ments, not by theoretical conclu- 
 sions based upon surveys. Decorah 
 Woolen Mill Co. v. Greer, 58 Iowa, 
 86; 49 Iowa, 490; ante, § 200. When 
 an abatement ordered is to be made 
 with reference to the "ordinary 
 stage of the water," it means the or- 
 dinary stage when the stream stands 
 at high-water mark. Ibid. 
 
 2 Daniels v. Citizens' Savings Inst'n, 
 127 Mass. 534; Dexter v. Jefferson P. 
 Co., 50 N. Y. S. 557. 
 
 3 Jordan v. Lang, 22 S. C. 159; John- 
 son v. Boorman, 63 Wis. 268. 
 
 4 LuttrelPs Case, 4 Rep. 87; Saund- 
 ers v. Newman, 1 B. & Aid. 258; Hale 
 v. Oldroyd, 14 M. & W. 789; Baxen- 
 dale v. McMurray, L. R. 2 Ch. 790; 
 Hall v. Swift, 6 Scott, 167; Whittier 
 v. Cocheco Manuf. Co., 9 N. H. 454; 
 Casler v. Shipman, 35 N. Y. 533; Big- 
 low v. Battle, 15 Mass. 313; Miller v. 
 Lapham, 46 Vt. 525; McDonald v. 
 Bear River Co., 13 Cal. 220. 
 
 5 Ibid. See Forbes v. Com., 172 Mass. 
 289. So as to surplus water escaping 
 from a dam, which is rebuilt of dif- 
 ferent materials, the right to divert 
 
64S THE LAW OF WATERS. [Ch. XL 
 
 have been maintained for the whole period upon the same spot,, 
 if the lines of the actual enjoyment of the easement are not 
 changed. 1 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 re- 
 quired for the getting off of the hay from the meadow below, 
 the extent of that modification is measured by the time rea- 
 sonably 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. 2 
 
 § 345. Same — Pollution. — The right to pollute a stream 
 to a greater extent than is permissible of common right may 
 be acquired by prescription, as against individuals, 3 but not 
 against public rights. 4 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 an- 
 nually deposited on such land during the whole of that period.* 
 
 the water held by the dam having 1 M. & W. 77; Att. Gen. v. Halifax, 
 
 been gained by prescription. Wong 39 L. J. Ch. 129; Cater v. Lewisham, 
 
 Kim v. Kioula, 4 Hawaiian, 504 So 11 Jur. n. s. 340; Lentz v. Carnegie, 
 
 the form of a reservoir cover used in 145 Penn. St. 612; Warren v. Hunter, 
 
 the enjoyment of an aqueduct ease- 1 Phila. 414. 
 
 ment gained by prescription is not 4 Kelley v. New York, 27 N. Y. S. 
 
 fixed by the prescription, but may be 164; Boyer v. Little Falls, 38 id. 1114; 
 
 reasonably changed, if the aqueduct Taylor v. Chicago, etc. Ry. Co., 83 
 
 proprietors are not injured, by the Wis. 645; Bowen v. Wen dt, 103 CaL 
 
 owner of the servient tenement in 236. 
 
 the enjoyment of his grounds. Olcott b Murgatroyd v. Robinson, 7 E. & B . 
 
 v. Thompson, 59 N. H. 154. 391. 
 
 1 Davis v. Brigham, 29 Maine, 391 ; 6 ibid. ; Crosby v. Bessey, 49 Maine, 
 Stackpole v. Curtis, 32 id. 383; Car- 539. A grant of land for a tannery 
 lisle v. Cooper, 21 N. J. Eq. 595; Ogle with the right to take water from 
 v. Dill, 55 Ind. 130; Johnson v. Rand, the grantor's mill-pond, "for carry- 
 6 N. H. 22. ing away the spent bark," does not 
 
 2 Powers v. Osgood, 102 Mass. 457; confer the right to discharge the- 
 Ray v. Fletcher, 12 Cush. 200. bark into the stream, so that it will 
 
 3 Crossley v. Lightowler, L. R. 2 lodge upon the grantor's premises, or 
 Ch. 478; L. R. 3 Eq. 279; Wood v. obstruct the flow of the water. Win- 
 Waud. 3 Exch. 748; Carlyon v. Lov- Chester v. Osborne, 61 N. Y. 555; re- 
 ering, 1 H. & N. 784; Moore v. Webb, versing s. C. 62 Barb. 337. 
 
 1 C. B. N. s. 673; Wright v. Williams, 
 
§ 346.] PRESCRIPTION. 64:9 
 
 So, the mere use for the statutory period of: a ditch, the wash- 
 ings 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. 1 As 
 the right is measured by the enjoyment, one proprietor can- 
 not acquire a right by prescription to pollute the stream to a 
 greater extent or in a different manner than it was polluted at 
 the commencement of the twenty years. 2 " It may be diffi- 
 cult," says Lord Chelmsford, L. C., 3 " 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. Same — Same. — In order to establish such a right, 
 there must be a perceptible amount of injury throughout the- 
 statutory period, and, if within 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 continu- 
 ance and increase. 4 So, acquiescence in a certain amount of 
 nuisance is not acquiescence in a nuisance which is constantly 
 increasing in magnitude, so as to constitute laches. 5 A city 
 which for forty years has drained sewers into a private mill- 
 pond, the waters of which have been impaired seriously thereby 
 only during the last fifteen years, has no prescriptive right to 
 continue the discharge under the limitation of twenty years, and 
 may be enjoined from continuing it. 6 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 
 
 1 Cooper v. Barber, 3 Taunt. 99; ^Goldsniid v. Tun bridge Wells 
 Roundtree v. Brantley, 34 Ala. 544 Conirs, L. R. 1 Ch. 349; L. R. 1 Eq. 
 
 2 Crossley v. Lightowler, L. R. 2 Ch. 161 ; Att. Gen. v. Leeds Corp., L. R. 5 
 478; L R. 3 Eq. 279; Moore v. Webb, Ch. 583, 596; Pennington v. Brinsop 
 1 C. B. n. s. 673; MTntyre v. M'Gavin, Hall Coal Co., 5 Ch. D. 769; Murga- 
 [1893] A. C. 268; McCallum v. Ger- troyd v. Robinson, 7 El. & Bk. 391. 
 mantown Water Co., 54 Penn. St. 40; s Woodruff v. North Bloomfield G. 
 Jones v. Crow, 32 id. 398; Holsman M. Co., 8 Sawyer, 628; 9 id. 441. 
 
 v. Boiling Spring Bleaching Co., 14 6 Middlesex Co. v. Lowell, 149 Mass. 
 N. J. Eq. 335, 346. 509. 
 
 3LR.2Ch.48L 
 
650 THE LAW OF WATERS. [Ch. XI. 
 
 of pollution and injury arising from the use of the new ma- 
 terials. 1 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, 2 or of establishing a busi- 
 ness causing pollution of a totally different kind, even though 
 less in degree. 3 So if a fulling mill is prescribed for, and it 
 has been changed to a grist mill, it is still the use of the stream 
 for a mill that is claimed ; 4 and if the subject matter is a tow- 
 ing path along a navigable river, and a statute changes it into 
 a. floating harbor, the ,public aid to navigation continues. 5 A 
 prescriptive right may also be acquired to go upon another's 
 land for the purpose of cleansing a watercourse, or for pur- 
 poses connected therewith, under a claim of right to the water- 
 course itself. 6 An easement which injures all whom it affects 
 and benefits no one cannot be acquired by prescription. 7 
 
 § 347. Same — Different uses. — 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 reservation, and can be construed to be con- 
 sistent with its terms. 8 When an express grant is made of the 
 right to use the water for a particular purpose, or within cer- 
 tain limits, the grantee may acquire a prescriptive right to use 
 it for a different purpose, or to a larger extent as if under a 
 superadded grant. 9 In "Wheatley v. Chrisman, 10 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 
 
 1 Baxendale v. McMurray, L. R. 2 7 Louisville R Co. v. Hays, 11 Lea 
 Ch. 790; Luttrell's Case, 4 Rep. 86. (Term.), 383. 
 
 2 Holsraan v. Boiling Spring Bleach- 8 Atkins v. Boardman, 30 Pick. 391; 
 ing Co., 14 N. J.IEq. 335, 346. 2 Met. 457; Gayetty v. Bethune, 14 
 
 3 Clarke v. Somersetshire Drainage Mass. 49; Butterfield v. Reed, 160 
 Com'rs, 36 "W. R. 890; 59 L. T. N. s. Mass. 361; Barber v. Nye, 65 N. Y. 
 670. 311, 331; MoCabe v. Hood, 13 Ohio 
 
 « Luttrell's Case, 4 Co. 86. See Cir. Ct. 631. 
 
 Blanohard v. Baker, 8 Greenl. 353. 9 01mstead v. Loomis, 9 N. T. 433; 
 
 5 Rex v. Tippett, 3 B. & Aid. 193; Gehman uErdman,105Penn.St.371. 
 
 Codling v. Johnson, 9 B. & C. 933. "24 Penn. St 298. 
 
 5 Peter v. Daniel, 5 C. B. 568; Bees- 
 ton v. Weate, 5 E. & B. 986. 
 
§ 348.] PEESCEIPTION. 651 
 
 upper proprietor, rendering the water unfit for the latter pur- 
 pose, were held to be an infringement upon the prescriptive 
 right of the lower proprietor to apply the water to that use. 
 
 § 348. Same — Abandonment — Acquiescence. — After the 
 acquisition of an easement by prescription is complete, it may 
 be lost by abandonment, when the facts or circumstances 
 clearly indicate such an intention. 1 Non-user is one element 
 in determining such intention, and if long continued, is pre- 
 sumptive evidence that the right is lost. 2 But a jury is not 
 bound to infer an abandonment from non-user alone, though 
 continued for more than twenty years. 3 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 ; 4 and 
 if the non-user is not accompanied by acts showing an inten- 
 tion to abandon, evidence of adverse possession, as well as non- 
 user, is necessary to effect the extinguishment, 5 although no dec- 
 laration of abandonment is made. 6 In Crossley v. Lightowler, 7 
 it was held that the actual disuse of a prescriptive right to foul 
 a stream for twenty years, during which time others had ac- 
 quired adverse rights, destroys the right of fouling. In Ohand- 
 
 1 Carlisle v. Cooper, 19 N. J. Eq. from non-user, though not extending 
 
 256; 21 N. J. Eq. 576; Shields v. over twenty years, when a way is 
 
 Arndt, 3 Green Ch. 234; Doe v. Hil- substituted for a previous way with 
 
 der, 3 B. & Aid. 791 ; Jamaica Pond the consent of the person entitled. 
 
 Aqueduct v. Chandler, 121 Mass. 3; Mulville v. Fallow, Ir. E. 6 Eq. 458. 
 
 Clinton Gas Light Co. v. Fuller, 170 4 Horner v. Stillwell, 35 N. J. L. 307; 
 
 Mass. 82; Freedom v. Norris, 128 Ind. Ward v. Ward. 7 Exch. 838. 
 
 377; Parkins v. Dunham, 3 Strob. 224 5 Veghte v. Earitan Water Power 
 
 2 Hillary v. Waller, 12 Ves. 265; Co.,19N. J.Eq. 141; 21 id. 463; Browne 
 
 Farrar v. Cooper, 34 Maine, 394; v. Trustees, 37 Md. 119; Wright v. 
 
 Steere v. Tiffany, 13 E. L 568; Meth. Freeman, 5 H. & J. 467, 477; Harvie 
 
 E. Church v. Old Columbia P. G. Co., v. Rogers, 3 Bligh, n. s. 440; Pillsbury 
 
 103 Penn. St. 608. v. Moore, 44 Maine, 154; Cuthbert v. 
 
 3 Veghte v. Earitan Water Power Lawton, 3 McCord, 195; Smyles v. 
 
 Co., 19 N. J. Eq. 141; 21 N. J. Eq. Hastings, 22 N. Y. 217; Eddy v. Chase, 
 
 463; Barnes v. Lloyd, 112 Mass. 231; 140 Mass. 471; Smith v. Langewald, 
 
 Bannon uAngier, 2 Allen, 129; Pratt id. 205; McConnell v. American B. 
 
 v. Sweetser, 68 Maine, 344; Howard P. Co., 41 N. J. Eq. 447. 
 
 v. Britton, 67 N. H. 484; Maguire v. 6 Middlesex Co. v. Lane, 149 Mass. 
 
 Baker. 57 Ga. 109; Townsend v, Mc- 101. 
 
 Donald, 12 N. Y. 381; Nitzell v. "L. R. 2 Ch. 478; L. E. 3 Eq. 277; 
 
 Paschall, 3 Eawle, 76. A release of Ward v. Ward, 7 Exch. 838; Cook v. 
 
 the original right will be inferred Bath, L. R. 6 Eq. 178. 
 
652 THE LAW OF WATEKS. [Ch. XL 
 
 ler v. Jamaica Pond Aqueduct Corporation, 1 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 extin- 
 guished. A misuse of an easement, however great the perver- 
 sion, is not an abandonment; 2 and an easement does not be- 
 come merged or lost by 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. 3 Upon the 
 extinguishment of an easement the purchaser of the dominant 
 tenement has no remedy against one who thereafter purchases 
 the servient tenement. 4 
 
 § 349. Same — Same. — 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. 5 The creation by the parties of a new right, which 
 is inconsistent with the nature or exercise of the servitude, 
 however acquired, extinguishes the former right. 8 If tenants 
 
 U25 Mass. 544; Owen v. Field, 102 id. 329; Haight v. Proprieters, 4 
 
 Mass. 90; Barnes v. Lloyd, 112 Mass. Wash. C. C. 601; Hazard v. Robin- 
 
 224; Jennison v. Walker, ,11 Gray, son, 3 Mason, 275; Leonard v. Spen- 
 
 423; 3 Kent Com. 448; Hoffman v. cer, 108 N. Y. 338; Dean v. Benn, 23 
 
 Savage, 15 Mass. 130; Beardslee v. N. Y. S. 708; Suydam v. Dunton, 
 
 French, 7 Conn. 125. 32 id. 333; Mowry v. Sheldon, 2 R. L 
 
 2 Locks & Canals v. Nashua & Low- 369; Morrill v. Mackman, 24 Mich, 
 ell R. Co., 104 Mass. 8. , 279; Rogers v. Canal River B. Co., 39 
 
 3 Ibid.: Tyler v. Hammond, 11 Pick. W. Va. 272; Hester v. Hunnicutt, 
 193, 220; White's Bank v. Nichols, 64 104 Ala. 282; Rigney v. Tacoma L & 
 N. Y. 65; Marshall v. Taylor, [1895] 1 W. Co., 9 Wash. 576; Moore v. Brown- 
 Ch. 641. field, 10 Wash. 439; Hargrave v. 
 
 4 Ballard v. Butler, 30 Maine, 94. Cook, 108 Cal. 72; Poynter v. Chip- 
 
 5 Queen v. Chorley, 12 Q. B. 515; man, 8 Utah, 442. 
 
 Stokoe v. Singers, 3 El. & Bl. 31; « Taylor u Hampton, 4 McCord, 96; 
 
 Davis v. Marshall, 10 C. B. n. s. 697; Illinois Central R. Co. v. Allen, 39 
 
 Case of the Watercourses, 2 Eq. Cas. 111. 205; United States Life Ins. Co. 
 
 Abr. 522; Jones v. Adams, 162 Mass. v. Oswego Canal Co., 10 N. Y. S. 603; 
 
 224; Johnson v. Hyde, 33 N. J. Eq. Louisville & N. R. Co. v. Daugherty 
 
 633; Carlisle v. Cooper, 21 id. 591; (Ky.), 36 S. W. Rep. 5. 
 Society v. Lehigh Valley R. Co., 32 
 
§ 349.] prescription. 653 
 
 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 N extinguished. 1 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. 2 So the owner of an irrigation 
 ditch constructed on public lands, who allows subsequent set- 
 tlers to take up lands that can only be irrigated by the ditch, 
 and labor upon and increase its capacity, is estopped to deny 
 their right to use it. 3 So too an estoppel arises from a con- 
 veyance of the right to cut a ditch, made by an agent without 
 authority, if the grantor accepts the purchase money, retains 
 it for several months, and allows money to be expended upon 
 the work. 4 But assent to the building of a dam which proves 
 to be a nuisance does not work an estoppel, unless the assent 
 was given with knowledge or reason to believe that a nuisance 
 would result. 5 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 leveled it, and then stood by 
 
 1 Hamilton v. Farrar, 128 Mass. 492; Oregon, 34; Morrison v. Winn, 18 
 131 id. 572. See Griffin v. Lawrence, Utah, 15. 
 
 135 Mass. 365. 4 Franklin v. Pollard Mill Co., 88 
 
 2 Sheldon v. Rockwell, 9 Wis. 167; Ala. 318; Reed v. Rich, 49 III. App. 
 Thomas v. Woodman, 23 Kansas, 217 ; 262. 
 
 Wilson v. Vaughn, 40 Iowa, 179; 5 Corley v. Lancaster, 81 Ky. 171; 
 
 Churchill v. Baumann, 95 Cal. 541; Driscoll v. Taunton, 160 Mass. 486; 
 
 104 Cal. 369; Jacox v. Clark, Walk. Chase v. Warsaw W. W. Co., 29 N. Y. 
 
 Oh. 249. See Fremont Ferry Co. v. S. 729; Searing v. Saratoga Springs, 39 
 
 Dodge County, 6 Neb. 18; Powers v. Hun, 307; Lampman v. Van Alstyne, 
 
 Bald Eagle Boom Co., 125 Penn. St. 94 Wis. 417; Lancaster Ave. Impr. 
 
 175; Fox v. Fostoria, 14 Ohio Cir. Ct. Co. v. Humphreys, 12 Mont. Co. L. 
 
 471. Rep'r (Penn.), 66; Hallock v. Suitor 
 
 3 Lehi Irr. Co. v. Moyle, 4 Utah, (Oregon), 60 Pac. Rep. 384; Lower 
 
 327; Campbell v. Shi vers, 1 Ariz. 161; Latham Ditch Co. v. Louden Ir. 
 
 Curtis v. La Grange H. W. Co., 20 Canal Co. (Col.), id. 629. 
 
654 THE LAW OF WATEKS. [Ch. XL 
 
 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. 1 But usually something 
 more than mere silence is required to create such an estoppel, 
 and a riparian owner who sees an opposite proprietor building 
 a factory and digging a race for the diversion of water from 
 the stream has been held not to lose his rights by not objecting.* 
 And so of flooding a neighbor's land. 3 This holds good par- 
 ticularly when the plaintiff and defendant are equally well in- 
 formed. 4 A mere request to institute legal proceedings before 
 an intended diversion of water is made, does not create a 
 Avaiver of any right, if it is not complied with, and the person 
 making the request knows that his right to divert is disputed. 5 
 
 § 350. Same — Same. — In Birmingham Canal Co. v. Lloyd, 6 
 the plaintiffs, who had the use of certain reservoirs, were noti- 
 fied 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, 7 it was held that, al- - 
 though twenty years may not have elapsed from the time of 
 
 1 Wilson v. Vaughn, 40 Iowa, 179; Southwestern R Co. v. Mitchell, 69 
 
 Anderson v. Hubble, 93 Ind. 570; id. 114. 
 
 Clement v. Gould, 61 Vt. 573. Estop- 2 New York Rubber Co. v. Rothery, 
 
 pel by conduct, as a defense, is 107 N. Y. 310; Flat River F. & P. Co. 
 
 equally available at law or in equity, v. Kelley, 70 Wis. 287; Lux v. Haggin, 
 
 Concord v. Norton, 16 Fed. Rep. 477; 69 Cal. 255; Huddleston v. West 
 
 Drexel v. Berney, id. 522; Loud Gold Bellevue, 111 Penn. St. 110. An es- 
 
 M. Co. v. Blake, 24 id. 249; Alexander toppel in pais, to be available, must 
 
 v. Woodford S. L. Fish Co., 89 Ky. be pleaded. Bray v. Marshall, 75 Mo. 
 
 100; Brown v. Evans, 18 Nev. 141; 327. 
 
 Stockman v. Riverside Land Co., 64 3 Ragan v. Kansas City & S. E R. 
 
 Cal. 57. The defendant in a suit for Co., 144 Mo. 623. 
 
 maintaining a dam cannot show his 4 Jones v. Proprietors, 62 N. H. 488. 
 
 expenditures, when there is no ele- 5 Williams v. Wadsworth, 51 Conn, 
 
 ment of estoppel in the case. De 277. 
 
 Vaughn v. Minor, 77 Ga. 809. See 6 18Ves. 515. 
 
 Imboden v. Etowah M. Co., 70 Ga. 86 ; 7 34 Maine, 394. 
 
§ 351.] PEESCEIPTION. 655 
 
 ceasing to use a mill privilege, prior to its being overflowed 
 and destroyed by a lower dam, yet an abandonment of the 
 upper privilege may be presumed, if its owner, witnessing the 
 erection of the lower dam and of expensive works in connec- 
 tion therewith, and knowing that it must destroy his privi- 
 lege, makes no effect to prevent it, or claim for remuneration, 
 within the residue of the twenty years. In Corning v. Troy 
 Iron Factory, 1 it was held that the owner of a water privilege 
 who assents to the erection by another of expensive machin- 
 ery 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 res- 
 toration 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 jDlaintiff did not object 
 to the building of the dam, and gratuitously assisted in its 
 erection, if he did not know and could not foresee the injury. 2 
 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. 3 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. Same — Same. — When an easement is once estab- 
 lished by grant, or by prescription which presupposes a grant, 
 it cannot be extinguished by a parol agreement, 5 at least, if 
 such agreement is unexecuted. 6 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 ex- 
 
 140 N. Y. 191. Dyer v. Sanford, 9 Met. 395; Bronson 
 
 2 Bell v. Elliott, 5 Blackf. 113. v. Coffin, 108 Mass. 186. 
 
 3 Hepburn v. McDowell, 17 S. & R. 6 Dyer v. Sanford, 9 Met. 395; Pope 
 383; Brown v. Spalding, 1 Pitts. 361. v. Devereux, 5 Gray, 412; Morse v. 
 See Haven v. Seeley, 59 Cal. 494; Copeland, 2 Gray, 304; Curtis v. 
 Stockman v. Riverside Land Co., 64 Noonan, 10 Allen, 409; Wallis v. Har- 
 Cal. 57. rison, 4 M. & W. 538; Bannon v. An- 
 
 4 Farrar v. Cooper, 34 Maine, 394. gier, 2 Allen, 128. 
 s Pue v. Pue, 4 Md. Ch. Dec. 386; 
 
656 
 
 THE LAW OF WATEKS. 
 
 [Ch. XL 
 
 istence of the easement, that are required in order to establish 
 an easement by prescription. 1 It would seem that a title ac- 
 quired by prescription is as strong as a title acquired by grant, 
 and that, where no element of estoppel enters into the case, 
 such as witnessing without objection the erection of a dam 
 and expensive works upon the stream, 2 the prescriptive right 
 would not be abandoned without a non-user for twenty years, 3 
 although according to the decisions in England and in several 
 States, the intention is the material consideration in determin- 
 ing whether there has been an abandonment, and a cesser of 
 use for a less period than twenty years, accompanied by acts 
 clearly indicative of the intent to abandon the prescriptive 
 right, is sufficient. 4 This doctrine, if correct, would not apply 
 to the abandonment of an easement within the twenty years 
 during which the right thereto is accruing. 5 
 
 § 352. Same — Temporary enjoyment. — The right to arti- 
 ficial watercourses, as against the party creating them, depends 
 upon the character of the watercourse, whether it is of a per- 
 
 1 Veghte v. Earitan Canal Co., 19 
 N. J. Eq. 142; 21 id. 463; Hayford v. 
 Spokesfield, 100, Mass. 491; Owen v. 
 Field, 102 Mass. 90, 114; Arnold v. Ste- 
 vens, 24 Pick. 106 ; Knapp v. Douglas 
 Axe Co., 13 Allen, 1 ; White v. Craw- 
 ford, 10 Mass. 188: Wetmore v. Fiske, 
 15 E. I. 354; Com'rs v. Hugo, 10 App. 
 Cas. 336; Smyles v. Hastings, 22 N. 
 Y. 217; Casler v. Shipman, 35 N. Y. 
 542; Jewett v. Jewett, 16 Barb. 150; 
 Townsend v. McDonald, 12 N. Y. 381 ; 
 Doe v. Butler, 3 Wend. 149; Maguire 
 v. Baker, 57 Ga. 109; Nitzell u Pas- 
 chall, 3 Eawle, 76; Butz v. Ihrie, 1 
 Eawle, 218; Teakle v. Nace, 2 Whart. 
 123; Noll u Dubuque Eailroad, 32 
 Iowa, 66. An easement created by 
 grant does not become extinguished 
 merely because the necessity for its 
 use has ceased. Atlanta Mills v. 
 Mason, 120 Mass. 244. But an ease- 
 ment, created by grant, to take water 
 from one tenement to be used for the 
 running of a mill situated on another, 
 and appurtenant to the mill only, and 
 not to any parcel of land, is lost if 
 
 the mill is destroyed and not rebuilt. 
 Day v. Walden, 46 Mich. 575. 
 
 2 Stokoe v. Singers, 8 EL & Bk. 31; 
 Farrar v. Cooper, 34 Maine, 394; Tay- 
 lor v. Hampton, 4 McCord, 96. 
 
 3 Bower v. Hill, 1 Bing. N. C. 549; 
 Johnston v. Hyde, 33 N. J. Eq. 643; 
 Curtis v. Jackson, 13 Mass. 507; Jen- 
 nison v. Walker, 11 Gray, 423; Hurd 
 v. Curtis, 7 Met. 94; Williams v. Nel- 
 son, 23 Pick. 141; Day v. Walden, 46 
 Mich. 575 ; Corning v. Gould, 16 Wend. 
 531; Warren v. Syme, 7 W. Va. 474; 
 Dyer v. Duqui, 5 Whart. 584; Bowen 
 v. Team, 6 Eich. (S. C.) 305. 
 
 * Queen v. Chorley, 12 Q. B. 515; 
 Moore v. Eawson, 3 B. & C. 332; 5 
 Dowl. & EyL 234; Liggins v. Inge, 7 
 Bing. 682; Mann v. Brodie, 10 App. 
 Cas. 378; Dyer v. Sanford, 9 Met. 395; 
 Pope v. Devereux, 5 Gray, 412; Mis- 
 sissippi Central E. Co. v. Mason, 51 
 Miss. 234. 
 
 5 Ibid. ; Dana v. Valentine, 5 Met. 
 8; Cuthbert v. Lawton, 3 McCord, 
 195. 
 
§ 353.] PEESCEIPTION. 657 
 
 manent 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 enbankments, 
 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 neigh- 
 bor to insist that the house shall not be pulled down or altered, 
 so as to diminish the quantity of water flowing from the roof. 1 
 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. 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. 2 
 
 §353. Same — Statutory right. — In Massachusetts it is 
 held that the unexplained enjoyment for twenty years, and 
 without any claim or payment 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 damages. 3 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 proceed- 
 ings under the statute. 4 In general, the time of prescription 
 begins to run only when injury is sustained, and not from the 
 wrongful act. 5 
 
 1 Ownership of a partly overhang- Underwood v. North "Wayne Scythe 
 
 ing building does not give the owner Co., 41 id. 291; Gleason v. Tuttle, 46 
 
 the right to raise the overhanging id. 288; Tinkham v. Arnold, 3 Greenl. 
 
 part. Laybourn v. Gridley, [1892] 2 120; Seiden spargers. Spear, 16 Maine, 
 
 Ch. 53. 123; post, % 602. 
 
 2 Wood v. Waud, 3 Exoh. 777; « King v. United States, 59 Fed. 
 
 Greatrex v. Hay ward, 8 id. 291; Eep. 9; Ridley v. Seaboard & E. R. 
 
 Rawstron v. Taylor, 11 id. 380; Broad- Co., 118 N. C. 996; Lebanon v. Twi- 
 
 _ bent v. Eamsbotham, id. 602. ford, 13 Ind. App. 384; McCormick 
 
 3 Williams v. Nelson, 23 Pick. 141. v. Winters, 94 Iowa, 82; Howard 
 ■See Missouri, etc. Ey. Co. v. Graham, County v. Chicago & A. E Co., 130 
 12 Tex. Civ. App. 54. Mo. 652; Indiana, etc. R. Co. v. 
 
 4 Nelson v. Butterfleld, 21 Maine, Pachette, 59 111. App. 251; Chicago, 
 220; Augusta v. Moulton, 75 id. 284; etc. R, Co. v. Willi, 53 id. 603; Baker 
 
 42 
 
658 THE LAW OF WATEES. [Ch. XL 
 
 § 354. Severance of tenements. — The general rules relat- 
 ing to severance of tenements are that a grant by the owner 
 of a tenement or part of that tenement, as it is then used and 
 enjoyed, passes to the grantee by implication, and without the- 
 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, 1 
 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. 2 If, therefore, the 
 owner of land conveys away a portion of his premises, a part 
 of which 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 pur- 
 chaser, and cannot be cut off by the grantor. 3 So, the grant. 
 
 v. Leka, 48 id. 353; Ohio & M. Ry. 27; Watson v. Troughton, 48 L. TV 
 Co. v. Nuetzel, 43 id. 108; 143 111. 46; N. s. 508; Jamaica Pond Aqueduct 
 Henry v. Ohio River R. Co., 40 W. Va. Corp. v. Chandler, 9 Allen, 164 
 234; Bunten v. Chicago, etc. Ry. Co., Spaulding v. Abbott, 55 N. H. 423 
 50 Mo. App. 414; Savannah, etc. Ry. Tourtellot v. Phelps, 4 Gray, 378 
 Co. v. Bul'ord, 106 Ala. 303; St. Louis, Michell v. Seipel, 53 Md. 251; Oak- 
 etc. Ry. Co. v. Yarborough, 56 Ark. ley v. Stanley, 5 Wend. 523; Elliott 
 612; Cons. Home, etc. Co. v. Hamlin, v. Rhett, 5 Rich. (S. C.) 405; 57 Am. 
 6 Col. App. 341; Clark v. Byer, 81 Bee. 750, note; Hammond v. Wood- 
 Texas, 339; Bonner v. Wirth, 5 Tex. man, 41 Maine. 177; Tread well v. 
 Civ. App. 560; Ballas v. Young (Tex. Inslee, 120 N. Y. 458; Munison v. 
 Civ. App.), 28 S. W. Rep. 1036. Reid, 46 Hun, 399; Smith v. Smith,. 
 
 'See Pearson v. Spencer, 3 B. & S. 62 N. H. 429; Smith v. Beaupied, id. 
 
 761; Pettingill v. Porter, 8 Allen, 1; 652; Wentworth v. Philpot, 60 N. H. 
 
 Morrison v. Marquardt, 24 Iowa, 35. 193; Hair v. Bowning, 96 N. C. 172; 
 
 2 Wheeldon v. Burrows, 12 Ch. B. Crosland v. Rogers, 32 S. C. 130; Mc- 
 31; Russell v. Watts, 25 id. 559; Ten- Makin v. Magee, 13 Phila. 105; Fran- 
 ant v. Goldwin, 2 Ld. Raym. 1089, cis's Appeal, 96 Penn. St. 200; Root 
 1093; Hinchcliffe v. Kinnoul, 5 Bing. v. Wadhams, 35 Hun, 57; Erickson 
 N. C. 1; Barnes v. Loach, 4 Q. B. B. v. Michigan Land Co., 50 Mich. 614 
 494; Wardle v. Brocklehurst, 1 El. & 3 Burr v. Mills, 21 Wend. 290; 
 El. 1058; Palmer v. Fletcher, 1 Lev. United States v. Appleton, 1 Sum- 
 122; Swansborough v. Coventry, 9 ner, 492; Cole v. Bradbury, 86 Maine, 
 Bing. 305; Cox v. Mathews, 1 Vent. 380; Mason v. Horton, 67 Vt. 266; 
 237; Compton v. Richards, 1 Price, Weynand v. Lutz (Tex. Civ. App.),- 
 
§ 355.] 
 
 SEVERANCE OF TENE 
 
 ilENTS. 
 
 65& 
 
 of a dam on another's soil entitles the grantee to enter for the 
 purpose of repairing the dam. 1 It is, however, a matter of 
 contract depending entirely upon the construction of the con- 
 veyance, 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. 2 4 
 
 §355. Same — Implied grants. — A grant will be implied 
 especially in favor of easements of air and light, lateral sup- 
 port, partition walls, drains, aqueducts, conduits, and water- 
 pipes or spouts, all these being continuous easements technically 
 so called, that is, easements which are enjoyed without any 
 active intervention of the party entitled to enjoy them ; but 
 ways are not in this sense continuous easements, being enjoyed 
 only as they are traveled. 3 The application of the doctrine to 
 ways has been quite uniformly denied, 4 although there are cases, 
 
 29 S. W. Rep. 1097. See Dunklee v. 
 Wilton R. Co., 24 N. H. 489. 
 
 i Frailey v. Waters, 7 Penn. St. 221; 
 Fountain v. Perth Amboy, 60 N. J. L. 
 410; Skull v. Glenister, 11 W. R. 368; 
 Goodhart v. Hyett, 32 W. R. 165; 
 Phear's Rights of Water, 72-74. See 
 Mansfield v. Shepard, 134 Mass. 520. 
 
 2 Hall v. Lund, 1 H. & C. 676; John- 
 son v. Jordan, 2 Met. 234. 239. 
 
 3 Coxu Forrest, 60 Md. 74; Corbett 
 v. Jonas, [1892] 3 Ch. 137; Toothe v. 
 Bryce, 50 N. J. Eq. 589; Meredith v. 
 Frank, 5 Ohio St. 479; 45 Cent. L. J. 
 352, and note. An implied grant or 
 reservation of appurtenances or ease- 
 ments is much more readily inferred 
 in the grantee's favor than the 
 grantor's. Marcy v. Reimer, 62 N. Y. 
 S. 203. "An easement, where it is 
 not expressly described in the con- 
 veyance, must actually belong to the 
 estate conveyed in order to pass by 
 implication." Philbrick v. Ewing, 
 97 Mass. 133 ; Johnson v. Knapp, 146 
 'Mass. 70, 75; Bumstead v. Cook, 169 
 Mass. 410; Swanzey v. Brooks, 34 Vt. 
 451; McElroy v. McLeay (Vt.), 45 
 Atl Rep. 898; Spaulding v. Abbott, 
 
 55 N. H. 423. Upon the subdivision 
 for building lots of a tract of land, 
 for which an easement in fee in the 
 water of a spring has been created 
 by deed, for the benefit of and ap- 
 purtenant to the tract, each lot has 
 an interest in the easement. Durkin 
 v. Cobleigh, 156 Mass. 108.111; Blood 
 v. Millard, 172 Mass. 65. See Wheel- 
 ock v. Jacobs, 70 Vt. 162; Van Horn 
 v. Clark, 56 N. J. Eq. 476. 
 
 4 Pheysey v. Vicary, 16 M. & W. 
 484; Whalley v. Thompson, 1 B. & P. 
 371; Worthington v. Gimson, 2 El. 
 
 6 El. 618; Dodd v. Burchell, 1 H. & 
 C. 113; Polden v. Bastard, 4 B. & S. 
 258: L. R. 1 Q. B. 155; Barlout v. 
 Rhodes, 1 C. & M. 448; Thompson v. 
 Waterlow, L. R. 6 Eq. 36; Langley 
 v. Hammond, L. R. 3 Ex. 161; Daniel 
 v. Anderson, 31 L. J. N. s. 610; Fet- 
 ters v. Humphreys, 19 N. J. Eq. 471; 
 O'Rorke v. Smith, 11 R. L 259; Prov- 
 idence Tool Co. v. Corliss Steam En- 
 gine Co., 9 R. I. 564; Evans v. Dana, 
 
 7 R. I. 306; Kenyon v. Nichols, 1 R. I. 
 411: Lampman v. Milks, 21 N. Y. 505; 
 White v. Builders' League, 52 N. Y. 
 S. 65. 
 
660 THE LAW OF WATEES. [Ch. XL 
 
 -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 easements appurte- 
 nant to the part of the estate for the benefit of which they 
 were established. 1 Whether the estate sold be the servient 
 or dominant tenement, the easement, or other incident of prop- 
 erty, in order to pass by implication, must be open, apparent, 
 and continuous. 2 The right to go to a well and there take 
 Avater is not a continuous easement nor is it an easement of 
 necessity. 3 
 
 § 356. Same. — In Nicholas v. Chamberlain, 4 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 afterwards sell the house with the appurte- 
 nances, excepting the land, or sell the land to another, reserv- 
 ing to himself 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 conduijt, and afterwards 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 occupa- 
 
 1 Kieffer v. Imhoff, 26 Perm. St. v. Bentel, 23 Gratt. t; Hardy v. Mc- 
 
 438; McCarty v. Kitchenman, 47 id. Cullough, id. 251; State v. Suttle, 115 
 
 239; Francis's Appeal, 96 id. 200; N. C. 784. 
 
 Cannon v. Boyd, 73 id. 179; Thomp- 3Polden v. Bastard, L. E. 1 Q. B. 
 
 son v. Miner, 30 Iowa, 386; Hutte- 156, 161; Wentworth v. Philpot, 60 
 
 meier v. Albro, 18 N. Y. 48; 2 Bosw. N. H. 193. 
 
 5*6. i Cro. Jao. 121 ; Palmer v. Fletcher, 
 
 2 Kutz v. McCune, 22 Wis. 628; 1 Lev. 122; Sury v. Pigott, Palmer, 
 
 Jones v. Adams, 162 Mass. 224; Scott 444- 3 Bulst. 339; Poph. 166. 
 
§ 357.] 
 
 SEVERANCE OP TENEMENTS. 
 
 661 
 
 tion 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 the disseisee re-enter, not taking 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 questioned, and is 
 recognized as authority in numerous decisions. 1 
 
 § 357. Pyer v. Carter. — With respect to the rights of the 
 vendor upon the severance of tenements, the decision in Pyer 
 v. Garter 2 has given rise to much discussion, and has been ap- 
 proved in certain cases in England and in this country. 3 In 
 
 1 Suffield v. Brown, 33 L. J. N. s. Ch. 
 249; Pyer v. Carter, 1 a & N. 916; 
 Robins v. Barnes, Hobart, 131 ; United 
 States v. Appleton, 1 Sumner, 492; 
 Hazard v. Robinson, 3 Mason, 272; 
 British North America Bank v. Miller, 
 7 Sawyer, 163; Philbrick v. Ewing, 
 97 Mass. 133; Coolidge v. Hagar, 43 
 Vt. 9, 14; Lampman v. Milks, 21 N. Y. 
 405; Burr v. Mills, 21 Wend. 290; 
 Ogden v. Jennings, 62 N. Y. 526, 531; 
 New Ipswich Factory v. Batchelder, 
 
 3 N. H. 190; Shaw v. Etheridge, 3 
 Jones (N. C), 300; Elliott v. Sallee, 14 
 Ohio St. 10; Farmer v. Ukiah Water 
 Co., 56 Cal. 11; Pickering v. Stapler, 
 5 S. & R. 107; Seymour v. Lewis, 13 
 N. J. Eq. 439. 
 
 2 1 H. & N. 916; Ewart v. Cochrane, 
 
 4 Macq. 117; Hall v. Lund, 3 B. & S. 
 761; 1 H. & C. 676; Pearson v. Spencer, 
 3 B. & S. 762; Chad wick v. Marsden, 
 L. R. 2 Ex. 289; Taylor v. Browning, 
 11 Vict. L 1 . R. 158. 
 
 3 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 Wis. 559; 
 Seibert v. Levan, 8 Penn. St. 883; 
 Fetters v. Humphreys, 18 N. J. Eq. 
 260, 263; 19 id. 471; Janes v. Jenkins, 
 34 Md. 1; John Hancock Mut. Life 
 Ins. Co. v. Patterson, 103 Ind. 582; 
 Calhoun v. Rourke, 3 Pugs. & B. 
 
 (N. B.) 591, 596. In Wheeldon v. Bur- 
 rows, 12 Ch. D. 31, 48, 52, 59, Thesiger, 
 L. J., while dissenting from the 
 broad doctrine laid down in Pyer v. 
 Carter, and regarding that case as of 
 a special character, said: "Though 
 the circumstances were special in 
 their character, there is no doubt 
 that the principles laid down by the 
 Court of Exchequer were as wide as 
 possibly could be. That Court laid 
 down that there was no distinction 
 between implied reservation and im- 
 plied grant; and this, as it appears to 
 me, broke the hitherto unbroken cur- 
 rent of authority upon this subject." 
 "I cannot see that there is anything 
 unreasonable in supposing that in 
 such a case, where the defendant 
 under his grant is to take this ease- 
 ment, which had been enjoyed dur- 
 ing the unity of ownership, of pour- 
 ing his water upon the grantor's 
 land, he should also be held to take 
 it subject to the reciprocal and mut- 
 ual easement by which that very 
 same water was carried into the 
 drain on that land and then back 
 through the'land of the person from 
 whose land the water came. It 
 seems to me to be consistent with 
 reason and common sense that these 
 reciprocal easements should be im- 
 plied; and, although it is not neces- 
 
662 THE LAW OF WATEKS. [Ch. XL 
 
 that case the action was for stopping a drain discharging into a 
 common 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 "Wat- 
 son, B., said: "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 without ex- 
 press reservation or grant, inasmuch as he purchases the house 
 such as it is. If that were not so, the inconveniences and nui- 
 sances in towns would be very great." " We think that it was 
 the defendant's own fault that he did not ascertain what ease- 
 ments the owner of the adjoining house exercised at the time 
 of his purchase." 
 
 § 358. Same. — In the subsequent case of Suflield v. Brown, 1 
 the owner of a dock and an adjoining wharf conveyed the 
 wharf without reservation, and it was held that no reserva- 
 tion 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 which 
 remains the property of him, the grantor." Of Pyer v. Carter, 
 his lordship said : " I cannot look upon the case as rightly de- 
 cided, and must wholly refuse to accept it as any authority." 
 The doctrine of Pyer v. Carter has also been disapproved in 
 
 sary to decide the point, it seems to l 4 De Gex, J. & S. 185; 10 Jur. N. s. 
 me worthy of consideration in any 111; 6 Jur. N. s. 999; Morland v. Cook, 
 after case, if the question whether L. R. 6 Eq. 252. 
 Pyer v. Carter is right comes up for 
 discussion, to consider that point." 
 
'§ 359.] SEVEKANCE OF TENEMENTS. 663 
 
 other cases in England, 1 and in Massachusetts, 2 Maine, 3 and 
 Maryland. 4 
 
 § 359. Simultaneous and non -simultaneous grants. — In 
 
 Johnson v. Jordan, 5 in Massachusetts, the owner of two ad- 
 joining 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 he occupied, and per- 
 mitted his tenants to use it for about ten years. He then sold 
 both lots by simultaneous conveyances 6 to different purchas- 
 ers, 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., distinguished an artificial gutter,' 
 made for the purpose of drainage, 7 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, 8 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 ex- 
 pense for the benefit of one without passing through the other. 
 As the conveyances from the owner of the whole estate under 
 
 1 Dodd v. Burchell, 1 H. & C. 113; 7 The grantor of such an easement 
 Crossley v. Lightowler, L. E. 2 Ch. may cover and build upon the drain. 
 478, 486; Wheeldon v. Burrows, 12 St. Joseph Valley Ry. Co. v. Galligan 
 Ch. D. 31; Polden v. Bastard, L. E. 1 (Mich.), 79 N. W. Eep. 685. 
 
 <3. B. 156, 160; White v. Bass, 7 H. & 8 Sury v. Pigott, Palmer, 444; 3 
 
 N. 722; Allen « Taylor, 16 Ch. D. Bulst. 339; ante, ch. 7. Where a 
 
 -355; Eussell v. Watts, 10 A. C. 590; land-owner erected a double dwell- 
 
 25 Ch. D. 559; Bunting v. Hicks, 70 ing-house on two adjacent town lots, 
 
 L. T. 455. having in the rear yard, near the 
 
 2 Carbrey v. Willis, 7 Allen, 364, division line, a well, which, though 
 -369; Eandall v. McLaughlin, 10 Allen, the houses were sold separately, was 
 ■366; 6 Allen, 201; Jones v. Adams, used in common for more than 
 162 Mass. 224. twenty years, a grant to use the well 
 
 3 Warren v. Blake, 54 Maine, 276. was held to be implied. Eliason v. 
 4 Mitchell v. Seipel, 53 Md. 251. Grove, 85 Md. 215; see Larsen v. Peter- 
 
 5 2 Met. 234 son, 53 N. J. Eq. 88 ; Da vies v. Thomas, 
 
 6 See, also, Kilgour v. Ashcom, 5 [1899], W. N. 244 
 H. & J. 82; Elliott v. Sallee, 14 Ohio 
 
 St. 10. 
 
664 THE LAW OF WATEES. [Ch. XL 
 
 which the parties claimed were simultaneous, the case was 
 considered to be more like a partition between tenants in com- 
 mon, where each party takes his estate with the rights, privi- 
 leges, and incidents 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. Same. — In Carbrey v. "Willis, 1 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 
 implication, 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 rea- 
 sonable 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, 2 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 vis- 
 ible, and afterwards conveys to different grantees the respective 
 p >rtions 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 ref- 
 erence to the visible physical condition of the property at the 
 time of the conveyance, may be rebutted by proof that there 
 is no apparent sign of the servitude indicating its existence to 
 
 1 7 Allen, 364; Collier v. Pierce, 7 68 Maine, 173; Parker v. Bennett, 11 
 
 Gray, 18; Hapgood v. Brown, 102 Allen, 388; Green v. Collins, 86 N. Y. 
 
 Mass. 453; Pettingill v. Porter, 8 246; 40 Am. Rep. 531, and note. 
 
 Allen, 1; Thayer v. Payne, 2 Cush. 2 55 N. Y. 275; Lampman v. Milks, 
 
 327; Warren v. Blake, 54 Maine, 276; 21 N. Y. 505; Dunklee v. Wilton. 
 
 Dolliff v. Boston & Maine Railroad, Railroad, 24 N. K 489. 
 
§§ 361, 362.] SEVERANCE OF TENEMENTS. 665 
 
 a person reasonably familiar with the subject upon an inspec- 
 tion 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 their apparent condition.. 1 
 
 §361. Seymour v. lewis. — The decision in Seymour v. 
 Lewis, 2 in New Jersey, inclines more strongly to support the 
 doctrine of the French law. It was there held that when the 
 owner of two tenements sells one of them, the purchaser takes 
 his tenement with all the burdens as well as benefits, as be- 
 tween 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 re- 
 served by implication to the grantor, under his grant of the 
 first parcel by metes and bounds, without reservation or refer- 
 ence to the easement. 
 
 §362. Ground of implied grants. — 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. 3 In New Ips- 
 wich Factory v. Batchelder, 4 a tract of land was conveyed, de- 
 scribed 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 dis^- 
 
 1 Butterworth v. Crawford, 46 N. Y. v. Willis, 7 Allen, 364, 369; Leonard 
 349; Simmons v. Cloonan,47 N. Y 3; v. Leonard, 2 id. 543; Trask v. Pat- 
 Curtis v. Ayrault, 47 N. Y. 73. See terson, 29 Maine, 499, 503; New York, 
 Wardle v. Brocklehurst, 1 EL & El. etc. R. Co. v. Railroad Com'rs, 162 
 1058; Shaw v. Etheridge, 3 Jones Mass. 81; Kingsley v. Land Impr. Co., 
 (N. C), 300. 86 Maine, 279; Boyd v. Woolwine, 40 
 
 2 13 N. J. Eq. 439; Denton v. Led- W. Va. 282; Christian M. B. Co. v. 
 
 dell, 23 id. 64; 24 id. 567; Fetters v. Fasse, 24 Wk. L. Bui (Ohio) 132 
 
 Humphreys, 18 id. 260; 19 id. 471. Wentworth v. Philpot, 60 N. H. 193 
 
 3 Dodd v. Burchell, 1 H. & C. 113, Howell v. McCoy, 3 Rawle, 256 
 
 122; Pearsons Spencer, 3 B. &S. 761; Smyles v. Hastings, 22 N. Y. 217 
 
 Birmingham & B. Co. v. Eoss, 38 Ch. Brakely v. Sharp, 9 N. J. Eq. 9; 10 id. 
 
 D. 295, 308; Nichols v. Luce, 24 Pick. 206; McTairsh v. Carroll, 7 Md. 352. 
 102; Gayetty v. Bethume, 14 Mass. 49; * 3 N. H. 190; ante, § 355. 
 Thayer v. Payne, 2 Cush. 327; Carbrey 
 
666 THE LAW OF WATERS. [Ch. XL 
 
 charged the water into the natural stream. This raceway had 
 been used with the mill for several years, and was necessary 
 for the convenient working of the 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, 1 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 ; 2 and al- 
 though the necessity is evidence to establish an implied grant 
 or reservation of an easement, the easement itself is never cre- 
 ated or enlarged by mere necessity. 3 It depends upon priority 
 of title and the absence of other practicable means, and it con- 
 tinues only so long as the necessity continues. 4 
 
 1 Powers v. Harlow, 53 Mich. 507; grant of trees is granted withal, un- 
 Benedict v. Johnson (Ky.), 42 S. W. less the right of cutting be restrained, 
 Rep. 335. One whose lands are sur- power to cut them down and take 
 rounded by others' land has aright them away; by the grant of mines is 
 of access to a public highway over granted the power to dig them; and 
 such land, even though he may have by the grant of fish in a man's pond, 
 access to the highway by a difficult is granted power to come upon the 
 and circuitous route. Re Brecknock banks and fish for them, but not to 
 Township Road, 3 Endlich (Pa.), 437. dig a trench t© let the water out to 
 
 2 Russell v. Jackson, 2 Pick. 578; take the fish, when they can be taken 
 Hart v. Cramer, 35 Conn. 331; Col- by nets or other devices. Sheppard's 
 lins v. Prentice, 15 Conn. 39; Pierce Touchstone, 89; Finch's Law, 63. 
 
 v. Selleck, 18 Conn. 321. * Trump v. McDonnell (Ala.), 24 S. 
 
 3 Wiswell v. Minogue, 56 Vt. 616; Rep. 353; Titchmarsh v. Royston W. 
 
 Myers v. Baker, 60 N. Y. S. 797; Lebus Co., [1899] W. N. 256; Ipswich Gram- 
 
 v. Boston (Ky.), 51 S. W. Rep. 609; San mar School v. Proprietors, 174 Mass. 
 
 Joaquin Valley Bank v. Dodge, 125 572; Uhl v. Ohio R, Co. (W. Va.), 34 
 
 Cal. 77. Upon a like principle, by the S. E. Rep. 934, 
 
CHAPTEE XII. 
 
 SECTION. 
 
 363-365. 
 366, 367. 
 
 368. 
 
 369. 
 370-372. 
 373-375. 
 376, 377. 
 378-381. 
 
 382. 
 383, 384. 
 
 385. 
 
 386. 
 
 387. 
 388, 389. 
 
 390. 
 
 391. 
 
 392. 
 393, 394 
 
 395. 
 
 396. 
 397,398. 
 
 399. 
 
 400. 
 401-405. 
 406-410. 
 
 411. 
 412-414. 
 415h120. 
 421, 422. 
 423, 424 
 425^31. 
 432-435. 
 436-443. 
 
 444 
 445, 446. 
 447-461. 
 462-468. 
 469, 470. 
 
 471. 
 47^474 
 
 REMEDIES AT LAW. 
 
 Abatement by party injured. 
 
 He may cleanse the stream. 
 
 Original private remedies at law. 
 
 Eemedy by action of trespass. 
 
 Distinction between trespass and case. ■ 
 
 "When case is the appropriate remedy. 
 
 Parties plaintiff. 
 
 Ibid. — Reversioners. 
 
 Ibid. — Joint tenants and tenants in common. 
 
 Action by one tenant in common against co-tenant 
 
 Vendor and vendee. 
 
 Right of action for past injury not transferabla 
 
 Parties liable as defendants. 
 
 Ibid. — Creator of nuisance liable after alienation. 
 
 Ibid. — Contra, in New York. 
 
 Ibid. — Landlord not usually liable for tenant's act 
 
 Ibid. — Notice to abate nuisance, when required. 
 
 Ibid. — Requisites of such notice. 
 
 Ibid. — Grantee liable, without notice, for new nuisance. 
 
 Ibid. — Tortfeasors when jointly and severally liable. 
 
 Ibid. — "When not jointly liable. 
 
 Ibid. — Creator of nuisance liable, though not owning or occupying. 
 
 Survival of suits. 
 
 Actual damage not necessary to support action. 
 
 Reasonable use of stream by a riparian proprietor. 
 
 Ibid. — Where damage is the gravamen of the action. 
 
 Ibid. — Permanent injuries — Exemplary damages. 
 
 Ibid. — Single trespasses. 
 
 Ibid. — Continuing trespasses. 
 
 Venue and jurisdiction — Private actions. 
 
 Ibid. — Of indictments. 
 
 Ibid. — Different sovereignties. 
 
 Ibid. — The rule in equity. 
 
 Ibid. — Jurisdiction exercised by the Federal courts. 
 
 Other remedies at law — On covenants. 
 
 Ibid. — Particular covenants. 
 
 Ibid. — Assumpsit. 
 
 Ibid. — Ejectment 
 
 Ibid. — Mandamus. 
 
66S 
 
 THE LAW OF WATERS. 
 
 [Oh. XIL 
 
 SECTION. 
 
 475-480. 
 
 481-487. 
 
 488-491. 
 
 492-503. 
 
 504, 505. 
 
 Pleading — The declaration or complaint. 
 Ibid. — Allegation and proof of breach. 
 Ibid. — Defences and pleas. 
 Evidence. 
 Bonner judgment. 
 
 § 363. Nuisance — Abatement. — A person specially injured 
 by a nuisance may lawfully enter upon the premises of an- 
 other who maintains it, for the purpose of abating it, or of 
 removing the obstruction which is the cause of the injury, 
 when this can be done without a breach of the peace. 1 This 
 right appears to exist in favor of a lessee, or any other person 
 lawfully in possession, as well as the owner in fee. 2 Under 
 this rule a dam which causes the water to flow back to an un- 
 reasonable extent may be removed, so far as necessary, by an 
 upper proprietor whose land is thereby flowed without his 
 license ; 3 an obstruction to the free flow of the water to or 
 from a mill may be removed; 4 an artificial channel, through 
 
 1 Batten's Case, 9 Eep. 54b; Eaikes 
 v. Townsend, 2 Smith, 9; Baldwin v. 
 Smith, 82 111. 162; Day v. Day, 4 Md. 
 262; Hamilton v. White, 5 N. Y. 9; 
 ante, § 128; 32 Cent L. J. 445. 
 
 2 Great Falls Co. v. Worcester, 15 
 N. H. 435, 436. 
 
 3 Heath v. Williams, 25 Maine, 209; 
 Brown v. Chadbourne,. 31 id. 26; 
 Hodges v. Raymond, 9 Mass. 316; 
 Jewell v. Gardiner, 12 id. 311; Col- 
 burn v. Richards, 13 id. 420; Knoll v. 
 Light, 76 Penn. St. 268; Overton v. 
 Sawyer, 1 Jones (N. C), 308; Brisbane 
 v. O'Neal], 3 Strob. 348. So of a sur- 
 veyor of highways removing ice and 
 snow from a private water-course. 
 Johnson v. Dunn, 134 Mass. 522. See 
 Grace v. Newton Board of Health, 135 
 Mass. 490; Neally v. Bradford, 145 
 id. 561. In the absence of statute, 
 neither the board of health nor the 
 city council of a city can proceed in 
 invitum to abate a nuisance on adja- 
 cent land by erecting a dam. Cava- 
 nagh v. Boston, 139 Mass. 426. Upon 
 the power of boards of health, etc., 
 to abate nuisances, without paying 
 damages, see, also, 24 Am. L. Rev. 
 
 559; 30 Am. L. Reg. N. S. 157; Ray- 
 mond v. Fish, 51 Conn. 80; State v. 
 Speyer, 67 Vt. 502 ; Gould v. Rochester, 
 105 N. Y. 46; People v. Board of 
 Health, 140 id. 1; Board of Health v. 
 Copcutt, id. 12; Rochester v. Simp- 
 son, 134 id. 414; Haag v. Mt. Vernon, 
 58 N. Y. S. 581; Balch v. Utica,59id. 
 513; Wood v. Hinton (W. Va,), 35 S. 
 E. Rep. 824; Huseu. Amesbury Board 
 of Health, 163 Mass. 240; Hurst v. 
 Warner. 102 Mich. 238; 47 Am. St. 
 Rep. 525, 533, n.; Smith v. Baker, 14 
 Penn. Co. Ct. 65; Com. v. Yost, 11 
 Penn. Supr. Ct. 323; 38 Am. L. Reg. 
 N. s. 520; Bristol Door Co. v. Bristol 
 (Va.), 33 S. E. Rep. 588; Ex parte 
 Keeler, 45 S. C. 537, 545; Roberts v. 
 Harrison, 101 Ga. 773; 57 Albany 
 L. J. 326. As to abatement under the 
 police power, see Aitken v. Wells 
 River, 70 Vt. 308; 41 L. R. A. 566, 
 and note; 45 Cent. L, J. 487. As to 
 the statutory power of cities to levy 
 the expense of drainage upon the 
 land-owner, see Lasbury v. McCague, 
 56 Neb. 220. 
 
 4 Prescott v. Williams, 5 Met. 429; 
 Colburn v. Richards, 13 Mass. 420. If 
 
§ 364.] REMEDIES AT LAW. 669 
 
 which the water is unlawfully diverted, may be filled up ; l 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 in- 
 jured 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 ; 2 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. 3 
 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. 4 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. 5 In 
 California the appropriator of the waters of a natural stream 
 may go upon the land of a patentee from the United States 
 above and there remove obstructions to its flow. 6 
 
 § 364. Same — Same. — No one can rightfully abate either 
 a public or private nuisance who could not maintain an action 
 for damages caused thereby; 7 but the abatement of the nui- 
 sance does not preclude a person entitled to maintain an action 
 from recovering the damages sustained by him before the nui- 
 sance was removed. 8 And in an action to recover damages 
 
 A. erects a dam on B.'s land with- *McCord v - Hi S h > 24 Iowa ' 336 5 
 
 out license, B. may cause it to be re- Thompson v. Allen, 7 Lans. 459. A 
 
 moved as a nuisance, but cannot county is not liable for the acts of 
 
 compel A. to maintain any portion the county court in causing a mill 
 
 of it. A. may permit the dam to fall race which crosses a road to be filled 
 
 to decay, or the water to run to up. Eeardon v. St. Louis Co., 36 Mo. 
 
 waste, and will not thereby subject 279; Swineford v. Franklin Co., 73 
 
 himself to any liability to B. Brad- Mo. 279. 
 
 ford v. Cressey, 45 Maine, 9. 6 Groton v. Haines, 36 N. H. 388. 
 
 , 1 Hodges v. Raymond, 9 Mass. 319; 6 Ware v. Walker, 70 Cal. 591. 
 
 Lee v. Stevenson, 27 L. J. Q. B. 263. 7 Ante, § 128. 
 
 2 Finley v. Hershey, 41 Iowa, 394; 8 Kendrick v. Bartland, 2 Mod. 253; 
 
 Miller v. Burch, 32 Texas, 208; Call v. Buttrick, 4 Cush. 345; Tate v. 
 
 Bloomer v. Morss, 68 N. Y. 623. Parrish, 7 Mon. (Ky.) 325; Gleason v. 
 
 'McGregor v. Boyle, 34 Iowa, 268. Gary, 4 Conn. 418; Pilcher v. Hart, 1 
 
670 THE LAW OF WATERS. [Ch. XII. 
 
 for the nuisance, it is no ground for mitigation of damages 
 that the plaintiff might have abated the nuisance but did not. 1 
 The right to recover nominal damages caused by the nuisance 
 is sufficient to justify an entry for the purpose of abating it. 2 
 In general, an erection cannot be abated as a nuisance unless 
 it is such at the time; but it may be a nuisance at a time 
 when it is not causing actual damage. 3 The right of abate- 
 ment must be exercised in 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. 4 If there are two ways of abating the nuisance, 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 cannot 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. 5 
 
 §365. Same — Same. — The abatement may be made, al- 
 though greater damage 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. 6 So, if a person who 
 has a prescriptive right to discharge clean water through an- 
 other's drain, sends down foul water so that the nuisance can- 
 not be abated without interfering with the enjoyment, the 
 
 Humph. 534; Drinkwater v. Sauble, Trudgain, 2 Gratt. 219; Strong v. 
 
 46 Kansas, 170; Rosenthal v. Taylor, Benedict, 5 Conn. 210, 222; Tuthill 
 
 etc. Ry. Co., 79 Texas, 325; Heather v. v. Scott, 43 Vt. 525. 
 
 Hearn, 5 N. Y. S. 85. See Ogilvie v. 4 Agawam Canal Co. v. Edwards, 
 
 Blything Union R. S. Authority, 65 36 Conn. 476. 
 
 L. T. 338. s Roberts v. Rose, LRlEt 82. 
 
 i White v. Chapin, 102 Mass. 138; 6 Wigford v. Gill, Cro. Eliz. 269 
 
 Wolf v. St. Louis Co., 15 Cal. 319. Adams v. Barney, 25 Vt. 225; Rich- 
 
 2 Amoskeag Manuf . Co. v. Goodale, ardson v. Emerson, 3 Wis. 319 
 46 N. H. 53, 56; Adams v. Barney, 25 Marsh v. Brooks, 2 Hill (S. C), 42 
 Vt. 231; Fish v. Dodge, 4 Denio, 311. Biedelman v. Foulk, 5 Watts, 308 
 
 3 Fay v. Prentice, 1 C. B. 828 ; Rex Lindeman v. Lindsey, 69 Penn. St. 93 
 v. Wharton, 12 Mod. 510; N orris v. Woolrych on Waters, 225. 
 Baker, 1 Roll. 393, pL 15; Beaoh v. 
 
§ 366.] EEMEDIES AT LAW. 671 
 
 whole drain may be stopped. 1 But no greater injury can be 
 done than is strictly necessary to make the abatement effect- 
 ual; 2 and the right to abate an unlawful structure does not 
 justify the removal of anything connected therewith which is 
 rightful. 3 The person injured cannot convert to his own use 
 the materials of the structure which causes the nuisance, 4 and 
 if his land is overflowed by the dam of a lower proprietor, 
 which is of an unauthorized height, he may enter upon the 
 land and lower the level of the dam, but is not justified in re- 
 moving it altogether, 5 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 measures as will relieve 
 his land in the most speedy manner, if unnecessary injury will 
 thereby be caused to the wrong-doer. 7 If a dam erected in a 
 public river interferes with the navigation, and is a public 
 nuisance, a lower proprietor, if specially aggrieved, may inter- 
 fere by abating the nuisance, but this would afford no justifica- 
 tion for the erection of a dam upon his own land, and thereby 
 flooding the dam above, and the wrong-doer's land with it. 8 
 
 §366. Cleansing stream. — A riparian proprietor is under 
 no obligation to cleanse the stream, or to remove any obstruc- 
 
 iCawkwell v. Russell, 26 L. J. Ex; 6 Wright v. Moore, 38 Ala. 593. A 
 
 314; Hill v. Cock, 26 L. T. N. s. 185. person who attempts unlawfully to 
 
 2 Presoott v. Williams, 21 Pick. 241 ; abate a sluiceway to a mill, is liable 
 
 White v. Chapin, 12 Allen, 521 ; Vea- not only for the materials destroyed, 
 
 zie v. Dwinel, 50 Maine, 479, 496; but for damages sustained by the 
 
 Great Falls Co. v. Worster, 15 N. H. owner of the sluiceway in being de- 
 
 439; Groton v. Haines, 36 N. H. 388; prived of its use. Hammett v. Russ, 
 
 Gates v. Blencoe, 2 Dana, 158; Mof- 16 Maine, 171. 
 
 fett v. Brewer, 1 G. Greene, 348; 'Great Falls Co. v. Worster, 15 
 
 Bush v. Dubuque, 69 Iowa, 233; N. H. 412, 439. 
 
 Ankeny v. Fairview Milling Co., 10 8 Odiorne v. Lyford, 9 N. H. 502. 
 
 Oregon, 390. A person who suffers peculiar and 
 
 3 Greenslade v. Halliday, 6 Bing. special damage from a public nui- 
 
 379; Great Falls Co. v. Worster, 15 sance may main tain an action against 
 
 N. H. 439. its continuance, although a recovery 
 
 4 Larson v. Furlong, 50 Wis. 681 ; for its creation is barred by the stat- 
 
 State v. Taylor, 27 N. J. L. 117. Such ute of limitations. New Salem v. 
 
 conversion makes him a trespasser Eagle Mill, 38 Mass. 8. As to the 
 
 ab initio. Little v. Ince, 3 C. P. (Can.) right of an individual to abate a, 
 
 528. nuisance, see 32 Cent. L. J. 445; 27 
 
 8 Wright v. Moore, 38 Ala. 593; Alb. L. J. 424; ante, § 121. 
 Heath v. Williams, 25 Maine, 209; 
 Dyer v. Dupui, 5 Wharton, 584. 
 
672 THE LAW OF WATERS. [Ch. XII. 
 
 tions that may arise without fault on his part. 1 But each pro- 
 prietor has a natural easement in the land below for the pas- 
 sage of the water in the natural channel of the stream away 
 from his land, and may enter upon the land of a lower pro- 
 prietor for the purpose of clearing the channel from obstruc- 
 tions to the flow of the water. 2 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. 3 
 
 § 367. Same. — A similar rule applies where the owner of a 
 mill has acquired by grant, or has immemorially enjoyed, the 
 right of conducting off the water necessary to the working of 
 the mill through an artificial canal or raceway constructed on 
 another's land. 4 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 was intended. 
 "It carries," says Shaw, 0. J., 5 "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 
 
 1 Taylor v. Whitehead, 2 Doug. v. Caldwell, 108 Cal. 95. A town, 
 745; Pomfret v. Rieroft, 1 W. Saund. while repairing a bridge, may, with- 
 321; 1 Sid. 429; Bell v. Twentyman, out compensation or liability to suit, 
 1 Q. B. 766; Bower v. Hill, 1 Bing. require a mill-owner to permit the 
 N. 0. 549; McSwiney v. Haynes, 4 stream to pass freely through his 
 Ir. Eq. 322; Prescott v. Williams, 5 dam. East Montpelier v. Wheelock, 
 Met. 429. A person who is required 70 Vt. 391. 
 
 to construct an artificial vent for 3 Ibid. ; Buckley v. Buckley, [1898] 
 
 water, to prevent its overflowing an- 2 Q. B. 608. 
 
 other's land, is bound to keep it in 4 Prescott v. White, 21 Pick. 341; 
 
 repair. Brisbane v. O'Neall, 3 Strob. White v. Chapin, 12 Allen, 516, 522; 
 
 (S. C.) 348. See Dash wood v. Magniac Heiser v. Gaul, 57 N. Y. S. 198. 
 
 (No. 1), [1893] 3 Ch. 306; Simpson v. » Prescott v. White, 21 Pick. 341, 
 
 Godmanchester Corp., [1897] A. C. 343. So of a right to repair pipes 
 
 696; [1896] 1 Ch. 214. and to put a spring in order. Legg 
 
 2 Ibid. ; Pico v. Colimas, 32 Cal. 578 ; v. Horn, 45 Conn. 409. See Thiebaud 
 Darlington v. Painter, 7 Penn. St. v. Union Furniture Co., 143 Ind. 340; 
 473; Chapman v. Thames Manuf. Co., Horgan v. New York, 160 N. Y. 516. 
 13 Conn. 269 ; ante, §§ 354, 362; Wholey 
 
§ 368.] REMEDIES AT LAW, 673 
 
 i 
 
 upon circumstances. 1 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 ma- 
 terial be soil, which has fallen from the adjoining bank, and 
 which may be useful or beneficial to the owner of 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 beneficial, it would be 
 the duty of the mill-owner to remove it off the land in a rea- 
 sonable time, and in a manner least prejudicial to the owner 
 of the land." 2 
 
 §368. Original private remedies at law.— 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 trespass and trespass on the case. 
 The assize of novel disseisin lay for obstructing a right to con- 
 vey water through land, 3 and probably was the original rem- 
 edy for nuisances. The 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 plaintiff, if successful, had judgment of abate- 
 ment, and for damages. The writ was confined to the tenant 
 of the freehold, but could be maintained by the alienee of the 
 injured party, and against the alienee of the tort-feasor, if the 
 nuisance were continued after notice. 4 The writ of praecipe 
 quod reddat lay for an acre of ground covered with water. 5 
 
 1 See Bentley v. Manchester, etc. the new support, or even a change 
 Ry. Co., [1891] 3 Ch. 222; 65 L. T. 22. in the course of the aqueduct so far 
 
 2 In the case of, an aqueduct of a as such change is made necessary 
 chartered water company, as in that by the land-owner's act. Rockland 
 •of a highway, the company may Water Co. v. Tillson, 75 Maine, 170; 
 peaceably pursue its right against 69 Maine, 255. 
 
 obstructions which the land-owner 3 Bracton, bk. 4, chs. 42, 43, pp. 231, 
 
 throws in its way; and if the land- 232. See Vin. Abr. Nuisance, 27 (H.). 
 
 owner, by blasting within the limits 4 3 Bl. Com. 220, 221 ; Penruddock's 
 
 of its location, deprives it of its former Case, 5 Rep. 100b. 
 
 fiupportr its full enjoyment may be s 16 Vin. Abr. 509, pi. 10; Woolrych, 
 
 reclaimed by adopting new means of 277. 
 enjoyment, as by a broader base for 
 43 
 
G74 THE LA.W OF WATERS. [Ch. XII. 
 
 The assise 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. 1 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., ch. 24, so as to lie against the tort-feasor's alienee. 2 
 But these writs were both out of use in Blackstone's time,* 
 and were expressly abolished by St. 3 & 4 ¥m. IV., ch. 21, 
 § 36. 4 In New York, in the case of an indictment for a nui- 
 sance, the writ commanding the sheriff to prostrate the nui- 
 sance was issued only after a record was regularly made out 
 and returned of the conviction of the defendant. 6 The assize 
 of nuisance was retained by statute in this State under the 
 name of writ of nuisance, and the proceedings thereunder 
 simplified; but the remedy was not favored by the courts. 6 
 In proceedings upon the writ of nuisance, as retained by the 
 Revised Statutes of New York of 1830, in the action of nui- 
 sance 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 com- 
 mitted ; 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, 7 
 and these rules are retained by the Code of Civil Procedure 
 
 i Vin. Abr. Nuisance, 27 (H.); Brit- Den. 306; Plumer v. Harper, 3 N. H. 
 
 ton, Bk. 2, oh. 30, § 1 (Nichols' ed. 88. 
 
 p. 398); Langley v. Norris, Lilly, 54. 5 People v. Valentine, 1 Johns. Cas. 
 
 No assize lay for an easement with- 336. 
 
 out profit, as a way; nor of a suit for c Clark v. Storrs, 4 Barb. 562; 
 
 a mill, though it lay of the tolls of a Brown v. Wood worth, 5 id. 551; 
 
 mill. Webb's Case, 8 Co. 466. Comes v. Harris, 1 Comst. 223; an* 
 
 2 Baten's Case. 9 Rep. 55a (note); S see Ellsworth v. Putnam, 16 Barb. 
 
 Bi Com. 220, 221. 565; Hutchins v. Smith, 63 id. 251. 
 
 3 3 BL Com. 220, 221. 7 Ellsworth v. Putnam, 16 Barb. 565 ; 
 
 4 These remedies have been held Hubbard v. Russell, 24 id. 404; Brown 
 obsolete in America. Blunt v. Aikin, v. Wood worth, 5 id. 550. So held inr 
 15 Wend. 522; Kintz v. McNeal, 1 case of a noxious trade. Hutchins 
 Den. 436; Waggoner v. Jermaine, 3 v. Smith, 63 Barb. 251. 
 
§ 369.] 
 
 KEMEDIES AT LAW. 
 
 675 
 
 of 1880. 1 A similar equitable action is maintainable in the 
 Supreme Court, by any person specially injured by a nuisance, 
 in which a judgment would be granted directing the removal 
 or abatement of the nuisance. 2 
 
 §369, Action of trespass.— Trespasses include all torts to 
 real property corporeal by acts wrongful in themselves and 
 immediately injurious. Nuisances include all injuries to the 
 realty, in which the harm done is consequential and not im- 
 mediate. 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. 3 If a person pours water on another's land, 
 the injury is immediate, and trespass lies; but if he places a 
 
 iSee Code, c. 14, art. 7, §§ 1660- 
 1663. 
 
 2 Knox v. Mayor, 55 Barb. 404; s. C. 
 38 How. 67; Delaney v. Blizzard, 7 
 Hun, 7; Van Brunt v. Ahearn, 13 
 Hun, 388. For a similar equitable 
 action in Minnesota, see Eastman v. 
 St. Anthony W. P. Co., 12 Minn. 137; 
 Ames v. Cannon River Manuf. Co., 
 27 Minn. 245. In the last case the 
 judgment directed the cutting down 
 of the dam. In Bemisu Clark, 11 
 Pick. 452, the Mass. statute of 1828, 
 c. 137, § 6, providing that where judg- 
 ment 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 war- 
 rant to abate the nuisance, was held 
 to leave it within the discretion of 
 the court whether to issue the war- 
 rant on such motion or not. See 
 Bemis v. Upham, 13 Pick. 170; Cod- 
 man v. Evans, 7 Allen, 431. This pro- 
 vision is retained by Mass. Pub. Sts. 
 1882, c. 180, § 1. By g 3 of this chap- 
 ter, the plaintiff is entitled to abate- 
 ment 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 
 jurisdiction, is no longer so. St. 1882, 
 c. 190; Denner v. Chicago R Co., 15 
 N. W. Rep. 158. For a similar juris- 
 diction in Oregon, see Oregon Gen. 
 Laws, 1872, § 330, p. 179; Marsh v. 
 Trullinger, 6 Oregon, 356; post, § 555, 
 n. ; Blood v. Light, 31 Cal. 115. The 
 assize of nuisance was formerly in 
 use in Pennsylvania. Livezey v. Gor- 
 gas, 1 Binn. 251; s. C. ^Binn. 192. 
 For a full report of all the proceed- 
 ings in this case, see Brackenridge's 
 Law Miscellanies, 438. See Lyle v. 
 Richards, 9 S. & R. 322, at 367; Bar- 
 net v. Ihrie, 17 S. & R 174; s. c. 1 
 Rawle, 44; Maris v. Parry, 3 Rawle, 
 413. But it was sustained only be- 
 cause the remedies of the English 
 common law were in force unless ex- 
 pressly abolished. Barnet v. Ihrie, 
 17 S. & R. 174 Other references to 
 these remedies may be found in 
 Great Falls Co. v. Worster, 15 N. H. 
 412, 435; Tate v. Parish, 7 Mon. (Ky.) 
 325. 
 
 3 1 Chitty PI. 142, 194; and see Scott 
 v. Shepard, 1 Smith's Lead. Cas. 549; 
 Hull v. Sanctuary, 68 Vt. 57. As to 
 survival of the suit, see Miller v. 
 Young, 35 N. Y. S. 643. 
 
676 THE LAW OF WATEKS. [Ch. XII. 
 
 spout on his own building, in consequence of which water 
 afterwards runs therefrom into my land, the injury is conse- 
 quential, because the flowing of the water, which is the imme- 
 diate 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. 1 "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. 2 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 dig- 
 ging, but the court held that it would be so intended after 
 verdict, and that case was the proper form of action. 3 So the 
 turning of water which washes a highway upon one's land has 
 been held ground for an action on the case. 4 ' 
 
 § 370. Same — Case. — It is laid down by Mr. Dane that 
 when the plaintiff 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 
 watercourse as to occasion consequential damages, case is the 
 proper action in all cases where the defendant does the orig- 
 inal act on his own land. 5 The rule is laid down by Shaw, C. J., 
 in Fiske v. Framingham Manuf. Co., 6 that where the act com- 
 plained of is not an entry upon the plaintiff's land, or other 
 
 1 Reynolds v. Clark, 1 Stra. 634, rect trespass." And the same version 
 635; 2 Ld. Raym. 1399. See Shearer is given in Carthew, 436. In Stra. 635, 
 v. Middleton, 88 Mich. 621. Lord Raymond, C. J., states the case 
 
 2 Courtney v. Collett, 1 Ld. Raym. as one " for the defendant's diverting 
 272; s. C. Carthew, 436; 12 Mod, 164; his own watercourse in his ownland," 
 and cited Stra. 635, and 2 Wm. Bl. which was held a trespass. In 2 Wm. 
 898. This case has generally been Bl. 898, it is cited as for an act done 
 considered one where the act was " in the plaintiff's own land," which 
 done on the plaintiff's close by the seems an obvious substitution of 
 defendant as a trespasser (Angell, "plaintiff " for "defendant." 
 
 § 395; Woolrych, 278), but this, it 3 Leveridge v. Hoskins, 11 Mod. 257. 
 
 seems, is not the true view. The 4 Broughton v. Carter, 18 Johns. 
 
 syllabus in Lord Raymond's report 405. 
 
 reads: "Causing water to overflow 5 3 Dane Abr. ch. 71, art. 3, p. 10. 
 
 another's fishery or land, though by 6 12 Pick. 68. 
 
 an act on the party's own soil, is a di- 
 
§ 371.] KEMEDIES AT LAW. 617 
 
 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 con- 
 sequence of which the plaintiff's land is flooded, case and not 
 trespass is the proper form of action. "Where trespass was 
 brought for breaking the plaintiff's close and erecting thereon 
 a wall by which the plaintiff was prevented from using the 
 water in her well, and it appeared 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 plaintiff's 
 remedy was in case and not in trespass. 1 
 
 §371. Same — Same. — To maintain trespass, the plaintiff 
 must have actual or constructive possession of the locus in 
 quo. A lessor cannot recover for diversion of water when 
 there has been no diminution of rent and no damage to his 
 interest is shown. 2 The plaintiff must show that the portion 
 of land on which the wrongful act was committed was in his 
 inclosure, 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 remedy in such case being by an ac- 
 tion on the case for consequential damages. 3 "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, fre- 
 quently 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. 4 The de- 
 cision 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 allow- 
 ance for direct injuries. 
 
 1 Shafer v. Smith, 7 Har. & J. 67. the property. Winchester v. Stevens 
 
 2 Moody v. King, 74 Maine, 497. If Point, 58 Wis. 350. 
 
 the plaintiff, though in possession, at- 3 Winkler v. Meister, 40 111. 349. 
 
 tempts to prove a good paper title 4 Kelly v. Lett, 13 Ired. L. 50; Hog- 
 
 and fails, he cannot recover for per- wood v. Edwards, PhiL Law, 350 
 manent depreciation in the value of 
 
678 THE LAW OF WATERS. [Ch. XII. 
 
 §372. Same — Same.— The case of Smith v. Fletcher, 1 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 cer- 
 tain mines thereunder, and flooded them with water." The 
 form of the action was not considered, but a recovery was 
 had as for a trespass. But where new systems of procedure 
 have abolished the different forms of action, the distinction 
 between trespass and case has become unimportant. 2 
 
 § 373. Case. — Tor injuries to incorporeal rights in waters, 
 such as easements, trespass cannot be supported, and case is 
 the proper remedy. 3 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, independent 
 of the contract. 4 Where mill-owners, who were entitled to all 
 a certain stream except what they had leased to the defend- 
 ants, brought suit against the defendants for diverting more 
 1 water than they had a right to take, case was held the proper 
 remedy, and not covenant. 5 A grantee may maintain case for 
 diversion of water by a grantor, which is in derogation of his 
 grant. 6 Where the defendant contracted for the privilege of 
 
 1L. R. 7 Ex. 305; 2 App. Cas. 781. Baer v. Martin, 8 Blackf. 317. So 
 
 See Wells v. Ody, 1 M. & W. 452 ; s. C. where one conveyed a mill, and 
 
 Tyrwh. & Gr. 715. granted an easement in the dam and 
 
 2 "This distinction between trespass pond, and afterwards injured the 
 and nuisance," say Coulson and dam, the grantee's remedy was held 
 Forbes (on Waters, p. 649), " so far as to be case, and not trespass. White- 
 the form of action is concerned, is head v. Garvis, 3 Jones L. 171. But 
 now of little value, as by the Com- where the conveyance of a water 
 mon Law Procedure Act, 1852, and privilege is of " all the land that the 
 the Judicature Acts, 1873 and 1875, dam flows," trespass is the proper 
 all forms of action are abolished." remedy for an injury to such land. 
 The same is true in many of the Morse v. Marshall, 13 Allen, 288. 
 States which have abolished the old * See Thomas v. Utica R. Co., 97 
 forms. N. Y. 245. 
 
 3 1 Chitty PI. 142; Nuttall v. Brace- »Bigelow v. Battle, 15 Mass. 313. 
 well, L. R 2 Ex. 1 ; Wilson v. Wilson, See Batavia Manuf. Co. v. Newton 
 2 Vt. 68; Case v. Webber, 2 Ind. 108. Wagon Co., 91 111. 230. 
 
 So held of an injury to a right to 6 Cromwell v. Selden, 3 N. Y. 253; 
 convey water through another's land. Eshelman v. Snyder, 82 Ind. 498. 
 
§ 374.] 
 
 EEMEDIES AT LAW. 
 
 679 
 
 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 carelessly and neg- 
 ligently done to the plaintiff's dam. 1 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. 2 
 
 § 374. Same. — An action on the case lies for any wrongful 
 diversion of water from a mill, 3 or for any diversion or ob- 
 struction to the injury of a riparian proprietor, 4 the damages 
 
 iDeanuMcLean,48Vt.412. Where 
 the defendant had for several years 
 flowed the plaintiff's land, paying an 
 annual compensation therefor, under 
 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 v. Mackman, 
 24 Mich. 279. 
 
 2 Eolfe v. Rolfe, F Moore, 353, cited 
 there in Beswick v. Combdon; s. c. 
 ■cited, 5 Rep. 101; Penruddock'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 v. McKenna, 86 Penn. St. 297. 
 In Aikin v. 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 eject- 
 ment. The erection of eaves project- 
 ing over another's land is a nuisance, 
 for which case will lie without proof 
 that rain has fallen since the erec- 
 tion. Fay v. Prentice, 1 C. B. 1828. 
 See Bellows v. Sackett, 15 Barb. 96. 
 But where the injury complained of 
 is caused by rain thrown on his prem- 
 ises by such eaves, the injury must 
 ■be proved as laid. Simmons v. Pol- 
 
 lard, 53 Vt. 343. It is held that the 
 landlord of the injured premises may 
 maintain a case as a reversioner for 
 such a nuisance during the term, if 
 the jury think the reversion is in- 
 jured. Tuckerman v. Newman, per 
 Lord Denman, C. J., 11 A. & E. 40. 
 Compare Jackson v. Peskel, 1 M. & 
 S. 234, where Lord Ellenborough 
 held that injury to the reversion 
 must be alleged in such case. See 
 ante, §§ 292, 293. 
 
 3 So held in case of an ancient mill. 
 Broome v. Mordant, Cro. Eliz. 112. 
 See Ingraham v. Hutchinson, 2 Coma. 
 504. If the 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 gives no cause of 
 action. Palmer v. Mulligan, 3 Caines, 
 307. Wrongful diversion from new 
 mill. Dyer, 248&; Cox v. Matthews, 
 1 Vent. 237. An injury by a dam, 
 causing a growth of grass in a stream, 
 which impedes its flow, is actionable 
 in case, unless the grass would have 
 grown without the dam. Knoll v. 
 Light, 76 Penn. St. 268. 
 
 * Wright v. Howard, 1 Sim. & Stu. 
 190; Mason v. Hill, 3 B. & Ad. 304; 
 s. c. 5 id. ,7; 3 Kent Com. 442; Meyer 
 v. Horst, 106 Penn. St. 552; Martin v. 
 Bigelow, 2 Aik. (Vt.) 184. 
 
680 THE LAW OF WATERS. [Ch. XII, 
 
 being computed to the date of the writ; 1 and if the defend- 
 ant has the right to maintain a dam at a certain height, or at 
 a certain point in a river, the action will lie against him for 
 wrongfully increasing the height, 2 or for constructing the dam 
 and causing flowage at another point on the river. 3 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. 5 If one disturbs the plaintiff in the use of his well by 
 putting rubbish therein, case will lie if the water is shallowed 
 and rendered less convenient for use. 6 
 
 § 375. Same.— Case is also the appropriate remedy for the 
 pollution of a watercourse to the injury of another. It was 
 decided, in a case reported in the Tear 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; 7 and the action has been allowed without question 
 ever since. 8 So, if one abandons waters artificially collected, 
 and turns them into a natural stream, he cannot afterwards 
 reclaim them ; and if he attempts to withdraw them from the 
 
 i Williams v. Camden Water Co., the case are: Wood v. Waud, 3 Exch. 
 
 79 Maine, 543. 748; Stockport W. W. Co. v. Potter, 3 
 
 2 Phillips v. Sherman, 64 Maine, H. & C. 300; Norton v. ScholeBeld, 9- 
 171; Saokrideru Beers, 10 Johns. 241 ; M. & W. 565; Hodgkinson v. Ennor, 
 Merritt v. Brinkerhoff, 17 Johns. 306. 4 B. & S. 229. See Cator v. Lewis- 
 So where the defendant (maintaining ham Board, 5 B. & S. 115; Looks & 
 a dam under the Mill Acts) wrong- Canals v. Lowell, 7 Gray, 223; and 
 fully closes his gates at night to col- Mills v. Hall, 9 Wend. 315; Thomas 
 lect water, the remedy is in case. v. Brackney, 17 Barb. 655 ; Carhart v. 
 Thompson v. Moore, 2 Allen, 350. Auburn Gas Co., 22 id. 297: O'Riley 
 
 3 Davis v. Mattawamkeag L. D. Co., v. McChesney, 3 Lans. 278; Merrifield 
 82 Maine, 346. v. Worcester, 110 Mass. 216; Wood- 
 
 4 Batavia Manuf. Co. v. Newton ward v. A born, 35 Maine, 271; Wash- 
 Wagon Co., 91 111. 230. burn v. Gilman, 64 id. 163; Wheatley 
 
 5 1 Com. Dig. Title Action upon the. v. Chrisman, 24 Penn. St. 298; Little 
 
 Case of a Nuisance (A.); Prickmanu Schuylkill Nav. Co. v. Richards, 57 
 
 Tripp, Skin. 389. id. 142; Seely v. Alden, 61 id. 302; 
 
 6 Taylor v. Bennett, 7 C. & B. 329. Sanderson v. Penn. Coal Co., 113 id. 
 
 7 Y. B. 13 H. 7, 26, cited in Co. Litt. 126; 86 id. 401; s. c. 94 id. 302; Snow 
 200 b. v . Parsons, 28 Vt. 459; Gladfelter v. 
 
 8 Ante, §§ 219-223. Leading cases Walker, 40 Md. 1 ; Story v. Hammond,, 
 illustrating the use of the action on 4 Ohio, 376. 
 
§ 376.] EEMEDIES AT LAW. 681 
 
 stream, he is liable in case to any one injured thereby. 1 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, succeed- 
 ing 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 plaintiff's mill, it was held that the plaintiff could main- 
 tain case. 2 
 
 § 376. Parties plaintiffs.— 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. 3 For any in- 
 jury affecting the present enjoyment of water-rights, the per- 
 son 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. 4 The same rule 
 holds true of all injuries to real property by means of water. 5 
 The remedies of 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. 6 This 
 
 i Adams v. Slater, 8 Brad. (111. App.) 7, 26, cited by Wray, C. J., in Aldred's 
 
 72; Druley v. Adams, 102 I1L 177; see Case, 9 Rep. 59a; Bedingfield v. Ons- 
 
 Davis v. Gale, 32 Cal. 26. low, 3 Lev. 209-; Jackson v. Pesked, 1 
 
 2 Adams v. Slater, 8 Brad. (111. App.) M. & S. 234; Tucker v. Newman, 11 
 
 72. A. & E. 40, Battishill v. Reed, 18 C. B. 
 
 3 1 Chitty, Pleading, 69. That one 696; Bell v. Twentyman, 1 Q. B. 766; 
 
 who has entered under the United Lord Egremont v. Pulman, M. & M. 
 
 States homestead laws may sue, see 404; Dobson v. Blackmore, 9 Q. B. 
 
 Gulf, C. & S. F. Ry. Co. v. Clark (Ind. 991. 
 Ter.), 51 S. W. Rep. 962. «1 Chitty, PI. 63; Com. Dig. Title 
 
 4 Mr. Bicey says (Parties, p. 332, Action on the Case for a Nuisance, B. ; 
 
 note) that the term reversioner is 1 Wms. Saund. 322, note 5; Rust iv 
 
 used as a convenient though not Victoria Dock Co., 36 Ch. D. 113; 
 
 strictly correct description of any Dynevor v. Tennant, 13 A. C. 279; 
 
 person who, not being in possession Bedingfield v. Onslow, 3 Lev. 209; 
 
 of land, has a future interest in it. Ripka v. Sergeant, 7 Watts & S. 9; 
 
 5 1 Chitty, PL 63; Com. Dig. Ac- Hart v. Evans, 8 Penn. St. 13; Seely 
 
 tion upon the Case for a Nuisance, B.; v. Alden, 61 id. 302; Potts v. Clarke, 
 
 Dicey on Parties, 333,340; Prior of Spencer (N.J. ), 536; Tinsman v. Rail- 
 
 Southwark's Case, Year Book, 13 Hen. road Co., 1 Dutch. (N. J.) 255; Brown 
 
•6S2 THE LAW 0E WATEES. [Ch. XII. 
 
 principle applies to all injuries to lands or water-rights in the 
 possession of lessees. 
 
 §377. Same — Same. — Where the tenant in possession 
 brings suit for the disturbance of his present enjoyment, pos- 
 session alone is sufficient evidence of his title prima facie, 
 and will support a recovery against a wrong-doer. 1 So a ces- 
 tui que trust in possession may maintain the appropriate legal 
 actions against a wrong-doer for injuries to his possession. 2 
 In Sumner v. Tileston, 3 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 interference 
 therewith to the injury of the lessee. 
 
 § 378. Same — Reversioner. — The reversioner may sue for 
 any wrongful interference, 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, 4 as cited by 
 "Wray, 0. J., in Aldred's Case, 5 the landlord was allowed to 
 
 v. Bowen, 30 N. Y. 519; Woodbury v. Tarlton, 2 H. & McHen. 473; Fergu- 
 
 Wills 50 Maine, 403; Davis u. Jewett, son v. "Witsell, 5 Rich. (S. C.) 280; 
 
 13 N. H. 881, Baker v. Sanderson, 3 Kinibrallu. Walker, 7 id. 422; Patrick 
 
 Pick. 348; Sumner v. Tileston, 7 id. v. Ruffners, 2 Rob. (Va.) 209; Morris 
 
 195; Ashley v. Ashley, 4 Gray, 197. v. McCainey, 9 Ga. 160; Ran v. Min- 
 
 The following leading cases further nesota Valley R Co., 13 Minn. 442; 
 
 illustrate the rule, but do not affect Norris v. Glenn, 1 Idaho, N. s. 590. 
 
 waters; Baxter v. Taylor, 4 B. & Ad. In Dyson v. Collick, 5 B. & Aid. 600, 
 
 72, Hopwood v. Schofield, 2 Moo. & a contractor for building a canal, 
 
 Rob. 34 ; Alston v. Scales, 9 Bing. 3 ; having by permission of the owner 
 
 Johnstone u Hall, 2 K. & J. 414; of land built a dam for the purpose 
 
 Mumford v. Oxford Ry, Co., 1 H. & of aiding navigation, was held to 
 
 N. 34; Kidgill v. Moor, 9 C. B. 364; have sufficient possession to enable 
 
 Simpson v. Savage, 1 C. B. n. s. him to maintain trespass against a 
 
 347; Metropolitan Building Ass'n v. wrong-doer. 
 
 Petch, 5 C. B. n. s. 504; Bell v. Mid. »1 Chitty, PI. 69. 
 
 land Ry. Co., 10 C. B. n. s. 287. 3 7 Pick. 198 (Putnam, X, dissented). 
 
 1 Bassett v. Salisbury Manuf. Co., And see, to same effect, Cushing v. 
 
 28 N. H. 438; Branch v. Doane, 17 Adams, 18 Pick. 110. 
 
 Conn. 401; s. c. 18 Conn. 233; Brown ''Year Book, 13 Hen. 7, 26. 
 
 v. Bowen, 30 N. Y. 519; Lincoln v. 5 9 R 6 p. 59a. 
 Chadbourne, 56 Maine, 197; King v. 
 
.§§ 379, 380.] EEMEDIES AT LAW. 683 
 
 recover for an injury to land in the possession of a tenant by 
 corrupting water with the refuse of a lime-pit. In Bedingfielcl 
 <o. Onslow, 1 fiowage was held an injury to the reversion. The 
 overhanging of eaves or walls has been held not such an in- 
 jury per se; 2 and in another case, 3 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, re- 
 sulting from the non-repair of a conduit or gutter leading to 
 the defendant's mill, has been held an injury to a reversioner; 4 
 but a general allegation of an injury to the reversion by an 
 obstruction of navigation has been held insufficient. 5 
 
 § 379. Same — Same. — In America it has been held that 
 the freehold is injured by causing water to flow back upon the 
 plaintiff's land, 6 or into his race, 7 or by the obstruction of his 
 mill by backwater ; 8 or again by withholding the water from 
 his mill ; 9 or by diverting a natural watercourse from his land ; 10 
 or by polluting the stream, u and that the reversioner may re- 
 cover for such injuries. The owner of land leased at will for 
 purposes of pasturage may maintain an action for the obstruc- 
 tion of a right to drain the land through an ancient water- 
 course, but must show and can only recover for the injury to 
 the reversion. 12 
 
 | 380. Same — Same. — Anything which will create a per- 
 manent disturbance of the enjoyment of property if not altered 
 
 l 3 Lev. 209. To same effect see which produced no present injury 
 
 Bell v. Twentyman, 1 Q. B. 766. beyond that to the reversionary right, 
 
 2 Jackson v. Pesked, 1 M. & S. 234. and which may be removed before 
 
 3 Tucker v. Newman, 11 A. & E. 40. the reversioner would come into pos- 
 In another case, where the rever- session. See also Bell v. Midland Ey. 
 sioner brought suit for the same in- Co., 10 C. B. n. s. 287. 
 
 jury, it was held that he could re- 6 Davis v. Jewett, 13 N. H. 88; Ash- 
 cover only such damages as the jury ley v. Ashley, 4 Gray, 197; Potts v. 
 should think sufficient to compel the Clarke, Spencer (N. X), 536. 
 defendant to abate the nuisance, and 7 Ripka v. Sergeant, 7 Watts. & S. 9. 
 not the damage to the salable value 8 Baker v. Sanderson, 3 Pick. 348; 
 of the premises. Battishill v. Reed, Sumner v. Tileston, 7 id. 198; Brown 
 18 Q B. 696. v. Brown, 30 N. Y. 519. 
 
 4 Egremont v. Pulman, M. & M. 404. 9 Woodbury v. Willis, 50 Maine, 403. 
 s Dobsonu Blackmore, 9 Q. B. 991. 10 Hart v. Evans, 8 Penn. St. 14. See 
 
 In Shadwell v. Hutchinson, 4 C. & P. Rogers v. Dickson, 10 C. P. (Can.) 481. 
 
 333; s. C. M. & M. 350 (affecting an- "Seely v. Alden, 61 Penn. St. 302. 
 
 cient light), case was held maintain- ^Hastings v. Liverrnore, 7 Gray, 
 
 •able by a reversioner for a nuisance 194; s. c. 15 Gray, 10. 
 
684 THE LAW OF WATERS. [Ch. XII. 
 
 is in this inquiry considered an injury to the freehold. Thus 
 the building of a railway embankment in a stream, obstruct- 
 ing 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 con- 
 current right of the tenant to sue for his injury was considered 
 no objection, nor was the possibility that the cause of injury 
 might be removed during the term. 1 
 
 § 381. Same — Same.— When the disturbance is continued, 
 fresh actions may be maintained from time to time by the per- 
 sons occupying the positions of tenant in possession and rever- 
 sioner, 2 A purchaser may maintain an action for a nuisance 
 created before the purchase, if continued, 3 and an heir or dev- 
 isee, for the continuance of a nuisance created in the lifetime 
 of the ancestor or devisee ; 4 but an executor cannot recover for 
 a nuisance committed in the lifetime of his testator. 5 A mort- 
 gagee's right of action for an infringement upon his mill privi- 
 lege vests upon his taking possession of the premises. 6 
 
 § 382. Same — Co-tenants. — At common law, parceners 
 and 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 compelled to join in personal actions, as for trespass and 
 nuisance, " because in those actions, though their estates are 
 
 1 In Tinsman v. Belvidere R. Co., 25 Shadwell v. Hutchinson, 2 B. & Ad. 
 
 N. J. L. 255, Green, C. J., approved 97; s. c. 4 C. & P. 333; Battishill v. 
 
 the rule in Shadwell v. Hutchinson, Reed, 18 C. B. 696; and see Gale on 
 
 supra, allowing the reversioner to Easements (5th ed.) 658; ante, § 210. 
 
 recover nominal damages in the first s Beswick v. Combden, Cro. Eliz. 
 
 instance, and then substantial dam- 402; Russell and Handford's Case, 1 
 
 ages; and criticised the rule in Baker Leon. 273; Vedder v. Vedder, 1 Den. 
 
 v. Sanderson, 3 Pick. 348, where it 257. 
 
 was held that he could recover only 4 Some v. Barwish, Cro. Jac. 231. 
 
 for loss of rent. So in Ripka v. Ser- 5 McLaughlin v. Dorsey, 1 H. & 
 
 geant, 7 Watts &S. 9, it was held that McHen. (Md.) 224. An action for di- 
 
 the law implied a damage to the re- version dies with the plaintiff, and 
 
 version from back flowage upon a cannot be continued by his executor, 
 
 mill race. See Townes v. Augusta, Holmes v. Moore, 5 Pick. 257. 
 
 46 S. C. 15. e Hatch v. Bwight, 17 Mass. 289; 
 
 ^Penruddock's Case, 5 Rep. 101; ante, § 211b. 
 
■§ 382.] 
 
 REMEDIES AT LAW. 
 
 685 
 
 several, yet the damages survive to all." * It is sometimes 
 stated that tenants in common may join in actions for such 
 injuries; 2 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 general 
 rule of law, that where a personal claim is joint, and the right 
 survives, all must join, otherwise the process may be abated." 3 
 Owners in common of a mill, who have derived their respect- 
 ive rights under different conveyances, may join in an action 
 of tort for a diversion of water from their mill, but cannot join 
 in an action for breach of the defendant's covenants in refer- 
 ence to such water. 4 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. 5 
 
 1 Bacon's Abr. Joint Tenants, K. 
 (Bouvier's ed.) p. 301; Litt. § 316; Co. 
 Litt. 198a; 1 Chitty PI. 74: Dicey on 
 Parties, 380, Rule 80; Thompson v. 
 Hoskins, 11 Mass. 419; Crippen v. 
 Morss, 49 N. Y. 63, 69. Contra, as to 
 tenants in common of a reversion. 
 Roberts v. Holland, [18931 1 Q- B. 655. 
 In Stone v. Bromwich, Yelv. 161, 
 where tenants in common brought 
 an action for diverting a watercourse 
 and set out their titles, it was ob- 
 jected that they should not be joined, 
 but the court overruled the objec- 
 tion, saying: "This action . . . does 
 not concern the title, but only the 
 possession whereby the profits of the 
 land are diminished." 
 
 2 Angell on Watercourses, § 400. 
 s May v. Parker, IS Pick. 34. 
 
 4 Samuels v. Blanchard, 25 Wis. 
 329. 
 
 5 Francis v. Boston & Roxbury Mill 
 Co., 4 Pick. 365. In England, by 
 Order XVI. of the Judicature Act of 
 1875, all persons may be joined as 
 plaintiffs in whom the right to any 
 relief claimed is alleged to exist, 
 whether jointly, severally, or in the 
 
 alternative; and judgment may be 
 given for such one or more of the 
 plaintiffs as may be found to be en- 
 titled to relief, for such relief as he 
 or they may be entitled to without 
 any amendment. But the defendant, 
 though ' unsuccessful, shall be en- 
 titled to his costs occasioned by so 
 joining any person or persons who 
 shall not be found entitled to relief, 
 unless the court, in disposing of the 
 costs of the mot on shall otherwise 
 direct. L. R. 10 Gen. St. p. 791 (38 
 & 39 Vict. ch. 77). See Coulson & 
 Forbes on Waters, 656. By the rules 
 of chancery, which are followed in 
 the Judicature Acts, the owners of 
 several properties affected by a nui- 
 sance might join in suing. If one 
 failed to make out his case, the suit 
 as to him was dismissed with costs. 
 Such costs were deducted from those 
 of the successful plaintiff. Coulson 
 & Forbes on Waters, 656. In a 
 Scotch case, for a pollution of the 
 River Esk, the House of Lords held 
 that, by .the Scotch practice, the sev- 
 eral sufferers may bring a joint ac- 
 tion against the several authors o£ 
 
C86 
 
 THE LAW OF WATERS. 
 
 [Oh. XIL 
 
 § 383. Suits between co-tenants. — One tenant in common 
 has no right, by means of a dam erected on land of which he 
 is sole owner, to flow 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. 1 So one tenant in common may have 
 an action on the case against his co-tenant for diverting, ob- 
 structing, or polluting water to the injury of their common 
 rights, or for any infringement upon their common rights in 
 * water, or for flowing common lands or properties, without the 
 consent of the co-tenant. 2 In the earliest case in point it is 
 said that if two several owners of houses have a river in com- 
 mon between them, if one of them corrupt the river, the other 
 shall have an action upon the case. 3 The leading American 
 case was an action by one co-tenant against another, for divert- 
 ing a stream from their common mill for purposes of his own. 
 It was held that case was the proper remedy, and this case has 
 generally been followed. 4 
 
 the nuisance, asking a declarator 
 and interdict, but not claiming dam- 
 ages; and Lord Blackburn said that 
 this rule, though different from the 
 English law, was preferable. For 
 the English rule, contra, see Cowan 
 v, Buccleuch, 2 A. C. 344; Hudson v. 
 Maddison, 13 Sim. 416. 
 
 i Per Parker, C. J., in Great Falls 
 Co. v. Worster, 15 N. H. 312, 460, and 
 in Odiorne v. Lyford, 9 N. H. 502. 
 
 2Y. B. Hen. 7, 26; Blanchard v. 
 Baker, 8 Greenl. (Me.) 253; Hutchin- 
 son v. Chase, 39 Maine, 508, 514; Pills- 
 bury v. Moore, 44 id. 154; Hines v. 
 Robinson, 57 id. 324; Odiorne v. Ly- 
 ford, 9 N. H. 502; Great Falls Co. v. 
 Worster, 15 id. 412, 460; Beach v. 
 Child, 13 Wend. 343; s. C. 22 id. 538; 
 Crippen v. Morss, 49 N. Y. 63; Mc- 
 Lellan v. Jenness, 43 Vt. 183 (5 Am. 
 Rep. 270); Jones v. Weathersbee, 4 
 Strob. (S. C.) 50. 
 
 3 2 Waterman on Trespass, p. 392. 
 So if one co-tenant hinders another 
 from cleansing a common well. New- 
 
 ton v. Newton, 17 Pick. 201, 207. So 
 one may have case against his co- 
 tenant for cutting down or injuring 
 a dam held in common. Linton v. 
 Wilson, 1 Kerr (N. B.), 223, 231. 
 
 4 Blanchard v. Baker, 8 Maine, 253 
 (1832). The Massachusetts case of 
 May v. Parker, 12 Pick. 34, in equity, 
 cited in § 382, was decided in the pre- 
 ceding year. Shaw, C. J., there said: 
 " The consideration that the right to 
 recover damage is joint, and sur- 
 vives, suggests the application of an- 
 other rule of law, that where there is 
 a joint right to claim damage, each 
 has a right to claim the whole, hold- 
 ing himself liable to account, and if 
 the claim be against one of the par- 
 ties, he has as gpod a right to retain 
 the amount as they have to recover 
 it, and it would involve the legal 
 solecism of a man's having an action 
 against himself. The same reason, 
 therefore, which prohibits co-part- 
 ners from suing one of their num- 
 ber, who is debtor to the firm, and 
 
§ 384.] 
 
 KEMKDIES AT LAW. 
 
 687 
 
 § 384. Same. — Where the plaintiff and defendant were ten- 
 ants in common of a salmon fishery, the plaintiff was held en- 
 titled to recover damages in an action on the case for the con- 
 tinued 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. 1 One tenant in 
 common of a saw-mill and mill privilege may maintain an ac- 
 tion of trespass quare clausum against a co-tenant for the de- 
 
 obliges them to go into equity for re- 
 lief, seems to apply strongly to the 
 case of a joint claim for consequen- 
 tial damages against one of the co- 
 tenants." This dictum has been dis- 
 regarded. In Odiorne v. Lyford, 9 
 N. H. 502, decided in 1838, Parker, C. J., 
 said: "It is not decided in that case 
 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." 
 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 damages 
 as the injured party, is not sound in 
 principle, and has not been applied 
 to other cases of torts between co- 
 tenants. In Hines v. Robinson, 57 
 Maine, 324, the action was against a 
 tenant in common and a stranger, 
 for.using the water of a stream so as 
 to impair the use of the mill held in 
 common, and for erecting another 
 mill which obstructed the use of the 
 former. 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 v. 
 Child, 13 Wend. 343, where three 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 they 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, ob- 
 structing 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; 5 Am. Rep. 270, the plaintiff 
 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 Mar- 
 tyn v. Knowllys, 8 T. R. 145, that 'if 
 one tenant in common misuse that 
 which is in common with another, he 
 is answerable to the other in an ac- 
 tion as for misfeasance.'" That was 
 an action on the case by one tenant 
 in common against his co-tenant, foi- 
 cutting certain trees upon the com- 
 mon land. As to ouster by one ten- 
 ant in common of his co-tenants, see 
 Bellis v. Bellis, 122 Mass. 414; Ingalls 
 v. Newhall, 139 Mass. 268. 
 
 i Duncan v. Sylvester, 24 Maine,. 
 482. 
 
688 THE LAW OF WATEES. [Ch. XII. 
 
 struction of the mill, 1 but not for his entry upon the entire 
 common property and exclusive occupation thereof. 3 And 
 where two tenants in common of land including a water priv- 
 ilege made a division of the land, leaving the water privilege 
 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 in tort for such 
 use of the water thus owned in common before their rights 
 became several by the partition. 3 
 
 § 385. Yendor and vendee. — "When land injured by a nui- 
 sance 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 suc- 
 cessive purchasers against whom the nuisance is continued. 4 
 In Ives v. Cress, 5 it was held that a vendor of lands, retaining 
 the 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. Transfer of action. — A right of action for a nui- 
 sance could not at common law be transferred to another by 
 an instrument in writing for the purpose, or by conveying the 
 land affected. 6 Such a right of action is not appurtenant to 
 
 !Maddox v. Goddard, 15 Maine, improvements thereon, it was held 
 
 218. that the injuries would not be pre- 
 
 2 Porter v. Hooper, 13 Maine, 25. sumed to be of such a permanent 
 
 3 Bailey v. Rust, 15 Maine, 440. character as necessarily to affect the 
 
 4 Branch v. Doane, 17 Conn. 403; reversion, and that the lessor could 
 Eastman v. Amoskeag Manuf. Co., not be required to enter a protest 
 44 N. H. 143, overruling Woodman under the penalty of otherwise being 
 v. Tufts, 9 N. H. 91, so far as contra; estopped in equity, from objecting to 
 Plumer v. Harper, 3 N. H. 88. See the diversion. Corning v. Troy Iron 
 Penruddock's Case, 5 Rep. 101a; ante, Factory, 39 Barb. 311; 40 N. Y. 191; 
 §§ 364, 365. 34 Barb. 485. 
 
 5 5 Penn. St. 118. Where the lessee 6 Dicey on Parties, 382 ; Baldwin v. 
 of a term having several years to Calkins, 10 Wend. 167; Ortwine v. 
 run diverted a watercourse at consid- Mayor of Baltimore, 16 Md. 387. 
 erable expense, and made extensive 
 
■§ 387.] KEMEDIES AT LAW. 689 
 
 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 
 transferable. "Where a railroad 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 growing out of the continuance of 
 the injury. 1 The grantee of such injured party cannot in such 
 oase recover for the continuance of the injury, although the 
 former owner may not have brought any suit for the original 
 injury. 2 Where, from the improper grading of a street, the 
 water flowing therein formed a gully which caused a perma- 
 nent 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 
 was made, and upon the sale of the lot, did not pass to the 
 grantee. 3 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. 4 
 
 § 387. Parties defendant.— Every person who creates or 
 continues a nuisance is liable to be sued by any person specially 
 
 ^cLeod v. Lee, 17 Nev. 103. See 312. For a similar question under 
 
 Sargent v. New Haven S. Co., 65 the Wisconsin Mill Act, see Faville 
 
 Conn. 116; Oceanic S. N. Co. v. Cam- v. Greene, 12 Wis. 11. 
 
 pania Transat. Espanola, 144 N. Y. 8 Ortwine v. Baltimore, 16>Md. 387. 
 
 663. 4 Toledo E. Co. v. Hunter, 50 I1L 
 
 2C. & A. R. Co. v. Maher, 91 III. 325; 16 Sol. J. 459. 
 44 
 
690 
 
 THE LAW OF WATEES. 
 
 [Oh. XIL 
 
 injured thereby. 1 Each continuance of the nuisance is a fresh 
 one, 2 for which each successive occupier of the premises on 
 which the nuisance is maintained is liable. 3 The liability of 
 one erecting and maintaining a nuisance is twofold; he is lia- 
 ble 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. Same — Creator of nuisance. — If one creates a nui- 
 sance upon his premises, and then conveys them to another^ 
 he continues liable so long as it exists for all damages subse- 
 quently 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. 4 The same rule applies- 
 if the owner creates a nuisance and then lets the premises to 
 a tenant. 5 In Penruddock's case, 6 it is said of the quod per- 
 mittat: " But against him who did the wrong it lies without 
 
 1 Dicey on Parties, 423; Wendlandt 
 v. Cavanaugh, 85 Wis. 256. 
 
 2 3 BL Com. 220; 1 Cent L. J. 307. 
 
 3 Moore v. Brown, Dy. 3196; Ryp- 
 pon v. Bowles, Cro. Jao. 373; 3 Dane 
 Abr. 57; Baltimore, etc. R. Co. v. Fifth 
 Baptist Church, 137 IT. S. 568; Staples 
 v. Smith, 10 Mass. 72; Hodges v. 
 Hodges, 5 Met. 205; Baldwin v. Calk- 
 ins, 10 "Wend. 167; Schreiber v. New 
 York Driving Club, 37 N. Y. S. 348; 
 Beidelman v. Foulk, 5 Watts, 308; 
 Ramsdale v. Foote, 55 Wis. 557; 
 Steinke v. Bentley, 6 Ind. App. 663; 
 Pierce v. German S. Society, 72 Cal. 
 180; McGowan v. Mo. Pac. Ry. Co., 
 23 Mo. App. 203; Bizer v. Ottumwa 
 Hydraulic Power Co., 70 Iowa, 145. 
 The heir will be liable for continuing 
 a nuisance erected by the ancestor. 
 3 Dane Abr. 57. But one who ac- 
 quires by descent a certain mill-dam, 
 which is a public nuisance, is not lia- 
 ble to indictment, if he has done no 
 act in connection with the dam. 
 Bruce v. State, 87 Ind. 450. 
 
 4 Penruddock's Case, 5 Rep. 1006; 
 Rose well v. Prior, 2 Salk. 460; 1 Ld. 
 Raym. 713; 12 Mod. 635; Mason «, 
 Shrewsbury Ry. Co., L. R 6 Q. B. 
 578; Plumer v. Harper, 3 N. H. 88, 
 92; Woodman v. Tufts, 9 id. 88;. 
 Curtice v. Thompson, 19 id. 471; East- 
 man v. Amoskeag Manuf., 44 id. 143; 
 Prentiss v. Wood, 132 Mass. 486; 
 Hughes v. Mung, 3 H. & McHen. 441; 
 Dorman v. Ames, 12 Minn. 451; Fow 
 v. Roberts, 108 Penn. St 489; Castle 
 v. Smith (Cal.), 36 Pac. Rep. 859. 
 
 5 Griffith v. Lewis. 17 Ma App. 605. 
 
 6 5 Rep. 1006; Rosewell v. Prior, 
 supra; 3 Dane Abr. 57; Conhocton 
 Stone Co. v. Buffalo R Co., 52 Barb. 
 390; Knauss v. Brua, 107 Penn. St. 
 85. For cases affirming the land- 
 lord's continued liability, but not af- 
 fecting watercourses, see Christian 
 Smith's case, Sir Wm. Jones, 272; 
 Todd v. Flight, 9 C. B. n.s. 377; Rex 
 v. Pedley, 1 A. & E. 823. 
 
§ 389.] EEMEDIES AT LAW. 691 
 
 any request made, for the law doth not require any request to 
 be made to him who doth the wrong himself." In Eosewell 
 v. Prior, 1 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. Same — Same. — In Mason v. Shrewsbury Ry. 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 rea- 
 sons 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, 3 
 more than forty years before the English case above, it was 
 contended in argument that the rule was confined to cases of 
 leases, but the court said it would be difficult 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 4 lay down the principle without limita- 
 tion that the wrong-doer continues liable not withstanding his 
 alienation ; and in a late Massachusetts 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. 5 
 
 ^Salk. 460; 1 Ld. Raym. 713; 13 this rule. In Dorman v. Ames, 12 
 
 Mod. 635. Minn. 451, 458 (a flowage case), the 
 
 2 L. R 6 Q. B. 578. court said: "The erection of the ob- 
 
 3 3 N. H. 88. struction is sufficient to constitute a 
 
 4 Woodman v. Tufts, 9 N. H. 88; liability, and the disposition of his in- 
 Curtice v. Thompson, 19 N. H. 471; terest subsequently, if it were estab- 
 Eastman v. Amoskeag Manui. Co., 44 lished, would not defeat the action 
 N. H. 143. for damages arising from a nuisance 
 
 5 Prentiss v. "Wood, 133 Mass. 486. erected by him." Sellick v. Hall, 47 
 The decision in "Wendell v. Pratt, 13 Conn. 260, seems to depart from the 
 Allen, 464, is not inconsistent with rule in the text. A land-owner had 
 
692 THE LAW OF WATERS. [Ch. XII. 
 
 § 390. Same — In New York. — In New York the law is 
 different. In Blunt v. Aikin, 1 it was held that one erecting a 
 dam was not liable for damages caused by its continuance after 
 he had left the possession of the premises, and others had as- 
 sumed it, when there was no evidence that they held as tenants 
 in common of such former owner. This was modified in Wag- 
 goner v. Jermaine, 2 and the rule given that if a person erects a 
 nuisance upon his own lands, as by obstructing a watercourse, 
 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, 3 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 conveys the property with covenants for the 
 continuance of the nuisance." This is followed in Hanse v. 
 Cowing, 4 and the rule in Blunt v. Aikin, with the foregoing 
 modifications, affirmed. 
 
 § 391. Same — Landlord and tenant. — Generally the land- 
 lord is not liable for nuisances created by the tenant during his 
 tenancy, 5 but may become so if he relets the premises with 
 
 covered a stream flowing through to commit a new nuisance by wrong- 
 Ms land r and diminished its channel ; fully increasing the volume of the 
 and the city in which the land was stream, 
 situated had afterwards taken steps x 15 Wend. 531. 
 toward converting the stream into a 2 3 Den. 306; 45 Am. Dec. 474, note; 
 sewer. The court said: "If the de- Eockland Water Co. v. Tillson, 75 
 fendant had surrendered the posses- Maine, 170, 183. 
 sion and control of it to the city, in 3 2 Comst. 165, 174. 
 the belief that the proceedings of 4 1 Lans. 288. See, also, Walsh v. 
 the city were regular and complete, Mead, 8 Hun, 387. 
 and the city had taken such posses- 5 Woodfall, Landlord and Tenant 
 sion and control in that belief, the (11th ed.), 690; Wood, Landlord and 
 defendant would clearly no longer Tenant, § 539; Kastor v. Newhouse* 4 
 be liable for its insufficiency; in E. D. Smith, 20; Jansen v. Varnum, 
 other words, he would no longer be 89 111. 100; Harris v. Cohen, 50 Mich, 
 maintaining a nuisance. The city 324; Haydon v. Brown, 21 Nev. 322; 
 alone would be responsible for any Baker v. Allen, 66 Ark. 271. A dec- 
 further damage." It is to be noticed laration charging the defendant with 
 .that in this case the city proceeded the duty of cleansing drains, merely 
 
§ 391.] 
 
 EEMEDIES AT LAW. 
 
 69a 
 
 the nuisance continuing ; or if after the creation of the nui- 
 sance, and before the damage caused, he might have put an 
 end to the tenancy and did not (which is equivalent to a re- 
 letting J ) ; if he retains control of that part of the property in 
 which the nuisance is caused ; 2 or if he lets the premises in a 
 condition adapted and intended to be used in the manner com- 
 plained of. 3 In the case of nuisances from the non-repair of 
 the premises, if the landlord takes from a tenant a covenant 
 to repair, he is not liable, since he does not authorize the con- 
 tinuance of the nuisance. 4 
 
 as owner and proprietor thereof, is 
 bad. Russell v. Shenton, 3 Q. B. (A. & 
 E. N. s.) 449. The same rule is applied 
 in Carter v. Berlin Mills Co., 58 N. H. 
 52, cited in 19 Alb. L. J. 3, where the 
 defendants owned a water-power, of 
 which third persons obtained the use 
 under a contract ; and the defendants 
 were held not liable for damages 
 caused by the negligent use of the 
 power by the third persons. If a 
 married woman owns land, and it is 
 occupied by a tenant, or cultivated 
 by her husband, and either of them 
 erects a dam thereon, or digs a ditch, 
 so as to overflow the land of another, 
 she will not be liable unless the act 
 was done under her direction or with 
 her approval, or she knowingly main- 
 tained it. Jansen v. Varnum, 89 111. 
 100. 
 
 i Rex v. Pidley, 1 A. & E. 822; 
 Gandy v. Slubber, 5 B. & S. 78, 485; 
 33 L. J. Q. B. 151. See Dicey on Par- 
 ties, 432; Kern v. Myll, 94 Mich. 477. 
 
 2 Shipley v. Fifty Associates, 101 
 Mass. 251 ; Marshall v. Cohen, 44 Ga. 
 489; Blake v. Woolf, [1898] 2 Q. B. 
 426; Brown v. Bussell, L. R. 3 Q. B. 
 '251, 261. In the last case the land- 
 lord retained control of a drain which 
 became a nuisance from the tenant's 
 use of it. 
 
 3 Jackman v. Arlington Mills, 137 
 Mass. 277. See Blake v. Woolf, [1898] 
 2 Q. B. 426; Willcox v. Hines, 100 
 Tenn. 524. 
 
 4 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 Pres- 
 ton v. Norfolk Ry. Co., 2 H. & N. 735, 
 theNorfolk Railway Company owned 
 a canal and lock, for navigation, and 
 transferred to the Eastern Counties 
 Railroad Company the exclusive pos- 
 session, use, enjoyment, 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 possession, 
 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 Coun- 
 ties Company was, on the ground 
 that the latter company had posses- 
 sion at the time of the diversion. 
 The covenant to repair was not al- 
 luded to. The decision may be sup- 
 ported 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 re- 
 pair. Robbins v. Jones, 15 C. B. n. s. 
 221, 240. And the covenant to repair 
 would have the effect of discharging 
 the transferrer. Where a contractor 
 erected piles in a river, and, after 
 
•694 
 
 THE LAW OF WATERS. 
 
 [Ch. XII. 
 
 §392. Same — Continuer — Notice. — The person occupy- 
 in^ the premises is, for the same reason, liable for the contin- 
 uance of a nuisance created before his occupancy. 1 But the 
 continuance must be with knowledge of the nuisance. Such 
 knowledge will not be presumed, and an action cannot be 
 maintained against him until he has been notified of the ex- 
 istence of the nuisance, and requested to abate it. 2 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 ob- 
 jection is made. 3 A common nuisance may be abated without 
 notice, though maintained beyond the period of prescription. 4 
 
 completing his work, sold the piles 
 which his vendees cut off and re- 
 moved, leaving stumps which be- 
 came 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 v. 
 James, 45 L J. Q. B. sr. s. 661. 
 
 1 Braine v. Summers, 7 Vict. L. R. 
 (L.) 430. In Beswick v. Combdon, 
 F. 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 offense for the feoffee to main- 
 tain the bank as he found it. Cro. 
 Eliz. 520. But this is no longer law. 
 In a case where the defendant's hus- 
 band in his lifetime diverted a water- 
 course from the plaintiff's house, and 
 after her husband's death the defend- 
 ant continued the diversion, she was 
 held liable in case. Moore v. Dame 
 Browne, Dyer, 3196. An agent main- 
 taining a dam for his principal, and 
 not himself having possession or con- 
 trol, 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 defense. State v. Bell, 5 Porter, 
 365. 
 
 2 Penruddock's Case, 5 Rep. 101 a; 
 Brent v. Haddon, Cro. Jao. 555; Wins- 
 
 more v. Greenbank, Willes, at 583 
 Jones v. Williams, 11 M. & W. 176 
 Ahern v. Steele, 115 N. Y. 203, ,210 
 Plumer v. Harper, 3 N. H 88; Cur- 
 tice v. Thompson, 19 N. H 471; East- 
 man v. Amoskeag Manuf. Co., 44 
 N. H 143; Johnson v. Lewis, 13 Conn. 
 303: Branch v. Doane, 17 Conn. 402; 
 Noyes v. Stillman, 24 Conn. 15; Jones 
 v. Westerhausen, 131 Perm. St 62; 
 Pierson v. Glean, 2 Green (N. J.), 36; 
 Beavers v. Trimmer, 25 N. J. L 97; 
 Pillsbury v. Moore, 44 Maine, 154; 
 Hogan v. Barry, 143 Mass. 538; ren- 
 ter v. Toledo R. Co., 29 I1L App. 250; 
 Dodge v. Stacy, 39 Vt 558, at 577; 
 Howe Scale Co. v. Terry, 47 Vt 109, 
 124; Morris Canal Co. v. Ryerson, 27 
 N. J. L. 457; Townes v. Augusta, 52 
 S. C. 851; Belyea v. Hamm, 2 Han- 
 nay (N. B.), 27. See 2 Saund. PL & 
 Ev. 464; 1 Chit. PI. 95; 88 L. T. 149. 
 In Hughes v. Mung, 3 Har. & McH. 
 (Md.) 441, it was held that the alienee 
 would be liable for doing any act 
 tending to continue the diversion. 
 A plea of "not guilty" puts in issue 
 the wrongful erection of a dam by 
 another as well as its continuance by 
 the defendant. Nigh v. Sowerwine, 
 12 Q. B. (Can.) 67. 
 
 3 Johnson v. Lewis, 13 Conn. 303, 
 307; Sappington v. Little Rock R 
 Co., 37 Ark. 23. 
 
 *Ante. % 128; People v. Pelton, 55 
 N. Y. S.815; 159 N. Y. 537. 
 
^§ 393, 394.] EEMEDIES AT LAW. 695 
 
 § 393. Same — Form of notice.— The form of the notice 
 is immaterial, provided its character is clear and unmistak- 
 able. 1 In "Woodman v. Tufts, 2 a letter of remonstrance was 
 held sufficient. In Carleton v. Eedington, 3 the court say: 
 "It may be written or verbal, or by acts clearly giving the 
 party notice of the claim for a removal of the nuisance." 
 Such a notice to a municipal corporation, as a grantee con- 
 tinuing a nuisance, must be served upon the proper officer, 
 and in Nichols v. Boston, 4 it was held that the mayor was the 
 proper officer, and that a notice given to the clerk was insuffi- 
 cient. In Tomlin v. Fuller, 5 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. Bensley, 6 it was 
 held that a notice left at the premises was evidence of knowl- 
 edge, as against a subsequent occupier ; but in Nichols v. Bos- 
 ton, it was held that a judgment against the grantor for a 
 nuisance, existing a year previous, was no evidence of knowl- 
 edge of its continuance. 
 
 §394. Same — Same. — In New Tork the rule has varied 
 somewhat. The later decisions hold that a purchaser of prop- 
 erty, upon which there is a nuisance, must be shown to have 
 notice or knowledge of its existence before he will be liable 
 for damages caused by its continuance, but that it is not neces- 
 sary to prove a request to abate it. 7 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 knowledge of 
 it. 8 In Brown v. Cayuga Kailroad Co., 9 the defendants had 
 
 'MoDonough v. Gilman, 3 Allen, Road v. Buffalo R. Co., 52 Barb. 390. 
 
 264 And see Bellinger v. New York Cen- 
 
 J9N.E 92. tral R. Co., 23 N. Y. 52; Wasmer v. 
 
 3 21 N. H 311. Delaware R, Co., 80 N. Y. 212. 
 
 * 98 Mass. 39. 9 12 N. Y. 486. Of this it may be 
 
 5 1 Mod. 27. said that the opinion of Denio, J., 
 
 6 Ry. & Ma 189; 21 E. C. L. 730. himself is an obiter dictum. He said: 
 
 7 Conhocton Stone Road v. Buffalo "If we should be of opinion that an 
 
 R. Co., 51 N. Y. 573; reversing s. C. action on the case could not be main- 
 
 52 Barb. 390; Miller v. Church, 2 T. tained against one who has continued 
 
 & C. 259; s. c. 5 Hun, 342. a nuisance erected by another, with- 
 
 8 Brown v. Cayuga R. Co., 12 N. Y. out notice to remove it having been 
 
 486; followed in Irvin v. Wood, 4 Rob. first given, the defendants could not 
 
 138; 51 N. Y. 224; Conhocton Stone claim the benefit of that principle in 
 
696 
 
 THE LAW OF WATEKS. 
 
 [Oh. XIL 
 
 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 principle. 
 He made no reference to Brent v. Haddon or to Jones v. Will- 
 iams. 
 
 §395. Same — New nuisance — Grantee liable. — If the 
 
 grantee erects a new nuisance upon his premises, he is an 
 original wrong-doer and not entitled to notice. 1 Such new 
 
 this case, for the reason that they 
 failed to make any such objection at 
 the trial ; " and that the case of Rolf 
 v. Rolf, cited in Penruddock's case as 
 agreeing with it, was one of an action 
 on the case for the nuisance of drip. 
 See Beswick v. Combdon, F. Moore, 
 353. The case of Jones v. Williams, 11 
 M.& W. 176, is subject to the same lim- 
 itation which he puts upon Tomlin v. 
 Fuller, 1 Mod. 27, and the facts in Sal- 
 mon v. Bensley 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 v. Russell, 24 Barb. 404. 
 He followed the English cases, and 
 gave the usual rule. Judge Denio's 
 opinion was not referred to, and ap- 
 parently was not brought to Judge 
 Strong's attention, and the decision 
 was based on the ground that a re- 
 quest was sufficiently proved. The 
 question was again brought before 
 the court of appeals in the case of 
 Conhocton Stone Road v. Buffalo R. 
 Co., 51 N. Y. 573, reversing s. O. 52 
 Barb. 390. The cases were reviewed 
 at length by Lott, Ch. C, the decision 
 below reversed, Brown v. Cayuga 
 R. Co. was overruled, and the rule 
 
 settled as stated at the beginning of 
 this section. It differs from, the or- 
 dinary doctrine in holding that no- 
 request to abate the nuisance is nec- 
 essary. This decision is noticed in 
 Morse v. Fair Haven East, 48 Conn. 
 220, where, after referring to John- 
 son v. 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 
 followed in Pinney v. Berry, 62 Mo. 
 359; Dickson v. Central Pacific R. 
 Co., 71 Mo. 575; Waylandu. St. Louis 
 Ry. Co., 75 Mo. 548. In the last case 
 the court also had 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. 
 
 1 Curtice v. Thompson, 19 N. H. 
 471 ; Carleton v. Redington, 21 N. H. 
 291; Snow v. Cowles, 22 N. H..296; 
 Branch uDoane, 17 Conn. 402; Noyes 
 v. Stillman, 24 Conn. 15; Lawson v. 
 Price, 45 Md. 123, 137; Morris -Canal 
 Co. v. Ryerson, 27 N. J. L. 457. 
 
§ 396.] REMEDIES AT LAW. 697 
 
 nuisance may be created by a new use of existing structures, 
 as by increasing the height of a dam, 1 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 ; 2 or by keeping closed the gates in a dam, 
 which have been habitually kept open, whereby water is di- 
 verted from the plaintiff ; 3 or by rebuilding and maintaining 
 a dam originally built by another. 4 
 
 §396. Same — Joint and several liability. — It is a gen- 
 eral rule that one, any, or all of several joint wrong-doers may 
 be sued. 5 In other words, the liability 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 persons by showing that such oth- 
 ers are liable also. 6 But this rule is modified where the cause 
 of action is against persons 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. 7 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 maintaining 
 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 their duties in respect 
 to their land, the tort is simply joint, and all must be sued - y 
 and so the courts have held. 8 
 
 ^arleton v. Redington, 21 N. H. Hen. 4, p. 8, case 10; Sutton v. Clarke, 
 
 291. 6 Taunt. 29; Low v. Mumford, 14 
 
 2 Noyesu Stillman, 24 Conn. 15. Johns. 426; Simpson v. Seavey, 8 
 
 . 3 Snow v. Cowles, 22 N. H. 296. Greenl. 138; Southard v. Hill, 44 
 
 * New Salem v. Eagle Mill Co., 138 Maine, 92; Sumner v. Tileston, 4 
 Mass. 8. Pick. 308. And see Converse v. 
 
 5 Dicey on Parties, 430. Symnies, 10 Mass. 377. In the Abbe 
 
 6 Ibid.; 1 ChittyPl. 97, 98; Freeman de Stratforde's case (7 Hen. 4, p. 8, 
 
 on Co-tenancy, § 366; ante, § 222. case 10), an action of trespass on the 
 
 U Chitty PI. 98; 1 Wms. Saund. case was brought against him, and 
 
 291/0. (notes to Cabell v. Vaughn); the plaintiff averred that the defend- 
 
 1 Lindley on Partnership (4th ed.), ant held certain land, by reason 
 
 485. whereof he ought to repair a wall on 
 
 * Abbe de Stratforde's Case, Y. B. 7 the bank of the Thames; that the 
 
€98 
 
 THE LAW OF WATEES. 
 
 [CH. XII. 
 
 § 397. Same — Same. — 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. 1 A joint 
 tort must arise out of a single and joint act, and immediate 
 juxtaposition of different acts will not make^ a tort joint. Where 
 a land-owner had covered a stream flowing through his land, 
 and the city 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. 2 
 So a cause of action against two who have erected a dam can- 
 not be joined with a cause of action against one of them who 
 
 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 
 Taunt. 39, 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 overflowed. It 
 was held that the other members of 
 the board need not be joined. In 
 Low v. Mumford, 14 Johns. 436, 
 Platte, 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 aris- 
 ing from an act of misfeasance, ' the 
 keeping up ' a mill-dam on a stream 
 below the plaintiff's land." "Unless 
 the title comes in question, there is 
 
 no difference in this respect, in cases 
 arising ex delicto, between actions 
 merely personal and those which 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 
 appear 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 maintaining a dam and flood- 
 ing 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 separate use, the rubbish thrown 
 from which obstructed the mills be- 
 low. 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. 
 
 2Sellick v. Hall, 47 Conn. 260. 
 
§§ 398, 399.] EEMEDIES AT LAW. 699 
 
 I 
 
 continued the dam after receiving a conveyance from the 
 other. 1 
 
 §398. Same — Same. — "Where the injury complained of 
 results from the separate acts of many persons, any one con- 
 tributing to produce the injury is separately liable for the in- 
 jury which he causes. 2 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 in- 
 jury is produced by the joint action of several parties, and es- 
 pecially if it is the result of the independent action of several 
 parties contributing thereto, though not in combination or by 
 concert, it is no defense that all are not made defendants ; " 
 but that fact " can be considered only upon the question of 
 damages." 3 But a mortgagee of land through which a stream 
 flows, who lends the money secured by his mortgage for the 
 purpose of building a mill-dam in the stream, is not liable for 
 an injury caused by the dam, if erected by the mortgagor in 
 possession. 4 
 
 § 399. Same — When creator of nuisance is not in posses- 
 sion. — 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, 5 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 j which the dam is erected ; it is sufficient if he is a 
 party to the erection of the obstruction claimed to be a nui- 
 sance." In Saxby v. Manchester Eailway Co., 6 the defendants 
 were owners of the soil of a stream which supplied water to 
 
 1 Hines v. Jarrett, 26 S. C. 480. v. Walker, 40 Md. 1; Bucoleuch v. 
 
 2 Wheeler v. Worcester, 10 Allen, Cowan, 5 Macph. Sc. Sess. Cas. (3rd 
 591; Chipman v. Palmer, 9 Hun, 517; ser.) 214; 2 App. Cas. 344. 
 
 77 N. T. 51; Chenango Bridge Co. V. 3 Wheeler v. Worcester, 10 Allen, 
 
 Lewis, 63 Barb. Ill; Arimond v. 591. 
 
 Green Bay, 35 Wis. 41; Hill v. Smith, *McNaughton u Frazer, 3 Allen, 
 
 33 Cal. 166; Keyes v. Little York (N. B.), 247. 
 
 Gold Washing & Water Co., 53 Cal. 6 12 Minn. 451, 456. 
 
 724; Little Schuylkill Nav. Co. v. « L. E. 4 C. P. 198. 
 
 Richards, 53 Penn. St. 142; Gladfelter 
 
TOO THE LAW OF WATEKS. [Ch. XII. 
 
 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 plaint- 
 iff, 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 will be liable for the injury 
 caused by the wrong done in producing that benefit. 1 
 
 § 400. Survival of suits. — At common law an action to re- 
 cover damages sustained from diversion, obstruction, or flow- 
 age, caused by the defendant's wrongful acts, died with the 
 defendant. But this has been changed by statute in several of 
 the States. 2 
 
 §401. Nuisance not causing actual damage. — It was at 
 
 one time doubted whether case could be maintained for a nui- 
 sance 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 prop- 
 erty, the action will lie, although it causes no present actual 
 damage. 3 
 
 1 Tourtellot v. Phelps, 4 Gray, 370, to show what damage is occasioned 
 376. to him by the nuisance." This is 
 
 2 Ten Eyck v. Runk, 31 N. J. L. 428. almost a copy from Bracton (Bk. 4, 
 
 3 Ante, § 214. A statement in Brit- ch. 43) ; but the important clause in 
 ton (written about 1300 a. d.) gives a this connection is wanting. And 
 rule apparently contrary to that Britton continues: " And if the nui- 
 above. In Bk. II., ch. 30, §§2, 154 sance be found to be both hurtful and 
 (1 Nichols' ed. 398), Britton says: "Of tortious, then matters are to be en- 
 nuisances, however, some are both tirely restored to their former con- 
 tortious and hurtful, others hurtful, dition. If not tortious, it must be 
 yet not tortious; therefore, it be- tolerated, however hurtful it may 
 hooves every plaintiff in this case be;" which seems to indicate that 
 
§ 4:02.] KEMEDIES AT LAW. 701 
 
 § 402. Same. — The case usually treated as the leading case 
 is Duncombe v. Eandall, 1 where it is said : " If one had an- 
 ciently ponds which are replenished by channels out of a 
 river, he cannot change the channels if any prejudice accrue 
 to another by that." In Westbury v. Pond, cited in Fineux v. 
 Hovenden, 2 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 plaintiff. The principal 
 English authorities by which the doctrine opposed to that 
 given above is seemingly supported, are Williams v. Morland, 3 
 "Wright v. Howard, 4 and Miner v. G-ilmour. 5 In "Williams v. 
 Morland the case was for diverting a stream by a dam, and, 
 it was alleged, causing injury to the plaintiff's land. The 
 jury found that the plaintiff was uninjured, but that the de- 
 fendant 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 ac- 
 tion. In order to entitle himself to 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. How- 
 ard, 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 cancella- 
 tion, remarks obiter: " It appears to me that no action will lie 
 for diverting or throwing back water except by a person who 
 sustains an actual injury." But the distinction between act- 
 ual injury and actual damage must be observed. In Miner v. 
 Gilmour, 6 the privy council were called upon to determine the 
 rights of riparian owners. Lord Kingsdown, in delivering the 
 opinion, said : " But he has no right to interrupt the reg- 
 ular flow of the stream, if he thereby interferes with the law- 
 damage was used more in the sense 4 1 Sim. & Stu. 190, 203. 
 of injury. 5 12 Moo. P. C. 131, 156. 
 
 1 Hetley, 34 6 Ibid. But see article in 12 Jur. 
 
 2 Cro. Eliz^ 664 N. s. (1866) 359. 
 3 2 B. & C. 910; s. C. 4 Dow. & Ry. 
 
 583. 
 
702 THE LAW OF WATERS. [Ch. XIL 
 
 ful use of the water by other proprietors, and inflicts upon 
 them a sensible injury." "We shall hereafter notice the appli- 
 cation of the rule to the rights of adjacent riparian owners. 
 In Mason v. Hill, 1 Denman, 0. 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. Keblethwaite, 2 and Glynne v. Nichols,* 
 where the question was raised, but not decided. In the latter 
 case it was adjudged for the plaintiff. But the report in Com- 
 berbach shows that this was a case of trespass, and therefore 
 not in point. 
 
 § 403. Same. — The later English cases place the rule be- 
 yond a doubt. In Eochdale Canal Co. v. King, 4 the defend- 
 ants, who owned a mill adjacent to a canal, were authorized 
 by Act of Parliament 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 water 
 for other purposes, but that they had not thereby obstructed 
 the navigation. The court held that the action would lie. In 
 "Wood v. Waud, 5 the defendants fouled a stream without ren- 
 dering the water less available for useful purposes than before. 
 Pollock, 0. B., in delivering the opinion, said: ""We think, 
 notwithstanding, that the plaintiffs have received damage in 
 point of law. They had a right to the natural stream flowing 
 through the land in its natural statef" This is a case, there- 
 fore, of an injury to a right. The defendants by continuing 
 the practice for twenty years might establish the right to the 
 easement of discharging into the stream the foul water from 
 their works." 
 
 1 5 B. & Ad. 1, 27. ticular instance by the wrongful act, 
 2 1 Show. 64; s. C. Skinner, 65. yet as the repetition of such an act 
 3 2 Show. 507; Comberbach, 43. might be made the foundation of 
 4 14 Q. B. 122, 134. Coleridge, J., claiming a right to do the act here- 
 said: "The water then having been after, a damage in law has already 
 used by the defendants for illegal been sustained, in respect to which 
 purposes, the general principle ap- an action is maintainable." 
 plies, that although no appreciable 5 3 Exch. 748, 772. See McGlone v. 
 damage may be sustained in the par- Smith, 22 L. E. Ir. 559. 
 
§§ 404, 405.] REMEDIES AT LAW. 703 
 
 § 404. Same. — la Embrey v. Owen, 1 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 foun- 
 dation of an action ; it is sufficient to show the violation of a 
 right, in which case the law will presume damage; injuria 
 sine damno is actionable." This was followed in ISTortham v. 
 Hurley. 2 In Harrop v. Hirst, 3 the court held that an action 
 for diverting water is maintainable without proof of any act- 
 ual 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, en- 
 titles the latter to damages, on the ground that a repetition 
 of such act for the required time would divest the proprietor 
 of his rights. 4 
 
 § 405. Same. — In America, the rule that the action on the 
 case lies for any nuisance infringing the plaintiff's right, al- 
 though there is no actual damage, is sustained by an almost un- 
 broken series of authorities. 5 In Woodman v. Tufts, 6 decided 
 
 16 Exch. 853, 368. 4 Patrickv.Greenway,lWm.Saund. 
 
 *1 E. & B. 665. 346b; 1 Notes to Saund. 627. And see 
 
 3 L R 4 Exch. 43, 45. The same Chapman v. Thames Manuf. Co., 13 
 
 doctrine is followed in Rose v. Groves, Conn. 269, 274. 
 
 5 M. & G. 613; Bower v. Hill, 1 Bing. » Whipple v. Cumberland Manuf. 
 
 N. C. 549; Sampson v. Hoddinott, 3 Co., 2 Story, 661; Parker v. Griswold, 
 
 C. B. n. s. 590: Med way v. Romney, 17 Conn. 288; Branch v. Doane, 18 id. 
 
 9id. 575; Crossleyv. Lightowler, L. R. 233; Newhall v. Ireson, 8 Cush. 595; 
 
 3Eq. 279; Bickett v. Morris (per Lord Stowell v. Lincoln, 11 Gray, 434 j 
 
 Westbury), L. E.1EL (Sc. & Div. Blanchard v. Baker, 8 Maine, 253; 
 
 Ap.) 47; 14 L. T. N. s. 835 (explained Bateman v. Hussey, 12 id. 407; Mun- 
 
 in Ewing v. Colquhoun, L. R 2 A pp. roe v. Stickney, 48 id. 462; Cowles v. 
 
 Cas. 839); Lyon v. Fishmongers' Co., Kidder, 24 N. H. 364, 379; Bassett v. 
 
 L. R 10 Ch. 679; 1 App. Cas. 662; Salisbury Manuf. Co., 28 id. 438; Ger- 
 
 Claxton v. Claxton, Ir. Rep. 7 C. L. rish v. New Market Manuf. Co., 30 id. 
 
 23(1873). To same effect see 1 Wms. 479, 484; Amoskeag Manuf. Co. v. 
 
 Saund. 3466 (note to Mellor v. Spate- Goodale, 46 id. 53; Chatfield v. Wil- 
 
 man); 2 Notes to Saund. 370; Clowes son, 27 Vt. 670; Tuthill v. Scott, 43 id. 
 
 v. Staffordshire Waterworks Co., L. R 525 ; Plumleigh v. Dawson, 1 Gilman, 
 
 8 Ch. 125. And see Pennington v. 544; Hulme v. Shreve, 3 Green, Ch, 
 
 Brinsop Co.,5 Ch. D. 769, where Fry, J., 116; Pastorious v. Fisher, 1 Rawle, 
 
 distinguishes the term "injury" from 27; Ripka v. Sergeant, 7 Watts & S. 
 
 "damage." 11; Miller v. Miller, 9 Penn. St. 74; 
 
 «9N. H. 88. 
 
f 04 THE LAW OF WATERS. [Ch. XII. 
 
 in 1837, before most of the English cases above cited, the de- 
 fendants 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 maintained a dam 
 so high as to overflow the land of the plaintiffs, the presump- 
 tion 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 Manuf. 
 Co., 1 which was an equity case between riparian proprietors, 
 Story, J., lays down the rule which is followed by Parke, P.., 
 in Embrey v. Owen, above cited. "Where the owners of an 
 ancient mill upon a lake, who had been accustomed for many 
 years to obtain water for their mill through an artificial chan- 
 nel which they maintained in a sand-bar, thereby obtained a 
 prescriptive right to overflow the adjoining lands to a certain 
 height, 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. 2 
 
 §406. Reasonable use. — 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. 3 This topic in- 
 volves the discussion of questions of substantive law which 
 
 Delaware Canal Co. v. Torrey, 33 id. of the plaintiff below. The court 
 
 143; Graver v. Sholl, 42 id. 58; Stein say: "It is a long established prin- 
 
 v. Burden, 42 Ala. 130; Tootle v. Clif- ciple of the common law, that wher- 
 
 ton, 22 Ohio St. 274; Mitchell v. Barry, ever any act injures another's right, 
 
 26 Up. Can. Q. B. 416; Hendrick v. and would be evidence in future in 
 
 Cook, 4 Ga. 241 ; Chapman v. Cope- favor of the wrong-doer, an ■ action 
 
 land, 55 Miss. 476; Essen uMcMaster, maybe maintained for an invasion 
 
 1 Kerr (N. B.), 501. of the right,' without proof of any 
 
 '3 Sumner, 189. In Tillotson v. specific injury." 
 
 Smith, 32 N. H. 90, 96, the defendant 2 Chapman v. Thames Manuf. Co., 
 
 increased the head of water in his 13 Conn. 269. So under a covenant 
 
 pond by turning into it another allowing "repairs." MottwConsum- 
 
 stream, thereby increasing the vol- ers' "W. Co., 188 Penn. St 521. 
 
 ume of water flowing over the land 3 See ante, ch. 6. 
 
'§§ 407, 408.] KiSMEDIES AT LAW. T05 
 
 have already been considered, 1 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 an- 
 swers to these questions doubtless explain the apparent con- 
 flict of authorities. 
 
 § 407. Same. — The law of England on the point was settled 
 by the opinion of Baron Parke in the case of Embrey v. Owen. 2 
 He states the right of the v 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 enjoyment of it 
 subject to the similar rights of all the proprietors of the banks 
 on each side, to the reasonable enjoyment of the same gift of 
 Providence. It is only, therefore, fo» 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 damage to the plaintiff." In 
 the still earlier case of Tyler v. "Wilkinson, 3 Story, J., uses sim- 
 ilar language. 
 
 §408. Same. — The correct answers to the above questions 
 are indicated by these opinions, and the true rule is clearly 
 stated in the case of Wheatley v. Chrisman. 4 There a small 
 stream of water flowed through the land of the parties, the 
 defendant being the upper and the plaintiff the lower proprie- 
 tor. 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: "The wrong must cease, no 
 matter how trifling it may seem. The right of the plaintiff 
 is absolute to be restored to the full enjoyment of his own 
 
 1 Ante, oh. 7. 3 4 Mason, 397. 401 (1837). 
 
 2 6 Exch. 353. * 24 Penn. St. 298, 302. 
 
 45 
 
706 THIS LAW OF WATERS. [Ch. XII. 
 
 property, and is not dependent in any manner upon its value 
 either to himself or his adversary." " The proposition of the 
 defendant was that he had a legal right to use a reasonable 
 quantity of the water for the purposes of his business. The 
 court replied that his business might reasonably require more 
 than he could take consistently with the rights of the plaint- 
 iff. "We cannot see how or on what principle the correctness 
 of this can be impugned. The necessities of one man's busi- 
 ness cannot be the standard of another's -rights in a thing 
 which belpngs 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 cor- 
 rupting it in quality. If he needed more, he was bound to 
 buy it." 1 
 
 § 409. Same. — In Dumont v. Kellogg, 2 the same question 
 came up between upper and lower riparian owners. The upper 
 proprietor, by filling a reservoir from a stream, had diminished 
 its volume. Cooley, J., in delivering the opinion of the court, 
 said: "As between two proprietors, neither of whom has ac- 
 quired superior rights to the other, it cannot be said, that one 
 ' has no right to use the water to the prejudice of the propri- 
 etor below him,' or that he cannot lawfully 'diminish the 
 quantity which would descend to the proprietor below.'" 
 " Such a rule could not be the law so long as equality of right 
 between the several proprietors was recognized, for it is mani- 
 fest it would give to the lower proprietor superior advantages 
 over the upper, and in many cases give him in effect a mo- 
 nopoly of the stream." Mr. Phear 3 says: "Of course no 
 action will lie either in trespass or nuisance, unless a right be 
 infringed; but if the infringement be proved, nominal dam- 
 ages must be awarded, whether actual damage were a con- 
 sequence or not. In cases where the right alleged to be in- 
 fringed is merely the right to be protected from actual damage, 
 manifestly no action can succeed, unless actual damage be 
 proved." 4 
 
 i The language of this case is 2 ~29 Mich. 420, 422, 425. 
 
 adopted in Washburn on Easements, 3 On Waters, 107. 
 
 p. 266, and is followed in Batavia 4 This is somewhat inaccurate of 
 
 Manuf. Co. v. Newton Manuf. Co., 91 trespass, since every trespass imports 
 
 111. 230, 245; and Garwood v. New damage. 3B1. Com. 209. For further 
 
 York Central K. Co., 17 Hun, 356. discussion of the doctrine stated in. 
 
§§ 410, 411.] EEMEDIES AT LAW. 707 
 
 § 410. Same. — In Elliot v. Fitchburg E. Co., 1 a railroad 
 company, owning land along a stream, had dammed it to ob- 
 tain 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. The case is distinguished 
 from the typical one by which the plaintiff resists an infringe- 
 ment, which may ripen into an adverse right, or abridge W 
 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. Ire- 
 son. 2 There the upper proprietor, having conveyed water by 
 a pipe to his well upon another tract of land, wholly away 
 from the stream, returned it into the salt water below the 
 plaintiff's land, and Shaw, C. J., regarded it as " a case where 
 an action can be maintained to vindicate the plaintiff's right, 
 and to prevent a loss of it by adverse possession and lapse of 
 time." 3 
 
 § 411. Damages. — The question whether damages shall be 
 computed only up to the beginning of the action, or shall in- 
 clude prospective damages, is one of considerable difficulty. 
 The general rule, stated by Mayne, is that damages arising 
 
 the text, see 1 Smith's Lead. Cas., McElroy v. Goble, 6 Ohio St. 187, it 
 
 notes to Ashby v. White. The dis- was held that the use of streams of 
 
 tinction is stated, but less clearly, in water for domestic, agricultural, or 
 
 Miner v. Gilmour, 12 Moo. P. C. 131, manufacturing purposes, being to 
 
 upon which see an important article some extent a public right, an action 
 
 in 12 Jur. N. s. (1866) p. 359. And for a nuisance caused by any ob- 
 
 see Snow v. Cowles, 22 N. H. 86. struction or diversion of a stream for 
 
 110 Cush. 191,197. See Bigelow's any such purpose, will not lie unless 
 
 Leading Cases on Torts, 509. the damage occasioned thereby is 
 
 2 8 Cush. 595, 599. real, material, and substantial. For 
 
 3 In the case of Cummings v. Bar- other authorities, that an insensible 
 fett, 10 Cush. 186, 191, Shaw, C. J., or minute diminution, or interfer- 
 also expresses his opinion in similar ence with a stream by a riparian 
 terms as to cases where rights are in- owner in the course of a proper use 
 fringed. And this rule has been fol- of the stream, not causing damage, 
 lowed by the same court in Bolivar is no infringement of other riparian 
 Manuf. Go. v. Neponset Manuf. Co., proprietors' rights, and is not action- 
 16 Pick. 241; Hastings v. Livermore, able, see Wadsworth v. Tillotson, 15 
 7 Gray, 194; Stowell v. Lincoln, 11 Conn. 366; Martin v. Bigelow, 2 Aik. 
 Gray, 434; and Lund v. New Bed- (Vt.) 184; Ford v. Whitlook, 27 Vt. 
 ford, 121 Mass. 286. The doctrine of 265; Canfield v. Andrew, 54 Vt. 1; 
 Elliot v. Fitchburg R. Co. is in accord George v. Wabash W. Ry. Co., 40 Mo. 
 with decisions in other States. In App. 433; ante, gg 204, 214. 
 
708 THE LAW OF WATERS. [Ch. XII. 
 
 subsequent to action brought, or even to the date of the ver- 
 dict, may be taken into consideration when they are the nat- 
 ural and necessary result of the act complained of, and where 
 they do not themselves constitute a new cause of action. 1 This 
 general principle must be applied to single nuisances, to con- 
 tinuing 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 illustrat- 
 ing the leading distinctions made by the courts, we have dis- 
 tributed these cases into several classes. 
 
 § 412. Same — Damage as the gravamen of the suit. — 
 
 First. Nuisances and acts wrongful only when causing actual 
 damage ; *. e., where damage is the gravamen of the action. 2 
 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. 3 This 
 class includes cases where the acts complained of are inter- 
 rupted and repeated, as in the opening and closing of the gates 
 of a dam ; 4 cases where, from a single act, not wrongful in 
 itself, new damages result from time to time, and constitute 
 
 1 Mayne's Law of Damages (3d ed.), 300; Burnett v. Nicholson, 86 N. C. 
 84. 99; Duncan v. Markley, 1 Harper 
 
 2 See Whitehouse v. Fellowes, 10 C. (S. C), 276; Langford v. Owsley, 2 
 B. n. s. 765; Lamb v. Walker, 3 Q. B. Bibb (Ky.), 215: Cobb v. Smith, 38 
 Djv. 389 (dissenting opinion of Cock- Wis. 21; Hazeltine v. Case, 48 Wis. 
 burn, C. J.); Delaware Canal Co. v. 391; Dorman v. Ames, 12 Minn. 451; 
 Wright, 21 N. J. L. 469. Clark v. Nevada Mining Co., 6 Nev. 
 
 'Ibid.; Waggoner v. Jermaine, 3 203. See Hodges v. Hodges, 5 Met. 
 
 Denio, 306; Baldwin v. Calkins, 5 205; McConnel v. Kibbe, 29 111. 483; 
 
 Wend. 167, 179; Phillips v. Terry, 42 Joseph Schlitz B. Co: v. Compton, 142 
 
 N. Y. 313; Whitemore v. Bischoff, 5 111. 511. As to the statute of limita- 
 
 Hun, 176; Duryea v. Mayor, 26 Hun, tions, see Sutton v. Clark, 6 Taunt. 29; 
 
 120; Beck with v. Griswold, 29 Barb, and Deverry v. Grand Canal Co., Ir. 
 
 291; Covert v. Valentine, 21 N. Y. S. Rep. 9 C. L. 194, where it is held that 
 
 219; Paddock v. Somes, 51 Mo. App. in actions for damages caused by con- 
 
 320; Hudson v. Burk, 48 id. 314; tinued obstruction, the statute runs 
 
 Thayer v. Brooks, 17 Ohio, 489; Polly from the time the special damage 
 
 v. McCall, 1 Ala. Sel. Cas. 246 ; 37 Ala. complained of occurred. To the same 
 
 20; Stein v. Burden, 24 Ala. 130; effect see Van Orsdol v. B., C. B. & N. 
 
 Savannah Canal Co. v. Bourquin, 51 B. Co., 56 Iowa, 470. As to the effect 
 
 Ga. 378; • v. Deberry, 1 Hayw. of an amendment, see Doyle v. Syca- 
 
 (N. C.) 248; Carruthers v. Tillman, more, 81 111. App. 589; infra, § 421, 
 
 id. 501; Bradley v. Amis, 2 id. 399; note. 
 
 Shaw v. Etheridge, 3 Jones (N. C), 4 So in case of the occasional erec- 
 
§§ 413, 414.] EEMEDIES AT LAW. 709 
 
 new causes of action; and, on principle, would include all 
 cases of nuisances, single and continuing. In WMtehouse v. 
 Fellowes, 1 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 consequence the plaintiff's lands were overflowed. 
 "Williams, J., said: "The question is whether the plaintiff is 
 hound to rest his complaint upon the original construction of 
 the works, or whether he can maintain an action after the ex- 
 piration of three months from that time " (the .period of the 
 special statute of limitation). " I am of opinion that the con- 
 tinuance by the defendants of that negligent and improper 
 condition of the road under their charge, if accompanied by 
 fresh damage to the plaintiff, constitutes a fresh cause of 
 action." 
 
 § 413. Same. — Most of these cases turn upon the principle 
 that every continuance of a nuisance is a new nuisance. 2 In 
 Beckwith v. Griswold, 3 the action was for damages caused by 
 obstructing and changing the channel of a creek and diverting 
 its waters and causing them to overflow the plaintiff's lands. 
 The plaintiff had already had one recovery for damages 
 caused by the same act. The court held that the former re- 
 covery 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. Same.— In Duryea v. Mayor of New York, 5 the ac- 
 tion was for damages caused by the wrongful discharge of 
 
 tion of flash-boards upon a dam, 3 29 Barb. 291. 
 
 causing damages from time to time. 4 This case is cited with approval 
 
 Noyes v. Stillman, 24 Conn. 15. in Munson v. People, 5 Parker, C. C. 
 
 1 10 C. B. n. s. 765, 781. See Peden 16. The same rule is laid down in 
 
 v. Chicago Ry. Co., 78 Iowa, 131; Bradley v. Amis, 2 Hay w. (N. C.) 399. 
 
 Thornton v. Turner, 11 Minn. 336. 5 26 Hun, 120, 122; 62 N. Y. 592; 
 
 See the dissenting opinion of Cock- 96 N. Y. 477; New York v. Law, 125 
 
 burn, C. J., in Lamb v. Walker, 3 Q. N. Y. 380; Elder v. Lykens V. C. Co., 
 
 B. Div. 389. 157 Penn. St. 490. 
 
 2 3B1. Com. 220. 
 
710 THE LAW OF WATEES. [Ch. XII. 
 
 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 discharge was in and of itself a substantive cause of loss, 
 and for that reason constituting a separate right of action." 
 Thayer v. Brooks x was an action on the case for nuisance in 
 diverting 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 dimi- 
 nution 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. Exemplary damages. — If a person continues a nui- 
 sance after its wrongful character has been judicially deter- 
 mined, and damages have been recovered against him, the case 
 becomes one for exemplary damages. 2 In a second action, the 
 plaintiff should be awarded damages sufficient to compel the 
 defendant to abate the nuisance. 3 
 
 * 17 Ohio, 489. In Hayden v. Albee, would lie, and further that a judg- 
 20 Minn. 159, this principle is de- ment in the second action in no way- 
 parted from. The action there was affected the rights of the parties in 
 for damages to plaintiff's land result- the first action, pending in the tir- 
 ing from an overflow caused by de- cuit court. See Gallagher v. King- 
 fendant's dam. The jury were al- ston W. Co., 49 N. Y. S. 250. A city 
 lowed to include in the damages the is liable for its negligence in provid- 
 value of timber caused to die by the ing a water-supply if it overflows 
 fiowage, although the timber did not land by allowing mud and debris to 
 die until after the action was begun, accumulate in the stream above its 
 In Hazeltine v. Case, 46 Wis. 391, a dam. Baltimore v. Merryman, 86 
 lower riparian owner had brought Md. 584. 
 
 one action against an owner above, 2 Bradley v. Amis, 2 Hay w. (N. C.) 
 
 for fouling the stream, and had ob- 390. 
 
 tained judgment from which the 3 Ibid. See v. Deberry, 1 
 
 defendant appealed. While such Hayw. 248; Carruthers v. Tillman, 1 
 
 appeal was pending, the plaintiff Hayw. 501 ; Clyde v. Clyde, 1 Yeates, 
 
 brought a second action before a 92; Walker v. Butz, 1 Yeates, 574; 
 
 justice of the peace for damages ac- Mayor v. Commissioners, 7 Penn. St. 
 
 cruing since the date of the first ac- 348,366; Wheatley v. Chrisman, 24 
 
 tion. It was held that the action id. 298. In Battishill v. Reed, 18 C. B. 
 
§ 416.] KEMEDIES AT LAW. 711 
 
 § 416. Same — Permanent injury. — 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 de- 
 fendant's act. 1 Injuries caused by permanent structures in- 
 fringing upon the plaintiff's rights in his land, such as railroad 
 embankments, culverts, and bridges, permanent dams and per- 
 manent pollutions of water, fall in this class. The leading case 
 of this class is Troy v. Cheshire Railroad Co. 2 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 continu- 
 ance is necessarily an injury, 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 
 
 696, where the action was for the nui- Har. (Del.) 1; Ross v. Horsey, id. 60. 
 sanoe of overhanging eaves, Jervis, J Warner v. Bacon, 8 Gray, 397; 
 
 C. J., said: "Every day that the de- Fowle v. New Haven & Northampton 
 
 fendant continues the nuisance, he Co., 107 Mass. 352; 112 id. 354; Mears 
 
 renders himself liable to another ac- v. Dole, 135- id. 508, 512; Rockland 
 
 tion. I think the jury did right to Water Co. v. Tillson, 69 Maine, 255; 
 
 give, as they generally do, nominal Henderson v. New York Cent. R. Co., 
 
 damages only in the first action; and, 78 N. Y. 423; Woodford v. Brinker, 63 
 
 if the defendant persists in continu- N. Y. S. 884; Powers v. Council Bluffs, 
 
 ing the nuisance, then they may give 45 Iowa, 654; Willitts v. Chicago, etc. 
 
 such damages as may compel him to Ry. Co., 88 id. 281; VanOrsdol v. B., 
 
 abate it, but not, as was insisted here, C. R. & N. R. Co., 56 id. 470; Young 
 
 the difference between the original v. Gentis, 7 Ind. App. 199; Chicago 
 
 value of the premises and their di- & Alton R. Co. v. Maher, 91 111. 312; 
 
 minished value." In Delaware, by Van Schoick v. Delaware & Raritan 
 
 statute, the owner of an upper mill Canal Co., 20 N. J. L. 249; Seely v. 
 
 is bound to give notice to the owner Alden, 61 Penn. St. 302. 
 ■of a lower mill before discharging an 2 23 N. H. 83. For a suggestion of 
 
 unusual quantity of water, and if he the convenience of one action instead 
 
 •wilfully discharges water in an un- of several, see Duncan v. Sylvester, 24 
 
 usual quantity, he is liable for double Maine, 482. 
 damages. Mcllvane v. Marshall, 3 
 
712 THE LAW OF WATERS. [Ch. XIL. 
 
 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 necessa- 
 rily of a permanent character, but may or may not be injurious, 
 or may or may not be continued, there the injury to be compen- 
 sated in a suit is only the damage that has happened." The 
 court also cited "Woods v. Nashua Manuf. Co., 1 which was a 
 case of taking lands for a canal. 2 It will 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 do- 
 main, of which we shall speak hereafter, but the reasoning is 
 extended by the court to all permanent nuisances. 
 
 § 417. Same — Same. — In Fowle v. New Haven & North- 
 ampton Co., 3 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 em- 
 bankment of the defendants was a permanent structure, which, 
 without any further act except keeping it in repair, must con- 
 tinue to turn the current of the river in such a manner as 
 
 1 5 N. H. 467. an embankment for its track, which 
 2 See also Powers v. Council Bluffs, closed the natural channel of a 
 45 Iowa, 652. Here the city con- stream, and diverted water from 
 structed a ditch so that it emptied land, it was held that the injury was- 
 into a main stream by a fall of sev- a permanent one, for which damages 
 eral feet, instead of grading the bed might be at once fully recovered, 
 of the ditch to the level of the stream. Stodghill v. C, B. & Q. R Co., 53 Iowa, 
 The action of the water washed out a 341. Where a town is required by 
 cavity at the fall, which worked back- law to repair and maintain a road 
 ward up the channel of the ditch, washed out by the overflow of a mill- 
 and at length washed out portions of pond, it may recover the cost of re- 
 the plaintiff's soil, for which injury pairs and of building a wall protect- 
 ee brought suit. The period of the ing it against future injuries. An- 
 statute of limitations had run after dover v. Sutton, 13 Met. 182. See r 
 the stream began to wash out his also, Baldwin v. Oskaloosa Gas Light, 
 premises, but there were recent dam- Co., 57 Iowa, 51 ; Dickson v.. Chicago, 
 ages within the period. It was held E. I. & P. R. Co.. 71 Mo. 575.. 
 that the nuisance was a permanent 3 107 Mass. 352; 112 Mass. 334. See 
 one, the damages from which were Gillett v. Kinderhook, 28 N. Y. S. 
 calculable from the first; and that 1044; Higgins- v.. New York,, etc. R. 
 the entire action was barred. So Co., 29 id. 563. 
 where a railroad company erected 
 
§§ 418, 419.] REMEDIES AT LAW. 713 
 
 gradually to -wash away the plaintiff's land. For this injury 
 the plaintiff 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 injuries 
 from the same cause." In the latter report of the case, after 
 further proceedings, Colt, J., said : The case at bar is " an action 
 against the defendant for the construction of a public work 
 under its charter in such a manner as* to cause unnecessary dam- 
 age by want of reasonable care and skill in its construction. 
 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 a*s permanent by the parties, it is proper 
 that entire damages should be assessed with reference to past 
 and probable future injury." 
 
 §418. Same — Same. — In the case of Chicago & Alton 
 Railroad Co. v. Maher, 1 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 plaintiff's dock. 
 The bridge in question was erected while the property was 
 owned by the plaintiff's husband, and he conveyed it to her 
 without bringing suit for the obstruction. She then brought 
 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, 1 
 and could not be transferred. 2 
 
 §419. Same — Same. — To this class must be referred the 
 cases of nuisance for which the measure of damages is the de- 
 
 " 91 111. 312, relying on C. & P. R. Light Co. v. Howell, 92 111. 19, the 
 
 Co. v. Stein, 75 111. 41, which was a action was for the continuance of a 
 
 case of eminent domain, with facts nuisance by the maintenance of gas 
 
 like those in the Maher Case; and on works, polluting the water supply of 
 
 Ottawa Gas Light & Coke Co. v. Gra- the plaintiff. The plaintiff had for- 
 
 ham, 28 111. 73. This was a case merly recovered for the depreciation 
 
 where a well was polluted by perco- in value of his premises from the 
 
 lations from the defendant's gas same cause, and that recovery was 
 
 works. The court held that the held a bar to any further action for 
 
 measure of damages was the depre- the same cause, 
 
 ciation in the value of the property 2 For a similar ruling, see Ortwina 
 
 caused thereby. In Decatur Gas v. Baltimore, 16 Md. 387. 
 
714: THE LAW OF WATERS. [Ch. XII. 
 
 preciation in the value of the property injured. 1 Such dam- 
 ages 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; 2 and having been recovered once, 
 no further action lies for that cause. 3 In Seely v. Alden 4 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: " Compensation for the dimin- 
 ished enjoyment or use of the property for a certain number 
 of years is no compensation for the diminished value of the es- 
 tate 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 plaint- 
 iffs declared upon, the deposit as an injury to their 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." 5 
 
 § 420. Same — Same. — The law will not presume a perma- 
 nent injury. In order to recover such damages the plaintiff 
 must aver and prove that the act complained of necessarily 
 causes a permanent injury to the value of his property. 6 In 
 
 i Chase v. New York Central R Co., o In Hatch v. Dwight, 17 Mass. 289, 
 
 34 Barb. 273; Easterbrook v. Erie Ey. where a mortgagee was given as 
 
 Co., 51 id. 94; Hanover Water Co. v. damages the interest on the value of 
 
 Ashland Iron Co., 84 Penn. St. 279; a mill-site from the time the action 
 
 Seely v. Alden, 61 id. 302; Minnequa, accrued. See James v. Worcester, 
 
 Springs Imp. Co. v. Coon, 10 W. N. C. 141 Mass. 361. 
 
 502; Drake v. Chicago E. Co., 63 Iowa, 6 1 Sutherland on Damages, 199; 
 
 310; Marsh v. Trullinger, 6 Oregon, Sedgwick, Leading Cases on Dam- 
 
 356; Finley v. Hershey, 41 Iowa, 389. ages, 662 (note); Battishill v, Eeed, 18 
 
 And see Anon., 4 Dall. 147. C. B. 658; Whitehouse v. Fellowes, 10 
 
 2 Illinois Central E. Co. v. Grabill, C. B. N. s. 765 (see ante, § 412); Bare 
 50 111. 241, 246. That all damages are v. Hoffman, 79 Penn. St. 71 ; Burnett 
 included in depreciation of value, see v. Nicholson, 86 N. C. 99; Clark v. 
 Chicago E Co. v. Carey, 90 111. 514. Nevada Land & Mining Co., 6 Nev. 
 
 3 Chicago & Alton E. Co. v. Maher, 203. And see Hoagland v. Veghte, 
 91 111. 312. 30 N. J. L. 516, and Corning v. Troy 
 
 « 61 Penu. St. 303, 306. Iron Factory, 29 Barb. 311. 
 
§ 421.J EEMEDIES AT LAW. 715 
 
 Battishill v. Reed, 1 which was for the nuisance of overhanging 
 eaves, Creswell, J., said: " The plaintiff had no right to assume 
 that things would remain as they were." In Bare v. Hoffman, 3 
 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 severance 
 of any part of his freehold, nor of depositing a permanent 
 nuisance thereon." 
 
 § 421. Same — Single trespasses — Consequential dam- 
 ages. — Second. In single trespasses the act complained of is 
 a direct injuiy in itself, and the damages are merely conse- 
 quential. Fresh damages from the trespass do not give a 
 fresh cause of action, and the plaintiff must recover the entire 
 ■damages from the trespass in a single action.* In Oakley v. 
 Kensington Canal Co., 4 a canal company entered upon the 
 plaintiff's land, and dug it away 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, 5 the defendant trespassed 
 upon the plaintiff's land by making an excavation into his 
 mine, through which water flowed into the mine. It was held 
 that the cause of action was complete when the excavation 
 
 1 18 C. B. 658. cause of action that accrued after 
 
 2 79 Perm. St. 71. suit brought, is improper. Powell v. 
 
 3 Vedder v. Vedder, 1 Denio, 257; Allen, 103TST. C. 46. An amendment 
 White v. Mosely, 8 Pick. 657; Dick- claiming additional damages for in- 
 inson v. Boyle, 17 id. 78. To same jured crops, by reason of the over- 
 •effect see Williams v. Pomeroy Coal flow mentioned in the petition, does 
 Co., 37 Ohio St. 583. A former judg- not set up a new cause of action. In- 
 ment in trespass for the same cause, ternational E. Co. v. Pape, 73 Texas, 
 as for flowage constituting a tres- 501. 
 
 pass, between the same parties, is 4 5 B. & Ad. 138. 
 
 ■conclusive in the absence of new cir- 6 12 Q. B. 575. See, also, Kansas 
 
 oumstances. Dick v. Webster, 6 Wis. By. Co. v. Mihlman, 17 Kansas, 224; 
 
 481. An amendment introducing a Stock v. Boston, 149 Mass. 410. 
 
tl6 THE LAW OF WATERS. [Ch. XII. 
 
 Was made, and that the failure to fill up the excavation was 
 not a new cause of action. 
 
 §422. Same- — Same. — In DeCosta v. Massachusetts Min- 
 ing Co., 1 the defendant 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 nofe recover beyond the 
 injury sustained, and it was improper to award compensation 
 for an expense which might never be incurred. It is possible 
 that the cost of filling up the ditch may far exceed an injury 
 resulting from it in its present condition, and in that case it 
 is not probable that the amount recovered would ever be used 
 for that purpose." Yedder v. Vedder 2 illustrates the distinc- 
 tion between the consequences of a single trespass and a con- 
 tinuing 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 consideration, 
 a discharge and satisfaction " of all demands to date." It was 
 held that such discharge extinguished all right of action, not 
 only for the original injury and the damages up to that time, 
 but for all future damages occasioned by the nuisance. 
 
 §423. Same — Continuing trespasses. — Third. In the case 
 of continuing trespasses, the rule is altered to conform to 
 that for continuing nuisances. In such cases, only the dam- 
 ages which have happened before action brought are recover- 
 able, and successive actions may be brought to recover any 
 damages happening thereafter. "The continuing of a tres- 
 pass from day to day," says Sergeant Williams, 3 " is considered 
 in law a several trespass on each day, and must be directly 
 and positively answered by the defendant, as well as the orig- 
 inal trespass." 4 The leading case is Holmes v. "Wilson. 5 There 
 
 1 17 Cal. 613. Cook, 4 C. B. 236. An earlier case, 
 
 2 1 Demo, 257. See Grumley v. not referred to in Holmes v. "Wilson, 
 
 Webb, 44 Mo. 444. is the case of Farmers of Hampstead 
 
 3 1 Wms. Saund. 20, note 1, to Man- Waters, 12 Mod. 519. There, says the 
 
 Chester v. Valer; Brakken v. Minne- report, "upon executing a writ of 
 
 apolis Ry. Co., 32 Minn. 425. enquiry of damages in trespass, for 
 
 4 Citing Monkton v. Pashley, 2 Ld. digging a hole in the plaintiff's soil, 
 
 Raym. 976. whereby .his land was overflown, 
 
 5 10 A. & E. 503. See Bowyer v. eontinuando transgressionem, for 
 
§ 424.] 
 
 EEMEDIES AT LAW. 
 
 m 
 
 the defendants, as trustees of a turnpike road, had built but- 
 tresses on the land of the plaintiff to support the road, and 
 the plaintiff having recovered damages for the erection of the 
 buttresses in a former suit, was held entitled to maintain this 
 action of trespass against the defendants for the continued 
 use of the buttresses for the support of the road, as a fresh tres- 
 pass. 
 
 § 424. Same — Same.— In Battishill v. Eeed, 1 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 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 of cases for successive actions, the damages in each being 
 computed only until action brought. In Cumberland Canal 
 Co. v. Hitchings, 2 the defendant, acting for the city of Portland, 
 
 nine months, 'and it was insisted that 
 they might give evidence of a con- 
 sequential damage, after the nine 
 months, as well as in a nuisance 
 which continues for nine months, 
 and the cause is removed, if the ef- 
 fect continues afterwards," damage 
 ■may be recovered for it; but Holt, 
 C. J., said "he was not satisfied that 
 the parity would hold." 
 
 1 18 C. B. 696. That an injunction 
 may be granted, see Beach v. Gay- 
 lord, 43 Minn. 476. 
 
 2 Cumberland Canal Co. v. Hitch- 
 ings, 65 Maine, 140; see Russell v. 
 Brown, 63 id. 203. The same propo- 
 sition is stated as to continuing tres- 
 passes in Savannah Canal Co. v. 
 Bourquin, 51 Ga. 378; but the case is 
 one of overflowing plaintiff's lands 
 by reason of the defendant's negli- 
 gence. For. successive single tres- 
 passes to the plaintiff's close and 
 dam, successive actions lie. White v. 
 Moseley, 8 Pick. 657. Mr. Mayne (on 
 Damages, 89) considers the whole 
 law upon the subject of damages in 
 the case of continuing nuisances or 
 
 trespasses in a very unsatisfactory 
 state. For continuing trespasses, 
 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 ad- 
 vantageous 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. Lampleigh, 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: ■' Queere whether the plaint- 
 iff, 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 directly con- 
 sidered in Kansas Pacific Ry, Co. v. 
 
718 THE LAW OF AVATERS. [Ch. XII. 
 
 had filled up the bed of the canal with a solid embankment 
 for a street. The court said : " When something has been un- 
 lawfully placed upon the land of another which can and ought 
 to be removed, then, inasmuch as successive actions may be 
 maintained, until the wrong-doer is compelled to remove it, 
 the damages in each suit must be limited to the past and can- 
 not 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. "Venue. — The subjects of venue and territorial juris- 
 diction are so intimately related that we shall take them up 
 together, considering, first, the venue of private actions and of 
 indictments; 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. Same. — 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. 1 
 The rule is the same for nuisances, except where the act caus- 
 ing the injury is done in another county, to which case we 
 shall presently refer. 2 In these actions it is held sufficient to 
 
 Mihlman, before referred to (17 161; s. c. 1 Smith's Liig. Cas.; Liv- 
 
 Kansas, 232). The rule of allowing ingston v. Jefferson, 1 Brock. 203; 
 
 the cost of restoring the premises Litchfield v. Int'l Paper Co., 58 N. Y. 
 
 was rejected in Easterbrook v. Erie S. 856, reversing 57 id. 275; Roach v 
 
 Ry. Co., 51 Barb. 94, and De Costa v. Damron, 2 Humph. 425; Champion 
 
 Massachusetts Mining Co., 17 Cal. v. Doughty, 3 Harr. (N. J.) 3: Ham 
 
 613, on the ground that such cost v. Rogers, 6 Blackf. 559; Chapman v. 
 
 might exceed the value of the soil Morgan, 2 G. Greene, 374; Drink- 
 
 itself, or the injury suffered. That house v. Spring Valley Water-works, 
 
 such cost should be considered, in- 80 Cal. 308; Archibald v. Mississippi 
 
 stead of permanent depreciation of R. Co., 66 Miss. 424; Missouri Pac. 
 
 value, see Chicago, etc. Railroad v. Ry. Co. v. Carter, 85 Mo. 448; Stam- 
 
 Carey, 90 111. 514. ford Water Co. r. Stanley, 39 Hun, 
 
 i Shelling v. Farmer, 1 Strange, 646 ; 424 ; Meranda v. Spurlin, 100 Ind. 380. 
 Berwick v. Ewart, 2 Wm. Bl. 1080; 2 That the action for nuisance is 
 Doulson v. Matthews, 4 T. R. 503, -' local, see Warren v. Webb, 1 Taunt, 
 
 limiting Mostyn v. Fabrigas, Cowper, 379; 1 Chitty PL 281; Cooley on 
 
§ 427.] EEMEDIES AT LAW. 719 
 
 lay the venue in the body of the county, and if the place be 
 more particularly alleged, the allegation is surplusage, and 
 variance of proof therefrom is immaterial. 1 "Where an action 
 on the case was brought for obstructing navigation in the 
 Irwell Eiver 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 hap- 
 pened at such a place, but it is sufficient if it be at any other 
 place within the county. 2 In an early case for overflowing 
 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." 3 If, therefore, the venue was suffi- 
 ciently laid in describing the mill, it was unnecessary to al- 
 lege the location of the pond itself which covered the plaint- 
 iff's land. 
 
 § 427. Same. — The nuisance must be proved to have been 
 committed 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 com- 
 mitted, the county in the margin would be intended. 4 Where 
 
 Torts, 471. Where part of the in- brought in another county. Finney 
 
 jured property lies in one county v. SomerYille, 80 Penn. St. 59. 
 
 and part in another, provision is l Mersey Nav. Co. v. Douglas, 2 
 
 sometimes made by statute, allowing East, 497; Simmons v. Lillystone, 8 
 
 the action to be brought in either Exch. 431. 
 
 county. Thus in Pennsylvania, under 2 Mersey Nav. Co. v. Douglas, 2 
 
 St. 1836, June 13, §§ 79, 80, on actions East, 497. 
 
 real, where an action was brought 3 Brent v. Hadden, Cro. Jac. 555. 
 
 for injuring a mill and dam, the mill ^Warren v. Webb, 1 Taunt. 379.. 
 
 and part of the dam being in one In Simmons v. Lillystone, 8 Exch. 
 
 county, and the remainder of the 431, Parke, B., says that this case is 
 
 dam being in another county, it was difficult to understand. For a similar 
 
 held that the whole was a " single decision in an action for obstructing 
 
 tenement," and that suit could be a footway, see Richardson v. Locklin,. 
 
 6 B. & S. 777. 
 
720 THE LAW OF WATEKS. [Ch. XII. 
 
 the defendant obstructed the waters of a navigable river by 
 erecting a dam in Westmoreland County, whereby the plaint- 
 iff's boat was lost, the court held that he must sue in "West- 
 moreland, and could not maintain the action in Fayette. 1 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 suit in Philadelphia County 
 describing the mines as situated in the county of Columbia, 
 to wit, at the county of Philadelphia, it was held that the action 
 was local, and that the venue could not be transferred by such 
 a fictitious averment. 2 
 
 § 428. Same. — Where the nuisance is committed in one 
 county, and the property injured lies in another, the action 
 may be maintained in either county. 3 The first form of rem- 
 edy for such cases was the assize in confinio comitatus, by which 
 a Avrit issued to the sheriff of each county to summon twelve 
 men from the neighborhood, and a patent issued to the justices 
 to try the assize between the counties. 4 In the Abbe de Strat- 
 forde'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 de- 
 fault; and Lord Coke, citing the decision in Bulwer's case, 6 
 adds, " or I may bring it in Middlesex, for there I have the 
 damage, as it is proved by 11 E. 2, Action sur le Case, 36." 7 
 
 1 Oliphant v. Smith, 3 Pen. & "W. that the gravamen of the declaration 
 (Penn.) 180. was the injury done to the plaintiff's 
 
 2 Provost v. Gcrrell, 2 W. N. C. land, and the action was properly 
 (Penn.) 440; 3 id. 366. brought in the county of Kent, that 
 
 3 As to the venue in an indictment the jury of the county might videre 
 for pollution, see State v. Herring, 21 tenementum illud. See Worster v. 
 Ind. App. 157; 51 N. E. Rep. 951; 48 Winnipiseogee Lake Co., 25 N. H. 525, 
 id. 598. 528. In 21 Vin. Abr. 86. pi. 6, the case 
 
 4 F. N. B. 183 K ; Co. Lit. 154a; is stated somewhat differently. The 
 Leveridge v. Hoskins, 11 Mod. 257. locations of the two pieces of land 
 
 5 Y. B. 7 Hen. 4, 8, pi. 10; and see are changed, and the action is said 
 this case as cited in Archeboll and to have been brought in Surrey, 
 Borrell's case, 3 Leon. 141. " where the land was. And the writ 
 
 6 7 Co. la. awarded good, because nothing is to 
 
 7 The case of 11 R 2 is stated in be recovered but damages." Theland 
 Bellewe's Les Ans du Roy Richard le to be fenced, and the plaintiff's land 
 Second, p. 4. See reprint by Stevens which was injured, both lay in one 
 & Haynes, 1869. This case related to county, and the land charged with 
 the duty of fencing, and it was held the duty of fencing lay in another. 
 
% 429.] REMEDIES AT LAW. 721 
 
 In Bulwer's case the rule is laid down generally: " Id 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 act 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. 1 In Sut- 
 ton v. Clarke, 2 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. 
 
 § 429. Same. — The first American case in point was one of 
 injury to a mill by a dam. The action was brought in Ply- 
 mouth 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 
 variance was immaterial, and that the place where the injury 
 was done, to wit, at the mills, gave locality to the action, and 
 not the source from which the mischief came. 3 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 Bristol 
 County, Bulwer's case was decisive, and the owner of the 
 fishery could bring his action in either county. 4 In the later 
 case of Pilgrim v. Mellor, 5 the defendant had erected a dam 
 in Stark County, which produced an injury to the adjoining 
 land of the plaintiff, lying in Bureau County. The action was 
 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. 
 
 JLeveridge v. Hoskins, 11 Mod. Smith, 3 Pen. & W. 180; Ohio & M. 
 
 257. See Wells v. Ody, 1 M. & W. Ry. Go. v. Combs, 43 111. App. 119; 
 
 452. Deseret Ir. Co. v. Molntyre, 16 Utah, 
 
 2 6 Taunt. 29. See Woburn Union 398. 
 -w. Newport Pagnell Union, 51 J. P. 5 1 Brad. (111.) 448; 17 Am L. Peg. 
 
 694. N. S. 729. To same effect see Lower 
 
 'Thompson v. Crocker, 9 Pick. 59; King's River Water Co. v. King's 
 
 Com. v. Macloon, 101 Mass. 1, 6. River Canal Co., 60 CaL 408; Powers 
 
 *Barden v. Crocker, 10 Pick. 383. v. Ames, 9 -Minn. 178 {semble). 
 To the same effect see Oliphant v. 
 46 
 
722 
 
 THE LAW OF WATERS. 
 
 [Oh. XIL. 
 
 § 430. Same. — Opposed to these decisions is that in Wor- 
 ster v. Winnipiseogee Lake Co., 1 which came up on facts pre- 
 cisely similar to those in the case last mentioned. The courfc 
 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 th'at 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 : " 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 ap- 
 plication of it. The erection of the dam, of itself, gave the 
 plaintiff no cause of action. It was not until his land was in- 
 jured 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." 2 
 
 !25 N. H. 525; Bancroft v. Conant, 
 64 N. H. 151. For a reference to the 
 first case per Kyan, C. J., arguendo, 
 and apparent agreement with it, see 
 In re Eldred, 46 Wis. 530. See, also, 
 Wis. Rev. Stats. (1878) § 2619. 
 
 2 He denied the doctrine in the Ab- 
 bot of Stratford's case, saying there 
 was no reason for it, and relied prin- 
 cipally on Simmons v. Lillystone, 8 
 Exch. 431; 22 L. J. Exch. 217; 20 E. 
 L. & E. 445. In that case the plaint- 
 iff owned premises in the county of 
 Kent, abutting on the Thames at a 
 certain point of the river called the 
 Blockhouse Dock, and the defendant 
 obstructed the dock by placing piles, 
 etc., thereon. The venue in the mar- 
 gin of the declaration was London. 
 Parke, B., said: "Probably the ob- 
 jection might have been raised by 
 special demurrer; but, after verdict, 
 it certainly comes too late, because, 
 then, any defect in the venue is cured 
 by St. 16 & 17 Car. 2, ch. 8. It is 
 enough, for the present purpose, to 
 say that there is nothing which 
 makes it necessary to prove, on the 
 
 part of the plaintiff, that the obstruc- 
 tion took place in the city of Lon- 
 don." " It is unnecessary to decide- 
 whether this is a local action, thought 
 I am rather disposed to think it is, 
 since it is an injury to the plaintiffs- 
 premises." 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 contrary 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 two localities, in either of 
 which it will lie, not that it is tran- 
 sitory. The New Hampshire case 
 makes no reference to Leveridge v. 
 Hoskins, 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 followed 
 the analogy of the assize in confinio- 
 comitatus, but that remedy had al- 
 
§§ 431, 432.] 
 
 EEMEDIES AT LAW. 
 
 723 
 
 § 431. Same. — 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 ; l and in England it has been abolished by 
 the Judicature Acts, and the question of venue must there be 
 considered as new. 2 
 
 §432. Same — Indictments. — 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. 3 But the 
 
 ready gone into disuse. The court 
 did not think that the need had dis- 
 appeared with the old writ. In truth, 
 that 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 Buller, 
 J.), and the distinction is fast disap- 
 pearing from the new systems of 
 procedure. Genin v. 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 the 
 venues within which an action can 
 be brought, historically founded on a 
 writ of right, and in its present form 
 dating back to 1406 (Abbe de Strat- 
 forde's case), and perhaps of equal 
 date with the rule itself, was an un- 
 reasonable invasion of the common 
 law, and that the general rule must 
 be restored and applied with uniform 
 rigor. 
 
 1 Genin v. Greer, 10 Ohio, 209; N. Y. 
 Code, 1880, §§ 982, 981. It was early 
 determined in Massachusetts that, 
 by their statute, an action for in- 
 juries to realty where the damage 
 did not exceed 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. ch. 149, it was held that a 
 complaint for flowing land by a dam 
 might include tracts lying in differ- 
 ent counties, but overflowed by 
 means of the same dam, and would 
 lie in a county where any portion of 
 the land lies. Bates v. Ray, 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 
 changed from the county where the 
 land lies, under their statute. Dea- 
 con v. Shreve, 2 Zab. 204. In a simi- 
 lar case, under the Missouri statute 
 (Wag. St. § 4), it was held that the 
 venue could be changed, and accord- 
 ingly we find the venue changed 
 three times in that case. Taylor v. 
 Atlantic R. Co., 68 Mo. 397. 
 
 2 38 & 39 Vict. ch. 77, Ord. xxxvi, 
 R. 1 (L. R. 10 Gen. St. 813). In Eng- 
 land, before the passage of these 
 statutes, the venue of local actions 
 might be changed, after issue was 
 joined, but not before, by order of the 
 court or judge. Bell v. Harrison, 2 
 C. M. & R. 733; and see 3 & 4 Wm. 4, 
 ch. 42, § 22. 
 
 3 Staundford, Plees del Corone, lib. 
 2, p. 91; citing Ass. Edw. 3; Ann. 19, 
 
724 THE LAW OF WATERS. [Gh. XII. 
 
 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. 
 
 § 433. Same — Same. — The question was considered by the 
 Supreme Court of Wisconsin in Eldred's case. 1 That was the 
 case of an indictment of an unauthorized dam, situated in one 
 county, and producing injurious effects in another. Ryan, 0. 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 fun- 
 damental law, as old as Magna Charta, entering into the pro- 
 vision of the constitution of the State." He held that the in- 
 dictment alleging a public nuisance in one county was complete, 
 and that th.eper quod containing the averment of injury in an- 
 other county was surplusage. 
 
 § 434. Same ■ — Same. — 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. 2 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 nui- 
 sance, the indictment 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 
 immaterial. 3 
 
 pi. 6; Hawkins, Pleas of the Crown, offence committed in, or upon, a 
 Bk. 2, ch. 25, § 37; 1 Chitty, Crim. body of water, is laid in the ad join- 
 Law, 193 (2 Eng. and 4 Am. ed.). And ing county. Where an indictment 
 see 2 Hale's Pleas of the Crown, 164. charged that the offences (of assault 
 But Chitty cites no cases since the and rescue) were committed " on the 
 earlier writers which support the said Penobscot River, between the 
 rule. He refers to Scott v. Brest, 2 two towns of Enfield and Howland 
 T. R. 241, and 2 B. & P. 381, which aforesaid, or within the limits afore- 
 were private actions for usury. said or either of them, and within 
 1 46 Wis. 530. said county of Penobscot," it was 
 3Com. v. Lyons, 1 Clark (Penn.L. J.), held that the place was sufficiently 
 497. alleged. State v. Roberts, 26 Maine, 
 3 State v. Godfrey, 12 Maine, 361. 263. So where an indictment (for 
 The venue of an indictment for any murder) charged that the act was 
 
§§ 435, 436.] REMEDIES AT LAW. 725 
 
 § 435. Same — Same. — 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 of- 
 fence 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 obstructed is navigable, and that the passage of boats is 
 obstructed at that point. 1 Where the indictment is a proceed- 
 ing 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 Elk- 
 hart Eiver," and this was held insufficient even after judgment 
 for the State. 2 It is also to be observed that the creation and 
 continuance of a nuisance are distinct offenses and cannot be 
 joined in the same count of an indictment. 3 
 
 §436. Same — Different sovereignties. — Where different 
 States or sovereignties are involved in actions of this kind, the 
 question is different. 4 Actions will 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 defendant 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. 5 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 brought in the jurisdiction where the land 
 
 committed "at an island called prosecution. Wertz v. State, 42 Ind. 
 
 'Smutty Nose,' a place within the 161. Confer Roscoe's Crim. Ev. 85. 
 
 County of York," it was held suffi- 3 Burke v. People, 23 111. App. 36; 
 
 cient. State v. Wagner, 61 Maine, 178. Hoadley li People, id. 39. 
 
 1 Cox v. State, 3 Blaokf. 193. 4 As trespass will not lie for in ju- 
 
 2 Wood v. State, 5 Ind. 433. Where, yies to lands in another county, a for- 
 in an indictment for maintaining a tiori it will not lie for injuries to 
 nuisance (in this case a soap factory), lands in another State. 
 
 the nuisance was alleged to be main- « Watts v. Kinney, 23 Wend. 484; 
 
 tained on a particular tract of ground, affirmed, 6 Hill, 82; Atlantic Tel. Co. 
 
 the State was held bound to prove v. Baltimore E. Co., 14 Jones & S. 377. 
 the location as laid, or fail in the 
 
726 THE LAW OF WATEKS. [Ch. XII. 
 
 which is injured is situated. And this is not inconsistent with 
 the exception in 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 juris- 
 diction over 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 
 wrongful" only by reason of consequences happening beyond 
 his territory and jurisdiction. 1 
 
 §437. Same — Same. — The first American case in which 
 the question was involved was that of Thayer v. Brooks. 2 
 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. 
 "Whea 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." This agrees with the law in general, but the dictum 
 that the action would lie in either State is unsound in princi- 
 ple, and contrary to the weight of the authorities. 
 
 § 438. Same — Same.— In 1855 a similar question came up 
 in Maine. It was held that an action on the case would lie in 
 
 1 Doulson v. Matthews, 4 T. R. 503 ; rule of this court making all actions 
 
 Livingston v. Jefferson, 1 Brock. 203; transitory, it would follow that the 
 
 Mostyn v. Fabrigas, Cowper, 161. action could be brought in either 
 
 2 17 Ohio, 489; citing 1 Chitty State," the dictum would have been 
 Plead. 399. The court treated the sound. The short point involved, 
 action as a local one to be determined that the State could give a remedy 
 by the rules of the common law. In for injuries to land within its borders, 
 so doing, they overlooked their ear- though caused by acts done outside, 
 lier decision in Genin v. Greer, 10 where jurisdiction of the wrong-doer 
 Ohio, 309, abolishing the distinction could be had, was correctly deter- 
 between local and transitory actions, mined. 
 If the court had said: "From the 
 
§ 439.] 
 
 REMEDIES AT LAW. 
 
 727 
 
 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. 1 The next case came 
 up in Illinois. A dam which was erected in Will County, Illi- 
 nois, for the purpose of feeding a canal, caused the flooding 
 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 in- 
 jured lands lay could take jurisdiction. 2 
 
 §439. Same — Same. — In Texas, where the parties were 
 both citizens of that State, and the plaintiff owned lands on the 
 south bank of the Eio Grande, in Mexico, and 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 dictum in 
 Thayer v. Brooks, held that the rule in Bulwer's case applied, 
 and that the action could be maintained. 3 In Mannville Co. v. 
 
 1 Wooster v. Great Falls Manuf. Co., 
 89 Maine, 246; approved in Salisbury 
 Mills v. Forsaith, 57 N. H. 124. 
 
 2 Eachus v. Trustees of Illinois 
 Canal, 17 111. 534 See, also, Slack v. 
 Waloott, 3 Mason, 508, 517. In New 
 York, in the recent case of Euckman 
 v. Green, 9 Hun, 225, it was held that 
 an action could be maintained in New 
 York for an injury to lands situated 
 in New York,, caused by a nuisance 
 {a noxious trade) established and car- 
 ried on in New Jersey. 
 
 3 Armendiaz v. Stillman, 54 Texas, 
 623. The court also relied on the 
 Federal case of Rundle v. Delaware 
 Canal, 1 Wall. Jr. 275, which will be 
 noticed hereafter. The Texas court 
 said (p. 631): "In our opinion, how- 
 ever, these common-law rules, re- 
 specting local and transitory actions, 
 have no more to do in determining 
 with us where suit can be brought 
 and maintained, than the like rules 
 in respect to the form and names of 
 actions; but this is solely regulated 
 by and dependent upon the proper 
 
 construction of the constitution and 
 statutes of the State. In the first it 
 is emphatically declared in the bill of 
 rights as a fundamental principle 
 of government, that ' all courts shall 
 be open, and every person, for any 
 injury done him in his lands, goods, 
 person, or reputation, shall have rem- 
 edy by due course of law.' Now a 
 party may not have an action in rem 
 for or concerning land in a foreign 
 jurisdiction, because redress cannot 
 be given or had by such proceeding 
 in due course of law; but personal 
 damages may be given and enforced 
 by due process of law within the 
 State." The statute, cited in the ar- 
 gument, provides (Tex. Rev. St. 1879, 
 Art. 1198, pi. 13): "Suits for the re- 
 covery of lands or damage thereto; 
 suits to remove encumbrances upon 
 the title to land ; suits to quiet the 
 title to land, and suits to prevent or 
 stay waste on lands, must be brought 
 in the county in which the land or a 
 part thereof may lie." 
 
728 THE LAW OF WATERS. [Ch. XII. 
 
 "Worcester, 1 in Massachusetts, the question was examined, and 
 an action of tort was held maintainable in that State, for pre- 
 venting, by a diversion there, the waters of a natural stream 
 from coming to the plaintiff's mill in Rhode Island. 
 
 § 440. Same — Same. — In a State which has abolished or 
 does not recognize the distinction between local and transitory 
 actions, an action in personam will lie for injuries to foreign 
 real estate. An action was held to lie in Louisiana for dam- 
 ages to land and buildings in Illinois caused by a steamer 
 which, in plying upon the Mississippi Eiver during a high flood, 
 struck against and injured the buildings. 2 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. Same — Same. — 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. 3 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 : " The question of juris- 
 diction 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 jurisdic- 
 
 !138 Mass. 89; Banigan v. Worces- is held ground for a transitory ac- 
 
 ter, 30 Fed. Rep. 392. See Brickett v. tion. Where a steamer owned in 
 
 Haverhill Aqueduct Co., 143 Mass. Missouri was injured by a bridge 
 
 394. over the Mississippi, on the Illinois 
 
 2 Holmes v. Barclay, 4 La. Ann. 63. side, it was held that the action was 
 
 As it is the property injured, which, transitory and could be maintained 
 
 as between States, determines the in Missouri. Mason v. Turner, 31 Mo. 
 
 character of the action, an injury to 508. 
 
 a steamer, caused by the wrongful 3 The M. Moxham, 1 P. D. 43, 107. 
 obstruction of a stream by a bridge, 
 
§ 441.] 
 
 REMEDIES AT LAW. 
 
 729 
 
 tion 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 equitable 
 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 jurisdiction, 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 says of 
 Lord Mansfield's opinion in Mostyn 
 v. Fabrigas (1 Sm. L. C. 658, 680): 
 " An injury to land is in fact a per- 
 sonal injury to its owner, and is no 
 more beyond the jurisdiction of an 
 English court on general principles, 
 than other personal injuries are." 
 On page 390 of the same work, he 
 says: " That difficulties would arise 
 > there can be no doubt, as the aboli- 
 tion of the rules of venue have cut 
 away the main ground upon which 
 the earlier decisions on the point 
 were founded: but it is submitted 
 that the result of the change has 
 been to make the reasoning of Lord 
 Mansfield in Mostyn v. Fabrigas ap- 
 plicable 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 ; 
 British South Africa Co. v. Compan- 
 hia de Mogambique, [1893] A. C. 602; 
 [1893] W. N. 148; [1892] 2 Q. B. 358; 
 De Lovio v. Boit, per Story, J., 2 Gal- 
 lison, 398, 474, 475; 49 Alb. L. J. 125. 
 The distinction 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 trespass. In 22 Alb. L. J., pp. 47- 
 50, a contributor contends forcibly 
 that the effect of the code is to give 
 the courts of that State jurisdiction 
 of actions for injuries to land situ- 
 ated in a foreign State or county. 
 The code provides (§ 982) : "But where 
 all the real' property to which the ac- 
 tion 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 commence- 
 ment thereof. If neither of the par- 
 ties then resided in the State, it may 
 be tried in any county which the 
 plaintiff designates for that purpose- 
 in the title of the complaint." But 
 in American Union Tel. Co. v. Mid- 
 dleton, 8/3 N. Y. 412, decided when 
 the same provisions were in force, it 
 was held that the action of trespass 
 quare clausum was local in its char- 
 acter, and would not lie in New York 
 for injuries to lands in New Jersey. 
 The courts of one State will not 
 deoree specific performance of a con- 
 tract, by which a domestic corpora- 
 tion is to keep open ditches, and to- 
 construct cattle guards on the plaint- 
 iff's land in another State. Port 
 Eoyal R. Co. v. Hammond, 58 Ga. 
 523; see Joy v. St. Louis, 138 0. S. 1, 
 47; Union Pacific Ry. Co. v. Chicago, 
 etc. Ry. Co., 51 Fed. Rep. 309; Mon- 
 nett v. Turpie, 132 Ind. 482; Topp v. 
 White, 12 Heisk. 165. 
 
730 • THE LAW OF WATERS. [Ch. XII. 
 
 § 442. Same — Same. — In proceedings against the nuisance 
 in abatement, and in all proceedings in rem, jurisdiction nec- 
 essarily depends on the presence of the property or res, and its 
 subjection to the control of the court; and therefore such ac- 
 tions are maintainable only in the State and county where the 
 property is situated. 1 This applies to indictments in rem. Al- 
 though indictments for nuisances affecting two counties may 
 have been entertainable in either county by the common 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 com- 
 mon-law indictments of offenders, as well as of statutory in- 
 dictments m rem? 
 
 § 443. Same — Indictments. — Indictments lie only for 
 breaches of the law punishable as crimes, and criminal laws have 
 no extra-territorial force. 3 Acts done outside the sovereign's 
 territory are not breaches of his law, although they may pro- 
 duce harmful consequences within it. Such consequences are 
 not crimes in themselves. The first case involving the ques- 
 tion arose in New Hampshire, 4 and is opposed to this reason- 
 ing. There an indictment was found against the defendant 
 for erecting and maintaining a dam, thereby overflowing the 
 highway 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 
 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. 5 There an obstruction was placed in the 
 
 1 Story, Conflict of Laws, § 551. zens when without the State, for the 
 That this rule extends to counties, violation of which they may be pun- 
 see In re Eldred, 46 Wis. 530. ished within it, see State v. Main, 16 
 
 2 Ibid. ; Mississippi & Missouri E. "Wis. 398. 
 
 Co. v. Ward, 2 Black, 484. * State v. Lord, 16 N. H. 357. 
 
 3 For an exception to this rule, 5 State v. Babcock, 30 N. J. L. 29, 32. 
 showing that the sovereign may Elmer, J., in delivering the opinion, 
 make laws authorizing certain acts said: "The case does not materially 
 to be done out of the State, and pre- differ from a line between two States 
 -scribing their effect within it, and on the land which happens to be the 
 may make laws controlling his citi- scene of a busy population, where a 
 
§§ 444, 445.J EKMEDIES AT LAW. 731 
 
 Hudson Eiver, 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. Same — In equity. — In equity the distinction be- 
 tween local and transitory 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 within the jurisdiction of the court, he can be controlled 
 and prevented from injuring the property of another, wher- 
 ever it is situated. 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 citi- 
 zen of New Hampshire. It was held on a bill filed for that 
 purpose that the court had jurisdiction to issue an injunction 
 restraining the defendant from destroying the dam of the com- 
 plainants in Maine. 1 
 
 § 445. Same — In the Federal courts. — In the Federal 
 courts the question has been considered both with reference 
 to their own jurisdiction and that of the State courts. The 
 
 manufactory near to that line in one ton, 1 Pars. SeL Cas. Eq. (Pa.), 387, 
 State may be a nuisance to the citi- decided in 1849, two years before the 
 zens of the other, whose redress will case of Great Falls Manuf. Co. v. 
 have to be obtained from the tribu- "Worster, is also opposed to the doc- 
 nals of the State in which the nui- trine in the text. It is to be noticed 
 sance is situate." This case is ap- that an injunction restraining a nui- 
 proved by Ryan, C. J. {In re Eldred, sance does not involve a transfer of 
 46 Wis. 530), and the case of State v. possession, and therefore needs no 
 Lord criticised. writ of assistance; that the abate- 
 1 Great Falls Manuf. Co. v. "Worster, ment in equity is accomplished by a 
 23 N. H. 462; approved in Vermont decree in personam, directing the de- 
 R. Co. v. Vermont C. B. Co., 46 Vt. fendant to abate; that compensation 
 792; Prince Manuf. Co. v. Prince's in damages is not necessary to the 
 Metallic Paint Co., 51 Hun, 443; Smith granting of the other remedies, and, 
 v. Larrabee, 58 Maine, 361. In the if granted, is also enforced by a de- 
 similar case, Stillman v. White Rock cree in personam, and, if necessary, 
 Manuf. Co., 3 Wood. & M. 538, 545, by confinement of the defendant for 
 some remarks are made contrary to contempt, until it is performed, 
 this. The case of Morris v. Reming- 
 
732 THE LAW OF WATEIiS. [Ch. XII. 
 
 decisions are not altogether harmonious. The judges speak 
 of the courts in general terms, but such remarks must be 
 taken to refer to the Federal courts, except where a different 
 meaning is plainly indicated. "Where parties, residing on op- 
 posite sides of a stream, the boundary between Ehode Island 
 and Connecticut, owned a dam and water-power in common, 
 and the respondents, by another dam on the Khode Island 
 side, diverted water from the common water-power, it was 
 held that the complainants in Connecticut had an easement in 
 the water beyond the centre of the stream, that the injury 
 occurred in Rhode Island, and that the remedy must be sought 
 in the courts of Ehode Island, or if pursued in the tribunal of 
 the general government, it must be in the district of Ehode 
 Island, and not in that of Connecticut. 1 It was held in the 
 Circuit Court that the- several districts within the limits are to 
 be treated as counties, and that the rule in Bulwer's case ap- 
 plies to them. An action was brought in the Circuit Court for 
 the New Jersey district for damages to lands in Pennsylvania, 
 caused by the wrongful diversion of a stream in New Jersey, 
 and the court held that it was maintainable. 2 From this it 
 follows that the action is maintainable in the Circuit Court in 
 either district. So where A. diverted, in Connecticut, a stream 
 of water which had its rise in Connecticut, and flowed into 
 Massachusetts, so that it ceased to flow to B.'s mill, situated 
 on the same stream in Massachusetts, the Circuit Court for 
 the district of Connecticut held that it had jurisdiction of an 
 action by B. against A. for the damage caused by the diver- 
 sion. 3 Ingersoll, J., in the opinion, cited the remark of Wood- 
 bury, J., given above, and added approvingly: "And the cases 
 which he puts clearly show that he so considered the law to 
 be;" *'. e., that the rule in Bulwer's case applies to Federal 
 districts. 
 
 1 Stillman v. White Eock Manuf. flow of the water by any obstruction 
 Co., 3 Wood. & M. 538. or drain in Rhode Island, is an injury 
 
 2 Rundle v. Delaware & Raritan done to the mill itself in Massachu- 
 Canal, 1 Wall. Jr. 275. In Slack v. setts. In a just sense, the wrong may 
 Walcott, 3 Mason, 508, the suit was to be said to be done in both States, 
 establish a prior right to the waters like the analogous case of an injury 
 of the Pawtucket River, and to pre- to land lying in one county by an 
 vent its diversion. Story, J., said: act done in another county." 
 
 " The wrong done by stopping the 3 Foot v. Edwards, 3 Blatch. 310. 
 
§§ 446, 447.] EEMEDIES AT LAW. 733 
 
 § 446. Same — Same. — But the Federal District Courts are 
 subject to the same limitation which prevents the State courts 
 from taking jurisdiction of proceedings in rem over foreign 
 nuisances. Such proceedings are local in any case, and can be 
 brought only in courts which have jurisdiction of the thing; 
 that is, within the territorial limits of whose jurisdiction the 
 nuisance is situated. Their power in rem extends to the bound- 
 aries of their districts and no further. So it is held in the 
 Supreme Court of the United States that a suit to abate a nui- 
 sance is a local suit, and can be brought only in the district 
 where the nuisance is situated. 1 The nuisance complained of 
 was a bridge across the Mississippi between Illinois and Iowa, 
 the boundary being the middle of the river. The channel used 
 for navigation was on the Illinois side of the stream, and the 
 alleged obstruction consisted of a pier for the drawbridge, 
 which stood in this channel. The complainant filed his bill in 
 the United States District Court for the district of Iowa, pray- 
 ing an abatement of the nuisance. Catron, J., in delivering 
 the opinion in the Supreme Court,-said: "It was at the long 
 pier, and in the Illinois draw east of that pier, that the com- 
 plainant's boats sustained the injuries on which he founds his 
 right to sue the Iowa corporation, and to proceed against the 
 bridge in rem as a public nuisance. An indictment could only 
 have been prosecuted against the owner for keeping up the 
 nuisance in Illinois in the courts of that State, because the nui- 
 sance was a trespass and crime against the laws of Illinois, and 
 the injuries to the complainant's boats giving him the privi- 
 lege to sue and abate the obstruction were as local as the public 
 right to indict." In the Federal courts, therefore, a suit for 
 damages will lie, either in the district where the nuisance is 
 committed or the damage is sustained, but proceedings in rem 
 are maintainable only where the thing complained of is situated. 
 
 § 447. Actions on covenants. — Covenants which run with 
 the land and relate to waters are enforceable by the action of 
 covenant, by and against the assignees of the original parties. 2 
 Thus a covenant by a lessor to supply the premises demised 
 
 1 Mississippi K. Co. v. "Ward, 2 Black, 810. That a covenant for diversion 
 485. of only surplus water from, a mill- 
 
 2 Ante, § 301 ; Horn v. Miller, 136 race runs with the land, see Warren 
 Penn. St. 640; 143 id. 557; 9 L. E. A. v. Munroe, 15 Q. B. (Can.) 557. 
 
734 
 
 THE LAW OF WATEES. 
 
 [Oh. XII. 
 
 with water ; ! or by a purchaser of land with a well or spring 
 on it, to supply water to all houses on the vendor's land ; 2 by 
 a licensee to supply his licensor with pure water; 3 by the grantor 
 of a watercourse, for himself and heirs, to cleanse it ; 4 by ten- 
 ants in common of a dam and water-power to repair their re- 
 spective portions of the dam ; 5 by grantors of a mill to keep a 
 dam in repair; 6 by riparian owners on opposite sides of a 
 stream to rebuild a dam held in common, in case of its destruc- 
 tion ; 7 to maintain in repair a dam or race ; 8 or a bridge across 
 the race ; 9 to repair a canal which drains the covenantor's lands, 
 or to pay a proportional share of the cost of such repairs ; I0 to 
 repair a sea-wall ; " by a party to a conveyance, not to use water- 
 power for a particular purpose ; 12 by a lessor to permit a lessee 
 to make a drain ; 13 by a grantor of lands, including part of a 
 
 1 Jordain v. Wilson, 4 B. & Aid. 266. 
 For a discussion of such a covenant, 
 see Kinney v. Watts, 14 Wend. 38. 
 
 2 Cooke v. Chilcott, 3 Ch. D. 694. 
 The covenant was enforced in this 
 case by an injunction against leav- 
 ing the covenant unperformed. It 
 was held to run with the land, but 
 further, if it did not, it was held that 
 it would bind a purchaser with no- 
 tice. See Haywood v. Brunswick 
 Building Society, 8 Q. B. D. 403; Lon- 
 don & S. W. Ry. Co. v. Gomm, 20 Ch. 
 D. 562. In Kennedy v. Scovil,12 Conn. 
 317, a reservation of water for the use 
 of a certain piece of property was 
 held to save an assignable interest. 
 
 3 Sharp v. Waterhouse, 7 E. & B. 
 816. Or by grantor of power. Ster- 
 ling Co. v. Williams, 66 111. 393. 
 
 4 Holmes v. Buckley, 1 Eq.Cas. Abr. 
 27, pi. 4. 
 
 5 Wilbur v. Brown, 3 Den. 356. 
 
 6 Thompson v. Shattuck, 2 Met. 615; 
 Batavia Manuf. Co. v. Newton Wagon 
 Co., 91 111. 230; Fitch v. Johnson, 104 
 111. 111. 
 
 'Linderman v. Lindsey, 69 Penn. 
 St. 93. In Woodruff v. Trenton Water 
 Power Co., 2 Stock. 489, the deed was 
 'held to be subject to a condition that 
 the grantees erect and maintain a 
 
 raceway and dam, a safe bridge and 
 road, and the estate conveyed was 
 held liable to forfeiture for non-per- 
 formance; but the court said that if 
 it were a covenant, it would be en- 
 forceable against assignees. 
 
 8 Carr v. Lowry, 27 Penn. St. 257; 
 Shaber v. St. Paul Water Co., 30 
 Minn. 179. 
 
 9 Hord v. Montgomery, 26 I1L App. 
 41. 
 
 WNorfleet v. Cromwell, 64 N. C. 1. 
 The covenant in this case expressly 
 bound the parties and their heirs and 
 assigns of land, and the action was 
 brought to recover a proportional 
 share of the cost of repairs against 
 an assignee of one of the tracts of 
 land. In a later action of covenant 
 between the same parties, growing 
 out of the same matter, it was shown 
 that the canal did not in fact touch 
 the lands in question. The court held 
 that the covenant concerned land, 
 within the second resolution in Spen- 
 cer's case, and would bind an as- 
 signee with notice. Norfleet v. Crom- 
 well, 70 N. C. 634. 
 
 nMorland v. Clark, L. E. 6 Eq. 252. 
 
 '2 Norman v. Wells, 17 Wend. 136. 
 
 "Target v. Lloyd, 2 Vent. 277. 
 
§ 448.] EEMEDIES AT LAW. 735 
 
 pond, with the grantee's purchaser, to draw off his pond on re- 
 quest for a certain time, and permit the covenantee to enter 
 and remove mud ; 1 by tenants in common, on dividing prop- 
 erty, reserving a raceway in common, each covenanting not to 
 use more than one-half the water, and not to use it for boats 
 larger than a given size, not to use it for mills, except on the 
 tract of land divided, nor to use it for any mill employed in 
 the manufacture of gunpowder; 2 nor to diminish the volume 
 of a stream, 3 have been held to run with the land, and to be 
 enforceable by action of covenant. 
 
 § 448. Same. — A conveyance of a privilege of drawing 
 water from a pond is not a conveyance of land, and a cove- 
 nant respecting the privilege is held not to run with the land, 
 and is not enforceable in an action by an assignee of the 
 grantee. 4 Covenants by owners of separate mills in severalty, 
 but drawing water from the same dam, limiting their uses of 
 the stream, have been held in Massachusetts not to run with 
 the land, or to bind a stranger purchasing one of the mills. 5 
 The rule that where the grantor attempts to convey rights- 
 which he has not, the covenants are broken as soon as made 
 and cannot be assigned, is illustrated by the conveyance of a 
 privilege of drawing water, with a covenant to erect and main- 
 tain a dam ten feet high, with a warranty, when the grantor 
 in fact had only the right to maintain a dam six feet in height. 6 
 
 1 Morse v. Aldrioh, 19 Pick. 449. the assignees might not be liable at 
 
 2 Jamison v. McCredy, 5 Watts & S. law, if it was an incorporeal inherit- 
 129. The action here was on the case, ance, for they had no privity of es- 
 In Collins v. Plumb, 16 Ves. 454, the tate. Affirmed, 1 Bro. P. C. (Toml. ed.) 
 question was raised whether a cove- 516. 
 
 nant not to sell or dispose of water 3 Shaber v. St. Paul Water Co., 30 
 
 from a well to the injury of the pro- Minn. 179. 
 
 prietors of certain water- works, their 4 Wheelock v. Thayer, 16 Pick. 68. 
 
 heirs, representatives, and assigns, 5 Hurd v. Curtis, 19 Pick. 459. 
 
 ran with the land, but the case was 6 Wheelock v. Thayer, 16 Pick. 68; 
 
 on a bill in equity, and Lord Eldon, Bronson v. Coffin, 108 Mass. 175. In 
 
 in sustaining the demurrer, remitted America it is held that covenants of 
 
 the parties to their rights at law. In seizin, and against incumbrances, do 
 
 London v. Richmond, 2 Vern. 421, the not run with the land (contrary to the 
 
 assignee of a covenant to pay rent rule in England). Mitchell v. Warner, 
 
 for water furnished by a conduit, 5 Conn. 497; Bawle, Covenants for 
 
 was held chargeable in equity; for Title (4th ed.), 89, 320, 333. 
 
736 THE LAW OF WATERS. [Ch. XII. 
 
 § 449. Same. — A license may be the subject of a grant and 
 ■of a covenant running with the land. In an English case, A. 
 and B. granted a license to C. for a term of years, to continue 
 a channel open through the bank of a navigable watercourse, 
 in order that waste water might pass to the mills of C, on pay- 
 ment of an annual sum. C. assigned to the defendant. B. died. 
 A brought suit for non-payment of the sum. It was held that, 
 assuming A. and B. to be owners of the navigation, the deed 
 would operate as a grant of interest in incorporeal heredita- 
 ments, within St. 32 Hen. YIIL, ch. 34, so as to make the de- 
 fendant liable on the covenant as the assignee of the grantee. 
 But as it appeared by the deed that the grantors were seized 
 of the real hereditament only jointly with others, and that the 
 power of granting the privilege was vested in all the owners, 
 it was held that the deed operated only as a license to use the 
 water, subject to the right of the other shareholders, and that 
 the defendant was not bound by the covenant. 1 
 
 §450. Same. — Devisees of equitable interests are not as- 
 signees within the rules on covenants running with the land, 
 and are not liable in actions on the covenants. A covenantor 
 sold to a municipal corporation water for grinding corn, and 
 covenanted, for himself and those under him, not to obstruct 
 or divert any part of the water. He then mortgaged his 
 estate to A., and devised his equity of redemption to B. and 
 T., who diverted water. The corporation brought an action 
 of covenant against them as assignees of all the estate of the 
 covenantor. It was held that the defendants as devisees of an 
 equitable estate could not be charged on the covenant as as- 
 signees. 2 A grantee of land with which a covenant runs may, 
 upon conveying the premises, reserve, by agreement, the right 
 of action for breach of the covenant. A right of action on a 
 covenant to repair a dam was so reserved in Thompson v. 
 Shattuck, 3 in a conveyance after the dam had been carried 
 away ; the covenantee repaired the dam, and it was held that 
 he might maintain an action in his own name upon the cove- 
 nant. 
 
 » Portmore v. Bunn, 1 B. & C. 694 8 2 Met. 615. 
 2 Carlisle v. Blamire, 8 East, 487. 
 
§§ 4:51, 452.] EEMEDIES AT LAW. 737 
 
 §451. Same. — It has been said that covenants against in- 
 cumbrances are broken by the existence of any easements or 
 servitudes to which the land is subject. 1 And this was un- 
 doubtedly the rule at common law. So a right to take water 
 from the premises conveyed ; 2 a right to maintain an artificial 
 watercourse; 3 a right to maintain a drain, and an easement 
 of entering to repair it; 4 a right to obstruct and divert water 
 by means of a dam ; 5 an easement of conveying water from 
 a spring in pipes, 6 -and the right to maintain a dam, and over- 
 flow lands, 7 each have been held breaches of covenants against 
 incumbrances. 
 
 § 452. Same. — In Massachusetts it is held that where an 
 ■owner of an entire tract, which he overflows by means of a 
 dam, conveys a portion of such overflowed land, he retains the 
 right to continue such flowage without express reservation. 8 
 This was followed in "Vermont in the case of Harwood v. Ben- 
 ton. 9 There an owner of a mill and lands, including a dam 
 and flowed land, sold a portion of the flowed land with a 
 •covenant against incumbrances. It was held that he did not 
 part with the right to flow such land, and that the subsequent 
 •exercise of such right by himself and his grantees of the mill 
 was not a breach of the covenant. Barrett, J., said : " Such 
 covenant has relation to rights existing in, or in relation to, 
 the property conveyed, appertaining to parties other than the 
 grantor, and which may be claimed and exercised and en- 
 forced upon and against said property, as against such grantor 
 and his assigns." Applying this narrow distinction it would 
 
 ^rescott v. Trueman, 4 Mass. 627; 4 Smith v. Sprague, 40 Vt. 43. 
 
 Mitchellju Warner, 5 Conn. 497, 508. « Morgan v. Smith, 11 111. 194. 
 
 2 Mitchell v. Warner, 5 Conn. 497 6 McMullen v. Wooley, 2 Lans. 
 
 Harlow v. Thomas, 15 Pick. 66; Mor- (N. Y.) 394. 
 
 gan v. Smith, 11 111. 194. 7 Lamb v. Danforth, 59 Maine, 322; 
 
 'Prescott v. Williams, 5 Met. 433. Patterson a Sweet, 3 Brad. (111.) 550. 
 
 See Prescott v. White, 21 Pick. 341; 8 „Gary «. Daniels, 8 Met. 466. This 
 
 Johnson v. Knapp, 146 Mass. 70; case was decided expressly on the 
 
 "Viterbo v. Friedlander, 22 Fed. Rep. ground that one who makes a prior 
 
 422. But the right to the continued appropriation of a' stream thereby 
 
 flow of a natural watercourse is not gains a priority of right as against 
 
 a breach, nor are the rights inci- adjacent owners. But this is not 
 
 dental thereto, such as the right to everywhere the law. Ante, ch. 9. 
 
 enter and remove obstructions. See 9 32 Vt. 724. 
 ante, § 303. 
 
 47 > 
 
738 THE LAW OF WATERS. [Ch. XIL 
 
 follow that although the grantor might continue to exercise 
 such right of flowage himself, yet if he had granted the right 
 to another person to flow the land, and then'had sold the land 
 itself, the outstanding right to flow would be a breach of the 
 covenant against incumbrances ; and this would follow although 
 the right to flow was openly and notoriously exercised before- 
 and at the time of the grant; but he might afterwards convey 
 whatever right he had himself retained. 
 
 ,§ 453. Same. — The Supreme Court of ]S"ew Hampshire have- 
 established a similar rule. In Dunklee v. Wilton Eailroad Co., 1 
 the court says: "Property conveyed passes in its existing 
 state, subject to all existing easements and burdens of a sim- 
 ilar nature in favor of other lands of the grantor, which are 
 apparent, and which result naturally from the relative situ- 
 ation of the land, and from the nature, construction, and in- 
 tended use of the buildings, mills, etc., upon it, and their situ- 
 ation and connection with other property, as they were usually 
 enjoyed at the time of the conveyance." In this case no men- 
 tion is made of that of Kidder v. George, 3 decided five years 
 before in the same court, where it was held in an action of 
 covenant that it is no breach of the .covenant against incum- 
 brances that the land, art the time of the conveyance, had been 
 flowed by the grantor for twenty years by a dam below, and 
 after the conveyance, was flowed as before. 
 
 §454. Same. — In "Wisconsin the Supreme Court has gone 
 further, and laid down the unqualified rule that purchasers of 
 property, obviously and notoriously subjected at the time to 
 
 1 24 N. H. 489. In this case the re- plaintiff's damage, and the court held 
 
 spective owners of the upper and that the plaintiff, by conveying away 
 
 lower land constructed by agreement the land, had not lost the easement; 
 
 an artificial raceway, shortening the that the raceway was not a breach 
 
 course of a brook flowing through of his covenant, or a nuisance which 
 
 their lands, and the lower owner the owners of the land could remove; 
 
 afterwards conveyed his land to the and that the plaintiff could maintain 
 
 upper owner (the plaintiff), who, be- case for the injury. Confer Eawle, 
 
 ing then the owner of both the par- Covenants for Title (4th ed.), 109; 
 
 eels, conveyed part of the lower land Blanchard v. Ames, 60 N. H. 404; 
 
 to a third party. The grantee con- Griffin v. Bartlett, 55 N. H. 119; But- 
 
 veyed a portion of the land to the de- ler v. Huse, 63 Maine, 447. 
 
 fendant, who erected an embank- 2 18 N. H. 511. 
 ment across the watercourse, to the 
 
§§ 455, 456.] . EEMEDIES AT LAW. T39 
 
 some right of easement or servitude affecting its physical con- 
 dition, take it subject to such right, without any express ex- 
 ceptions in the conveyance, and that sueh easements are not 
 breaches of covenants against incumbrances or other covenants 
 for title. 1 So, where the defendant conveyed land to the 
 plaintiff by a deed containing the usual covenants of seisin and 
 against incumbrances, without any exceptions, and at the time 
 of the purchase between thirty and forty acres of the land 
 were flowed by a mill-pond created by a dam on land not 
 belonging to the defendant, which dam had been maintained 
 long enough to create a prescriptive right in the owner of it 
 to flow the land in question, and the grantee brought an action 
 for breach of the covenants, by reason of the right of flowage, 
 it was held that the action could not be maintained. 2 
 
 § 455. Same. — The decisions in Massachusetts, New Hamp- 
 shire and "Wisconsin are influenced by the policy of those 
 States in favoring mills and the development of water-pow- 
 ers ; but it is submitted that in so far as these cases hold that 
 any such easements or servitudes upon land abridge the cove- 
 nantee's right to the entire beneficial use of the property pur- 
 chased, they are departures from the common law. They are, 
 in short, a limitation upon the covenant, by reference to the 
 subject-matter. 3 The doctrine of notice is an insufficient ground 
 for the departure, for the purchaser has notice of recorded in- 
 cumbrances, such as mortgages and judgment liens, and buys 
 with reference to them ; but if he takes a covenant against in- 
 cumbrances, he is entitled to damages for all such charges on 
 the land, regardless of notice. 4 
 
 § 456. Same — Eminent domain. — Covenants in private 
 grants do not include protection against or compensation for 
 
 1 Kutz v. MoCune, 22 Wis. 627 (ap- siderations doubtless apply to the 
 proved in the oases of Pomeroy v. Mass. St. of 1892, ch. 55, authorizing 
 Chicago R. Co., 25 Wis. 641 ; Sabine dams to flow and irrigate land for 
 v. Johnson, 35 Wis. 185; Smith v. the cultivation of cranberries, as to 
 Hughes, 50 Wis. 620). which in Maine, see infra, § 601, n. 
 
 2 Kutz v. McCune, supra. Confer 4 See Bean v. Mayo, 5 Greenl. 94, 
 Janes v. Jenkins, 34 Md. 1, accord. where a covenant in a deed that the 
 
 3 See Rawle, Covenants for Title land was free from incumbrances 
 (5th ed.), § 83; Craig v. Lewis, 110 was held broken by the existence of 
 Mass. 377; Isele v. Arlington Sav. a mortgage previously given by the 
 Bank, 135 Mass. 143. Similar con- grantor to the grantee. 
 
740 THE LAW OF WATERS. [Ch. XII. 
 
 future acts of sovereignty; and, accordingly, if lands conveyed 
 are injured by an exercise of the power of eminent domain, 
 such injury is not a breach of any of the covenants for title, 
 and affords the covenantee no cause of action ; l and in States 
 where the flowage of lands under the Mill Acts is held an ex- 
 ercise of the power of eminent domain, such flowage would 
 not constitute a breach of the covenants. 2 So an entry and 
 occupancy in exercise of the power of eminent domain, for the 
 purpose of building a canal, is not a breach of covenants of 
 warranty, nor is a release of damages for such entry, executed 
 before the conveyance is made. 3 If the title to land, part of 
 which is below tidal high-water mark, is, for the purposes of 
 division, assumed to be perfect, and there is an agreement for 
 indemnity against any outstanding title or claim, the existing 
 sovereign title of the State below high-water mark is within 
 the meaning of the agreement, although liable to be extin- 
 guished by the riparian owner's right of reclamation by oc- 
 cupancy. 4 
 
 § 457, Same. — In Maine, where a corporation was author- 
 ized to erect dams, locks, etc., in a stream, and to take lands 
 therefor, making compensation to the owner, and the company 
 leased land, and erected a portion of their works thereon, no 
 damages being claimed by the owner, or assessed, and the owner 
 afterwards conveyed the laud with covenants, it was held that 
 the company had erected its works under its charter power, 
 
 i Ellis v. Welch, 6 Mass. 246. See * Dobbins v. Brown, 12 Penn. St. 
 
 Snarr v. Baldwin, 11 C. P. (Can.) 353; 75. But where a lease of a mill and 
 
 Doty v. Lawson, 14 Fed. Rep. 892. As water-power was made after the 
 
 to vis major excusing the perform- water had been taken for the tempo- 
 
 ance of covenants, see Union Pac. rary use of a canal company, and the 
 
 Ry. Co. v. Cook, 98 Fed. Rep. 281; lease contained covenants of war- 
 
 supra,$ 297. • rantyand against incumbrances,such 
 
 2 In Fitch v. Seymour, 9 Met. 462, abridgment of the full use of the 
 the . action was upon a covenant property, under a, prior exercise of the 
 against incumbrances, and the al- power of eminent domain, was held 
 leged breach consisted of flowage of a breach of the covenant. Peters v. 
 the lands by a third person under a Grubb, 21 Penn. St. 455. This is 
 license from the grantor, which had plainly contrary to the New Hamp- 
 been held binding as against him. It shire and Wisconsin doctrine as to 
 was held that such license gave no notorious easements, 
 such right as against the grantee, 4 United Companies v. Long Dock 
 and that, therefore, there was no Co., 38 N.J. Eq. 142; Cooper v. Blood- 
 breach, good, 32 id. 209; ante, § 171. 
 
§ ^58.] EEMEDIES AT LAW. 74:1 
 
 and had the right to maintain them permanently, and that they 
 were a breach of the covenant against incumbrances. 1 If this 
 case is law, it follows that an easement erected in the past, 
 under the exercise of the power of eminent domain, is an in- 
 cumbrance within the meaning of the covenant, which is a 
 strict application of the original rule as to easements. 
 
 § 458. Same. — 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. 2 So where the deed included a grant 
 of the right " to raise a dam sufficient to raise the water seven 
 feet 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. 3 A similar question arose in Yermont on a cove- 
 nant of warranty. The defendant had conveyed a lot, includ- 
 ing 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 prem- 
 ises." 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 re- 
 covery against him. It not appearing that the dam had ever 
 caused such flowage prior to the date of the defendant's deed, 
 or that the defendant had ever exercised or claimed the right 
 
 1 Ginn v. Hancock, 31 Maine, 42, 47. Stetson v. Veazie, 11 Maine, 408, it is 
 See Peters v. Grubb, 21 Penn. St. 455, held that an easement (in this case 
 supra. ' of landing boats on the shore of a 
 
 2 Clark v. Conroe, 38 Vt. 469. The stream) was not a disseisin of the 
 obligation of a contract imposed by owner of the land to which the ease- 
 the grant of a city of the exclusive ment is annexed (upon which it is 
 right to supply the city with water exercised). So in McMullen v. 
 from a certain creek is not impaired Wooley, 2 Lans. (N. Y.) 394, a grant 
 by its later grant to others of a simi- of prior right to conduct water by 
 lar right from other sources. Stein means of pipes laid beneath the sur- 
 tt Bienville Water-Supply Co., 34 face of land, from a spring thereon, 
 Fed. Rep. 145. See Citizens' Water was held an easement, and not a 
 Co. v. Bridgeport Hydraulic Co., 55 breach of covenants of warranty and 
 Conn. 1. for quiet enjoyment, but a breach of 
 
 3 Walker v. Wilson, 13 Wis. 522; the covenant against incumbrances. 
 Hall v. Gale, 14 id. 54; -20 id. 292; See McCarthy v. Nicrosi, 72 Ala. 332. 
 Traster v. Snelson, 29 Ind. 96. In 
 
742 THE LAW OF WATEES. [Ch. XII. 
 
 so to flow the land, it was held that no breach of the covenant 
 Avas shown. 1 
 
 § 459. Same. — In a recent case in New York a different 
 result was reached. The defendant and another conveyed to 
 the plaintiff 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 opera- 
 tion, by a deed containing covenants of warranty and quiet 
 enjoyment, 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 
 then brought an action upon their covenants, and it was held 
 that the deed conveyed the dam as it then stood, at its exist- 
 ing 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. 2 
 
 § 4C0. Same. — 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. 3 But in Mitchell v. Warner 4 
 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 criticised 
 
 1 Swasey v. Brooks, 30 Vt. 692. sewer is a " casualty " -within a lease, 
 
 2 Adams v. Conover, 87 N. Y. 422; for which the lessor may terminate, 
 22 Hun, 424; Brugger v. Butler, 6 is a question of fact. Miland v. 
 Oregon, 459. For a decision distin-. Meiswinkel, 82 111. App. 522. 
 guishing the case of a sewer over ad- 3 Clark v. Conroe, 38 Vt. 469. 
 joining land from this, and holding * 5 Conn. 497. The case of Thayer 
 that the covenants of warranty and v. Wheelock, 16 Pick. 68, before re- 
 for quiet enjoyment of the premises ferred to, held similarly that the 
 and appurtenances do not extend to benefit of a covenant of warranty in 
 the right to discharge water through a grant of the right of drawing water 
 such a sewer, see Green v. Collins, 86 from a pond would not enure to a 
 N. Y. 246. Whether flooding by a subsequent purchaser of the land. 
 
§ 461.] REMEDIES AT LAW. 74:3 
 
 in Pennsylvania as ill-considered. 1 In the last mentioned State, 
 it was held that a covenant for quiet enjoyment in the lease 
 of a grist-mill operated by water-power, was broken by the 
 diversion of the water of the stream under a prior right, ac- 
 quired by a canal company under a delegation of the power of 
 eminent domain. 2 
 
 § 461, Same. — In Blatchford v. Plymouth, 3 certain allega- 
 tions as to the use of water were held to show no breach of a 
 ■covenant 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 enjoyment. 
 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 per- 
 sons 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 
 fit and proper for the purpose for which it had been placed in 
 
 1 See Wilson v. Cochran, 46 Penn. the grantee from using so much 
 
 St. 229; Rawle, Covenants for Title water, was not a breach of the cove- 
 
 (4th ed.), 182 (note 2) ; Spencer's Case, nant. 
 
 1 Smith's Lead. Cas. (7th Am. ed.), 2 Peters v. Grubb, 21 Penn. St. 455. 
 
 201, note. In Griswold v. Allen, 22 See Bass Lake Co. v. Hollenbeck, 11 
 
 'Conn. 89, it was held that a grant of Ohio Cir. Ct. 408. 
 
 the right to maintain a raceway 3 1 Bing. N. C. 691. Cf. Harrison 
 
 would not include a grant of the right v. Muncaster, [1891] 2 Q. B. 680; 
 
 to use as much water as would flow Parker v. Fairbanks, 1 Russell & Ch. 
 
 through it; and that a prior right of (N. S.) 215; Scriver v. Smith, 100 N. 
 
 -another riparian owner, preventing Y. 471. 
 
744 THE LAW OF WATEKS. [Ch. XII. 
 
 the house, it was held that the bursting of the pipe was no> 
 breach of the covenant for quiet enjoyment. 1 
 
 §462. Same — Particular covenants. — 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 ac- 
 cess to their sources, to increase 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 main- 
 taining 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. 2 A covenant \o convey 
 land, together with the right to erect a dam and to overflow 
 the land of the vendor, is not complied with by 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 covenantee may maintain an action of covenant. 3 
 
 § 463. Same — Same. — 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 him- 
 self, his heirs and representatives, to keep the dam so reduced 
 forever. 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 after- 
 wards 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 
 
 1 Anderson v. Oppenheimer, 5 Q. B. A covenant to keep up a mill-dam is 
 
 D. 603. See Sanderson v. Berwick- broken by permitting it to remain; 
 
 upon-Tweed, 13 Q. B. D. 547; Stevens out of repair after notice. Leonard- 
 
 v. Wadleigh (Ariz.), 46 Pac. Rep. 70. v. Young, 4 Allen (N. B.), 111. 
 
 * Carroll v. Cockey, 3 H. & J. 282. » Wilson v. McNeal, 10 Watts, 422.. 
 
§ 464.] EEMEDIES AT LAW. 745 
 
 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 immaterial in an action for the 
 breach of his covenant. 1 In Tomlinson v. Ousatonic "Water 
 Co., 2 a covenant by the defendant to repair injuries which 
 might be caused by flowage, recited simply in the condition of 
 a bond for the performance of such covenant, was held a suffi- 
 cient and valid covenant. 
 
 § 464. Same — Same. — Underhill v. Saratoga Kailroad Co.* 
 was an action to recover possession of land, and also for dam- 
 ages 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 hy- 
 draulic 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 misfeas- 
 ance of the grantees, but that the grantees should forthwith 
 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 as- 
 signed all their rights to a third person, who brought the suit. 
 It was held that the condition was subsequent, 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 per- 
 form the condition; that a right of re-entry remained in the 
 grantors and their heirs ; but that no action could be main- 
 tained 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 by the assignment the condition was (Jis- 
 
 - 1 Stinson v. Gardiner, 33 Maine, 94. ' 20 Barb. 455. See 2 Wash. Real 
 2 44 Conn. 99. Prop. (4th ed.) 17. 
 
746 THE LAW OF WATBES. [ClI. XII. 
 
 charged forever, and an indefeasible estate was vested in the 
 grantees. 1 
 
 §465. Same — Same. — Where property was conveyed to- 
 gether 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 neces- 
 sary for his mill, by diverting it therefrom, a'nd 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. 2 
 
 § 466. Same — Same. — In Fish v. Folley, 3 the action was 
 on a covenant that the plaintiff should have a continued sup- 
 ply of water for his mills from the defendant's dam. The de- 
 fendant after a time wholly failed to perform his covenant. 
 It was held that the breach was entire, and that one recov- 
 ery was a bar to any further action. But in Crain v. Beach, 4 
 which was an action on a covenant for maintaining a gate, a 
 contrary rule is laid down; and Fish v. Folley is explained as 
 decided with reference to the fact that a new water-power had 
 been obtained, and the one in question abandoned several years 
 before the suit. 
 
 1 It is to be noticed that the condi- 3 Gray, 143, 148; Crocker v. Old South 
 
 -tion was to maintain as well as to Society, 106 Mass. 479. A suggestion 
 
 construct a dam. The court (per contra is made by Mr. Lewis (Per- 
 
 Allen, J.) say (p. 460): "There was petuities, 619). 
 
 no limit to the time of its perform- 2 Hollinsworth v. Dunbar, 5 Munf. 
 
 ance, and consequently the defend- (Va.) 199. 
 
 ants would be allowed a reasonable 3 6 Hill, 54 
 
 .time to construct and complete the 4 2 Barb. 120. This case is limited 
 
 work." A fortiori there was no limit in Shaffer v. Lee, 8 Barb. 412; and 
 
 within which the condition for main- Fish v. Folley is cited generally in 
 
 taining the dam was to be performed. New York as an authority for the 
 
 The right of re-entry, therefore, was rule that a right of action cannot be 
 
 annexed to a continuing condition divided. It must be considered with 
 
 without limit in time. That such an reference to the explanation given 
 
 interest is not void for remoteness in Crain v. Beach. See O'Dougherty 
 
 within the rule against perpetuities, v. Remington Paper Co., 81 N. Y. 496. 
 see Brattle Square Church v. Grant, 
 
;§§ 467, 468.] 
 
 EEMEDIES AT LAW. 
 
 747. 
 
 § 467. Same— Same It is a general rule that in actions 
 
 upon 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 was 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 breach 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 preserved. 2 
 
 §468. Same — Same. — 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 providing for a rebate of rent for a stoppage of water, 
 
 i 34 Md. 204. 
 
 2 Dalton v. 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 let 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 any one who 
 might thereafter 6Vn 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 particu- 
 lar line, and not to open it and let 
 water flow through it until provision 
 was made for 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 as- 
 signed, 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 covenants were 
 several. The court also held (relying 
 on 1 Wms. Saund. 154, note 1, to Ec- 
 cleston 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 below, was held a 
 sufficient assignment of breach in 
 that respect. And an averment 
 that C. allowed the owner 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 naming 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 exe- 
 cution if he thought it necessary. 
 
748 THE LAW OF WATEES. [Ch. XII. 
 
 \ 
 
 was no bar to an action on such' covenant. 1 But where a lease 
 of water-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. 2 So the 
 grantor of a ditch to be dug and maintained across a portion 
 of his farm, in order to supply the grantee with water from a 
 spring there, is not bound to keep the ditch in repair or pre- 
 vent it from becoming filled up by the tramping of cattle pas- 
 tured on his farm. 3 
 
 § 469. Assumpsit. — "Where a contract under seal has been 
 modified, and a simple contract substituted, upon a valid con- 
 sideration, the remedy for a breach of contract after such 
 modification is by assumpsit, and not in covenant. 4 Where 
 the rights of parties 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. 5 So where, after a 
 wrongful diversion and recovery therefor, a lease of the use 
 of the water was given and accepted, and rent paid, and par- 
 
 1 Moline Water Power Co. v. Wa- Openshaw v. Evans, 50 L. J. N. s. 156. 
 ters, 10 Brad. (111.) 159. Where the As to a lessee's right to water under 
 land beneath the pool and inlet fur- or after the expiration of his lease, 
 nishing the power had been ceded see Chamber Colliery Co. v. Hopwood, 
 by the lessor to the United States 32 Ch. D. 549; Washburn & Moen 
 government, which had agreed to Manuf. Co. v. Salisbury, 152 Mass. 
 maintain the power out of appropria- 346. As to agreements for repairs, 
 tions that might be made by Con- see Dashwood v. Magniac, [1891] £ 
 gress for that purpose, and which Ch. 306; Trudeau v. Field, 69 Vt. 446. 
 had entire control over the power, it See Horgan v. New York, 47 N. T. S. 
 was held that the covenant " to use 580. As to keeping safe for cattle a 
 due diligence in providing water " box placed in a spring under license, 
 did not require it to remove accumu- see Farnum v. Concord Land & W. 
 lations of sediment in the pool, im- P. Co. (N. H.), 45 Atl. Rep. 745; In- 
 pairing the power, but only to use dianapolis Water Co. v. Nulte, 126 
 due diligence in attempting to pro- Ind. 373. 
 
 cure such removal by the United 3 Joslin v. Sones, 80 Iowa, 534. 
 
 States. Ibid. See Stevens v. Wad- 4 Mill Dam Foundry v. Hovey, 21' 
 
 leigh (Ariz.), 57 Pac. Rep. 622. If a Pick. 417. 
 
 leased landing-place is washed away, 5 Davis v. Morgan, 4 B. & C. 8; 
 
 the lessee is not obliged to pay rent S. c. 6 Dowl. & Ry. 42; Turner v.. 
 
 for the destroyed premises. Waite v. Strange, 56 Texas, 141. See Mullett 
 
 O'Neil, 76 Fed. Rep. 408; 72 id. 348. v. Bemis, 100 Mass. 92. 
 
 2 Sheets v. Selden, 7 Wall. 416. See 
 
§§ 470, 471.] BEMEDIES AT LAW. 749 
 
 ties 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. 1 
 
 § 470. Same. — 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 prom- 
 ise to pay for such excess. But if such presumption is rebut- 
 ted, and there is no promise, and nothing to show the relation 
 of landlord and tenant, the other co-tenants Cannot maintain 
 assumpsit against him for the use and occupation. 2 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 him in 
 rebuilding it, refusing to give him his share until reimbursed, 
 it was held that P. could not maintain assumpsit against them, 
 as the holding was adverse. 3 Assumpsit is not an appropriate 
 Temedy for settling a disputed title. 4 A grant by one tenant 
 in common of the right to use water when the grantor is not 
 using it is not void as creating a several interest in common 
 property or impairing the rights of co-tenants. 5 
 
 § 471. Same — Ejectment. — It was early settled that eject- 
 ment would not lie for a watercourse, 6 or a mere easement. 7 
 But it of course lies for land which is occupied as an approach 
 to and landing for a bridge, 8 or 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. 9 Where 
 the rights of the State in public waters begin with low-water 
 mark, and owners of lands bordering thereon have a statutory 
 
 i Davis v. Morgan, 4 B. & C. 8; s. C. 4 North Haverhill W. Co. v. Met- 
 
 '« Dowl. & Ey. 42. See Williams v. calf, 63 N. H. 427. 
 
 Ladew, 171 Perm. St. 36& 5 Adams v. Manning, 51 Conn. 5. 
 
 2 See Lamson v. Worcester, 58 Vt. echallenor v. Thomas, Yelv. 143; 
 381; New Sharon W. P. Co. V. s. C. Brownl. & Golds. 142; Swift v. 
 Fletcher, 88 Maine, 571. Goodrich, 70 Cal. 103. 
 
 3 Porter v. Hooper, 11 Maine, 170. ^Pinkum v. Eau Claire, 81 Wis. 
 As to ouster of the co-tenants by one 301. 
 
 tenant in common, see Ingalls v. s Lawe v. Kaukauna, 70 Wis. 306. 
 
 Newhall, 139 Mass. 268. As to re- sBeidelman v. Foulke, 5 Watts, 
 
 pairs, see Middlebury El. Co. v. Tup- 308; Integral Q. M. Co. v. Altoona 
 
 per, 70 Vt. 603; Crowder v. McDon- Q. M. Co., 75 Fed. Rep. 379. 
 aell, 21 Mont. 367. 
 
750 
 
 THE LAW OF WATERS. 
 
 [CH. XIL 
 
 right to build into the water, they cannot maintain ejectment 
 for land artificially made in front of their own land. 1 Eject- 
 ment is not an appropriate remedy for one whose -mining oper- 
 ations are impeded by a lower proprietor who has dammed the 
 stream. 2 
 
 § 472. Mandamus. — In a proper case, an injury done to or 
 by means of waters may be remedied by the extraordinary 
 writ of mandamus. It has seldom been employed in cases of 
 such injuries, and an extended discussion of its nature and uses 
 may therefore 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 ; 3 and secondly, the absence of any other remedy by due 
 
 1 Austin v. Rutland R. Co., 45 Vt. 
 215. In Iowa, it is held that owners 
 of land bounding on a navigable 
 river own the fee only to high-water 
 mark. Under this doctrine it is held 
 that an act of Congress subsequently 
 declaring that a river formerly held 
 - navigable is not navigable, will not 
 have the effect to extend the owner- 
 ship 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 v. Chicago, 
 etc. Ry. Co., 60 Iowa, 456. 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 v. 
 Mauran, 5 Denio, 389. The right of 
 the riparian proprietor to land below 
 high- water mark is a right to a tangi- 
 ble corporeal hereditament which 
 may be vindicated against a disseisor 
 by this action. Nichols v. 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; Pierce v. Ken- 
 nedy, 2 Wash. St. 324; Eisenbach v. 
 Hatfield, id. 236. If a grantor re- 
 serves to himself, his heirs, and as- 
 
 signs forever "the right and privi- 
 lege " of erecting a mill-dam at a 
 certain place described, and "to oc- 
 cupy and possess the aforesaid prem- 
 ises, 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 
 maintained for a fishery.. Rex i\ Old 
 Alresford, 1T.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 re- 
 covered in ejectment." Denying the 
 doctrine of Molineaux v. Molineaux, 
 Cro. Jac. 144; Herbert v. Laughluyn, 
 Cro. Car. 492; Waddy v. Newton, 8 
 Mod. 275, 277. See ante, § 185. Eject- 
 ment will lie for a well of salt water, 
 or for a right to a certain quantity 
 of the water to be taken from a cer- 
 tain well. Smith v. Barret, 1 Lev. 
 114; Cro. Jac. 150; Runnington on 
 Ejectment, 131. 
 
 2 Ezzard v. Findley G. M. Co., 74 Ga. 
 520; Burke v. Carlinville Water Co., 
 176 111. 555. 
 
 3 Haines v. People, 19 111. App. 354; 
 Montgomery i\ Capital City W. Co., 
 92 Ala. 361; Haugen v. Albina L. <fe 
 W. Co., 21 Oregon, 411. 
 
§§ 473, 474.] 
 
 REMEDIES AT LAW. 
 
 751 
 
 course of law. 1 By "due course of law" is here me^ant the- 
 entire system of remedies administered by courts, including 
 remedies in equity. 2 
 
 § 473. Same. — An obligation arising merely upon a contract 
 and not involving any trust, 3 or an obligation to pay damages 
 for a tort, 4 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. 5 The rights given 
 by the Colorado statute regulating the use of water for irriga- 
 tion may be enforced by mandamus. 6 
 
 § 474. Same. — The exercise of official discretion, as by mu- 
 nicipal bodies, boards of health, or commissioners of highways, 
 will not be controlled by the writ. 7 But an official trust to 
 
 1 High, Extr. Legal Rem. § 10 ; State 
 v. New Orleans R. Co., 42 La. Ann. 
 11 ; People v. Green Island Water Co., 
 56 Hun, 76; State v. Hanna, 97 Ind. 
 469; Will County Supervisors v. Peo- 
 ple, 110 111. 511; Brownell v. Gratiot 
 Supervisors, 49 Mich. 414; Reg. v. 
 Com'rsof Sewers, 1 Hannay (N. B.), 3; 
 Merrick v. Baltimore, 43 Md. 219. 
 
 2 In Com. v. Supervisors, 29 Penn. 
 St. 121, it was held that mandamus 
 would not lie where the relator had 
 a full and adequate remedy by in- 
 junction. In Com. v. Com'rs, 32 
 Penn. St. 218, 223, it is said that the 
 existence of an equitable remedy is 
 not ground for refusing mandamus. 
 See Lake Shore & M. S. Ry. Co. v. 
 Franklin (Penn.), 44 Atl. Rep. 583. 
 Remedy upon both these processes 
 cannot be had in a single case. 
 Whigham v. Davis, 92 Ga. 574. 
 
 3 State v. Republican River Bridge 
 Co., 20 Kansas, 404; Bright v. Farm- 
 ers' Highline Canal Co., 3 Col. App. 
 170; Farmers' Ind. Ditch Co. v. Max- 
 well, 4 id. 477; People v. Farmers' 
 High-Line Canal Co., 8 id. 246; 25 
 Col. 202; State v. Noyes (Nev.), 56 
 Pac. Rep. 946. So where the State 
 received a grant of land from the 
 United States, for bridge purposes, 
 
 and gave a guaranty to erect and 
 maintain a bridge at a certain place, 
 and then procured the erection of a- 
 bridge at that place by a company, 
 accepted the bridge and took from 
 it a guaranty to protect the State 
 against loss upon its guaranty to the 
 United States, it was held that the 
 obligation of the company to repair 
 the bridge was merely contractual, 
 and could not be enforced by man- 
 damus. To the same effect, see State- 
 v. Zanesville Turnpike Co., 16 Ohio 
 St. 308. 
 
 4 So one who has a claim for com- 
 pensation against a local board of 
 health, for injuries not specially au- 
 thorized, has a remedy by action, and 
 cannot have a mandamus. Regina v. 
 Darlington Board, 6 B. & S. 562. 
 
 5 Reading v. Com., 11 Penn. St. 196; 
 Com. v. McLaughlin, 120 Penn. St. 
 518. 
 
 e Golden Canal Co. v. Bright, 8 Col. 
 144; Wheeler v. Northern Colorado 
 Ir. Co., 10- Col.. 582. See Wilterding 
 v. Green. (Idaho), 45 Pac. Rep. 134. 
 
 7 High on Extraordinary Remedies, 
 §42; Dillons Mun. Corp., § 836; Ja- 
 cobs v. Supervisors, 100 Cal. 121; Peo- 
 ple v.- Dalton, 53 N. Y. S. 1060; 50 id.. 
 1028 r 158 N. Y. 204. So of a discre-- 
 
752 THE LAW OF WATEKS. [Ch. XII. 
 
 perform a specific duty, or a public trust imposed on a private 
 corporation, may be enforced by mandamus. 1 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. 2 So where 
 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 man- 
 damus to compel the payment ©f 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. 3 Eut it is always open 
 to the company to show full compliance with the act, in answer 
 to the writ ; as in 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, 4 
 
 § 475. Pleading — The declaration or complaint. — As the 
 
 rights infringed by injuries done by and affecting waters are 
 property rights, it is necessary for the plaintiff to allege an in- 
 terest in the property injured, and an injury to such interest, 
 in order to show a cause of action. 5 The nature and extent of 
 
 tionary power to erect and repair 49 Neb. 218, 22a. Mandamus will not 
 bridges or highways. State v. Free- lie against a public board of fish corn- 
 holders of Essex, 3 Zab. (N. J.) 214; missioners at suit of one of its em- 
 State v. Ouatonio Water Co.,51 Conn, ployees for redress for a breach of 
 137. A discretion as to erecting a contract, but he may have a claim for 
 bridge is not determined by levying damages. Portman v. Fish Com'rs, 50 
 and collecting a tax for that purpose; Mich. 258. 
 
 and the commissioners will not be 2 Priqe v. Riverside Co., 56 Cal. 431. 
 
 compelled by mandamus to complete 3 Queen v. North Midland Ey. Co., 
 
 the bridge. State v. Com., 31 Ohio 2 Rail. Cas. 1. 
 
 St. 211; Com. v. State, 141 Ind. 187. i Queen v. York & North Midland 
 
 1 See District Board v. London Ry. Co., 3 Rail. Cas. 764, See Reg. v. 
 
 County Council, 82 L. T. 306; Potwin St. George the Martyr, Southwalk, 61 
 
 Place v. Topeka Ry. Co., 51 Kansas, L. J. Q. B. 398; 67 L. T. 412; Park 
 
 609; Topeka v. Topeka W. Co., 58 Com'rs v. Detroit, 80 Mich. 663. 
 
 id. 349; Peotone, etc. District v. 5 Leeds v. Shakerley, Cro. Eliz. 751; 
 
 Adams, 163 111. 428; People v. New 1 Com. Dig. 308, Action for Nui- 
 
 York Suburban W. Co., 56 N. Y. S. sance, E. 
 364; West Point W. P. Co. v. State. 
 
§ ±?6.] 
 
 KEMEDIES AT LAW. 
 
 753 
 
 his interest need appear only so far as to show that it is in- 
 jured by the wrong charged. "Where the law gives a common 
 right, as of navigation or fishing in public waters, it is unnec- 
 essary 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. 1 Eights infringed by 
 private nuisances fall within the latter class. 
 
 § 476. Same — Same. — If the injury is to the possession, a 
 general averment of the plaintiff's possession is sufficient, with- 
 out any special statement of his title; 2 for, as we have seen, 
 possession is a sufficient interest to maintain an action against 
 a wroug-doer. 3 If, for example, the injury is by diverting or 
 polluting a stream, the plaintiff should aver that he was pos- 
 sessed 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. 4 Seisin in 
 
 U Chitty PL 393; Gale on Ease- 
 ments (5th ed.), 668. So where a plaint- 
 iff declared that he was possessed of 
 •a house and was thereby entitled to 
 an easement to take water from a cis- 
 tern, but that the defendant wrong- 
 fully closed and fastened up a door- 
 way, ' 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 v. Selby, 
 6 A. & E. 786. See Gale on Ease- 
 ments (5th ed.), 669. And where a 
 «ount for polluting the waters of 
 a canal which supplied boilers on 
 the plaintiffs' land, alleged that the 
 plaintiffs enjoyed the benefit of the 
 water for that purpose, and that the 
 water used and ought to run and 
 48 
 
 flow without being fouled and pol- 
 luted, it was held bad on the ground 
 that it did not show that the plaint- 
 iffs were entitled to the flow or en- 
 joyment of the benefit of the water. 
 Laing v. Whaley, 3 H. & N. 675, 901; 
 reversing 2 H. & N. 476. 
 
 2 Sly v. Mordant, 1 Leon. 247; Jack- 
 son v. Savage, Skinner, 316; Sand v. 
 Trefuses, Cro. Car. 575; Glyn v. Nich- 
 ols, Comb. 43; Kutland v. Bowler, 
 Palm. 290; Hebblethwaite v. Palmer, 
 Carthew, 85; 3 Mod. 48; 3 Lev. 133; 
 Fentiman v. Smith, 4 East, 107; 
 Bealey v. Shaw, 6 id. 208; Northam 
 v. Hurley, 1 El. & Bk. 665: Hoare v. 
 Dickinson, 2 Ld. Raym. 1568; Win- 
 nipiseogee Lake Co. v. Young, 40 N. 
 H. 420, 432. See 2 Wm. Saund. 115, 
 note 1 (to Coryton v. Lithebye). In 
 an anonymous case, Cro. Car. 499, 
 which was an action for diverting 
 an ancient watercourse, it was held 
 unnecessary to show title by pre- 
 scription or otherwise. 
 
 3 See ante, § 377. 
 
 4 For precedents of forms of dec- 
 laration for injuries affecting waters 
 
754 
 
 THE LAW OP WATERS. 
 
 [CH. XII. 
 
 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 without alleging an 
 entry ; 1 and so if one alleges that he is " seized in his demesne 
 as of fee," possession will be implied. 2 
 
 §477. Same — Same. — 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. 3 While 
 the plaintiff is at liberty to declare generally upon his posses- 
 sion, yet if he undertakes to set out a title, and does it insuffi- 
 ciently, the declaration is bad. 4 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 prescriptive 
 right to be proved ; and in a complaint for the unreasonable 
 
 and watercourses, see 2 Chitty PL 
 (16th Am. ed.), 624-631; 2 Chitty.'s 
 Precedents, 600-610. 
 
 i Russell v. Handford, 1 Leon. 273. 
 
 2 Hart v. Evans, -8 Penn. St. 13. 
 Coulter, J., here said: "The posses- 
 sion of the plaintiff below is suffi- 
 ciently set out. The averment is that 
 the plaintiffs were at the time of the 
 torts committed ' seized in their de- 
 mesne as of fee.' Seisin includes 
 possession. It is true there is also 
 seisin in law, and that would be suf- 
 ficient to maintain this action ; and 
 actual and corporal seisin. But when 
 an individual avers that he was 
 seized, we may take it for granted 
 that he was in possession, as the 
 words will import that state of facts. 
 But I am not to be understood as in- 
 timating that it was necessary to 
 state an actual pedis possessio, or to 
 prove it, in order to enable the plaint- 
 iffs to maintain this action. It was 
 an injury to the freehold as well as 
 to the actual possession." This case 
 seems to hold (1) that the averment 
 of seisin will be taken to imply pos- 
 session; (2) that seisin in law is suffi- 
 cient to maintain the action for 
 
 injuries to the freehold; and is ap- 
 parently pregnant with the proposi- 
 tion that seisin in law is not sufficient 
 to maintain the action for injuries 
 not affecting the freehold. The injury 
 in the preceding case was diversion 
 from a mill, necessarily affecting the 
 freehold. But where the plaintiff at- 
 tempted to charge the defendant with 
 the duty of cleansing a drain, it was 
 held that the words " owner and pro- 
 prietor " did not import that the de- 
 fendant was the occupant of the 
 premises. Russell v. Shenton, 3 Q. B. 
 449. 
 
 3Vowles 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. 
 
 * Dome v. Cashford, 1 Salk. 363; 
 Crowther v. Oldfield, id. 365; 2 La. 
 Raym. 1225, 1230. And see 1 Wms. 
 Saund. 346a (note to Mellor v. Spate- 
 man); Kotes to Saund. 625; Win- 
 nipiseogee Lake Co. v. Young, 40 N. 
 H. 420, 43a 
 
§ 478.] KEHEDIES AT LAW. 755 
 
 detention of water, the averment 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. 1 
 
 § 478. Same — Same. — The plaintiff must state his title suf- 
 ficiently, if at 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." 2 But 
 he is required 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 appropriation ; 
 the right proved was that of an ordinary riparian proprietor, 
 which in no way supported the declaration. 3 "Where the plaint- 
 iff in case for diversion alleged, as a reversioner, 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 outstand- 
 ing life estate, it was held that he might recover under the 
 declaration in respect to his right to the flow of water to the 
 ancient pond. 4 In averments describing his right great accu- 
 racy was required of the plaintiff, and any substantial variance 
 
 1 Twiss v. Baldwin, 9 Conn. 291. v. Bensley, 75 Wis. 399. As to mis- 
 See Avon Manuf. Co. v. Andrews, 30 joinder of causes of action, see 
 Conn. 476. At common law a verdict Hodges v. Wilmington R. Co., 105 
 would cure a title imperfectly stated, N. C. 170; Bellant v. Brown, 78 Mich, 
 but would not cure a defective title, 294. 
 
 or the omission to state any title. 2 Buller, N. P. 76, 7th ed. ; Ferrer v. 
 
 1 Wms. Saund., notes to Stennel v. Johnson. Cro. Eliz. 336. " He must 
 
 Hogg; 2 Wms. Saund., notes to Bar- prove the same right, but he need not 
 
 ber v. Fox. Allegations of diversion prove the same title." Gale on Ease- 
 
 and of digging the soil are not im- ments (5th ed.), 672. 
 
 properly joined when the digging is 3 Frankum v. Falmouth, 2 A & E. 
 
 only the means used for diverting 452; 4 Nev. & Man. 330. 
 
 the water. Grand Rapids W. P. Co. * Hale v. Oldroyd, 14 M. & W. 789. 
 
756 THE LAW OF WATERS. [Ch. XII. 
 
 was held fatal to recovery. A general description of the 
 course of a stream was sufficient, but if he attempted to de- 
 scribe it by metes and bounds, he must do it accurately. 1 
 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 ; 2 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. 3 So an averment that the plaintiff was 
 possessed of land, by reason of which he had a right to the use 
 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 con- 
 tract to convey. 4 But where the plaintiff alleged a greater 
 right than he possessed, but of the same kind, the variance 
 was not fatal. So where the plaintiff alleged that he was en- 
 titled 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. 5 In 
 
 1 Hall v. Swift, 6 Scott, 167. See bank of the Sabine River, and the 
 Idaho Imp. Co. v. Bradbury, 132 U. S. contract when produced was found 
 509. to describe the land as on the Sabine 
 
 2 Wilbur v. Brown, 3 Den. 356; River only, it was held that there 
 Beckwith v. Griswold, 29 Barb. 294. was no variance, as the petition did 
 
 3 Brown v. Woodworth, 5 Barb. 650. not purport to recite the words of 
 
 4 Fentiman v. Smith, 4 East, 207. the contract and the descriptions did 
 See Hewlins v. Shippam, 5 B. & C. not vary as to the locality of the ac- 
 221 ; 7 D. & R. 783. So an allegation tion. Sublett v. Kerr, 12 Texas, 366. 
 that, by reason of a dam, substances An averment that the plaintiff's mill, 
 brought down the stream were col- alleged to be obstructed, is " on " the 
 lected and corrupted the water, was watercourse does not amount to an 
 held sustained by proof that the in- allegation that he is a riparian owner, 
 jury resulted from the alternate rise which would be at variance with the 
 and fall of the stream, and from the extent of his real ownership. Bristol 
 action of the sun upon the water. Hydraulic Co. v. Boyer, 67 Ind. 236. 
 (Bronson, J., dissenting.) People v. 5 Burdick v. Glasko, 18 Conn. 494. 
 Townsend, 3 Hill (N. Y.), 479. Where See Brickner Woolen Mills Co. v. 
 a petition alleged a contract in writ- Henry, 73 Wis. 229. 
 
 ing respecting lands on the southwest 
 
§ 479.] BEMEDIES AT LAW. 757 
 
 most of the States as well as in England, the statute of amend- 
 ments is so liberal that the distinctions as to variance have be- 
 come unimportant. 1 
 
 §479. Same — Same. — It is settled in both 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. 2 Where the plaintiff 
 declared as a reversioner of lands and buildings, which were 
 injured by the defendant who had the lands adjoining, by erect- 
 ing overhanging walls, it was held that the plaintiff must al- 
 lege specifically 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. 3 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 obstruction 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. 4 So, in case 
 
 1 For the English statute, see L. R. "Where the plaintiff had by descent a 
 10 Gen. Sts. 102 (Judicature Act of share in the reversion of his father's 
 1875; 33 and 39 Vict. ch. 77, Order lands, and had purchased the shares 
 xxvii). As to cross-actions, see Lewis of the other heirs, and the widow held 
 v. Fox, 122 Cal. 244. for life, he brought an action on the 
 
 2 Jackson v. Pesked, 1 M. & S. 234; case for an injury to the land caused 
 Hale v. Oldroyd, 14 M. & W. 789. by stopping a watercourse flowing 
 And see Alston v. Scales, 9 Bing. 3; through it. He declared as "seized 
 Baxter v. Taylor, 4 B. & Ad. 72; and possessed," and there was evi- 
 Metropolitan Association v. Petch, 5 dence that he held as tenant at will. 
 C. B. n. s. 504; Baker v. Sanderson, 3 Shaw, C. J., held that he could main- 
 Pick. 348 ; Noyes v. Stillman, 24 Conn, tain case for the injury and that he 
 15. See Sumner v. Tileston, 7 Pick, had sufficiently set forth his interest 
 198; and Tinsman v. Belvidere E. to recover for the damages to the re- 
 Co., 25 N. J. L. 255. The rule in Jack- version. Ashley v. Ashley, 4 Gray, 
 son v. Pesked is stated and followed 197. In Sumner v. Tileston, 7 Pick, 
 in Davis v. Jewett, 13 N. H. 88, and 198, the declaration was in the same 
 Potts v. Clarke, Spencer (N. J.), 536. form, and the plaintiff recovered for 
 
 3 Jackson v. Pesked, 1 M. & S. 234. present injury. 
 * Baker v. Sanderson, 3 Pick. 348. 
 
758 THE LAW OF WATERS. [Ch. XIL 
 
 of diversion of water from a mill, the lessor cannot claim dam- 
 ages during the continuance of the lease without alleging dim- 
 inution of rents. 1 
 
 § 480. Same — Same. — Where the plaintiff has different in- 
 terests in possession 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. 2 Where the plaintiff declared in case for obstructing 
 a stream and injuring his ferry franchise, and the declaration 
 contained two counts, one by the plaintiff, as in possession, and 
 the other as a reversioner for the injury to his reversionary 
 estate, both counts were held good on general demurrer. 3 
 
 § 481. Same — Allegation and proof of breach. — In an 
 
 action on the case for a nuisance, the injury may be alleged 
 generally without describing the manner in which it was done. 4 
 Thus, in an action for diverting water and impeding naviga- 
 tion, 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." 6 Allegations of nuisance must be such alle- 
 gations of fact as to show the nature of the nuisance on the 
 face of the declaration, or it will be open to demurrer. 6 
 
 1 Moody v. King, 74 Maine, 497. it was questioned whether it would 
 
 2 Baker v. Sanderson, 2 Pick. 348; be good on demurrer. 
 
 Davis v. Jewett, 13 N. H. 88. In * Mersey Nav. Co. v. Douglas, 4 
 
 Ashley v. Ashley, supra, n. 4, and in East, 497. In Tebbutt v. Selby, 6 A, 
 
 Woodbury v. Willis, 50 Maine, 403, & E. 786, 793, Patteson, J., said: "If 
 
 the recovery seems to have included the charge were simply that the use 
 
 damages to the present enjoyment was obstructed, I think that would 
 
 and to the reversion, but no mention not be enough ; such an allegation 
 
 is made of more than one count. might mean an imprisonment, or 
 
 3 Patrick v. Ruffners, 2 Rob. (Va.) any other way of impeding." But 
 309. the common law is undoubtedly as 
 
 4 lChitty PL 406; Com. Dig. Action stated by Lord Ellenborough. See 
 
 on the Case for Disturbance, B (1); Stein v. Ashby, 24 Ala. 521. 
 
 Anon., 3 Leon. 13; Prickman v. 6 2 Saund. PL & Ev. (5th Am. ed.) 
 
 Tripp, Skin. 389. In an anonymous 471; Anon., Ld. Raym. 452. So in 
 
 case, in 1 Ld. Raym. 452, it was held an action against an upper riparian 
 
 that such a general averment of ob- owner for diverting a stream, the 
 
 struction was good after verdict, but plaintiff must allege diminution and 
 
§ 482.] REMEDIES AT LAW. 759 
 
 §482. Same — Same. — 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 substan- 
 tial variance was ground for non-suit. 1 So at the present day, 
 the plaintiff cannot allege one kind of nuisance and prove an- 
 other. 2 "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. 3 So in the de- 
 scription 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 after- 
 wards trodden and fell into the ditch. 4 And a count for 
 diverting water has been held not sustained by proof of pen- 
 ning it back and causing it to overflow the plaintiff's meadow. 5 
 But a count for diverting water and preventing it from run- 
 ning 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. 6 
 
 injury to himself. Burden v. Mobile, Taylor v. Keeler, 50 Conn. 346; 51 
 
 21 Ala. 309. A complaint alleging Conn. 397; Baumgartner v. Sturgeon 
 
 the wrongful cutting of a ditch and R. B. Co. (Mich.), 79 N. W. Rep. 566. 
 
 the consequent flowage of the plaint- 3 Ellicott v. Lamborne, 2 Md. 131. 
 
 iff' s premises was held good on de- See ante, § 346. 
 
 murrer. It described the injury 4 Fitzsiruruons v. Inglis, 5 Taunt, 
 
 with sufficient certainty, and there 534. In an early case, it was held 
 
 was nothing to show that the flow- that a count for breaking the bank of 
 
 age was by surface-water (which a stream was not sustained by proof 
 
 would not be a cause of action). It of breaking a dam. Biccot v. Ward, 
 
 was not necessary for the plaintiff to Hob. 193. 
 
 deny that the flowage was by sur- 6 Griffiths v. Marson, 6 Price, 1. 
 
 face-water. Ramsdale v. Foote, 55 6 Shears v. Wood, 7 Moore, 345. 
 
 Wis. 557. It is a variance to declare But where the plaintiff declared that 
 
 for the destruction of a natural he was possessed of an adjoining 
 
 watercourse, and to prove at the trial close used as a private road, and that 
 
 ■damages by the flow of surface- the defendant constructed a sewer in 
 
 water. Munkers v. Kansas R. Co., 10 his close, and thereby diverted water 
 
 Mo. 334. See Illinois R. Ce. v. Fehr- from the plaintiff's pond, TindaLC. J., 
 
 inger, 82 111. 129. held that the averment that the de- 
 
 U Chitty PI. 407. fendant's close was used as a road 
 
 2 O'Brien v. St. Paul, 18 Minn. 176; was immaterial and need not be 
 
760 THE LAW OF WATEKS. [Ch. XII. 
 
 § 483. Same — Same. — If there is a defective statement of 
 a valid claim, but the statement renders it necessary to estab- 
 lish 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. 1 Where the complaint was for wrongful diver- 
 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 sufficient, and that there was no material va- 
 riance. 2 But under a declaration for obstructing the natural 
 flow of a stream, " which had theretofore run and flowed," 
 " and of right ought to run and flow freely," no recovery can 
 be had for injuries caused by the improper construction of an 
 authorized dam. 3 
 
 § 484. Same — Same. — 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. 4 
 In an action for flowing the plaintiff's land, where it was al- 
 leged 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 
 
 proved. Dukes v. Gostling, 1 Bing. clows were not sufficiently raised to 
 
 N. C. 588. The Common Law Pro- let off the water, whereby he suffered 
 
 oedure Act of 1852 (15 and 16 Vict, damage, but did not allege that th& 
 
 ch. 76, Schedule B. R. 30) prescribed effect of the works was to raise the- 
 
 the following form for alleging the water higher than it would have been 
 
 right and the breach : " That the if they had not existed. The issue 
 
 plaintiff was possessed of a mill, and on the return and pleadings was 
 
 by reason thereof was entitled to the whether the damage was caused by 
 
 flow of a stream " for working the the navigation and works. It was 
 
 same, and the defendant, by cutting held that, although the allegations 
 
 the bank of the said stream, diverted might have been insufficient on de- 
 
 the water thereof away from the said murrer, the defect was cured by the 
 
 mill." verdict. Delamere v. The Queen, L. R. 
 
 1 1 Saund. 220, note (1) to Stennel v. 2 H. L. 419. 
 
 Hogg; Notes to Saund. 260. So on 2 Stein v. Burden, 29 Ala. 127. 
 
 an application for a mandamus the 3 Wood v. Rice, 24 Mich. 523; Jones 
 
 prosecutor complained that the de- v. Loomis, 19 Mo. App. 234. See Wood 
 
 fendants, as trustees of navigation, v. Etiwanda W. Co., 122 CaL 152. 
 
 had charge of a lock, weir, and clows 4 In Luttrell's Case, 4 Co. Rep. 89 a, 
 
 in a stream near his land, that the it was held that the amount of di- 
 
 water was increased bv rains, and the version was immaterial. 
 
§§ 485, 486.] REMEDIES AT LAW. 761 
 
 open, and thereby caused the injury complained of, it was held 
 that there was no variance. Kedfield, J., in delivering the 
 opinion, said : " He njust 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, he may recover." 1 But, 
 as we have already seen, a variance is now easily corrected 
 under the statutes of amendments. 2 
 
 § 485. Same — Same. — 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 defend- 
 ant's tortious interference with his rights in such water. In 
 Eew York, this rule has not been changed by the adoption of 
 the code. 3 
 
 § 486. Same — Same. — It is a general principle that dam- 
 ages should always be alleged in personal actions. But an 
 action will lie for any infringement of the plaintiff's rights al- 
 though no special damage be caused. 4 It follows that in such 
 cases no special damage need be alleged. 5 And it is equally 
 well settled that general damages such as the law implies from 
 the tort complained of need not be alleged. 6 But if the plaint- 
 
 1 Hutchinson v. Granger, 13 Vt. premises of the plaintiff at unreason- 
 386. So under a count for diverting able times and in unreasonable quan- 
 and preventing water from coming tities; and this amendment was held 
 to a mill, leakage and wastage may proper to be made at the trial after 
 be shown. Wier v. Covell, 29 Conn, a reference to arbitration, award for 
 197. the defendants and appeal by the 
 
 2 See ante, § 478. In Morris v. Mc- plaintiff. 
 
 Namee, 17 Penn. St. 173, the plaintiff 3 Beard v. Yates, 2 Hun, 466. 
 
 was allowed to amend a declaration i Ante, § 401. 
 
 for obstruction and diversion by the < 5 1 Chitty PI. 411. See Pastorius v. 
 
 addition of a clause alleging that the Fisher, 1 Rawle, 27. 
 
 defendant, during the same time, un- 6 Richards v. Hill, 1 Ld. Raym. 102j 
 
 lawfully discharged the water of the Hutchinson v. Granger, 13 Vt. 386. 
 
 stream, so that it came upon the 
 
JT62 THE LAW OF WATERS. [Ch. XII. 
 
 iff claims any special damages, it is necessary to allege them 
 with sufficient definiteness to inform the defendant of the 
 nature of his claim. 1 The loss of rents occasioned by a nui- 
 sance is a special damage, and cannot be proved unless spe- 
 cially alleged. 2 
 
 § 487. Same — Same. — At common law the plaintiff might 
 set forth his cause of action in several counts, with substantial 
 variations, so that if he failed on one, he might succeed on an- 
 other. 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 sub- 
 ject is stated at length in the books on procedure; but a dis- 
 cussion of it here would be foreign to our purpose. 3 
 
 § 488. Same — Defences and pleas. — 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 plaint- 
 iff's claim. 4 This was an extension of the scope of the plea 
 which on principle should have been confined to a traverse or 
 denial of the/acts alleged in the declaration. 5 But under this 
 
 1 1 Chitty PI. 411; Solms v. Lias, 16 tions on this subject, but there are 
 
 Abb. Pr. 311; Moline W. P. Co. v. many others in which the causes of 
 
 Waters, 10 Brad. (111.) 159. complaint and the resulting inju- 
 
 2 Parker v. Lowell, 11 Gray, 358; ries may be infinitely diversified." 
 Plimpton v. Gardiner, 64 Maine, 360; Under the N. Y. Code of Civil Pro- 
 Potter v. Froment, 47 Cal. 165. cedure it was held on demurrer, in 
 
 'See 1 Chitty PI. (16th ed.) 424. an action against a railroad com- 
 Woolrych (p. 398) says: "Other pany, improper to unite two causes 
 counts varying the matters charged of action, one for damages for an 
 against the defendant are commonly erection by the defendant on its 
 introduced. For example, there may land, being an injury to real prop- 
 be one alleging a general diversion erty, the other for breach of duty in 
 of the water without showing the refusing to erect and maintain a 
 means; another for widening cuts farm crossing, this being "upon con- 
 fro m the stream, etc. ; and a count tract." Thomas v. Utica E. Co., 97 
 for not keeping the banks of the N. Y. 245.* 
 
 river in repair is said to be proper in * 1 Chitty PI. (2d Am. ed.) 486; (12th 
 
 order to avoid a risk, namely, of not Am. ed.) 491 ; 1 Tidd Pr. (3d Am. ed.) 
 
 being able to show that the defend- 651; 3 Dane Abr. 56. 
 
 aut made the cuts or channels stated 5 Stephen, PL 177. And see Met- 
 
 in the first count. The above may calf's note, Yelv. 1476, n. 1. Lord 
 
 suffice as an example of the declara- Mansfield assigns as a reason for this 
 
§ 488.] 
 
 REMEDIES AT LAW. 
 
 703 
 
 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 juris- 
 dictions retaining the common-law rules in their completeness, 
 this -is still the law. 1 So where the defendant pleaded to a 
 declaration for diversion, that the stream sprung from his 
 ground, and that he had a prescriptive right to fill certain pits 
 therefrom, which becqming filled up, he had dug others in- 
 stead, which he had filled from the stream, and denied divert- 
 ing any water, except in this way, the plea was held bad, as 
 amounting to the general issue. 2 
 
 extension, that the action on the case 
 is " in the nature of a bill in equity," 
 " because the plaintiff must recover 
 upon the justice and conscience of 
 his case." Bird v. Randall, 3 Bur. 
 1353. And this is repeated in the 
 books. 
 
 1 Plowman v. Foster, 6 Coldw. 52; 
 Puterbaugh's Practice (111.), 1890, 489; 
 Fisher v. Paff, 11 Penn. Sup'r Ct. 401. 
 
 2 Brown v. 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. E. g., in an action on the case 
 for a nuisance to the occupation of 
 a house by carrying on an offensive 
 trade, the plea of not guilty will op- 
 erate 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 plaint- 
 iff'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 same point, 
 was substantially the same as this. 
 See 17 ' Jur. Part II., 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 
 diverted "the said stream," it was 
 held that, under these rules, the word 
 wrongfully did not put the title in 
 issue. Frankum v. Falmouth, 2 A. & 
 E. 452. To same effect see Blood v. 
 Keller, 11 Ir. C. L. (1860) 132. In 
 Dukes v. Gostling, 1 Bing. N. C. 588; 
 1 Scott, 570; 3 Dowl. 619, in an action 
 for diverting water from the plaint- 
 iff'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 
 cesspool, and that the water was 
 thereby contaminated. Norton v. 
 Scholefleld, per Parke, B., 9 M. & W. 
 665; s. c. 1 DowL n. s. 638. Where 
 
764: THE LAW OF WATEKS. [Ch. XII. 
 
 § 489. Same — Same.— In New York it is held that a gen- 
 eral denial^ pleaded in an action for the wrongful diversion of 
 water, does not draw in question the title to the premises. 1 
 But in an action of trespass, on appeal from a justice's court, 
 for removing gates from a raceway, it was held that the de- 
 fendant 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 justice's jurisdiction. 2 Where trespass is brought for 
 flowage, if the defendant relies on a license, it must be pleaded 
 specially, and cannot be proved under the general issue ; but 
 it is sufficiently pleaded, if the facts constituting the license are 
 averred. 3 A plea of license to divert does not draw in question 
 the title to the premises. 4 
 
 § 490. Same — Same. — In trespass a prescriptive right to 
 a watercourse, or in respect of any use of waters, must be 
 pleaded specially; 5 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 immemorially all the an- 
 cestors of the party so seized were entitled to, and from time 
 to time actually exercised the right; and the title was required 
 to be pleaded with exactness. 6 
 
 a local company was authorized to tice's court, it was held that the ques- 
 
 enter on lands and sink wells to ob- tion where a stream ought to run 
 
 tain a supply of water for a town, (in trespass for entry to abate a nui- 
 
 not depriving the occupiers of the , sance and restore a diverted stream 
 
 lands of water for their own neces- to its channel) did not involve title, 
 
 sary uses, and such company com- Bowyer v. Schofield, 1 Abbott, N. Y. 
 
 plained against an occupier for di- Ct. of Ap. 177; s. c. 2 Keyes, 628. 
 
 version, the court {per Parke, B.) But the question whether one party 
 
 held that under the plea of not has a prescriptive right to use a well 
 
 guilty, and a plea denying the plaint- on the premises of another involves 
 
 iffs' right, the defendant might make title. Gage v. Hill, 43 Barb. 43. 
 the defence that within twenty years 3 Lockhart v. Geir, 54 Wis. 133. As 
 
 after the discovery of the spring by to pleas in abatement, see North 
 
 the plaintiffs, he had sunk a well, Powder Milling Co. v. Coughanour 
 
 and used the water in a manner and (Oregon), 54 Pac. Rep. 223. 
 for purposes not prohibited by the i Eathbone v. McConnell, 21 N. Y. 
 
 act. South Shields W. W. Co. v. 466. 
 Cookson, 15 L. J. Ex. 315. 5 1 Chitty PI. (16th ed.) 541. 
 
 1 Rathbone v. McConnell, 21 N. Y. 6 Ibid. And see Gale on Easements 
 466. (5th ed.), 677; 1 Wms. Saund. 346»; 1 
 
 2 O'Donnell v. Brown, 3 Lans. 474. Notes to Saund. 624. By the Pre- 
 In another case, appealed from a jus- scription Act, 2 & 3 Win. 4, ch. 71, it 
 
491.J 
 
 REMEDIES AT LAW. 
 
 165 
 
 §491. Same — Same. — A prescription cannot be pleaded 
 against a prescription 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 prescrip- 
 tion to maintain a ditch on his land. 1 A plea of prescriptive 
 right in respect of a mill, to use the water of a canal for gen- 
 erating steam and supplying a cistern, was held divisible where 
 the evidence supported the right for the former purpose, but 
 not for the latter. 2 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. 3 "Where the defend- 
 ant relies on an easement, the plaintiff may defeat it by show- 
 ing that the defendant held the estates by unity of possession 
 without a special replication to that effect. 4 
 
 ■was provided that it shall be suffi- 
 cient to allege the enjoyment of such 
 rights as of right, by the occupiers 
 of the tenement in respect of which 
 it is claimed, for the required periods, 
 without setting out the title of the 
 fee. 
 
 1 Murgatroyd v. Law, Carthew, 116. 
 The Hilary Rules (4 WilL 4, 1834) 
 provided that in all actions in which 
 a right of way or other similar right 
 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. 
 
 2 Rochdale Canal Co. v. Radcliffe, 
 18 Q. B. 287. 
 
 8 Drewett v. Sheard, 7 C. & P. 465. 
 
 * Clay v. Thackrah, 9 C. & P. 47, 
 where easement of way was claimed ; 
 Only v. Gardiner, 4 M. & W. 496. For 
 a form of pleas denying the plaintiff's 
 right to the water, see Thomas v. 
 Thomas, 2 Cr. M. & R. 37. For form 
 of plea of immemorial right at com- 
 mon law to discharge water from a 
 tan-yard into a stream, see Moore v. 
 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. 
 Lovering, 1 H. & N. 784; s. c. 26 L. 
 J. Ex. 251. Under the Prescription 
 Act (2 & 3 WilL 4, ch. 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- 
 
7GQ 
 
 THE LAW OF M r ATEKS. 
 
 [CH. XIL 
 
 §492. Evidence.— 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 al- 
 leged, and in respect of which he has brought suit. The sub- 
 ject of variance has been already considered under the subject 
 of pleading. 1 As the defendant may defeat the action by prov- 
 ing a right in himself, the same rules will apply to evidence of 
 right in either party. 
 
 §493. Same. — Evidence of a similar injury to other per- 
 sons 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. Where the injury was caused by re- 
 moving 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. 2 So evidence showing the effect of re- 
 
 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, 6 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. 83. For other 
 forms of pleas, see 2 Chitty PI. (16th 
 ed.) 733. By the Supreme Court of 
 Judicature Act of 1873, 36 & 37 Vict, 
 ch. 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. ch. 77, First Schedule, 
 Order XIX, r. 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 al- 
 leged by the statement of claim, or 
 for a plaintiff in his reply to deny 
 generally the facts alleged in a de- 
 fence by way of counter-claim, but 
 each party must deal specifically with 
 each allegation of fact of which he 
 does not admit the truth" 
 
 1 See ante, % 478. The plaintiff has- 
 a right to support his cause by proof 
 of the facts stated in his declaration, 
 whether they are sufficient in law to- 
 entitle him to recover or not; and 
 this can only be prevented by a de- 
 murrer. So the plaintiffs should be 
 allowed to prove a corruption of a 
 stream as alleged, although it may 
 be shown by the defendants to be no 
 ground for making them liable, if 
 the issue has not been framed so as 
 to render such proof unnecessary. 
 Howell v. McCoy, 3 Rawle, 256. 
 
 2 Hawks v. Charlmont, 110 Mass. 
 110. For applications of the rule to 
 payments for the flowage of other 
 lands, see Tyler v. Mather, 9 Gray, 
 177; Ellis v. Harris, 32 Gratt. 684. 
 Where the plaintiff claimed the 
 whole of the bed of a river running 
 between his land and that of the de- 
 fendant, the plaintiff was allowed to 
 give evidence of acts of ownership 
 by him lower down the stream, 
 where the river flowed between his 
 land and that of a third person which, 
 adjoined the defendant's land; and 
 of repairs done to a fence along the 
 
§§ 494, 495.] EEMEDIES AT LAW. 767 
 
 moving other dams on other rivers is inadmissible upon the 
 issue whether land was injured by maintaining a certain dam.* 
 
 § 494. Same. — Damage need not be shown where the in- 
 jury is to a private right, 2 but must be for injuries to an indi- 
 vidual by a public nuisance ; 3 and we have considered the time 
 to which damages should be computed. 4 Evidence of special 
 damage 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 plaintiff's 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. 6 
 
 § 495. Same. — The rule excluding evidence of opinion is 
 applied to matters of damage. Expert testimony involving 
 special knowledge is usually competent to shew the effect of 
 erecting a dam upon the channel of the stream and in causing 
 backwater. 7 But opinions of witnesses as to the amount of 
 damages caused by the deprivation or withdrawal of water 
 from a tavern, 8 or in an action for flowage, as to the amount 
 of damage sustained, have been held inadmissible. 9 Matters 
 
 river bank, dividing the third per- v. Attrill, 118 N. Y. 365. See Omaha. 
 
 son's land from the river, which was R. Co. v. Brown, 16 Neb. 161. 
 
 in continuation of a fence dividing ' l Ante, § 401. 
 
 the defendant's land from the river. 3 Ante,, § 122. 
 
 Jones v. Williams, 2 M. & W. 326. *Ante, § 411. 
 
 Injuries to the plaintiff by his own SEUicott v. Lamborne, 2 Md. 131;. 
 dam cannot be shown in bar or miti- McTavish v. Carroll, 13 Md. 429; 
 gation. The doctrine of contribu- Solms v. Lias, 16 Abb. Pr. 311. 
 tory negligence does not apply. 6 Concord R Co. v. Greely, 23 N. H. 
 Clarke v. French, 122 Mass. 419; 237. So where the defendant has cut 
 Brown v. Dean, 123 Mass. 254. So away the portion of the plaintiff's- 
 the plaintiff is entitled to free navi- land abutting upon a lake, and made- 
 gation though he himself obstructs it liable to be washed away, the plaint- 
 the stream. Such obstruction can- iff may recover the cost of a retain- 
 not be shown in bar. Olsen v. Mer- ing wall. Thompson v. Milwaukee 
 rill, 42 Wis. 203. Ry. Co., 27 Wis. 93; Price v. Milwau- 
 
 iLynn v. Thomson, 17 S. C. 129. kee Ry. Co., 27 id. 98. 
 
 So of another judgment between an- 7 Ball v. Hardesty, 38 Kansas, 540;. 
 
 other plaintiff and the same defend- Butterfield v. Gilchrist, 63 Mich. 155.. 
 
 ant for a similar injury at about the 8 Harger v. Edmonds, 4 Barb. 256; 
 
 same time. Burdick v. Norwich, 49 Winter v. Fulstone, 20 Nev. 260. 
 
 'Conn. 225. So also as to the value of 9 Sinclair v. Roush, 14 Ind. 450. See- 
 
 other seaside property. Huntington White v. East Lake Land Co., 96 Ga. 
 
768 THE LAW OF WATEBS. [Ch. XII. 
 
 which do not require scientific attainments or unusual skill, 
 such as the capacity of a ditch to carry water, may be estab- 
 lished by competent testimony and opinions others than those 
 of persons who are strictly experts. 1 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 in- 
 jured 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. 2 If the finding of damages by the 
 jury is excessive, it is ground for allowing a new trial. 3 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. 4 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 ac- 
 counted for by other alterations in the dam. 5 
 
 §496. Same. — The evidence for the defendant may of 
 course be either in rebuttal of the plaintiff's case, or in sup- 
 port of his own. If he relies on a license, it may be proved 
 by parol. 6 A parol license to erect a mill-dam, by which the 
 lands above will be covered with water when executed, has 
 
 415; Darling v. Thompson, 108 Mich, son, 45 Kansas, 189; Byreu Minneap- 
 
 215; Brown v. Swanton, 69 Vt. 53; oils Ry. Co., 29 Minn. 200; Couch v. 
 
 Nebraska Land Co. v. Bums, 10 S. Charlotte R Co., 22 S. C. 557; Spear 
 
 D. 430; Ethridgeu. San Antonio, etc. v. Drainage Com'rs, 113 EL 632; 
 
 Ry. Co. (Tex. Civ. App.), 39 S. W. Wight F. P. Co. v. Poczekai, 130 id. 
 
 Rep. 204 139; Brown v. Doubleday, 61 Vt. 523; 
 
 1 Frey v. Lowden, 70 Cal. 550. See, Thompson v. Penn. R. Co., 51 N. J. L. 
 
 also, Stead v. Worcester, 150 Mass. 42; Burwell v. Sneed, 104 N. C. 118. 
 
 241; Smith v. Sabine, 76 Texas, 63; 2 Shepherd v. WiUis, 19 Ohio, 142. 
 
 Van Wicklyn v. Brooklyn, 118 N. Y. 3 A finding of £3,000 for the diver- 
 
 424; 41 Hun, 418; Covert v. Brook- sion of a stream was held excessive 
 
 lyn, 39 N. Y. S. 744; Lee v. Spring- by the court of King's Bench on cer- 
 
 field W. Co., 176 Penn. St. 223; Lewis tain facts, and a new trial ordered. 
 
 v. Springfield W. Co., id. 230; Weide- Pleydell v. Dorchester, 7 T. R. 529. 
 
 kind v. Tuolumne County W. Co., 83 4 So ruled in a flo wage case. Hodges 
 
 Cal. 198; Yost v. Conroy, 92 Ind. 464; v. Hodges, 5 Met. 205. 
 
 Gulf, etc. Ry. Co. v. Locker, 78 Texas, s Morris Canal and Banking Co. v. 
 
 279: Moore v. Chicago, etc. Ry. Co., Seward, 3 Zab. 219. 
 
 78 Wis. 120; Chicago R. Co. v. Donel- <s Addison v. Hack, 2 Gill, 221. 
 
§ 497.] 
 
 KEMEDIES AT LAW. 
 
 769 
 
 been held binding on all subsequent purchasers of the lands 
 affected. 1 
 
 § 497. Same. — Under a denial of the injurious consequences 
 of the act complained of, the defendant may show that the 
 yolume of the stream has not been diminished or its quality 
 changed. 2 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 say 
 whether the same quantity of water continued to run in the 
 river, as if none of its water had entered the premises of the 
 defendant; telling them, that if they were of that opinion, 
 they should find a verdict for the defendant." 3 But the de- 
 
 1 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, 
 whereby less water flowed to the 
 plaintiff's mill than before, which 
 proving injurious, the father had, 
 after a lapse of five years, requested 
 them to restore the banks to the for- 
 mer level, it was held that no action 
 could be maintained against the de- 
 fendants for continuing the weir, 
 Tindal, C. J., said: "It is a license to 
 do something that, in its own nature, 
 seems intended to be permanent and 
 continuing. And it was the fault of 
 the party himself, if he meant to re- 
 serve the power of revoking such a 
 license after it was carried into ef- 
 fect, that he did not expressly re- 
 serve 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 after- 
 wards 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 purchaser 
 whose land, was flowed under an 
 49 
 
 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 flow- 
 ing the land was liable for such dam- 
 ages to the present owner. The Mill 
 Act there gave annual damages for 
 flowage, recoverable by successive 
 actions. 
 
 2 Embrey v. Owen, 6 Exch. 353. 
 
 3 Dakin v. Cornish, stated by Al- 
 derson, B., in Embrey v. Owen, 6 
 Exch. 360. So in Elliot v. Fitchburg 
 R. Co., 10 Cush. 191 (a case for diver- 
 sion), the defendants offered evidence 
 tending to prove that one Clark, 
 under whom they claimed, had cut 
 ditches through his meadow, which 
 was wet and spongy, to the brook, 
 thereby increasing the flow of water 
 to the brook; and it was further 
 proved that there was no outlet for 
 the water of the meadow, except into 
 the brook below the dam complained 
 of. Metcalf, J., instructed the jury 
 that if, by these ditches, the flow of 
 water was increased equal to the 
 quantity taken out by the defendants, 
 
770 THE LAW OF WATERS. [Ch. XIL. 
 
 fendant cannot show in mitigation of damages that the act com- 
 plained 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, 1 and is not bound to* 
 exchange one right for another. 2 "Where prospective damages 
 are allowed, the defendant may show in mitigation that struct- 
 ures erected, or causes set in operation since the suit began, 
 will prevent future injury. So it may be shown that a cause- 
 way erected since the suit began will prevent the continuance 
 of flowage. 3 
 
 § 498. Same. — 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 interest 
 accrued. 4 The enlargement, after the plaintiff received injury, 
 of a passage-way for water, alleged to have been too small, is 
 admissible in evidence as an admission. 5 But such evidence is 
 to be received guardedly, for if the injury is caused by a storm 
 of unprecedented violence, this fact is not relevant as an ad- 
 mission, if the repairs were made out of abundant caution. 6 
 
 § 499. Same. — Evidence as to the nature of the injury 
 must, as we have seen, correspond with the allegation. In prov- 
 ing 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 
 
 then the defendants were not liable 1 Tourtellot v. Phelps, 4 Gray, 370, 
 
 on appeal. Shaw, C. J., said: "The 374. 
 
 question was not if the defendants 2 Webb v. Portland Manuf, Co., 3- 
 
 had caused a damage to the plaintiff, Sumner, 189, 202; Gerrish v. New 
 
 amounting in law to a disturbance of Market Manuf. Co., 30 N. H. 478, 
 
 his right, for which an action would 484, 5; Tillotson v. Smith, 32 N. H. 
 
 ie, whether it would be barred by an 90, 96. But see Addison v. Hack, 3 
 
 advantage of equal value, conferred Gill, 221, where it is said that the de- 
 
 in nature of a set-off; but whether fendant may show a diversion to be 
 
 by the improvements of Clark upon a benefit. 
 
 his meadow, taken together as a 3 Tyler v. Mather, 9 Gray, 177. 
 
 whole,including the dam and ditches 4 Ibid. 
 
 as parts of one and the same im- 5 St. Louis Ey. Co. v. Weaver, 35 
 
 provement, any damage was done to Kansas, 412. 
 
 the plaintiff; and this, we think, was 6 Ely v. St. Louis Ry. Co., 77 Mo. 34 
 correctly so left." 
 
§§ 500, 501.J REMEDIES AT LAW. 771 
 
 owner that a certain stone marked the height of the defend- 
 ant's right to flow. 1 In order to charge the defendant for an 
 injury done, it is sufficient to show that it was done by his 
 authority, or that he continues it. 2 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 plaint- 
 iffs to show that the banks were at the time of the damage in 
 such a state as the Act of Parliament required. 3 In trespass 
 for entering a close covered with water, and taking fish there- 
 from, it is held that the ownership of the soil is prima facie 
 evidence of ownership of the fish. 4 
 
 § 500. Same. — "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. 5 , Evidence is admissible of a user for more than the re- 
 quired time, 6 and also of a user for less than such time, and even 
 of an interrupted use. 7 
 
 § 501. Same. — The claim of a prescriptive right may be 
 defeated by showing it to be under a grant from a temporary 
 occupant, as from the vicar of a parish, who has no power to 
 bind his successor; 8 or the user may be shown to be permissive, 
 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. 9 
 
 1 Tyler v. Mather, 9 Gray, 177. See Gilman v. Tilton, 5 N. H. 231. Lord 
 on amendments, ante, § 478. Ellenborough, C. J., said: "I take it 
 
 2 Penruddock's case, 5 Co. 100. And that twenty years' exclusive enjoy- 
 see Greenl. Evid., § 472. ment of the water in any particular 
 
 'Stafford Canal Co. v. Hallen, 6 B. manner affords a conclusive pre- 
 
 & C. 317. But see Eex v. Trafford, 1 sumption of right in the party so 
 
 B. & Ad. 874; 3 Starkie Evid. (7th enjoying it, derived from grant or 
 
 Am. ed.), 1252. Act of Parliament. But less than 
 
 4 Waters v. Lilley, 4 Pick. 145. twenty years' enjoyment may or may 
 
 5 Ante, § 329. For the Prescription not afford such a presumption, ac- 
 Act in England, see 2 & 3 Will. 4, cording as it is attended with circum- 
 ch. 71. stances to support or rebut the right." 
 
 6 Lawson v. Langley, 4 A. & E. 890 8 Wall v. Nixon, 3 Smith, 316. 
 
 (a case of way). 9 Wakeman v. West, 8 C. & P. 105; 
 
 'Bealey v. Shaw, 6 East, 208, 215; ante, ch. 11. 
 
772 THE LAW OF WATERS. [Ch. XII. 
 
 § 502. Same. — "When a prescriptive right is made out; and 
 the opposing party seeks to show a limitation of the right, he 
 has the burden of proof, 1 but may establish the limitation by 
 the same kind of evidence, as of user, as that by which the 
 right itself may be proved. 2 But where a proprietor on one 
 shore appropriates so much of the passing water as he is en- 
 abled to control, even the whole of it, by means of structures 
 on his own estate, he can thereby gain no prescriptive right to 
 appropriate more than one-half the same, so long as the oppo- 
 site proprietor neither uses nor seeks to use any part of the 
 stream to which he is entitled. 3 
 
 § 503. Same. — 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. 4 An alleged 
 easement 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. 5 , 
 
 § 504. Former judgment. — A former judgment on the ques- 
 tion of right involved will, if pleaded, be conclusive of the 
 rights of the parties or those claiming through or under them. 6 
 This was the rule originally, and it was held with great strict- 
 ness that 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 mat- 
 ter 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." 7 So it was held 
 
 1 Bliss v. Rice, 17 Pick. 23, 33, 34. Evelyn v. Haynes,.per Ld. Mansfield, 
 
 2 Burnham v. Kempton, 44 N. H. 78. C. J., cited per Lord Ellenborough, in 
 
 3 Pratt v. Lamson, 2 Allen, 275, 288. Outram v. Morewood, 3 East, 365. 
 
 4 Tyler v. Mather, 9 Gray, 177. See 7 Vooght v. Winch, 2 B. & Aid. 662, 
 Hewitt v. San Jacinto Ir. District criticising Lord Mansfield's opinion 
 (126 Cal.), 56 Pac. Rep. 893. in Bird v. Randall, 3 Burr. 1353, that 
 
 5 Clay v. Thackrah, 9 C. & P. 47. in an action on the case a judgment 
 
 6 Vooght v. Winch, 2 B. & Aid. 662; given in evidence is conclusive. 
 
§ 504.] 
 
 EEMEDIES AT LAW. 
 
 77E 
 
 that a judgment in an action on the case, disaffirming an ex- 
 clusive right to a river, is strong evidence in another action 
 trying the same right, but not conclusive. 1 Where the party- 
 is not allowed or required to plead specially, the judgment is 
 allowed its full force in estoppel, when given in evidence ; 2 
 and it is now held by several authorities that it will be equally 
 conclusive in all cases, whether pleaded or given in evidence.* 
 
 1 Miles v. Rose, 5 Taunt. 705. In 
 case for diversion, it was held that 
 where a question of right has been 
 tried in an action on the case, the 
 record of that trial is evidence in a 
 second action against the same de- 
 fendant, though there are other de- 
 fendants, if they all claim under him. 
 Strutt v. Bovingdon, 5 Esp. 56. To 
 the same effect, see Blakemore v. 
 Glamorganshire Canal Co., 1 Gale, 78; 
 3 Younge & J. 60. 
 
 2 Kilheffer v. Herr, 17 S. & R 319. 
 See Clink v. Thurston, 47 CaL 31; 
 Gans v. St. Paul Ins. Co., 43 Wis. 108. 
 
 » In 1 Greenl. Evid. § 531, it is said: 
 "Notwithstanding there are many 
 respectable 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 Kilheffer v. Herr (opinion of 
 Huston, J.) is cited in support. For 
 a further discussion of the question 
 supporting the wider rule, see Bige- 
 low on Estoppel (3d ed.), 583. And for 
 a discussion of Vooght v. Winch, 2 B. 
 & Aid. 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 v. Oli- 
 ver, and Duchess of Kingston's Case 
 (7th ed. 628-9). The reason for the 
 rule in Vooght v. 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 pleadings, re- 
 covery cannot be specially pleaded, it 
 shall still be an estoppel, is a clear ex- 
 ception 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 stat- 
 ute, see Howard v. Mitchell, 14 Mass. 
 241; Adams v. Barnes, 17 Mass. 365; 
 Bartholomew v. Candee, 14 Pick. 167; 
 Sprague v. Waite, 19 Pick. 455. In 
 Pennsylvania, the common-law rule 
 seems to be in force where there is an 
 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 
 limitations, and offered in evidence 
 the record of a former trial between 
 the same parties on the same pleas, 
 and the court held that the judg. 
 ment would not be conclusive unless 
 pleaded. Kilheffer v. Herr, 17 S. & 
 R. 319. This seems to be the decision 
 in that case. It is so stated in the 
 head-note, and so treated in subse- 
 quent cases. Marsh v. Pier, 4 Rawle, 
 273; Kerr v. Chess, 7 Watts, 367; 
 Man v. Drexel, 2 Penn. St. 202. It is 
 cited as an authority for the rule 
 that the judgment is equally con- 
 clusive, though not pleaded, in Wal- 
 ton v. Dickerson, 7 Penn. St. 376. 
 But the court said {per Rogers, J.) : 
 " These principles apply only where 
 
774 
 
 THE LAW OF WATERS. 
 
 [Ch. XII. 
 
 § 505. Same. — If , the plaintiff recovers judgment for the 
 erection of a nuisance, and brings a second action for its con- 
 tinuance, 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, where 
 the plaintiff so averred the former recovery, the court said : " In 
 an issue on a declaration or plea founded on a former judg- 
 ment, the only proper subject to be submitted to the jury is 
 whether or not the matter in dispute in the present action is 
 the same that was litigated in the former one. With this fact 
 found the court must decide upon the effect of the former judg- 
 ment." x In an action for the continuance of a nuisance, by 
 maintaining a dam which overflowed the plaintiff's mill and 
 
 special pleading is required, for I 
 grant that where the parties are not 
 bound to plead or reply specially, the 
 record of a former recovery is con- 
 clusive evidence, binding the plaint- 
 iff, the court, and the jury, as in 
 actions of assumpsit and debt." (Re- 
 lying 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 de- 
 fences 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 held 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 unquestioned. 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 v. Elliot, 9 
 Penn. St. 345, the action was on the 
 case for diverting water from the 
 
 plaintiff's mill The defendant 
 pleaded the general issue, and in- 
 sisted that a former judgment, of- 
 fered in evidence, was conclusive. 
 Rogers, J., again delivered the opin- 
 ion. He followed Vooght v. Winch 
 (2 B. & Aid. 662, see supra), and held 
 that the judgment, while admissible, 
 was not conclusive, and again con- 
 strued Kilheffer v. Herr as in accord. 
 1 Rockwell v. Langley, 19 Penn. St. 
 502. See Myton v. Wilson, 11 Penn. 
 .Supr. Ct. 645. In Heller v. Pine, 8 
 Blackf. 175, the Supreme Court of In- 
 diana held the same way. The action 
 was case for obstructing a water- 
 course to the injury of the plaintiff's 
 mill. The defendant pleaded the gen- 
 eral issue. The plaintiff offered in 
 evidence the record of a former cause 
 for an injury to the same mill, by the 
 same obstruction,and asked the court 
 to instruct the jury that it was con- 
 clusive as to all matters put in issue 
 at the former trial. But it was held 
 that the record, though strong evi- 
 dence for the plaintiff, could not act 
 as an estoppel. See Morgan v. Burr, 
 58N.H.470; Fiskv. Hartford,70 Conn. 
 720; Lillis v. Emigrant Ditch Co., 95 
 Cal. 553. 
 
§ 505.] EEMEDIES AT LAW. 775 
 
 ■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 defend- 
 ant might contradict it by other evidence. 1 A former recovery 
 by one tenant in common for a nuisance to the joint possession 
 is admissible in evidence in a subsequent action brought by both 
 for a .continuance of the nuisance. 2 
 
 iHaak v. Breidenbach, 6 Binney, this case. See Fullerton v. Pool 
 12; 3 S. & R. S04 The doctrine of (Wyom.), 59 Pac. Rep. 481. 
 res adjudieata was not considered in 2 Fell v. Bennett, 110 Penn. St. 181. 
 
CHAPTER XIII. 
 
 EQUITABLE REMEDIES. 
 SECTION. 
 
 506, 507. By injunction — "Without first establishing the 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. 
 
 534r-537. Injunctions against obstruction or diversion of waters. 
 
 538, 539. Ibid. — Where the rights are fixed by contract or otherwise. 
 
 540. Regulation of common rights in equity. 
 
 541. Injunctions in cases of nuisances from stagnant water. 
 
 542. Ibid. — Not granted to protect subterranean percolations. 
 
 543. Ibid. — To protect prior appropriations in mining districts. 
 544-546. Ibid. — To restrain pollutions. 
 
 547. Ibid. — Impediments to navigation and rights of access. 
 
 548, 549. Ibid. — In other instances of injuries affecting waters. 
 
 550, 551. Practice as to granting injunctions. 
 
 552-554. Form of injunction. 
 
 555-557. Command to abate. 
 
 558-561. Difficulty in framing or fulfilling order, effect 
 
 562-568. Bills of peaca 
 
 569-578. Specific performanca 
 
 § 506. Injunctions — Establishing right at law. — Nui- 
 sances 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. 1 It 
 is an extraordinary remedy, and granted only where the plaint- 
 iff's right and his danger, of suffering such an injury are clear. 
 If the thing complained of is not itself a nuisance, or the mis- 
 chief irreparable and capable of compensation in damages, 
 there must first be a judgment at law establishing the exist- 
 ence of the nuisance and measuring the damages. 2 But it is. 
 
 1 Pine v. New York, 76 Fed. Rep. 2 Kennerty v. Etiwan Phosphate 
 
 418; Bartlett v. Moyers, 88 Md. 715; Co., 17 S. C. 411; Outcalt v. George 
 
 Crescent M. Co. v. Silver King M. Co., W. Helme Co., 42 N. J. Eq. 665 ; W. H. 
 
 17 Utah, 444. Howell Co. v. Charles Pope Glucose 
 
§ 507.] EQUITABLE KEMEDIES. 777 
 
 not indispensable that the plaintiff should establish his title at 
 law before coming into equity; for, if the plaintiff's right had 
 never been drawn in question, he would be put to delay in es- 
 tablishing it at law, and meanwhile the injury threatened might 
 become complete, and the purpose for. which equity takes ju- 
 risdiction defeated. 1 
 
 §507. Same — Same.— In Bush .v. "Western, 2 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 Gardiner 
 v. Eewburgh, 3 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., 4 it is said : " "Where the complainant 
 seeks protection in the enjoyment of a natural watercourse 
 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 injunc- 
 
 Co., 171 111. 350; 61 111. App. 593; Pe- v. Hayes, 150 111. 273; Learned v. 
 ters v. Hansen, 55 Mich. 276; Mo- Hunt, 63 Miss. 373; Lyon v.. Ross, Z 
 Clain's Appeal, 130 Penn. St. 546. Bibb (Ky.), 466. Originally the rule 
 1 Finch v. Resbridger, 2 Vera. 390; undoubtedly was that the plaintiff 
 Ripon v. Hobart, 3 Myl. & K. 169; must, in every case, first establish 
 Dewhirst v. Wrigley, 1 Cooper Prac. his right at law. In Weller v. Smea- 
 Cas. 319; Beaufort v. Morris, 6 Hare, ton, 1 Cox, 102; 1 Bro. C. C. 572 (1784),. 
 340; Goodson v. Richardson, L. R. 9 Lord Thurlow said that in no in- 
 Ch. 221. See St. 25 and 26 Vict. ch. stance, except that of Bush v. West- 
 42, § 4; Seneca "Woolen Mills v. Till- em (1720), had equity ever interposed 
 man, 2 Barb. Ch. 9; Reid v. Gifford, in a mere question of right between 
 Hopk. Ch. (N. Y.) 416; Mohawk A. and B. See also Welby v. Rut- 
 Bridge Co. v. Utica & S. R. Co., 6 land, 2 Bro. P. C. (Tomlin's ed.), 39; 
 Paige, 554; Carlisle v. Cooper, 21 N. Lond v. Murray, 17 L. T. 248. Under 
 J. Eq. 576; Denton v. Leddell, 23 id. the Massachusetts statute it is not 
 64; Sprague v. Rhodes, 4 R. I. 301; necessary, where the legal right is not 
 Att. Gen. v. Hunter, 1 Dev. Eq. 12; clear, that the plaintiff should first 
 Burden v. Stein, 27 Ala. 104; Switzer establish it at law, if in other re- 
 v. McCullough, 76 Va. 777; Corning spects he shows a case for proceed- 
 v. Troy Iron Factory, 40 N. Y. 191; ings in equity. Smith v. Smith, 148 
 Eastman v. Amoskeag Manuf. Co., Mass. 1, 5. 
 47 N. H 71; Tuolumne Water Co. v. 2 Prec. in Ch. 530. 
 Chapman, 8 Cal. 392; Lux v. Haggin, 3 2 Johns. Ch. 162. 
 69 CaL 225; Stone v. Roscommon nMcCarter (N. J.), 335,343; San- 
 Lumber Co., 59 Mich. 24; Dwight ford v. Lyon, 37 N. J. Eq. 94 
 
778 THE LAW OF WATERS. [Ch. XIII. 
 
 tion." 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. 1 If it is 
 not clear that the acts of a corporation in obstructing a stream 
 are unauthorized by its charter, that question must, be deter- 
 mined against it by an action at law, before it will be re- 
 strained by injunction. 2 But even, in such case, if an act is 
 threatened which would be an irreparable injury to the rights 
 in question, if established, the court will interfere by an inter- 
 locutory injunction, and preserve the property and rights of 
 the parties in statu quo until the question- of right is deter- 
 mined. 3 Where the alternative is interference or probable 
 destruction of property, the court will be ready to lend its 
 immediate assistance, even at considerable risk that it may be. 
 encroaching on what may eventually turn out to be a legal 
 right of the defendant. 4 
 
 § 508. Same — -Irreparable injury. — By irreparable in- 
 jury, which is the equity of the bill, is meant one for which 
 
 1 Agar v. Regent's Canal Co. (per Morris Canal Co. v. Central R. Co., 
 Lord Eldon), Cooper Chan. Cas. 77; 16 id. 419, 425; Myers v. Allspruce 
 Birmingham Canal Co. v. Lloyd, 18 Meadow Co. (N. J. Eq.), 43 AtL Eep. 
 Ves. 515; Cardiff v. Cardiff Water 1068; Johnson v. Belmar (N. J. Eq.), 
 Works, 4 De Gex & J. 596; Bradbury 44 AtL Rep. 166; Los Angeles v. Los 
 «. Manchester Ry. Co., 15 Jur. 1167: Angeles City W. Co., 124 CaL 368; 
 Van Bergen v. Van Bergen, 3 Johns. Troy v. Norment, 2 Jones Eq. (N. C.) 
 Ch. 282; Seneca Woolen Mills v. Till- 318; Richmond v. Dubuque R Co., 33 
 man, 3 Barb. Ch. 9; Porter u Witham, Iowa, 482; United States v. Duluth, 
 17 Maine, 292; Cummings v. Barrett, 1 Dillon, 469; Ingraham v. Dunnell, 
 10 Cush. 186; Prentiss v. Larnard, 11 5 Met. 118; McCallum v. German- 
 Vt. 135; White v. Forbes, Walk, town Water Co., 54 Penn. St. 40; 
 (Mich.) 112; Heiskellu Gross, 7 Phila. Sprague v. Rhodes, 4 R. L 301, 309; 
 317 ; Bliss v. Kennedy, 43 BL 67 ; Stolp Crenshaw v. Slate River Co., 6 Rand. 
 v. Hoyt, 44 BL 219; Att. Gen. v. Hun- 245; Phillips v. Stocket, 1 T. R. 200; 
 ter, 1 Dev. Eq. 12; Parker v. Win- Binney's Case, 2 Bland Ch. 99; Bliss 
 nipiseogee Lake Co., 2 Black, 545. v. Kennedy, 3 111. 67,_ See 1 High on 
 
 2 Sheboygan v. Sheboygan R. Co., Injunctions (2d ed.), § 8; Kerr on In- 
 21 Wis. 607; Vick v. Rochester, 46 junctions (2d ed.), ch. 3; Great West- 
 Hun, 607 ; Lake Erie <K W. R. Co. v. ern Ry. Co. v. Birmingham Co., 2 
 Fremont, 92 Fed. Rep. 721; McLaren Phila. 597, 603. 
 
 v. Caldwell, 5 Ont. App. 363. * Per Lord Cranworth, in Shrews- 
 
 3 Ripon v. Hobart, 3 Myl. & K. 169, bury & Chester Ry. Co. v. Shrewsbury 
 181, 182; Beaufort v. Morris, 6 Hare, & Birmingham Ry. Co., 1 Sim. N. S. 
 340; Whitchurch v. Hide, 2 Atk. 391; 410; Fulton v. Greacen, 36 N. J. Eq. 
 BuUer v. Society, 12 N. J. Eq. 264; 216, 220. 
 
509.] 
 
 EQUITABLE EEMEDIES. 
 
 779 
 
 there is no adequate remedy at law. 1 In Wood v. Sutcliffe, 
 which was a case for injunction 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. 2 
 
 § 509. Same — Same. — The court is not governed by ques- 
 tions of pecuniary value, but will remedy and prevent an in- 
 jury which it may be reasonably supposed would materially 
 lessen the enjoyment of property by its owner. 3 "Where the 
 damage is inconsiderable, or accurately ascertainable, and ca- 
 pable of adequate compensation at law, equity will not usually 
 interfere, 4 unless the injury resulting from each act is trifling 
 as compared with the expense of prosecuting actions at law. 5 
 
 i Shields v. Arndt, 3 Green Ch. 234: 
 Holsman v. Boiling Spring Co., 1 
 MoCarter, 335; Scudder v. Trenton 
 Delaware Falls, 1 Saxt. (N. J.) 694; 
 Lamborn v. Covington Co., 2 Md. Ch. 
 409; Nicodemus v. Nicodemus, 41 Md. 
 ■529; Coe v. Winnipiseogee Lake Co., 
 37 N. H. 254, 264; Parker v. Win- 
 nipiseogee Lake Co., 2 Black, 545; 
 Legg v. Horn, 45 Conn. 409; Crown 
 v. Leonard, 32 Ga. 241; Wright v. 
 Moore, 38 Ala. 593; Laney v. Jasper, 
 39 111 46; Welton v. Martin, 7 Mo. 
 307; Hoxsie v. Hoxsie, 38 Mich. 77 
 Bettman v. Harness, 42 W. Va. 433 
 Fairhaven Marble Co. v. Adams, 46 
 Vt. 496; Heiskell v. Gross, 7 Phila. 
 317; Mason v. Cotton, 2 McCrary, 82; 
 Schneider v. Brown, 85 CaL 205; 
 Hahn v. Thornberry, 7 Bush, 403. 
 
 2 Wood v. Sutcliff e, 2 Sim. sr. s. 163. 
 
 3 White v. Forbes, Walker (Mich.), 
 112; Troe v. Larson, 84 Iowa, 649; 
 Duesler v. Johnstown, 48 N. Y. S. 683; 
 Clifton Iron Co. v. Dye, 87 Ala. 468; 
 Learned v. Castle, 78 CaL 454. In 
 New York, by statute, interference 
 by equity was formerly limited to 
 injuries amounting to $100, and in 
 case of diversion causing recurring 
 
 damage to cases where the annual 
 injury equalled the interest on $100. 
 Smith i'. Adams, 6 Paige, 435. Under 
 a similar statute in Michigan, it is 
 held that equity will take jurisdic- 
 tion of suits involving land worth in 
 itself less than $100, if the riparian 
 right annexed makes it worth more. 
 Blodgett v. D wight, 38 Mich. 596. See 
 1 Dan. Ch. Prac. (6th Am. ed.), 329?). 
 
 * Wood v. Sutcliffe, 2 Sim. N. s. 163; 
 Att. Gen. v. Gee, L. R. 10 Eq. 131; 
 Lillywhite v Trimmer, 36 L. J. Ch. 
 525; Wing v. Fairhaven, 8 Cush. 363; 
 Tracy v. Le Blanc, 89 Maine, 304; 
 Shreve v. Voorhees, 2 Green Ch. 25; 
 Quackenbush i\ Van Riper, id. 350; 
 Van Winkle v. Curtis, id. 422; Ste- 
 vens v. Ryerson, 2 Hal. Ch. 477; Mor- 
 ris Canal Co. v. Central R. Co., 16 N. J. 
 Eq. 419; Smith v. Adams, 6 Paige, 
 435; Heiskell v. Gross, 7 Phila. 317; 
 Eason v. Perkins, 2 Dev. Eq. 38; Wil- 
 der v. Strickland, 2 Jones Eq. 386; 
 Nicodemus v. Nicodemus, 41 Md. 529; 
 Fox v. Holcomb, 32 Mich. 494; Stone 
 v. Peckham, 12 R I. 27; Thornton v. 
 Grant, 10 id. 477. See Wright v. Tur- 
 ner, 10 Ch. (Can.) 67. 
 
 5 Lembeck v. Nye, 47 Ohio St. 336. 
 
780 THE LAW OF WATERS. [Ch. XIIL 
 
 The recovery of nominal damages at law, establishing a ripa- 
 rian proprietor's legal right, does not necessarily entitle him 
 to an injunction, but the exercise of this jurisdiction is discre- 
 tionary, depending much upon the reality and irreparable 
 nature of the injury complained of, and, when no mala fides 
 is shown, upon the balance of convenience. 1 And even when 
 an injunction is issued, the defendant is only liable in proceed- 
 ings for contempt for acts enjoined or commanded by the 
 decree and such as are within his power to perform. 2 
 
 § 510. Same — Same. — A mere trespass and entry, as for 
 the enlargement of a course for the discharge of water, is not 
 such an injury. 3 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. 4 A diver- 
 sion impairing the plaintiff's use of a stream is such an injury,* 
 and it is said that a disturbance or deprivation of one's riparian 
 right is in itself an irreparable injury. 6 So the habit, continued 
 in the past and threatened as to the future, of discharging 
 freight from a steamboat at a private wharf, against the pro- 
 test of its owner, whose business of sawing, receiving, and de- 
 livering lumber and ties is thereby seriously interfered with, is 
 properly restrained by injunction. 7 The erection of a raceway 
 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. 8 But the overflowing 
 of land, causing the destruction of timber and other damages, 
 has been held not a sufficient injury to justify interference; 9 
 
 1 Graham v. Northern Ey. Co. 10 * Wood v. Sutcliffe, 2 Sim. N. s. 163. 
 Ch. (Can.) 259; William v. Heath, 1 « Dayton v. Eutherford, 128111. 271; 
 L. T. n. s. 267; Lazzell v. Garlow, 44 Carpenter v. Gold, 88 Va. 551. 
 
 W. Va. 466; Williams v. Harter, 121 "Holsman v. Boiling Spring Co., 1 
 
 Cal. 47 ; Wharton v. Stevens, 84 Iowa, McCarter (N. J.), 335; see Bateman 
 
 107; 35 Am. St. Eep. 296, 303 n.; v. Hollinger (N. J. Eq.), 30 AtL Eep. 
 
 Peterson u Santa Eosa, 119 Cal. 387. 1107; Mendenhall v. Harrisburgh W. 
 
 2 Dewey v. Superior Court, 81 CaL Co., 27 Oregon, 38; Caldwell v. East 
 64; Indianapolis W. Co. v. American Broad Top E. Co., 169 Penn. St. 99. 
 S. Co., 75 Fed. Eep. 972; 57 id. 1000. 7 Turner v. Stewart, 78 Mo. 480. 
 
 3 Jerome v. Eoss, 7 Johns. Ch. 315; 8S ou dder v. Trenton Delaware 
 Nicodemus v. Nioodemus, 41 Md. 529. Falls, 1 Saxt. (N. J.) 694. 
 
 See Crown v. Leonard, 32 Ga. 241; ^Lawes v. Turner, 8 T. R 584; Coe- 
 Savannah & O. Canal Co. v. Sub- v. Winnipiseogee Lake Co., 37 N. H. 
 urban, etc. Ey. Co. 93 id. 240. 254, 264; Smith v. King, 61 Conn. 511. 
 
§ 511. J EQUITABLE REMEDIES. 781 
 
 at least, if irreparable injury, or danger of multiplicity of suits, 
 is not shown. 1 Where the diversion of a stream will cause the 
 stoppage of the plaintiff's mill and throw a number of servants 
 out of employment, the injury is plainly irreparable. 2 Depriv- 
 ing 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. 3 
 So the threatened discontinuance of a water supply by a city 
 water-works company, to settle a dispute as to the water rate, 
 is an injury sufficiently irreparable to support an injunction. 4 
 
 §511. Same — Same. — If a statute authorizing the taking 
 of property, or flowage of land, or use of a stream, provides 
 an adequate remedy by special proceeding to parties injured 
 thereby, equity will not take jurisdiction. 5 The mere existence 
 of a legal remedy will not bar equitable jurisdiction where 
 the remedy in equity is more adequate, comprehensive, and 
 effectual. 6 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 
 
 iSee Davis v. Frankenlust Tp., 118 3 Hay ward v. East London W. Co., 
 
 Mich. 494; New York, N. H. & H. R. 28 Ch. D. 138; Gilchrist v. Van Dyke, 
 
 Co. v. Scovill, 71 Conn. 136; 42 L. R. 63 Vt. 75. 
 
 A. 157; mpra, § 210; infra, §§ 520, 540. 4 Legg v. Horn, 45 Conn. 409; Dif- 
 
 2 Wright v. Moore, 38 Ala. 593; fendal v. Virginia M. Ry. Co., 86 Va. 
 
 Proprietors v. Braintree W. S. Co., 149 459. 
 
 Mass. 478; Parry v. Citizens' W. W. » Bull v. VaUey Falls Co.. 8 R. I. 42; 
 
 Co., 13 N. Y. S. 471; Fuller 'v. Swan Spangler's Appeal, 64 Penn. St. 387; 
 
 River Placer M. Co., 12 Cal. 12; Cres- Birmingham Traction Co. v. Birming- 
 
 cent City Mill Co. v. Hayes (Cal.), 11 ham Ry. Co. (Ala.), 24 S. Rep. 368. 
 
 Pac. Rep. 319; Ball v. Kehl, 87 Cal. See Lexington Print Works v. Can- 
 
 505; Walker v. Emerson, 89 Cal 456; ton, 171 Mass. 414; .Davis v. Port 
 
 Shields v. Orr E. D. Co. 23 Nev. 349. Arthur Channel Co., 87 Fed. Rep. 512; 
 
 The remedy for breach of the de- ante, § 250. 
 
 fendant's promise, made at the hear- 'Bemis v. Upham, 13 Pick. 169; 
 ingof a bill for a preliminary injunc- Boston W. P. Co. v. Boston & Wor- 
 tion to restrain him from preventing cester R Co., 16 Pick. 512; Ballou v. 
 the flow of water in a stream, and Hopkinton. 4 Gray, 324; Rockland v. 
 for damages, that if the hearing was Rockland W. Co., 86 Maine, 55; Law- 
 postponed, the water would be per- son v. Menasha Wooden-ware Co., 59 
 mitted to flow during the postpone- Wis. 393 ; Salem Capital F. M. Co. v. 
 ment, is to be sought only in the suit Stayton W. D. Co., 33 Fed. Rep. 146; 
 in equity. Howe v. Salisbury, 145 Dittmar v. New Braunfels (Tex. Civ. 
 Mass. 279. App.), 48 S. AV. Rep. 1114. 
 
782 
 
 THE LAW OF WATERS. 
 
 [Oh. XIII. 
 
 maintained, and perpetually enjoin the nuisance. 1 An injunc- 
 tion 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. 3 But where the defendant is insolvent and 
 unable to respond in damages, this is itself a ground upon, 
 which equity will take jurisdiction, even though the wrong 
 may be indictable, 3 as a recovery at law would necessarily be 
 an adequate remedy ; 4 and in such case, as an incident to the 
 relief by injunction, it will consider and adjust the question of 
 damages. 5 
 
 § 512. Same — Present and prospective injury. — The rem- 
 edy being preventive, past injuries are not in themselves 
 
 1 Bemis v. Upham, 13 Pick. 169. 
 
 2 Warne v. Morris Canal Co., 1 HaL 
 Ch. 410. See Gulf Ry. Co. v. Dun- 
 man (Texas), 11 S. W. Rep. 1094. A 
 lease forever of the " use and occu- 
 pation " of a certain amount of water 
 from a public canal amounts to an 
 absolute grant of the right to draw 
 the water. French v. Gapen, 105 
 U. S. 509. 
 
 3 See Jones v. Oemler (Ga.), 35 S. 
 E. Rep. 375. 
 
 4 Winnipiseogee Lake Co. v. Wors- 
 ter, 29 N. H. 433; Part v. Mayor of 
 Albany, 3 Paige, 212; Slater v. Gunn, 
 170 Mass. 509; Mulry v. Norton, 100 
 N. Y. 424; Wilson v. Hill, 46 N. J. Eq. 
 367; Graham v. Dahlonega Gold M. 
 Co., 71 Ga. 296; Atchison v. Peterson, 
 20 Wall. 507, 515; Sword v. Allen,' 25 
 Kansas, 67; Colby v. Spokane, 12 
 Wash. 690; Holmes v. Calhoun 
 County, 97 Iowa, 360; Morganton 
 Land Co. v. Webb, 117 N. C. 478; 
 Derry v. Ross, 5 CoL 295. In Heil- 
 man 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: 
 " It is not intended here to say that 
 insolvency is never a consideration 
 moving a chancellor. It frequently 
 does, but not alone. The equitable 
 
 remedy must exist independently. 
 In balancing cases, it is a considera- 
 tion that gives preponderance to the 
 remedy. Hence, the alleged insolv- 
 ency of the company, and the sup- 
 posed inability to collect damages 
 that may be recovered from it, is no 
 reason for interfering by injunction." 
 This position is adopted by Mr. High 
 (Injunctions, 2d ed., § 18). It is called 
 "an important consideration" in 29 
 N. H. p. 449. In the Pennsylvania 
 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 v. 
 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 in- 
 solvency. The law is the same in 
 New Jersey. West v. Walker, 2 
 Green Ch. 279, note B. 291, citing 
 MS. cases of Read v. Cornelius, and 
 Norcross v. Fisher. In Missouri it is 
 sufficient if an action for damages 
 does not afford an adequate remedy. 
 Sedalia Brewing Co. v. Sedalia W. 
 W. Co., 34 Mo. App. 49. 
 
 5 Milan Steam Mills v. Hickey, 59 
 N. H 241. 
 
§ 512.] 
 
 EQUITABLE KEMEDIES. 
 
 783 
 
 grounds for equitable interference. 1 But where some degree 
 of injury is shown, the court will consider its probable contin- 
 uance; 2 and if the injury seems likely to continue, equity will 
 not refuse to interfere because the damage is slight. 3 The 
 fact that the act complained of is completed will not prevent 
 an injunction from issuing against the continuance of a trespass 
 or nuisance. 4 An uncertain future injury will not be ground 
 for exerting the extraordinary power of equity. 5 Thus a city 
 cannot maintain a bill to enjoin the erection of a permanent 
 building upon a wharf extending into navigable water upon 
 the ground that the city may, in the future, condemn the prem- 
 ises for a bridge. 6 It has sometimes been said that some de- 
 gree of present injury is necessary before equity will interfere. 
 
 1 Coalter v. Hunter, 4 Rand. (Va.) 
 58; Coe v. Winnipiseogee Lake Co., 
 37 N. H. 254, 266; Burnham v. Kemp- 
 ton, 44 id. 78, 101 ; United States v. 
 Compagnie Francaise, 77 Fed. Rep. 
 495; Society v. Morris Canal Co., 1 
 Saxt. Ch. 157; Cobb v. Smith, 16 Wis. 
 661; Loker v. Simpson, 7 Cal. 340; 
 Tuolumne Water Co. v. Chapman, 8 
 Cal. 392. 
 
 2 Goldsmid v. Tunbridge Wells, L. 
 R. 1 Ch. 349; Rochdale Canal Co. v. 
 King, 2 Sim. N. s. 78; Att. Gen. v. 
 Sheffield Gas Co., 3 De Gex, M. & G. 
 304; Att. Gen. v. Leeds, L. R. 5 Ch. 
 583; Att. Gen. v. Luton, 2 Jur. N. s. 
 180; Bemis v. Upham, 13 Pick. 169; 
 Ballou v. Hopkinton, 4 Gray, 324; 
 ante, § 346. 
 
 3 Ibid; Att. Gen. v. Sheffield Gas 
 Co., 3 De Gex, M. & G. 304; Agnew v. 
 McDowell, L. R. 14 Ir. 445. 
 
 4 Goodson v. Richardson, L. R 9 
 Ch. 221. In this case a mandatory 
 injunction was granted, directing the 
 defendant to remove waterpipes 
 which he had laid under the surface 
 of the complainant's land. In Bal- 
 lantine v. Harrison, 37 N. J. Eq. 560, 
 563, Beasley, C. J., said, that unless 
 the circumstance in that case that 
 the pipes were laid under a public 
 road (so that, as the court said, the 
 
 defendant, by removing them, might 
 subject himself to indictment) con- 
 stituted a proper discrimination, the- 
 decision could not be harmonized 
 with the current of authority. In 
 some States the plaintiff is allowed 
 to join an action at law for past dam- 
 ages with a bill for an injunction. 
 Akin v. Davis, 11 Kansas, 580; Phoe- 
 nix Water Co. v. Fletcher, 23 Cal. 481 ; 
 Barnes v. Sabron, 10 Nev. 217; Co- 
 lumbia Mining Co. v. Holter, 1 Mont. 
 296. 
 
 SRipon v. Hobart, 3 Myl. & K 169; 
 Att. Gen. v. Kingston, 13 W. R. 888; 
 s. C. 11 Jur. n. s. 596; Mayor v. Pem- 
 berton, 1 Swanst. 244, 251 ; Goldsmid 
 v. Tunbridge Wells, L. R. 1 Ch. 349; 
 St. Louis v. Knapp Co., 104 U. S. 658; 2 
 McCrary, 224; Kimberly Co. v. Hew- 
 itt, 75 Wis. 371; 79 Wis. 334; Janes- 
 ville v. Carpenter, 77 Wis. 288 ; Roches- 
 ter v. Erickson, 46 Barb. 92; Hough 
 v. Doylestown, 4 Brewst. 333; Walton 
 v. Mills, 86 N. C. 280; Shreve v. Voor- 
 hees, 2 Green Ch. 25 ; Ellison v. Com- 
 missioners, 5 Jones Eq 57; Mohawk 
 Bridge Co. v. Utica R. Co., 6 Paige, 
 54; Lytton v. Stewart, 2 Tenn. Ch. 
 586; Society v. Morris Canal Co., 3Q> 
 N. J. Eq. 145, note. 
 
 « Chicago v. Reed, 27 111. App. 482. 
 See Bond v. Wool, 107 N. C. 139. 
 
784 THE LAW OF WATERS. [ClI. XIII. 
 
 Thus, in Elmhirst v. Spencer, Lord Chancellor Cottenham said: 
 " Now the plaintiff, before he can ask for an injunction, must 
 prove that he has sustained such a substantial injury by the 
 acts of the defendants, as would have entitled him to a ver- 
 dict at law in an action for damages ; " and there are cases in 
 which this is true, viz., where the character of the act as a 
 nuisance is doubtful, and where it is not clear that any damage 
 will follow. 1 
 
 § 513. Same — Same. — Actual damage, or even a completed 
 violation of the plaintiff's rights, is' not necessary to entitle a 
 plaintiff to the protection of equity. In "Webb v. Portland Manuf . 
 Co., 2 Story, J., said : " If the doctrine were otherwise, and no 
 action were maintainable at law without proof of actual dam- 
 age, that would furnish no ground why a court of equity should 
 not interfere and protect such a right from violation and in- 
 vasion. ... If there be no such remedy at law, then, a 
 fortiori, a court of equity ought to give its aid to vindicate 
 and perpetuate the right of the plaintiffs." It is settled in 
 England and America that where irreparable injury is threat- 
 ened, it is not necessary for the plaintiff to wait until some in- 
 jury has been done before filing his bill, but that equity will 
 take jurisdiction to prevent, if possible, any injury. 3 
 
 1 Elmhirst v. Spencer, 2 Macn. & L. R. 7 Ch. 699; Wilts Canal Co. V. 
 
 G. 45; Elwell v. Crowther, 31 Beav. Swindon W. W. Co., L. R. 9 Ch. 
 
 163; Att. Gen. v. Cambridge Co., L. 451; Bickett v. Morris, L. R 1 H. L. 
 
 R. 4 Ch. 86; Goldsmid v. Tunbridge (Sc.) 47; McSwiney v. Haynes, 1 Ir. 
 
 Wells, L. R. 1 Ch. 349; Lilly white v. Eq. 322. Lord Hardwicke so held in 
 
 Trimmer, 36 L. J. Ch. 525 ; Oldaker cases of waste. Gibson v. Smith, 2 
 
 v. Hunt, 6 De Gex, M. &G. 376; West- Atk. 182. For American cases, see 
 
 brook Manuf. Co. v. Warren, 77 Van Winkle v. Curtis, 2 Green Ch. 
 
 Maine, 437: New Boston Coal Co. v. 422; Shields v. Arndt, 3 id. 234 245 
 
 Pottsville Water Co., 54 Penn. St. 164; Hulme v. Shreve, id. 116; Case * 
 
 Shreve v. Voorhees, 2 Green Ch. 25; Haight, 3 Wend. 632; Corning v. 
 
 Pinney v. Luce, 44 Minn. 367; Norris Troy Iron Factory, 39 Barb. 311; S. c. 
 
 v. Hill, 1 Mich. 202; Crescent M. Co. 34 Barb. 475, 492; 40 N. Y. 191, 220 
 
 v. Silver King M. Co., 14 Utah, 57. Rochester v. Erickson, 46 Barb. 92 
 
 *3 Sumner, 189, 197. Burnham v. Kempton, 44 N. H. 78, 
 
 3 Att. Gen. v. Forbes, 2 Myl. & Cr. 101; s. c. 37 N. H. 485, 488; Lyon v. 
 
 123; Manchester Ry. Co. v. Worksop, McLaughlin, 32 Vt. 423; Baltimore 
 
 23 Beav. 198; Wicks u Hunt, Johns, v. Appold, 42 Md. 442; Varney v. 
 
 372; Elliot v. Northeastern Ry. Co., Pope, 60 Maine, 192; Mott v. Ewing, 
 
 1 J. & H. 145; s. c. 2 De Gex, F. & J. 90 Cal. 231; Mc Arthur v. Kelley, 5 
 
 423; 10 H. L. Cas. 333; Hext v. Gill, Ohio, 139; Bell v. Blount, 4 Hawks 
 
<§§ 514, 515.] EQUITABLE REMEDIES. 785 
 
 § 514. Same — Same. — That Lord Cottenham did not in- 
 tend by the decision in Elmhirst v. Spencer 1 to exclude equi- 
 table jurisdiction to prevent threatened injuries, may be in- 
 ferred from his decision in Attorney General v. Forbes, 2 in 
 1836. In that case the magistrates of the County of Berks 
 .threatened to cut the timbers of a bridge over the Thames, 
 being partly in Berkshire and partly in Buckinghamshire. 
 Upon a bill by the attorney general for the inhabitants of the 
 latter county, the threatened injury was enjoined. Lord Cot- 
 tenham said : " It is the duty of the Court to take care that 
 while these magistrates attempt to exercise their respective 
 rights, the public shall not sustain any injury, and that a pub- 
 lic nuisance shall not be occasioned." 
 
 § 515. Same — Same, — The rule is the same in the case of 
 private nuisances. In Hext v. Gill, 3 the bill for injunction was 
 filed by a purchaser of land. A former grantor had reserved 
 the mines and minerals, with liberty of ingress and egress, and 
 to dig, search for and work such minerals. After the convey- 
 ance, a bed of china clay, previously unknown, was discovered 
 in the land. The defendants, claiming under the former grantor, 
 had asserted their right to work this bed. It appeared in evi- 
 dence that china clay was worked by removing the soil cover- 
 ing the clay, turning a stream of water over it, and washing it 
 into channels and reservoirs, producing an almost total destruc- 
 tion of the surface where the excavations were made. It also 
 appeared that the land was underlaid with tin, which was usu- 
 ally worked by "streaming," — a process equally destructive to 
 the surface of the land. It was held that while the defendants 
 were entitled to take out the minerals, equity would enjoin 
 them from doing it in such a way as to destroy or seriously 
 injure the surface. The defendants by their answer claimed 
 the right to work the minerals, but said that they had no pres- 
 ent intention of doing so; and their counsel argued that there- 
 
 (N. C), 384. See Burwell v. Hobson, measure of just reparation, render 
 
 12 Gratt. 322, 332; Gates v. Blincoe, such injury irreparable in the sense 
 
 2 Dana (Ky.), 158. In Lyon v. Mo- of the law relating to this subject." 
 
 Laughlin, 32 Vt. 423, Barrett, X, says : 1 2 Macn. & G. 45 (1849). 
 
 " For the very doubtfulness as to the 2 2 Myl. & Cr. 123 ; Ripon v. Hobart, 
 
 •extent of the prospective injury, and 3 Myl. & K. 169. 
 
 *he impossibility of ascertaining the 3 L. E. 7 Ch. 699, 711. 
 50 
 
786 THE LAW OF "WATERS. [Ch. XIIL 
 
 fore equity ought not to grant an injunction. Mellish, L. J., 
 after referring to the answer, said : " We are of opinion that 
 after this it is idle for the defendants to say they do not threaten- 
 to get the china clay," " and to contend that this Court is pre- 
 cluded from deciding the question whether they are entitled to> 
 get it in the way in which they have a right to get it." 
 
 § 516. Same — Same. — In "Wicks v. Hunt, 1 alterations were 
 made in a road which were likely to produce damage to th& 
 plaintiff by preventing the escape of water from a marsh. 
 While the alterations were in progress, the plaintiff threatened 
 to take proceedings to stop them, but waited for two years, 
 until he had suffered damage by a flood, and then filed his bill 
 for an injunction and for damages. It was held that the 
 plaintiff had lost his equitable right to an injunction by his 
 delay. It follows from this that where the injury may be rear 
 sonably expected to occur, unless prevented, the plaintiff need 
 not wait for damage to accrue before filing his bill. On proof 
 that the defendant threatens to do the wrong, where it appears- 
 that he has the power, the court will issue the writ or order. 2 
 In Baltimore v. Appold, 3 the allegations were that the defend- 
 ants intended, as a part of a system of water-works, to increase- 
 the volume of a stream flowing through the plaintiff 's land ; 
 that the plaintiff was credibly informed and believed that such 
 increase would cause the stream to overflow its banks and render 
 his land valueless ; and these were accompanied by a statement 
 of the facts upon which the bill was found. It was held that the 
 allegations made out a sufficient case for equitable interfer- 
 ence. 
 
 § 517. Same — Same. — The danger threatened must be such 
 as to cause reasonable fear of irreparable injury. 4 In Van winkle- 
 v. Curtis, 5 Chancellor Vroom said : " In a court of law the in- 
 
 i Johns. 372. 488; s. C. 44 N. H. 78, 95, 101 ; Varney 
 
 2 McArthur v. Kelley, 5 Ohio, 139, v. Pope, 60 Maine, 192. The erection 
 154; Manchester Ry. Co. v. Worksop, of a new mill by the owner of a dam. 
 23 Beav. 198, 210. does not involve an increase of flow- 
 
 3 42 Md. 442; Howe v. Norman, 13 age, and is not in itself ground for 
 R. I. 488. an injunction. Wheeler v. Steele, 50- 
 
 4 Ripon v. Hobart, 3 Myl. & K. 169 ; Ga. 24. 
 
 Fletcher v. Bealey, 28 Ch. D. 688; 5 2 Green Ch. 422. In Hathaway 
 Burnham v. Kempton, 37 N. H. 485, v. Mitchell, 34 Mich. 164, held that 
 
§§ 518, 519.] EQUITABLE REMEDIES. 787 
 
 quiry is whether a wrong has been committed, and if it has 
 been, reparation must be awarded. Here the inquiry is, whether 
 the injury about to be committed is of a serious, permanent, 
 and irreparable character, such as cannot well be compensated 
 in damages, and which therefore requires^ the extraordinary 
 power of chancery to prevent its commission." 
 
 § 518. Same — Adverse right in defendant.— It has been 
 held that a mere claim of an adverse right by the defendant, 
 if not exercised or attempted to be exercised, may not be 
 ground for an injunction. In Massachusetts, where the plaint- 
 iff alleged that the defendants were entitled to draw from a 
 common reservoir 12,335 cubic feet of Avater per minute, but 
 that they claimed the right to use more, and were preparing 
 works which would require more, and that they threatened to 
 use more water; and the defendants by their answer claimed 
 the right to use more than 12,335 cubic feet, but denied that 
 they had used or intended to use more than they were entitled 
 to, and there was no evidence that they had in fact used more 
 than 12,335 cubic feet, Shaw, C. J., held that upon these plead- 
 ings the plaintiff was not entitled to an injunction. 1 
 
 §519. Same — Same, — If the defendant insists upon his 
 alleged right to commit an act which, if completed, will, in 
 the opinion of the court, give a ground of action, equity will 
 protect the plaintiff by injunction. 2 In the important case of 
 Attorney General v. Acton Local Board, 3 which was an action 
 to restrain the board from permitting sewage to flow into a 
 stream, or into the sewers of the Metropolitan Board, the 
 injunction was granted although no substantial damage was 
 shown, on the ground that the defendants by their pleading 
 claimed a right to continue doing that which the court held 
 they were not entitled to do. In "Wilts Canal Co. v. Swindon 
 
 equity will not en join flowage which 264; Goodson v. Eichardson, L. R. 9 
 
 may be made lawful at any time. Ch. 221 ; Lowndes v. Bettle, 33 L. J. 
 
 1 Bardwell a Ames, 22 Pick. 333, Ch. 451 (a case of waste); Amsterdam 
 
 375. In Wicks v. Hunt, Johns. 372, a Knitting Co. v. Dean, 43 N. Y. S. 29; 
 
 claim of right, though coupled with Gould v. Eaton, 111 CaL 639; 117 id. 
 
 a disclaimer of present intention to 539; Simonds v. Haithcock, 18 S. C. 
 
 exercise it, was held ground for in- 604; ante, § 111, note, 
 
 junction. 3 Per Fry, J., 22 Ch. D. 221. 
 
 2 Tipping v. Eckersley, 2 K. & J. 
 
788 THE LAW OF WATERS. [Ch. XIII. 
 
 Waterworks Co., 1 the canal company had, under Act of Par- 
 liament, for many years obtained a supply of water from a 
 certain stream. The waterworks company afterwards di- 
 vertedia portion of this stream, and thereby supplied the neigh- 
 boring town, and an injunction was sought to prevent this 
 injury. Lord Justice James said: "But the defendants not 
 only allege that there was no damage, but they have put most 
 distinctly and clearly on their answer a claim of right of such 
 a kind as to make it absolutely imperative on this Court, as it 
 seems to me, to determine the question of right and to declare 
 the right one way or the other; and as the matter now stands, 
 with the bill dismissed by the Vice Chancellor with costs, it is 
 an adjudication in favor of the defendants that they have the 
 right they claim. It is true that one of their defences is that 
 there has been no injury to the plaintiffs; but it appears to 
 me that the plaintiffs are entitled to have a declaration from 
 the Court that the defendants are not at liberty to divert the 
 water from the Wroughton Stream into their reservoir, for 
 their own purposes and profits whenever the demand on them 
 for water requires it." Lord Justice Mellish, in a concurring 
 opinion, held that equity would protect a substantial right 
 from loss by a continuous invasion and long user by a wrong- 
 doer, on the same ground as that on which courts at law enter- 
 tain an action in such cases. 
 
 §520. Same — Same. — "Where the defendant persists in 
 injuring the plaintiff by a wrongful course of action, equity 
 will take jurisdiction, although the damage caused is at the 
 time of suit inconsiderable. In such cases the only legal rem- 
 edy open to the plaintiff is a series of actions from day to day. 
 But where the defendant so persists in his wrongful act after 
 the plaintiff has exhausted his legal remedy by actions at law, 
 equity holds that the legal remedy is shown to be inadequate,, 
 and interferes to protect his right. 2 Referring to the repeated 
 
 1 L. R. 9 Ch. 451. So, if the defend- will be entitled to an injunction 
 
 ant persists in a course which will, without proof of any present dam- 
 
 if continued, ripen into an adverse age. Crossley v. Lightowler, L.E2 
 
 right, the plaintiff is entitled to an Ch. 478; Goodson v. Richardson, L. 
 
 injunction. Per Mellish, J., supra. R. 9 Ch. 321; Eardley v. Granville, 3 
 
 See, also, Barnes v. Sabron, 10 Nev. Ch. D. 826. 
 
 247; Brown v. Ashley, 16 Nev. 311. 2R 00 hdale Canal Co. v. King, 2 
 
 Against such a claim, the plaintiff Sim. n. s. 78; Att. Gen. v. Luton 
 
§ 521.] 
 
 EQUITABLE KEMEDIES. 
 
 789 
 
 actions to which the plaintiff might be driven at law, Lord 
 Justice Mellish said: "It is because it is most inconvenient to 
 leave the rights of parties to be determined in that way, and 
 in fact impossible to leave in that way, that this Court has 
 always in such cases given relief." l Another reason frequently 
 given for equitable cognizance of such cases is the prevention 
 of a multiplicity of suits. But this, as we shall see, is not a 
 proper application of that principle. 2 It has been said that 
 repeated actions at law are necessary to demonstrate their in- 
 adequacy to protect the plaintiff, 3 but the better opinion seems 
 to be that, after the plaintiff has established his right by one 
 action at law, he may have an injunction restraining the defend- 
 ant from continuing the grievance. 4 
 
 § 501. Same — Allegations of bill. — The plaintiff must, in 
 his bill set forth his title, or, if his interest is limited, the facts 
 constituting his interest, 5 and must allege facts showing the 
 nature and extent of his injury, and the inadequacy of the rem- 
 edy at law. 6 If he sets forth a title which would be insufficient 
 
 Local Board, 2 Jur. N. S. 180; Pen- 
 nington v. Brinsop, 5 Ch. D. 769; So- 
 ciety v. Morris Canal Co., 1 Sa'xt. 157, 
 191; Hill v. Sayles, 12 Cush. 454; Car- 
 lisle v. Stevenson, 3 Md. Ch. 499; Coe 
 v. Winnipiseogee Lake Co., 37 N. H. 
 254, 265; Corning v. Troy Iron Fac- 
 tory, 39 Barb. 311, 327; s. a 34 Barb. 
 492; 40 N. Y. 191; Smith v. Olmstead, 
 5 Blackf. 37; Whitfield v. Rogers, 26 
 Miss. 84; Fairhaven Marble Co. v. 
 Adams, 46 Vt. 496; Lyon v. Mc- 
 Laughlin, 32 Vt. 423, 425," 426; Sword 
 v. Allen, 25 Kansas, 67; Cotton v. 
 Mississippi Boom Co., 19 Minn. 497. 
 
 1 Clowes v. Staffordshire W. W. 
 Co., L. E. 8 Ch. 125, 142. 
 
 2 That the principle of preventing 
 multiplicity of suits has no proper 
 application to these, cases, see Hart v. 
 Albany, 9 Wend. 571, 581 ; Jerome v. 
 Ross, 7 Johns. Ch. 315, 336. And see 
 post, §§ 562 et seq. 
 
 3 Carlisle v. Stevenson, 3 Md. Ch. 
 499, 506. 
 
 4 Rochdale Canal Co. v. King, 2 
 Sim. n. s. 78. 
 
 5 Boston W. P. Co. v. Boston & 
 Worcester R. Co., 16 Pick. 512; Win- 
 nipiseogee Lake Co. v. Young, 40 N. 
 H. 420; Wason v. Sanborn, 45 N. H. 
 169; Wattier v. Miller, 11 Oregon, 329; 
 Bailey v. Malheur & H. L. Ir. Co. 
 (Oregon), 57 Pac. Rep. 910. So if the 
 bill is for the protection of an ease- 
 ment, it is necessary to allege title 
 to the right claimed, as an incident 
 to land, or by grant or prescription. 
 An allegation of title to flow, by 
 grant from all the owners of land 
 known to be flowed, is prima facie 
 sufficient. Winnipiseogee Lake Co. 
 v. Young, 40 N. H. 420. See 1 High 
 on Injunctions, §§ 34^36; Kerr on In- 
 junctions, 13; Rosamund v. Forgie, 
 18 Ch. (Can.) 370. Possession of a 
 •water power may suffice. Watuppa 
 R. Co. v. FaU River, 154 Mass. 305. 
 
 6Ripon v. Hobart, 3 My. & K. 169; 
 Carlisle v. Stevenson, 3 Md. Ch. 499; 
 Welton v. Martin, 7 Mo. 307; Ohn- 
 stead v. Loomis, 6 Barb. 152; Perkins 
 v. Collins, 2 Green Ch. 482; Fair- 
 haven Marble Co. v. Adams, 46 Vt 
 
790 
 
 THE LAW OF WATEES. 
 
 [Ch. XIII. 
 
 at law, the bill is open to demurrer. 1 " The mere allegation," 
 said Chancellor Johnson, " that irreparable injury will result 
 to the complainant unless protection is extended to him, is not 
 sufficient; the facts must be stated, that the Court may see that 
 the apprehensions of irreparable mischief are well founded." 2 
 
 § 522. Same — Same. — It is generally true that allegations 
 upon information and belief will not be sufficient to obtain an 
 injunction; 3 but we have seen that in Baltimore v. Appold 4 
 an allegation that the plaintiff was credibly informed and be- 
 lieved that the threatened increase in the volume of the stream 
 would render his lands valueless, together with the statement 
 of facts upon which his belief was founded, was held sufficient. 
 
 § 523. Same — Same. — It is also necessary for the plaintiff 
 to make a full statement of the entire case upon which he 
 desires the intervention of the court; and if he withholds 
 material facts, this will be ground for denying the relief. 5 If 
 
 496, 503; Corning v. Troy Iron Fac- 
 tory, 6 How. Pr. 89. Where the 
 plaintiff has only a limited right in 
 a stream, he must show an injury to 
 such right. Oldaker v. Hunt, 6 De 
 Gex, M. & Gr. 376. A lessee is en- 
 titled to an injunction against the 
 continuance of a nuisance interfer- 
 ing with his enjoyment of the pos- 
 session. The wrongful continuance 
 of a drain across his land is such an 
 injury. McAuley v. Eoberts, 5 Grant's 
 Ch. (Up. Can.) 565. 
 
 1 Kerr on Injunctions, 31. 
 
 2 Carlisle v. Stevenson, 3 Md. Ch. 
 499, 505. See CaL Nav. Co. v. Union 
 Transp. Co., 122 Cal. 641. A some- 
 what different rule is laid down in 
 Sprague v. Rhodes, 4 R. I. 301, 303, 
 310, 312. The case was upon a bill 
 to enjoin the defendants from con- 
 tinuing to flow the plaintiffs' lands, 
 and a demurrer was filed for want of 
 equity. Ames, C. J., said: "We are 
 not at liberty to infer from facts 
 stated in the bill, facts unfavorable 
 to the plaintiffs' right to relief, if in- 
 deed we are not bound to make, as 
 
 in case of a demurrer to evidence at 
 law, every reasonable intendment in 
 his favor. . . . Another ground 
 of demurrer set up by the defend- 
 ants is that the bill does not state a 
 case of irreparable or destructive 
 mischief. The case stated in the bill 
 is a flowage of the lands of the plaint- 
 iffs, in its nature as destructive a 
 nuisance to land, and for all the pur- 
 poses of land, as distinguished from 
 water, as can well be imagined, pro- 
 vided the flow be to any consider- 
 able extent. It is true that the bill 
 does not allege the extent of the 
 flow; but under the allegations of 
 the bill, the plaintiffs will be at lib- 
 erty to prove a flow to any extent; 
 and again, under the rules first ad- 
 verted to, applicable to demurrers of 
 this sort, we have no right to intend 
 against the bill that a flow cannot be 
 proved to any the most destructive 
 extent imaginable." 
 
 3 1 High on Injunctions (2d ed.), 
 §35. 
 
 <42 Md. 443, 476; ante, § 516. 
 
 6 Reddall v. Bryan, 14 Md. 444, 476. 
 
§ 524.] 
 
 EQUITABLE EEMEDIES. 
 
 T91 
 
 an answer under oath, when filed, denies categorically all the 
 material averments of the bill, this may be ground for dissolv- 
 ing a temporary injunction already granted. 1 
 
 §524. Preliminary injunction.— "Where the plaintiff's al-, 
 legations show a good title prima facie, and an injury present 
 or threatened, which if established would be reasonable ground 
 for the interference of equity, a preliminary injunction is usu- 
 ally granted upon the filing of the bill, to preserve the prop- 
 erty in dispute in statu quo until the parties' rights can be 
 determined, or until further order. 2 In order to entitle him- 
 self to a perpetual injunction, it is necessary for the plaintiff 
 strictly to prove' his allegations, and if the claim is founded 
 upon a contract relation, privity between the parties must be 
 shown and established. 3 If the testimony as to the injurious 
 
 See St. John v. Brown, 1 Pugsley 
 (N. B.), 100. In this case, the plaintiff 
 sought to enjoin the construction 
 through his land of an aqueduct, 
 which was to supply the city of 
 Washington with water. Bartol, J., 
 said: "In the opinion of a majority 
 of this Court, the nature of the acts 
 complained of in this bill, and of the 
 injury alleged, is such as to present a 
 case of irreparable damage, which 
 would entitle the complainant to the 
 interposition of a court of equity by 
 injunction, if it sufficiently appeared 
 on the face of the bill that the acts 
 charged were done by the defendants 
 without authority of law. We think 
 there is great force in the view taken 
 by the Circuit Court of the manner 
 in which the case of the complainant 
 is stated in the bill, and cannot avoid 
 the conclusion 'that it is made out 
 by the concealment of facts having a 
 very important bearing upon it, and 
 which would (if fully stated) act ma- 
 terially upon the conscience of the 
 court.' The right to an injunction 
 is not ex debito justitice, but such 
 application is addressed to the sound 
 conscience of the chancellor, acting 
 upon all the circumstances belonging 
 
 to each particular case. He has the 
 right to require a full and candid dis- 
 closure of all the facts, and if there 
 appears in the proceedings sufficient 
 to show that this has not been made, 
 he may properly refuse to exercise 
 the extraordinary power of the court, 
 through the instrumentality of a writ 
 of injunction.'' Ibid. 
 
 1 Morrison v. Coleman, 87 Ala. 655. 
 See Colby v. Spokane, 12 Wash. ,690. 
 
 2 Buller v. Society, 12 N. J. Eq. 264; 
 Morris Canal Co. v. Central E. Co., 16 
 id. 419, 425; Arthur v. Case, 1 Paige, 
 447; Troy v. Norment, 2 Jones Eq. 
 (N. C.) 318; Eichmond v. Dubuque 
 E. Co., 33 Iowa, 482; United States 
 v. Duluth, 1 Dillon, 469: McCallum 
 v. Germantown W. Co., 54 Penn. St. 
 40; Sprague v. Ehodes, 4 E L 301, 
 309; Phillips v. Stockel, 1 Tenn. 20Q; 
 Eipon v. Hobart, 3 Myl. & K. 169, 181, 
 182; Beaufort v. Morris, 6 Hare, 340; 
 Pine v. New York, 96 Fed. Eep. 1005; 
 Standart v. Vivion (Tex. Civ. App.), 
 54 S. W. Eep. 44 
 
 3McCann v. Oregon Ey. Co., 13 
 Oregon, 455; Harley v. Meshoppen 
 W. Co., 174 Penn. St. 416; Van Nest 
 Land Co. v. New York & W. W. Co., 
 40 N. Y. S. 212. 
 
792 THE LAW OF WATEES. [Ch. XIII, 
 
 consequences of the act complained of, as e. g., the maintenance 
 of a dam, consists merely of opinions which are opposed by 
 similar testimony, the court will be slow to grant a perpetual 
 injunction. 1 The bill should also contain a special prayer for 
 the injunction, when desired, as an injunction is rarely granted 
 under the prayer for general relief. 2 
 
 § 525. Same. — "Where the plaintiff's right and his need of 
 the protection of the court are clear, it is said that equity will 
 determine the rights of the parties at once, and grant a final 
 injunction without further delay. 3 But the case must be very 
 clear to lead the court to adopt such a course. 4 "Where the 
 right is uncertain, or the nature of the alleged injury is not 
 clearly such as to require a permanent order of the court, equity 
 may grant an interlocutory injunction pending the trial of the 
 right, or may direct the plaintiff first to establish his right at 
 law, or put over the motion until after the hearing, or it may 
 dismiss the bill without prejudice. 5 In determining which 
 course to pursue, the court will consider the situation of the- 
 parties and the comparative inconvenience which will be caused 
 by the order. If a temporary injunction would cause serious 
 damage to the defendant, in case the plaintiff should fail to 
 establish his right, and would not materially benefit the 
 plaintiff, if successful, it will be withheld until after the hear- 
 
 i Woodruff v. Lockerby, 8 Wis. 369. such a case of either granting an in- 
 
 See Bailey v. Schnitzins, 45 N. J. Eq. junction, and, at the same time, 
 
 178. directing the plaintiff to proceed to 
 
 2 Rigg v. Hancock, 36 N. J. Eq. 42; establish his legal title, or of requir- 
 
 Story, Eq. PI. (10th ed.), § 41. ing him first to establish his title at 
 
 3 Kerr on Injunctions, 26; Bacon law, and suspending the grant of the 
 
 v. Jones, 4 Myl. & Cr. 433. In this injunction until the result of the 
 
 case (relating to a patent), Lord legal investigation has been ascer- 
 
 Chancellor Cottenham said: "When tained, the defendant in the mean- 
 
 the application is for an interlocutory time keeping an account. Which of 
 
 injunction, several courses are open: these several courses ought to be 
 
 the court may at once grant the in- taken must depend entirely upon 
 
 junction,si?npZ£c££er,withoutniore, — the discretion of the Court, accord- 
 
 a course which, though perfectly ing to the case made." 
 
 competent to the Court, is not very i Cardiff v. Cardiff Waterworks, 4- 
 
 likely to be taken where the defend- D. G. & J. 596; Holsman v. Boiling 
 
 ant raises a question as to the valid- Spring Co., 1 McCarter, 335. 
 
 ity of the plaintiff's title; or it may 5 Robb v. La Grange, 158 111. 8U 
 
 follow the more usual and, as I appre- Terrell v. Marietta P. M. Co., 99 Ga. 
 
 hend, more wholesome practice in 206; 24 S. E. Rep. 861. 
 
§§ 526, §27.] EQUITABLE REMEDIES. 793 
 
 ing ; 1 but if, assuming the facts alleged to be true, more harm 
 would be caused to the plaintiff by withholding the order than, 
 in the event of his failure, would be caused to the defendant 
 by granting it, it will be granted. 2 A decree dismissing a bill 
 to restrain flowing is not a bar to an action for damages caused 
 by the overflow. 3 
 
 § 526. Same. — The controlling principle, in the absence of 
 special circumstances, is, in the language of Lord Brougham, 
 " that only such a restraint shall be imposed as may suffice to 
 stop the mischief complained of, and where it is to stay farther 
 injury, to keep things as they are for the present." i Where 
 the United States had filed a bill in the Circuit Court for an 
 injunction to protect improvements which it was making in 
 its navigable waters, and conflicting affidavits Were filed as to 
 the effect of the works sought to be enjoined, Miller, J., in de- 
 livering the opinion, granting a temporary injunction, said: 
 " In this emergency I am relieved by a principle which has. 
 generally governed me, and which I believe governs nearly all 
 judges in applications for preliminary injunctions. It is that,, 
 when the danger or injury threatened is of a character which 
 cannot be easily remedied if the injunction is refused, and there- 
 is no denial that the act charged is contemplated, the tempo- 
 rary injunction should be granted, unless the case made by the- 
 bill is satisfactorily refuted by the defendant. In this case I 
 am not satisfied that it is so refuted." 5 
 
 § 527. Same. — "Where the plaintiff, with knowledge of his. 
 rights, has acquiesced in the act of the defendant, or has been 
 guilty of laches in the pursuit of his remedy, this will gen- 
 
 1 Ripon v. Hobart, 3 MyL & K. 169, man v. Amoskeag Manuf. Co., 47 N. 
 182; Elmhirst v. Spencer, 2 Macn. & H. 71; Bassett v. Salisbury Manuf. 
 G. 45; Ingraham v. Dunnell, 5 Met. Co., 47 N. H. 426; Wilcox v. Wheeler, 
 118, 123, 127; Wason v. Sanborn, 45 47 N. H. 488; Hough v. Doylestown, 
 N. H. 169. See Kerr on Injunctions, 4 Brewst. (Pa.) 333. 
 
 27, 28. - 3 Coulter v. Davis, 13 Lea (Tenn.), 
 
 2 Ibid. ; Att. Gen. v. Johnson (per 451. 
 
 Lord Eldon), 2 Wils. 87, 97. For "Blakemore v - Glamorganshire 
 
 similar reasoning applied to injunc- Canal Navigation, 1 Myl. & K. 154, 
 
 tions generally, see Wood v. Sutcliffe, 185. 
 
 2 Sim. n. s. 1C3; Att. Gen. v. Birming- 5 United States V. Duluth, 1 Dillon,. 
 
 ham, 4 K..& J. 528; Pennington v. 469,474 
 
 BrinsopH. C. Co., 5 Ch. D. 769; East- 
 
794 THE LAW OF WATERS. [Ch. XIII. 
 
 orally be sufficient to prevent his obtaining the preliminary 
 injunction, his conduct being taken as proof that the danger 
 is not so imminent as to require an interference by the court 
 before his right is established. 1 A less degree of acquiescence 
 or delay will defeat the plaintiff's application for a preliminary 
 injunction than is necessary to operate as a bar to equitable 
 interference when his right is established. 2 It is always open 
 to the plaintiff to explain his conduct, and show excuse for 
 his delay, although he has not alleged it in his bill. 3 An ac- 
 quiescence in an injury which at the time is small and which 
 might reasonably be supposed to be temporary, is no bar to an 
 application for relief when the same injury has increased to 
 serious proportions, and is likely to become permanent. 4 So 
 ■delay which has been induced by the defendant's representa- 
 tions, 5 or by uncertainty in the law, 6 will not prejudice the ap-. 
 plication. If the character of the act is not defined, and it is 
 necessary to wait for some time to ascertain its injurious nat- 
 ure and consequences, or if it is continually growing, as in 
 case of the retention of offensive water in a canal, 7 or the cor- 
 ruption of a stream by sewage, 8 such delay will not operate as 
 a bar. Where an interlocutory application is granted for the 
 purpose of protecting the plaintiff in a legal right which is still 
 in dispute, the court will provide in the order for the speedy 
 trial of the right. 9 
 
 JWeller v. Smeaton, 1 Bro. C. C. "Goldsmid v. Tunbridge Wells, 
 
 572; Birmingham Canal Co. v. Lloyd, L. E. 1 Ch. 349. 
 
 18 Ves. 515; Rochdale Canal Co. v. 4 Att. Gen. v. Halifax, 17 W. E. 
 
 King, 3 Sim. n. s. 87; Ware v. Re- 1088; Goldsmid v. Tunbridge Wells, 
 
 gent's Canal Co., De Gex & J. 212, L.R. 1 Ch. 349, 355; Att. Gen. v. Luton 
 
 230; Wicks v. Hunt, Johns. 372; Reid Local Board, 2 Jur. N. s. 180. 
 
 v. Giff ord, 6 Johns. Ch. 19 ; Society v. 6 Att. Gen. v. Luton Local Board, 2 
 
 Holsman, 1 Halst. Ch. 126; Herbert Jur. N. s. 180. See Att. Gen. v. Bir- 
 
 v. Penn. R. Co., 43 N. J. Eq. 21; Car- mingham, 4 Kay & J. 528, 546. 
 
 lisle v. Cooper, 21 id. 576; Southern 6 See Priewe v. Wisconsin State 
 
 Marble Co. v. Darnell, 94 Ga. 231; Land Co. (Wis.), 79 N. W. Rep. 780. 
 
 Rich v. Brantf ord, 14 Ch. (Can.) 83. ' Att. Gen. v. Bradford Canal, L. R. 
 
 See Sprague v. Rhodes, 4 R. I. 301; 2 Eq. 71. 
 
 Toledo, etc. R. Co. v. Chicago, etc. Ry. »Att. Gen. v. Halifax, 17 W. R. 
 
 >Co., 155 111. 9; Springdale M. E. 1088; Att. Gen. v. Leeds, L. R. 5 Ch. 
 
 Church v. Shoop, 30 Pitts. L. J. n. s. 583. 
 
 132. 9 Beaufort v. Morris, 6 Hare, 340; 
 
 2 Att. Gen. v. Birmingham, 4 Kay (per Wigram, V. C); Dewhirst v. 
 
 & J. 528, 545, 546; Att. Gen. v. Colney Wrigley, Cooper Prac. Cas. 319. 
 Hatch Asylum, L R. 4 Ch. 146, 160. 
 
§§ 528, 529.] 
 
 EQUITABLE REMEDIES. 
 
 795 
 
 §528. Perpetual injunction. — Upon the establishment of 
 his legal rights, and of an injury not adequately remediable at 
 law, the plaintiff is usually entitled, as of course, to a perpet- 
 ual injunction. 1 The balance of convenience between the par- 
 ties will be considered in deciding upon the plaintiff's right to 
 a perpetual injunction, as well as upon the interlocutory mo- 
 tion ; 2 but in general a much more serious case of inconvenience 
 to the defendant is necessary to induce the court to withhold 
 a final injunction than is sufficient to defeat the interlocutory 
 motion. "Where the plaintiff has made out a strict case of right, 
 he will usually be protected, although the defendant is seriously 
 inconvenienced thereby. 3 The court is not at liberty to do jus- 
 tice by a decree outside of the pleadings, 4 or against those not 
 made parties. 5 
 
 § 529. Same. — It is no part of the office of the court to 
 consider the ways and means by which the defendant may 
 
 •Kerr on Injunctions, 344; Stumbo 
 v. Seeley, 23 Neb. 312. As to the ef- 
 fect of inconsistent findings, see Mes- 
 nager v. Engelhardt, 108 Cal. 68. 
 
 2 Wood v. Sutcliffe, 2 Sim. N. s. 163; 
 Pennington v. Brinsop H. C. Co., 5 
 Ch. D. 769; Eastman v. Amoskeag 
 Mamif. Co., 47 N. H. 71; Basset v. 
 Salisbury Manuf. Co., 47 N. H. 426; 
 "Wilcox v. Wheeler, 47 N. H. 488; 
 Wintermute v. Tacoma L. & W. Co., 
 3 Wash. St. 727. 
 
 3 Spokes v. Banbury Board, L. E. 1 
 Eq. 42; Att. Gen. v. Bradford Canal, 
 L. R. 2 Eq. 71. So where the plaintiff 
 was entitled to the flow of a stream 
 in its natural purity, and the defend- 
 ants, in the construction of a system 
 of drainage, turned the sewage of a 
 large district into the stream, Vice 
 Chancellor Wood, in granting an in- 
 junction, said: "There are cases at 
 law in which it has been held that 
 where the question arises between 
 two portions of the community, the 
 convenience of one may be counter- 
 balanced, by the inconvenience to the 
 other, where the latter are far more 
 numerous. But in the case of an in- 
 
 dividual claiming certain private 
 rights, and seeking to have those 
 rights protected against an infrac- 
 tion of the law, the question is 
 simply whether he has those rights, 
 and if so, whether the Court, looking 
 to the precedents by which it must 
 be governed in the exercise of its 
 judicial discretion, can interfere to 
 protect them. Now, with regard to 
 the question of the plaintiff's right 
 to an injunction, it appears to me, 
 that so far as this Court is concerned, 
 it is a matter of almost absolute in- 
 difference whether the decision will 
 affect a population of 250,000, or a 
 single individual carrying on a man- 
 ufactory for his own benefit. The 
 rights of the plaintiff must be meas- 
 ured precisely as they have been left 
 by the Legislature." Att. Gen. v. 
 Birmingham, 4 K. & J. 528, 539. 
 
 * Gilreath v. Gilliland, 95 Tenn. 383 ; 
 State v. Bush County Com'rs, 35 
 Kansas, 150; O'Donnell v. Farrar, 62 
 111. App. 471. 
 
 s Work v. Welsh, 160 111. 468; Boyd 
 v. State, 19 Neb. 128. See In re Len- 
 non, 166 U. S. 548. 
 
796 THE LAW OF WATEES. [Ch. XIII. 
 
 comply with its acts. In a case of corrupting water by sew- 
 age, 1 the same judge (Lord Chancellor Hatherley) said : "Cases 
 like the present no doubt show the difficulty in which persons 
 who are desirous of getting rid of refuse sewage are constantly 
 placed ; but it is a difficulty which must be met, not by apply- 
 ing to a court of law to escape from the exigencies of the 
 condition in which they find themselves, but by an application 
 to the Legislature. Now, I believe the court will always find 
 that its simplest course, as far as regards the administration 
 of justice, is to ascertain the exact state of the law which reg- 
 ulates the relations of the parties, and having done so, to pro- 
 ceed to act on it, without any reference to the difficulties of 
 the case on the part of those against whom it is obliged to de- 
 cide, leaving those parties to relieve themselves as they best 
 can from the position in which they have placed themselves, 
 and if there be no other mode of escape, to cease to do the 
 acts which occasion the wrong." l ( 
 
 §530. Same — Laches. — Acquiescence or laches by the 
 party injured may bar his right to the interference of equity 
 even though the legal right is clearly made out, 2 but a greater 
 degree of consent or delay is necessary than in the case of the 
 interlocutory motion. 3 Any contribution by the plaintiff to 
 
 lAtt. Gen. v. Colney Hatch Asy- 601; Heiskell v. Gross, 7 Phila. 317; 
 lum, L. R 4 Ch. 146, 153. In a sim- Carlisle v. Cooper, 21 N. J. Eq. 576; 
 ilar case the same judge, sitting as Trenton Water Power Co. v. Cham- 
 Vice Chancellor, held that, where bers, 1 Stockt. Ch 471 ; and see Coal- 
 the defendants failed to comply with ter v. Hunter, 4 Rand. 59; Sprague 
 the order, alleging that they had v. Steere, 1 R. 1. 247; Sheldon v. Rock- 
 found no means of deodorizing the well, 9 Wis. 166; Cobb v. Smith, 16 
 nuisance, and that obedience was Wis. 661 ; Crosby v. Smith, 19 Wis. 
 practically impossible, the defend- 449; Blanchard v. Deering, 23 Wis. 
 ants were guilty of gross contempt, 200; Prentiss v. Wood, 118 Mass. 589; 
 and a sequestration was ordered. Logansport v. Uhl, 99 Ind. 531; Penn- 
 Spokes v. Banbury, L. R. 1 Eq. 42. sylvania R Co.'s Appeal, 125 Penn. 
 See ante, § 223. St. 189. 
 
 2 Rochdale Canal Co. v. King, 2 Sim. 3 Att. Gen. v. Birmingham, 4 K. & 
 
 N. s. 78; 16 Beav. 630; Wood v. Sut- J. 528, 545, 546; Att. Gen. v. Colney 
 
 cliff e, 2 Sim. n. s. 163; Jones v. Royal Hatch Asylum, L. R. 4 Ch 146, 160; 
 
 Canal Co., 2 Molloy, 319; Att. Gen. v. Carlisle v. Cooper, 6 C. E. Greene, 
 
 Halifax, 39 L. J. Ch. 129. Facts held 576; Hartlepool Gas Co. v. West 
 
 not to amount to laches. Att. Gen. v. Hartlepool Harbor Co., 12 L. T. N. S. 
 
 Birmingham, 4 K. & J. 528; Haight 399; Stock v. Jefferson Tp., 114 Mich 
 
 v. Morris Aqueduct, 4 Wash. C. C. 357. The plaintiff is sometimes. 
 
§531.] 
 
 EQUITABLE REMEDIES. 
 
 797 
 
 the acts producing the injury a fortiori bars his right to an 
 injunction. 1 Such acquiescence is not only a bar to the injured 
 party's right to an injunction, but may become a ground for 
 a counter injunction against any proceedings either at law or 
 in equity. 2 
 
 § 531. Same — Same. — Acquiescence is no bar to the plaint- 
 iff's right where his position does not entitle him to object to 
 the act in question. Thus if A., owning land on one side of a 
 stream, takes a lease of the land opposite, and then diverts 
 water from the leased premises, in favor of his land on the 
 other side, the diversion is not, during the life of the lease, ad- 
 verse to the lessor, and his acquiescence is no bar to his right 
 to have the land and water restored in their original condition. 
 It does not diminish this right that the tenant has made ex- 
 
 placed in a dilemma between the 
 rule against laches and that against 
 merely prospective injuries. In such 
 cases the court may issue a general 
 order forbidding acts which will 
 amount to a nuisance, and retain the 
 bill, with leave to the plaintiff to 
 apply for further order. See Elwell 
 v. Crowther, 31 Beav. 163; 10 W. R. 
 615; Wicks v. Hunt, Johns. 372. In 
 Carlisle v. Cooper, 21 N. J. Eq. 576, 
 591; 19 id. 256, the New Jersey Court 
 of Errors and Appeals, per Depue, J., 
 said: "Where the legal right is set- 
 tled, and the more efficacious rem- 
 edy of a court of equity is necessary 
 to complete relief, delay is no ground 
 for a denial of its aid, unless it is 
 coupled with such acquiescence as 
 deprives the party of all right to 
 equitable relief. A person may so 
 encourage another in the erection of 
 a nuisance as not only to be deprived 
 of the right of equitable relief, but 
 also to give the adverse party an 
 ■equity to restrain him from recover- 
 ing damages at law for such nuisance 
 (citing Williams v. Earl of Jersey, 1 
 Cr. & Ph. 91). So a party who know- 
 ingly, though passively, encourages 
 another to expend money under an 
 ■erroneous opinion of his rights, will 
 
 not be permitted to assert his title 
 and thereby defeat the just expecta- 
 tion upon which such expenditure 
 was made." See Clark v. Cambridge, 
 etc. Co., 45 Neb. 798; Garrett v. 
 Bishop, 27 Oregon, 349. 
 
 i Carlisle v. Stevenson, 3 Md. Ch. 
 499. So in the case of license to 
 maintain a dam. Ogle v. Dill, 55 Lid. 
 130. 
 
 2 Eq. Cas. Abr. 522. "A. diverted 
 a watercourse, which put B. to great 
 expenses in laying sooths, etc., and 
 the diversion being a nuisance to B., 
 he brought his action; but an in- 
 junction was decreed upon a bill ex- 
 hibited for that purpose, it being 
 proved that B. did see the work when 
 it was carrying on and connived at 
 it, without showing the least dis 
 agreement, but rather the contrary.' 
 See, also, Sprague v. Steere, 1 R. I, 
 247, 259; Trenton Banking Co. v. Me 
 Kelway, 4 Halst. Ch. 84; Raritan W. 
 P. Co. v. Veghte, 21 N. J. Eq. 463 
 Carlisle v. Cooper, id. 576, cited 
 supra; Cobb v. Smith, 23 Wis. 261 
 Haight v. Morris Aqueduct. 4 Wash. 
 C. C. 601, 608; Society v. Lehigh Val- 
 ley R. Co., 32 N. J. Eq. 329. Same rule 
 in case of noxious tra'de. Williams 
 v. Jersey, Cr. & Ph. 97. 
 
798 
 
 THE LAW OF WATEBS. 
 
 , [Ch. XIII. 
 
 pensive improvements upon his other land in order to use the- 
 water so diverted. He knew that his right to divert the water 
 terminated with the lease. And the landlord may, by convey- 
 ing the land, transfer his right to another. 1 
 
 § 532. Same — Same. — Since laches or acquiescence in the 
 defendant's act for less than the prescriptive period may de- 
 feat the plaintiff's right to an injunction, 2 a fortiori adverse 
 possession and exercise of any right in water, in derogation of 
 the rights of other owners for twenty years, or for a period 
 sufficient to establish a prescriptive right, necessarily defeat 
 the right of such owners to an injunction against a private 
 nuisance. 3 In the case of a public nuisance the right of the 
 public is, upon principle, never barred. One cannot acquire 
 a prescriptive right to maintain a public nuisance, 4 and no 
 
 1 Corning v. Troy Iron Factory, 40 
 N. Y. 191, 201; 34 Barb. 485; 39 id. 
 311. Where A. gave a parol license 
 to B.to erect and maintain a dam and 
 ditch upon A.'s land, to supply with 
 water a mill on B.'s land, and A. af- 
 terwards sold his land to O. without 
 any reservation, and C. objected to 
 the dam and ditch, and requested B. 
 not to maintain them, but B. con- 
 tinued to use them and forcibly pre- 
 vented C. from removing them, and 
 the dam and ditch were found to con- 
 stitute a nuisance, it was held that C. 
 was not bound by the license given 
 by A., and was entitled to an injunc- 
 tion restraining B. from maintaining 
 the dam. Stevens v. Stevens, 11 Met. 
 251. 
 
 2 Haight v. Morris Aqueduct, 4 
 Wash. C. C. 601; Clifton Iron Co. v. 
 Dye, 87 Ala. 468; Cobb v. Slimmer, 
 45 Mich. 176; Vick v. Rochester, 46 
 Hun, 607; Outcalt v. The George W. 
 Helme Co., 42 N. J. Eq. 665; Hyde v. 
 French (N. J. Eq.), 21 AtL Rep. 1069. 
 
 s Shields v. Arndt, 3 Green Ch. 234; 
 Holsman v. Boiling Spring Co., 1 
 McCarter, 334, 345; Coalter v. Hunter, 
 4 Rand. 58; McCallum v. German- 
 town Water Co., 54 Penn. St. 40; 
 
 Pratt v. Lamson, 2 Allen, 275; Ogle 
 v. Dill, 55 Ind. 130; Kleyenstuber v. 
 Robinson (Ariz.), 52 Pac. Rep. 1117. 
 See 1 High on Injunctions (2d ed.), 
 § 799. But where one has erected a 
 dam upon the lands of another, with- 
 out right, nothing short of adverse 
 user for the full time will give him 
 a right, or entitle him to an injunc- 
 tion against obstructions of his race- 
 way. Sherwood v. Vliet, 20 Wis. 441. 
 That the user must be adverse, see 
 Lehigh "Valley R. Co. v. McFarlan, 
 30 N. J. Eq. 180. As to acquiescence 
 in the unlawful exercise of statutory 
 powers, where great and important 
 public works have been completed, 
 see Herron v. Rathmines Com'rs, 27 
 L. R. Ir. 179. 
 
 1 Vooght v. Winch, 2 B. & Aid. 
 662; Weld v. Hornby, 7 East, 199; 
 Stoughton v. Baker, 4 Mass. 522, 528; 
 Commonwealth v. Upton, 6 Gray, 
 473; Mills v. Hall, 9 Wend. 315; Dy- 
 gert v. Schenck, 23 Wend. 446; Jer- 
 sey City v. Morris Canal Co., 1 Beas. 
 (N. J.) 547, 660; Cross v. Morristown, 
 18 N. J. Eq. 305; Waterloo v. Union 
 Mill Co., 72 Iowa, 437; Wright v. 
 Moore, 38 Ala. 593; Rhodes v. White- 
 head, 27 Texas, 304, 316; Regina «■ 
 
§ 533.] EQUITABLE REMEDIES. 799 
 
 prescription will deprive the public of the remedies against 
 such an injury. 1 But an individual, who suffers special injury 
 from a public nuisance, is entitled to the benefit of the conduct 
 of the community, and is not bound by tacit acquiescence, if 
 such conduct shows constant opposition to the defendant's acts 
 since the injury became material. 2 
 
 §533. Same — Same. — Neglect on the part of the public 
 may create such an equitable estoppel as to lead courts of 
 equity to decline to exert the extraordinary remedy of an in- 
 junction in its behalf. Such neglect is not in any sense a bar 
 of the right of the public, but is a circumstance to be consid- 
 ered by the court, in connection with the other circumstances 
 of the case, in determining whether the conduct of a plaintiff 
 justifies an interference by equity. Thus, in Attorney Gen- 
 eral v. Johnson, 3 which was a case of purpresture, Lord Eldon 
 said: "If the king's subjects have permitted the erection of a 
 building which they were aware would, when completed, be ai 
 nuisance, without promptly applying to the Court to prevent 
 it, the Court would not consider them entitled to the extraor- 
 dinary assistance of a Court of Equity, but leave them to their 
 legal remedy." In Attorney General v. Bradford Canal, 4 Vice 
 Chancellor "Wood expressed a similar opinion. This was the 
 ratio decidendi, so far as the public right was concerned, in the 
 case of Attorney General v. Sheffield Gas Consumers' Co., 5 
 where Turner, L. J., said : " That delay will affect the Attor- 
 ney General as much as a private individual I am not pre- 
 pared to say; but in my opinion, it is a circumstance to be 
 considered in determining the question whether this Court 
 
 Brewster, 8 Up. Can. C. P. 208. See «3 De Gex, M. & G. 304, 324 In 
 
 ante, § 331. That the statute of lim- that case the alleged injury to the 
 
 itations on actions for damages does public was called an afterthought by 
 
 not extend to actions to enjoin or Lord Cranworth (p. 314), and was 
 
 abate, see Cook v. Kendall, 13 Minn, lightly treated by the court. See a 
 
 324; Thornton v. Webb, 13 id. 498. remark of Wood, V. C, in Att. Gen. 
 
 1 Rochester v. Erickson, 46 Barb. v. Plymouth, 1 W. R. 445, distinguish- 
 92; People v. Pelton, 55 N. Y. S. 815; ing this case, which, as is said in Att. 
 159 N. Y. 537. Gen. v. Cambridge Gas Consumers* 
 
 2 Woodruff v. North Bloomfield G. Co., L. R. 4 Ch. 71, reversing s. C. L. R. 
 M. Co., 8 Sawyer, 628; 9 id. 441. 6 Eq.' 282, is doubtless to be taken 
 
 3 2 Wils. C. C. 87, 102. upon its own circumstances. 
 4 L. R. 2 Eq. 71. 
 
800 
 
 THE LAW OF WATERS. 
 
 [CH. XIII. 
 
 shall interfere, although the application to the Court be on be- 
 half of the Attorney General, and I ground myself in that 
 opinion upon what fell from Lord Eldon in the case of the 
 Attorney General v. Johnson." But where the public makes 
 out a plain case of injury by nuisance, and shows that it has no 
 adequate remedy at law, it seems that its right to the protec- 
 tion of a court of equity will not be lost by the delay or neg- 
 lect of its servants in asserting its rights. 1 
 
 §534. Same — Diversion — Obstruction. — The principles 
 upon which equity interferes, as stated in the foregoing sec- 
 tions, are accepted in all jurisdictions administering equitable 
 relief, but in applying them to concrete cases widely different 
 results have been reached. The diversion or obstruction of a 
 watercourse has been the subject of frequent equitable inter- 
 ference by way of injunction, both in England and America. 2 
 
 . ! Rochester v. Erickson, 46 Barb. 92. 
 In this case the decision is appar- 
 ently contrary to the English decis- 
 ions cited above. An injunction was 
 sought to restrain the defendants 
 from repairing a building projecting 
 into a river, which had stood in that 
 position for about forty years. The 
 court said: "If it is such a nuisance, 
 no period of use and occupancy, how- 
 ever extended and uninterrupted, 
 and under whatever claim of right, 
 will protect it from abatement by the 
 public authorities, or the preventive 
 remedy by injunction to restrain its 
 perpetuation by additions and re- 
 pairs.'' And see Wright v. Moore, 38 
 Ala. 593, where a dictum of similar 
 effect was made in an injunction 
 case. Most of the cases in which 
 the question has been raised are 
 where the State, in its sovereign 
 capacity, has exercised the harsher 
 remedy of indictment or abatement. 
 This has frequently been done after 
 the nuisance has continued for above 
 twenty years. Stoughton v. Baker, 4 
 Mass. 522; Com. v. Upton, 6 Gray, 473; 
 Mills v. Hall, 9 Wend. 315; Renwick 
 v. Morris, 3 Hill, 621; Rhodes v. 
 
 Whitehead, 27 Texas, 304, 316. See 
 1 Russell on Crimes (9th Am. ed.), 
 456. 
 
 2 Bush v. Western, Pree. in Ch. 530; 
 Weller v. Smeaton, 1 Bro. C. C. 572; 
 Robinson v. Lord Byron, 1 Bro. C. C. 
 588; Universities v. Richardson, 6 
 Ves. 706; Lane v. Newdigate, 10 Ves. 
 194; Rochdale Canal Co. v. King, 2 
 Sim. n. s. 79; Blakemore v. Glamor- 
 ganshire Canal, 1 My. & K. 154; El- 
 well v. Crowther, 31 Beav. 163; Chalk 
 v. Wyatt, 3 Meriv. 688; Martin v. 
 Stiles, Mosely, 145; Tipping v. Eck- 
 ersley, 2 K. & J. 264; Grand Junction 
 Canal Co. v. Shugar, L R 6 Ch. 483; 
 Att. Gen. v. Great Eastern Ry. Co., 
 L. R. 6 Ch. 577; Clowes v. Stafford- 
 shire W. W. Co., L. R. 8 Ch. 125 ; Wilts 
 Canal Co. v. Swindon W. W. Co., L. 
 R. 9 Ch. 451; Webb v. Portland 
 Manuf. Co., 3 Sumner, 189; Tyler v. 
 Wilkinson, 4 Mass. 397; Gardner v. 
 Newburgh. 2 Johns. Ch. 162; Van 
 Bergen v. Van Bergen, id. 273; 3 id. 
 282; Case v. Haight, 3 Wend. 632; 
 Arthur v. Case, 1 Paige Ch. 447; 
 Seneca Woolen Mills v. Tillman, 2 
 Barb. Ch. 9; Varick v. Smith, 5 Paige, 
 137; Reid v. Gifford, Hopk. Ch. 416; 
 
§ 534.] 
 
 EQUITABLE BEMEDIES. 
 
 801 
 
 It is said that a diversion will not be restrained by injunction 
 where there is ample water left for the plaintiff's needs. 1 So 
 if the water diverted be returned in undiminished quantity 
 before reaching the plaintiff's premises, equity will not inter- 
 fere. 2 And where an upper mill-owner, who diverts water for 
 his mill, offers to discharge it directly into the plaintiff's race 
 above his mill, and thus to give the plaintiff the full benefit of 
 its use, with substantially the same results as if it were re- 
 turned into the stream, such diversion will not be enjoined. 3 
 So if there is a channel departing from the main stream, and 
 returning, and the defendant cuts a raceway from the main 
 stream, giving the narrower channel a straighter course, but 
 not decreasing the amount of the map stream, there is no in- 
 
 coming v. Troy Iron Factory, 40 N. 
 Y. 191; 34 Barb. 485; 39 Barb. 311; 
 Corning v. Troy Factory, 6 How. Pr. 
 «9; Garwood v. N. Y. Central R. R. 
 Co., 17 Hun, 356; Binney's Case, 2 
 Bland Ch. 99; Lambornt). Covington, 
 2 Md. Ch. 409; Koopman v. Blodgett, 
 70 Mich. 610; Scudder v. Trenton 
 Delaware Falls, 1 Saxt. (N. J.) 694; 
 Holsman v. Boiling Spring Co., 1 Mc- 
 Carter, 335; Shreve v. Voorhees, 2 
 Green Ch. 25; Shields v. Arndt, 3 id. 
 234; Hulme v. Shreve, id. 116; Carlisle 
 v. Cooper, 21 N. J. Eq. 576; Denton v. 
 Leddell, 23 id. 64; Bailey v. Schnitz- 
 ius, 53 id. 235; Sprague v. Rhodes, 4 
 R. L 301; Bemis v. Upham, 13 Pick. 
 169; Bard well v. Ames, 22 Pick. 353, 
 379; Smith v. Olmstead, 5 Blackf. 37; 
 Mathews v. Metcalf, 97 Iowa, 742; 
 Burden v. Stein, 27 Ala. 104; Wright 
 v. Moore, 38 Ala. 593; Tuolumne 
 Water Co. v. Chapman, 8 Cal. 392; 
 Sanford v. Felt, 71 Cal. 249; Gould v. 
 Stafford, 101 Cal. 32; Churchill v. 
 Baumann, 104 Cal. 369; Bartlett v. 
 O'Connor (Cal.), 36 Pac. Rep. 513; Mc- 
 Kenzie v. Ballard, 14 Col. 426; White 
 v. Forbes, Walker's Ch. (Mich.) 112. 
 See Fleming's Appeal, 65 Penn. St. 
 444 ; Switzer v. McCulIoch, 76 Va. 777 ; 
 Shively v. Hume, 10 Oregon, 76. 
 
 1 Cilly v. Cincinnati, 2 Cin. Weekly 
 Bulletin, 135; Raymond v. Wimsette, 
 51 
 
 12 Mont. 551; Sparlin v. Gotcher, 23 
 Oregon. 186. See Amsterdam Knit- 
 ting Co. v. Dean, 43 N. Y. S. 29; Wat- 
 son v. New Milford W. Co., 71 Conn. 
 442; Murphy v. Stanford W. Co. (Ky.), 
 50 S. W. Rep. 885. So where the injury 
 complained of was done and com- 
 pleted by the acts of others than the 
 defendants, an injunction will not lie 
 to restrain the defendants from acts 
 which will work no injury. An al- 
 leged injury to the bare right of navi- 
 gating a canal which has been aban- 
 doned and in part filled up by others, 
 is no ground for an injunction. It is 
 a mere damnum absque injuria. The 
 injury which the party apprehends 
 must be reaL Erkenbrecher v. Este, 
 1 Cin. Sup. Ct. 368; see Wilson v. 
 Featherstone, 120 N. C. 449. Diver- 
 sion above on the stream is not fraud, 
 giving jurisdiction in equity. Gal- 
 vin v. Shaw, 12 Maine, 454. 
 
 2 Elmhirst v. Spencer, 2 Macn. & G. 
 45; Edleston v. Crossley, 18 L. T. N. s. 
 15; Kensit v. Great Eastern Ry. Co., 
 27 Ch. D. 122; 23 Ch. D. 566; Canfield 
 v. Andrews, 54 Vt. 1; Lillis v. Emi- 
 grant Ditch Co., 95 Cal. 553; Canal 
 Com'rs' v. East Peoria, 75 I1L App. 
 450. 
 
 3 Mason v. Cotton, 2 McCrary, 82; 
 Mumpower v. Bristol, 90 Va. 151. 
 
802 THE LAW OF WATERS. [Ch. XIII. 
 
 jury cognizable in equity. 1 An injunction is the appropriate 
 remedy to prevent a land-owner from diverting from its nat- 
 ural channel water from his land, which lies outside the dis- 
 trict, into a district ditch. 2 The jurisdiction to issue a prelim- 
 inary injunction against diversion includes the power to direct 
 the removal of the means by which it is accomplished. 3 
 
 § 535. Same — Same. — The obstruction of an artificial 
 channel, in which the plaintiff is entitled to the flow of water, 
 is equally within the remedial powers of courts of equity. 4 So 
 if the plaintiff has, by grant or otherwise, the right to convey 
 water through a conduit beneath the surface of the defendant's 
 land, and the defendant wrongfully stops the channel or cuts 
 the pipes, the plaintiff is entitled to an injunction. 5 And if 
 the plaintiff's right is merely that of a licensee, but the defend- 
 ant has encouraged the expenditure of money in constructing 
 the course, and acquiesced in its use, equity will restrain the 
 defendant from obstructing it. 6 
 
 o 
 
 §536. Same — Same. — -Where water flows from surface 
 springs, though not in a perfectly defined channel, into adjoin- 
 ing lands, the owners of such lands are entitled to the flow, 
 and will be protected in it by injunction against any diversion 
 
 1 Potier v. Burden, 38 Ala. 651. of draining a swamp. Houston u. 
 
 2 Dayton v. Rutherford, 128 111. 271 ; Wheeler, 52 N. Y. 641. See Heilbron- 
 29 111. App. 31. v. Land Co., 80 Ual. 189; Van Bibber 
 
 3 Johnson v. Superior Court, 65 Cal. v. Hilton, 84 Cal. 585; Bass v. Fort 
 567; U. S. Freehold Land Co. v. Gal- Wayne, 121 Ind. 389; Chambers v 
 
 9 Fed. Rep. 769. Kyle, 87 Ind. 83; 15 Sol. J. 487. • 
 
 4 Dewhirst v. Wrigley, 1 C. P. 5 Devonshire v. Eglin, 14 Bea v. 530; 
 
 Cooper^ 319: Manser v. Northern Ry. Legg t. Horn, 45 Conn. 409; Wilcox 
 
 Co., 2 Ry. & C. Cas. 380; Coats v. v. Wheeler, 47 N. Y. 488; Bitting's 
 
 Clarence Ry. Co., 1 Russ. & My. 181; Appeal, 105 Penn. St. 517. 
 
 Varick v. Smith, 5 Paige, 137; H°yt 6 Devonshire v. Eglin, 14 Beav. 530; 
 
 v. Cline, 133 N. Y. 686; 15 N. Y. S. Legg v. Horn, 45 Conn. 409. But see 
 
 337; Newland®. Hudson River W. P. Owen v. Field, 12 Allen, 457. In this 
 
 Co., 16 N. Y. S. 654; Covert v. Valen- case no facts of acquisition are stated, 
 
 tine, 21 id. 219; Chase v. Warsaw W. The plaintiff had been conveying 
 
 W. Co., 29 id. 729 ; Gilzinger v. Sau- water across the defendant's land by 
 
 gerties W. Co., 21 id. 121 ; Barnard v. an aqueduct under a license; the de- 
 
 Com'rs, 71 111. App. 187; Sanderlin v. fendant revoked the license and took 
 
 Baxter, 76 Va. 299. An injunction up the aqueduct. The court refused 
 
 will be granted to restrain the ob- to enjoin him from preventing the- 
 
 struction of a canal constructed pur- plaintiff from replacing it. 
 suant to a statute for the purpose 
 
§ 537.] EQUITABLE REMEDIES. 803 
 
 by the owner of the springs. 1 The discharge of surface-water 
 through an artificial channel, upon the lands of another, is 
 ground for an injunction, 2 subject to the general principles 
 heretofore stated, as that the injury must be beyond compen- 
 sation at law. 3 
 
 § 537. Same — Same. — The unreasonable detention and dis- 
 charge of water by alternately opening and closing the gates 
 of a dam is an injury remediable by injunction. 4 So the wrong- 
 ful opening of the gates of a dam, letting down a flood of 
 water and preventing the prosecution of a lawful public work 
 in the stream, will be prevented by injunction. 5 Where one 
 has lawfully maintained a dam at a certain height, a wrongful 
 increase in its height is not necessarily an injury beyond the 
 powers of courts of law to remedy. 6 But where a dam main- 
 tained at a lawful height did not affect the plaintiff's land, 
 and the increase of height caused its overflow, it was held that 
 equity would prevent such injury, and to that end would de- 
 termine the proper height of the dam, and forbid its mainte- 
 nance above that height. 7 Where the alleged injury results 
 from conflicting uses of a common stream, equity will deter- 
 mine the rights of both parties by one decree. 8 
 
 lEnnor v. Barwell, 2 Giff. 410; 4 J. Eq. 62; 48 id. 645; Jacobson v. Van 
 
 L, T. N. s. 597; Foot v.W&n Giesen, 4 Boening, 48 Neb. 80. 
 
 Lans. 47; 35 L. T. 362. For a similar 3 Laney v. Jasper, 39 HL 46. 
 
 case at law, see Duddon v. Clutton 4 Pollitt v. Long, 58 Barb. 20. 
 
 Union, 1 H. & N. 627. It is no justifi- » Longwood Valley Co. v. Baker, 21 
 
 cation of a detention of water, which. N. J. Eq. 166. 
 
 flows in a natural channel and sup- 6 Colwell v. May's Landing Co., 19 
 
 plies the lands of the plaintiff, that N. J. Eq. 245. 
 
 the defendant intercepted the flow 7 Carlisle v. Cooper, 21 N. J. Eq. 576; 
 
 at its source on his own land, nor is it Longwood Valley B. Co. v. Baker, 27 
 
 any defence in such case to show id. 166; Crosby v. Smith, 19 Wis. 449. 
 
 that the water has been ponded in a The wrongful addition of flashboards 
 
 reservoir which may be needed to to a dam rightfully maintained may 
 
 supply a town with water under a cause such an injury as to call for 
 
 contract made by the defendant with an injunction. Knapp v. Douglas 
 
 the town, Howe v. Norman, 13 R. I. Axe Co., 13 Allen, 1; Beamish v. Bar- 
 
 488. See Ferrism "Wellborn, 64 Miss, rett, 16 Grant's Ch. (Can.) 318. Urf- 
 
 29; Perkins v. Foye, 60 N. H. 496. healthfulness caused by the increased 
 
 2 Ante, ch. 9; Pettigrqw v. Evans- height of a dam may be ground for 
 
 ville, 25 Wis. 223; Davis v. Lond- an injunction. Norwood v. Dickey, 
 
 green, 8 Neb. 43; Hicks v. Silliman, 18 Ga. 282. 
 
 93 111. 255; Miller v. Morristown, 47 N. 8 Arthur v. Case, 1 Paige, 446; Bel- 
 
804 
 
 THE LAW OF WATERS. 
 
 [Ch. XIII. 
 
 §538. Same — Eights fixed by parties. — Where parties 
 have regulated their rights in water by a contract, it is not 
 the province of equit}^ to construe such contract and deter- 
 mine their rights under it; x but where its meaning is clear, 2 
 or has been adjudicated, equity will restrain the parties from 
 any breach of it, although the acts proposed would not ap- 
 parently be injurious to the plaintiff. 3 "Where the act is not 
 clearly a breach, equity will not interfere 4 unless serious injury 
 is shown ; 5 but where great changes are proposed, in breach of 
 the rights alleged under the contract, and the meaning of the 
 contract is doubtful, equity will enjoin the parties from making 
 such changes until the rights can be determined at the hearing, 
 or by issue at law. 6 
 
 § 539. Same — Same. — So equity will adjust the respective 
 rights of grantors and grantees of water or riparian property. 7 
 Where a riparian owner conveys a portion of his land includ- 
 
 knapu Trimble, 3 Paige, 577; Lehigh 
 Valley R. Co. v. Society, 30 N. J. Eq. 
 145; 32 id. 329; Atlanta Mills v. Ma- 
 son, 120 Mass. 244 In such cases it 
 is necessary so to frame the decree 
 as to protect the rights of each, and, 
 unless the injury clearly calls for 
 equitable interference, it is best to 
 leave the parties first to their reme- 
 dies at law, Hoxsie v. Hoxsie, 38 
 Mich. 77. If one erects a new mill 
 so close above an existing mill as to 
 suffer from its back flowage, equity 
 will not interfere until he has estab- 
 lished his right at law. Van Bergen 
 v. Van Bergen, 3 Johns. Ch. 282. 
 
 i Fisk v. Wilber, 7 Barb. 395; Burn- 
 ham 'v. Kempton, 44 N. H. 78, 93; 
 Morris Canal Co. v. Society, 1 Halst. 
 Ch. 203; Detwiler v. Toledo, 5 Ohio 
 Cir. Ct. 360. In Mayor v. Spring 
 Garden Com'rs, 7 Penn. St. 348, where 
 the legislature had granted an ex- 
 clusive right to the water-power of 
 a navigable stream to the grantors of 
 the plaintiff, and afterwards granted 
 a privilege of taking water from the 
 ' stream to supply the inhabitants of 
 a district with water, but not for use 
 as water-power, and it was shown 
 
 that the taking of the amount neces- 
 sary to supply the district would 
 have no effect upon the power, the 
 court held that the latter grant was 
 not in derogation of the former, 
 and refused to grant an injunction 
 against the erection of works for 
 taking the water. 
 
 2 Tipping v. Eckersley, 2 EL & J. 
 264; Olmsted v. Loomis, 9 N. Y. 423; 
 6 Barb. 52 ; Horsky v. Helena Cons. 
 W. Co., 13 Mont. 229 ; Koenig v. Water- 
 town (Wis.), 80 N. W. Eep. 728. 
 
 'Dickinson v. Grand Junction 
 Canal Co., 15 Beav. 260; Powers v. 
 Hibbard, 114 Mich. 533.; Hendricks v. 
 Hughes, 117 Ala. 591. 
 
 4 Morris Canal Co. v. Society, 1 
 Halst. Ch. 203. 
 
 5 Ingram v. Morecraft, 33 Beav. 49. 
 
 6 Johnston v. Hyde, 25 N. J. Eq. 454 
 1 Seneca Woollen Mills v. Tillman,. 
 
 2 Barb. Ch. 9; Crittenden v. Field, 8 
 Gray, 621; Patten ifMarden, 14 Wis. 
 473; Hanna v. Clarke, 31 Gratt 36 
 Comstock v. Johnson, 46 N. Y. 615 
 Wakely v. Davidson, 26 N. Y 387 
 Merrill v. Calkins, 74 N. Y. 1; 10 Hun, 
 497. 
 
§ 540.] EQUITABLE EEMEDIES. 805 
 
 ing a water-power, equity will restrain him from disturbing his 
 grantee in violation of the express terms of his grant without 
 first sending the grantee to a court of law. 1 So where, under 
 a Mill Act, rights of the parties have been fixed and a jury have 
 found that the dam should be kept open at certain seasons, an 
 injunction will be granted to protect the plaintiff's right under 
 such finding. 3 
 
 § 540. Same — Common rights regulate* in equity. — 
 
 Another ground of equity jurisdiction is the regulation of 
 common rights in water. Judge Sargeant says: ''Courts of 
 equity have jurisdiction of that class of cases where there is 
 an admitted common right among several owners of the same 
 privilege, to regulate the common use, to determine the ex- 
 tent of their respective rights and the proper mode for exer- 
 cising and enjoying them, as tending to prevent litigation, 
 and as affording a more complete and perfect remedy than 
 could be obtained at law, and as furnishing, in fact, the only 
 adequate means of ascertaining and determining the respect- 
 ive rights of the parties." 3 The jurisdiction in this class of 
 cases rests on the inadequacy of legal remedies, and the pre- 
 vention of multiplicity of suits. 4 The majority of an associa- 
 tion have been restrained from letting water run to waste 
 i 
 
 1 Seneca Woollen Mills v. Tillman, Braley, 47 Vt. 170; Adams v. Man- 
 2 Barb. Ch. 9. ning, 48 Conn. 477; 51 id. 5; Hoxie 
 
 2 Hill w Sayles, 12 Cush. 454. v. Hoxie, 38 Mich. 77; Hanna v. 
 3 Burnham v. Kempton, 44 N. H. Clarke, 31 Gratt. 36; Switzer v. Mc- 
 
 78, 100; Hooker uMcLeod, 70 Vt. 327. Culloch, 76 Va. 777, 789; Ballou v. 
 
 Where two corporations have con- Hopkinton, 4 Gray, 324; Bard well v. 
 
 flicting claims under their charters Ames, 22 Pick. 333, 354; Belknap v. 
 
 to the use of the waters of the same Trimble, 3 Paige, 377; Boston Water 
 
 streams, equity has jurisdiction to Power Co. v. Boston & Worcester R. 
 
 settle their relative rights, and for Co., 16 Pick. 512, 526. That allega- 
 
 that purpose may enjoin further tions must show injuries of such 
 
 prosecution of suits at law. Lehigh rights, see Norris v. Hill, 1 Mich. 202. 
 
 Valley R. Co. v. Society, 30 N. J. Eq. 4 McConnaughy v Pennoyer. 43 
 
 145; 32 id. 329. See, also, Ranlet v. Fed. Rep. 339; Ulbricht v. Eufaula 
 
 Cook, 44 N. H. 512; Ballou v. Wood, Water Co., 86 Ala. 587; Patten Paper 
 
 8 Cush. 48; Dyer v. Cranston P. W. Co. v. Kaukauna W. P. Co., 70 Wis. 
 
 Co., 17 R. I. 774; Myer v. Phillips, 97 659; Frey v. Lowden, 70 Cal. 550; 
 
 N. T. 485; U. S. Freehold Land Co. v. Lowden v. Frey, 67 id. 474. See Pome- 
 
 Gallegos,<89 Fed. Rep. 769; Lyon v. roy on Riparian Rights, § 154; 1 Pom. 
 
 McLaughlin, 32 Vt. 423; Sanborn v. Eq. § 255 et siq.; infra, § 563. 
 
806 
 
 THE LAW OF WATERS. 
 
 [Oh. XIII. 
 
 without regard to the interests of the minority ; ' and where 
 one of several parties having a common interest in a water- 
 power uses more than his share, equity will call all the parties 
 before it, if necessary determine their respective rights and 
 obligations by one decree, and enjoin those using more than 
 their share from such use, 2 or from permitting the water to 
 run to waste. 3 Parties who are jointly interested in the use 
 and benefit of a mill or water-power are held liable in equity 
 to a proportional share of the expenditures for the common 
 benefit, necessary for maintaining such mill or power; 4 and if 
 they co-operate for a long time in conveying water to irrigate 
 their respective lands, they will be presumed entitled to an 
 equal share of the water under 3, tacit agreement which a court 
 of equity may enforce. 5 But this principle does not apply 
 Avhen the deeds of conveyance fix the rights of each mill-owner, 
 and define his liability as to contribution in maintaining a dam 
 iu which all have a common interest. 6 
 
 1 Ballou v. Wood, 8 Cush. 48. 
 
 2 Kennedy v. Scovil, 12 Conn. 317; 
 Adams v. Manning, 48 id. 477 ; Mason 
 v. -Hoyle, 56 id. 355; Ottaqueohee 
 Woolen Co. v. Newton, 57 Vt. 451; 
 May v. Parker, 12 Pick. 34; Bliss v. 
 Rice, 17 id. 23; Ballou v. Hopkinton, 
 4 Gray, 324; Pacific Live-Stock Co. 
 v. Hanley, 98 Fed. Rep. 327; Salem 
 Co. v. Salem F. M. Co., 12 Oregon, 
 374; Hanna v. Clarke, 31 Gratt. 36. 
 Where several have a right of passage 
 in a private canal, equity will enjoin 
 a party in interest from injuring the 
 canal. Page v. Young, 106 Mass. 
 313. An oral agreement by tenants 
 in common of a dam, giving each 
 other a way over it, will not, though 
 executed, give a good right of way 
 to one co-tenant against a purchaser 
 for value from the other without no- 
 tice of the agreement, and will not 
 be enforced against him in equity. 
 Bush v. Golden, 17 Conn. 594 In 
 Woodruff v. North Bloomfield G. M. 
 Co., 8 Sawyer, 628; 9 id. 441, it is held 
 that one tenant in common of land 
 injured by a public and private nui- 
 
 sance may sue to enjoin the nuisance 
 without making his co-tenant a 
 party, eithar as complainant or de- 
 fendant. 
 
 s Fuller v. Daniels) 63 N. H. 395. 
 
 *Bradfield v. Dewell, 48 Mich. 9; 
 Benman v. Prince, 40 Barb. 213; 
 Clark v. Plummer, 31 Wis. 442; San- 
 born v. Braley, 47 Vt. 170; Carvers. 
 Miller, 4 Mass. 559: Buck v. Spof- 
 ford, 47 Vt. 170. In several of the 
 States this liability is regulated by 
 statute, proceedings are authorized 
 to determine the necessity and ex- 
 tent of repairs and liens on the prop- 
 erty, or, as in Massachusetts, on the 
 profits of business, given to enforce 
 payment. See Mass. Pub. Stats. 1882, 
 ch. 190, § 59 et seq., N. H. Rev. Stats. 
 (1878), Title 17, ch. 141; Maine Rev. 
 Stats. (1871), Title 4. ch. 57; Alden v. 
 Carleton, 81 Maine, 358; Wisconsin 
 Rev. Stats. (1878), ch. 146, § 3403 et 
 seq.; Cheshire Mills v. Gowing, 62 
 N. H. 618. 
 
 5 Combs v. Slay ton, 19 Oregon, 99; 
 Frey v. Lowden, 70 Cal. 550. 
 
 «Tullar v. Baxter, 59 Vt. 467. 
 
§§ 541, 542.] EQUITABLE KEMEDIES. 807. 
 
 §541. Same — Health.— An injury to health by the ob- 
 struction and accumulation of water is ground for injunction. 1 
 But in States where the law favors the development of mills, 
 it is held that if the injury to health is merely to one family 
 or to a few individuals, the private right must give way to the 
 public convenience, at least so far that equity will not enjoin 
 the accumulation of water, but leave the plaintiffs to their legal 
 remedies. 2 And an injunction will not be granted, on the ap- 
 plication of individuals, to prevent injuries to the public health, 
 unless it is alleged in the bill that, their health will be directly 
 affected by the nuisance. 3 
 
 §542, Same — Subterranean waters. — In general equity 
 will not interpose to prevent the diversion of subterranean 
 waters by an excavation on the defendant's own land. 4 This 
 follows from the principles with regard to subterranean waters, 
 which have been stated in a former chapter. 5 But where such 
 diversion of subterranean water, will have the effect of cutting 
 off the supply of a stream in a defined surface channel through 
 other lands, the diversion will be enjoined. 6 And where sub- 
 terranean water flows in a defined channel and a known course, 
 equity will protect the rights of property owners in such 
 stream. 7 "Where a well is supplied by water percolating 
 through the earth, the owner of the well is not entitled to the 
 water until it enters his well, and equity will not enjoin the 
 opening and maintenance of a new well which diverts water 
 therefrom. 8 The occupier of neighboring property will be re- 
 
 iBell v. Blount, 4 Hawks (N. C), *Ante, ch. 9. 
 
 384; Att. Gen. v. Hunter, 1 Dev. Eq. 6 Grand Junction Canal Co. v. Shu- 
 
 (N. C.) 12; Ogletree v. McQuaggs, 67 gar, L. R. 6 Ch. 483; Redman v. For- 
 
 Ala. 580; Norwood v. Dickey, 18 Ga. man, 84 Ky. 214; Vineland Ir. District 
 
 528 ; Adams v. Popham, 76 N. Y. 410 ; v. Azusa Ir. Co. (Cal.), 58 Pac. Rep. 1057. 
 
 Dierks v. Com'rs, 142 111. 197. 7 Delhi v, Youmans, 50 Barb. 316; 
 
 2 Easonv.Perkins,2Dev.Eq. (N.C.) 45 N. Y. 362; Cole Silver M. Co. v. 
 
 38; Wilder v. Strickland, 2 Jones Eq. Virginia W. Co., 1 Sawyer, 470, 686; 
 
 (N. C.)386; Fox v. Holcomb, 32 Mich. Burroughs v. Satterlee, 67 Iowa, 396; 
 
 494. Keeney v. Carillo, 2 New Mex. 480. 
 
 • 3 Vail v. Mix, 74 111. 127. See Adams 8 Hammond v. Hall, 10 Sim. 551; 
 
 v. Popham, 76 N. Y. 410. Ellis v. Duncan, 21 Barb. 230; Delhi 
 
 4 Grand Junction Canal Co. v. Shu- v. Youmans, 50 Barb. 316; 45 N. Y. 
 
 gar, L. R. 6 Ch. 483; Roath v. Dris- 362. See Acton v. Blundell, 12 M. & 
 
 coll, 20 Conn. 533; Ellis v. Duncan, W. 324; and see ante, ch. 9. 
 21 Barb. 230; Mosier v. Caldwell, 7 
 Key. 363. 
 
808 
 
 THE LAW OF WATERS. 
 
 [Ch. XIII. 
 
 strained from collecting rubbish on his property, or using a 
 cesspool .therein in such a manner as to pollute the water com- 
 ing through his property and supplying the well, 1 but a stable 
 built twenty-five feet from the plaintiff's house and well is not 
 a nuisance per se? 
 
 §543. Same — Prior appropriation. — Under the customs 
 of miners, adopted in the mining States and Territories, and 
 allowing priority of right to the first appropriator of a stream, 3 
 which doctrine has been extended by the courts to appropria- 
 tions of streams flowing through public lands, 4 for any bene- 
 ficial use, an appropriator of such a stream in whole or in part 5 
 will be protected by injunction in the enjoyment of that por- 
 tion of the stream to which he is entitled, 6 and to prevent 
 wrongful acts acquiring the appearance of right by lapse of 
 
 1 Womersley v. Church, 17 L. T. 
 N. s. 190. It is held in Indiana that 
 equity will not restrain a municipal- 
 ity 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 " impossible to establish correlative 
 rights in a subterraneous stream, the 
 situation of which is not known;" 
 and thaft 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. Hazlett, 23 
 Ind. 186. 
 
 2 Keiser v. Lovett, 85 Ind. 240; Beat- 
 rice Gas Co. v. Thomas, 41 Neb. 662; 
 Davis v. Atkins (Ky.), 35 S. W. Rep. 271 ; 
 Pennoyer v. Allen, 56 Wis. 502; 42 
 Am. Rep. 540, note. 
 
 3 Ante, ch. 7; 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. v. Vaughan, 11 Cal. 
 143; McDonald 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. Jennings, 6 Nev. 83; Dal- 
 ton v. Bowker, 8 Nev. 201 ; Barnes v. 
 Sabron, 10 Nev. 217; Columbia Min- 
 ing Co. v. Holter, 1 Mon. 296; Wool- 
 man v. Garringer, 1 Mon. 535; Keeney 
 v. Carillo, 2 New Mex. 480; Hunga- 
 rian Hill Co. v. Moses, 58 Cal. 168; 
 ante, ch. 7. See Cal. Civ. Code; 
 §§ 1410-1422. 
 
 4 Ante, § 240; Wixon v. 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, ch. 9. 
 
 5 Butte Canal Co. v. Vaughan, 11 
 Cal. 143; Keeney v. Carillo, 2. New 
 Mex. 480; Farley v. Spring Valley 
 Mining Co., 58 CaL 142. 
 
 6 Phoenix Water Co. v. Fletcher, 23' 
 Cal. 482; Ophir Mining Co. v. Carpen- 
 ter, 4 Nev. 534; Hobart v. Ford, 6 Nev. 
 80; Barnes v. Sabron, 10 Nev. 217; 
 Hoye v. Sweetman, 19 Nev. 376; Rob- 
 erts v. Arthur, 15 Col. 456; Atchison 
 v. Peterson, 20 Wall. 507; Basey v. 
 Gallagher, 20 Wall. 670; Columbia 
 Mining Co. v. Holter, 1 Mon. 296; 
 Stowell v. Johnson, 7 Utah, 215 - r 
 Keeney v. Carillo, 2 New Mex. 480. i 
 
§ 544.] 
 
 EQUITABLE EEMEDIES. 
 
 809 
 
 time. 1 Such right 2 extends to subterranean currents of water, 
 which will be protected by injunction; but one who claims to 
 be injured by a diversion which affects only the overflowing 
 waters of a natural stream is not entitled to have it restrained. 3 
 
 • § 544. Same-:- Pollution.— The pollution of a stream or 
 supply of water is another frequent ground for equitable in- 
 terference. 1 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 dis- 
 charge of sewage eight miles above, on the ground of nui- 
 sance, and the evidence showed that there was such pollution 
 at the point of discharge, but that it was wholly imperceptible 
 
 Boiling Spring Co., 1 McCarter, 335; 
 Att. Gen. v. Steward, 20 N. J. Eq. 
 415; 21 id. 340; Beach v. Sterling 
 Iron Co., 54 id. 65; Jessup, etc. Co. v. 
 Ford, 6 Del. Ch. 52; Merrifleld v. Lom- 
 bard, 13 Allen, 16; Richmond Manuf. 
 Co. v. Atlantic Delaine Co., 10 R. L 
 106; Seaman v. Lee, 10 Hun, 607; 
 Canfield v. Andrews, 54 Vt. 1 ; Coff- 
 rin v. Cole, 67 Vt. 226. See New Bos- 
 ton Coal Co. v. Potts ville Water Co., 
 54 Penn. St. 164; Rarick v. Smith, 17 
 Penn. Co. Ct. 627; Middlestadt v. 
 Waupaca Starch Co., 93 Wis. 1 ; Wood- 
 year v. Schaefer, 57 Md. 1 ; Woodruff 
 v. North Bloomfleld G. M. Co., 8 Saw- 
 yer, 628; 9 id. 441; Silver Spring Co. 
 v. Wanskuck Co., 13 R. I. 611; Glas- 
 sell v. Verdrigo, 108 Cal. 503. In the 
 last case it was decided that the 
 change of a community from agri- \ 
 cultural to manufacturing does not 
 change the policy of the law, nor the 
 rights of riparian owners to the nat- 
 ural purity of the stream. Riparian 
 land may be used for pasturing cattle 
 though they corrupt the stream to 
 the injury of a water company. Hel- 
 frich v. Catonsville W. Co., 74 Md. 
 269. As to cemeteries, see Lowe v. 
 Prospect Hill Cem. Ass'n (Neb.), 78 
 N. W. Rep. 488. 
 
 1 Moore v. Clear Water Co., 68 Cal. 
 146; Creighton v. Kaweah Canal Co., 
 67 CaL 221. 
 
 *Ante, §§ 281, 287; Cross v. Kitts, 
 69 CaL 217; Brown v. Ashley, 16 Nev. 
 317; Parker v. Larsen, 86 Cal. 236. 
 Where the plaintiff in excavating a 
 tunnel in a mountain to its mining 
 claim, on government lands, struck a 
 subterranean flow of water, and ap- 
 propriated and used it, and several 
 years afterward the defendants, by 
 another tunnel, intercepted the flow 
 of water and appropriated it to their 
 own use, an injunction was issued 
 restraining the defendants from such 
 diversion. Cole Silver M. Co. v. Vir- 
 ginia W. Co., 1 Sawyer, 470. See 
 Lorenz v. Waldron, 96 Cal. 243. 
 
 3 Edgar v. Stevenson, 76 Cal. 286; 
 Bruening v. Dorr, 23 Col. 195. 
 
 4 Wood v. Sutcliffe, 2 Sim. N. s. 163; 
 Oldaker v. Hunt, 6 De Gex, M. & G. 
 376; 19 Beav. 485; Lingwood v. Stow- 
 niarket, L. R. 1 Eq. 77; Goldsmid v. 
 Tunbridge Wells, L. R 1 Ch. 349; 
 L. R, 1 Eq. 161 ; Att. Gen. v. Bradford 
 Canal, L. R. 2 Eq. 71; Crossley v. 
 Lightowler, L. R. 2 Ch. 418; Clowes 
 v. Staffordshire, L. R. 8 Ch. 125; Pen- 
 nington v. Brinsop H. C. Co., 5 Ch. D. 
 769; Jamieson v. Russel, 3 Pat. Ap. 
 (Scot.) 403; ante, § 219; Holsman v. 
 
810 
 
 THE LAW OF WATEES. 
 
 [Oh. XIII. 
 
 by chemical analysis at the intake of the waterworks, Jessel, 
 M. R, dismissed the bill. 1 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 culti- 
 vating water-cress beds, Wood, Y. 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 refused the injunction. 2 But where perceptible 
 pollution is shown to the damage of the plaintiff, an injunction 
 will be granted to prevent its continuance, 3 although the dam- 
 age may be merely nominal, 4 and although the pollution is made 
 by statute a criminal act. 5 A corruption of water will be en- 
 joined if causing injury to the plaintiff in any rightful use of 
 the water, as by rendering it unfit for manufacturing purposes, 6 
 or for domestic uses, 7 or for the drink of cattle, 8 or for fish to 
 live in, 9 or when it impairs the health of those in the commu- 
 
 x Att. Gen. v. Cockermouth Local 
 Board, L. R. 18 Eq. 172. See also Sil- 
 ver Spring Co. v. Wanskuok Co., 13 
 E. I. 611. 
 
 2 Weeks v. Heward, 10 W. R 557. 
 
 3 Goldsmid v. Tunbridge Wells, L. 
 R. 1 Ch. App. 349; Crossley v. Light- 
 owler, L. R. 2 Ch. App. 478; Bidder v. 
 Croyden, 6 L. T. N. s. 778; Manchester 
 v. Worksop, 23 Beav. 198; Oldaker v. 
 Hunt, 6 De G, M. & G. 376; Att. 
 Gen. v. Birmingham, 4 K. & J. 528; 
 Att. Gen. v. Suton, 2 Jur. n. s. 180; 
 Pennington v. Brinsop H. C. Co., 5 
 Ch. D. 769. 
 
 4 Crossley v. Lightowler, L. R. 2 Ch. 
 App. 478; Att. Gen. v. Leeds, L. R. 5 
 Ch. App. 583, 589 (per James, V. C, 
 in note); Clowes v. Staffordshire, L. 
 R 8 Ch. App. 125; Pennington v. 
 Brinsop H. C. Co., 5 Ch. D. 769; Town- 
 send v. Bell, 17 N. Y. S. 210. See 
 •Coulson & Forbes on Waters, 669. 
 
 5 Barrett v. Mt. Greenwood Cem. 
 Ass'n, 159 111. 385. See Tiede v. 
 Schneidt, 99 Wis. 201; 74 N. W. Rep. 
 798; 81 id. 826; Com. v. Russell, 172 
 Penn. St. 506. 
 
 6 Wood v. Sutcliffe, 2 Sim. n. s. 163; 
 Tipping v. Eckersley, 2 K & J. 264; 
 Crossley v. Lightowler, L. R 2 Ch. 
 App. 478; Clowes v. Staffordshire, L. 
 R 8 Ch. App. 125; Pennington v. 
 Brinsop, L. R. 5 Ch. D. 769; Merrifleld 
 v. Lombard, 13 Allen, 16. 
 
 7 Goldsmid v.. Tunbridge Wells, L 
 R 1 Ch. 349; L. R 1 Eq. 161; Att. 
 Gen. v. Cockermouth Board, L. R 18 
 Eq. 172; Holsman v. Boiling Spring 
 Co., 1 McCarter, 335; Att. Gen. v. 
 Steward, 20 N. J. Eq. 415; Baltimore 
 v. Warren Manuf. Co., 59 Md. 96; 
 Townsend v. Bell, 59 N. Y. S. 203; 
 Wheeler v. Fisher Oil Co., 6 Ohio N. ; 
 P. 309. 
 
 8 Oldaker v. Hunt, 6 De Gex, M. & 
 G. 376; 19 Beav. 485; Att. Gen. v. 
 Birmingham, 4 K. & J. 528; Att. 
 Gen. v. Luton Local Board, 2 Jur. 
 n. s. 180. 
 
 9 Oldaker v. Hunt, 6 De Gex, M. & ' 
 G. 376; 19 Beav. 485; Bidder v. Croy- 
 don, 6 L. T. N. s. 778; Att. Gen. v. 
 Luton Local Board, 2 Jur. n. s. 180; 
 Att. Gen. v. Birmingham, 4 K. & J. 
 8; Seaman v. Lee, 10 Hun, 607. 
 
§ 545.] EQUITABLE REMEDIES. 811 
 
 nity. 1 So the accumulation of corrupting deposits in a stream, 2 
 the pollution of a canal or ditch, 3 the discharge into a stream 
 of heated water, 4 or of the offal of abattoirs, 5 or of sawdust 
 from a mill, 6 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 part of the whole 
 corruption, is no bar to an injunction. 7 If the defendant lias 
 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. 8 The same rules apply to the 
 corruption of navigable or tidal waters as to private streams. 9 
 
 §545. Same — Same.— The pollution of streams by mu- 
 nicipalities and public bodies in charge of sewage and drainage 
 has occasioned 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 pub- 
 lic 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. 10 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. 11 If it exercises such 
 
 i Ante, §220. Ch. D. 769; Indianapolis W. Co. v. 
 
 2 Att. Gen. v. Bradford Canal, L. American Strawboard Co., '57 Fed. 
 
 E. 2 Eq. 71; Att. Gen. v. Luton Local Rep. 1000; 53 id. 970; 75 id. 972; Ster- 
 
 Board, 2 Jur. n. s. 180; Hudson River ling Iron Co.'u Sparks Manuf. Co., 55 
 
 R. R. Co. v. Loeb, 7 Rob. (N. Y.) 418; N. J. Eq. 824, affirming Beach v. Ster- 
 
 Att. Gen. v. McLaughlin, 1 Ch.,(Can.) ling Iron Co., 54 id. 65. 
 
 34; Fricke v. Quinn, 188 Penn. St. 474. 8 Baxendale v. McMurray, L. R. 2 
 
 3 Att. Gen. v. Basingstoke. 45 L. J. Ch. 790, Att. Gen. v. Leeds, L. R. 5 
 Ch. 726; Boston Rolling Mill v. Cam- Ch. 583; Holt v. Rochdale, L. R. 10 
 bridge, 117 Mass. 396; Cushman v. Eq. 354; Metropolitan Board v. Lon- 
 Highland Ditch Co., 3 Col. App. 437. don Ry. Co., 17 Ch. 246; Att. Gen. v. 
 
 4 Tipping v. Eckersley, 2 K. & J. Acton Local Board, 22 Ch. D. 221; 
 264. For recovery at law for dis- Charles v. Finchley Local Board, 48 
 charging heated water into a stream, L. T. N. s. 569. See Spence v. Mc- 
 see Mason v. Hill, 5 B. & Ad. 1. Donough, 77 Iowa, 460. 
 
 6 Att. Gen. v. Steward, 20 N. J. Eq. 9 Att. Gen. v. Kingston, 34 L. J. Ch. 
 
 415;- 21 N. J. Eq. 340; Babcock v. 481,486. 
 
 New Jersey Stockyard Co., 20 N. J. 10 Dillon, Mun. Corp. (3d ed.), §1048; 
 
 Eq. 296; Woodyear v. Schaefer, 57 Sayre v. Newark (58 N. J. Eq.), 42 
 
 Md. 1. Atl. Rep. 1068. 
 
 6 Canfield«. Andrew, 54 Vt. 1. u Att. Gen. v. Colney Hatch Asy- 
 
 1 Pennington v. Brinsop H. C. Co., 5 lum, L. R. 4 Ch. 146; Good v. Altoona 
 
812 
 
 THE LAW OF WATERS. 
 
 [Ch. XIII. 
 
 powers so as to injure the property of individuals, it is re- 
 sponsible for the injury as a tort, unless the act done was 
 strictly necessary for the performance of the object for which 
 the powers were granted; and in such case the remedy of the 
 individual is under the compensation clauses of the Act, 1 or, 
 in America, usually under the provisions for exercising the 
 power of eminent domain. 2 Any pollution of a stream by a 
 public body, in taking care of sewage, is therefore a nuisance 
 unless expressly authorized, 3 and is liable to injunction. 4 
 
 City, 162 Perm. St. 493; Belknap v. 
 Belknap, 2 Johns. Ch. 463: D wight v. 
 Hayes, 150 111. 273; Joplin Cons. M. 
 Co. v. Joplin, 124 Mo. 129. See Gowell 
 v. Martin, 43 Cal. 605; Bainard v. 
 Newton, 154 Mass. 256. 
 
 1 Ibid. 
 
 2 Martin, Ex parte, 13 Ark. 198. 
 See Fleming's Appeal, 65 Penn. St. 
 444; Boston Rolling Mills v. Cam 
 bridge, 117 Mass. 396. 
 
 3 See ante, § 223 ; Truman v. Lon 
 don Ry., 50 L. T. N. s. 89; Tate v. St. 
 Paul, 56 Minn. 527; St. Paul, etc. R. 
 Co. v. Duluth, id. 494; Chalkley v. 
 Richmond, 88 Va. 402; 29 Am. St. Rep. 
 730, 741, n. If the work authorized 
 is the drainage and reclamation ot 
 overflowed lands, for sanitary and 
 agricultural purposes, the court will 
 not enjoin, as a nuisance, a dam 
 erected in pursuance of the legisla- 
 tive authority, and nearly completed, 
 if, upon the evidence, the effect of 
 the dam upon the public health is 
 uncertain. McNeal v. Assiscunk 
 Creek Meadow Co., 37 N. J. Eq. 204. 
 As a sanitary authority, in whom the 
 sewers are vested, have only a lim- 
 ited ownership in them, they are not 
 in the same position as to responsi- 
 bility for fouling a stream as a pri- 
 vate individual, because they cannot 
 stop the sewers on account of the 
 damage to the inhabitants of the 
 neighborhood. Att. Gen. v. Dorking 
 Guardians, 20 Ch. D. 5S5; Att. Gen. 
 v. Clerkenwell Vestry, [1891] 3 Ch. 
 527. In construing powers conferred 
 
 upon boards of works, acting for the 
 public benefit alone, the legislative 
 intent is not measured by the more 
 guarded powers given to public trad- 
 ing companies. North London Ry. 
 Co. v. Metropolitan Board of Works, 
 28 L. J. Ch. 909. 
 
 4 Goldsmid v. Tunbridge Wells, L. 
 R. 1 Ch. 349; L. R. 1 Eq. 161; Att. 
 Gen. v. Richmond, L. R. 2 Eq. 306; 
 Att. Gen. v. Colney Hatch Asylum, 
 L. R. 4 Ch. 146; Att. Gen. v. Leeds, 
 L. R. 5 Ch. 583; Holt v. Rochdale, L. 
 R. 10 Eq. 354; Att. Gen. v. Cocker- 
 mouth Board, L. R 18 Eq. 172; Att. 
 Gen. v. Hackney Board, L. R. 20 Eq. 
 626; Metropolitan Board v. London 
 Ry. Co., 17 Ch. D. 246: Att Gen. v. 
 Acton Local Board, 22 Ch. D. 221; 
 Att. Gen. v. Luton Local Board, 2 
 Jur. n. s. 180; Bidder v. Croydon 
 Board, 6 L. T. s. s. 778: Att. Gen. v. 
 Kingston, 34 L. J. Ch, 481; Att. Gen. 
 v. Halifax, 39 L. J. Ch. 129; North 
 Staffordshire Ry. Co. v. Tunstall Local 
 Board, id. 131; Att. Gen. v. Basing- 
 stoke, 45 L. J. Ch. 726; Oldaker v. 
 Hunt, 6 De Gex, M. & G. 376; 19 
 Beav. 485; Manchester v. Worksop- 
 Board, 23 Beav. 198; Att. Gen. v. Bir- 
 mingham, 4 K. & J. 538; Att. Gen. v. 
 Public Board, 1 H. & M. 298: Colum- 
 bia Ave. etc. Co. r. Georgia Prison 
 Commission, 92 Fed. Rep. S01 ; Belknap 
 v. Belknap, 2 Johns. Ch. 463; Wood- 
 ruff v. Fisher, 17 Barb. 224; Haskell 
 v. New Bedford, 108 Mass. 208; Bos- 
 ton Rolling Mills v. Cambridge, 117 
 Mass. 396; Morse v. Worcester, 139 
 
§ 546.] EQUITABLE REMEDIES. 813 
 
 § 546. Same — Same. — An authority over sewage is no au- 
 thority to commit a nuisance. 1 An owner of land upon a stream 
 below a city is entitled to an injunction against injury by the 
 outflow of sewage. 2 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, 8 and it is not a defense 
 that the city cannot lawfully enter upon the premises of those 
 who use the sewer for the purpose of abating the nuisance. 4 
 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. 5 If any nuisance of this 
 kind be shown, though causing inconsiderable damage, equity 
 will enjoin its continuance. 6 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 interruption of the 
 use of a system of sewers is immaterial where the rights of an 
 individual are invaded. The inconvenience is one of the pub- 
 lic's own creation, and should be borne by it rather than the 
 individual. 7 But where the nuisance is public, an individual 
 is not entitled to an injunction unless he shows a substantial 
 injury to himself. 8 An injunction will be granted to prevent 
 a local board from polluting surface-water flowing by an open 
 gutter into a canal and supplying it with water, by first di- 
 verting it into a sewer and discharging sewage into the canal. 9 
 
 Mass. 389; 2 N. E. Rep. 694, and J. 528- Met. Road v. London R. Co., 
 
 note; Columbus u Woollen Mills Co., 17 Ch. D. 246; Att. Gen. v. Acton 
 
 33 lnd. 435; State v. Bergen Freehold- Local Board, 22 Ch. D. 221; Holt v. 
 
 ers, 46 N. J. Eq. 173; Grey v. Pater- Rochdale, L. R 10 Eq. 354; Kiefer v. 
 
 son (58 N. J. Eq.), 42 Atl. Rep. 749; Graham, 17 Penn. Co. Ct. 361. 
 
 Topeka W. S. Co. v. Potwin Place, 43 4 Demby v. Kingston, 14 N. Y. S. 
 
 Kansas, 404; Hutchinson v. Delano, 601. 
 
 46 Kansas, 345. See supra, §§ 223, 5 Att. Gen. v. Luton Board, 2 Jur. 
 
 528. N. s. 180. 
 
 1 Att. Gen. v. Leeds, L. R. 5 Ch. 583; 6 Goldsmid v. Tunbridge Wells, L. 
 
 Att. Gen. v. Hackney Board, L. R. 20 R. 1 Ch. 349; L. R. 1 Eq. 161. 
 
 Eq. 626. Same point in case at law. 7 Att. Gen. v. Birmingham, 4 K. & 
 
 Cator v. Lewisham Board, 5 B. & S. J. 528; Peterson v. Santa Rosa, 119 
 
 , 115. Cal. 387. 
 
 2 01daker v. Hunt, 6 De Gex, M. & a Lilly white v. Trimmer, 15 W. R. 
 
 G. 376; Att. Gen. v. Leeds, L. R. 5 763; Att. Gen. v. Gee, L. R. 10 Eq. 131. 
 
 Ch. 583. Trespass also lies. Beach v. 9 Manchester v. Worksop Board, 23 
 
 Elmira, 11 N. Y. S. 913. Beav. 198. See Colby v. La Grange, 
 
 8 Att. Gen. v. Birmingham, 4 K. & 65 Fed. Rep. 554. 
 
SI J: THE LAW OF WATERS. [Ch. XIII. 
 
 So a city council will be restrained from discharging sewage 
 into a private canal. 1 Where a discharge of sewage into a 
 stream has been continued for several years, but in quantities 
 not producing perceptible injury, and is afterwards increased 
 so as to cause a serious injury, a party applying for an in- 
 junction against such increase will not be held guilty of laches. 2 
 Where a city made a contract with the proprietor of land to 
 enlarge 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. 3 
 
 § 547. Same — Protecting navigation and access. — Reme- 
 dies for injuries to navigation are treated in that part of this 
 work devoted to public waters. 4 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 interfer- 
 ence of the court at his suit. 5 So an 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. 6 
 
 ^Boston Rolling Mills v. Cam- man v. New York Balance Dock Co, 
 
 bridge, 117 Mass. 396. 3 How. Pr. 40; Hecker v. New York 
 
 2 Att. Gen. v. Luton Local Board, Balance Dock Co., 13 How. Pr. 549; 
 
 2 Jur. n. s. 180; Goldsmid v. Tun- Hudson River R. Co. v. Loeb, 7 Rob. 
 
 bridge Wells, L. R. 1 Ch. 349; L. R. 1 (N Y.) 418; Gillespie v. Forrest, 18 
 
 Eq. 161; Met. Board v. London & N. Hun, 110; Maryland R. Co. v. Stump, 
 
 W. Ry. Co., L. R. 17 Ch. D. 246: Att. 8 Gill & J. 479; Frink v. Lawrence, ' 
 
 Gen. v. Acton Local Board, 22 Ch. D. 20 Conn. 117; Thornton v. Grant, 10 
 
 221. R. I. 477 ; Hickok v. Hine, 23 Ohio St. 
 
 3Coldwater v. Tucker, 36 Mich. 523; Cowell v. Martin, 43 Cal. 605; 
 
 474. See Whipple v. Fair Haven, 63 Parrish v. Stephens, 1 Oregon, 73; 
 
 Vt. 221. Parker v. Taylor, 7 id. 435; Musser v. 
 
 tAnte, §§ 121-128. Hershey, 42 Iowa, 356; Kuehn v. Mil- 
 
 sCrowder v. Tinkler, 19 Ves. 617; waukee, 83 Wis. 583; Stevens Point 
 
 Spencer v. London Ry. Co., 8 Sim. 193; Boom Co. v. Reilly, 44 id. 295; Cotton 
 
 Att. Gen. v. Lonsdale, L R. 7 Eq. 377; v. Mississippi Boom Co., 19 Minn. 497; 
 
 Georgetown v. Alexandria Canal Co., Page v. Mille Lacs L. Co., 53 id. 492. 
 
 12 Pet. 91 ; Mississippi R Co. v. Ward, See Morris & Essex R. Co. v. Prudden, 
 
 2 Black, 485; No. Pac. R. Co. v. 20 N. J. Eq. 530. 
 
 Whalen, 149 17. S. 157; Rowe v. Gran- 6 Lyon v. Fishmongers' Co., 1 App. 
 
 ite Bridge Co., 21 Pick. 344; Penni- Cas. 662; Hartlepool Collieries Co. v. 
 
548.] 
 
 EQUITABLE EEMEDIES. 
 
 815 
 
 An obstruction or injury to the navigation of a private canal 
 will be restrained at the suit of the parties injured thereby. 1 
 
 § 548. Same — Other cases.— Other instances of injuries 
 affecting waters, in which injunctions have been granted, are: 
 against the flooding of another's mine by permitting a com- 
 munication between the mines to remain open; 2 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; 3 against erecting a house upon land which is sub- 
 ject to an easement of supplying water through pipes to the 
 adjoining land, when access to the pipes for the purpose of 
 
 Gibb, 5 Ch. D. 713; Cowell v. Martin, 
 43 Cal. 605 ; Parker v. Taylor, 7 Oregon, 
 435. See Thornton v. Grant, 10 R. I. 
 477; Knickerbocker Ice Co. v. Forty- 
 Second Street Ferry R Co., 65 How. 
 Pr. 210. As to injuries to such right 
 by the public in the construction of 
 public works, see Att. Gen. v. Con- 
 servators of the Thames, 1 H. & M. 
 1, 81; Macey v. Met'n Board, 33 L. J. 
 Ch. 377; Sutton Harbor Impr. Co. v. 
 Hitchins, 31 L. J. Ch. 73. 
 
 1 London Ry. Co. v. Grand Junction 
 Canal Co., 1 Ey. & C. Cas. 224. As to 
 enjoining the working of subjacent 
 mines, causing subsidence of a canal, 
 see Benfieldside Local Board v. Con- 
 sett Iron Co., 3 Ex. D. 54; London & 
 N. W. Ey. Co. v. Evans, [1892] 2 Ch. 
 432; [1893] 1 Ch. 16; Bennett v. Mor- 
 ris (Cal.), 37 Pac. Rep. 929. In States 
 where streams having only capacity 
 to float logs to market at certain sea- 
 sons of the year are not considered 
 navigable, the diversion of water 
 from such streams will not be en- 
 joined as an injury to navigation. 
 Hubbard v. Bell, 54 111. 110. The Illi- 
 nois courts followed the early New 
 York doctrine. Munson v. Hunger- 
 ford, 6 Barb. 265. So the owner of 
 a dam on such a stream was held en- 
 titled 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 v. 
 King, 18 Barb. 277; 30 Barb. 9. The 
 stricter rule as to the right of navi- 
 gation was favored in the same case, 
 35 N. Y. 454, and Pierrepont v. Love- 
 lass, 4 Hun, 696. But in 72 N. Y. 211, 
 the latter decision was reversed, and 
 the rule now is that streams capable 
 of floating logs at certain seasons, or 
 by improvements, will be protected 
 as navigable for such purposes. See, 
 also, ante, § 107; Gaston- v. Mace, 33 
 W. Va. 14; Watts v. Norfolk, etc. Ey. 
 Co., 39 id. 196; Hall v. Nester (Mich.), 
 80 N. W. Eep. 982; Rowe v. Titus, 1 
 Allen (N. B.), 326; Essen v. McMaster, 
 1 Kerr (N. B.), 501; McLaren v. Cald- 
 well, 6 Topper'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. 
 
 2 Mexborough v. Bower, 7 Beav. 
 127; mite, §295. 
 
 3 McSwiney v. Haynes, 1 Ir. Eq- 
 (-1839), 322; post, § 553. 
 
816 THE LAW 0E WATERS. [Ch. XIII. 
 
 repairing them is thereby materially interfered with and ren- 
 dered more expensive ; l the erection of a railway bed in and 
 upon an artificial basin, diminishing its capacity ; 2 maintain- 
 ing a boom which drives logs upon another's land ; 3 interfer- 
 ence with an exclusive right to supply a town with water; 4 
 draining a fish pond ; 5 the holding of a regatta upon a lake, 
 and thereby injuring an exclusive right of fishery; 6 the dimi- 
 nution of the volume of a stream by pumping out large quan- 
 tities of water for mechanical purposes ; 7 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; 8 the destruction of a dam and works, where the 
 plaintiff's right to maintain them is clear; 9 and interference 
 with prior appropriations of water in the far western states 
 and territories. 10 
 
 §549. Same — Same.— 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. 11 So the abatement, as a nuisance to nav- 
 
 iGoodhart v. Hyett, 25 Ch. D. 182. 23 N. H. 462; Morris Canal Co. v. So- 
 
 See Sandgate Local Board v. Leney, ciety, 1 Hal. Ch. 203. 
 
 id. 183, note; Birkenhead v. London '» Supra, § 230 et seq.; Consolidated 
 
 .& N. W. Railway, 15 Q. B. L\ 572. Canal Co. v. Mesa Canal Co., 177 U. 
 
 2 Boston W. P. Co. v. Boston R. Co., S. 296. 
 
 16 Pick. 572. For cases at law upon ]1 Lehigh Valley R. Co. v. McFarlan, 
 
 the same point, see BeestonuWheate, 31 N. J. Eq. 706; 30 id. 180; Getting 
 
 5 E. & B. 986; Peter v. Daniel, 5 C. v. Union Impr. Co., 7 Kulp, 493. In 
 
 B. 568; Frailey v. Waters, 7 Penn. St. the first case a company authorized 
 
 221. tomaintaina canal and take property 
 
 3 Cotton v. Mississippi Boom Co., 19 therefor had maintained a dam for 
 Minn. 497. many years as a part of their works. 
 
 i Whitchurch v. Hide, 2 Atk. 391. They increased its height by flash- 
 See Walla Walla v. Walla Walla W. boards. The defendant, who was in- 
 Co., 172 U. S. 1; Phillipsburg W. Co. jured by back-flowage caused by the 
 v. Citizens' W. Co., 189 Penn. St. 23. increased height, removed the flash- 
 
 5 Ambrose v. Buffalo, 20 N. Y. S. boards. It was held that the only 
 129. remedy was by an action for dam- 
 
 6 Bostock v. North Staffordshire ages, and he was enjoined from in- 
 Ry. Co., 5 De Gex & Sm. 584. See De terfering with the dam in future. 
 Camp v. Burns, 53 ST. Y. S. 1035. Upon an indictment for maliciously 
 
 7 Att. Gen. v. Great Eastern Ry. breaking down A. 's dam, A. 's- owner- 
 Co., L. R. 6 Ch. 572. ship or interest must be proved. 
 
 8 Burwell v. Hobson, 12 Gratt. 322. State v. Weeks, 30 Maine, 182. 
 
 9 Great Falls Manuf. Co. v. Worster, 
 
■§ 550.] EQUITABLE REMEDIES. 817 
 
 igation, 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. 1 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 in- 
 junction at the instance of an owner of property abutting 
 thereon. 2 In a suit to quiet title, a decree for the plaintiff cuts 
 off an easement claimed by the defendant. 3 
 
 § 550. Same — Practice. — The plaintiff's equitable right to 
 an injunction must appear on the face of the bill, or it will be 
 held bad on demurrer. 4 The jurisdiction of the court must 
 also be shown where the court is not of general jurisdiction, 
 or the bill will be demurrable. 5 But the pendency of an action 
 at law by the plaintiff is no reason why equity will not grant 
 an injunction. And the court will not withhold its hand on 
 account of the pendency of an appeal at law from the decision 
 establishing the legal right, unless it doubts the correctness of 
 the decision, 6 but the pendency of the appeal may influence 
 
 i Crenshaw v. Slate River Co., 6 6 Att. Gen. v. Bradford Canal, L. R. 
 
 Hand. 245. 2 Eq. 71. But equity may decline to 
 
 2 Clark v. Syracuse, 13 Barb. 32; exercise jurisdiction where actions 
 Babcock v. Buffalo, 1 Sheld. (N. Y.) at law are pending, and the effect of 
 317; 56 N. Y. 268. See Finley v. taking jurisdiction would be to pro- 
 Hershey, 41 Iowa, 389; Fresno v. duce, and not to prevent, multiplic- 
 Fresno Canal Co., 98 Cal. 179. ity of suits. In Eastman v. Amos- 
 
 3 Indiana Ry. Co. v. Allen, 113 Ind. keag Manuf. Co., 47 N. H. 71, the 
 308,581. See Riverside Land & Ir. court said: The plaintiffs "bring 
 •Co. v. Jansen, 66 Cal. 300; Harris v. forth their own suits at law, and no 
 Harrison, 93 CaL 676; Hulsman v. final judgment is obtained in either 
 Todd, 96 id. 228; Fudickar v. East of them. They then bring their bill 
 Riverside Ir. District, 109 id. 29; Bath- in equity, and ask this court for the 
 gate v. Irvine (125 Cal.), 58 Pac. Rep. writ of injunction, and among other 
 442; California Oil Co. v. Miller, 96 things, for damages, since the last or 
 Fed. Rep. 12. An administrator can- second suit at law. We approve of 
 not maintain a suit to quiet title to the plaintiffs' prosecuting one of 
 a water right, which is real estate, these suits at law to final judgment, 
 Travelers' Ins. Co. v. Childs, 25 CoL so that their legal right be fully es- 
 360. tablished, and they have doubtless 
 
 * Winnipiseogee Lake Co. v. Young, the right to resort to another suit at 
 
 40 N. H. 420. law. But when a party brings forth 
 
 5 May v. Parker, 12 Pick. 34 his two suits at law before he appeals 
 52 
 
818 THE LAW OF WATEBS. [Ch. XIII. 
 
 the court in determining the date at which the injunction 
 should take effect. 1 Generally the court will not grant an in- 
 junction seriously affecting the rights of persons not before the 
 court. 2 Eut we have seen that in such a case it may call the 
 persons to be affected before it. 3 And where a person under- 
 takes the prosecution or defence of a case, as where a landlord 
 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. 4 
 
 § 551. Same — Same. — Where a preliminary injunction has 
 been granted upon the filing of the bill, it is always open to a 
 motion to dissolve before the coming in of the answer; 5 and 
 sometimes provision will be made in the preliminary order for 
 hearing such a motion. 6 Where the preliminary injunction 
 appears to have been granted in a case perfectly remediable 
 at law, it will be dissolved. 7 It may also be modified, in the 
 discretion of the court, so as to permit the defendant to com- 
 plete the work enjoined, if such completion will not prejudice 
 the plaintiff's right to relief on the final hearing. 8 But a par- 
 tial 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 are shown. 9 
 
 § 552. Same — Form. — In form the injunction may be 
 either prohibitory or mandatory. The power to issue a manda- 
 tory injunction was formerly doubted; and resort was had to 
 
 to the equitable tribunal, we think 5 2 Dan. Ch. Prac. (5th ed.) 1675; 
 the presumption may be fairly enter- Wing v. Fairhaven, 8 Cush. 353. As 
 tained that he has elected a favorite to the effect of the answer, see Lam- 
 remedy, and must abide by it, and bert v. Alcorn, 144 IlL 313. 
 should not ask for equity while in 6 Binney's Case, 2 Bland Ch. 99. 
 flicting a multiplicity of suits at law 'Wing v. Fairhaven, 8 Cush. 363; 
 upon his opponents." Wheeler v. State, 50 Ga. 34; Phillips 
 
 1 Att. Gen. v. Bradford Canal, L. R, v. Stocket, 1 Tenn. 200; Grill v. Wis- 
 2 Eq. 71. wall, 31 N. T. S. 470. 
 
 2 Hartlepool Gas Co. v. West Har- 8 Hugg v. Fath, 37 N. J. Eq. 46; 
 tlepool Harbor Co., 12 L. T. n. s. 366. Dunning v. Kelly, 46 id. 605; Com'rs 
 
 3 Adams v. Manning, 48 Conn. 477? v. Catawba L. Co., 114 N. C. 505. 
 
 51 Conn. 5. » Carlisle v. Cooper, 21 N. J. Eq. 576. 
 
 4 Att. Gen. v. Bradford Canal, L. R. See Conklin v. Pacific Imp. Co., 87. 
 2 Eq. 71. CaL 296. 
 
552.] 
 
 EQUITABLE KEMEDIES. 
 
 819 
 
 prohibitory circumlocutions. 1 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 continuing to keep it or its works out of repair. 2 Where 
 the injunction requires a positive act on the part of the de- 
 fendant, it is called a mandatory injunction, although expressed 
 in negative terms. 3 But the power to issue a mandatory in- 
 junction is completely established, and has been frequently 
 exercised in cases affecting waters. 4 It has also been ques- 
 tioned whether a mandatory injunction may be granted pre- 
 liminarily or upon interlocutory motion, 5 but it is settled that 
 the court has power to grant such orders at any stage of the 
 proceedings, subject to the limitation that before the hearing 
 it is to be exercised with great caution and only in case of ex- 
 treme necessity. 6 
 
 1 Anon., 1 Ves. Jr. 140; Robinson v. 
 Byron, 1 Bro. C. C. 588; Blakemore 
 v. Glamorganshire Canal Co., 1 Myl. 
 
 6 & 154; Spokes v. Banbury Board, 
 L. R. 1 Eq. 42; Mexborough v. Bower, 
 
 7 Beav. 127. See 12 Harv. L. Rev. 95. 
 In England the power to award dam- 
 ages in lieu of an injunction under 
 Lord Cairns' Act was not limited to 
 cases where a mandatory injunction 
 was claimed, but extended to all 
 cases of substantial or nominal dam- 
 ages where a continuing nuisance 
 was sought to be prevented. Shelfer 
 v. London El. L. Co., [1895] 1 Ch. 287; 
 46&47Vict.,ch.49; White v. Mellin, 
 [1895] A. C. 154; Sayers v. Collyer, 
 28 Ch. D. 103; Chapman v. Aukland 
 Union, 23 Q. B. D. 894. 
 
 2 Lane v. Newdigate, 10 Ves. 192. 
 See Murdock's Case, 2 Bland Ch. 470, 
 471. 
 
 3 Kerr on Injunctions, 50. See 
 Carlisle v. Stevenson, 3 Md. Ch. 499. 
 
 4 Harropu Hirst, as cited in 1 Seton 
 on Decrees (4th ed.), 213; Att. Gen. 
 v. Metropolitan Board, 1 H. & M. 298, 
 312; Manchester v. Worksop Board, 
 23 Beav. 198, 209; Van Bergen v. Van 
 Bergen, 2 Johns. Ch. 272; Buck Moun- 
 tain Coal Co. v. Lehigh Coal Co., 50 
 
 Penn. St. 91; Corning v. Troy Iron 
 Factory, 40 N. Y. 191; 39 Barb. 311; 
 34 Barb. 485 ; Foot v. Bronson, 4 Lans. 
 47; Shannon v. Wisconsin, 18 Wis. 
 604. In Blakemore v. Glamorgan- 
 shire Canal, 1 Myl. & K. 154, 184, 
 Lord Brougham, in speaking of the 
 form of the order in Lane v. Newdi- 
 gate, said: "I take leave to agree 
 with Lord Lyndhurst in the opinion 
 that if the court has this jurisdiction, 
 it would be better to exercise it di- 
 rectly, and at once; and I will fur- 
 ther take leave to add, that the hav- 
 ing recourse to a roundabout mode 
 of obtaining the object seems to cast 
 a doubt upon the jurisdiction." 
 
 6 Audenried v. Philadelphia R. Co., 
 68 Penn. St. 370. 
 
 6 Westminster Brymbo Coal & Coke 
 Co. v. Clayton, 36 L. J. Ch. 476. In 
 Cole Silver M. Co. v. Virginia W. 
 Co., 1 Sawyer, 470, 482, where the de- 
 fendant had tapped a subterranean 
 stream of water to which the plaint- 
 iff had a prior right, on a motion to 
 dissolve, Field, J., p. 685, said: "These 
 are sufficient, I think, to show that 
 a court of equity has jurisdiction to 
 issue, upon an interlocutory applica- 
 tion, an injunction which will oper- 
 
820 
 
 THE LAW OF WATEKS. 
 
 [Ch. XIII. 
 
 §553. Same — Same. — "Where the 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 mandatory injunction. 1 And where the defendants, in 
 relieving their lands from surface-water, deepened a ditch 
 upon the highway, aud 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 de- 
 fendants to fill up the ditch. 2 In Carlisle v. Cooper 3 the decree 
 authorized 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 
 to raise the said gates that the surface of the water should 
 
 ate to compel the defendants, in 
 order to obey it, to do substantive 
 acts. . . . Undoubtedly the gen- 
 eral purpose of a temporary injunc- 
 tion is to preserve the property in 
 controversy from waste or destruc- 
 tion or disturbance until the rights 
 and equities of the contesting parties 
 can be fully considered and deter- 
 mined. Usually this can be effected 
 by restraining any interference with 
 it, but, in some cases, the continuance 
 of the injury, the commencement of 
 which has induced the invocation of 
 the authority of a court of equity, 
 would lead to the waste and destruc- 
 tion of the property. It is just here 
 where the special jurisdiction of the 
 co urt is needed — to restore the prop- 
 erty to that condition in which it 
 existed immediately preceding the 
 commencement of the injury, so that 
 it may Be preserved until final de- 
 cree." In Longwood Valley R. 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 pre- 
 venting the laying of a track over it. 
 Chancellor Runyau said: "The in- 
 junction is against causing the water 
 to rise any higher than it was accus- 
 
 tomed to rise on the day designated. 
 The injury was a continuing injury 
 from day to day. The mill-owners 
 were not required to reduce their 
 dam, but refrain from raising the. 
 water beyond a certain height Be- 
 sides, if the injunction were regarded 
 as strictly mandatory, that would 
 not constitute a valid objection to 
 it. There is no general rule against 
 granting such relief interlocutorily, 
 where the damage has been com- 
 pleted before the filing of the bill, 
 and there is no difference between 
 the case of injury to easements and 
 in j ury to other rights. The court will 
 not, however, interfere by mandatory 
 injunction, unless extreme or very 
 serious damage, at least, will ensue 
 from withholding that relief, and 
 each case must depend on its own 
 circumstances." See, also, Durrell v. 
 Pritchard (obstruction of light), L. E. 
 1 Ch. 244; Smith v. Phillips, 6 Utah, 
 376. 
 
 1 Corning v. Troy Iron Factory, 40 
 N. Y. 191 ; 39 Barb. 311 ; 34 Barb. 485. 
 
 2 Foot v. Bronson, 4 Lans. 47; Oli- 
 ver v. New York Bay Cemetery Co., 
 38 N. J. Eq. 109. 
 
 3 21 N. J. Eq. 576, 598. 
 
§§ 554, 555.] EQUITABLE REMEDIES. 821 
 
 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 1 of the gates when shut, is probably 
 more specific in its direction than usual ; but it removes all un- 
 certainty 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's 
 repair of the banks of a stream, or clearing the channel, and 
 from entering on the defendant's land for such purposes, if 
 necessary. 1 
 
 § 554. Same— Same. — The court will not consider an ap- 
 plication 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. 2 
 In deciding upon an application, the court will consider the 
 inconvenience likely to be caused. When 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. 3 
 
 § 555. Command to abate. — Equity has jurisdiction to de- 
 cree the abatement of a nuisance as well as to prevent its 
 erection or continuance. 4 Such a decree is a mandatory injunc- 
 
 iSheetz's Appeal, 35 Penn. St. 88; 2 Sumner, 272, 273; Pennsylvania v. 
 
 Bitting's Appeal, 105 id. 517. In Mc- Wheeling Bridge, 13 How. 518, 557; 
 
 Swiney v. Haynes,' 1 Ir. Eq. 322, where Hammond v. Fuller, 1 Paige, 197. See 
 
 a stream broke through its bank upon Van Bergen v. Van Bergen, 2 Johns, 
 
 the land of the defendant and began Ch. 272; 3 id. 282; Stone v. Peckham, 
 
 to change its channel, threatening 12 R I. 27, 30: Philips v. Stocket, 1 
 
 irreparable injury to the plaintiff, Tenn. 200; Burwell v. Hobson, 13 
 
 such an injunction was granted be- Gratt. 322; Ackerman v. Horicon 
 
 fore the coming in of the answer. Iron Co., 16 Wis. 150. See Shannon 
 
 2 Wicks v. Hunt, Johns. 372; Ward v. Wisconsin, 18 Wis. 604; Eastman 
 
 u Higgs, 12 W. E. 1074 v. St. Anthony Water Power Co., 12 
 
 3 Att Gen. v. Acton Local Board, Minn. 137; Ames v. Cannon River 
 
 22 Ch. D. 221. Manuf. Co., 27 Minn. 245; Brown v. 
 
 4 Lamborn v. Covington, 2 Md. Ch. Carolina Central Ry. Co., 83 N. C. 
 
 409; Earl u De Hart, 1 Beas. Ch. 280; 128; Raleigh Co. v. Wicker, 74 N. C. 
 
 Att. Gen. v. New Jersey R. Co., 2 220. A covenant not to maintain a 
 
 Green Ch. 136; Mann v. Wilkinson, dam at a particular place is not 
 
822 
 
 THE LAW OF WATERS. 
 
 [Oh. XIIL 
 
 tion in nature, for equity jurisdiction is properly in personam 
 and not in rem, and the order is primarily directed to the de- 
 fendant. 1 Thus, equity, having jurisdiction to restrain the 
 unlawful diversion of water, may require the defendant to re- 
 move the obstructions by which the diversion is made. 2 
 
 §556. Same. — 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 revers- 
 ing an order for the removal of a dam, said {per Graves, J.) : 
 "Property is not to be destroyed until its destruction is law- 
 
 against public policy, and will be en- 
 forced in equity by a decree to abate 
 a dam built in violation thereof. 
 Ulrich v. Hull, 17 Wis. 424. 
 
 1 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; Barclay v. Com., 25 Penn. 
 St. 503. These are cases of indict- 
 ments. The power to abate a nui- 
 sance is generally lodged by statute 
 with the common-law courts in their 
 criminal jurisdiction. We have no- 
 ticed (ante, § 368) 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, di- 
 recting the removal or abatement of 
 the nuisance. Knox v. Mayor, 55 
 Barb. 404; s. C. 38 How. 67; Delaney 
 v. Blizzard, 7 Hun, 7; Van Brunt v. 
 Ahearn, 13 id. 3S8. The action in 
 Delaney v. Blizzard is described as 
 brought "to enjoin the defendant 
 from maintaining a permanent float 
 in front of plaintiff's premises." 
 which would be a simple injunction. 
 In the Massachusetts statute of 1828, 
 
 ch. 137, § 6, it was provided that 
 where judgment should be rendered 
 in an action on the case for a nui- 
 sance, " the court may, on motion of 
 the plaintiff, in addition to the com- 
 mon 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 
 warrant on such motion or not. 
 Bemis v. Upham, 13 Pick. 169; Cod- 
 man v. Evans, 7 Allen, 431. This 
 provision is retained by Mass. Pub. 
 Sts., 1882, ch. 180, § 1. By section 3 
 of this chapter, the plaintiff is enti- 
 tled to abatement as of right in a sec- 
 ond suit. See Wis. Rev. Stats., 1878, 
 ch. 137, for a similar jurisdiction at 
 law, which abrogated the remedy by 
 abatement in equity. But by St. 
 1882, ch. 190, the equitable jurisdic- 
 tion to abate in certain cases was re- 
 stored. Denner v. Chicago, etc. Ey. 
 Co.. 57 Wis. 218. Courts at law have 
 a similar power in Oregon. Gen. 
 Laws, 1872, § 330, p. 179; Marsh v. 
 Trullinger, 6 Oregon, 356; ante, 
 § 368, n. ; Ankeny v. Fairview Mill- 
 ing Co., 10 Oregon, 390. For a similar 
 exercise of power in California, see 
 Blood v. Light, 31 Cal. 115. See, also, 
 Williamson v. Yingling, 93 Ind. 42. 
 
 2 Johnson v. Superior Court, 65 CaL 
 567. 
 
§ 5^7.] EQUITABLE KEMEDIES. 823 
 
 fully ascertained to be necessary in order to stop the nuisance, 
 and then no other and no more is to be destroyed than is thus 
 determined to be needful to effect that object." 1 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. 2 
 
 §557. Same. — 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 in- 
 jure the v 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 manner 
 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 
 
 JShepard v. People, 40 Mich. 487; from inundation. We will grant the 
 
 Smidt v. People, 46 Mich. 437 (on an plaintiffs relief to that extent." So, 
 
 Information) ; Hill v. Sayles, 12 Cush. -where a stopping of the wrongful use 
 
 454; Stone v. Peckham, 13 R. I 27. of a structure will accomplish the 
 
 In this case the court was asked to object, the order will be limited to 
 
 order the removal of a dam which that, and not direct a removal of the 
 
 was also used as a highway, and the structure. Barclays. Commonwealth, 
 
 restoration of a former highway upon 25 Penn. St. 503 (a case of indict- 
 
 which it infringed. The court said: ment). So a judgment that a dam 
 
 " From the dam as now used the pub- abate is improper where the court 
 
 lie receives no detriment. . . The finds that, at the time of the trial, the 
 
 plaintiffs are entitled to relief only in dam was a lawful structure. Durning 
 
 so far as they are individually in- v. Burkhardt, 34 Wis. 585. 
 
 jured. We think, therefore, that we 2 Knapp v. Douglas Axe Co., 13 
 
 shall go far enough in this respect, if Allen, 1. See Lammott v. Ewers, 106 
 
 we require the defendant to widen Ind. 310; Amoskeag Manuf. Co. v. 
 
 the aperture in his dam so as to per- Worcester, 60 N. H. 522; Wright v. 
 
 mit the full flow of the river, and Shanahan, 61 Hun, 264 
 thus relieve the land and pass-way 
 
824 THE LAW OF WATEKS. [Ch. XIII- 
 
 if they did anything which they ought not to do, they would 
 be punished by the court; but it would leave to themselves to 
 discover what Avas forbidden and what allowed." : 
 
 §558. Framing order — Difficulty — Effect. — The court 
 will not refuse to grant an injunction on account of the diffi- 
 culty 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, 2 or by inability to oversee the future con- 
 duct of the parties amid the complexity and uncertainty of 
 conflicting rights. 3 In Patten v. Marden, 4 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: "However difficult it might be to frame an injunction 
 to meet the emergency 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 invasion." 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. 5 
 
 1 Ripon v. Hobart, 3 Myl. & K 169, after a scientific examination, the- 
 173. See, also, Bradfield v. Dewell, 48 precise quantity of water requisite- 
 Mich. 9; Coalter v. Hunter, 4 Rand, for the use of a forge, such as Wales 
 58, 67; Baltimore v. Appold, 42 Md. (the plaintiff) had, and two black- 
 442, 458; Olmstead v. Loomis, 6 Barb, smith's bellows. But I think in this 
 152; 9 N. Y. 423. In this case, at casesuch a reference is unnecessary." 
 the Supreme Court, the injunction For cases where a general order will 
 was denied because of the indefinite- be issued, with leave to the plaintiff 
 ness of the injury to be prohibited, to apply for further order, see re- 
 But it was overruled on appeal, marks of Kindersley, V. C, in Hartle- 
 Parker, J., said: "If it is established pool Gas Co. v. West Hartlepool Har- 
 that a long-enjoyed right of the bor Co., 12 L. T. s. s. 366, cited ante Y 
 plaintiff's has been improperly inter- § 530, note. 
 
 f ered with by the defendants, it is no - Olmstead v. Loomis, 9 N. Y. 423,. 
 
 objection to entertaining jurisdiction 434; Patten v. Marden, 14 Wis. 473. 
 
 of the case that there is an uncer- 3 Bradfield v. Dewell, 48 Mich. 9. 
 
 tainty as to the measure of right, or 4 14 Wis. 473. 
 
 as to the precise language in which 5 Lingwood v. Stowmarket, L. R. 1 
 to describe it intelligibly in an in- Eq. 77; Elwell v. Crowther, 31 Beav. 
 junction; id certum est quod certum 163, 171. In Baltimore v. Appold, 42 
 reddi potest; and if it were neces- Md. 442, the court held that an in- 
 sary, this case might now be sent to junction merely forbidding user to- 
 ft referee to ascertain and report, the plaintiff's damage would be in- 
 
§§ 559, 560.] EQUITABLE REMEDIES. { 825 
 
 §559. Same — Same. — Where a plaintiff has proved his 
 right to an injunction 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 phys- 
 ically impossible; 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. 1 The possibility that another nui- 
 sance will result from obeying the injunction is no ground for 
 not obeying it. 2 Where compliance with the decree will in- 
 volve difficulty and expense, the court will usually suspend its 
 operation for a time so as to save the defendant from needless 
 loss. 3 But the plaintiffs' rights will never be abridged for this 
 purpose. 
 
 §560. Same — Same. — 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 seques- 
 tration was issued. 4 Where time is given for compliance, the 
 
 sufficient for the plaintiff's protec- ing Mills v. Cambridge, 117 Mass. 396; 
 
 tion, because he would be entitled to 1 Seton on Decrees (4th ed.), 213. In 
 
 an action without damage, and to an Att. Gen. v. Halifax, 39 L. J. Ch. 129, 
 
 injunction to save repeated actions, a municipality was allowed one year 
 
 1 Att. Gen. v. Colney Hatch Asy- in which «to comply with an order 
 lum, L. E. 4 Ch. 146; Weiss v. Oregon for the alteration of sewers. 
 
 Iron & Steel Co., 13 Oregon, 496; 11 * Spokes v. Banbury Board, L. R. 1 
 
 Pac. Rep. 255, note; Waverly v. Page, Eq. 42. See Coulson & Forbes on 
 
 105 Iowa, 225; 2 High, Inj. (4th ed.), Waters, 668. The fact that a com- 
 
 § 795. plete and literal compliance with an 
 
 2 Att. Gen. v. Bradford Canal, L. R. injunction would altogether stop the 
 3 Eq. 71; Woodruff v. North Bloom- defendants from working, is not an 
 field G. M. Co., 8 Sawyer, 628; 9 id. excuse for such non-compliance; a 
 411. grave inconvenience of such a kind 
 
 3 Att. Gen. v. Birmingham, 4 K. & is proper ground for moving the 
 J. 528, 548; Att. Gen. v. Halifax, 39 court to modify such injunctions and 
 L. J. Ch. 129; Att. Gen. v. Bradford such motion may be made by a de- 
 Canal, L. R 2 Eq. 71; Att. Gen. v. fendant in contempt for disobe- 
 Colney Hatch Asylum, L. R. 4 Ch. dience. Bonshaw v. Prince, 5 Wyatt,. 
 161; Pennington v. Brinsop Hall Coal Webb & A'Beckett (Vict.), Eq. .140,, 
 Co.,5Ch. D. 769; Manchester v. Work- cited in 31 Moak's Eng. Rep. 374, 
 sop Board, 23 Beav. 198; Boston Roll- notes to Box v. Judd. 
 
826 THE LAW OF WATERS. [Ch. XIII. 
 
 court may require an undertaking from the defendant as to 
 their future conduct, and retain the bill, giving the plaintiff 
 leave to apply for a further order at any time. 1 Such an un- 
 dertaking is in effect equivalent to an injunction, and will be 
 enforced by the courts. 2 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. 3 
 
 §561. Same — Same. — 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 the bill; 4 but damages will seldom be granted in 
 lieu of an injunction. 5 On the other hand, if the injunction 
 has been wrongfully sued out, the court may decree the pay- 
 ment of damages to the defendant for the interruption of the 
 enjoyment of his rights. 8 
 
 § 562. Bills of peace. — The prevention of multiplicity of 
 suits is a ground of jurisdiction which courts of equity exercise 
 
 i Elwell v. Crowther, 31 Beav. 163. Co., 5 Ch. D. 769. See Potter v. Howe, 
 
 2 London & Birmingham Ry. Co. 141 Mass. 357. Under Lord Cairns' 
 v. Grand Junction Canal Co., 1 Rail. Act, in England, if the defendant's 
 Cas. 224. Where a coal mining com- act does not render the plaintiff's 
 pany fouled a natural stream of property absolutely useless, and the 
 water by pumping water from its injury can be compensated by money 
 mines into the stream, to the damage without taking away the plaintiff's 
 of a riparian proprietor, it was held property, the court may, in its dis- 
 (in an action at law) that the act cretion, award damages in place of 
 could not be justified either by the an injunction. 21 and"22 Vict. ch. 27, 
 importance of the industry to the § 2; Holland v. Worley, 26 Ch. D. 
 Commonwealth, or by general cus- 578; Sayers v. Collyer, 28 id. 103; 
 torn. Pennsylvania Coal Co. v. San- Dreyfus v. Peruvian Guano Co., 43 
 derson, 94 Penn. St. 302; 86 id. 401; id. 316; 42 id. 66; Phillips v. Homfray, 
 113 id. 126. 44 id. 694. 
 
 3 Pratt v. Lamson, 6 Allen, 457 ; 6 Dole v. Hickey (N. H), 32 AtL 
 Mann v. Wilkinson, 2 Sumner, 273. Rep. 761; Barre W. Co. v. Carnes, 68 
 
 4 Kerr on Injunctions, 47; Bliss v. Vt. 23; Winslow v. Mulchey (Tenn. 
 Rice, 17 Pick. 230; Canfield v. An- Ch.), 35 S. W. Rep. 762; Creek v. Mc- 
 drews, 54 Vt. 1; Cedar Lake Hotel Manus, 17 Mont. 445. If the plaintiff 
 Co. v. Cedar Creek Hydraulic Co., 79 acted in good faith, that will be con- 
 Wis. 297; Woodbury v. Marblehead, sidered by the court. Muller u Land, 
 Water Co., 145 Mass. 509. 31 Texas, 265; Coosaw M. Co. v. Carc- 
 
 5 Pennington v. Brinsop Hall Coal lina M. Co., 75 Fed. Rep. 860. 
 
§ 563.] EQUITABLE REMEDIES. 827 
 
 in several ways. 1 The taking an inquest of past damages, upon 
 a bill to prevent a tort, and the determining and adjusting of 
 common rights in the same subject-matter, as, for example, in 
 the same water-power, have been sustained by the courts upon 
 this ground. So, on this ground, a township has been restrained 
 from diverting surface water from a highway and discharging 
 it upon the plaintiff's land. 2 Eut the principal means by which 
 equity jurisdiction is invoked to prevent a multiplicity of suits 
 is a bill of peace. 
 
 § 563. Same. — A bill of peace proper maybe filed' either 
 by a plaintiff at law or defendant at law. 3 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 qf several. 4 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 would 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 multi- 
 plicity 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 
 
 JThe injunction against repeated Atl. Eep. 663; Whipple v. Fair Haven, 
 
 trespasses, or vexatious persistence in 63 Vt. 221. 
 
 a tort, is not an instance of this kind. 3 Smith v. Bank of New England 
 
 Hart v. Albany, 9 Wend. 571, 581; (N. H.), 45 Atl. Eep. 1032. 
 
 Jerome v. Ross, 7 Johns. Ch. 315, 336; 4 Fox River F. & P. Co. v. Kelley, 
 
 Murphy v. Wilmington, 6 Houst. 70 Wis. 287; Bowering v. Adams, 126 
 
 <DeL), 108; Lake Erie & W. R. Co. Cal. 653; Steelsmith v. Fisher Oil Co. 
 
 v. Young, 135 Ind. 426; Drake v. (W. Va.), 35 S. E. Rep. 15; supra, 
 
 ■Schoenstedt, 149 Ind. 90. § 540. 
 
 'Slack v. Lawrence (N. J. Eq.), 19 
 
828 THE LAW OF WATERS. [Ch. XIII. 
 
 v. Pilkington. 1 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 this 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. 2 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 R Co. 
 v. McFarlan. 3 There the case arose from injuries by a dam r 
 by means of which the Morris Canal crosses the Rockaway 
 River at Dover. Mill-owners above the dam sued the com- 
 pany leasing the dam for the obstruction,, throwing 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 determination 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. 
 
 § 564. Same. — 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. 4 Where the plaintiff's 
 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 
 Avill save the bill from the charge of multifariousness. 5 In 
 
 1 1 Atk. 282. 5 On principle, if several plaintiffs 
 
 2 1 Dan. Ch. Prac. (5th Am. ed.) have the same equity against a single 
 
 341. defendant, they may, if they choose, 
 
 3 31 N. J. Eq. 730; 30 id. 135. join in one bill on the same ground. 
 
 4 Lehigh Valley R. Co. v. McFarlan, If they do not choose to join, and the 
 31 N. J. Eq. 730; Patten Paper Co. v. defendant wishes to be relieved from 
 Kaukauna W. P. Co., 70 Wis. 659. the burden of defending several suits, 
 
§ 565.] EQUITABLE REMEDIES. 829 
 
 strictness, such a bill should join as defendants only persons 
 whose rights can be determined by a single issue; but the de- 
 parture from principle originating with the case of Mayor of 
 York v. Pilkington, 1 prevails here also, and it is settled that 
 where the plaintiff asserts a general equitable right against 
 several persons who infringe it, he may maintain a single bill 
 against them all. 
 
 § 565. Same. — The Supreme Court of California, in the case 
 of Keyes v. Little York Cold Washing Co., 2 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 Eiver. The defendants were miners severally 
 and independently engaged in hydraulic mining at points 
 higher up on the Bear Eiver and its tributaries; they dis- 
 charged their waste earth and debris into the stream, by 
 which they were carried down and deposited upon the plaint- 
 iff'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 was sustained. The court said: 
 *' If a nuisance was created by the exposure of the dumps to 
 the action of the waters of Bear Eiver 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 any of the defendants who had made only a reason- 
 
 at once, he may, on motion, obtain a ©ther similar establishments con- 
 stay of proceedings in all but one, tributed to the injury. There was no 
 until it is determined. See Lehigh joinder in the case. The court said: 
 Valley R. Co. v. McFarlan, 31 N. J. " Each and every one is liable to a 
 Eq. 730, 754; ante, §§ 121, 222. As to separate action, and to be restrained." 
 plaintiffs in the Federal courts, see See Baltimore v. Warren Manuf. Co., 
 Rodgers v. Pitt, 96 Fed. Rep. 668. 59 Md. 96. The California Debris 
 1 1 Atk. 282. Commission was created, and hy- 
 2 53 CaL 724; 96 U. S. 199. Com- draulic mining in California regu- 
 pare Woodyear v. Schaefer, 57 Md. 1, lated, by the Act of Congress of 
 where the bill was to restrain the cor- March 1, 1893, ch. 183 (27 St. at L. 507). 
 ruption of a stream by the deposit of See 21 A. G. Op. (U. S.) 10, 62. 
 offal from a slaughter-house therein. 
 
830 THE LAW OF WATEK9. [Ch. XIII. 
 
 able use. In either view of the case there is a misjoinder of 
 parties defendant. The bare statement would seem to prove 
 the proposition, since the very essence of the objection of mis- 
 joinder of a defendant with others is that he is not connected 
 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 prin- 
 ciple of equity which would 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." 1 But in Hillman v.' ISTew- 
 ington, 2 where the plaintiff claimed a right to a certain portion 
 of a stream by prior appropriation, and several defendants, act- 
 ing 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 di- 
 version, 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, therefore, that, without unity or concert of ac- 
 tion, no wrong could be committed ; and we think that in such 
 a case, all who act must be held to act jointly." Yet it is to 
 be observed that if some of the defendants were entitled, by 
 a subsequent appropriation, to the use of a certain portion of 
 the stream after the plaintiff had taken the water to which he 
 was entitled, and a still later appropriator, by diverting a por- 
 tion of the stream, diverts water from the plaintiff, it is only 
 by acts of all those who take subsequently to the plaintiff that 
 
 1 The court attempted to distin- title. The oases appear, however, to- 
 guish the case of York v. Pilkington be irreconcilable. 
 as one where the action was to quiet 2 57 Cal. 56. 
 
§ 566.] EQUITABLE BEMEDIES. 831 
 
 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. Same. — The Supreme Court of Nevada recently 
 passed upon the question in a similar case. Several proprie- 
 tors of lands, acting independently, had by user the right of 
 draining a certain amount of waste water which had been used 
 for irrigation over the plaintiff's 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 
 ah injunction would be granted to restrain any and all of the 
 defendants from discharging an inordinate quantity of water 
 upon the plaintiff'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., 1 
 in the Circuit Court of the United States, the facts were pre- 
 cisely 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 contrib- 
 uted to produce the injury by depositing debris in the stream 
 above. He denied the doctrine of Keyes v. Little York Gold 
 Washing Co. Later, in the same case, it was held that the de- 
 fendants were, not justified in their action by either the Federal 
 or State laws; that they could not invoke the doctrine of pre- 
 scription or the custom, of miners; that the plaintiff's special 
 injuries entitled him to maintain the bill, and that the court, in 
 granting relief, could not consider the inconvenience that would 
 result to the defendants. 2 If hydraulic mining impedes naviga- 
 tion, causes overflow, and deposits debris upon riparian estates, 
 it is a public nuisance which maybe enjoined at suit of the 
 attorney general in the name of the people. 3 
 
 1 8 Sawyer, 628. See Hunt v. Sain, Hobbs v. Amador Canal Co., 66 Cal. 
 
 79 111. App. 361; 181 111. 372 161; United States v. Lawrence, 53. 
 
 2 9 id. 441. See Be North Bloom- Fed. Rep. 632; Same v. North Bloom- 
 field G. M. Co., 27 Fed. Rep. 795; field G. M. Co., id. 625; 81 id. 243; 
 Hardt v. Liberty Hill C. M. Co., id. North Bloomfield G. M. Co. v. United' 
 788; Golden Gate M. Co. v. Superior States, 88 id. 664; Columbus & Hock- 
 Court, 65 Cal. 187. ing C. & I. Co. v. Tucker, 48 Ohio St. 
 
 'People v. Gold Eun Ditch Co., 66 41; Eureka Lake Co. v. Superior 
 
 CaL 138, 155; s. C. 56 Am. Rep. 80; Court, 66 CaL 311; 18 A. G. Op. 404- 
 
832 THE LAW OF WATERS. [Ch. XIII. 
 
 § 567. Same. — 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 kvw. 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. 1 If the 
 same defence applies to several suits by persons having dis- 
 tinct 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 charge of multifariousness or misjoinder. So, where, by 
 the bursting of a reservoir belonging to the Sheffield "Water- 
 works 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 
 issue to them by public commissioners upon which they could 
 recover 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 in- 
 junction against the suits at law, and for cancellation of the 
 certificates. Upon demurrer, Yice Chancellor Kindersley over- 
 ruled the demurrer, sustained the bill as within the jurisdiction 
 of the court, and reserved ' the question of cancellation, and 
 upon appeal, the decision was affirmed by Lord Chancellor 
 Chelmsford upon both points. 2 
 
 1 Lehigh Valley R. Co. v. MoFarlan, ant, whose business was interrupted, 
 31 N. J. Eq. 730. claimed compensation.andproceeded 
 
 2 Sheffield Waterworks uYeomans, to appoint an arbitrator under the 
 L. E. 3 Ch. 8. A court of equity will Act. The company filed a bill deny- 
 refuse to interfere for this purpose, ing that he was entitled to compen- 
 where, instead of preventing suits, sation, and praying that the suit 
 the effect would be to increase liti- might be stayed until the defendant 
 gation and complicate the rights of had established his right at law. It 
 the parties. This was decided in the was urged that if the present claim 
 interesting case of Sutton Harbor Co. were successful, the company would 
 v. Hitchins, 21 L. J. Ch. 73. The com- be open to a vast number of claims 
 pany was authorized to improve Sut- for alleged injuries, each of which 
 ton Harbor, making compensation would require a separate adjudica- 
 under the Lands Clauses Consolida- tion, and which the court was asked, 
 tion Act. The company temporarily in its discretion, to prevent. Lord 
 obstructed the harbor in the course of Langdale, M. R, granted the injuno 
 constructing its works. The defend- tion (20 L. J. Ch. 489), but, on appeal, 
 
§§ 568, 569.] EQUITABLE REMEDIES. 833 
 
 § 568. Same. — "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 respecting the rights 
 which have already been determined at law. He prays for an 
 injunction restraining such suits. The bill is therefore ad- 
 dressed to the exclusive jurisdiction of the court. The number 
 of parties concerned is immaterial, and the bill may be main- 
 tained 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. 1 Thus, in 
 Eldridge v. Hill, 2 where the bill prayed an injunction to re- 
 strain the defendant from further prosecuting pending suits, 
 and from bringing any more until the principal suit should be 
 determined, Chancellor Kent, following the English cases, held 
 that the bill could not be allowed until the plaintiff had estab- 
 lished his defense at law. 3 The appropriate Velief against suc- 
 cessive suits by the same plaintiff for damages arising from an 
 injury which is continuous, is by application for the consolida- 
 tion of actions, or for a stay of proceedings, and not by bill in 
 chancery, unless the right in controversy has once been deter- 
 mined adversely to the plaintiff. 4 
 
 § 569. Specific performance. — Courts of equity have at 
 times been called upon to decree specific performance of con- 
 tracts relating to water, upon the ground that the legakremedy 
 for the breach, by compensation in damages, is inadequate. 
 It is therefore necessary for the plaintiff to show that damages 
 will not be an adequate compensation for the injury caused. 
 
 the decision was reversed by the the right of the plaintiff could be 
 
 Lords Justices, on the ground that ascertained. And, upon granting the 
 
 litigation would be increased by in- decree, they gave the defendant the 
 
 terfering, instead of leaving the par- right to continue his suit to deter- 
 
 ties to their remedies at law. mine other questions, but enjoined 
 
 1 Tenham v. Herbert, 2 Atk. 483 the prosecution of further suits in- 
 case of fishery). consistent with the decree. Win- 
 
 2 2 Johns. Ch. 281. nipiseogee Lake Co. v. Perley, 46 
 
 3 In an action for the reformation N. H. 83. It will be seen that here 
 and specific, performance of a con- the plaintiff could not first establish 
 tract regulating the right to overflow his right at law, since it was of ex- 
 lands, the Supreme Court of New clusively equitable cognizance. 
 Hampshire granted a temporary in- 4 Lehigh Valley R. Co. v. McFarlan, 
 junction against the prosecution of 31 N. J. Eq. 730, 754. 
 
 a suit at law for such flowage, until 
 53 
 
S34 THE LAW OF WATERS. [Ch. XIII.. 
 
 Repeated and vexatious breaches of a continuing contract,, 
 making repeated suits at law necessary, are ground for specific- 
 performance, the legal remedy being proved clearly inadequate - y 
 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 navi- 
 gation of the defendant's canal for all boats used by the plaint- 
 iff. 1 Where the contract is to supply water to a mill, or for 
 irrigation, the necessity of receiving such supply 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 en- 
 joyment 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. 3 
 * 
 
 § 570. Same. — It is also necessary that the contract be in 
 clear and definite terms, excluding all uncertainty as to the 
 duties of the parties. 4 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 extensive 
 repairs were necessary, for which they could not advance the 
 
 1 Pennsylvania Coal Co. v. Dela- was asked to enforce the agreements 
 ware Canal Co., 31 N. Y. 91. Chancellor Halsted refused to grant 
 
 2 Randall v. Latham, 36 Conn. 48; the relief, saying: "I am not so well 
 Case v. Hoffman, 84 Wis. 438; Grubb satisfied that this agreement calls- 
 v. Starkey, 90 Va. 831. for a constant flow of any quantity 
 
 3 Ingram v. Morecraft, 33 Beav. 49. of water as to be willing to grant an 
 4 01mstead v. Abbott, 61 Vt. 381. injunction on the Society's bill;"' 
 
 See Hmcks v. McKay, 14 Ch. (Can.) "and a doubt as to the correctness, 
 233; Ritchie v. Drain, 25 id. 322; Paul of the Society's construction of the 
 v. Blackwood, 3 id. 394. Where a agreement in this respect would be 
 contract was alleged for the dis- sufficient ground for denying the in- 
 charge of water from a canal into junction asked by them for the pur- 
 the Passaic River above the falls, pose of compelling a constant flow." 
 which contract, it was claimed, en- Morris Canal Co. v. Society, 1 Halst. 
 titled the claimants to a constant Ch. 203. See McLaughlin v. White- 
 flow of three square feet of water side, 7 Ch. (Can.) 573; Dickson v. Cov- 
 ^nto the stream, and an injunction ert, 17 id. 321. 
 
§ 570.] EQUITABLE REMEDIES. 835 
 
 necessary means, and praying that the defendant 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 undertake repairs in the first instance 
 unless he chose. The court could not add to the contract a fur- 
 ther obligation. 1 "Where differences arose between the parties 
 as to their respective rights under a contract for the construc- 
 tion of a railroad bridge across a river, it was held that the court 
 could not seize and use the defendant's plant, or undertake the 
 completion of the bridge with the plaintiff's funds, leaving the 
 differences between the parties for future settlement or adju- 
 dication. 2 But courts of equity may exercise their power to 
 reform a contract in order to make it express the intention of 
 the parties, upon a bill for reformation and specific perform- 
 ance, and may enforce the contract as reformed. 3 So parol 
 evidence may be admitted to identify a lot intended to be 
 conveyed. 4 A contract containing an option becomes certain 
 as soon as the option is exercised, and will be enforced. 5 So 
 a grant of a right perpetually to lay 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 
 
 1 Cobb v. Cromwell, Phil. Eq. (N. C.) sion as to the amount of water needed 
 18; Trudeau v. Field, 69 Vt. 446. See to constitute a horse-power at the site 
 Giddings v. 76 Laud Co., 109 Cal. 116. of the mill, the court held that the 
 
 2 Texas Ry. Co. v. Rust, 17 Fed. Rep. lessee was entitled to power equal to 
 275. Specific performance decreed of six-horse power in fact, and declined 
 a written contract, with parol varia- to enjoin him from the use of water 
 tion so as to include a mill-site, in to that amount. McKelway v. Cook, 
 Creigh v. Boggs, 19 W. Va. 240. See 3 Green Ch. 102, 115 and note. Spe- 
 Roberts v. Cambridge, 164 Mass.. 176. cific performance of a contract can- 
 As to the effect of part performance, not be enjoined by preliminary in- 
 see supra, § 333. junction. Philadelphia R. Co. v. Phila- 
 
 3 Winnipiseogee Lake Manuf. Co. delphia, 8 Phila. 112. See Harley v. 
 v. Perley, 46 N. H. 83. For other cases Chicago San. District, 54 111. App. 337. 
 of reformation of a conveyance of 4 Colerick v. Hooper, 3 Ind. 316; 
 water-power, see Bunnell v. Read, 21 ante, § 194. It is immaterial on a bill 
 Conn. 586; Cole v. Lake Co., 54 N. H. for specific performance, that a deed 
 242. But where a lease of a mill in- describes land as on the south side of 
 eluded water-power equal to six a river, and refers to the patent 
 horse-power, and upon a bill by the which places it on the west side, if 
 lessor for specific performance and the identity sufficiently appears, 
 injunction against the wrongful use Newsom v. Davis, 20 Texas, 419. 
 
 of the water, it was shown that the 5 See Burham v. Ramsay, 32 Q. B. 
 parties had fixed upon that amount (Can.) 491; Carroll v. Casemore, 20 
 of power under an erroneous impres- Ch. (Can.) 16. 
 
836 THE LAW OF WATEBS. [Ch. XIII. 
 
 way, the covenantor should permit the covenantee to fix an- 
 other landing at any point on the front of the plantation 
 where the public interest might require, was held sufficiently 
 definite to be specifically enforced. 1 This case illustrates an- 
 other element essential to the obtaining of this relief. The 
 contract must be free from taint of fraud or unconscionable 
 dealing. 2 But the grant in this case, for a valuable considera- 
 tion, 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. 3 
 
 §571. Same. — Contracts which are against public policy 
 will 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. 4 So if great inconveniences to the public 
 will be caused in performing the contract, this may influence 
 the court against enforcing it ; 5 but a defendant cannot urge, 
 nor will the court consider, an inconvenience to the public 
 caused by the defendant himself, such as the interruption of 
 his business as a carrier. 6 
 
 § 572. Same. — "Where a covenant is continuing 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 tha 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. 7 If 
 
 i Carson v. Perry, 57 Miss. 97. performance was refused in case of 
 
 2 Verbal material misrepresenta- hardship, in Hill v. Buffalo Ry. Co., 
 
 tions, made in good faith, and in ig- 10 Ch. (Can.) 506. 
 
 norance of the facts, by the seller of 3 Carson v. Perry, 57 Miss. 97. 
 
 a house as to its drainage, pending « Ulrich v. Hull, 17 "Wis. 424. 
 
 the negotiations of sale, and while 5 Chicago & Alton R Caw. Schoene- 
 
 the house, being occupied, could not man, 90 I1L 258. 
 
 be inspected by the purchaser, are a 6 Raphael v. Thames Valley Ry. Co., 
 
 defence to a suit for the specific per- L. R. 2 Ch. 147, reversing S. C. L. R 2 
 
 formance of a written contract to Eq. 37. 
 
 purchase the house, although the ' Collins v. Plumb, 16 Ves. 454. The 
 
 contract makes no mention of drain- ground of the decision is the incon- 
 
 age. Thompson v. Longard, 1 Nova venience involved in ascertaining a 
 
 Scotia Eq. (Russell) 181. Specific breach, Cf. Fry on Specific Perform- 
 
§§ 573, 574.] EQUITABLE REMEDIES. 837 
 
 specific performance of the contract cannot be had in a court 
 of equity, that court has no jurisdiction to award compensa- 
 tion in damages. 1 
 
 § 573. Same.— 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. 2 If a contract lacks such mutuality at the begin- 
 ning, but the party against whom it could not be enforced 
 performs in full on his part, he may then have it enforced 
 against the other party. 3 
 
 § 574. Same.— If the performance of a contract has be- 
 come impossible or useless, specific performance will not be 
 granted, because the decree would be a fruitless exercise of 
 power. 4 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. 5 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 performance was 
 
 anoe, § 70. The case is discredited 403; Clarksville Land Co. v. Harri- 
 
 in 1 Story, Eq. Jur. § 736, note. It man, 68 N. H. 374 
 
 would seem that the ground upon 5 Peers v. Lambert, 7 Beav. 546. 
 
 which cases of this class are to be But it is well settled that where full 
 
 sustained, if at all, is the uncertainty performance is impossible, the plaint- 
 
 of the terms of the contracts in not iff is entitled to performance, so far 
 
 clearly indicating what will be a as possible, with a rebate of pribe. 
 
 breach, Mortlock v. Buller (per Lord Eldon), 
 
 JSainsbury v. Jones, 5 MyL & Cr. 10 Ves. 292, 315; Waters v. Travis, 9 
 
 1; Onions v. Cohen, 2 H. & M. 354. Johns. 450, 465; McKay v. Carring- 
 
 2 Fry on Specific Performance, ton, 1 McLean, 50, 54; Bull v. Bell, 
 § 286. 4 Wis. 54. And qucere if this rule 
 
 3 Columbia W. P. Co. v. Columbia, should not have been applied in the 
 5 Rich. (S. C.) 225. principal case, and performance en- 
 
 4 Huguenin v. Courtenay, 21 S. C. forced. 
 
838 THE LAW OF WATERS. [Ch. XIII. 
 
 refused. 1 So where the suit was upon a contract to permit 
 the plaintiff to maintain a ditch across the defendant's land, 
 and the plaintiff sold and assigned his rights pending the suit, 
 and the assignee had acquired by a new contract with the de- 
 fendant all the rights which the plaintiff was seeking in the 
 cause, specific performance was refused as nugatory. 2 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 rem- 
 edy, and may forfeit the estate at his pleasure. This was de- 
 termined upon a bill to enforce a proviso or condition in a 
 deed for the maintenance of a raceway and bridge for the 
 grantor's benefit. 3 Specific performance will generally not be 
 granted where the decree would affect parties not before the 
 court. 4 
 
 § 575. Same. — Where a contract involves the performance 
 of extensive works, equity will not assume the superintend- 
 ence 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 work to remain unperformed. 5 Con- 
 tracts regulating the right to overflow land will be enforced 
 in equity. 6 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 
 
 1 Chicago & Alton R. Co. v. Schoene- and that B. had agreed that a decree 
 man, 90 I1L 258. The impossibility of might be granted in the former suit, 
 completing the canal was here caused and praying specific performance, 
 by the company itself. The evidence as to the transfer by A. 
 
 2 Adams v. Patrick, 30 Vt. 516. was conflicting, and the court de- 
 
 3 Woodruff v. Water Power Co., 2 clined to make a decree affecting his 
 Stock. 489. interests while he was not a party. 
 
 * Glass v. Clark, 53 Ga. 380. In 5 Cooke v. Chilcott, 3 Ch. D. fi94. 
 
 this case the original bill was against 6 Stevens v. Ryerson, 2 Halst Ch 
 
 co-tenants A. and B. for an original 477; Winnipiseogee LakeManuf. Co. 
 
 injunction against maintaining a v. Perley, 46 N. H. 83; Salmon Falls 
 
 dam. The injunction was refused, Manuf. Co. v. Portsmouth Co., 46 N. 
 
 but the bill retained. The plaintiffs H. 249. See Clarke v. Southwick, 1 
 
 filed a second bill against B., alleging Curtis, 297. 
 that A. had sold his interest to B., 
 
§ 576.] 
 
 EQUITABLE EEM.EDIES. 
 
 839 
 
 alternatively that the defendant either perform the agreement 
 •or deliver it up to be cancelled, leaving the plaintiff to his 
 remedy at law for future flowage. 1 
 
 § 576. Same. — Covenants running with the land may be 
 specifically 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 
 covenants 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, 
 and to raise a dam to a given height for that purpose. 2 Simi- 
 larly, where a stream of water passing through the lands of 
 
 1 Stevens v. Byerson, 2 Halst. Ch. 
 477. 
 
 2Noonan v. Orton, 4 Wis. 335; 21 
 id. 283; 27 id. 300; 31 id. 265. This 
 case deserves further notice as in- 
 volving several questions of practice 
 in equity. The original bill against 
 the lessor's assignees prayed a de- 
 cree requiring the defendant to exe- 
 cute and deliver to the plaintiffs 
 a lease of water-power, pursuant to 
 the alleged covenants for renewal, 
 contained in a previous lease; and 
 thatthe 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 in- 
 terference, by defendant, with their 
 enjoyment of the water-power, and 
 that the defendant had brought suits 
 ^against persons whom they had em- 
 ployed to remove obstructions to the 
 flow of water to plaintiffs' mill, and 
 prayed an injunction to prevent fur- 
 ther obstructions and suits by the de- 
 fendant; and for an account of dam- 
 ages for breaches of the covenants 
 
 which the new lease should contain 
 prior to its execution. A demurrer to 
 the supplemental bill was overruled, 
 and the decision affirmed above; but, 
 instead of taking account as inciden- 
 tal to the principal relief, it was held 
 that in a suit for specific performance 
 of a covenant to furnish a lease with 
 covenants, the court would not usu- 
 ally decree damages for past breaches, 
 but, in decreeing execution, would 
 order the lease to bear date anterior 
 to the alleged breaches, and give the 
 plaintiff a cause of action at law. It 
 was then suggested that the defend- 
 ant might plea4 the statute of lim- 
 itations; 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 1 
 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 
 defendant 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. 
 
8-10 THE LAW OF WATEKS. [Ch. XIIL 
 
 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. 1 
 "Where a contract is in terms assignable, the assignee is en- 
 titled 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. 2 Where 
 the plaintiff and the owner of drowned lands agreed in writ- 
 ing, the plaintiff to fill in and reclaim the lands, and the de- 
 fendant 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. 8 
 
 § 577. Same. — Oral contracts affecting land, when partly 
 performed, have generally been considered enforceable in 
 equity. 4 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 
 
 Dixon, C. J., held that the alleged motion to dismiss the whole suit, 
 covenant to renew in the former dismissed the bill so far as it related 
 lease was in reality a demise for a to the prayer for specific perform- 
 future term, to take effect at the op- ance, but retained it as to all ques- 
 tion of the lessees upon notice by tions relating to the injunctions. It 
 them, and that therefore a new lease was held above that the defendant 
 was not necessary, and could not be was entitled to a dismissal as to the 
 granted. Cole, J., held that the cove- retiring plaintiff, and that the dis- 
 nant called for a new lease, and that missal, as to the prayer of specific 
 the plaintiff was entitled to specific performance, worked no injury to 
 performance, but that the decree either party. The cause was re- 
 should not direct covenants to be in- manded for further proceedings. 31 
 serted in the lease binding the de- Wis. 265. 
 
 fendant (the assignee) except for 'CoffmanwRobbins, 8 Oregon, 278. 
 
 breaches during his ownership. The 2 Columbia W. P. Co. v. Columbia, 
 
 decree was reversed, and the cause 5 Rich. (S. C.) 225. 
 
 remanded without directions. 27 3 Laverty v. Moore, 32 Barb. 347; 33 
 
 Wis. 300, 326. One of the plaintiffs N. Y. 658. 
 
 then disposed of his interest to the 4 See Coffman v. Robbins, supra; 
 
 defendant, and discontinued the suit Barnes v. Boston & M. R. Co., 130 s 
 
 as to himself. The court denied a Mass. 388. 
 
§ 578.] EQUITABLE BEMEDIES. 841 
 
 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 pro- 
 ceeded to exercise these powers, disregarding their contract 
 with the plaintiff, they were enjoined from making such sale 
 until the damages for opening the canal were adjusted accord- 
 ing to the agreement. 1 
 
 § 578. Same. — Parol licenses to interfere with rights in 
 water, or in land, have sometimes been made the subject of 
 actions for specific performance. 2 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 interfer- 
 ence. 3 In Ohio it is said that a written license to put water- 
 pipes in land, and to enter and repair them, cannot be specific- 
 ally enforced, and that a violation of it is only ground for an 
 action for damages. 4 
 
 1 Murray v. Jayne, 8 Barb. 612. <Wilkins v. Irvine, 33 Ohio, 138, 
 
 2 See ante, §323. 145. 
 SRerick v. Kern, 14 S. & R. 267. 
 
OHAPTEE XIY. 
 
 STATUTORY REMEDIES AND EFFECT THEREOF. 
 
 SECTION. 
 
 579, 580. Statutory remedies taking away other 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 powers. 
 
 590. 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. 
 
 598. 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. — Pennsylvania. 
 €09-611. The Virginia system. 
 
 612. Ibid.— Kentucky. 
 
 613. Ibid.— West Virginia. 
 
 614 Ibid. — Mississippi and Alabama. 
 
 615. Ibid.— Missouri. 
 
 616. Ibid. — Indiana. 
 
 617. Ibid. — Iowa and Illinois. 
 
 618. Ibid.— Michigan. 
 
 619. Ibid.— Nebraska. 
 
 620. Ibid. — Kansas and Minnesota. 
 
 621. Ibid — North Carolina. 
 
 622. Ibid.— Tennessee. 
 
 €23. Ibid. — Georgia and other States. 
 
§§ 579, 580.] 
 
 STATUTORY REMEDIES. 
 
 84:3 
 
 § 579. Statutory remedies.— Special statutory remedies for 
 injuries caused by acts authorized by the Legislature, and other- 
 wise remediable at common law, usually take the place of the 
 common-law remedies, which are thereby taken away by im- 
 plication. The remedies provided in the Mill Acts for injuries 
 authorized by them have this effect. 1 Equitable remedies, 2 and 
 the common-law remedies by abatement, 3 may also be taken 
 away by such special enactments. 
 
 §580. Same — Same. — In the leading case of Stowell v. 
 Ilagg, 4 Parker, C. J., said : " From the general purview of the 
 statute, made . expressly to relieve mill-owners from the diffi- 
 
 i Stowell v. Plagg, 11 Mass. 364; 
 Wolcott Woollen Manuf. Co. v. Up- 
 ham, 5 Pick. 292; Fiske v. Framing- 
 ham Manuf. Co., 12 Pick. 68; Baird 
 v. Wells, 22 Pick. 312; Walker v. Ox- 
 ford Woollen Manuf. Co., 10 Met. 203; 
 Murdock v. Stickney, 4 Cush. 113, 
 116; Leland v. Woodbury, 4 Cush. 
 •245; Shaw v. Wells, 5 id. 537; Hender- 
 son v. Adams, id. 610; Gile v. Stevens, 
 13 Gray, 146; Magee Furnace Co. v. 
 Com., 166 Mass. 480; Holleran v. Bos- 
 ton (Mass.), 57 N. E. Rep. 220; Burn- 
 ham v. Story, 3 Allen, 378; Woods v. 
 Nashua Manuf. Co., 4 N. H. 527; Hill 
 v. Baker, 28 Maine, 9; Monmouth v. 
 Gardiner, 35 id. 247; Wooster v. Great 
 Falls Manuf. Co., 39 id. 246; Under- 
 wood v. Wayne Co., 41 id. 291; Veazie 
 v. Dwinel, 50 id. 485; Dingley v. 
 Gardiner, 73 id. 63; Bull v. Valley 
 Falls Co., 8 E. I. 42; Schenectady v. 
 Furman, 15 N. Y. S. 724; Brown v. 
 Com., 3 Serg. & R. 273; Criswell v. 
 Clugh, 3 Watts, 330; Speigelmoyer 
 v. Walter, 3 Watts & S. 540 ; Ensworth 
 -A Com., 52Penn. St. 320; Mumfordu 
 Terry, 2 Law Rep. (N. C.) 425; Wilson 
 v. Myers, 4 Hawks, 73; Gillet v. Jones, 
 1 Dev. & Bat. (N. C.) 339; Waddy v. 
 Johnson, 5 Ired. (N. C.) 333; King v. 
 Shuford, 10 id. 100; Gilliam v. Cana- 
 day, 11 id. 106; Hendricks v. Johnson, 
 6 Porter, 472; Stephens v. Marshall, 3 
 Pin. (Wis.) 203; 3 Chand. 222; Babb 
 
 v. Mackey, 10 Wis. 371; Newton v. 
 Allis, 12 id. 378; Wood v. Hustis, 17 
 id. 416; Crosby v. Smith, 19 id. 449; 
 Large v. Orvis, 20 id. 696. For decis- 
 ions giving the same effect to a stat- 
 utory remedy against the overseer 
 of highways for injuries in provid- 
 ing for the drainage of the road, see 
 Elder v. Bemis, 2 Met. 599; Benjamin 
 v. Wheeler, 8 Gray, 409; 15 id. 486. 
 
 ? Bull v. Valley Falls Co., 8 R. L 42; 
 Lummery v. Braddy, 8 Iowa, 33. As 
 to injunctions, see Newton v. Allis, 
 12 Wis. 378; Crosby v. Smith, 19 id. 
 449. 
 
 3 Criswell v. Clugh, 3 Watts, 330; 
 Speigelmoyer v. Walter, 3 Watts & S. 
 540. 
 
 i 11 Mass. 364. That the Mill Act 
 was intended to fix a measure of 
 damage for the future, and relieve 
 the mill-owner from future suits, as 
 well as afford him a remedy for pub- 
 lic past damages, see Com. v. Ellis, 11 
 Mass. 464; Wolcott Manuf. Co. v. Up- 
 ham, 5 Pick. 292; Walker v. Oxford 
 Woollen Manuf. Co., 10 Met. 203; 
 Craig v. Lewis, 110 Mass. 379; supra, 
 § 455, and note. In order to main- 
 tain an action at common law for 
 flowage the plaintiff must show that 
 the height of the defendant's dam 
 has been fixed by a verdict, or an 
 award or an agreement clearly in- 
 tended as a substitute for proceed- 
 
844: 
 
 THE LAW OF WATERS. 
 
 [Oh. XIY. 
 
 culties and disputes 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 law- 
 suits and expenses." In Murdock v. Stickney, 1 Shaw, 0. 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 con- 
 sideration 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 consequential 
 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 practical remedy for all the damage 
 sustained, by a compensation in money, to be paid by the 
 owner of the mill." Some of the more recent Mill Acts have 
 expressly taken away the common-law remedies for injuries so 
 authorized. 2 
 
 ings under the Mill Act. Mass. Pub. 
 Sts. oh. 190. §§ 1, 4, 28; Leonard y. 
 Wading River Reservoir, 113 Mass. 
 235; Brady v. Blackinton, 113 id. 238; 
 174 id. 559. 
 
 iSCush. 113. 
 
 2 Mass. Public Sts. (1882), ch. 190, 
 § 28; Maine Rev. Sts. (1871), ch. 92, 
 § 23. In Ash v. Cummings, 50 N. H. 
 591, which was an action at law, the 
 New Hampshire Mill Act of 1868 is 
 construed. The act provides, § 4: 
 "No person or corporation shall de- 
 rive any title from said proceedings, 
 or be discharged from any liability 
 in relation to said premises, until he 
 or it has paid or tendered to the per- 
 son aggrievedordamagedtheamount 
 of such adverse judgment." The Act 
 also provides that proceedings under 
 it may be begun by either party, if 
 the injury by the acts authorized be 
 continued for thirty days without ad- 
 justment. From these provisions, and 
 from the possibility of an injury be- 
 ing continued for a great length of 
 
 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 tima Sar- 
 gent, J., in delivering the opinion, 
 said: "If the plaintiff recovers 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 in- 
 cluding in the judgment on the peti- 
 tion the amount of the former judg- 
 ment 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 included in it There would 
 
§ 581.J 
 
 STATUTORY REMEDIES. 
 
 845 
 
 § 581. Same —Effect upon indictments.— "Whether the stat- 
 utes protect parties proceeding under them from indictments, 
 where their dams injure the public, is a question upon which 
 the courts are divided. In New Hampshire it is held that an in- 
 dictment will not lie. 1 In Kentucky the statute contains, as we 
 shall see, a provision against injuries to health; and a dam built 
 under permission of court, but which causes injury to the 
 health of the neighborhood, is indictable as a public nuisance. 2 
 These decisions were followed in Wisconsin, although the 
 statute there contains no such provision. 3 In Indiana the 
 
 be no difficulty in settling every 
 practical question that may arise, 
 nothing to be compared with the dif- 
 ficulties that have been overcome in 
 the construction of the Homestead 
 Act, and some others. If the land- 
 owner chooses to go on with his 
 common-lawaction, notwithstanding 
 the pendency of a petition, the dam- 
 ages claimed in the former must be 
 excluded from consideration in the 
 latter." In speaking of equitable 
 remedies, he said: " But suppose that 
 the land-owner endeavors to prevent 
 the mill-owner from building his dam 
 or from flowing his land after the 
 dam is built, by injunction, 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." The decision is based prin- 
 cipally on the special clause in the 
 statute, and in view of this clause 
 the decision that the liability to an 
 action at law remained, was unavoid- 
 able. The suggestion that if a judg- 
 ment 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 judgment 
 defendant at law. It seems, that 
 where the remedy is retained, a bet- 
 ter 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 ob- 
 tained on the petition, or the ques- 
 tion of public use has been deter- 
 mined. In Indiana the statutory 
 remedies are held not to deprive the 
 injured party of his remedies at com- 
 mon 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 are assessed and paid. In 
 Snowden v. Wilas, 19 Ind. 10, the 
 court raise the question without de- 
 ciding it, whether the statutory rem- 
 edy is not exclusive. See, further, 
 ante, § 250 et seq. 
 
 iHooksett v. Amoskeag Manuf. 
 Co., 44 N. H. 105; Eastman v. Amos- 
 keag Manuf. Co., 44 N. H. 143. To 
 same effect, see Ensworth v. Com., 
 52 Penn. St. 320; Crittenden v. Wil- 
 son, 5 Cowen, 165. 
 
 2Ky. Sts. 1879, ch. 77, § 4; Mount- 
 joy v. Oldham, 1 Marsh. 535; Major 
 v. Taylor, id. 552. See to same effect 
 Com. v. Faris, 5 Band. 691. 
 
 s Luning v. State, 2 Pin. (Wis.) 215. 
 See Smith v. Youmans, 96 Wis. 103. 
 
8±6 
 
 THE LAW OF WATERS. 
 
 [Ch. XIV. 
 
 permission to build a dam is held no- protection against an in- 
 dictment for creating a public nuisance by flooding, a high- 
 way; 1 and in Michigan, Cooley, J., in the course of a decision 
 upon the constitutionality of an Act, expressed the opinion in 
 general terms, that such a statute, if constitutional, would be 
 no defence to a prosecution for a public nuisance. 2 
 
 § 582. Same — Effect upon damages — Recovery. — -In Mas- 
 sachusetts it was held that the remedy by assumpsit or debt, 
 allowed by the Mill Act, 3 to enforce payment of the annual 
 compensation or gross damages, awarded for flowage under 
 
 1 State v. Phipps, 4 Ind. 515. This 
 rule' is now made a part of the stat- 
 ute, and applies to all public nui- 
 sances created by such dams. Ind. 
 Rev. Sts. (1881) § 1859. See, also, Val- 
 paraiso City W. Co. v. Dickover, 17 
 Ind. App. 233; State v. Useful M. 
 Society, 46 N. J. L. 274. 
 
 -'Ryerson v. Brown, 35 Mich. 333, 
 338. The decision in Massachusetts 
 that the Act did not authorize the 
 flowage of a public highway, and 
 that for such injuries an indictment 
 would lie (Com. v. Stevens, 10 Pick. 
 247; ante, § 214), is in effect an au- 
 thority for the same proposition. 
 And see Trustees v. Tuttle, 30 Ohio 
 St. 62; Venard v. Cross, 8 Kansas, 
 248. All the cases are apparently in 
 harmony with the following propo- 
 sition: The effect of the statute is to 
 authorize the acts provided for, and 
 their necessary consequences, and to 
 take away the public right of indict- 
 ment or action therefor. So such stat- 
 utes protect one maintaining a dam 
 in accordance with their provisions 
 from indictment for a nuisance in 
 obstructing the stream. But for 
 other nuisances caused by the dam, 
 which are not necessary consequences 
 of the existence of the dam under any 
 circumstances, the statutes afford no 
 protection. See Chesapeake & O. 
 Ry. Co. v. Chambers, 95 Va. 503. One 
 of the New Hampshire cases, on the 
 one hand, expressly says: "But an 
 
 Act authorizing one 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 a river; but if in do- 
 ing this, he overflow's his neighbor's 
 land, he is liable to an action there- 
 for." (Eastman v. Amoskeag Manuf. 
 Co., 44 N. H. 143, 160.) And the Vir- 
 ginia and Kentucky cases, on the 
 other hand, are referable to the pro- 
 visions of the statutes against inju- 
 ries to health, or for unforeseen inju- 
 ries. Where the statute prescribes 
 an indictment with a special form of 
 presentment and procedure, a com- 
 mon-law indictment will not lie. 
 Com. v. Plumer, 1 Am. L. Reg. 124; 
 Brown v. Com., 3 Serg. & R 273. See 
 Warren v. Spencer Water Co., 143 
 Mass. 9. If the charter of a canal 
 company reserves an action to obtain 
 an appraisement and recovery of the ' 
 land-owner's damages, in case the 
 company does not proceed for that 
 purpose by commissioners, such ac- 
 tion is not barred by the statute of 
 limitations, as ordinary actions of 
 debt or trespass are barred, but may 
 be brought at any time before a right 
 or title to the property has been ac- 
 quired by adverse user or possession. 
 Lehigh Valley R. Co. v. McFarlan, 43 
 N. J. L. 605, 614; McFarlan v. Morris 
 Canal Co., 44 id. 471 ; see Halsey v. 
 Lehigh Valley R. Co., 45 id. 26. 
 » Rev. St 1836, ch. 116, § 24. 
 
582.] 
 
 STATUTOKY REMEDIES. 
 
 847 
 
 the Act, was not cumulative, but was substituted for and took 
 away the common-law remedy by an action of debt on the 
 judgment. 1 Where an action has been brought for the wrong- 
 ful erection of a dam built under authority, it cannot be changed 
 by amendment into a proceeding under the statute. 2 But 
 where a special Act authorizes the damming of a stream for 
 manufacturing purposes, but provides no remedy, and makes- 
 no reference to the general Mill Act, the common-law remedy 
 must be pursued, and not that provided by the general Act. 3 
 So Acts authorizing the taking, diversion, or obstruction of 
 streams, for canals or for the improvement of navigation, or 
 other public purposes, and providing remedies for injuries 
 caused thereby, have generally been construed to exclude the 
 common-law remedies. 4 
 
 1 Leland v. Woodbury, 4 Cush. 245. 
 
 2 Newton u Allis, 12 "Wis. 378. Con- 
 fer French v. Owen, 5 Wis. 112, 
 which holds, conversely, that a stat- 
 utory action cannot be changed by 
 amendment into one at common law. 
 
 3 Cogswell v. Essex Mill Co., 6 Pick, 
 94; Lee v. Pembroke Iron Co., 57 
 Maine, 81. 
 
 4 Lebanon v. Olcott, 1 N. H. 339; 
 Steele v. Western Nav. Co., 2 Johns. 
 283; Stevens v. Middlesex Canal, 12 
 Mass. 466; Sudbury Meadows v. Mid- 
 dlesex Canal, 23 Pick. 36; Elder v. 
 Bemis, 2 Met. 599; Tower v. Boston, 
 10 Cash. 235; Perry v. Worcester, 6 
 Gray, 546; Perkins v. Lawrence, 136 
 Mass. 305; Spring v. Russell, 7 Greenl. 
 273; Aldrich v. Cheshire R. Co., 21 
 N. H. 358; Troy v. Cheshire R, Co., 23 
 N. H. 83; Spangler's Appeal, 64 Penn. 
 St. 387; McKinney v. Monongahela 
 Nav. Co., 14 id. 65; Fehru Schuylkill 
 Nav. Co., 69 id. 161; Power v. Ridg- 
 way, 149 id. 317; Fuller v. Edings, 11 
 Rich. (S. C.) 239; In re Minnetonka 
 Lake Impr't, 56 Minn. 513; Baughman 
 v. Heinselman, 180 111. 251 ; Kimble 
 v. Whitewater Canal Co., 1 Ind. 285; 
 Conwell v. Hagerstown Canal Co., 2 
 Ind. 588; Null v. Whitewater 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. Wil- 
 son, 5 Cowen, 165; Selden v. Dela- 
 ware Canal Co., 24 Barb. 362; Wright 
 v. Shanahan, 149 N. Y. 495; Davis v. 
 Sacramento, 59 CaL 596; Wismer v. 
 Great Western Ry. Co., 17 Q. B. 
 (Can.) 510. 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 rem- 
 edy 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 indictment, and 
 to authorize a summary mode of ap- 
 praising damages, and not to take 
 away the remedy by action at law, 
 upon the same ground as the preced- 
 ing case, and relying on Comyn, Dig. 
 Action Upon Statute (C). ["If a 
 statute gives a remedy in the affirm- 
 ative (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 
 
848 
 
 THE LAW OF WATERS. 
 
 [Cfl. XIV. 
 
 § 583. Same — Unauthorized and excessive injuries. — 
 
 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 re- 
 main in full force. A frequent example of their use is afforded 
 by injuries by a mill-dam to a mill already existing. Such in- 
 juries are usually expressly excluded from the operation and 
 protection of the Acts, 1 and are remediable at common law 
 and in equity; 2 and in the absence of such provisions the stat- 
 
 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 pri- 
 vate Act, as contradistinguished 
 from a public Act, the law which 
 was applied to the case of Crittenden 
 v. Wilson must govern. The plaint- 
 iffs 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 individuals 
 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. v. People, 15 
 Wend. 268; Waterford & Whitehall 
 Turnpike v. People, 9 Barb. 173; and 
 Clark v. Syracuse, 13 id. 32. See, also, 
 Robinson v. New York E. Co., 27 
 Barb. 512. Selden v. Delaware Canal 
 Co., 24 Barb. 362, follows 5 Cohen, 
 165, and holds that where land and 
 buildings are injured by flooding, or 
 by the percolation of water caused 
 by the enlargement 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 that the defendants' contention 
 that the only remedy allowed to the 
 plaintiff to obtain indemnity was 
 that pointed out by the defendants' 
 
 charter (Laws of 1823, p. 309), and 
 that the present action, for that rea- 
 son, could not be maintained, re- 
 ceived support from Calking v. Bald- 
 win, 4 Wend. 667. The decision upon 
 this point below ought, it seems, to 
 be considered no longer law. Crit- 
 tenden v. Wilson is apparently ap- 
 proved in Denslow v. New Haven 
 Co., 16 Conn. 98. When the act is 
 without right and is a mere trespass, 
 the statutory remedy is not exclu- 
 sive. McKee v. Delaware Canal Co., 
 125 N. Y. 353; Strickler v. Midland 
 Ey. Co., 125 Ind. 412. 
 
 1 For statutory provisions protect- . 
 ing existing mills, see Mass. Pub. Sts. 
 (1882), ch. 190, § 2; Maine Eev. Sts. 
 1871, title 9, ch. 92, § 2; N. H. Eev. 
 Sts. 1878, ch. 141, § 19; Vt. Eev. Sts. 
 1880, § 3224; Eev. Sts. Conn. 1875, 
 p. 473, §§ 1, 3; Wis. Rev. Sts. 1878, ch. 
 146, § 3375; Va. Eev. Code, 1873, title 
 19, ch. 63, § 8; N. C. Eev. Sts. 1873, 
 ch. 72, § 8, pL 3; Ala. Rev. Code 1876, 
 § 3564, pL 4; I1L Rev. Sts. 1881, ch. 
 92, § 2; Ind. Rev. Sts. 1881, §§. 898, 
 900; Ky. Gen. Sts. 1879, ch. 77, §§ 6, 
 8; Mich. Laws, 1873, Act No. 196, 
 § 12; Tenn. Sts. 1871, § 1920; Mo. 
 Rev. Sts. 1879, ch. 132, § 6437. That 
 permission will not be granted to 
 build a mill which will injure one 
 already existing, see Larsh v. Test, 
 48 Ind. 130. 
 
 ^Bigelow v. Newell, 10 Pick. 348; 
 Smith v. Agawam Canal Co., 2 Allen, 
 355, 357; Burnham v. Story, 3 id. 378; 
 Brigham v. Wheeler, 12 id. 89; Will- 
 
§ 583.] 
 
 STATUTOBY BEMEDIES. 
 
 849 
 
 ute is so construed by the courts. 1 What shall be protected 
 as an existing mill has been considered in many cases, and 
 with some difference of opinion. In Massachusetts 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 in- 
 jured the plaintiff's uncompleted mill, it was held that the 
 plaintiff could not maintain a common-law action for the in- 
 jury to his mill as an existing mill, but must pursue his remedy 
 under the Mill Act. 3 So the common-law remedies for in- 
 
 iains v. Elting Woollen Co., 33 Conn. 
 353; Hendricks v. Johnson, 6 Porter, 
 472; Thomas v. Hill, 31 Maine, 252; 
 Wentworth v. Poor, 38 id. 243; Stick- 
 ney v. Munroe, 44 id. 195; Lincoln v. 
 ■Chadbourne, 56 id. 197; Lee v. Pem- 
 broke Iron Co., 57 id. 481 ; Moore v. 
 €oburn, 1 Pin. (Wis.) 538; Large v. 
 Orvis, 20 Wis. 696; Hill v. Ward, 2 
 Oilman, 285; Close v. Samm, 27 Iowa, 
 503. 
 
 i Mo wry v. Sheldon, 2 R. I. 369; 
 Stone v. Peckham, 12 R L 27, 28. 
 Confer Seeley v. Bridges, 13 Neb. 
 ■547, which holds that such injury 
 ■will be enjoined, although the stat- 
 ute contains no provision. 
 
 2Baird v. Wells, 22 Pick. 312; 
 Hendricks v. Johnson, 5 Porter, 208. 
 See Jones v. Fisher, 17 Can. S. Ct. 515. 
 But in Elting Woollen Co. v. Will- 
 iams, 36 Conn. 310, 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, ch. 146, § 3375) protects mills 
 already existing or in "process ©f 
 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 pro- 
 54 
 
 tected 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. v. Sprague Manuf. Co., 35 Conn. 
 496. A mill is held to be " lawfully 
 existing,'' though its dam is main- 
 tained a little higher than it should 
 be: Robertson v. Miller, 40 Conn. 40. 
 No person can avail himself of the 
 privileges conferred by the Mill Act 
 of Massachusetts, nor bring himself 
 within its protection merely by erect- 
 ing a dam across a stream running 
 through his land. There must be 
 coupled with such erection the build- 
 ing of a mill for use, or the bona fide 
 provable intent to erect one forth- 
 with. Fitch 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. See Dixon 
 v. Eaton, 68 Maine, 542. Injury to a 
 canal and waste weir connected with 
 a water-mill has been held an injury 
 to a mill within the Massachusetts 
 statute. Dean v. Colt, 99 Mass. 480. 
 In Bottomry v. Chism, 102 Mass. 463, 
 a reservoir dam used with a mill was 
 held entitled to protection as an ex- 
 isting mill, under the Massachusetts 
 Act. The owner of property already 
 appropriated for milling purposes 
 
850 
 
 THE LAW OF "WATEES. 
 
 [Ch. XIV. 
 
 juries to existing mills are strictly confined to injuries to the 
 mills and works. The plaintiff cannot include in his action at 
 law injuries to his meadows; nor will equity enjoin such an 
 injury; for these he must proceed under the Act. 1 On the 
 other hand, the Delaware statute of 1773, for the encourage- 
 ment of mill-owners, which gives them a summary remedy for 
 damages occasioned by the erection of other dams, has refer- 
 
 cannot have an injunction to restrain 
 proceedings which will authorize 
 flowage injurious to him. If he can 
 appear in such proceedings, his rem- 
 edy 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-purpeses, 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 begun thereon, unless the design 
 for building a mill has been aban- 
 doned. If the proprietor of such 
 dam should represent that he in- 
 tended 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 representations, 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 protection under the Act 
 against flowage by a later dam, built 
 for mill-purposes. The erection of 
 a dam or mill-privilege available for 
 mill-purposes furnishes 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 presumption. Mowry v. 
 Sheldon, 2 R. I. 369. The right to 
 an injunction to protect an existing 
 mill or mill-site, may be lost by ac- 
 quiescence in the building of an- 
 other mill. Nosser v. Seeley, 10 Neb. 
 468. In Indiana, a purchase or hold- 
 
 ing of land, with the declared inten- 
 tion 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, are sufficient to entitle him to- 
 the protection of the statute. Miller v r 
 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 
 previously improved " under the Min- 
 nesota statute. Miller v. Troost, 14 
 Minn. 365. The Missouri statutes- 
 formerly contained no provision pro- 
 tecting existing mills. In Hook v. 
 Smith, 6 Mo. 225, it is held that where- 
 conflicting 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 present statute gives the court 
 power, on petition of the owner of 
 any existing mill, to restrain such 
 injuries. 2 Mo. Rev. Sts. (1S79), 
 § 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 protec- 
 tion of the statute against injuries 
 by other mills. Huffman v. Vaughan, 
 72 Mo. 465. In Humes v. Shugart, 10- 
 Leigh, 332, the Virginia court denied 
 a second application made shortly 
 after granting a former one for erect- 
 ing a mill in the same neighborhood- 
 i Large v. Orvis, 20 Wis. 696. 
 
§ 584.] 
 
 STATUTORY REMEDIES. 
 
 851 
 
 ence 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. 1 
 
 §584. Same. — For all injuries caused by persons proceed- 
 ing 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. 2 So if the right to flow lands is limited to cer- 
 tain seasons of the year, and the person using the mill flows 
 the lands at other seasons, he is liable as a wrong-doer. 3 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. 4 So, where a dam is maintained by the 
 
 i Garrett v. Bailey, 4 Har. (Del.) 197. 
 
 2 Johnson v. Kittredge, 17 Mass. 76; 
 Winkley v. Salisbury Manuf. Co., 14 
 Gray. 443: Leonard v. Wading River 
 Co., 113 Mass. 335; Brady v. Black- 
 inton, id. 338; Arimond v. Green 
 Bay Co., 31 Wis. 316; Hackstaok v. 
 Keshena Imp. Co., 66 id. 439. See 
 Hiscox v. Sanford, 4 R. I. 55, where 
 the height was determined by con- 
 tract. 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 the statute, and the statutory 
 method must be pursued. Johnson 
 v. Kittredge, 17 Mass. 76; Leonard v. 
 Sohenck, 3 Met. 359. A charter giv- 
 ing 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 
 common-law actions lie. Amoskeag 
 Manuf. Co. v. Goodale, 46 N. H. 53. 
 
 3 Hill v. Sayles, 12 Met. 142. The 
 plaintiff 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 injunc- 
 
 tion against such unauthorized flow- 
 age. 12 Cush. 454. On the appeal in 
 the first case, Shaw, C. J., said (12 
 Met. 150): " By the rule of the com- 
 mon law, the land-owner has a right 
 to have the natural watercourse 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." 
 
 * Bryant v. Glidden, 36 Maine, 36; 
 Strout v, Millbridge Co., 45 id.' 76. 
 See, also, Renwick v. Morris, 7 Hill, 
 575, where a statute authorized a per- 
 son to maintain a dam in a navigable 
 river, and the dam, being built so as 
 to obstruct the navigation beyond 
 what the Act authorized, was held a 
 public nuisance, and liable to abate- 
 ment pro tanto by any one, though 
 it had stood for more than twenty 
 years. 
 
852 THE LAW OF WATEES. [Ch. XI V. 
 
 defendants for the use of a mill not owned by them, nor situ- 
 ated on their land, it is not within the provisions of the Mill 
 Act of Maine, and the common-law actions will lie for an in- 
 jury caused by such a dam. 1 So, an obstruction of the public 
 use of a stream, as a water-way for rafts and timber, is un- 
 authorized by the Acts. The mill-owner may dam streams 
 available for such transportation, but must keep a suitable pas- 
 sage-way for boats and rafts; and for injuries to this use the 
 common-law remedies may be maintained. 2 So it is held in 
 Massachusetts thai the Mill Act does not authorize the flowage 
 of a public highway already appropriated and in actual use; 
 and for such flowage an action at law may be maintained, or 
 an indictment will lie. 3 So, if a mill is abandoned, and the 
 right to flow lost, and a highway is laid out over the land for- 
 merly 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. 4 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. 5 
 
 1 Crockett v. Millett, 65 Maine, 191. way. For the details of this proced- 
 
 2 Pearson v. Rolfe, 76 Maine, 380; ure, see infra, the sections on Reme- 
 Veazie v. Dwinel, 44 id. 167; Veazie dies under the Mill Acts. See a sim- 
 v. Dwinel, 60 id. 479; Knox v. Chal- ilar provision in Minnesota, Gen. Sts. 
 oner, 42 id. 150; Treat v. Lord, 43 id. 1878, ch. 81, § 23, p. 331. As to inter- 
 552; Parks i'. Morse, 52 id. 260; Lancey ference between artificial ponds and 
 v. Clifford, 54 id. 487. roads or bridges, see also Clay v. Hart, 
 
 3Com. v. Stevens, 10 Pick. 247; 55 N. Y. S. 43; East Montpelier v. 
 
 Charlotte v. Pembroke Iron Works, Wheelock, 70 Vt. 391; Piqua v. Geist, 
 
 S2 Maine, 391. To the same effect 59 Ohio St. 163 ; Donnelly v. Luzerne 
 
 under the Kansas statute, see Venard County, 9 Kulp (Pa.), 271. The legis- 
 
 v. Cross, 8 Kansas, 248, where an in- lature may expressly authorize a 
 
 junction was granted. See Haines town highway to be superseded by a 
 
 v. People, 19 111. App. 354. city's water supply dam. In re Gil- 
 
 4 Com. v. Fisher, 6 Met. 433. So the roy, 60 N. Y. S. 200. As to the duty 
 
 remedy of a town against a mill- of the owner of a mill-race to repair 
 
 owner for overflowing a road which a highway bridge over it, see Clay v. 
 
 the town is obliged to repair, and Hart, 55 N. Y. S. 43. 
 does repair, is by action on the case 5 French v. Braintree Manuf. Co., 
 
 and not under the Mill Act. Andover 23 Pick. 216; Hodges v. Hodges, 5 
 
 v. Sutton, 12 Met. 182. St. 1873, eh. Met. 205; Fuller v. French, 10 Met. 
 
 144 (Pub. Sts. ch. 190, § 42), establishes 359. Mere disuse of a canal by a 
 
 a, proceeding by which a mill-owner canal company and a sale of its mill 
 
 can acquire the right to flow a high- properties, reserving all rights neces- 
 
§§ 585, 586.] , STATUTOKY EEMEDIES. 853 
 
 § 585. Same. — If a mill-owner makes a canal leading water 
 into another's land, this is not within the protection of the 
 Massachusetts statute. 1 So trespasses in the construction of a 
 dam or boom are not within the scope of the statutory rem- 
 edy, and are actionable wrongs. 2 So where the provisions of 
 the Mill Act were extended, so as to include the taking of 
 waters to furnish a water-supply to cities and towns, this ex- 
 tension 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 diver- 
 sion was enjoined. 3 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. 4 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. 5 
 
 § 586. Breach of conditions. — Similarly the common-law 
 remedies lie for injuries caused by persons who proceed under 
 
 sary for the preservation and use of companies. Where individuals, act- 
 
 the canal, is not an abandonment, ing for their private benefit, erected 
 
 Heard v. Talbot, 7 Gray, 113. a temporary dam for such purposes, 
 
 1 Fiske v. Framingham Manuf. Co., which they used in such a way as 
 12 Pick. 68. sometimes to cut off the water from 
 
 2 Perry v. Wilson, 7 Mass. 393 ; Hen- the plaintiff's mill, and at other times 
 ley v. Wilson, 77 N. C. 216. The North flooded out his wheel, and injured his 
 Carolina Mill Act provides for acts dam, by driving logs upon it, the 
 done on the defendant's own land, court held that the plaintiff's remedy 
 Battle, N. C. Rev. St. ch. 72, §§ 13 et was at common law and not under 
 seq. It would be a proper exercise the statute. Finney v. §omerville, 
 of legislative power, however, to au- 80 Penn. St. 59. 
 
 thorize an entry on another's land 3 Howe v. Norman, 13 R. I. 488. 
 
 for the purpose of erecting a boom or The extension was held to be simply 
 
 dam, upon proper conditions as to of the procedure under the Mill Acts 
 
 compensation. Per Parsons, C. J., to control the taking for such pur- 
 
 in Perry v. Wilson, 7 Mass. 393. In poses when the right should be 
 
 Pennsylvania, an Act authorizing granted. The Mill Act of Mississippi 
 
 persons to maintain dams and obtain has been held not applicable to in- 
 
 control of the channels of streams, juries caused by a ditch and levee, 
 
 for the purpose of floating lumber and Price v. Lagroue. 57 Miss. 839. 
 rafts to market, has been construed 4 Wolf v. Coffey, 4 J. J. Marsh. 41. 
 to authorize such acts only by public s Hardy v. McNeil, 8 B. Mon. 449. 
 
854: 
 
 THE LAW 0E WATERS. 
 
 [Oh. XIY. 
 
 the authority of such Acts, but fail to comply with their re- 
 quirements.- 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. 1 
 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 security required for the payment of future damages, 2 
 or to perform the other duties imposed on him, he forfeits his 
 rights under the Act, and renders a further maintenance of 
 the dam a nuisance to be restrained or abated in equity. 3 This 
 rule applies to persons purchasing from the claimant subse- 
 quent to the proceedings. They take subject to the duties 
 imposed. 4 
 
 1 A strict compliance with the stat- 
 utory method of procedure is a con- 
 dition precedent to the acquisition of 
 rights. A failure to follow the statu- 
 tory method renders the mill-owner 
 liable as a wrong-doer. Hunting v. 
 Waterman, 10 Iowa, 152; Akin v. 
 
 'Davis, 11 Kansas, 580. So the writ 
 must be sued out before building the 
 mill and dam. A writ sued out after- 
 wards was formerly held ineffectual. 
 Smith v. Olmstead, 5 Blackf. 37; 
 Summy v. Mulford, 5 Blackf. 113. 
 See a similar opinion in Alabama. 
 Hendricks v. Johnson, 5 Porter, 208. 
 Contra, see Wright v. Pugh, 16 Ind. 
 106; and Ind. Rev. Sts. 1881, § 883, 
 pi. 9. 
 
 2 Stowell v. Flagg, 11 Mass. 364 
 
 3 Ackerman v. Horicon Iron Co., 16 
 Wis. 150; Zweig v. Horicon Iron Co., 
 17 Wis. 362; s. o. 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 by the aid of the con- 
 stitution to require the claimant to 
 make compensation before the land 
 is flowed, and not to take away the 
 common-law remedies until after an 
 
 assessment and judgment are had 
 under the Act, and payment or ten- 
 der of the amount. Ash v. Cummings, 
 50 N. H. 591. See Head v. Amoskeag 
 Manuf. Co., 113 'IT. S. 1, 20. In Wis- 
 consin, it is held that judgment may 
 be given in the alternative, upon 
 proper allegations and proofs, for the 
 payment of compensation and estab- 
 lishment of the right to maintain 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 maybe 
 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 acquir- 
 ing his right. Hendricks v. Johnson, 
 9 Porter, 208. A mere promise by the 
 builder of the dam to pay the dam- 
 ages assessed does not bar the action 
 for nuisance, and will not be ground 
 for an action. Cave v. Calmes, 3 
 Marsh. 36. 
 * Wight v. Packer, 114 Mass. 473. 
 
§ 587.] 
 
 STATUTORY EEMEDIES. 
 
 855 
 
 § 587. Injuries. — Injuries unforeseen and unprovided for 
 constitute another class for which the common-law remedies 
 survive. 1 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. 2 These Acts also provide that permission shall not 
 he given to erect dams which will cause injury to health. 3 So 
 where a dam duly authorized, and found by the inquest not 
 likely to injure health, afterwards causes injury to health, the 
 remedy is at common law. 4 So where the statutes contain no 
 such provisions, 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. 5 The sav- 
 
 1 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 
 v. Palmer, 8 Gratt. 88, 100; Waddyu. 
 Johnson, 5 Ired. 333: Watson v. Van 
 Meter, 43 Iowa, 152. See Smith v. 
 Olmstead, 5 Blaokf. 37. 
 
 2Va. Code, 1873, Title 19, oh. 63, 
 §11; Miss. Rev. Code, 1880, § 932; 2 
 Mo. R. S. 1879, § 6435; Iowa Rev. Sts. 
 1882, § 1201. See Ind. Rev. Sts. 1831, 
 ch. 1, § 8; Ind. Rev. Sts. 1881, § 1859. 
 
 3 Ala. Code, 1876, § 3564; Ark. Rev. 
 Sts. 1874, § 4225; Fla.. McClellan's 
 Dig. ch. 152, §6; 111. Rev. Sts. 1881, 
 ch. 92, § 1; Ind. Rev. Sts. 1881, § 887; 
 Ky. Rev. Sts. 1879, ch. 77, § 4; Miss. 
 Code, 1880, § 928; N. C. St. 1873, ch. 72, 
 §9; Va. Code, 1873, Title 19, ch. 63, 
 § 6; 2 West Va. Sts. 1879, ch. 91, § 31; 
 2 Tenn. Sts. 1871, § 1920. 
 
 < Com. v. Favis, 5 Rand. 691; Miller 
 v. Trueheart, 4 Leigh, 569; State v. 
 Holman, 104 N. C. 861; Board of 
 Health v. Copcutt, 24 N. Y. S. 625. 
 See Waddy v. Johnson, 5 Ired. 333, in 
 which it is held that, where a per- 
 son's lands are flowed, the statute in- 
 tended to allow all incidental inju- 
 ries caused by such flowage, e. g., 
 iajuries to health to be included in 
 
 the finding; but that where a per- 
 son's lands are not flowed, the rem- 
 edy is by common-law action. And 
 see Bridges v. Purcell, 1 Ired. 232, es- 
 tablishing the first part of the rule. 
 SRooker v. Perkins, 14 Wis. 79; 
 Eames v. New England Worsted Co., 
 11 Met. 570. In Palmer Co. v. Ferrill, 
 17 Pick. 58, 66, Shaw, C. J., says: 
 " The rule, therefore, which seems to 
 be derived from, the statutes con- 
 strued together, seems to be to esti- 
 mate the pecuniary loss arising to the 
 proprietor from the direct injury 
 done to his estate, taken as a whole, 
 by flowing, deducting therefrom any 
 benefit which may be done to the 
 same estate by the same cause, 
 namely, by flowing." In Gile v. Ste- 
 vens, 13 Gray, 146, flowage below a 
 dam was held within the protection 
 of the statute. But injuries to per- 
 sonal property upon the lands flowed, 
 e. g., peat, dry or curing upon a 
 meadow, are not grounds for recov- 
 ery under the statute. And injuries 
 to manure placed upon land cannot 
 be made an item of damages, apart 
 from the realty. For such injuries 
 the remedy is at common law. Gile 
 v. Stevens, 13 Gray, 146. 
 
856 THE LAW OF WATERS. .[Cn. XI Y r 
 
 ing clause in the Yirginia 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 in- 
 cluded 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, 1 
 and the statute does not save a right of action for damages 
 foreseen but miscalculated. 2 
 
 § 588. Case — Incidental injuries.— The right to compen- 
 sation for incidental injuries caused by works of public utility 
 is elsewhere considered. 3 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 the case. 4 Where certain Acts authorized 
 the defendant to enter upon a river-bed and alter it for the 
 purpose of improving its channel, and provided a special rem- 
 edy 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 action on the case would lie. 5 
 
 1 Ellis v. Harris, 32 Gratt. 684. Conn. 124 132. See Grand Rapids 
 
 2 Kepley v. Taylor, 1 Blackf. 152. Booming Co. v. Jarvis, 30 Mich. 321 ; 
 See Bell v. Elliot, 5 Blackf. 113. Pumpelly v. Green Bay Co., 13 Wall. 
 
 3 See ante, §§ 248-250. 166; Nevins v. Peoria, 41 HI. 502,. 
 
 4 In Wabash v. Erie Canal Co., 16 510. An injunction may also be had 
 Ind. 441, it was held that the flowing against such injuries, unless compen- 
 of lands by a canal company by stat- sation is made. Pettigrew v. Evans- 
 utory authority was not a taking ville, 25 Wis. 223. That any such in- 
 within the statutory provision, and jury constitutes a taking, see Eaton 
 that an action at law could be main- v. Boston R. Co., 51 N. H. 504; and 
 tained for such flowage. In Snow- see Cooley Const. Lim. (5th ed.) 570. 
 den v. Wilas, 19 Ind. 10, the same But see Bellinger v. New York Cen- 
 question is raised as a new question, tral R. Co., 23 N. Y. 42; Monongahela 
 but not decided. The action on the Nav. Co. v. Coons, 6 Watts & S. 101 ; 
 case will lie for such injuries. Locks West Branch & Susquehanna Canal 
 & Canals v. Nashua R. Co., 10 Cush. Co. v. Mulliner, 68 Penn. St. 357; Sel- 
 385, 388; Estabrooks v. Peterborough den v. Delaware Canal Co., 29 N. Y. 
 R. Co., 12 Cush. 224; Trenton Water 634; Losee v. Buchanan, 51 N. Y. 476; 
 Power Co. v. Raff, 7 Vroom, 335; Moyer v. New York Central R Co., 
 Hooker v. New Haven Co., 14 Conn. 88 N. Y. 351; Illinois Central R. Co. 
 146; s. c. explained, 15 Conn. 312; v. Bethel, 11 Brad. (HI.) 17. 
 Burroughs v. Housatonic R. Co., 15 5 Coe v. Hall, 41 Vt. 325. The case 
 
§ 589.] 
 
 STATUTORY REMEDIES. 
 
 85T 
 
 § 589. Negligence — Abuse of power. — For injuries caused 
 by negligence 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. 1 A mill-owner 
 maintaining a dam under the statute is liable at common law 
 for letting out water in unreasonable quantities, and wrong- 
 fully overflowing the lands and damaging the property below. 2 
 So where the defendant 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. 3 In Schuylkill Navigation Co. v. McDonough, 
 
 of Denslow v. New Haven & North- 
 ampton Co., 16 Conn. 98, must, it 
 seems, be referred to the principle of 
 injuries unprovided for, if supported 
 at all. There the defendants 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 com- 
 missioners were never called on to 
 assess damages on this account. A. 
 afterwards sold his mill-site to B. It 
 was held that the commissioners 
 could not take cognizance of subse- 
 quent injuries arising from time to 
 time, and'that B. could maintain 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 par- 
 ties 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." 
 But if a mere failure by the injured 
 party to bring his injuries before the 
 commissioners in the method pro- 
 vided, would not entitle him to an 
 action at law, this would abrogate 
 the doctrine of res adjudicata, and 
 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. 
 For injuries caused by dams erected 
 to create artificial floods and float 
 logs to market, the remedy is in case. 
 Dubois v, Glaub, 53 Penn. St. 238. 
 
 1 Estabrooks v. Peterborough R. 
 Co., 12 Cush. 224; Gile v. Stevens, 13 
 Gray, 146; Thompson v. Moore, 2 
 Allen, 350; Hamor v. Bar Harbor W. 
 Co., 78 Maine, 127: Rich v. Keshena 
 Impr. Co., 56 Wis. 287; Steele v. 
 Western Nav. Co., 2 Johns. 283; West 
 Branch & Susquehanna Canal Co. 
 v. Mulliner, 68 Penn. St. 357; Fehr v. 
 Schuylkill Nav. Co., 69 Penn. St. 161. 
 Negligence or wantonness by a pub- 
 lic officer, acting under a statute pro- 
 viding a special remedy, will not be 
 ground for an action at common 
 law. The ground for this exception 
 is that the discretion of public offi- 
 cers is not controllable. But in such 
 case the special remedy lies. Ben- 
 jamin v. Wheeler, 8 Gray, 409; 15 
 Gray, 486. 
 
 2 Clapp v. Herrick, 129 Mass. 292. 
 
 3 Thompson v. Moore, 2 Allen, 350*. 
 In this case, Bigelow, C. J., after al- 
 luding to the broad terms of the Act 
 (" overflowed or otherwise injured "), 
 said: " Looking at the original design 
 and intent of the legislature in enact- 
 ing laws for the support and regula- 
 tion of mills, and taking into view 
 the successive Acts which have been 
 
€58 
 
 THE LAW OF WATEKS. 
 
 [Oh. XIY. 
 
 which was an action on the case by McDonough against the 
 company, for injuries caused by suffering a dam and pond to 
 become filled with dirt, 1 the court said: " The remedies against 
 the company, provided by the Act of incorporation, are for 
 the injuries arising from the construction of the dam as a part 
 of the navigable, highway ; and they do not exclude the com- 
 mon-law remedies for injuries arising from an abuse of the 
 privileges granted to the company, or for the neglect x of its 
 duties." So the common-law actions lie for the negligent di- 
 version or obstruction of a watercourse, or for the detention 
 and accumulation of water, in the construction of a public 
 work. 2 
 
 § 590. Contracts — Arbitration. — Eights upon contracts 
 between land-owners and mill-owners are usually not affected 
 by the statutes, and are enforceable by the ordinary remedies 
 at common law and in equity, and not by proceedings under 
 the statutes. 3 A grantee, whose right of flowage is limited by 
 
 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 
 necessarily and naturally arise there- 
 from. This is settled by a series of 
 adjudicated cases. For all other in- 
 juries the remedy at common law 
 still remains, and the party sustain- 
 ing damage can maintain an appro- 
 priate action to recover it. Hill v. 
 Sayles, 12 Met. 142; Andover v. Sut- 
 ton, id. 182; Eames v. N. E. Worsted 
 Co., 11 Met. 571; Murdock v. Stick- 
 ney, 8 Cush. 116." So the remedy 
 under the Act does not extend to 
 trespasses. Henley v. Wilson, 77 
 N. C. 216. 
 
 133 Penn. St. 73, 79. The injuries 
 here considered are those alleged in 
 the fourth count. 
 
 2 Bailey v. Mayor of New York, 3 
 Hill, 531; Bellinger v. New York 
 Central R. Co., 23 N. Y. 42; Bryant 
 v. Bigelow Carpet Co., 131 Mass. 492; 
 Delaware Canal Co. v. Lee, 22 N. J. 
 
 L. 243; Pittsburgh Ry. Co. v. Gille- 
 land, 56 Penn. St. 445; Dearborn v. 
 Boston R. Co., 24 N. H. 179; Hatch 
 v. Vermont Central R. Co., 25 Vt. 49; 
 Watertown v. Connecticut R Co., 30 
 Vt. 610; Spencer v. Hartford R. Co., 
 10 R. I. 14; Southside R Co. v. 
 Daniel, 20 Gratt. 344; Selma R. Co. 
 v. Keith, 53 Ga. 178; Terre Haute R. 
 Co. v. McKinley, 33 Ind. 274; King v. 
 Iowa Midland R. Co., 34 Iowa, 458; 
 McCormick v. Kansas City R. Co., 57 
 Mo. 33; St. Louis Ry. Co. v. Morris, 
 35 Ark. 48; Oregon R Co. v. Barlow, 
 3 Oregon, 311. The same is true of 
 injuries from the negligent construc- 
 tion of a drain, under statutory au- 
 thority, though the statute provides 
 a remedy for damages by the proper 
 exercise of the power. Jackson v. 
 Portland, 63 Maine, 55. See Tearney 
 v. Smith, 86 111. 391. A reservation 
 in the Act of power of abatement 
 does not exclude equitable jurisdic- 
 tion therefor. State v. Bell, 5 Porter, 
 365. See Hollenback v. Dingwell, 16 
 Mont. 335. 
 3 Harding v. Goodlett, 3 Yerger, 41. 
 
§ 590.] STATUTORY REMEDIES. 859 
 
 his deed to a certain height, is not thereby precluded from 
 obtaining a higher flowage under the Mill Act. 1 The decisions 
 as to the effect of the statutory remedy upon the power of 
 the parties to bind themselves by a submission to arbitration, 
 which will be enforced at law, are by no means uniform. In 
 Hunt v. Whitney, 2 the claim for damages by flowage was sub- 
 mitted to referees, who awarded damages for both past and 
 future flowage, and a sum in gross for all damages thereafter 
 to be sustained. The award was approved, and judgment 
 rendered thereon, and the complainant elected to take the 
 sum in gross. The defendant paid the award for past dam- 
 ages, gave notice at once of his abandonment of the right to 
 flow the lands in future, and drew down the water so as to 
 leave the plaintiff's land free. The plaintiff brought suit on 
 the award for the future damages. The court held that the 
 defendant had the right, under the circumstances, to abandon 
 his right of future flowage and avoid liability therefor. No 
 question was raised as to the validity of the award. If the 
 award had been deemed invalid, the case could have been dis- 
 posed of on that ground. In the next case involving the ques- 
 tion, it was held that where a mill had been abandoned, the 
 clam was not protected, and that the common-law' remedies 
 lay. A submission to arbitration was therefore upheld. 3 In 
 Henderson v. Adams 4 the question was raised as to the valid- 
 ity of a statutory arbitration of a claim for flowage, and it 
 was held invalid because the claim for flowage was not within 
 the terms of the statute on arbitrations. The statute provided 
 a method for the arbitration of "all controversies which might 
 be the subject of a personal action at law or of a suit in equity." 
 It was held that the Mill Act had rendered flowage not the 
 subject of such actions and suits. This was affirmed in Car- 
 penter v. Spencer. 5 But here the court went further, and held 
 
 1 Graham v. Virgin, 78 Maine, 338. injury actually incurred, but looking 
 
 2 4 Met. 603. See James v. Sterrett, to the future, and declaring the rights 
 137 Penn. St. 234;. Russell v. Page, 147 of the parties specifically, and giving 
 Mass. 282. a remedy by action of debt or as- 
 
 3 Hodges v. Hodges, 5 Met 285. sumpsit, by and against privies in 
 
 4 5 Cush. 610. estate, depends wholly on statute,and 
 6 2 Gray, 407. Shaw, C. J., said: can exist only in cases provided by 
 
 "The power to render such judgment, statute. The statute gives this right 
 not only affording a remedy for an only in cases commenced, prosecuted, 
 
860 THE LAW OF WATERS. [Ch. XIV. 
 
 that the power of the courts to give judgment for future dam- 
 ages under the Mill Acts was purely statutory, and that such 
 judgments must be rendered in proceedings conforming to the 
 statute. The court, therefore, could not enter judgment for 
 such damages upon an award. In Winkley v. Salisbury Manuf. 
 Co. 1 a claim for flowage was submitted to arbitrators, giving 
 them " all the authority to decide upon said actions and causes 
 of action and damages, which a court of law or jury might 
 have, m deciding on the same by virtue of the law and stat- 
 utes of the Commonwealth of Massachusetts, especially the 
 statutes for the support and regulation of mills." The arbi- 
 trators awarded past and future damages, and decided upon 
 the height at which it was necessary to maintain the dam. The 
 court held that the same effect was to be given to such an 
 award as to the verdict of a jury under proceedings duly had 
 according to the statute. This rule has been followed in sev- 
 eral cases, but the cases of Henderson v. Adams, and Carpen- 
 ter v. Spencer, are not referred to, either in the leading case of 
 Winkley v. Salisbury Manuf. Co. or the succeeding cases. 2 
 
 § 591. Repeal of statute — Effect. — The repeal of a stat- 
 ute delegating the power of eminent domain renders any fur- 
 ther acts by the grantee, in the exercise of such power, torts 
 for which the parties injured may maintain the common-law 
 remedies. 3 In "Wisconsin the Mill Acts are held to be such 
 
 anddetermined,accordingtotheMill Erskine, 50 Maine, 407; Duren v. 
 
 Act. Eev. Sts. ch. 116. Whether Getchell, 55 id. 241. Unless the title 
 
 such a judgment for damages already to real estate is expressly involved, 
 
 accrued would be binding upon the Quinn v. Besse, 64 Maine, 366. And 
 
 parties and their personal representa- it was held in Fryeburg Canal Co. r. 
 
 tives, we have no occasion now to Frye, 5 Maine, 38, that a claim for 
 
 consider ; beyond that, we are of damages, caused by the company in 
 
 opinion that it is void, because not proceeding under a special Act pro- 
 
 within the statute." viding a remedy, might be arbi- 
 
 1 14 Gray, 443. trated. But the statutory remedy 
 
 2 Bates v. Sloan, 5 Allen, 178; Leon- was expressly held merely cumula- 
 
 ard v. Wading River Reservoir Co., tive. For the effect of an award as 
 
 113 Mass. 235; Wight v. Packer, 114 a defense in proceedings under the 
 
 id. 473. The same doctrine is held in statute, see ante, § 582. 
 
 Fitch v. Taft, 126 Mass. 503, but the 3 That the statutory remedy is 
 
 earlier cases are not referred to. In taken away by such repeal, see Com. 
 
 Maine, the claim under the statute v. Beatty, 1 Watts, 382; Hampton v. 
 
 may be arbitrated. Bradstreet v. Com., 19 Penn. St. 329. The right of 
 
f 592.] STATUTORY REMEDIES. 861 
 
 delegations of the power of eminent domain, and their repeal 
 is held to restore the common-law remedies to parties injured 
 by flowage continued after the repeal. 1 "Where, as in Massa- 
 chusetts, the Mill Acts are held not an exercise of the power 
 of eminent domain, but merely an alteration of the remedies 
 for injuries caused by mills and dams, it would follow upon 
 principle that the sovereign might again alter the remedies ; 
 that a repeal of the Mill Acts would be such an alteration, and 
 that the effect of such a repeal would be to restore the com- 
 mon-law remedies. Where the power is delegated by a special 
 Act, which is in terms subject to all the provisions of the gen- 
 eral Act, and adopts its remedies, a repeal of the general Act 
 will not operate as a repeal of the special Act also, and the 
 statutory remedies for injuries authorized by the special Act 
 remain in force. 2 In such a case it was held, accordingly, that 
 an equitable action to abate would not lie after the repeal of 
 the general Act. 3 The Legislature may alter the provisions of 
 a special charter as to remedies for flowage, and provide new 
 remedies. 4 
 
 § 592. Mills Acts — Remedies under. — Historically the 
 Mill Acts may be divided into two classes, 5 viz. : first, the ear- 
 lier New England statutes and that of Wisconsin, of which 
 
 the State to revoke a license granted his holding is dependent on the will 
 
 by statute, to divert a watercourse of the government. This is followed 
 
 for manufacturing purposes, or to in French v. Owen, 5 Wis. 112. 
 
 grant another license impairing the 2 Wood v. Hustis, 17 Wis. 416; 
 
 former, is affirmed in Monongahela Crosby v. Smith, 19 Wis. 449. An 
 
 N&v. Co. v. Coons, 6 Watts & S. 101 ; amendment to the general Act 
 
 Susquehanna Canal Co. v. Wright, 9 amends such special Act. Hooker v. 
 
 id. 9; New York R. Co. v. Young, 33 Greene, 50 Wis. 271. 
 
 Penn. St. 175; Rundle v. Delaware 3 Crosby v. Smith, 19 Wis. 449. 
 
 Canal Co., 14 How. 80. 4 Pick v. Rubicon Hydraulic Co., 27 
 
 1 In Stephens v. Marshall, 3 Pin. Wis. 433. 
 (Wis.) 203; 3 Chand. 222, it was held s That these acts are quite gener- 
 that the Mill Act gave vested rights ally held to be constitutionally valid, 
 to mill-owners taking the benefit of see ante, § 253 ; also Stewart v. Su- 
 it, which could not be taken away by pervisors, 30 Iowa, 920; Burnham v. 
 repeal. This was overruled in Pratt Thompson, 35 Iowa, 421 ; Rhines v. 
 v. Brown, 3 Wis. 603. Here the court Clark, 51 Perm. St. 96. The Mill Acts 
 held (per Smith, J.) that the taking of the different States are added in 
 was by the sovereign, through the the following note to the opinion of 
 medium of the mill-owner, and that Mr. Justice Gray in Head v. Amos- 
 
862 
 
 THE LAW OF WATERS. 
 
 [Oh. XIV. 
 
 the original is found in Massachusetts; and second, those pre- 
 vailing in the Southern and Western States, of which the orig- 
 inal is found in Yirginia. In some of the more recent statutes, 
 provisions from b6th systems are combined. Statutes of the 
 
 keag Manuf. Co., 113 U. S. 9, 17 
 (1884-5): 
 
 Alabama: Terr. Stats. 1811, 1812, 
 Toulmin's Dig. 1823, tit. 45; Clay's 
 Dig. 1843, p. 376; Code, 1852, §§ 2089- 
 2115; Rev. Code 1867, §§ 2481-2508; 
 Code 1876, §§ . 3555-3579. Arkan- 
 sas: Rev. Stat. 1837, o. 98; Dig. 1846, 
 c. 107; Dig. 1858, c. 114; Gantt's Dig. 
 1873, c. 95. Connecticut: Stat. 1864, 
 c. 26; Gen. Stat. 1866, tit. 1, c. 16; 
 Gen. Stat. 1875, tit. 19, o. 17, pt. 6. 
 Delaware: Pro v. Stat. 1719, 1760, 
 1773, 1 Laws 1700-97, p. 535, appx. 
 pp. 53, 72; Rev. Stat. 1852, c. 61; Stat. 
 1859, c. 538; Rev. Code 1874, c. 61. 
 Florida: Terr. Stats. 1827, 1829, Du- 
 vall's Compilation, pp. 51-55; Thomp- 
 son's Dig. 1847, c. 10; McClellan's 
 Dig. 1881, c. 152. Georgia: Stat. 
 1869, o. 98. Repealed by Code of 1882, 
 § 3018. Illinois: 2 Terr. Laws 1815, 
 p. 456; Stat. 1819, p. 265; Rev. Code 
 1827, p. 297; Rev. Stat. 1845, c. 71; 
 Rev. Stat. 1869, e. 7-1; Rev. Stat. 1874, 
 o. 92; Rev. Stat. 1880, c. 92. In- 
 diana: Terr. Stat. 1807, p. 194; Rev. 
 Laws 1824, c. 117; Rev. Laws 1831, 
 o. 1; Rev. Stat. 1838, c. 1; Rev. Stat. 
 
 1842, c. 48, art. 5; Rev. Stat. 1852, 
 pt. 2, art. 41; Rev. Stat. 1881, §§ 882, 
 &seq. Iowa: Terr. Stat. 1839, p. 343, 
 
 1843, p. 437; Stat. 1855, o. 92; Rev. 
 Stat. 1860, tit. 11, c. 54, art. 4; Code 
 1873, tit. 10, c. 1; Code 1880, tit. 10, 
 c. 1. Kansas: Stat. 1867, c. 87; 
 Gen. Stat. 1868, o. 66; Comp. Laws 
 1879, o. 66. Kentucky: Stat. Feb. 
 22, 1797; 1 Littell Stat. 606; 2 Littell & 
 Swigert's Dig. 1822, p. 933; Rev. Stat. 
 1852, c. 67; Gen. Stat. 1883, c. 77. 
 Maine: Stat. 1821, c. 45; Rev. Stat. 
 1840, c. 126; Rev. Stat. 1857, c. 92; 
 Rev. Stat. 1871, c. 93; Rev. Stat. 1883, 
 
 c. 92. Maryland: Prov. Stat. 1719, 
 o. 15; Bacon's Laws 1765, and 1 
 Kilty's Laws. Repealed by Stat. 1832, 
 o. 56. Massachusetts: Prov. Stat. 
 1714, c. 15, 1 Prov. Laws (State ed.), 
 729, and Ano. Char. 404; Stats. 1795, 
 c. 74, passed Feb. 27, 1796; 1824, o. 153, 
 Feb. 26, 1825; 1825, o. 109, Feb. 28, 
 1826; 1829, c. 122, March 12, 1830; 
 Rev. Stats. 1836, c. 116; Gen. Stats. 
 1860, c. 149; Pub. Stats. 1882, c. 190. 
 Michigan: Terr. Stat. 1824, 1828, 2 
 Terr. Laws, 192, 699: Stat. 1865, c. 304; 
 Comp. Laws 1872, c. 221; Stat. 1873, 
 c. 196. Minnesota: Terr. Stat. 1857, 
 Pub. Stat. 1849-1858, c. 129; Rev. Stat. 
 1866, c. 31; Gen. Skt. 1878, c. 31. 
 Mississippi: Terr. Stat. 1811, 1812, 
 p. 344; Rev. Code 1824, o. 65; Rev. 
 Code 1871, c. 34; Rev. Code 1880, 
 c. 27. Missouri: Stat. 1823; 2 Rev. 
 Stat. 1825, p. 587; Rev. Stat. 1835, 
 p. 405; Rev. Stat. 1845, c. 121; Rev. 
 Stat. 1855, c. 112; Gen. Stat. 1865, 
 c. 101; Wagner's Stat. 1872, c. 98; 
 Rev. Stat. 1879, c. 132. Nebraska: 
 Terr. Stat. 1861-2, p. 71; Rev. Stat. 
 1866, c. 36; Gen. Stat. 1873, c. 44; 
 Comp. Stat. 1881, o. 57. New Hamp- 
 shire: Prov. Stat. 1718; Prov. Laws 
 (ed. 1771), o. 60; Stat. 1868, c. 20; Gen. 
 Laws 1878, c. 190. North Caro- 
 lina: Prov. Stat. 1758, c. 5, Revision 
 1773, p. 219; Stat. 1777, c. 23, Laws 
 1791, p. 343; Stat. 1809, c. 15; 1813, 
 c. 19; Rev. Laws 1821, c. 122, 773, 
 863; Rev. Stat. 1837, c. 74; Rev. Code 
 1854, c. 71; Battle's Revisal 1873, 
 c. 72. Oregon: Stat. Dec. 19, 1865, 
 Gen. Laws 1843-72, p. 679. Penn- 
 sylvania: Stat. March 23, 1803, 4 
 Smith's Laws, p. 20; Purdon's Dig. 
 (10th ed.) p. 1065. Rhode Island: 
 Col. Stat. 1734, Laws 1744, p. 180.;. 
 
§ 593.] STATUTORY REMEDIES. 863' 
 
 Massachusetts or New England system authorize the building 
 of dams and the flooding of lands by persons desiring to build 
 and maintain mills, and prescribe a remedy to be pursued by 
 persons injured thereby. Statutes of the Virginia system em- 
 power the mill-owner to obtain the right to flow lands by pro- 
 ceeding in the manner and performing the conditions prescribed 
 by the statutes. The fundamental difference in the systems 
 is, therefore, in the lodgment of the initiative in the proceed- 
 
 § 593. Extra-territorial injuries.— The Mill Acts, like 
 other statutes, have force only within the territory of the 
 State enacting them. It follows that for any extra-territorial 
 injuries caused by dams and works maintained within the 
 State, the same remedies apply as if there were no statute. 1 
 So, on the other hand, the Acts for the encouragement of mills" 
 apply only to mills within the State. If lands in such State 
 are injured by mills or dams situated without the State, the 
 mill-owner is not entitled to the benefit of the statute. For 
 injuries in both these cases the remedy is at common law in. 
 the courts of the State where the injured property lies. Where 
 a State cedes a portion of its territory, and the jurisdiction over 
 it, to the United States, that territory is governed by the laws 
 of the United States. Therefore, if a Mill Act is in force in 
 such State, it will not apply to mills maintained upon the land 
 
 Public Laws 1798, p. 504; Rev. Stat. Wisconsin: Terr. Stat. 1840, c. 48; 
 
 1857, c. 88; Pub. Stat. 1882, c. 104. Rev. Stat. 1858, c. 56; Rev. Stat. 1878, 
 
 Tennessee: Rev. Laws 1809, c. 23; e. 146. 
 
 Compilation 1836, p. 486; Code 1858, !Wooster v. Great Falls Manuf. 
 §§ 1908-1915; Code 1884, §§ 2651- Co., 39 Maine, 246;. Salisbury Mills v. 
 2661. Vermont: Stats. 1866, o. 12; Forsaith, 57 N. H. 124; Holyoke 
 1867, c. 27; 1869, c. 27; Gen. Stat. Water Power Co, v. Conn. River Co., 
 1870, appx. pp. 906. 953, 1025; Rev. 20 Fed. Rep. 71, 79. So in the case 
 Laws 1880, c. 148, §§ 3215-3224. of a canal company chartered by the 
 Virginia: Col. Stat. 1667, c. 4, 2 Hen- State of Rhode Island, and whose 
 ning's Stat. 260; Col. Stat. 1705, c. 41, works injured property in Massachu- 
 3 Henning, 401; Col. Stat. 1745, c. 11; setts, it was admitted by the com- 
 5 Herming, 359; Stat. 1785, c. 82., 12 pany that the charter gave them no 
 Henning, 187; Rev. Code, 1814, c. 105; right to commit such injury. Far- 
 Rev. Code 1819, c. 235; Code 1849, num v. Blackstone Canal Co., 1 Sum- 
 c. 63; Code 1873, c. 63. West Vir- ner, 46. See remarks of Story, J. r 
 GINIA: Code 1870, c. 44, §§ 29-36. p. 57. 
 
864 
 
 THE LAW OF WATEKS. 
 
 [Oh. XIV. 
 
 ceded to the United States ; nor, on the other hand, will the 
 Mill Act authorize the flowage by a mill within the State, of 
 lands within the territory ceded. 1 But where the United States 
 simply holds the title to lands within the State, the State may 
 exercise the right of eminent domain over such lands, and the 
 laws of the State, including such statutes as the Mill Acts, apply 
 to such lands. 2 
 
 § 594. The Massachusetts system. — The proceedings under 
 the Massachusetts Mill Act are not founded upon any common- 
 law writ, but are purely statutory. 3 The present statute 4 au- 
 thorizes mill-owners to maintain dams 5 subject to its provisions, 
 and provides that any person whose land is overflowed or 
 otherwise injured may obtain compensation by proceeding ac- 
 cording to the Act. The statute is limited to injuries to the 
 complainant's land caused by flowage. 6 It extends to injuries 
 caused by resenvoir dams, 7 including injuries to land interven- 
 
 1 United States v. Ames, 1 Wood & 
 M. 76. 
 
 2 Boggs v. Merced Mining Co., 14 
 Cal. 279, 375; Hendricks v. Johnson, 
 ■6 Porter, 472. 
 
 3 Act of 1714; Ancient Charters, 
 p. 404, ch. cxi., providing for com- 
 plaint by the party injured to the 
 court of general sessions, and the ap- 
 praisal of yearly damages by a jury; 
 which should bar any action save 
 that of debt, for the recovery of such 
 yearly damages "from the owner or 
 ■occupant of such mill, assessed as 
 aforesaid, during the time of such 
 flowage." Act of 1795; 2 Perpetual 
 Laws (1801), ch. 74, p. 344; St. 1825, 
 ch. 153; Kev. Sts. 1836, Ch. 116; Gen. 
 Sts. ch. 149; Pub. Sts. ch. 190. 
 
 4 Public Statutes (1882), ch. 190. As 
 to registered land, see St. 1898, ch. 
 562, § 78. The county commissioners 
 may now examine dams and reser- 
 voirs upon their own judgment, and 
 proceed as if application had been 
 made to them. St. 1891, ch. 315; 1893, 
 ch. 99. The Mill Act is now extended 
 
 to dams in unnavigable streams for 
 ice ponds, by consent of other owners 
 or upon giving security. St. 1898, ch. 
 480. 
 
 5 That a coffer-dam or other like 
 temporary structure is not a dam, 
 see Heacock v. State, 105 N. Y. 246. 
 
 6 Palmer Co. v. Ferrill, 17 Pick. 58, 
 66, where the injuries for which the 
 action lies, and the benefits which 
 may be set off, are limited to those 
 caused by flowage. The same doc- 
 trine is adhered to in Wisconsin. 
 Brower v. Merrill, 3 Pin. (Wis.) 46. 
 As to injuries not within the Act, 
 and remediable at common law, see 
 ante, § 580. 
 
 7 Wolcott Woollen Co. v. Upham, 5 
 Pick. 292; Shaw v. Wells, 5 Cush. 537. 
 And see Nelson v. Butterfield, 21 
 Maine, 220; Dingley v. Gardiner, 73 
 id. 63. Where a Massachusetts stat- 
 ute in 1791, incorporating a naviga- 
 tion company, authorized it to build 
 such dams, locks, and canals as were 
 necessary for its purposes, and pro- 
 vided a special remedy for all per- 
 
:§ 594.] 
 
 STATUTORY REMEDIES. 
 
 865 
 
 ing between the reservoir and the mill, 1 but not to a reservoir 
 dam upon one stream supplying power to a mill upon a dif- 
 ferent stream. 2 It does not include injuries by tide-mills. 3 
 The present statute provides that the jury may consider dam- 
 ages to other lands than those overflowed. Injuries caused 
 by flowage below the dam are within its provisions ; 4 increased 
 flowage caused by enlarging the mill and proportionally in- 
 creasing the height of the dam is a new taking within the 
 statute. 5 An injury caused by flooding a cellar is within the 
 statute, and not remediable at common law. 6 A complaint 
 
 sons injured in their property by the 
 works of the corporation, by applica- 
 tion to a certain court; and a statute 
 passed in 1880 (l legalized the existing 
 dams, locks and canals of the corpo- 
 ration, authorized it to construct 
 other dams, locks and canals for the 
 creation of a water-power to use or 
 to lease for manufacturing purposes; 
 provided that, for those purposes, the 
 corporation should have all the pow- 
 ers and privileges, and be subject to 
 all the duties, liabilities and restric- 
 tions, under the general laws relating 
 to manufacturing and other corpora- 
 tions; relieved the corporation from 
 the obligation to support its dams, 
 locks and canals for the purposes of 
 navigation; and discontinued its 
 ■canal as a navigable highway, the 
 remedy of a person injured by the 
 raising of its dam by the corpora- 
 tion, after the passage of the later 
 statute, was held to be by a com: 
 plaint under the Mill Act. Comins 
 v. Turner's Falls Co., 138 Mass. 222; 
 ■s. C. 140 Mass. 146; 142 Mass. 443. See 
 Neponset Meadow Co. v. Tileston, 133 
 Mass. 189. A dam at the beginning 
 of an unnavigable outlet of a navi- 
 gable lake is within the protection 
 of the Wisconsin statute. Clute v. 
 Briggs, 22 Wis. 607. 
 
 1 Drake v. Hamilton Woollen Co., 
 99 Mass. 574; Norton v. Hodges, 100 
 Mass. 241. 
 55 
 
 2 Bates v. Weymouth Iron Co., 8 
 Cush. 548. 
 
 SMurdock v. Stickney,8 Cush. 113. 
 See XJrch v. Portsmouth (N. H), 44 
 AtL Rep. 112. 
 
 4 Gile v. Stevens, 13 Gray, 146. 
 Such injuries are not within the Mill 
 Act of Maine. Wilson v. Campbell, 
 76 Maine, 94. 
 
 ■' Johnson v. Kittredge, 17 Mass. 76; 
 Leonard v. Schenck, 3 Met. 357; see 
 Brady v. Blackinton, 113 Mass. 238. 
 Where a person has a right to main- 
 tain a dam at a certain height, it is 
 no ground for complaint under the 
 Mill Act, that, owing to the non-use 
 of his mill, the water stands higher 
 on complainant's land than it other- 
 wise would. Daniels v. Citizens' 
 Savings Institution, 127 Mass. 534. 
 In Wisconsin, injuries caused by the 
 obstruction, collection, and deposi- 
 tion of drift-wood are held items of 
 damages to be allowed for in pro- 
 ceedings under the Act. Jansen v. 
 Lammer, 29 Wis. 88. 
 
 6McNally v. Smith, 12 Allen, 455. 
 And so, semble, if water is set back 
 through a cellar drain into a cellar. 
 Cotton v. Pocasset Manuf. Co., 13 
 Met. 429. Injury to lands not flowed, 
 but merely rendered less valuable by 
 reason of odors from adjoining 
 flowed lands, was held too remote 
 for recovery under the statute in 
 Eames v. New England Worsted Co., 
 
866 THE LAW OF WATERS. [Ch. XIV, 
 
 cannot be entertained under the Mill Act for injuries to an 
 unappropriated mill-site. 1 Injuries to highways were held not 
 authorized by the general Act, and were remediable at com- 
 mon law; 2 but by the Act of 1873, 3 a mill-owner who desired 
 to maintain a dam in such a manner as to overflow a highway 
 is authorized to apply to the county commissioners, who may 
 order such alteration in the way as will enable him to main- 
 tain his dam without injury to the highway, and may order 
 the petitioner to pay all damages sustained by any person or 
 corporation by such alteration. But the statutory remedy will 
 lie for an injury to a private way. 4 
 
 §595. The complaint — Parties complainant. — The stat- 
 utory proceeding is by complaint filed in the Superior Court 
 of the county where the land or any part thereof is situated.* 
 It is provided in section 39 6 that two or more persons suffer- 
 ing damage from a mill-dam, whether jointly or separately 
 interested in the lands injured, may join in a complaint, and 
 their cases may be heard before the same jury, which may 
 assess joint or several damages as the interest and title of the 
 complainants may require'. The language is permissive, but 
 when co-tenants are so injured, they will be required to join. 
 The permissive rule that they " may join " in actions for tres- 
 pass or nuisance was construed " must join " by Shaw, C. J. t 
 in May v. Parker, 7 for the reason that the damages survive to- 
 all, which is equally true in this case; and it has been so ruled 
 
 11 Met. 570. But see the present pro- Cheshire v. Adams Keservoir Co., 119 
 
 vision of the statute, § 14, cited Mass. 356. 
 
 supra. Compare Booker v. Perkins, 4 Calais v. Dyer, 7 Maine, 155; Mon- 
 
 14 Wis. 79, accord. mouth v. Gardiner, 35 id. 247. 
 
 1 Fuller v. Chicopee Manuf. Co., 16 5 If the land lies partly in several 
 Gray, 43. counties, or if injuries are done to- 
 
 2 Calais v. Dyer, 7 Maine, 155 ; Mon- several parcels belonging to the same 
 mouth v. Gardiner, 35 id. 347. persons, but lying in different coun- 
 
 3 St. 1873, ch. 144; Pub. Sts. 1882, ties, the complaint may be filed in 
 ch. 190, § 42. A town within whose the court for either county. Bates 
 limits a highway has been changed v. Ray, 102 Mass. 458. 
 
 under this section, and which has no 6 Pub. Sts. (1882), ch. 190, § 39; Gen. 
 
 ownership in the soil of the way, is Sts. ch. 149, § 44. 
 
 not a person or corporation entitled 7 12 Pick. 34. See Bacon Abr., Joint 
 
 to damages under this provision. .Tenants, etc., K. 
 
§ 595.] 
 
 STATUTORY KEMEDIES. 
 
 867 
 
 under the statute of Maine. 1 A mortgagor in possession of 
 the land injured may maintain a complaint under the Act with- 
 out joining the mortgagee, 2 and may recover against- the mort- 
 gagee; 3 and a land-owner may, after conveying the land away, 
 recover under the statute for injuries to the land during his 
 ownership. 4 So a person in possession under a defeasible title, 5 
 and a widow holding by devise a life estate in her late hus- 
 band's lands, 6 have been held entitled to recover. So a pur- 
 chaser of land is held entitled to the remedy, for damage done 
 after his purchase, by flowage begun before, unless the right 
 perpetually to flow has been acquired, the original flowing not 
 constituting a disseisin. 7 
 
 1 Tucker v. Campbell, 36 Maine, 
 346; Moor v. Shaw, 47 id. 88; Phillips 
 v. Sherman, 61 id. 548. The Maine 
 Statute (Rev. Sts. 1871, Title 9, ch. 92) 
 contains no provision on joinder of 
 parties. In Phillips v. Sherman it 
 was held that the non-joinder of a 
 plaintiff could be taken advantage 
 of under the general issue, by a brief 
 statement denying the ownership, 
 and that possession under claim of 
 title was not a sufficient interest to 
 enable the plaintiff to maintain his 
 complaint. But a quit-claim deed to 
 the plaintiff is held prima facie proof 
 of ownership without proof of entry. 
 Williamson v. Carlton, 51 Maine, 449. 
 That part owners cannot maintain an 
 action alone, but that complainants 
 must have the entire title, see Davis 
 v. Stevens, 57 Maine, 593; Webster v. 
 Holland, 58 id. 168. 
 
 2 Paine v. Woods, 108 Mass. 160; 
 Atwood v. Moose Head P. Co., 85 
 Maine, 379. 
 
 3 Vaugh v. Wetherell, 116 Mass. 138. 
 
 4 Walker v. Oxford Woollen Manuf . 
 Co., 10 Met. 203; Turner v. White- 
 house, 68 Maine, 221. 
 
 '" Charles v. Monson Manuf. Co., 17 
 Pick. 70. 
 
 6 Howe v. Ray, 110 Mass. 298. 
 
 7 Charles v. Monson Manuf. Co., 17 
 
 Pick. 70; Craig v. Lewis, 110 Mass. 
 377. In Ballard v. Ballard Vale Co., 
 5 Gray, 468, the company, having the 
 right to flow land to a certain height, 
 wrongfully increased the height of 
 their dam and the extent of flowage. 
 The owner then sold the land and 
 took a mortgage back for the pur- 
 chase money. The purchaser by a 
 quit-claim deed conveyed to the com- 
 pany for a valuable consideration all 
 his right in the lands flowed. The 
 vendor afterwards entered for breach 
 of condition, foreclosed the pur- 
 chaser's equity of redemption, and 
 then brought a complaint under the 
 Act for damages accruing from the 
 flowage after the entry. He was held 
 entitled to recover. In Newell v. 
 Smith, 15 Wis. 101, the purchaser of 
 land already flowed, for which no 
 compensation in gross had ever been 
 made to the former owner, was held 
 entitled to the remedy. This was 
 doubted in Pick v. Rubicon Hydraulic 
 Co., 27 Wis. 433, and the following 
 rule established. The person who 
 owns the land at the time the right 
 to flow vests in the mill-owner has 
 the' right to recover damages for per- 
 petual flowage. If he sells the land, 
 he retains that right, and the vendee 
 will have no right of action for sub- 
 
THE iAW OF WATERS. 
 
 [Oh. XIV. 
 
 § 596. Same — Same. — Under the Maine statutes, one hold- 
 ing a fee, liable to be defeated by the non-performance of a 
 condition subsequent, shows sufficient title against a stranger 
 flowing his land. 1 Under the Wisconsin Mill Act the plaint- 
 iff is required to state his interest. It is held that one who 
 
 sequent flowage. Under the Mill Act 
 the right to flow vests whenever the 
 mill-owner chooses to flow, and is di- 
 vested only by his failure to pay the 
 damages assessed. Under the general 
 Mill Act the vendor of land flowed at 
 the time of sale therefore retains the 
 right of action for damages caused by 
 perpetual flowage. This part of the 
 ruling was directly affirmed in Mead 
 v. Hein, 28 Wis. 533. But under the 
 special charter involved in Pick v. 
 Rubicon Co., the right of flowage did 
 not vest in the mill-owner until pro- 
 ceedings had been begun for deter- 
 mining the right and compensation. 
 The vendor sold the lands flowed be- 
 fore the proceedings were begun, 
 and, therefore, the right of action 
 was held vested in the purchaser. 
 But in Sabine v. Johnson; 35 Wis. 185, 
 the rule in Mead v. Hein, and the 
 doctrine advanced in Pick v. Rubi- 
 con Co. were distinctly overruled, 
 and the rule laid down that the 
 grantor of lands which are flowed at 
 the time of sale by means of a mill- 
 dam lawfully maintained, but in re- 
 spect to which no proceedings to 
 assess damages have been maintained, 
 is entitled only to such damages as 
 have accrued at the time of sale, un- 
 less he specially reserves future 
 damages ; and that the purchaser is 
 entitled to recover for damages after 
 the sale. Where the plaintiff averred 
 that he had been, for three years pre- 
 ceding, the owner in fee and actu- 
 ally possessed of certain lands therein 
 described, and that during all that 
 time he had the right to the use and 
 profits of said lands, and the defend- 
 
 ant had for the last three years 
 flooded such lands, the complaint ' 
 was held sufficient without averring 
 that he owned the land when the 
 dam was erected. Faville v. Greene, 
 12 Wis. 11. Where proceedings to re- 
 cover compensation have been had, 
 and, after a sale of the property 
 flowed, unforeseen injuries result, 
 the purchaser can recover for such in- 
 juries in an action on the case. 
 Denslow v. New Haven & Northamp- 
 ton Co,, 16 Conn. 98. 
 
 1 Webster v. Holland, 58 Maine, 
 168. So the defendant charged with 
 flooding lands by a dam must be al- 
 leged and proved to be owner or in 
 possession of the dam causing the in- 
 jury. A deed to him from one not 
 shown to have had title is not suffi- 
 cient evidence of such ownership, 
 where an older outstanding title is 
 proved in a third person ; and in the 
 absence of evidence, possession will 
 be presumed to follow the superior 
 title. Sidelinger v. Hagar, 41 Maine, 
 415. And where the issue involves 
 the title to the premises flowed, a 
 judgment will be conclusive between 
 the parties and their privies to the 
 estate, and is decisive of the question 
 if raised in a subsequent suit A 
 title acquired after action is begun 
 cannot be introduced to defeat the 
 claim of the defendant Chick v. 
 Rollins, 44 Maine, 104. The flowage 
 must be intended, and useful ; hence 
 a complaint cannot be maintained 
 upon proof of flowage accidentally 
 caused by water raised by a jam of 
 drift-stuff. Clapp v. Manter, 78 Maine, 
 358. 
 
§ 597.] 
 
 STATUTORY REMEDIES. 
 
 869 
 
 holds the legal title, and his purchaser in possession under a 
 contract entitling him to a deed upon full performance of its 
 conditions on his part, may join in an action for flowage, and 
 the court may apportion the damages. 1 
 
 § 597. Same — Eespondents. — The complaint maybe main- 
 tained against any person owning or occupying the premises 
 upon and for which the dam is maintained. So the mortgagee 
 in possession is held liable, 2 though he did not enter for the 
 purpose of foreclosure. 3 A party having the record title, al- 
 though he has conveyed the premises away by an unrecorded 
 instrument ; 4 a former owner, for damages accruing during 
 his ownership; 8 a lessor, for damages caused by a dam. built 
 by his lessee for years ; 6 a lessee ; 7 a married woman, in whose 
 name premises are held, though the dam is maintained by her 
 husband ; 8 a corporation maintaining a dam, but not the stock- 
 holders individually, where the charter does not subject them 
 to personal liability, 9 all are chargeable either as owners or 
 occupants of the premises on which the dam is maintained. 10 A 
 
 1 Seymour v. Carpenter, 51 Wis. 
 413. 
 
 2 Fuller v. French, 10 Met. 359; 
 Lowell v. Shaw, 15 Maine, 243. 
 
 s Abbott v. Upham, 13 Met 172. 
 
 * Hennessey v. Andrews, 6 Cush. 
 170. 
 
 s Walker v. Oxford Woollen Manuf . 
 Co., 10 Met 203 ; Charles v. Monson 
 Manuf. Co., 17 Pick. 70; Bean v. 
 Hinman, 13 Maine, 480. 
 
 6 Samson v. Bradford, 6 Cush 303. 
 
 7 Davis v. Brigham, 29 Maine, 391. 
 See Nelson v. Butterfield, 21 Maine, 
 220, 237. 
 
 8 Brigham v. Holmes, 14 Allen, 184. 
 
 'Norton v. Hodges, 100 Mass. 241. 
 
 io Whether the defendant is a mill- 
 owner or occupier within the act is a 
 question of law for the court. Large 
 v. Orvis, 20 Wis. 696. A mill-owner 
 was not chargeable under the act of 
 1795, ch. 74, for damage done by flow- 
 ing before his title began. Holmes 
 v. Drew, 7 Pick. 141. So in Wiscon- 
 
 sin, it is held that the judgment 
 should not include damages prior to 
 the acquisition of title by the defend- 
 ant And if several defendants ac- 
 quired title at different times, dam- 
 ages should be assessed from the date 
 of the oldest title not exceeding three 
 years prior to the beginning of suit. 
 Sabine v. Johnson, 35 Wis. 185. It is 
 here held that there is no means of 
 apportioning damages between such 
 defendants. Persons rightfully main- 
 taining a dam at a certain height, 
 whose pond is crossed by a highway, 
 are not liable under the statute to the 
 owner of land above the highway for 
 flowage caused by an obstruction 
 placed in the stream by a lessee of 
 their grantors, who changed the loca- 
 tion of the highway and obstructed 
 the sluiceway conducting the stream 
 under it. And their failure to re- 
 move the obstruction or restore the 
 highway is not a continuance of a 
 nuisance making them liable at com- 
 
870 
 
 THE LAW OF WATEES. 
 
 [Ch. XIY. 
 
 subsequent purchaser is liable for the yearly damages becom- 
 ing due and payable after his purchase. 1 But a person not 
 owing or occupying the dam, but incidentally benefited by its 
 maintenance, cannot be made liable under the Act for injuries 
 caused by it. 2 
 
 §598. Same — Description of land injured. — The com- 
 plaint must contain such a description of the land alleged to 
 be flowed or injured, and such a statement of the damage, that 
 the record of the case will show with sufficient certainty the 
 matter heard and determined therein. 3 It must allege that 
 flo wage was caused by the defendant's dam, for the purpose 
 of furnishing power for a mill. 4 
 
 mon law. Stetson v. E. Carver Co., 
 97 Mass. 402. Under the statute of 
 Maine, it has been held that all the 
 owners and co-tenants of the dam or 
 mill causing the injury should be 
 joined as defendants, and that the 
 omission of one holding an interest 
 in the dam and mill will be ground 
 for a plea in bar. Hill v. Baker, 28 
 Maine, 9 ; Turner v. Whitehouse, 68 
 Maine, 221. But the complainant 
 will be permitted to amend and 
 summon in the other defendants. 
 Moor v. Shaw, 47 Maine, 88. "Where 
 the proprietor of land flowed by a 
 dam owned by several different per- 
 sons instituted separate suits and re- 
 covered separate judgments against 
 each, and afterwards one of the re- 
 spondents became sole owner of the 
 dam, it was held that where the 
 land-owner brought a second suit to 
 increase his yearly damages, he 
 might combine the whole subject- 
 matter in one complaint against the 
 owner of the whole dam at that 
 time. Jones v. Pierce, 16 Maine, 411. 
 The respondents, if severally owning 
 water-mills on a stream, and owning 
 as tenants in common and jointly 
 maintaining a dam across the stream, 
 on their own land, to supply power 
 to their mills, may properly be joined 
 
 in a complaint for flowage by the 
 dam. But the complaint must allege 
 that the respondents erected and 
 maintained water-mills on their own 
 land. Goodwin v. Gibbs, 70 Maine, 
 243; Norton v. Hodges, 100 Mass. 
 241. 
 
 1 Lowell v. Shaw, 15 Maine, 242. 
 The beginning of each year is reck- 
 oned from the filing of the complaint 
 Bryant v. Glidden, 36 Maine, 36. 
 Under the Massachusetts statute, the 
 annual damages for the first year be- 
 come recoverable by action, if not 
 paid within three months from the 
 election of the land-owner to take 
 annual damages instead of the gross 
 sum. (Pub. Sts. ch. 190, §§ 20, 21.) 
 
 2 Nelson v. Butterfield, 21 Maine, 
 220. 
 
 s Pub. Sts. (1882), ch. 190, § 5. A 
 general description of the land was 
 formerly sufficient Commonwealth 
 v. Ellis, 11 Mass. 462. And see Paine 
 v. Woods, 108 Mass. 160. 
 
 < Slack v. Lyon, 9 Pick. 62. It is 
 not removable by affidavit, under the 
 Practice Act of Massachusetts, to the 
 Supreme Court Humphrey v. Berk- 
 shire Woollen Co., 10 Allen, 420. See 
 Tyler v. Beecher, 44 Vt 648. Under 
 the Maine statute of 1821, ch. 45, it is 
 held that the complainant must allege 
 
S 599.] 
 
 STATUTORY REMEDIES. 
 
 871 
 
 § 599. Same — Mode of trial.— The statute provides for a 
 twofold trial : first, in the court, of the right of the complain- 
 ant to have a jury summoned to inquire into the damages 
 caused ; and second, a trial before the sheriff's jury, of the 
 question of damages. The defendant must plead in court any 
 - matter in bar of the complainant's right to have the inquiry ; * 
 as a release, or misdescription in the complaint, 2 a presumptive 
 right, 3 a contract right, 4 and all matters pleadable in bar -will 
 be determined by the trial in court, and if settled for the com- 
 plainant, and a jury is called, cannot be considered in the 
 trial of damages. 5 The question whether the land is dam- 
 aged, as alleged, cannot be tried at the bar of the court, but 
 must be left to the sheriff's jury. 6 If the respondent pleads 
 
 that the respondent has erected a 
 water-mill " on his own land, or the 
 3and of another, with his consent" 
 ^following the words of the statute), 
 or the complaint will be bad in sub- 
 stance, and a judgment thereon ar- 
 rested. The Act of 1841, ch. 126, 
 omitted the references to ownership 
 and the consent of the owner, and 
 both these allegations became un- 
 necessary. Prescott v. Curtis, 42 
 Maine, 64 In the Act of 1857, the 
 provision for a mill on another's land 
 was omitted. It is held under this 
 Act that the complaint must allege 
 the defendant's ownership of the land 
 on which the dam is erected, or it will 
 be demurrable. Jones v. Skinner, 61 
 Maine, 25 ; Stevens v. King, 76 Maine, 
 197. In Wisconsin it is held that the 
 complaint need not deny in advance 
 the defences which are open to the 
 defendant, as that compensation has 
 been made. Faville v. Greene, 12 
 Wis. 11. But the complaint must 
 allege that the stream was unnavi- 
 gable, to show that the injuries are 
 within the provisions of the statute. 
 Waller v. McConnell, 19 Wis. 417. 
 The complaint is amendable as to the 
 description of the land. Sabine V. 
 Johnson, 35 Wis. 185. And the plead- 
 
 ings under the Act are, in general, 
 liberally construed. Zeidler v. John- 
 son, 38 Wis. 335 ; Lake v. Loysen, 66 
 Wis. 424. 
 
 1 Pub. St ch. 190, § 8 ; Vandusen v. 
 Comstock, 3 Mass. 184; Lowell v. 
 Spring, 6 Mass. 398. 
 
 2 Darling v. Blackstone Manuf. Co., 
 16 Gray, 187. 
 
 s Wilmarth v. Knight, 7 Gray, 294 ; 
 Hadley v. Citizens' Savings Institu- 
 tion, 123 Mass. 301. 
 
 4 Howard v. Locks and Canals, 12 
 Cush. 259. 
 
 6 Charles v. Porter, 10 Met. 37. 
 
 6 Nutting v. Page, 4 Gray, 581; 
 Charles v. Porter, 10 Met 37 ; Pres- 
 cott v. Curtis, 42 Maine, 64. The de- 
 fendant may plead the general issue 
 with a specification of defence. How- 
 ard v. Locks and Canals, 12 Cush. 
 259. If the defendant pleads the 
 general issue, with a specification of 
 defence, he is confined to the specifi- 
 cation. Tyler v. Mather, 9 Gray, 177. 
 Where any one of the several de- 
 fendants has the right to flow the 
 land in the manner charged, the com- 
 plaint cannot be maintained. Butler 
 v. Huse, 63 Maine, 447. If a party 
 flowing the land afterwards acquires 
 title to the land flowed, the right to 
 
872 
 
 THE LAW OF WATEKS. 
 
 rcn. xiv. 
 
 against the complaint, the further pleadings, issue, and trial 
 in court proceed as in civil actions ; ' and on default or deter- 
 mination of the issue for the complainant, the court issues a. 
 warrant for a sheriff's jury, to hear and determine the matter 
 of the complaint. 2 The jury are authorized to determine- 
 the height at which the dam may be maintained ; 3 whether 
 
 damages is thereby extinguished, and 
 will not revive 1 by a subsequent sale 
 of the dam and mill. ECathorn v. 
 Stinson, 10 Maine, 224. A contribu- 
 tion to the flowage by other dams is 
 no defence to a complaint under the 
 Mill Act. Jones v. United States, 48 
 Wis. 385. If the defendant justifies 
 his flowage under the statute, he 
 must aver compliance with the stat- 
 ute, and that compensation has been 
 made. Thien v. Voegtlander, 3 "Wis. 
 461. An award as to past damages, or 
 a judgment on such award, is no bar 
 to a complaint under the Act for sub- 
 sequent damages. Staple v. Spring, 
 10 Mass. 72. Nor is an award for 
 future damages for maintaining a 
 dam at a certain height a bar to a 
 complaint for damages caused by in- 
 creasing the height. McClellan v. 
 Fisher, 16 Gray, 185. An award that 
 certain damages be paid by a certain 
 time will not avail as a defence 
 against a complaint to a respondent 
 who failed to pay within the time, nor 
 to his wife in whose name he took a 
 conveyance of the mill-site. Brig- 
 ham v. Holmes, 14 Allen, 184. An 
 oral release operates as a license ; is 
 good against the. licensor; but does 
 not bind his grantee. Stevens v. 
 Stevens, 11 Met. 251 ; Seymour v. 
 Carter, 2 Met. 520 ; Smith v. Gould- 
 ing, 6 Cusb. 154 ; Short v. Woodward, 
 13 Gray, 86 ; Clement v. Durgin, 5 
 Greenl. 9 ; Seidensparger v. Spear, li 
 Maine, 123 ; Snow v. Moses, 53 Maine, 
 546. Written releases, not under seal, 
 are held not to bind the grantees, 
 and do not bar their complaints. 
 
 Craig v. Lewis, 110 Mass. 377; Cobb 
 v. Fisher, 121 Mass. 169. Where the 
 complainant mortgaged his property 
 pending the complaint, and then exe- 
 cuted a release under seal, of all past 
 and future claims, in pursuance of 
 which the complaint was entered 
 "neither party," the release was held 
 to bind the lands in the hands of a 
 foreclosure purchaser, though neither 
 he nor the mortgagee had notice- 
 thereof at the time of acquiring title. 
 Isele v. Schwamb, 131 Mass. 337. 
 
 1 If several persons file different 
 complaints at the same time for in- 
 juries by the same dam, the com- 
 plaints should be tried together by 
 the same jury. Richardson v. Curtis, 
 2 Gush. 341 ; Wilmarth v. Knight, 14 
 Gray, 112. But injuries to a tract of 
 land by different dams, owned by 
 different persons, cannot be joined 
 in one complaint Lull v. Fox & 
 Wisconsin Co., 19 Wis. 100. 
 
 2 Or the parties may by stipulation 
 have a trial by jury in the Superior 
 Court Pub. Sts. (1882), ch. 190, § 13. 
 An assessment may be had by cer- 
 tiorari, if omitted from the proceed- 
 ings. Phillips v. Commissioners, 122 
 Mass. 258. 
 
 3 Unless the height of the dam is 
 conclusively fixed by a verdict, an 
 award, or a binding agreement, a 
 mill-owner has the right under the 
 statute to adapt his dam to the needs 
 of his mill, and to build it to such 
 height as he pleases, "subject to the 
 liability to pay damages, and to have 
 a jury fix the height at which it may 
 be maintained by proceedings under 
 
§ 599,] 
 
 STATUTORY REMEDIES. 
 
 873 
 
 it shall be left open during any part of the 'year,' and if so, 
 how long; to assess the past damages for the three years next 
 preceding the institution of the complaint, and to the time of 
 rendering the verdict ; to set off benefits caused by the dam 
 to the complainant's lands by the flowage; to determine the 
 amount to be annually paid by the respondent to the com- 
 plainant for the future annual damages to be caused by the 
 dam ; and also a sum in gross, which would be a just compensa- 
 tion for all damages thereafter to be caused, and for the right 
 of maintaining the dam forever. 1 The complainant may then 
 
 the statute. Brady v. Blackinton, 
 113 Mass. 238 ; Atkins v. "Witherell, 
 142 Mass. 482. The verdict is not de- 
 fective for failing to fix and state the 
 proper height for the dam. The ex- 
 isting or proposed height is held al- 
 lowed, and presumed capable of 
 proof outside the verdict Sabine v. 
 Johnson, 35 Wis. 185 ; Aken v. Par- 
 frey, 35 Wis. 249. An award by 
 arbitrators, or a finding by a jury 
 authorizing the mill-owner to "raise 
 the water '' to a certain height, re- 
 fers to the height of the water at that 
 mark, and not to the height of the 
 dam. Winkley v. Salisbury Manuf. 
 Co., 14 Gray, 443 ; Hiscock v. San- 
 ford, 4 E. I. 55. These cases were 
 decided by the language of the award 
 and finding. Where the height of 
 water is fixed by a conveyance or 
 other instrument, the height in ordi- 
 nary stages of water is referred to. 
 Brady v. Blackinton, 113 Mass. 238. 
 Where the height of the dam is 
 fixed, the height of the dam in good 
 repair is intended. Voter v. Hobbs, 
 69 Maine, 19. For decisions giving 
 this rule where the height of the dam 
 was determined by other means than 
 by a finding, see Bliss v. Rice, 17 Pick. 
 23, 33 ; Cowell v. Thayer, 5 Met. 253 ; 
 Ray v. Fletcher, 12Cush.200; Jack- 
 son v. Harrington, 2 Allen, 242 ; Vick- 
 erie v. Buswell, 13 Maine, 289 ; Lacy 
 v. Arnett, 33 Penn. St. 169 ; Marcly v. 
 
 Shults, 29 N. T. 346 ; Winnipiseogee 
 Lake Co. v. Young, 40 N. H. 36. See 
 Alder v. Savill, 5 Taunt. 454. Contra,. 
 see Burnham v. Kempton, 44 N. H. 78,. 
 90 ; Smith v. Eoss, 17 Wis. 227. Where 
 a grant of the right to flow re- 
 ferred to a mark as a measure of 
 height, and no such mark existed 
 at the time, one fixed nineteen years 
 afterward cannot be shown by parol 
 to occupy the place intended. White 
 v. Bliss, 8 Cush. 510. A finding au- 
 thorizing a petitioner to raise the 
 water three feet above the height at 
 which it was raised by his dam on a 
 day named, has been held sufficiently 
 certain. Todd v. Austin, 34 Conn. 78. 
 See Town v. Faulkner, 56 N. H. 255, 
 where it is held, under New Hamp- 
 shire Act, that the measure of dam- 
 ages is not determined by the height 
 of the dam, but by the height to 
 which the water is authorized to be 
 raised. 
 
 'In estimating the damages, the 
 jury are to compare the present value 
 of the land, as a whole, with what its 
 value would have been if it had not 
 been flowed, regard being had to the 
 injuries caused by the flowing. Pal- 
 mer Co. v. Ferrill, 17 Pick. 58 ; Bates- 
 v. Eay, 102 Mass. 458 ; Howe v. Ray, 
 113 Mass. 88. See Pick v. Eubicon 
 Hydraulic Co., 27 Wis. 433. Where 
 the verdict was for past damages up 
 to the time of action begun, and for 
 
574 
 
 THE LAW OF WATEKS. 
 
 [Oh. XIY. 
 
 elect, at any time within three months from the allowance and 
 recording of the verdict, to take the gross sum or the annual 
 allowance. 1 If the gross sum is chosen, it must be paid within 
 three months, or the respondent will lose the benefit of the 
 Act so long as the sum is unpaid ; and the complainant is en- 
 titled to judgment and execution on the verdict for past dam- 
 ages. If no election is made and recorded within the three 
 months, the statute provides that the annual compensation 
 will become due and payable (as if it had been elected) to the 
 complainant and those claiming under him, so long as the dam 
 is maintained ; the person entitled to compensation is given a 
 lien on the mill and dam, for payment of the compensation 
 for the three years prior to suit therefor. He may maintain 
 an action of contract to recover such sum for the three years 
 preceding the suit, and enforce his lien against the person who 
 owns or occupies the mill when the action is brought, and may 
 have the premises sold on execution, subject to a right of re- 
 demption within one year. 2 A new trial may be granted in 
 this action, as in civil actions generally. 
 
 annual damages, after the trial, omit- 
 ting the damages which accrued dur- 
 ing the suit, the amount of such dam- 
 ages was reckoned for the length of 
 time elapsed, on the basis of the an- 
 nual damages, and the verdict was 
 ■sustained. Newton v. Allis, 16 Wis. 
 197. 
 
 1 An acceptance of the gross sum 
 bars all right of action for future flow- 
 age of the lands in question by any 
 one. Chase v. Sutton Manuf. Co., 4 
 Cush. 152 ; Heard v. Talbot, 7 Gray, 
 113. A life tenant is entitled to fu- 
 ture damages and to gross damages. 
 Howe v. Eay, 110 Mass. 298. It was 
 held, upon the complainant's electing 
 to take damages in gross, that the 
 respondent might abandon his right 
 to flow, take down his dam, and avoid 
 liability for future damages. Hunt 
 v. Whitney, 4 Met. 603 ; Blackwell v. 
 Phinney, 126 Mass. 458. The same 
 rule prevails in Wisconsin. Aiken v. 
 Mills, 29 Wis. 322. So in North Caro- 
 
 lina, if the dam is altered or taken 
 down, this will be ground for reduc- 
 ing the annual damages on a writ of 
 audita querela. Gillett v. Jones, 1 
 Dev. & B. 339. When the respondent's 
 exceptions are carried to the Supreme 
 Court, and there overruled, after the 
 verdict is returned and accepted, the 
 verdict is held not to be allowed until 
 the overruling of the exceptions. 
 Hamilton, v. Farrar, 131 Mass. 572. 
 A ruling of the Superior Court that 
 the complaint for flowage is main- 
 tained, and excluding evidence of: 
 fered by the respondent, is interloc- 
 utory only and not the subject of 
 exception.; Cornins v. Turner's Falls 
 Co., 140 Mass. 146; 138 Mass. 222; 
 142 Mass. 443. In Darge v. Hori- 
 con Iron Co., 22 Wis. 417, it is held 
 that the award for past damages and 
 gross damages for the future may be 
 in one gross sum. 
 
 2 It is no defence to such action 
 that the mill and dam are destroyed, 
 
600.] 
 
 STATUTORY REMEDIES. 
 
 875 
 
 §600. Same — New complaint.— If either party becomes 
 dissatisfied with the annual compensation established, a new 
 eomplaint may be brought for the increase or diminution of 
 such compensation, or for ascertaining the gross damages, as 
 before ; but if the complainant declined to accept gross dam- 
 ages awarded to him, they cannot be again awarded until the 
 expiration of ten years from the former award. 1 Such new 
 complaint may be maintained by and against either of the 
 parties to the original suit, or by and against a person law- 
 fully holding under either of them, but no such complaint can 
 be brought until the expiration of one month after the pay- 
 ment of the then last year has fallen due. 2 A finding on the 
 
 if the defendant has not abandoned 
 his right to flow. Nothing short of 
 an abandonment of his right to flow 
 will terminate the liability to answer 
 therefor. Fuller v. French, 10 Met 
 359. If such action to recover the 
 damages assessed is brought jointly 
 against the owner and the person 
 who occupied it when the action was 
 brought, the plaintiff may amend by 
 discontinuing as to the former. Fitch 
 v. Stevens, 2 Met. 505. 
 
 1 The complaint must set forth the 
 former complaint and proceedings, ox- 
 it will be treated as an original com- 
 plaint. Vandusen v. Comstock, 9 
 Mass. 202 ; Ray v. Fletcher, 12 Cush. 
 200. And where the complainant 
 alleged an increase in the height of 
 the dam, and also wished to obtain a 
 review of the former assessment, it 
 was held that an allegation of dissat- 
 isfaction was necessary to make the 
 complaint sustain a verdict for an- 
 nual and gross damages which was 
 larger than the preceding. Without 
 Buch an allegation, the complaint 
 might be treated simply as an orig- 
 inal one for the damage caused by 
 the increased height. Leonard v. 
 Schenck, 3 Met. 357. See Johnson v. 
 Kittredge, 17 Mass. 75, which holds 
 that a complaint for such increase is 
 
 good. The judgment on the original 
 complaint, that the respondent has 
 no right to maintain a dam without 
 paying damages, estops him from 
 pleading to the second complaint, 
 a right by prescription .or grant, 
 previous to the judgment Adams 
 v. Pearson, 7 Pick. 341. The defend- 
 ant cannot deny the increased dam- 
 age by a plea in bar. This must be 
 determined by the sheriff's jury. 
 Ibid. The statute makes no provision 
 for reassessment of gross or annual 
 damages against a mill-owner for 
 flowing lands after the land-owner 
 has elected to take the gross dam- 
 ages, and neither party can maintain 
 a complaint for that purpose. The 
 mill-owner can maintain a complaint 
 for reassessment of annual damages 
 only when he is liable for such dam- 
 ages under an existing judgment. 
 He, therefore, cannot maintain such 
 a complaint when the land-owner 
 has elected the gross damages. 
 Stevens v. Fitch, 2 Met. 507. So in 
 "Wisconsin, the plaintiff accepting 
 gross damages is held estopped from 
 questioning the height of the dam. 
 Aken v. Parfrey, 35 Wis. 249. 
 
 2 The effect of this provision is to 
 suspend the complaint for one year 
 and one month following the time 
 
876 
 
 THE LAW OF WATEKS. 
 
 [Ch. XIV. 
 
 original complaint that the complainant is not entitled to dam- 
 ages is no bar to a new complaint for damages alleged to have 
 arisen after the former verdict, and for compensation for dam- 
 ages thereafter sustained. 1 
 
 §601. Same — Wisconsin — Maine. — The statute of "Wis- 
 consin, first enacted in 1840, is almost an exact copy of that of 
 Massachusetts. 2 The principal difference is that the remedy- 
 provided is by " a civil action ; " 3 that the case is tried before 
 a jury at the bar of the court ; 4 and therefore the distinction 
 between issues which must be presented to the court and issues 
 for the jury does not affect the order of pleading. The defend- 
 ant is not, as in Massachusetts, forbidden to deny by his plead- 
 ing the allegations of injury iu fact. 5 The verdict in the action 
 may be set aside and a new trial ordered, as in other cases, and 
 an appeal may be taken from any final judgment rendered 
 therein, in like manner and with like effect as in other civil 
 actions. 6 
 
 comprised in the prior decision. Sta- 
 ple v. Spring, 10 Mass. 72, 77; Stevens 
 v. Fitoh, 2 Met. 507, 508. The time com- 
 prised in the prior decision is, under 
 the present act (§ 16), for past dam- 
 ages up to the time of rendering the 
 verdict. Such complaint, therefore, 
 cannot be brought until after the 
 first yearly payment has been made. 
 Under the statute of Maine, the dam- 
 ages, past and future, are assessed in 
 yearly sums, and the judgment in- 
 cludes the sum due on the date of its 
 entry, viz., the last day of the pre- 
 ceding term, and the new complaint 
 cannot be brought until one month 
 after payment of the yearly sum 
 next falling due. Billings v. Berry, 
 50 Maine, 31. In both cases the judg- 
 ment is conclusive for the amount of 
 yearly damages for the year succeed- 
 ing the time comprised in the former 
 decision. 
 
 iPub. Sts. ch. 190, § 36. But it is 
 considered by Sewell, J., in Staple v. 
 Spring, 10 Mass. 72, 77, that the post- 
 ponement of a second action for one 
 
 year and one month (under the pres- 
 ent section 31) applies to this case 
 also. 
 
 2 Wis. Sts. of 1898, ch. 146 (Sanborn 
 and Berryman's Annotated Edition, 
 1898). See Kearns v. Thomas, 37 Wis. 
 118; Janesville Cotton Manuf. Co. v. 
 Ford, 55 Wis. 197; 82 Wis. 416 (par- 
 tition of water-power). 
 
 s Rev. Sts. (1878) 78, ch. 146, § 3377. 
 The action is legal and not equitable. 
 Bevier v. Dillingham, 18 Wis. 529; 
 Kearns v. Thomas, 37 Wis. 118; Schif- 
 fer v. Eau Claire, 51 Wis. 385; Sey- 
 mour v. Carpenter, id. 413. The com- 
 plaint need not state the dimensions 
 of the dam or its excess over a rea- 
 sonable height. Lake v. Loysen, 66 
 Wis. 424. See Irwin v. Richardson, 
 88 Wis. 429. 
 
 * § 3380. A trial of all the issues of 
 fact by one jury is (semble) sufficient. 
 Kearns v. Thomas, 37 Wis. 118. 
 
 5 § 3379. 
 
 8 § 3400. See Kearns v. Thomas, 
 supra, which holds that appeals in 
 the action were governed by the 
 
§ 601.] STATUTORY REMEDIES. 877 
 
 The statute of Maine 1 is substantially like that of Massa- 
 chusetts, and the rulings upon the latter have generally been 
 followed in construing the former. The principal differences 
 in the Maine statute, resulting from subsequent legislation, 
 are the following: 1. It authorizes mill-owners to dig canals 
 upon their own land, not exceeding one mile in length, and 
 thereby divert the water of unnavigable streams to their mills, 
 upon making compensation, to be ascertained by the same 
 form of procedure as in the case of flowage. 2. It does not 
 provide for other injuries than those caused by such flowage 
 and diversion. 2 3. It directs the appointment of three com- 
 missioners, by whom the damages are to be appraised, and 
 the height and period for maintaining the dam are to b& de- 
 termined, instead of by a sheriff's jury. On request of either 
 party, a jury may be impanelled to try the cause at the bar of 
 the court ; and the report of the* 1 commissioners shall then be 
 given in evidence to the jury. The report will be conclusive 
 evidence until impeached, and it may be impeached only for 
 misconduct, partiality, or unfaithfulness on the part of some 
 commissioner. 3 4. The commissioners are not empowered to 
 assess a gross sum as compensation for permanent future dam- 
 ages. 5. The court may, in its discretion, on the complainant's 
 motion, require the owner or occupant of the mill or canal 
 
 general statute of appeals prior to ceeded for in like manner as for 
 the passage of § 3400. A special ver- mills. As to this in Massachusetts, 
 diet is not inconsistent, because the see supra, § 455, note, 
 past damages are much less than the 2 The Mass. Act includes flowing 
 prospective damages for a similar below or above the dam, but the 
 period. Murray v. Scribner, 70 Wis. Maine statute does not extend to 
 228; 74 "Wis. 602. See Mack v. Bens- flowage below by water drawn from 
 ley, 74 Wis. 112; Johnson u Boorman, the dam. Ante, § 594, and note. The 
 63 Wis. 268. An action lies in the Maine Act does not justify drawing 
 county where land is flowed, the in- down a great pond below its natural 
 jury being caused by a dam in an- low-water mark. Fernald v. Knox 
 other county. Lohmiller u. Indian Woolen Co., 82 Maine, 48. 
 Ford W. P. Co., 5-1 Wis. 683. 3 Rev. Sts. 1883, Title 9, ch. 92, 
 1 Maine Rev. Sts. 1883, Title 9, ch. 92. §§ 12, 13 ; Bryant v. Glidden, 36 Maine, 
 The annual damages, under § 17 of 36. It is a fatal defect in the report 
 this chapter, mayJbe recovered from if it does not show that the parties 
 the owner or the occupant. Hathorn were heard or notified to appear. 
 v. Kelley, 86 Maine, 487. By the Coleman v. Andrews, 48 Maine, 562. 
 Maine Act of 1887, ch. 95 (Sup. to But objections to the complaint can- 
 Rev. Stats., p. 459), damages by flow- not be urged as reasons for not ac- 
 age for cranberry culture are pro- cepting the report. Ibid. 
 
878 THE LAW OF WATERS. [Ch. XIV. 
 
 property to give security for the payment of annual damages ; 
 and on failure of such owner or occupant to give security as 
 required, he shall lose the benefit of the statute and become 
 liable to an action at common law. 1 6. If the restrictions upon 
 the height of the dam or seasons during which lands may be 
 flowed are violated by the mill-owner or occupant, he becomes 
 liable to pay double damages, recoverable in an action at law. 2 
 
 § 602. Same — Prescription. — The effect of flowage not 
 causing actual damage has caused a difference of opinion be- 
 tween the courts of Maine and Massachusetts in the construc- 
 tion of their respective statutes. By the law of Maine, flowage 
 not causing actual damage is held lawful, and no ground for 
 complaint. Therefore if flowage not causing damage be con- 
 tinued for twenty years, it confers no right to flow lands and 
 injure another, and is no bar to an action where damage re- 
 sults from the flowage. 3 The adverse user begins at the time 
 when actual damage is caused. 4 In Massachusetts, on the 
 other hand, flowage, though causing no actual damage, if con- 
 tinued for twenty years, without any complaint therefor, is 
 held to be adverse, and confers the right to flow such land in 
 future, without payment for any damages which may there- 
 after be caused. 5 This difference may be explained in part by 
 a difference in the wording of the statutes. The Maine stat- 
 ute of 1821, following the Massachusetts statute of 1T95, 6 pro- 
 vided : " It shall be lawful for the owner or occupant of such 
 mill" (before described) "to continue the same head of water 
 to his best advantage in the manner and on the terms herein- 
 
 1 The Massachusetts statute of 1795, id. 123; Nelson v. Butterfleld, 21 id. 
 oh. 74, contained a similar provision. 320; "Wood v. Kelly, 30 id. 47; Went- 
 And see Stowell v. Flagg, 11 Mass. worth v. Sandford Manuf. Co., 33 id. 
 364. 547; Underwood v. N. Wayne Co., 41 
 
 2 Rev. Sts. 1883, Title 9, ch. 92, § 26. id. 291; Voter v. Hobbs, 69 id. 19; 
 As to new complaint, see Norris v. Augusta v. Moulton, 75 id. 284; Wil- 
 Pillsbury, 74 Maine, 67; St. of 1881, son v. Campbell, 76 id. 94; Stevens v. 
 ch. 88; Rev. Sts. of 1883, Title 9, oh. King, id. 197. 
 
 92, § 11. As to maintaining dams for 4 Burleigh v. Lumbert, 34 Maine, 
 
 harvesting ice, see St. of 1883, p. 124, 322. 
 
 ch. 151; Stevens v. Kelley, 78 Maine, 5 Williams v. Nelson, 23 Pick. 141; 
 
 445. Ray v. Fletcher, 12 Cush. 200. 
 
 3 Tinkham v. Arnold, 3 Maine, 120; 6 1 Laws of Mass. (Metcalf's ed.) 
 Hathorn v. Stinson, 10 id. 224; s. C. 1801, p. 498, ch. 74 
 
 12 id. 183; Seidensparger v, Spear, 17 
 
§ 603.] 
 
 STATUTORY EEMEDIES. 
 
 '870 
 
 after, mentioned." "If any person shall sustain damages in his 
 lands by their being flowed as aforesaid, he may complain," 
 etc. ; and a similar provision has been retained in all the re- 
 visions. 1 
 
 § 603. Same — Damages. — The common law gave an action 
 to a property-holder for every abridgment of the free use of 
 his property, although no present damage was caused thereby. 
 Such abridgment was opposed to the holder's right, and be- 
 came the foundation of an adverse right. Any flowage would 
 be such an abridgment. But for an injury of this kind, the 
 
 iLaws of Maine, 1830, oh. 45, § 2; 
 Rev.Sts. (1841), oh. 126, § 5; Rev. Sts. 
 (1857, 1871, and 1883), Title 9, ch. 92, 
 § 4 In the Mass. Rev. Stats, of 1836, 
 ch. 116, the language of the Act of 
 1795 is changed. Section 4 reads: 
 "Any person whose land is over- 
 flowed, or otherwise injured by such 
 dam, may obtain compensation 
 therefor," etc. This change was 
 made three years before the case of 
 Williams v. Nelson was decided. The 
 point decided in the case is, there- 
 fore, simply that under the Massa- 
 chusetts statute the complainant had 
 a right of action which he had lost 
 by failing to exercise it for twenty 
 years. Shaw, C. J., did not, however, 
 place the decision upon the words of 
 the statute. He held in effect that 
 the statute of 1795 was to be con- 
 strued in the same way, and that the 
 Maine doctrine was erroneous. The 
 Maine decision went upon the ground 
 that the user was no evidence of a 
 grant because it was lawful and 
 needed no grant. He replies that 
 the grant pleaded was of the right to 
 flow, paying no damage. The stat- 
 ute conferred only a right to flow, 
 paying damage. The right asserted, 
 therefore, went beyond that con- 
 ferred by the statute. Such a right 
 could only be accounted for by the 
 presumption of a grant. The Maine 
 case held that the user was not such 
 as to be evidence of such a grant. 
 
 Of this he says: "The case also goes 
 on the supposition that to found the 
 presumption of a grant, the enjoy- 
 ment must be adverse, and of such a 
 nature that but for the presumed 
 grant it would be unlawful. It may 
 be deemed adverse, if in any degree 
 it tend to impose any servitude or 
 burden on the estate of another. But 
 in many cases, as the enjoyment of 
 air and light by the owner of a 
 house, the act is not unlawful with- 
 out a grant by the owner of the land 
 over which they come; yet the en- 
 joyment of such privilege for a long 
 time, without obstruction or notice 
 on the part of the owner of the ad- 
 joining land, is proof of a right, and 
 may raise the presumption of a. 
 grant. The case of a mill-owner is. 
 in the same degree similar." In Bos- 
 ton Manuf. Co. v. Burgin, 114 Mass. 
 340, it was held that the mill-owner 
 did not acquire such an easement as 
 would enable him to maintain a pe- 
 tition against the land-owner, to 
 compel him to try his title. Wells, 
 J., said: "The right to occupy the 
 surface of the land with the water is- 
 not taken, and the land-owner may 
 exclude it if he sees fit to do so. And 
 when the right of the mill-owner be- 
 comes absolute by paying gross dam- 
 ages, or by prescription, it is only a. 
 right to keep up the dam, without 
 rendering compensation for such in- 
 cidental injury." 
 
880 THE LAW OF WATEKS. [Ch. XIV. 
 
 Act of 1795 and the statutes of Maine provide no remedy. 
 The statute of Maine * provided that if the jury find that no 
 damage is done to the complainant by flowing his land, the 
 respondent shall recover his costs. The Act of 1795 contained 
 no such provision, but its intent was' the same. Parker, C. J., 
 said in Stowell v. Flagg : 2 " The process is given only to those 
 who have actually suffered damage:" The meaning of the 
 phrase " actual damage " under the statute plainly is present 
 pecuniary damage, and not, as at common law, the damage 
 implied in the infringement of a right. Shaw, C. J., suggested 
 in Williams v. Nelson, 3 that the land-owner " could maintain 
 no action simply for erecting and keeping up the dam; but 
 he could file and prosecute his claim for damages, or he 
 could make his claim in pais, which, we think, would rebut 
 the presumption of grant from mere use and enjoyment." 
 The first suggestion, as applied to cases where no actual dam- 
 age is suffered, is disposed of by the remark of Parker, 0. J., 
 cited above. The second suggestion, of a claim in pais, to 
 prevent the operation of adverse uses, is not one of the recog- 
 nized methods of defeating such a claim, and conflicts with 
 the rule that adverse possession cannot avail to confer a right, 
 if the owner cannot resist it at law. 4 Under these statutes 
 
 !St. 1821, ch. 45, §8; Laws of Maine, above him. The defendant cut this 
 
 188, p. 146. dam, causing an overflow of the 
 
 2 11 Mass. 364, 367. plaintiff's land, for which he brought 
 
 3 23 Pick. 141, 145. suit at law. It was ruled below that 
 
 4 Washburn on Easements (3d ed.), he had acquired a prescriptive right 
 163. In several cases, Shaw, C. J., to the protection. This was over- 
 suggested that the complainant could ruled above. Pearson, J., said: "To 
 embank his land against the flowage. make this doctrine applicable, two 
 Williams v. Nelson, 23 Pick. 141, 143; things are necessary. There must be 
 Murdock v. Stickney, 8 Cush. 113, 116. a thing capable of being granted; 
 See Storm v. Manchaug Co., 13 Allen, and there must be an adverse posses- 
 19, and Boston Manuf. Co. v. Bur- sion or assertion of right, so as to ex- 
 gin, 114 Mass. 340, to the same effect, pose the party to an action, unless he 
 But this is not a legal remedy, the had a grant; for it is the fact of his 
 failure to exercise which would bar being thus exposed to an action, and 
 the plaintiff's right. He is not bound the neglect of the opposite party to 
 to resort to such means to protect his bring suit, that is seized upon as the 
 property. In Felton v. Simpson, 11 ground for presuming a grant." To 
 Ired. 84, the plaintiff's land had for the same effect, see Grigsby v. Clear 
 twenty years been protected from Lake Water Co., 46 Cal. 396, 406 ; Par- 
 flowage by means of a dam main- ker v. Hotchkiss, 25 Conn. 321. In 
 tained upon a third person's land the latter case the common-law rule, 
 
■§ 604] 
 
 STATUTORY REMEDIES. 
 
 881 
 
 the land-owner was, therefore, without any remedy for the 
 abridgment of his right. Upon these premises the Maine doc- 
 trine is founded. The land-owner cannot be held to have lost, 
 by failing to pursue his remedy, that for which no remedy 
 was given. And under the doctrine of Stowell v. Flagg, it 
 would seem that this is the correct view of the law under the 
 Massachusetts Act of 1795, and that the remarks of Shaw, 0. J., 
 are so far inaccurate. But under the provisions of chap. 116, 
 § 4, of the Massachusetts Eevision of 1836, for an action by 
 any one whose lands are overflowed ; and the provision for as- 
 sessing damages in gross for perpetual flowage (enacted, Mass. 
 St. 1829, chap. 122, § 2), the land-owner would always have a 
 remedy, and could recover for future flowage, although no act- 
 ual damage had yet accrued ; and the Massachusetts decisions 
 are therefore correct. 1 
 
 §604. Same — Rhode Island. — Under the Mill Act of 
 Rhode Island, 2 any one injured by the flowage or stoppage of 
 
 as to the actual injury caused by 
 flowage, is, however, stated thus: " If, 
 indeed, the plaintiffs, by means of 
 their dam, had thrown the water 
 back upon the defendant's land, and 
 had continued to do so for a period 
 •of more than fifteen years, without 
 objection on his part, the law would 
 presume a grant to the plaintiffs of 
 the right to flow the defendant's 
 land, because it is not to be supposed 
 that he would have suffered such a 
 continued injury to his land without 
 objection unless the plaintiffs had ac- 
 quired the right." That the taking 
 of water from a stream under special 
 statutory authority, is not in itself 
 such an invasion of the rights of 
 land-owners along the stream as will 
 •enable them to maintain a plaim for 
 damages in the absence of any act- 
 ual damages, see Dwight Printing 
 •Co. v. Boston, 122 Mass. 583. That 
 limitations on action for injuries 
 "under the statute run from the time 
 when actual damage is caused, see 
 56 
 
 Thornton v. Turner, 11 Minn. 336; 
 Eastman v. St. Anthony Co., 12 Minn. 
 137, 143; Vickery v. Providence, 17 
 E. I. 651. 
 
 1 Under the North Carolina statute, 
 as we shall see infra, where flowage 
 is shown, the land-owner is entitled 
 to nominal damages though no act- 
 ual damage is shown. Wright v. 
 Stowe, 4 Jones, 516; Little v. Stan- 
 back, 63 N. C. 285. These cases are 
 in accord with the Massachusetts 
 rule. But in North Carolina, the act 
 causing the injury is held a tort, and 
 the statute is construed merely to 
 provide a special remedy. The gen- 
 eral rules regulating tortious user 
 would therefore apply. Wilson v. 
 Myers, 4 Hawks, 73. 
 
 2 Pub. St. (1882), ch. 104; Gen. Laws 
 1896, ch. 122. See Howe v. Norman, 
 13 R. I. 488. The act of Mar. 15, 1882, 
 ch. 271, provides for the appointment 
 of a commissioner of dams and res- 
 ervoirs. In New Jersey, see Gen. 
 Stats., pp. 2092, 2093. 
 
882 THE LAW OF WATERS. [Ch. XI"V"_ 
 
 -water may maintain an action on the case therefor. In this 
 action the issue is tried and adjudged by the court whether 
 the plaintiff is entitled to damages, and from its judgment 
 both parties have the right of appeal. If the plaintiff is held' 
 entitled to damages, a jury is summoned to ascertain the 
 amount thereof, under the direction of a judge of the Supreme 
 Court. The jury are required to appraise past damages, fut- 
 ure yearly damages, and future damages in gross. The plaint- 
 iff may elect between the yearly and gross damages, his elec- 
 tion binding both parties. and their successors forever. If no- 
 election is made, judgment is given for yearly damages; and 
 the judgment for damages is a bar to all actions for the in- 
 juries complained of, except actions to enforce the judgment. 
 If, after the plaintiff elects to receive yearly damages, the- 
 mill-owner should remove the matter complained of in the 
 writ, then the plaintiff or his assigns shall recover the amount 
 of the yearly damages for five years after the removal, but no- 
 longer. 1 The officer serving the writ is required to file a copy 
 thereof in the office of the town-clerk of the town in which 
 the dam is situated ; and from the time of such filing, the mill 
 and dam, with the appurtenances and adjoining land, become 
 pledged and liable for any damages which may be recovered 
 in such action. 2 The person maintaining the dam is required,, 
 at the request of the owner of any dam on the same stream, 
 within one mile below, not to detain the natural stream at 
 any one time more than twelve hours out of twenty-four, ex- 
 cept on Sundays. 3 The provisions of the act are expressly 
 extended to, and embrace, lands, water-privileges, and water- 
 rights taken to supply towns with water. 4 The statute con- 
 tains provisions for execution and sale under the judgment, for 
 redemption within one year (twelve per cent, interest being 
 added to the purchase price), for costs, and against abatement 
 of the suit by the marriage or death of the parties. 5 
 
 1 Ibid., § 15. terference. Wilbor v. Matheson, 8- 
 
 2 Ibid., § 2. ' R. I. 166. "The Mill Act is intended 
 
 3 Ibid., § 21. to operate between strangers, and 
 
 4 Ibid., § 22. not between those who hold in priv- 
 
 5 Defences arising under convey- ity of title." Per Stiness, J., in Dyer 
 ances may be asserted in such action, v. Cranston Print Works Co., 17 E. L 
 and are not grounds for equitable in- 774, 777. 
 
§ 605.] STATUTORY REMEDIES. 883' 
 
 §605. Same — New Hampshire. — There was no general 
 Mill Act in New Hampshire, authorizing the flowage of lands 
 by mill-owners, until 1868. The act of 1868 1 contains several 
 features of the Massachusetts Act, but differs from it and from 
 the other Mill Acts in many important respects. It authorizes 
 either party to take the initiative in the proceedings by peti- 
 tion to court, after the flowage or other injury has continued 
 for thirty days, without an adjustment; provides for the ref- 
 erence of the petition to a committee of three disinterested 
 persons, who shall hear the parties, view the premises, deter- 
 mine the extent, if any, to which the flowage and injury are 
 for the public use, and necessary to the mill or mills for which 
 they are designed, estimate the damages, and make report to 
 the court. Before the reference of the petition, if either party 
 so elects, the court is required to direct an issue to a jury to try 
 the facts alleged, and assess the damages. Upon the return of 
 the report of the committee, any person interested therein 
 may object to its acceptance for any irregularity or improper 
 conduct on the part of the committee. The court may set 
 aside the report for any just and reasonable cause, " and if re- 
 quired, shall inquire for itself whether the erection of said dam 
 is of public use or benefit, any finding of the committee upon 
 that point notwithstanding; and if the court shall be of opinion 
 that the erection of said dam is not of public use or benefit, 
 the petition shall be dismissed." But if the report is accepted 
 and established, the court is required to render judgment 
 thereon, after adding fifty per cent, to the estimate of the dam- 
 age; or if the issue is submitted to a jury, the judgment on 
 the verdict must include an addition of fifty per cent, to 
 the amdunt of damages assessed, which judgment shall be 
 final. 2 It is specially provided that no person or corporation 
 
 JSee N. H. Gen. Laws (1878), Title 2 A land-owner who files the peti- 
 17, ch. 141, §§ 15-17, 19; Pub. Stats, tlon for the assessment of damages, 
 1891, ch. 142. Under §§ 15, 16 of but who is dissatisfied with the re- 
 this Act, damages are not allowed in port, cannot by motion become non- 
 cases of prescriptive right of flow- suited. Pollard v. Moore, 51 N. H. 
 age. Chapman u Newmarket M. Co., 188. It was objected in this case 
 67 N. H. 180. Sec. 6 was amended that there was no provision for appeal 
 by the statute of August 31, 1883, or review. But the court held that 
 ch. 63. this did not render the proceedings 
 
884 THE LAW OF WATERS. [Cn. XIV. 
 
 shall derive any title from these proceedings, or be discharged 
 from any liability in relation to the premises injured, until he 
 or it has paid or tendered the amount of the judgment. This 
 provision reverses the rule laid down in the early case of 
 Lebanon v. Olcott, 1 that where a mill company was authorized 
 to flow lands, the damages need not be assessed or paid until 
 after the flowage. 2 The assessment of damages is to include 
 all damages, past and future, which may accrue from the acts 
 alleged, but there are no provisions for annual damages, suits 
 upon the judgment, or reassessment; the proceeding is reduced 
 to a single trial. 3 In estimating and determining the extent 
 to which the flowing or draining is of public use, the com- 
 mittee may fix the height of the dam, or may fix the height to 
 which the water may be raised by any other monument; and 
 the measure of damages is not determined by the height of the 
 dam, but by the height to which the water is authorized to be 
 raised. 4 
 
 §606. Same — Connecticut. — The statute of Connecticut 
 is recent, the first general statute upon the subject of flowage 
 
 unconstitutional or invalid. There is that has not been adjusted, by show- 
 no provision in the Act for a new ingthat his is a case in which private 
 trial, unless that cited in the text property ought to be taken for pub- 
 supr'a is intended to answer that lie use with compensation, thus giv- 
 purpose. So on a petition to abate ing abundant constitutional effect to 
 water, there is no right to jury trial, the Act." Damages are recoverable 
 But the court may take an advisory when a fresh-water river is set back 
 verdict or report. Cocheco v. Straf- beyond its ordinary high-water mark, 
 ford, 51 N. H. 455. Dow v. Electric Co. (N. H.), 45 Atl. 
 1 1 N. H. 339. Rep. 350. The dam may be erected 
 
 2 See Ash v. Cummings, 50 N. H. 591. of sufficient height for a reservoir to 
 
 3 Ash v. Cummings, 50 N. H. 591, supply other mills than that of the 
 ■619. In this case, after construing complainant. AmoskeagManuf. Co. 
 the Act, Sargent, J., says: "This con- v. Worcester, 60 N. H. 522. Evidence 
 struction of the Mill Act leaves the of the respondent's prosperity, as 
 land-owner in possession of his con- shown by the payment of dividends, 
 stitutional rights, and gives him com- is incompetent. Amoskeag Manuf. 
 pensation before his property is de- Co. v. Worcester, 60 N. H. 522. The 
 stroyed or materially injured, as at question whether any damage will 
 common law before the passage of be done to the defendant's land, as 
 this Act; it enables the mill-owner well as his title, may be contested 
 to escape innumerable suits and end- by a petitioner under the Mill Act. 
 less litigation, by applying to have Hovey v. Perkins, 63 N. H. 516. 
 
 the damages assessed against himself 4 Town v. Faulkner, 56 N. Y. 255. 
 for all future time, and all the past 
 
§ 606.] 
 
 STATUTORY REMEDIES. 
 
 885 
 
 apparently being that passed in 1864:. 1 This Act, which, with 
 some amendments, constitutes the present law of the State, 2 
 authorizes mill-owners to maintain dams upon their own lands, 
 or other lands with the consent of the owners; and to main- 
 tain ditches and raceways across the lands of others. 3 The 
 procedure somewhat resembles that under the Yirginia stat- 
 ute. The initiative is given to the mill-owner. He proceeds 
 by petition, giving a description of the lands to be affected, 
 and the dimensions and location of the work. The court is re- 
 quired to refer the petition to a committee of three disinter- 
 ested freeholders of the county, who decide upon the public 
 use of the work, and whose other powers and duties are sim- 
 ilar to those of the commissioners in Maine. 4 
 
 1 Conn. Pub. Acts, 1864, ch. 26. The 
 Act of 1838, which remains in force 
 (Rev. Sts. 1875, Title 16, ch. 7, part I, 
 § 18), authorized the flowage of high- 
 ways, upon the payment of damages 
 to be assessed by the Superior Court 
 upon a petition in equity. 
 
 2 Rev. Sts. 1875, Title 19, ch. 17, Pt. 
 6; Gen. Sts. of 1888, Title 18, ch. 84, 
 § 1216 et seq.; q. v. § 2687, as to flow- 
 ing highways. 
 
 3 The fact that the dam in question 
 has been before maintained under a 
 license, is no bar to a petition. On 
 the revocation of the license the mill- 
 owner may maintain a petition. Olm- 
 stead v. Camp, 33 Conn. 551, 552. So 
 the fact that he has already wrong- 
 fully raised, and is maintaining his 
 dam at the height which in his peti- 
 tion he prays to have established, is 
 no bar to his petition,although it may 
 be ground for an action at law or an 
 injunction. The mill need not be on 
 the same tract of land as the pro- 
 posed dam, and it is no objection that 
 lands of third parties lie between the 
 two tracts. Todd v. Austin, 34 Conn. 
 78. One maintaining a dam for the 
 purpose of leasing power to others is 
 protected by the statute. Occum Co. 
 v. Sprague Manuf. Co., 35 Conn. 496. 
 See further, Curtiss v. Smith, 35 Conn. 
 
 156. But not one wishing to form 
 an ice pond. Geer v. Rockwell, 65 
 Conn. 316. The Act of 1893, ch. 76, 
 authorizing such a pond, was re- 
 pealed by the Act of 1895, ch. 161. 
 
 4 By St. 1880, ch. 92, § 1, mesne pro- 
 cess upon flowage petitions, by a writ 
 of summons, is provided. The owner 
 of the mill is the proper person to 
 maintain the petition. The fact that 
 the mill is in the possession of a ten- 
 ant at will who is not joined, is no ob- 
 jection. Olmstead v. Camp, 33 Conn. 
 532, 552. A petitioner may include 
 in a single petition all persons as re- 
 spondents who have lands that will 
 be overflowed by the proposed pond. 
 Residence of the land-owner in an- 
 other county is immaterial; and it is 
 held immaterial that the land of one 
 of the respondents lies wholly out- 
 side of the county in which suit is 
 brought, if lands of other respondents 
 are within the county. Todd v. Aus- 
 tin, 33 Conn. 87. Upon a petition to 
 raise an existing dam to a greater 
 height,areportauthorizingadditional 
 height sufficient to raise water three 
 feet above the height at which it stood 
 on the day named was held suffi- 
 ciently certain. Todd v. Austin, 34 
 Conn. 78. In New Britain v. Sargent, 
 42 Conn. 137, the city was authorized 
 
THE LAW OF WATERS. 
 
 [CH. XIV. 
 
 §607. Same — Yermont. — The statute of Vermont is of 
 recent date, and in many ways combines the advantages of 
 both systems of MilL Acts. 1 At the first adjudication upon 
 the Act it was in effect held unconstitutional. The court held 
 
 by a special Act to divert a stream for 
 public purposes. The Act provided 
 for the assessment of damages by a 
 committee whose award should be 
 final. The owner of a part of the 
 stream, below the point of diversion, 
 had formerly used it for mill pur- 
 poses, and had a right to flow the land 
 of a proprietor above him. It was 
 held that the question of damages 
 was one wholly of fact; that the 
 committee were not bound to give 
 the owner of such privilege what it 
 would be worth if improved to its 
 full extent, nor to measure the value 
 of his flowage right by the gain to 
 the proprietors above, in being re- 
 lieved of the flowage; and that their 
 finding could not be reviewed by the 
 court. Evidence is not admissible 
 against the petitioner that he is 
 financially unable to avail himself 
 of the right sought. McArthur v. 
 Morgan, 49 Conn. 347. If a mill- 
 owner dedicates an embankment, 
 forming a highway and dam, and 
 containing a culvert, which after 
 being accepted and used, is carried 
 away by a flood, the town, in repair- 
 ing, may substitute a bridge. Welton 
 v. Walcott, 50 Conn. 259. See, also, 
 Adams v. Manning, 51 Conn. 5 ; State 
 v. Ousatonic Water Co., id. 137; Hart- 
 ford Manilla Co. v. Olcott, 53 Conn. 
 452. 
 
 iRev. Laws of Vt. (1880), ch. 148; 
 Vt. Stats. (1894), ch. 159. The statute 
 of Vermont was made up from Acts 
 passed in 1866, 1867, and 1869; these 
 Acts included the first general legis- 
 lation of the State upon the subject. 
 The proceedings are begun by peti- 
 tion by the mill-owner, upon which 
 the court appoints commissioners, 
 whose powers are like those of the 
 
 commissioners appointed under the 
 Acts of Maine. The report is open 
 to objection and liable to be set aside 
 as under the other statutes, but, if 
 accepted and established, it is con- 
 clusive in the matter, with this ex- 
 ception (§ 3221), "except that the 
 court may inquire into the damages, 
 and render judgment against the pe- 
 titioner in favor of the persons inter- 
 ested in the lands for such damages 
 as they sustain; and the court may 
 set aside the report for any cause 
 which appears just, and, if required, 
 shall inquire for itself whether the 
 erection or continuance of the dam, 
 flume, or trunk, will be a public bene- 
 fit, notwithstanding the finding of 
 the commissioners, and if it finds 
 that the public will not be benefited 
 by such erection or continuance, the 
 petition shall be dismissed." The Act 
 authorized the erection and continu- 
 ance of dams, flumes, or trunks, and 
 the elevation of existing dams, for 
 obtaining water from streams not 
 navigable, to work mills or manu- 
 factories erected on the miller's own 
 land, or on the land of another by 
 his consent whereby the water should 
 be carried or made to flow over or 
 upon the lands of other persons. It 
 contained several salutary provisions 
 for the protection of property hold- 
 ers. It required the party desiring 
 to maintain works for the benefit of 
 a mill to petition the County Court 
 before any injury was done for per- 
 mission to erect the desired work 
 (§ 3215); to give security for costs 
 and for prosecuting his petition to 
 effect (§ 3216); to pay or deposit the 
 amount of damages assessed and 
 costs for the persons entitled to the 
 same, before the water should be 
 
§ 608.] 
 
 STATUTORY EEMEDIES. 
 
 887 
 
 •that no public duties were imposed on mill-owners by the Act, 
 such as the duty of receiving and grinding grain for all who 
 -offered it, and therefore the taking contemplated would not be 
 , for public, but for private use. 1 But constitutional questions 
 have been considered in another place. 2 The court held inci- 
 dentally that the county court had exclusive jurisdiction of pro- 
 ceedings under the Act, that a case could not be carried up to 
 •the Supreme Court by exceptions, but that questions involved 
 in the proceedings could be brought before the Supreme Court 
 by a writ of certiorari, mandamus, or other appropriate writ. 3 
 
 §608. Same — Pennsylvania.— The Pennsylvania statute 
 is peculiar. It protects navigation and the passage of fish, 4 but 
 makes no provision for compensation to persons whose lands 
 are flowed or damaged. By the statute of 1803, 5 owners of 
 lands adjoining navigable streams are authorized to erect dams 
 for mills or water-works, 6 and are not to obstruct navigation 
 
 flowed upon or conducted over or 
 through the land (§ 3222); provided 
 that no action should be maintained 
 by the petitionee .against the peti- 
 tioner for the damages in question 
 during the pendency of the petition, 
 but that the court or judge before 
 whom the petition is pending might 
 order such security for damages to 
 be given by the petitioner to the pe- 
 titionee, as should be deemed expe- 
 dient (§3222); and that if the costs 
 and damages should not be paid 
 within sixty days after the proceed- 
 ings on the petition should be ended, 
 the proceedings should be of no legal 
 ■effect. Upon the repealed Act of 1869,' 
 see Glover v. McGaffey, 55 Vt. 171. 
 
 1 Tyler v. Beecher, 44 Vt. 648. 
 
 2 See ante, §254. 
 
 3 See ante, ch. 13. 
 
 4 See In re Obstruction of French 
 Creek, 30 Pitts. L. J. N. s. 190. 
 
 5 2 Brightly's Purdon's Digest (11th 
 •ed. 1885), p. 1173; 2 Pepper & Lewis's 
 Digest, p. 3054. 
 
 6 Possessors of such land are treated 
 as owners under the Act, except as 
 
 against those who claim by better 
 titles. Bigler v. Antes, 21 Penn. St. 
 288. The statute excepts the Dela- 
 ware, Lehigh, and Schuylkill rivers. 
 It extends to streams subsequently 
 declared highways. Brown v. Com., 
 3 S. & E. 273; Coovert v. O'Conner, 8 
 Watts, 470. And to streams navi- 
 gable at common law. Ensworth v. 
 Com., 52 Penn. St. 320. It author- 
 izes only works for the use of water- 
 power, and not pools for rafts. Com. 
 v. Church, 1 Penn. St. 105; Dubois v. 
 Glaub, 52 id. 238; Deddrick v. Wood, 
 15 id. 9. As to navigable streams, 
 the Act gives only a license revocable 
 when public interests may require. 
 Monongahela Nav. Co. v. Coons, 6 W. 
 & S. 101; Susquehanna Canal Co. v. 
 Wright, 9 id. 9; New York & Erie 
 E. E. Co. v. Young, 33 Penn. St. 175. 
 But when extended to small streams 
 by Acts making them public high- 
 ways, it changes the remedy, but 
 does not reduce owners or builders 
 of dams to licensees. Barclay E. E. 
 Co. v. Ingham, 36 Penn. St. 194. In- 
 dictments for offenses under the Act 
 
888 THE LAW OF WATERS. [Ch. XIV- 
 
 or the passage of fish. The statute provided that on complaint 
 to the judges of quarter session that such obstruction was 
 caused, the court should appoint three commissioners to inquire 
 and report upon the state of the dam; that if it appeared that 
 an offence was committed, the court should direct an indict- 
 ment to be sent to the grand jury; and upon the prosecution 
 of such offence to conviction, impose a fine not exceeding one 
 hundred dollars upon the person maintaining such dam, and 
 direct the supervisors of highways of the adjoining township 
 to remove such obstruction and reduce the dam to conformity 
 with the statute, at the offender's cost. The court may also- 
 direct a jury to assess the damages of the persons bringing 
 the complaint. 1 In 1841 an Act was passed which provided 
 for compensation to owners or possessors of vessels or rafts de- 
 layed or damaged by such dams, to be determined by three 
 persons appointed by a justice of the peace of the county 
 where the dam is maintained, upon the application of the par- 
 ties injured. 2 
 
 § 609. The Virginia system.— The Virginia statute is the 
 original of a series of statutes in force in the Southern and 
 Western States. It differs in many ways from that of Massa- 
 chusetts. The remedy provided is an adaptation of the writ 
 of ad quod damnum? The present law provides that the owner 
 
 must be brought in the method pro- v. Mead, 57 id. 487. "Raft" includes 
 
 vided by it. Com. v. Plumer, 1 Am. logs floated together, though not at- 
 
 Law Reg. 124. taohed. Deddrick v. Wood, 15 Penn. 
 
 1 If the person injured begins an St. 9. 
 
 action at common law, and subse- *Ad quod damnum is a writ which 
 quently makes complaint under the ought to be sued before the king 
 statute to have the dam abated by grant certain liberties, as a fair, mar- 
 indictment, and no damages are ket, or such like, which may be preju- 
 given in the statutory proceeding, it dicial to others. And thereby it shall 
 is held that a conviction therein will be inquired if it should be a preju- 
 not bar further pursuit of the action, dice to grant them, and to whom it 
 Gould v. Langdon, 43 Penn. St. 365. shall be prejudicial, and what preju- 
 See James v. Sterrett, 137 id. 234; dice shall come thereby. There is also- 
 Ensworth v. Com., 52 id. 320. another writ of ad quod damnum, 
 
 2 Prior to the passage of this Act, if any one will turn a common high- 
 damages were recoverable by an ac- way, and lay out another way as ben- 
 tion on the case (Bacon v. Arthur, 4 eflcial. Termes de la Leye, 25. In 
 Watts, 437; Bell v. McClintock, 9 id. Fitzherbert, N. B. 225, D., E., the 
 119), and actions on the case have been writ is shown to have been used at 
 allowed since its passage. Plumer v. common law for purposes similar to 
 Alexander, 12 Penn. St. 81 ; Newbold those to which it is applied by the 
 
§ 609.] 
 
 ETATDTOET EEMEDIES. 
 
 889 
 
 of lands upon a stream, owning or projecting a manufactory 
 useful to the public, and desiring to build or enlarge a dam 
 or canal above or below the mill, may obtain, on application 
 to the court of the county where the mill stands, a writ of 
 
 Virginia statute. " And if the king 
 will grant to one to make a ditch of a 
 certain length in his own land, ad- 
 joining to the king's pond, to draw 
 the water from the pond by the ditch 
 to his mill, rendering yearly to the 
 king and his heirs a certain rent, a 
 writ of ad quod damnum shall be 
 awarded for to inquire what damage 
 the same will be to the king, and the 
 writ shall recite the grant, and the 
 rent reserved. And if there be an 
 ancient trench or ditch coming from 
 the sea, by which boats and vessels 
 used to pass to the town, if the same be 
 stopped in any part by the outrageous- 
 ness of the sea, and a man will sue to 
 the king to make a new trench, and 
 < i to stop the ancient trench, &c, he 
 ought first to sue a writ of ad quod 
 damnum, to inquire what damage it 
 will be to the king or others." An 
 ancient highway cannot be changed 
 without the king's license first ob- 
 tained on an ad quod damnum, al- 
 though an inquisition find that it is no 
 damage to the king to grant the license. 
 Rex v. Warde, Cro. Car. 366. The 
 River Thames is a highway and can- 
 not be diverted without an ad quod 
 damnum, and to do such a thing 
 ought to be by patent of the king. 
 Hind v. Manfield, Noy. Rep. 103. If 
 upon the return of an ad quod dam- 
 num it appears to be ad damnum vel 
 prejudicium of no man, the king may 
 then license the stopping up of an an- 
 cient highway, or diverting a water- 
 course, or part of it, for the concern 
 is then wholly his own ; but without 
 his license it can never be done, 
 though a better way be set out and 
 so returned upon an ad quod dam- 
 
 num. Thomas v. Sorrell, Vaugh. 341. 
 The original Act of Virginia on the 
 subject of flowage was passed in 
 1705. 3 Hening's St. at Large, p. 401. 
 It provided that a person willing to 
 build a water-mill, and having only 
 one side of the run, if the owner, of 
 land on the other side should refuse 
 to let him have an acre of land ad- 
 joining, might petition the court of 
 the county wherein such land lay to 
 authorize him to take such land for 
 the purpose of abutting his dam 
 thereon. Upon such petition the 
 court was empowered to appoint two 
 commissioners to view the land, and 
 if it should not take away housing, 
 orchards, or other immediate conven- 
 iences, to value the same and put the 
 party desiring to build the mill in 
 possession thereof. The applicant 
 was required to pay the value sa 
 determined, down in money, before 
 taking the land, to build his mill 
 within three years, and rebuild again 
 within three years in case of its de- 
 struction, or forfeit his right ; and he 
 was not to erect his mill within one 
 mile of any existing mill on the same 
 stream. The owners of such mills- 
 were given a remedy by action on the 
 case. In 1745 the Act was amended. 
 5 Hening's St. at Large, p. 359. The 
 new law required the court, on peti- 
 tion, as before, to issue an order to the 
 sheriff, at the petitioner's cost, com- 
 manding him to summon a jury of 
 twelve freeholders of the vicinage, to 
 meet on the land petitioned for, and 
 determine the questions of value and 
 convenience, as before. The owner 
 of land on both sides of the stream 
 was required not to erect a mill with- 
 
890 
 
 THE LAW OE WATERS. 
 
 [Oh. XIV. 
 
 <td quod damnum} The writ requires the sheriff to summon, 
 a jury of twelve freeholders, who must view the premises and 
 make inquest upon substantially the same questions as those 
 
 out leave from the County Court The 
 court was required to consider 
 whether others would be injured by 
 flowage, etc. ; existing mills were 
 protected, and the title of entailed 
 lands which were taken for mill 
 purposes was confirmed to the mill- 
 owners. In 1785, the law was again 
 amended, and was given something 
 of its present form. 12 Hening's 
 Sts. p. 187. This act provided that 
 the owner or projector of a water- 
 grist mill, desiring to acquire lands 
 on which to abut his dam, should ap- 
 ply to the court of the proper county 
 for a writ of ad quod damnum, giv- 
 ing ten days' notice of his application 
 to the proprietor, upon which a jury 
 should be summoned and proceed- 
 ings had substantially as under the 
 more recent Acts. The jury were 
 required to view the land, locate by 
 metes and bounds one acre thereof, 
 appraise its value, estimate the prob- 
 able amount of flowage and of the 
 damages thereby caused; inquire 
 whether any house, buildings, or- 
 -chards, or gardens, would be injured ; 
 whether the passage of fish and ordi- 
 nary navigation would be obstructed ; 
 whether, and by what means, such 
 obstruction could be prevented ; and 
 whether the health of the neighbors 
 would be annoyed by the stagnation 
 of the waters. It retained the re- 
 strictions of the former statute ; pro- 
 vided that the title to the lands taken 
 should vest on payment of the dam- 
 ages assessed; and that the inquest 
 should be no bar to damages not fore- 
 seen. The Statute of 1792 (1 St at 
 Large, N. S. 136, 137; Abridgment 
 of Public Laws of Va 1796, pp. 209, 
 211) added a provision enabling the 
 
 owner of any mill to raise his dam by 
 suing out a second writ 
 
 1 Code of Va. 1887, Title 20, ch. 61. 
 The applicant need not own the land 
 on either side of the stream at the 
 point where the dam is proposed to be 
 located. The Revised Code of 1819, 
 voL 2, ch. 235, provided specially for. 
 writs in cases where the applicant 
 owned lands on one side of the stream 
 and the bed of the stream ; where he 
 owned the land on both sides, and 
 where, owning the land on one side, 
 the title to the bed of the stream be- 
 longing to the Commonwealth, he de- 
 sired to build a wing-dam, or abut a 
 dam upon an island. The courts held 
 that the petition and record must 
 show facts defining in which of these 
 classes the base belonged ; and if the 
 allegations placed the case in a class 
 to which it did not belong, the writ 
 would be quashed; — as, if the appli- 
 cant alleged that he owned both sides 
 when he owned but one, the writ was 
 quashed. "Whitworth v. Puckett, 2 
 Graft 528. Where he owned but one 
 side, the record must show the title 
 to the bed of the stream to be either 
 in him or the Commonwealth. Rich- 
 ards v. Hoome, 2 "Wash 36 ; Wroe v. 
 Harris, 2 Wash 126 ; Home v. Rich- 
 ards, 4 Call, 441 ; Martin v. Beverly, 5 
 Call, 444; Wilkinson v. Mayo, 3 H. & 
 M 565. For similar decisions under 
 the Act of Kentucky, see O'Bannonu 
 Jackson, Sneed, 201 ; Bibb v. Mount- 
 joy, 2 Bibb, 1 ; M'Af ee v. Kennedy, 1 
 Litt 92 ; Nealen Cogar, 1 A. K Marsh. 
 589 ; Hamilton v. Adams, 7 J. J. Marsh. 
 248 ; Wooten v. Campbell, 7 Dana, 204 ; 
 Smith v. Connelly, 1 Mon. 59. Alle- 
 gations as to the bed of a stream are 
 unnecessary where the plaintiff owned 
 
§ 609.] 
 
 STATUTORY REMEDIES. 
 
 891 
 
 provided by the Act of 1785. 1 The findings when completed 
 must be signed by the jurors. If it appears by the inquest 
 that any person not notified will sustain damages, he must be 
 notified to show cause why the applicant shall not have the 
 
 both sides. "Wroe v. Harris, 2 "Wash. 
 126. See accord, Neale v. Cogar, 1 A. K. 
 Marsh. 589. So if he owns both sides, 
 the land for the abutment need not 
 be circumscribed. Cowan v. Glover, 
 3 A. K. Marsh. 356. But in Meade v. 
 Haynes, 3 Band. 33, it was held that 
 where the stream was unnavigable, 
 and the petitioner owned the bed, the 
 petition was sufficient, though alleg- 
 ing title in the Commonwealth. It is 
 sufficient that the person making the 
 application is in actual possession of 
 the land claiming title. Pitzer v. "Wil- 
 liams, 2 Rob. 241. The petition may- 
 be made ore tenus. Meade v. Haynes, 
 3 Band. 22, 37 ; Mairs v. Gallahue, 9 
 Gratt. 94. "Where upon a fair and 
 reasonable construction the petition 
 and inquisition are substantially re- 
 sponsive to the requirements of the 
 statute, they are sufficient. Mairs v. 
 Gallahue, 9 Gratt. 94. Ten days' no- 
 tice of the application to the tenant 
 of the freehold, upon which it is de- 
 sired to erect or abut a dam, or 
 through which it is intended to cut a 
 canal, is required by the statute (§ 2). 
 The record must show that ten days' 
 notice was given. Bernard v. Brewer, 
 3 Wash. 76. In the head-note to 
 Hunter v. Matthews, 1 Bob. 468, it is 
 said that a judgment on the writ is 
 valid and sufficient though the owner 
 of the land had no notice. No such 
 ruling was made above ; an objection 
 for lack of notice was overruled below, 
 but the judgment was reversed above 
 on other grounds. Notice to an acting 
 trustee and executor considered. Cole- 
 man v. Moody, 4 H. & M. 1. A party 
 appearing and contesting the applica- 
 tion on the merits cannot afterwards 
 
 object for defect of notice. Bernard 
 v. Brewer, 2 "Wash. 76 ; Coleman v. 
 Moody, 4 H. & M. 1. But a party 
 appearing and objecting for lack of 
 notice does not lose his rights by after- 
 wards contesting on the merits. Pit- 
 zer v. Williams, 2 Bob. 241. Notice to 
 the tenant in possession, who appears 
 to be owner, is sufficient where it is 
 not known who has the legal title. 
 Pitzer v. Williams, 2 Bob. 241. The 
 statute apparently contemplates no- 
 tice to all who will be injured. Sec. 
 5 provides: "If by such inquest it 
 appear that any person to whom no- 
 tice has not been given will sustain 
 damage, notice shall be given to him 
 in the manner prescribed by the sec- 
 ond section, to show cause why the 
 applicant should not have the leave 
 desired." 
 
 1 See ante, § 609. The power to as- 
 sess damages is in the jury alone. 
 The court cannot increase the 
 amount of damages allowed. But if 
 the court is of opinion that a greater 
 quantity of land will be overflowed 
 than the jury estimated, the court 
 should quash the writ and direct a 
 new one. Whitworth v. Buckett, 2 
 Gratt. 528. The inquisition need not 
 include and award damages for in- 
 juries below the dam from a possible 
 breaking of the dam. For such in- 
 juries the action at law allowed for 
 unforeseen injuries (§ 11) will lie. 
 Wroe v. Harris, 2 Wash. 126. See 
 Ellis v. Harris, 32 Gratt. 684. It is 
 not error for the jury to assess the 
 damages caused by fiowage and other 
 injuries in one sum. Coleman v. 
 Moody, 4 H. & M. 1. On a petition 
 for leave to add to the height of an 
 
892 
 
 THE LAW OF WATEKS. 
 
 [Oh. XIV. 
 
 leave desired. If on the inquest or on the other evidence it 
 shall appear that any mansion house, or its yards', out-houses, 
 gardens, or orchards will be injured, or the health of the 
 neighbors annoyed by the construction of the proposed works, 
 the court will refuse permission to erect them. 1 If it shall not 
 so appear, the court may at discretion grant or refuse the per- 
 
 existing dam, it is error for the jury 
 to assess other damages accruing 
 from the dam as already erected, 
 and which were not contemplated 
 by the original jury. But if such 
 other damages are found separately, 
 that portion of the finding may be 
 stricken off as surplusage, and the 
 verdict sustained. Eppes v. Cralle, 1 
 Munf. 258. An estimate of damages 
 caused by flowage at a certain sum, 
 and of damages to the proprietor for 
 probable injury to other lands, at 
 a certain sum, is sufficiently certain. 
 Dawson v. Moons, 4 Munf. 535. The 
 payment of damages will be pre- 
 sumed after the lapse of a long time, 
 and the erection and maintenance of 
 the works with the acquiescence of 
 the land-owner. Young v. Price, 2 
 Munf. 534 In a case where L., own- 
 ing lands on both sides of a stream, 
 asked permission of the court to 
 build a mill upon the stream, and a 
 dam across it, it was found by the 
 inquest that lands in possession of 
 A., of the value of thirty-five dollars, 
 would be overflowed. The court, on 
 a hearing, being of the opinion that 
 these lands belonged not to A., but to 
 L. himself, granted L. permission to 
 build his dam without paying any 
 damages to A. Upon appeal this rul- 
 ing was held erroneous, for the title 
 to the lands could not be thus col- 
 laterally tried. In such case permis- 
 sion should be granted only on con- 
 dition that L. pay A. the damages 
 assessed by the jury ; and L. might 
 then build his dam at his peril with- 
 out paying the damages, and then 
 
 defend A.'s action against him on 
 the ground that the lands over- 
 flowed were his own, and thus put 
 the title directly in issue. Anthony 
 v. Lawhorne, 1 Leigh, 1. If the 
 court directs an issue to try the title 
 involved, the verdict is advisoiy 
 merely, and the question is open to 
 be heard on the merits. Such a 
 direction is not error. Wood v. 
 Boughan, 1 Call, 329. 
 
 1 On a conflict of testimony as to 
 the effect of the dam on health, the 
 findings of the trial court will be af- 
 firmed. Home v. Richards, 2 CalL 
 507. It is not essential to the valid- 
 ity of the inquisition that it be 
 dated, if it be stated under the hands 
 and seals of the jurors, that they 
 acted " in obedience to the annexed 
 writ" Dawson v. Moons, 4 Munf. 
 535. Any one interested may move 
 to quash the inquest, The service of 
 the same jurors on a previous in- 
 quest in the same cause is ground to 
 quash. Hunter v. Matthews, 12 
 Leigh, 228. If the inquest is quashed, 
 the plaintiff should pray a new 
 writ, or except and appeal. Noel 
 v. Sale, 1 Call, 495. If the Circuit 
 Court reverses the order to quash, 
 it should remand the cause with di- 
 rections for further proceedings. 
 Hunter v. Matthews, 12 Leigh, 228. 
 A juror's declaration that he agreed 
 to the verdict in consequence of the 
 sheriff's declaration that the defend- 
 ant had consented to the erection of 
 the mill, is no ground for quashing 
 the writ Harwell r. Bennett, 1 Rand. 
 282. 
 
§ 610.] 
 
 STATTJTOKY EEMEDIES. 
 
 893 
 
 mission ; if it grants permission, it is required to impose con- 
 ditions protecting navigation, the passage of fish, 1 and the 
 crossing of the stream. 2 Upon obtaining permission of court, 
 and paying to the several parties entitled thereto, the com- 
 pensation ascertained, the applicant becomes seized in fee- 
 simple of the lands circumscribed and located by the jury as 
 necessary to be taken, and is authorized to proceed with his 
 works. 3 The applicant acquires title to the lands so circum- 
 scribed and located ; but he does not acquire title to the lands 
 overflowed. 4 
 
 §610. Same. — Under the statutes of other Southern and 
 Western States, founded on that of Virginia, although fre- 
 quently departing more or less from that original, the initiative 
 of proceedings lies wholly with the mill-owner or projector. A 
 person likely to be injured cannot, under the statute, recover 
 
 1 Parker v. People, 111 Hi 581; 
 .State v. Griffin, 89 Mo. 49. 
 
 2 This in effect provides for a new 
 trial by the judge, and invests him 
 with a large discretion whether and 
 upon what conditions to grant per- 
 mission. In Mairs v. Gallahue, 9 
 ■Graft. 94, the Court, on giving leave 
 to erect the dam, provided that the 
 applicant should keep a ferry-boat at 
 the crossing of a public road over the 
 stream, across which the dam was to 
 be erected. It was held that this 
 condition was incident to the grant, 
 ■and attached to it, into whose hands 
 soever it might pass ; and that it im- 
 posed on the applicant and his suc- 
 cessors the duty of keeping up the 
 ferry and ferrying the public over 
 the stream without charge. In 
 Humes v. Shugart, 10 Leigh, 332, the 
 ■court denied an application, made 
 shortly after a former one, for erect- 
 ing a mill in the same neighborhood, 
 had been granted. 
 
 3 There are further provisions re- 
 quiring him to begin his works within 
 one year, to complete them within 
 three years, and in case of their de- 
 
 struction, to begin rebuilding within 
 two years, and complete within five 
 years ; in default of which, the title 
 to the land taken reverts ; or, if held 
 by a life tenant, the reversioner may 
 enter and rebuild under the same 
 limitation. The time for rebuilding 
 has been extended by various acts 
 affecting particular classes of cases, 
 particularly that of mills injured dur- 
 ing the Civil War. Acts of Assembly, 
 1871-2, ch. 237, p. 322 ; 1874,' ch. 338, 
 p. 456 ; 1877-8, ch. 171, p. 132. The 
 fact that the applicant does not raise 
 his dam in the first instance to the 
 height authorized by the inquest does 
 not preclude him from raising it to 
 the full height authorized by the in- 
 quest, provided by so doing he does 
 not occasion injury to others. Cal- 
 houn v. Palmer, 8 Gra.tt. 88. 
 
 ^Whitworth v. Puckett, 2 Gratt. 
 531 ; Hunter v. Matthews, 1 Rob. 468. 
 A dam erected in a different place 
 from that authorized by the finding 
 of the jury is, if obstructing the 
 stream or causing injury, an abatable 
 nuisance. Dimmett v. Eskridge, 6 
 Munf. 308. 
 
894 
 
 THE LAW OF WATERS. 
 
 [Ch. XIV 
 
 his damages, even after they have been assessed. The election 
 rests with the applicant, to pay the damages and build his 
 mill, or to discontinue, 1 and he may dismiss the proceedings 
 without the consent of the other party. 2 The injured person 
 is left to his remedies at common law and in equity if the 
 statute is not complied with. The inquest must conform and 
 respond to the questions raised by the statute. An omission 
 to find on any of the questions, as on the effect of the proposed 
 works on health, invalidates the finding. 3 So of an omission 
 to find as to their effect on navigation, or the passage of fish,* 
 or on houses and gardens, 5 where required. So the inquest 
 must show that the jury were sworn according to the statute, 
 and charged as the law directs, and that they examined the 
 lands ; 6 must include findings as to all proprietors likely to be 
 affected ; 7 and show the quantity of injured land belonging 
 to each proprietor, and find the damage to him separately. 8 
 Usually it should find the height of the dam. 9 And the in- 
 
 i Cave v. Calmes, 3 A. K. Marsh. 36. 
 
 2 Hunting v. Curtis, 10 Iowa, 52. 
 
 3 Kownslar v. Ward, 1 Gilmer (Va.), 
 127; Trabue v. Macklin, 4 B. Mon. 
 407; Mountjoy v. Oldham, 1 A. K. 
 Marsh. 535; Major v. Taylor, id. 
 552; Wooton v. Campbell, 7 Dana, 
 204 ; Gherky v. Haines, 4 Blaokf. 159 ; 
 Owen v. Jordan, 27 Ala. 608. See 
 Bibb v. Mountjoy, 2 Bibb, 1. A find- 
 ing that health would be " as little 
 annoyed as it was possible " is fatally 
 defective. Smith uWaddill, 11 Leigh, 
 532. A finding that the health of 
 those living near the pond will prob- 
 ably be injured, is conclusive against 
 petitioners. Mayo v. Turner, 1 Munf. 
 405. For recovery for injuries to 
 health, see notes to § 621, infra. 
 
 <Eppes v. Cralle, 1 Munf. 258; 
 Shackelford v. Coffey, 4 J. J. Marsh. 
 41; Eubank v. Pence, 5 Litt. 338; 
 Owen v. Jordan, 27 Ala. 608. Such 
 binding is as necessary on an applica- 
 tion to enlarge as on one to build a 
 dam. Kownslar v. Ward, 1 Gilmer 
 (Va.), 127. 
 
 s Martin v. Eushton, 43 Ala. 289. 
 
 « Owen v. Jordan, 27 Ala. 608; 
 Walters v. Houck, 7 Jones, 72 ; Bibb 
 v. Mountjoy, 2 Bibb, 1 ; Shackleford 
 v. Coffey, 4 J. J. Marsh. 41. If the 
 inquest is incomplete owing to any 
 omission from the charge, the defect 
 is fatal But if the jury respond to 
 all matters required, although not 
 charged, it is sufficient Neale v. 
 Cogar, 1 Marsh. 589 ; Martin v. Eush- 
 ton, 42 Ala. 289. See Walters v. 
 Houck, 7 Iowa, 72. An inquest 
 which the report shows to have been 
 conducted carelessly and unintelli- 
 gently will be set aside. Ibid. 
 
 ' Honenstine v. Vaughan, 7 Blackf. 
 520. 
 
 s Smith v. Connelly, 1 B. Mon. 58; 
 Smith v. Eogers, Litt Sel. Cas. 117. 
 
 9 Neale v. Cogar, 1 Marsh. 589. 
 But this is held unnecessary under 
 the older statutes, where the appli- 
 cant owns both sides of the stream. 
 Ibid. The owner of the dam is en- 
 titled to have a permanent record of 
 the height at which he may main- 
 tain the dam ; of the fact that health 
 will not be injured by it; that his 
 
§ 611.] 
 
 STATUTORY REMEDIES. 
 
 895 
 
 quest or judgment should show the location of the mill with 
 sufficient certainty to enable a surveyor to determine its- 
 place. 1 
 
 § 611. Same. — The jurisdiction conferred by the statute is- 
 special and limited, and the record must therefore affirma- 
 tively show every fact necessary to uphold the jurisdiction. 2 
 Under the statutes of this system, and sometimes by express- 
 provision, the payment of compensation is a condition preced- 
 ent to the acquisition of the right to flow or injure lands.* 
 The provision that flowage shall not be permitted to injure 
 mansion houses, gardens, orchards, or appurtenances, is in force- 
 in Kentucky, "West Virginia, North Carolina, Tennessee, Ala- 
 bama, 4 Mississippi, Missouri, Indiana, Iowa, and was formerly 
 in force in Illinois ; the provisions protecting navigation and 
 the passage of fish were formerly in force in nearly all the 
 States which adopted the "Virginia statute, and are now in force 
 in Kentucky, "West Yirginia, Mississippi, Missouri, and Ne- 
 braska ; and that on navigation is in force in these States and 
 in Indiana. 8 
 
 mill is of public use; and of his 
 right to maintain races and other 
 works with his dam. Wright v. 
 Pugh, 16 Ind. 106. 
 
 i Macon v. Owen, 3 Ala. 116. The 
 description, "In number seven, of 
 township nineteen, of range twenty- 
 five," is too uncertain. Ibid. 
 
 2 Bottoms v. Brewer, 54 Ala. 288. 
 If the record fails to show that the 
 dam was erected by order of court, 
 or that the mill is a public mill, as 
 denned by statute, the defect is fatal 
 Ibid. In Michigan the petition was 
 held jurisdictional, and required to 
 show every fact necessary to confer 
 the right, including averments of the 
 non-existence of any fact which 
 would defeat the right ; e. g. that no 
 existing mill would be injured. Fox 
 v. Holcomb, 34 Mich. 298. But in 
 Minnesota the petition is held suffi- 
 cient if it states facts bringing the 
 case within the authorizing clause 
 
 (£. e. § 1) of the statute. The limita- 
 tions contained in the other ^sections 
 need not be negatived, nor want of 
 consent by the respondent be averred. 
 Faribault v. Hulett, 10 Minm.30. 
 
 s Nichols v. Aylor, 7 Leigh, 546, 
 562; Cave v. Calmes, 3 Marsh. 36; 
 Kirkendall v. Hunt, 4 Kansas, 514. 
 
 * See McAlhlly v. Horton, 75 Ala. 
 491. 
 
 6 See, infra, citations of the statutes 
 of these States. The fact that a spring 
 of water for domestic use will be in- 
 jured is a sufficient reason for refus- 
 ing permission to erect a dam. Only 
 a great public necessity will justify 
 such an injury. Morgan v. Banta, 
 1 Bibb, 579 ; Trabue v. Macklin, 4 B. 
 Mon. 407; McDougle v. Clark, 7 B. 
 Mon. 448 ; Payne v. Taylor, 3 Marsh. 
 328; Rosser v. Randolph, 7 Porter, 
 238. A spring-house is protected as- 
 an outhouse, within the statute. 
 Willoughby v. Shipman, 28 Mo. 50. 
 
896 
 
 THE LAW OF WATERS. 
 
 [CH. XIV. 
 
 § 612. Same — Kentucky. — The principal differences in the 
 Kentucky statute l are a provision for further notice to persons 
 not notified and not attending the inquest, and for holding the 
 cause over in court, for them to appear; 2 a provision saving the 
 rights of persons under disability from forfeiture for failure to 
 complete their works in three years; 3 an omission of the special 
 Virginia provision for the reversioner when the life tenant fails 
 to complete his works in time; and a new section which in- 
 vests the Circuit Court with power to revoke the permission 
 and abate the dam, upon the presentment of a grand jury, in 
 case public or private injury results from failure to comply with 
 the conditions imposed. 4 
 
 §613. Same — West Virginia. — The West Virginia stat- 
 ute 5 provides that the "proceedings shall be according to the 
 general statute on eminent domain, 6 for the appointment of 
 
 iKy. Gen. St. 1879, oh. 77; Bullitt 
 & Feland's ed. (1888), p. 960; Barbour 
 & Carroll's ed. (1894), p. 948; Carroll's 
 ed. (1899, p. 1014), oh. 87. See St. Feb. 
 23, 1797— "An Act to reduce into 
 one the several Acts concerning Mill 
 Dams and other Obstructions in 
 Watercourses.'' 2 Lit. & Swig. Dig. 
 Ky. St. 938. The statute provides 
 that where the lands lie in two coun- 
 ties, the court of that county contain- 
 ing the greater portion shall have 
 ' jurisdiction. By the Act of 1797, the 
 application in such case was required 
 to be to the court of the county where 
 the proposed abutment would be 
 placed. Dotson v. Sibert, 4 Bibb, 464. 
 
 2 The Act does not require the 
 owner of property injured to be sum- 
 moned unless he resides in the county, 
 or has a known agent. Cowan v. 
 Glover, 3 Marsh. 357. 
 
 3 The forfeiture provision does not 
 apply to cases where the owner of the 
 mill owns the land on both sides of 
 the stream. McDougle v. Clark, 7 B. 
 Mon. 448, 452. 
 
 4 The Kentucky statute does not 
 apply to or authorize the taking of 
 lands in cities or towns. O'Bannon 
 v. Jackson, Sneed, 201. 
 
 6 Warth's Code (2d ed., 1887), p. 352; 
 Code 1891, p. 356. 
 
 «2 Kelly's St. 1879, ch. 79. The 
 proceedings are begun by petition in 
 writing for the appointment of five 
 commissioners, four of whom consti- 
 tute a quorum for holding the in- 
 quest. If a jury is asked by either 
 party, a writ of ad quod damnum 
 issues. The report may be set aside, 
 recommitted, or confirmed. If the 
 petitioner pays into court the amount 
 of damages assessed, although after 
 the report is set aside, he may pro- 
 ceed to take and use the lands with- 
 out hindrance, paying into court or 
 receiving back the difference be- 
 tween the amount paid and that of 
 the second assessment. The title to 
 lands condemned vests on confirma- 
 tion of the report and payment of the 
 damages assessed. For a statute in- 
 vesting boom companies with power 
 to take lands, to enter upon lands 
 and waters of others for the purpose 
 of erecting booms for the purpose of 
 stopping and securing boats and 
 rafts, and for a determination of the 
 compensation due for such injuries, 
 see Acts of West Va. 1877, ch. 121, 
 p. 178. 
 
.§ 614.] STATUTORY REMEDIES. 897 
 
 ■commissioners or impanelling of a jury. Their duties are, how- 
 ever, substantially the same as those of the jury under the Vir- 
 ginia Act. All the restrictions imposed by the Yirginia Act 
 are retained. 
 
 §614. Same — Mississippi — Alabama.— In 1812 the Mis- 
 sissippi Territory passed a statute which was in effect an adop- 
 tion of the Yirginia statute then in force, but provided for 
 an inquest by a jury of seven freeholders, and omitted the 
 provisions for the protection of navigation and fish ; and this 
 Act was the basis of the present statutes in both Alabama and 
 Mississippi. 1 These changes remain a part of the present stat- 
 ute of Alabama. 2 In 1822 Mississippi adopted a new statute, 
 which restored the protection of navigation and fish, and re- 
 ■quired a jury of twelve freeholders. These provisions are 
 contained in the present statute of Mississippi. 3 The present 
 statute of Alabama requires the court, on the return of the in- 
 quest, to summon the owners of the lands to be affected, to 
 show cause against granting permission ; provides for a hear- 
 ing, and, in effect, a new trial by the court upon the report of 
 the inquest, and " any other evidence; " but if the conditions 
 of the statute are complied with, and none of the forbidden 
 results seem likely to follow, the application must be granted. 4 
 The damages assessed must be paid within three months after 
 the granting of the application ; and a failure herein operates 
 as a revocation of the grant. The payment vests a conditional 
 
 1 Statutes of Mississippi Territory McAllilley v. Horton, 75 Ala. 491; Mc- 
 (Natohez, 1816), pp. 345 et seq.; Miss. Culley v. Cunningham, 96 Ala. 583. 
 Code 1892, §§ 2893 et seq.; St. of 1896, That he has no discretion, see Hen- 
 ch. 127; Tuolmin's Dig., Laws of dricks v. Johnson, 6 Porter, 472. The 
 Alabama, 1823, p. 624. Mississippi statute also requires such 
 
 2 Ala. Code, 1876, part 3, Title 3, parties to be summoned to show 
 ch. 17, §§ 3555 et seq.; 1 Code of 1887, cause, but invests the judge with dis- 
 p. 694, Title 2, ch. 15; 1 Code of 1896, cretion to decide upon all the cir- 
 .§§ 1727 et seq. cumstances. Miss. Rev. Code, 1880, 
 
 ' 3 Miss. Rev. Code, 1824, p. 336, ch. 65 ; §§ 926, 928. It is not necessary that 
 
 Miss. Rev. Code, 1880, oh. 27, §§ 924 the finding should be unanimous. If 
 
 .et seq. their return be signed by a majority 
 
 4 Itisthe duty of the judge to try of the jurors, and otherwise con- 
 
 the cause anew. Rushton v. Martin, forms to the statute, it is sufficient. 
 
 42 Ala. 555. The jurisdiction of the Frost v. Barnes, 47 Ala. 279; and see 
 
 probate judge is special. Folmar v. Austin v. Helms, 65 N. C. 56. 
 JFolmar, 68 Ala. 120; 71 Ala. 136. See 
 57 
 
898 THE LAW OF WATEES. [Ch. XI V*. 
 
 fee of the lands in the applicant, to become absolute on the 
 completion of the works within three years, if begun within 
 one month from the date of the permission. One erecting 
 or enlarging a dam, without authority, is made liable to pay 
 double damages to any one injured thereby, and to prosecu- 
 tion, if the dam proves a nuisance. 1 
 
 §615. Same — Missouri. — The original Missouri statute^ 
 passed in 1823, 2 was substantially a copy of the "Virginia Act 
 then in force. It contained in addition provisions saving th& 
 rights of persons under disability, from forfeiture for non- 
 completion of their Avorks ; and in case of such non-completion 
 within three years, 3 it authorized any other owner on the 
 stream to build works under the Act, having damages to the- 
 former works assessed, and paying them ; imposed a penal lia- 
 bility to double damages on persons maintaining dams with- 
 out authority, and declared such dams nuisances. The present 
 statute 4 is the result of several revisions and amendments of 
 this Act. 5 It describes the procedure minutely, requires the 
 petition to contain a description of the lands to be affected 
 and the works proposed, an abstract of the petitioner's title,, 
 and a etatement of the residences of the persons affected. 
 Such persons are given permission to file objections to the- 
 report and show cause, but the court is not required to sum- 
 mon them before it. The court is given power to prevent the- 
 erection of dams which would injure lawfully existing mills,, 
 upon petition by the owner of such mills. 6 The privilege of 
 
 i Ala. Code (1876), § 3577. 273. The deepening of the water in 
 
 2 2 Rev. Laws of Mo. 1825, p. 587. the channel of a stream is in itself 
 
 3 Huffman v. Vaughan, 72 Mo. 465. no ground for damages. Injury must 
 
 4 2 Mo. Rev. St. 1879, ch. 132, p. 1259 be done to land or property to be 
 et seq.; 2 Rev. Sts. of 1889, p. 1633, ground for compensation. Hook v. 
 ch. 113; 2 id. of 1899, ch. 181. Smith. 6 Mo. 225; contra, see Little 
 
 » Mo. Rev. St. 1835, p. 405 et seq.; v. Stanback, 63 N. C. 285; confer 
 
 2 Mo. Rev. St. 1855, ch. 112, p. 1081 Johnston v. Roane, 3 Jones (N. C.)„ 
 
 et seq. 523; Mcintosh v. Rankin, 134 Mo. 340. 
 
 6 This provision gives a remedy only The verdict maybe objected to by 
 in cases in which » mill or other any person who considers himself- 
 machinery, or a dam which has been injured by the building of the pro- 
 erected in pursuance of the Act, is posed dam, and the court must hear 
 injured by the subsequent erection the evidence offered if relevant. 
 of a dam or obstruction under the Groce v. Zumwalt, 4 Mo. 567. See 
 same Act. Arnold v. Klepper, 24 Mo. Hunter v. Matthews, 12 Leigh (Va.), 
 
§ 616.] 
 
 STATUTORY EEMEDIES. 
 
 899 
 
 maintaining a dam is to cease, in case the dam should obstruct 
 any improvement of navigation undertaken by the State. On 
 failure of the grantee to complete his works in three years, 
 other owners on the stream may take the benefit of the Act 
 " without incurring any liability on account of backing water 
 on such dam." 
 
 §616. Same — Indiana. — The remedy in Indiana is by 
 writ of ad quod damnum, called " writ of assessment of dam- 
 ages," and the statute 1 is based on that of Virginia. It author- 
 izes the taking of land for raceways; describes the procedure 
 minutely j requires all persons affected to be made defendants; 
 provides that, on objection by the defendant to the report, or 
 plea in bar of the right, issues shall be made up, and the case 
 proceed to trial, judgment, and execution as a civil case. In 
 case of an application by any person, after having erected his 
 mill-dam, no damages shall be allowed, and- the application 
 shall be dismissed, unless the case be such that leave would 
 have been given to build a mill, if the application had been 
 filed before the erection of the mill-dam. 2 
 
 228. In Hook v. Smith, 6 Mo. 225, it 
 was held that when conflicting appli- 
 cations 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 in- 
 dividuals. The title of the plaintiff 
 cannot be placed in issue by one not 
 claiming title himself. Arnold v. 
 Klepper, 24 Mo. 273. As to highways 
 obstructed by mill-races, see Swine- 
 ford v. Franklin County, 73 Mo. 279. 
 
 Mad. Rev. St. (1881) § 881 et seq. 
 (Code of Civil Procedure, art. 30); 
 Ibid. (1894), §§ 893 et seq. For the 
 original Act, see Laws of Ind. Ter. 
 (1807) p. 194, closely following the 
 Virginia statute. 
 
 2 This section is new. By former 
 decisions it had been settled that one 
 who erected a mill-dam without first 
 applying for a writ could not after- 
 ward's avail himself of the statute. 
 Smith v. Olmstead, 5 Blackf. 37; 
 Summy v. Mulford, id. 113, 202; 
 
 Miller v. Stowman, 26 Ind. 143. But 
 in Wright v. Pugh, 16 Ind. 106, the 
 statute was held to authorize the 
 writ in every case where the mill 
 was erected prior to assessment. The 
 present statute, § 883, pi. 9, author- 
 izes any person injured by a mill-dam 
 already built, to have the damages as- 
 sessed or the dam declared a nuisance, 
 as the case may require. A dam 
 which has been enjoined as a nui- 
 sance may be rendered legal by pro- 
 ceedings upon the writ afterwards, 
 and a plea to the inquest alleging in 
 bar such former injunction is insuffi- 
 cient. Peck v. Van Rensselaer, 8 
 Blackf. 312. A person applying for 
 leave to build a dam acquires the 
 right, under the permission, only as 
 against those who were notified as re- 
 quired by the statute.and whose lands 
 the jury find will probably be affected. 
 The proceedings are not a lis pendens 
 constituting notice; and actual notice 
 will not bind -persons not notified. 
 Lane v. Miller, 17 Ind. 58. An appear- 
 
900 
 
 THE LAW OF WATEKS. 
 
 [Oh. XIY. 
 
 §617. Same — Iowa. — The first Iowa territorial statute, 
 adopted in 1839, was a copy of the Illinois statute then in 
 force. 1 In 1855 the statute was altered. 2 A copy of the peti- 
 
 anoe in court and objection to the in- 
 quest,onthemeritsmereIy,is a waiver 
 of notice. Wood v. Wilson, 13 Ind. 657. 
 Such appearance waives a formal 
 defect in the oaths of the jurors. 
 Ibid. The assessment of damages is 
 reviewable by the court to which the 
 inquest is returned, and may be set 
 aside if too high or too low, and 
 another assessment ordered. Chap- 
 man v. Groves, 8 Blackf. 309. The 
 question is for the court. Peck v. 
 Van Rensselaer, id. 312. If an issue 
 is raised upon the inquest as to the 
 amount of damages, it must be dis- 
 posed of by the court before an order 
 of confirmation is entered. Wood v. 
 Wilson, 12 Ind. 657. Where a dam 
 had been built before the writ was 
 issued, but damages were assessed 
 without objection, and the court 
 gave judgment on the assessment, 
 and ordered that, on payrnent of 
 damages and costs, the petitioner 
 should "have leave to continue his 
 dam, and to flow said lands as they 
 were flowed by said dam at the time 
 ■of said inquest," it was held that the 
 order was not open to objection by 
 the petitioner for failing to provide 
 for different stages of water at dif- 
 ferent seasons. Chapman v. Groves, 
 « Blackf. 308. 
 
 Illinois.— The Virginia Mill Act 
 was adopted by the Territory of Illi- 
 nois at an early date (Laws of Indiana 
 Territory, 1807, p. 194 (including Illi- 
 nois); 2 Laws of 111. Ter. 1815, p. 456); 
 was re-enacted by the first legisla- 
 ture of the State (Laws of I1L 1819, 
 p. 265); and, with minor changes, re- 
 mained in force until 1872. (Rev. St. 
 1845, p. 378; Gross, 111. St. 1871, ch. 71, 
 p. 442. By the revision of 1827, four 
 ■weeks' notice in writing of the ap- 
 
 plication was required, and notice to 
 owners mentioned in the inquest, to 
 show cause. The protection to navi- 
 gation and fish was omitted. IIL Rev. 
 Laws 1827, p. 297.) By the Act of 
 1872 this method of procedure was 
 abolished, and that authorized by the 
 statute upon eminent domain substi- 
 tuted. This is by petition, and an 
 assessment by a jury of twelve free- 
 holders. (IIL Pub. Laws, 1871-72, 
 p. 563; Rev. St. 1883, ch. 92; anno- 
 tated editions by Starr & Curtis, and 
 by Cothran (1887). For statute on 
 eminent domain, see Rev. St. 1883, 
 ch. 47.) The Act of 1872 requires a 
 publication of notice of application 
 for sixty days, and personal notice to 
 all persons interested, whose resi- 
 dences are known. Provisions pro- 
 tecting existing mills and mill-sites 
 were retained; those protecting 
 dwellings, appurtenances, and gar- 
 dens were omitted. In an action on 
 the case for injury to the plaintiff's 
 mill by the erection of a dam by the 
 defendant on his own land, the 
 plaintiff showed that he had built his 
 dam by permission of court, obtained 
 by proceedings on the writ of ad 
 quod damnum. The court held that, 
 while the defendant had a right to 
 erect a dam upon his own land, he 
 had no right to injure the plaintiff; 
 and that the plaintiff could recover 
 nominal damages on proving flowage 
 of his land. Hill v. Ward, 2 Gilman, 
 285. See 2 Starr & Curtis, Ann. 111. 
 Stats. (2d ed., 1896), p. 2712; Adams 
 v. Miller, 12 111. 27; Spangler uEich- 
 oltz, 25 111. 297; Litchfield Coal Co. 
 v. Taylor, 81 111. 590; Elgin v. Elgin 
 Hydraulic Co., 85 111. App. 182. 
 
 i Iowa Ter. Sts. 1839, p. 343. This 
 was re-enacted in 1843, with addi- 
 
 2 Iowa Laws 1855, ch. 92, p. 151; Revision of 1860, Title 11, ch. 54, art.^, 
 p. 211. 
 
§ 617.] 
 
 STATUTORY REMEDIES. 
 
 901 
 
 tion was required to be served by way of notice ; the ten days' 
 period of notice was restored ; and the clerk of court was re- 
 quired to summon the parties affected to show cause. By the 
 code of 1873, now in force, 1 the applicant is required simply 
 to file his petition, describing all lands and naming all owners 
 likely to be affected, whereupon the clerk issues an order in- 
 cluding a copy of the petition, to be served by the sheriff as an 
 original notice in beginning an action. A jury of twelve free- 
 holders are then summoned, who are authorized to examine 
 witnesses as well as view the premises, and the further pro- 
 ceedings and principal conditions upon which the right is 
 granted are similar to v those in other States in which acts of 
 the Virginia system are in force. The defendants may file 
 written objections to the report, and for proper cause obtain a 
 new jury to re-assess the damages. Either party may appeal 
 to the court where the proceedings are pending for the assess- 
 ment within thirty days, and appeals are tried and disposed of 
 as in civil causes. 2 
 
 tions protecting mills and their ap- 
 purtenances from diversion or injury, 
 under penalty of treble damages. 
 Iowa Ter. Sts. 1843, p. 437. The pres- 
 ent statute provides for single dam- 
 ages. Code 1882, § 1205; Am. Code 
 (1897, p. 669), Title 10, ch. 1. 
 
 'Code 1897, §§ 1921 et seq.; Code 
 1873, Title 10, ch. 1, §§ 1188-1206; 
 Code 1882, Id.; 1 Miller's Annotated 
 Code (1888), p. 413. 
 
 2 Code 1882, §§ 1114, 1254 It is not 
 necessary that proceedings be had 
 before the work is begun. They may 
 be instituted while the work is in 
 progress. Burnham v. Thompson, 35 
 Iowa, 421. But an action will lie at 
 common law for damages caused by 
 the work before the proceedings be- 
 . gan. Watson v. Van Meter, 43 Iowa, 
 76; State v. Close, 35 Iowa, 570; Hunt- 
 ing v. Curtis, 10 Iowa, 152. Compare 
 Indiana Statute, supra. The petition 
 need not be verified. Signature by 
 counsel is sufficient. Gammell v. Pot- 
 ter, 2 Iowa (Cole's ed.), 562. Under 
 the later statutes, notice may be 
 
 given to the defendant after the pe- 
 tition has been filed, provided it is 
 given in sufficient time. Hoag v. 
 Denton, 20 Iowa, 118. Under the 
 former statute notice was required 
 to precede the petition. Gammell v. 
 Potter, 2 Iowa (Cole's ed.), 562. 
 Where the first writ is quashed and 
 a second one issues, no further notice 
 is necessary. Burnham v. Thompson, 
 35 Io-^a, 421. The defendant may 
 plead and prove facts tending to 
 show that the granting of the license 
 would be unreasonable or not for the 
 public benefit; but not matters tend- 
 ing only to impeach the finding. The 
 finding is conclusive until set aside: 
 Misconduct of the jurors, and inter- 
 ference with them by the plaintiff, 
 are grounds only for setting aside the 
 inquest. For an improper assess : 
 ment, the remedy is either a motion 
 to set aside or the action for dam- 
 ages not provided for. Gammell v. 
 Potter, 6 Iowa, 548. See Wilson v. 
 Hanthorn, 72 Iowa, 451, as to laches. 
 An order of court overruling a mo- 
 
'902 THE LAW OF' WATEKS. [Ch. XIV*. 
 
 § 618. Same — Michigan. — In 1824, the territory of Michi- 
 gan adopted the Massachusetts Act of 1795 ;' but in 15.28, the 
 portions of the Act relating to flowage, and the remedies 
 therefor, were repealed. 2 In 1865, a new statute was passed, 
 which was precisely similar to that of Connecticut, passed in 
 the preceding year. 3 In 1871, 4 the proviso that the court 
 should add fifty per cent, to the amount of damages found by 
 the committee or jury was repealed. In 1873, 5 the act was 
 revised and amended. The new Act more fully resembled 
 that of Massachusetts. It required the hearing of pleas in bar 
 to precede the inquest, and secured the rights of land-owners 
 who were not residents of the State, and persons under dis- 
 ability. A case arising under it was determined by. the Su- 
 preme Court, in 1876, 6 but in 1877 the Act was held unconsti- 
 tutional. 7 
 
 § 619. Same • — Nebraska. — The statute in force in "Nebraska, 
 which took effect in 1873, 6 is an adoption of the principal pro- 
 visions of the later statutes founded on the Virginia Mill Act. 
 ' Special provision is made for notice to non-resident defendants 
 by publication. In this State it has been held that a mill- 
 owner will not be allowed to increase the height of his dam so 
 as to injure the owner of a mill-site above, who has begun the 
 erection of another mill, 9 and that in proceedings in ad quod 
 
 tion to set aside the verdict and ity, and that the petition must show 
 
 quash the writ is appealable, though that such authority had been ob- 
 
 no judgment has been rendered, tained. 
 
 Burnham v. Thompson. 35 Iowa, 421. 7 Ryerson v. Brown, 35 Mich. 333; 
 
 1 2 Mich. Ter. Laws (1824), reprint, ante, § 214 See 1 Howell's Anno- 
 
 1874, p. 192. tated Stats., ch. 37; St. 1893, ch. 166. 
 
 2 Ibid., p. 699 (1828). As to costs, see Koenigshof v. Spauld- 
 
 3 Mich. Laws of 1865, No. 304, p. 651. ing, 59 Mich. 245. 
 
 * Mich. Laws of 1871, No. 56, p. 67; "Neb. Compiled Sts. 1899 (anno- 
 
 2 Compiled Laws, 1871, ch. 221. tated), ch. 57, p. 795. Upon § 14 of 
 
 s Mich. Laws of 1873, No. 196, p. 486. the statute, see Pierce Mill Co. v. 
 
 « In Fox v. Holcomb, 34 Mich. 298, Kolterman, 26 Neb. 722. 
 
 the case concerned a dam across a 9 Seeley v. Bridges, 13 Neb. 547. 
 
 navigable stream. The State consti- See Newcomb v. Eoyce,-42 Neb. 323. 
 
 tution forbids the damming of such Damages held too remote and uncer- 
 
 streams, except by authority from tain in Bridges v. Lanham, 14 Neb. 
 
 the supervisors of the proper county. 369. As to costs, see Johnson v. Sut- 
 
 The court held that permission of liff, 17 Neb. 423. As to compromise 
 
 court in proceedings under the Act of ad quod damnum proceedings, see 
 
 would not dispense with this author- Culver v. Garbe, 27 Neb. 312. 
 
620.] 
 
 STATUTORY EEMEDIES. 
 
 903 
 
 damnum the damages may include the diminution in value of 
 the part of land which is not overflowed. 1 
 
 § 620, Same— Kansas — Minnesota,— The statutes of Kan- 
 sas 2 and Minnesota 3 closely resemble each other. Their pecul- 
 iarity is in prescribing an order in which the different amounts 
 -of damages assessed shall be paid. The assessments are made 
 by three commissioners, and the method of review is by ap- 
 peal to the court appointing them, upon which issues are made 
 up and the case is tried and heard as a civil case, with the right 
 of further appeal. Actions at common law for damages are 
 limited to be brought within two years from the erection of 
 the dam, 4 and the courts are authorized to suspend proceedings 
 
 1 Sutliff v. Johnson, 17 Neb. 575. A 
 mill-owner injured by an unauthor- 
 ized dam is not restricted to the pro- 
 ceeding by ad quod damnum, but 
 may sue for damages under § 14 of 
 the Code. Kyner v. Upstill, 29 Neb. 
 768. 
 
 2 Kansas Compiled Laws, ch. 66; 1 
 Taylor's Annotated Gen. Stats, p. 1089, 
 ch. 66; Webb's Do. (1897), p. 809, 
 ch. 147. As to the limitation of two 
 years prescribed by § 14, see Hard- 
 csty v. Ball, 43 Kansas, 151; as to 
 ex parte testimony, see Ball v. Hard- 
 «sty, 38 Kansas, 540. 
 
 3 Minn. Sts. 1878, ch. 31; 1 Anno- 
 tated Stats. (1894), ch. 31. The Stat. 
 ■of 1879, ch 74, provides for entry 
 upon the servient estate for repairs. 
 Eights acquired under the statute 
 date from the beginning of proceed- 
 ings. If at that time the petitioner 
 has to any extent made improvement 
 -of the power with the bona fide in- 
 tention to use it as a water-power, it 
 is a "power previously improved," 
 under § 16 of the statute. Miller v. 
 'Troost, 14 Minn. 365. An appeal from 
 the award of the commissioners 
 brings up to the District Court only 
 the question of the propriety of the 
 damages assessed. Therefore, a mo- 
 tion to set aside the order appointing 
 commissioners, is not entertainable 
 
 by the District Court. The appeal 
 lies only after the entry of judg- 
 ment. Turner v. Holleran, 11 Minn. 
 253. The petitioner cannot, after ap- 
 peal and judgment, object to judg- 
 ment in favor of an owner, on the 
 ground that a mortgage on his in- 
 terest, which existed prior to such 
 proceedings, has been since fore- 
 closed, and such owner's interest 
 divested. It will be presumed in 
 such case that damages were as- 
 sessed on the basis of the mortgagor's 
 interest only, and if the party insti- 
 tuting the proceedings omitted on 
 the trial to prove the existence of 
 such mortgage, he must excuse his 
 omission before he can be relieved 
 from the effects thereof. Siman v. 
 Rhoade, 24 Minn. 25. See Dorman 
 v. Ames, 12 Minn. 451 ; Ames v. Can- 
 non Manuf. Co., 27 Minn. 245. The 
 Act must be strictly complied with 
 to give rights thereunder. Akin v. 
 Davis, 11 Kansas, 580. The right of 
 flowage acquired under the statute 
 does not include the right to flow a 
 highway. Venard v. Cross, 8 Kansas, 
 248. 
 
 4 In Thornton v. Turner, 11 Minn. 
 336, it is held that until damage is 
 occasioned the statute does not begin 
 to run. See Eastman v. St. Anthony 
 Co., 12 Minn. 137, 143; Barrows v. Fox, 
 
904 
 
 THE LAW OF WATERS'. 
 
 [Oh. XIY. 
 
 in any action at law begun after the institution of statutory 
 proceedings, until such proceedings are determined. 
 
 § 621. Same — North Carolina. — The Worth Carolina stat- 
 ute 1 differs from those of other States in prescribing two sets 
 of proceedings. The first is begun by petition by the owner 
 or projector of a mill to obtain permission to build the mill 
 and dam and to acquire the land on the opposite side of the 
 stream. The petition is open to objection or answer, issues of 
 fact being tried by a jury ; 2 but if granted, a commission of 
 three freeholders is appointed by the court, whose duties are 
 like those of commissioners under the Virginia Acts (omitting 
 the inquest of damages to lands not taken, and of injuries to 
 navigation and the passage of fish). The court has discretion 
 to permit -either the petitioner or the opposite proprietor to 
 build the mill. The second series of proceedings is in the 
 nature of an action by persons whose property is injured by 
 the dam, to recover compensation, and is begun by summons 
 and complaint, upon which issues of law and fact are tried and 
 determined as in civil actions. 3 If the mill-owner is insolvent 
 
 39 id. 61. This provision does not ex- 
 tend to actions to abate or enjoin a 
 nuisance. Ibid. ; Cook v. Kendall, 13 
 Minn. 324: Thornton v. Webb, id. 498. 
 See Anderson v. Munch, 29 Minn. 414. 
 
 1 Tourgee's Code, with notes, 1878, 
 Part II, ch. 5; 1 Code of 1883, ch. 43 
 and notes; 2 id. ch. 56. See Battle's 
 Code, 1873, ch. 72. For the original 
 Act, .see Act of 1787, 1 Rev. Laws of 
 N. Car. 1821, ch. 122. As to saw- 
 mills in Pamlico County, see Act of 
 February 1, 1889, ch. 52. As to what 
 statutes are now in force, see Hester 
 v. Broach, 84 N. C. 251; Goodson v. 
 Muller, 92 N. C. 207. See State v. 
 Suttle, 115 N. C. 784. In South Caro- 
 lina, see 1 Rev. Sts. (1893), p. 421. 
 
 2 Jones v. Clarke, 7 Jones, 418. See 
 Sumner v. Miller, 64 N. C. 688. 
 
 3 The former statute required a pe- 
 tition (see Mumford v. Terry, 2 Law 
 Repos. 425), a hearing of the petition, 
 including a trial by jury, if neces- 
 sary; the appointment of a second 
 
 commission, to inquire, summon, and 
 hear witnesses, and report; a hear- 
 ing of objections to the report; and 
 on appeal, a trial by jury, of issues 
 made on the report, before reaching 
 judgment. The assessment was to 
 be of annual damages, and to be 
 binding for five years, unless the 
 dam and flowage should be altered. 
 The payments for each year were col- 
 lectible by execution to be sued out 
 on the judgment rendered on the re- 
 port. See Gillet v. Jones, 1 Dev. & 
 B. 339. If the annual damages were 
 found to exceed twenty dollars, the 
 judgment was binding only for the 
 year preceding. Battle's N. Car. Code> 
 1873, §§ 13-18. After the expiration 
 of the five years, the damages for the 
 ensuing year were recoverable only 
 by a new petition. William v. Cana- 
 day, 11 Ired. L. 106. The present 
 statute contemplates the assessment 
 of annual damages, and limits the 
 effect of a finding of above twenty 
 
§ 621.J 
 
 STATUTOKY EEMEDIES. 
 
 905- 
 
 or the judgment cannot be collected, the court ha§ power to 
 order the abatement of the dam or of the portion causing the 
 injury as a nuisance. 
 
 dollars to the preceding year, but has 
 repealed the five-year limit of § 15 
 (Code of 1873, oh 72), without fixing 
 any other limit. 
 
 a. Proceedings to Condemn. — The 
 defendants have a right to appeal 
 from an interlocutory order appoint- 
 ing 'four freeholders. Minor v. Har- 
 ris, Phil. Law, 322. b. In Proceed- 
 ings to Recover Damages. — The act 
 causing injury is a tort. The statute 
 has not changed its character. Wil- 
 son v. Myers, 4 Hawks, 73. The lia- 
 bility for an act by several is there- 
 fore joint and several, and survives 
 against the survivors. Ibid. It was 
 formerly held that the liability did 
 not survive against the heir. Fellow 
 v. Fulgham, 3 Murph. 254. But the 
 executors are liable for their testa- 
 tor's act under the statute. Howcott 
 v. Coffleld, 7 Ired. 24. The mill- 
 owner cannot escape liability by 
 conveying his mill away. Purcell v. 
 McCallism, 1 Dev. & B. 221. Only 
 one whose land is injured can main- 
 tain an action under the statute ; but 
 he may recover for any injury re- 
 sulting from the overflowing of his 
 land. Waddy v. Johnson, 5 Ired. 333. 
 Injury to the health of his family, or 
 healthfuluess of the property, result- 
 ing from such cause, is ground for 
 recovery. Ibid.; Gillet v. Jones, 1 
 Dev. & B. 339. But such injury 
 must result from the inundation of 
 his own land. The plaintiff cannot 
 recover for such an injury resulting 
 from other parts of the mill-pond, and 
 is confined to his allegations. Bridges 
 «. Purcell, 1 Ired. 232. An intermit- 
 tent injury, by flowage at certain 
 seasons, is ground for recovery. 
 Pugh v. Wheeler, 2 Dev. & B. 50. 
 Where flowage is shown, the land- 
 owner is entirely to nominal dam- 
 ages, though no actual damage is 
 
 shown. Wright v. Stowe, 4 Jones, 
 516; Little v. Stanback, 63 N. C. 285. 
 The land-owner is entitled to have 
 the question whether the flowage 
 was an injury submitted to the jury; 
 benefits which the land may have re- 
 ceived from such cause are imma- 
 terial. Kimel v. Kimel, 4 Jones, 121. 
 The land need not be overflowed to 
 constitute an injury. A prevention 
 of drainage is an injury. Johnston 
 v. Roane, 3 Jones, 523. So the rais- 
 ing of the stream within its banks is. 
 an injury. Little v. Stanback, 63 
 N. C. 285. See contra, Hook v. Smith, 
 6 Mo. 225. Possession alone is suffi- 
 cient ground to support a petition 
 for injuries done under the Act. 
 Pace v. Freeman, 10 Ired. 103. A 
 license by the plaintiff's ancestor is 
 no bar to the complaint. It died 
 with' the ancestor. Bridges v. Pur- 
 cell, 1 Dev. & B. 492. So twelve 
 years' delay is no bar. Griffin v. 
 Foster, 8 Jones, 337. On the other 
 hand, one injured by a mill need not 
 wait till the expiration of the first 
 year before bringing his action. But 
 the past damages will be confined to 
 the time during which the injury 
 has existed. Cochran v. Wood, 6 
 Ired. 194. It was not necessary in 
 proceedings to recover damages to 
 serve a copy of the petition. A writ- 
 ten notice of intention, served ten 
 days before filing the petition, was 
 sufficient. Cox v. Buis, 12 Ired. 139. 
 A description of the mill in the peti- 
 tion, as a public mill or a mill for 
 grinding for toll, is sufficient. Little 
 v. Stanback, 63 N. C. 285. The jury 
 appointed to try the issues on the 
 petition for damages had formerly 
 no right to assess the damages; that 
 was the province of the commission. 
 On appeal, the issues on the allega- 
 tions must be submitted to the jury 
 
<*06 
 
 THE LAW OF WATEBS. 
 
 [CH. XIV. 
 
 §622. Same — Tennessee.— Tennessee at first adopted the 
 original North Carolina statute of 17T7; 1 and this statute with 
 only minor changes is still in force. In its present form it 
 provides for the condemnation of the acre upon the opposite 
 side of the stream on which to abut the dam, but makes no 
 reference to compensation for flowage or other damages to 
 lands not takea. The proceedings are begun by petition, upon 
 which a summons issues to the proprietor of the acre ; and at 
 the same time a commission of four freeholders is appointed 
 to lay off and value the acre and report. The court may in its 
 discretion permit either the plaintiff or the opposite proprietor 
 to build the mill. An appeal lies from the order of the County 
 Court to the Circuit Court. 2 The statute contains the Virginia 
 clauses protecting dwellings and their appurtenances, and other 
 mills. 3 
 
 before the damages are inquired into. 
 Jones v. Clark, 7 Jones, 418. As the 
 statute forbids an injury to dwelling- 
 houses, such injuries cannot be in- 
 cluded in the inquest of damages. 
 Burgess v. Clark, 13 Ired. 109. The 
 verdict is conclusive on damages up • 
 to the time when the verdict was 
 rendered. Beatty v. Conner, 12 Ired. 
 S41. The signatures of a majority 
 ■of the commission to the report were 
 sufficient to make it valid. See Frost 
 v. Barnes, 47 Ala. 279, accord. If the 
 dam is altered or taken down, this 
 will be ground for reducing the an- 
 nual damages on a writ of audita 
 •querela. Gillet v. Jones, 1 Dev. & B. 
 539. (See accord, Massachusetts and 
 "Wisconsin cases; supra, on Massa- 
 chusetts Act.) But a temporary or 
 accidental washing out of the dam 
 will not be ground for reducing the 
 damages. Beatty v. Conner, 12 Ired. 
 341. Irregularities previous to the 
 verdict are no ground for dismissing 
 an appeal. The trial must be had at 
 bar in the Superior Court. Harper 
 v. Miller, 4 Ired. 34. An early case 
 held that the jury, on appeal, must 
 meet on the premises. Andrews v. 
 
 Johnson, 1 Law Repos. 272. On ap- 
 peal the Superior Court may permit 
 the sheriff to amend his return of 
 the verdict, so as to set forth that 
 they were sworn on the premises. 
 Harper v. Miller, 4 Ired. 34. Upon 
 § 2036 of the N. C. Code, see Wads- 
 worth v. Stewart, 97 N. C. 116. 
 
 iTenn. St. 1871, ch. 10, §§ 1910- 
 1920. The statute was enacted almost 
 in its present form in 1777. See Rev. 
 Laws Tenn. 1809, ch. 23, p. 101; 1 
 Rev. Laws, N. C. 1821, ch. 122; Code 
 of 1884, §§ 1439, 1524, 2653. As to 
 floating logs, see Acts of 1883, p. 203, 
 ch. 152. See Shannon's Ann. Code 
 (1896), p. 789. ' 
 
 2 The appeal is triable de novo in 
 the Circuit Court, and is not merely 
 for review. Towson v. Debow, 5 
 Sneed, 193. 
 
 3 The Act authorizes such taking 
 only for grist-mills. If the petitioner 
 has any rights by virtue of a con- 
 tract with the owner, he must resort 
 to the ordinary remedies at law and 
 in equity to enforce them, and cannot 
 enforce them in proceedings under 
 the statute. Harding v. Goodlett, 3 
 Yerger, 41. 
 
§ 623.] 
 
 STATUTORY REMEDIES. 
 
 907 
 
 §623. Same — Georgia — Other States. — In Georgia an 
 Act was passed in 1869, 1 extending the provisions of an Act 
 authorizing a railway company to take lands, to all persons 
 desiring to build mills and dams ; but it was shortly after held 
 unconstitutional. 2 In Delaware, 3 Arkansas, 4 Florida, 5 Dakota, 6 
 and Oregon, 7 etc., statutes belonging to the Yirginia- system 
 have also been enacted. 
 
 iGa.Laws, 1869, p. 114. 
 
 2 Loughbridge v. Harris, 42 Ga. 500. 
 See Anderson v. Barksdale, 77 Ga. 86; 
 Gorman v. Trice, 79 Ga. 731 ; Athens 
 Manuf. Co. v. Euoker, 80 Ga. 291; 
 Code (1882), §§ 1462, 2227, 3018, and 
 notes; 2 Code (1895), §§ 3057, 3879, 
 4760, and notes. As to waterworks, 
 see Pub. Laws of 1889, p. 184. 
 
 3 Del. Rev. St. 1852 (ed. 1874), cb. 
 61, p. 348; as amended (1893), p. 520. 
 A separate Act which has been in- 
 corporated with the Mill Act pro- 
 vides that the owner of an upper 
 mill, before voluntarily discharging 
 an unusual quantity of water, is 
 bound to give notice to the mill- 
 owner below, and that for neglect- 
 ing this duty he shall be liable to 
 double damages. Ibid. § 3 (Act of 
 1819). This liability is enforceable 
 
 by an action on the case. Mcllvaine 
 v. Marshall, 3 Har. 1; Rossi). Horsey, 
 
 3 Har. 60. As to highways crossing 
 mill-dams, see Tatnall v. Shallcross, 
 
 4 Del. Ch. 634. 
 
 4 Ark. St. 1874, ch. 95; Digest of 
 1884, p. 921, ch. 106, and of 1894, p. 734. 
 
 5 McClellan's Dig. Laws of Fla., ch. 
 152. 
 
 6 Code of Civil Proc. (1883), p. 193, 
 ch. 39. In North Dakota, see Laws 
 of 1899, ch. 71. 
 
 'Gen. Laws, Oregon, 1874, p. 679 
 (Misc. Laws, ch. 37); 2 Hill's Anno- 
 tated Laws (1892), p. 1626, ch. 59. In 
 New Jersey, see 2 Gen. Stats. (1895), 
 p. 2093. In Ohio, see 2 Bates's Ann'd 
 Stats. (2d ed., 1897), p. 2539. In On- 
 tario, see 1 Rev. Stats. (1887), pp. 1168, 
 1169. 
 
INDEX. 
 
 [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, 335. 
 
 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 con- 
 verted, 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. 
 
 ACCELERATION, 
 
 , of flow of stream, 218a. 
 of subterranean waters, 295. 
 
 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. 
 
910 INDEX. 
 
 ACCRETIONS. See Boundaries. 
 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 channels upon bounda- 
 ries, private and national, 159. 
 upon water rights, 209. 
 and flats, how apportioned between different proprietors, 162-165. 
 title to, under grants, 200, 302, 304a. 
 by prescription, 333. 
 
 ACQUIESCENCE, 
 
 what precludes an action, 349. 
 4 granting an injunction, 527, 530-533, 554. 
 
 effect of, in equity, 213, note, 323. 
 in change of river-bed, 159. 
 silence, when it amounts to, 146, 245, note, 349. 
 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, 96, 232 and note, 248, 296-298. 
 
 ACTION. See Case, Action upon the; Damages; Equity; Evidence; 
 Pleading; Remedies at Law; Trespass. 
 private, when maintainable against public nuisance, 84, 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, 2116. 
 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. See 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. 
 rule as to damages, 96. 
 AD QUOD DAMNUM, 
 
 writ of, when used, 21 and note, 43, 609, note, 616. 
 
INDEX. i 911 
 
 ADRIFT, 
 
 when property is, 25, note. 
 ADVERSE POSSESSION. See Prescription. 
 ALABAMA, 
 
 law as to rivers, 74. 
 
 Mill Act of, 611, 614. 
 ALLUVION. See Accretions. 
 AMENDMENT, 
 
 introducing new cause of action, 421. 
 
 action brought, cannot be changed by, into proceeding under Mill Act, 
 582, 616, note. 
 
 ANCHORAGE. See Mooring. 
 
 a right incidental to navigation, 20, 88. 
 grant of, may convey shore, 28. 
 
 APPORTIONMENT, 
 
 of flats and accretions, 162-165. 
 
 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, 330. 
 the rule in Massachusetts, 227. 
 in the Pacific States and Territories, prior occupation gives prior rights 
 
 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. 
 eminent domain, 241. 
 
'91 2 INDEX. 
 
 APPURTENANCES. See Grants. 
 
 flats pass not as, but as parcel, 37, 169, 177. 
 
 ARBITRATION, 
 
 effect of statutory remedies upon, 580. 
 
 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; Sur- 
 face Water. 
 
 effect of acquiescence in change of a river channel, 159. 
 
 title adfilum aquce, 196. 
 
 water of, when abandoned by discharge into a natural stream, 213, 238, 
 239. 
 
 rights as to the flow of water in, 161, 225, 266. 
 
 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 on neigh- 
 bor, 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 Law. 
 ASSUMPSIT, 
 
 when it b'es, 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 ; Navigation ; 
 Riparian Rights. 
 defined, 41, 45. 
 
 distinguished from shore, 28, 41, 148, note. . 
 
 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. 
 
INDEX. 913 
 
 BANKS OF RIVERS -continued. 
 
 boom companies have no right to use or flow without compensation, 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. 
 BATTURE, THE, 
 
 control of, 99, 157, note, 247. 
 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. 
 
 BENEFITS. See Set-off. 
 BEHRING SEA, 
 
 the arbitration respecting, 5, note. 
 BILLS OF PEACE, 
 
 to prevent multiplicity of suits, 562-568. 
 
 by plaintiff at law, 562-566. 
 
 by defendant at law, 567, 568. 
 BOOMS. See Eminent Domain; Navigation; Riparian Rights. 
 
 authority to maintain, not a defence to action for flowage or for tres 
 pass, 103, 132, 243. 
 
 when a public nuisance, 95, 181. 
 BOUNDARIES. See Grants; Lakes; National and State Bound- 
 aries; Riparian Rights; Rivers; Shore. 
 
 of counties, whether identical with those of the nation or State, 13. 
 
 of towns and parishes, 14, 36, 202. 
 
 burden of proof lies upon individuals who claim the soil beyond the 
 high-water mark of navigable waters, 27, 195. 
 
 meander lines, 69, 76. 
 
 effect upon, of change in channel, 159. 
 
 of alluvial changes, 77, 155, 304. 
 
 rules for apportioning alluvion and flats, 162-165. 
 
 presumably, side lines extend to the water, 181, 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. 
 
 upon lakes and ponds, 79-85, 198, 203. 
 
 what terms limit title to the bank, 197-200. 
 
 if terms doubtful, how fixed, 23, 318, 318a. 
 
 equity jurisdiction to establish, 111, 318a. 
 
914 INDEX. 
 
 BRIDGES. See Municipal Corporations; Navigation; Nuisance. 
 
 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, 
 how authorized, 129-137. 
 
 by implication, 134, note, 137. 
 when indictable, 134. 
 
 statutes authorizing, how construed, 134, 135. 
 toll-bridges, exclusive rights, 118, 136, 144-146. 
 
 BURDEN OF PROOF, 
 
 upon plaintiff to show that a structure near the shore obstructs naviga- 
 tion, 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. 
 as to rivers, 78. 
 
 as to appropriation, 228, 235, note, 241, note, 
 as to reclamation, 241, 247. 
 CANADA, 
 
 law as to rivers, 56. 
 
 as to lakes, 66, note, 82. 
 
 as to floatable streams, 108, note, 111, note. 
 
 CANALS. See Artificial "Watercourses ; Surplus Water. 
 admiralty has jurisdiction over, when, 33. 
 right to ice in, 191. 
 
 opening sluices and flooding mines, 211c. 
 as a boundary, 196, 213. 
 
 State, taking of fee, abandonment, 243, note, 251, 255, note, 
 acts authorizing, generally 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, 370. 
 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, 2116. 
 CHANCERY. See Equity. 
 CHANGE OF USE. See Prescription. 
 CHANNEL. See FlLuy Aqjle. 
 CHARTER, 
 
 as a contract, 136, 146. 
 
INDEX. 915 
 
 CHESAPEAKE BAY, 
 
 is not "high seas," 5, note. 
 CITIES. See Towns. 
 
 waterworks in, and condemnation of land and waters therefor, 341. 
 
 grants by, of exclusive right to supply water, 458, note. 
 
 CIVIL LAW. See Louisiana; Surface 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 considei'ation 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. 
 
 COLORADO, 
 
 appropriation of water in. 228. 
 
 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 jus 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. 
 
916 INDEX. 
 
 CONDEMNATION. See Eminent Domain. 
 CONDITION. See Mill Acts; Statutory Remedies. 
 CONDUITS. See Artificial Watercourses; Prescription; Sever- 
 ance of Tenements. 
 CONGRESS. See Navigation ; State ; United States. 
 CONNECTICUT, 
 
 boundary between, and New York, through Long Island Sound, 5, note. 
 
 title to flats in, 170. 
 
 Mill Act of, 606. 
 
 CONSERVATORS OF RIVERS, 
 duties.of, 91, 115. 
 liability of, 115, 116. 
 
 CONSTITUTIONAL LAW. See Eminent Domain; Fishery; Legisla. 
 ture; Navigation; Statutes. 
 regulation of commerce, 35. 
 obligation of contracts, 458, note, 
 due process of law, 143. 
 compact between States, 35. 
 compensation for property taken, 245. 
 special legislation, 241, note, 
 public use, 241, 247, 248. 
 validity of Mill Acts, 253, 592, note, 607, 618. 
 
 CONSTRUCTION. See Grants ; Statutes. 
 
 CONTINUING INJURY. See Damages; Injunction; Nuisance; Rem- 
 edies at Law. 
 successive actions for, 210. 
 damages, 210, 259. 
 CONTRACT. See Covenants ; Grants ; License ; Specific Performance ; 
 Statutory Remedies. 
 of purchase, as foundation of adverse possession, 338. 
 
 CONVEYANCE. See Grants ; Parol License 
 
 CORNWALL, 
 
 property in mines on the sea-coast of, 10. 
 
 CORPORATION. See Eminent Domain; Franchise; 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 
 
INDEX. 
 
 91T 
 
 COVENANTS. See Easement; Grants; Remedies at Law; Repairs; 
 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. See Arms of the Sea; Private Streams; Rivers. 
 CRIMINAL LAW. See Indictment; Jurisdiction; Larceny. 
 CROWN. See King, 
 CURRENT. See Plow of the Stream. 
 
 necessary element of rivers, 41, 263. 
 
 not necessary to riparian rights, 148. 
 
 acceleration of, 218& 
 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. , < 
 
 as changing right to use streams, 220. 
 
 how different from prescriptive right, 86, 329. 
 
 of miners in the West, 240. 
 
 DAMAGES. See Eminent Domain ; Injunction ; Mttt, 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, 211b. 
 for breach of covenants, 303, 327. 
 • what injury necessary to support action, 208, 214, 221, 401-410. 
 nominal, when recoverable, 211c, 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 plaint- 
 iff, 415-420. 
 permanent injury not presumed, 420. 
 where, upon a single trespass, the act being wrongful, the damages 
 
 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. 
 
918 INDEX. 
 
 DAMS. See Flow of the Stream; Mill Acts; Prescription ; Statu- 
 tory Remedies. 
 defined, 305. 
 
 how authorized, in navigable waters, 33-36. 
 by Congress, 33-35, 130-133. 
 by a State, 32, 34, 35. 
 in unnavigable streams, 110 and note, 
 property in ice forming in mill-pond, 191. 
 in grants, 305, 306. 
 
 DECLARATION. See Pleading. 
 DEDICATION, 
 
 of river bank for landing, 105. 
 
 of stream, as a highway, 109, 111, 143, note. 
 
 in favor of other riparian owners, 159. 
 
 by plat, 260, 307, note. 
 DEED. See Grants ; License. 
 DE JURE MARIS, THE, 
 
 author of, 17, 18. 
 
 authority of, 17, 18, 49 and note. 
 DELAWARE, 
 
 Mill Act of, 623. 
 DERELICT GOODS. See Wreck. 
 
 property in, under the civil law, 3. 
 DETENTION. See Case, Action op the ; Flow of the Stream ; Injunc- 
 tion. 
 
 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, 30. 
 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; Eminent 
 
 Domain. 
 DIVERSION. See Flow of the Stream ; Injunction ; Irrigation. 
 
 actual damage, whether necessaiy to support action for, 208, 214, 401- 
 
 411. 
 to what extent lawful, 213-217. 
 under grants, 317. 
 
 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. 
 
INDEX. 919 
 
 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, 341, note. 
 DRAINAGE. See Surface Water. 
 
 under eminent domain, 312, 241. 
 DRAIN'S. See Artificial Watercourses; Eminent Domain; Prescrip- 
 tion; Severance of Tenements. 
 
 defined, see 41, note. 
 DRIFT-WOOD, 
 
 property in, 192. 
 DRIP. See Eaves-Drip. 
 
 EASEMENT. See Covenants; Grants; Prescription; Quieting Title; 
 Severance of Tenements. 
 
 defined, 299. 
 
 grant of, distinguished from grant of the soil, 29, 332, 333, 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 presum- 
 ably an easement, 101. 
 
 in watercourses, how acquired, 299, 300. 
 
 when a personal right, 300, 301. 
 
 by acquiescence or estoppel, 302, note, 329. 
 
 when implied, in grant, 306, 355, note, 
 from necessity, 362. 
 
 extinguished by unity of possession, 313, 314. 
 
 continuous easements not so extinguished, 314. 
 
 negative, by prescription, 340. 
 EAVES-DRIP, 
 
 liability for, when injuring another, 292, 293, 378, 424 
 
 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, 194, 471. 
 not for watercourse or easement, 471. 
 by lessee, 291. 
 EMBANKING. See Levees. 
 
 against the stream, 91, 160, 161. 
 
 in fresh streams, 160, 161, 213. 
 
 against surface water, 275, 276. 
 
 by prescription, 161. 
 
 title by prescription to the land enclosed, 22. 
 
 not required, for others' benefit, 160, 216. 
 
 expense of, not recoverable, 248a. 
 
 against flowage under Mill Acts, 216, 603, note. 
 
920 INDEX. 
 
 EMINENT DOMAIN. See Ad Quod Damnum; Booms; Legislature; 
 
 Mill Acts; State; Statutory Remedies. 
 
 authority to construct and operate booms and ferries under, gives no 
 
 right to use river banks without condemnation and compensation, 
 
 103, 104 
 
 right in lands taken for public use is presumably an easement, 101, 241. 
 
 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. 
 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 legislature and when 
 
 by the courts, 242. 
 taking, what is, 242, 243, 245. 
 
 what it includes, 256, 257, 258, note, 
 by causing water to percolate into reservoirs, 245. 
 by diversion, fiowage, and pollution, 245, 246. 
 when property taken may be taken for a new use, 255. 
 compensation in such cases, 84, 255. 
 when land is " injuriously affected," 124, note, 211c, 252. 
 compensation, to be made for direct injury by flooding, etc., 103, 136. 
 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 injuries, 84, 172, 244 248a, 249, 588. 
 liability of State agents for such injuries, 248. 
 not necessary, when Congress authorizes taking of State's 
 land under navigable waters, 34. 
 United States may exercise, 242. 
 
 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 railroad 
 
 embankments, 255-260. 
 prospective damages, when recoverable, 259. 
 surface water, 260, 273. 
 sewers and drains, 261, 262. 
 petroleum oil and natural gas, 241, 291. 
 
 EQUITABLE ESTOPPEL. See Abandonment; Acquiescence; Injunc- 
 
INDEX. 921 
 
 EQUITABLE REMEDIES. See Bills op Peace; Equity; Injunction; 
 Quieting Title ; Specific Performance. 
 when taken away by Mill Acts, 579, 580. 
 when not, 583, 586. 
 
 EQUITY. See Bills of Peace ; Injunction ; Specific Performance. 
 when private suit lies against public nuisance, 121-128. 
 when riparian proprietors may join as plaintiffs in bill, 121, 205. 
 jurisdiction in cases of nuisances and purprestures, 21, 168. 
 
 over boundaries, 111, 318a. 
 venue and jurisdiction, 444, 550. 
 
 ESTOPPEL. See Abandonment ; Acquiescence ; Injunction. 
 must be mutual, 210, note. 
 
 EVIDENCE. See Damages. 
 
 usage, denning ancient boundaries, 23. 
 
 parol evidence, to determine ambiguous boundary, 194, 195, 318a. 
 
 opinion of witness as to damages, 210, note, 495, 524. 
 
 in actions for flowage, 209-212. 
 
 proof necessary to support declaration, 481-487, 492. 
 
 , indictment, 549, note. 
 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 injury must correspond with the allegations, 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 Leveltngs. 
 riparian owners 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, 104. 
 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. 
 
'922 INDEX. 
 
 FERRIES — continued. 
 
 liability of keeper, 193, note. 
 
 grants of, and prescriptive rights to, 193, note, 305, 321, 338. 
 
 owner of, not entitled to compensation for injury from governmental 
 
 improvement, 249. 
 when abolished by eminent domain, 255. 
 
 FILUM AQUiE, 
 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 waters forming boundary between State or nations, 57, 
 
 58, 64, 202. 
 in lakes and ponds, 79-85. 
 
 FISHERY, PRIVATE AND EXCLUSIVE RIGHTS OF, 
 kinds of, 183. 
 
 in navigable waters, 24, 184-190. 
 in non-tidal streams, 46, 51, 182. 
 in ponds and small lakes, 79-85. 
 may be granted separate from the soil, 183. 
 not acquired by clearing out a fishing place, 100, note, 
 in tidal river which shifts its channel, 159. 
 by prescription, 22, 183, 184, 189, 331. 
 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, 331. 
 
 in this country controlled by 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. 
 
INDEX. 923 
 
 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 ; Riparian Rights ; Shore. 
 apportionment of, 162-165. 
 
 FLOATABLE STREAMS, 
 
 no common 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 
 
 law as to rivers, 171, note. 
 
 rights in flats, 177. 
 
 Mill Act of, 623. 
 FLOWING LAND. See Case, Action upon the; Eminent Domain: Flow 
 
 of the Stream; Injunction; Mill Acts; Prescription; Remedies 
 
 at Law; Statutory Remedies 
 
 FLOW OF THE STREAM See Appropriation; Mill Acts; Riparian 
 • Proprietors. 
 
 natural right of riparian owners to have it continue without material 
 alteration, 204. 
 
 this right annexed to the soil, and undivisible, 204, 215. 
 
 and js a natural right, not depending upon user, or extinguished by non- 
 use, 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, 211c. 
 
 dam flowing highway or impairing health, 212, 541, 544, 581. 
 
 diversion, 213-217, 374, 534, 536. 
 
 obstruction, 218, 373, 534-537. 
 
 acceleration, 2i8a. 
 
 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. 
 
924 INDEX. 
 
 FORD, 
 
 if rendered useless by a dam, right to is not destroyed, but suspended, 
 
 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. 
 FOULING. See Injunction; Pollution; Prescription. 
 
 FRANCHISE. See Corporation. 
 
 when transferable, 267. 
 
 how forfeited, 144 and note. 
 
 of reclamation, 167, 168, 170, 171. 
 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 taking of land, 241. 
 
 or to settling boundaries in equity, 318a. 
 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, 211c. 
 
 ordinary, what are, 211c, 298. 
 
 duty to construct dam so as to withstand, 298. 
 
 right to open gates or locks in time of, 330. 
 FRONTAGERS, 
 
 rights and liabilities of, as to defences against the sea, 160. 
 
 GAS, 
 
 pollution of water by, 219, 418, note. 
 natural, rights in, 291. 
 GEORGIA, 
 
 property in rivers, 58. 
 Mill Act of, 623. 
 GRANTS. See Boundaries; Covenants; Easement; Frauds, Statute 
 of; License; Prescription; Severance op 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, 318a. 
 
index. 925 
 
 GRANTS— continued. 
 
 by what terms in, the shore passes, 28, 29. 
 
 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, 232, 234 
 
 from the United States, effect upon prior appropriations, 240. 
 
 of watercourse, how construed, 30, 304a. 
 
 of water rights, how construed, 286, 304. 
 
 of waters, ports, etc., 30, 31. 
 
 of a lake suo nomine, 304a. 
 
 of well or spring, how construed, 286, 291, note, 304a, 321. 
 
 of " mill," " mill-site," " dam," " liberty," " privilege," how construed, 305, 
 307, 309. 
 
 of a water-power, 305, note. 
 
 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, 318a. 
 
 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 Pobt. 
 what is a, 4 
 
 legislature may protect, by prohibiting removal of sand from beaches, 
 24 
 
 HARBOR LINES, 
 
 power of a State to establish, 138, 243. 
 effect of, as a grant, 138, 146, 165. 
 HEALTH, 
 
 injuries to, how remedied, 212, 363. 
 by action, 212. 
 by indictment, 212, 581. 
 by information, 84, 212. 
 by injunction, 212, 537, note. 541, 544 
 under Mill Acts, 581, 587, 609, 610, 621, note, 
 when a public canal injuring, is a nuisance, 136. 
 HEIGHT OF DAM. See Dams ; Prescription. 
 
 how fixed under Mill Acts, 509, note, 609, note, 610, 619. 
 increasing, when a new taking, 584, note, 599, note. 
 
926 INDEX. 
 
 HEIR, 
 
 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. See Shore. 
 
 of shore, 27. 
 
 of fresh waters, 41, 45, 203. 
 HIGHWAYS. See Access; Dedication; Navigation. 
 
 over navigable waters by land, what authority required for, 36, 139. 
 
 what waters are, 43, 74, 86, 100, note. 
 - when f ounderous, 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, 
 93a. 
 
 unlawful to encumber by deposits, 97, note, 105. 
 
 surface water in, 261, 277. 
 
 HYDRAULIC MINING, 
 
 right to use water for, 232, note, 566. 
 
 ICE, 
 
 right to travel upon, 111. 
 
 property in, when not harvested, 191. 
 
 in rivers and ponds, 84, 191, 208, 212. 216. 
 causing backwater, 211c. 
 falling from roofs, liability for, 293. 
 
 ILLINOIS, 
 
 law as to rivers, 69. 
 
 as to surface water, 266. 
 Mill Act of, 611, 616, note. 
 
 IMPLIED GRANT. See Grants; Prescription; Severance of Tene- 
 ments. 
 IMPROVING NAVIGATION. See Navigation ; Tolls. 
 
 under authority of Congress, 129, 147. 
 of a State, 35, 133, 143. 
 
 tolls in consideration of, 111, 115, 116, 141-147. 
 
 act authorizing, takes away common-law remedies, 582, 588. 
 
 by municipal corporation; 116-118. 
 
 by individuals, 111. 
 
 assessment therefor, 118. 
 
 effect upon navigable character of streams, 111. 
 INCORPOREAL HEREDITAMENTS. See Easement; Prescription. 
 INDIANA, 
 
 law as to rivers, 71. 
 
 Mill Act of, 611, 616. 
 
INDEX. 927" 
 
 INDIANS, 
 
 grants by, 30, 36. 
 
 commerce with, whether controlled by Congress, 34, note. 
 
 right to appropriate water, 234, 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, 211, 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. 
 INFOEMATION, 
 
 in case of public nuisance, 84, 91, 121, 212, note. 
 
 to protect from purpresture, 21. 
 
 INJUNCTION. See Acquiescence ; Equity. 
 
 against encroachments in navigable waters, 21. 
 
 upon bill by individual, suffering special damage from public nuisance, 
 
 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. 
 insolvency, 511. 
 not for past injury, 512, 
 
 against injuries present and continuing, or threatened, 512-517, 551. 
 to prevent oontinued 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. 
 
 postponing, to protect public rights, 223 and 
 note, 528, 529, 545. 
 
928 INDEX. 
 
 INJUNCTION — continued. 
 
 perpetual, when granted, 525, 528, 529. 
 
 effect 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 con- 
 sidered 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, 639. 
 
 common rights in water, 540. 
 to prevent injury to health from stagnant water, 541. 
 against pollution of wells, 288, 542. 
 
 of streams, 220-223, 510, 542-546, 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 threajtened 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, 223, 561, 562. 
 in lieu of injunction, 223, 561. 
 when decreed to defendant, 561. 
 to prevent multiplicity of suits, 215, 520, 540, 562. 
 
 by bills of peace, 562-568. 
 
 by plaintiff at law, 562-666. 
 
 by defendant at law, 567, 568. 
 INSOLVENCY, 
 
 effect of, as to enjoining, 511. 
 INSTRUMENTAL LEVELINGS, 
 
 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, 62, 64 and note, 202. 
 IOWA, 
 
 law as to rivers, 72. 
 
 Mill Act of, 611, 617. 
 
 IRRIGATION. 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. 
 
INDEX. 929 
 
 ISLANDS — continued. 
 
 in arms of the sea, may, with the mainland, form opposite shores, mak- 
 ing 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, 77, 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 considered, 
 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, and of laws, 112 and note. 
 
 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, 35. 
 
 over the shore, 4. 
 
 over arms and inlets of the sea, 5. 
 national, over citizens when in uninhabited lands, 1. 
 
 effect of legislation as to territorial waters, 16. 
 of admiralty, whether limited by the tide, 4, 8, 66. 
 of Congress, over navigable waters, 33-36, 40. 
 
 JUS PRIVATUM, 
 
 what it includes, 17, 19, 21. 
 
 subject to the jus publicum, 17. 
 
 how far recognized in this country, 18, 20, 32. 
 
 remedies, 21, 93, 168. 
 
 JUS PUBLICUM, 
 
 what it includes, 17, 24. 
 how infringed, 21, 92. 
 remedies, 21, 121-128. 
 59 
 
930 IHDEX. 
 
 KANSAS, 
 
 law as to rivers, 76. 
 
 MiU Act of, 620. 
 KENTUCKY, 
 
 law as to rivers, 62. 
 
 MiU Act of, 609, note, 611, 612. 
 
 KING. See Grants; Peeeogative; Purprestube. 
 power over ports, 4. 
 as to tolls, 141. 
 as to fisheries, 189. 
 property in tide waters, 4, 17, 18, 42. 
 in the sea, 4-21. 
 in the shore, 4-6, 9, 10, 16, 19. 
 within the realm, 4-6, 16, 19. 
 in wreck, 6, 192. 
 duty to protect the realm from the sea, 24. 
 may authorize or arent a purpresture, 21, 93, 167. 
 cannot sanction a public nuisance, 21, 93. 
 
 foundation for private title of, in bed and shores of tide waters, 17, 
 note, 19. 
 LACHES. See Acquiescence. 
 
 LAKES, 
 
 denned, 41, 79. 
 
 are private property in England, 80, 81. 
 no presumption that soil of, belongs to the Crown, 19. 
 when large, are public property in this country, 82-85. 
 so of Lake Champlain, Lake Winnipiseogee and the Great Lakes, 82, 82a. 
 are private, when not useful for navigation, 83, 85. 
 extent of the public right in streams emptying into, 56, 82. 
 title to great ponds in Massachusetts, 84, 198. 
 
 under the Congressional surveys, are public property when large and 
 navigable, 82a, 85. 
 - boundaries upon, 79-85, 198, 203. 
 dams at outlets, 84, 203, 594, note, 601, note. 
 LANDING PLACE. See Dedication. 
 
 public right to, by prescription, 37, 105, 106. 
 
 acquired by extending public highway to navigable- 
 waters, 103, 106, 119. 
 a town cannot condemn a private wharf or landing for a town way, 104. 
 
 LANDLOED AND TENANT. See Use and Occupation. 
 
 mooring without license does not create this relation, 120, note. 
 
 relative rights as riparian proprietors, 148, 156, 185, 213, note. 
 
 tenant cannot set up that the leased structure obstructs navigation, 121- 
 
 when tenant may disseise landlord, 37, note. 
 
 breach of covenant for quiet enjoyment, 295, note, 451-469. 
 
 rights under Mill Acts, 597. 
 
 liability for continuing nuisance, 113, 388, 391, 392. 
 
INDEX. 931 
 
 LARCENY, 
 
 of property lost in the sea within three miles from the shore, 9. 
 
 of stored water, 236. 
 
 of shell-fish, 189. 
 
 of seaweed, 35, note. 
 LATERAL SUPPORT, 289. 
 LAUNCHING, 
 
 care required in, and notice, 96, note. 
 
 LEASE. See Landlord and Tenant. 
 of fishery, 185. 
 
 LEGISLATURE. See Constitutional Law; County; Eminent Domain; 
 Mill Acts; Navigation; State; Statutes. 
 
 power over fisheries, 187-189. 
 
 over the three-mile belt seaward, 15, 16. 
 
 how far its Acts are a protection, 92, 223. 
 
 of Territory, power of, 40. 
 
 power of, as to regulation of mining, 240. 
 LEVEES. See Banks op Rivers; Batture, The. 
 
 when constructed, are artificial banks, 138, 157, 298, note. 
 
 construction of, by eminent domain, 241, 247. 
 
 taxation for erection of, 247. 
 LICENSE. See Easement; Grants. 
 
 parol, effect of Statute of Frauds, 321, 322, 324, 576. 
 when valid, 321, 322, 496, 540, note, 578. 
 
 rights acquired under, need not be exercised to their full extent, 322. 
 
 when revocable, 323, 324. 
 
 protects acts done prior to revocation, 323. 
 
 effect of part performance, 323, 324, 578. 
 
 cannot be assigned, 324. 
 
 abandonment, 324. 
 
 specific performance, 323, 578. 
 
 to flow, after revocation, does not preclude petition under Mill Act, 606, 
 note, 621, note. 
 
 LIGHTS, 
 
 on vessels, regulation of, by Congress or State, 35 and note. 
 
 negligence in displaying, on vessels, 96. 
 
 maintenance of, a consideration for toll, 141. 
 LIMITATIONS, STATUTE OF. See Prescription. 
 
 when it begins to run, in case of flowage. 210, 343, 620, note, 
 in case of diversion, 210, note. 
 
 as to continuing trespasses, 120, note, 210, 412, 603, note. 
 LIS PENDENS, 
 
 whether proceedings under Mill Acts are, 616, note. 
 LOGS. See Booms; Floatable Streams; Rafts. 
 
 if mixed and undistinguishable, when floating, owners become tenants 
 in common, 95, 102, note. 
 
 stranded or unreclaimed, property and liens in, 102 and note. 
 
 regulation of floating, by State, 34, note, 35, 108, note. 
 
 obstructing navigation, 90, 98, note. 
 
932 INDEX. 
 
 LOUISIANA. See Batture, The; Civil Law. 
 
 levees, 157, 247, 298, note. 
 
 navigability of Red Pass, in, 178, note. 
 LOW-WATER MARK, 
 
 of tide waters, 27. 
 
 under Massachusetts Colony ordinance of 1647, 169. 
 
 of fresh rivers, 41, 45. 
 
 of lakes and ponds, 79-85, 203. 
 MAINE, 
 
 law as to flats, 169. 
 
 Mill Act of, 601-603. 
 
 MALICE, 
 
 as affecting right of riparian owners to use the stream, 206, 210, note. 
 
 effect of, upon right to withdraw percolating waters, 290. 
 MANDAMUS, 
 
 when it lies, 472-474 
 MANOR. See Fishery ; Shore. 
 
 the shore may be parcel of, 21, 22. 
 
 acts of ownership to show extent of grant of, 22, 23. 
 
 lord of, right to wreck, 22, 24, note, 
 to seaweed, 22, 25. 
 to punish purpresture, 22. 
 in a port, 4 and note. 
 MANUFACTORIES. See Mill Acts ; Pollution. 
 MARINE GROWTHS. See Seaweed. 
 MARRIED WOMAN. See Dower. 
 
 disability, 331. 
 
 husband as agent of, right to accretions, 155, 156. 
 MARYLAND, 
 
 oyster fisheries, 38. 
 
 flats, 176. 
 
 jurisdiction over the Potomac river, 61, note. 
 
 MASSACHUSETTS. See Mill Acts. 
 
 territorial limits of, seaward, 16 and note. 
 
 title to flats, under the ordinance of 1647, 27, 31, 169. 
 
 what is low-water mark under this ordinance, 27, 169. 
 
 title to great ponds under this ordinance, 84. 
 
 right to take ice from such ponds, 191. 
 
 rights in watercourses by priority of occupation, 227. 
 
 proceedings to abate nuisance, 368, note. 
 
 Mill Act of, 591, 594-600. 
 
 the Massachusetts System of Mill Acts, 594-608. 
 MEANDER LINE, 
 
 not a boundary, 76-78, 85. 
 
 MEXICO, 
 
 jurisdiction of, seaward, 9, 16, note. 
 
 MICHIGAN, 
 
 law as to rivers and lakes, 75, 85. 
 Mill Act of, 618. 
 
INDEX. 933 
 
 MILL. See Dams; Flow of the Stream; Riparian Eights. 
 
 what it conveys in grant, 305-309. 
 MILL ACTS. See Health; Statutory Remedies. 
 validity of, 253, 591, 592, note, 607, 618. 
 as taking away remedies at common law, by abatement and in equity, 
 
 579-581. 
 whether they protect from indictment, 581. 
 action begun cannot be changed by amendment into a proceeding under 
 
 the statute, 582. 
 the common-law remedies continue in force as to injuries not authorized 
 
 by the act, 583. 
 so as to injuries unforeseen and unprovided for, 587. 
 so as to injuries by persons proceeding under such statutes, but acting 
 
 in excess of their authority, 584, 585. 
 or negligently and in abuse of the statutory powers, 589. 
 mill-owner liable as a wrong-doer, if the conditions of the Act are not 
 
 performed, 585, 586. 
 breach of statutory condition as to compensation, 586. 
 remedy of, for compensation not cumulative, 582. 
 remedies upon contracts and by arbitrations not usually affected by, 
 
 590. 
 repeal of, makes future acts thereunder tortious, 591. 
 have no extra-territorial force, 593. 
 
 whether they extend to navigable waters, 110, 584, 598, note, 608-611. 
 the Massachusetts system, 592-608. 
 
 gives no title to the land flowed, 216, 591. 
 
 the complaint, 595-600. 
 
 who may be complainants, 595, 596. 
 
 respondents, 597. 
 description of the land injured, 598. 
 mode of trial, 599., 
 new complaint, 600. 
 defences, how pleaded and tried, 599. 
 damages, 599, note, 603. 
 
 prescriptive rights of flowage under this system, 227, 253, 602. 
 substantially followed in Maine, 601. 
 
 Wisconsin, 586, note, 691, 601. 
 Rhode Island, 604. 
 New Hampshire, 586, note, 605. 
 Connecticut, 606. 
 Vermont, 607. 
 Pennsylvania, 608. 
 the Virginia system, 587, 592, 609-623. 
 
 remedy by adaptation of writ of ad quod damnum, 609, 616. 
 
 the Virginia statute, 609. 
 
 gives title to the land flowed, 609, 614 
 
 jurisdiction over proceedings must appear in record, 585, 611. ,, 
 
 substantially followed in Kentucky, 612. 
 
 West Virginia, 613. 
 
 Mississippi and Alabama, 611, 614 
 
 Missouri, 615. 
 
934 INDEX. 
 
 MILL ACTS — continued, 
 the Virginia system, 
 
 substantially followed in Indiana, 616. 
 Iowa, 617. 
 
 Illinois, 611, 617, note. 
 Michigan, 618. 
 Nebraska, 619. 
 Minnesota and Kansas, 630. 
 North Carolina, 621. 
 Tennessee, 622. 
 
 Georgia, Delaware, Arkansas, Florida, and 
 Oregon, 623. 
 
 MINES AND MININC See Appeopeiation. 
 under the sea, property in, 10 et seq. 
 
 whether open to location under ruining laws, 36, note, 
 appropriation of water for mining in the Pacific States and Territories, 
 
 232, 233, 237. 
 under the Act of Congress of July 26, 1866, 240. 
 
 right to take land by eminent domain for roads leading to, for machin- 
 ery or ditches, 241. 
 subterranean, duty as to percolating and other waters in, 294-296. 
 
 remedy by injunction, 295, 548. 
 customs of miners, how far valid, 240, 560, note, 
 hydraulic mining, 566. 
 
 MINNESOTA, 
 
 laws as to rivers, 76, 77. 
 Mill Act of, 620. 
 
 M ISREPRESENT ATIONS, 
 
 upon sale of water privilege, effect of, 325, 326. 
 MISSISSIPPI, 
 
 law as to rivers, 63, 64. 
 
 Mill Act of, 611, 614. 
 MISSISSIPPI RIVER, 
 
 as a boundary between States, and riparian rights upon, 68, note, 73, 
 75, note, 202, note. 
 MISSOURI, 
 
 law as to rivers, 73, 76. 
 
 Mill Act of, 611, 615. 
 MOORING, 
 
 right of, as incident to navigation, 92, 95, 97, 154 
 
 overlapping adjoining wharf, 96, 154. 
 
 use of banks for, 98, 99. 
 MORTGAGES, 
 
 right to accretions under, 156. 
 
 mortgagee in possession of mill, entitled to damages, 211&, 381, 419, note. 
 
 in eminent domain proceedings, mortgagor entitled to compensation, 243. 
 
 rights of mortgagor under Mill Acts, 595, 620, note, 
 of mortgagee under same, 597. 
 MOTIVE. See Malice. 
 
 of purchaser, when material, upon bill for injunction, 220, note. 
 
index. 935 
 
 MUNICIPAL CORPORATION. See Highways; Towns. 
 
 whether liable to cleanse port, 98, note. 
 
 when liable to indictment, and when to action, for neglect of duty, 116. 
 
 when for sewers, etc., obstructing navigation or access, 92, 123, 152, 
 261, note. 
 
 powers of, as to wharves, toll-bridges, and ferries, 117, 118. 
 
 as to abatement of nuisances, 128, note, 138, note, 149, note. 
 
 cannot obstruct navigation without express authority, 139. 
 
 right to accretions, 157. 
 
 powers over fisheries, 188. 
 
 duty to provide culverts and passage-ways for water, 256, 257, 260. 
 as to surface water, 260-262, 272, 546. 
 as to sewers and drains* 260-262, 546. 
 
 injunction to prevent pollution by, 223, 545, 546. 
 NARROW SEAS. See Sea. 
 NATIONAL AND STATE BOUNDARIES. See Jurisdiction. 
 
 power of Congress over waters forming, 34. 
 
 power of a State over same, 35 and note, 242. 
 
 whether three miles seaward an external coast, 7-1 6. 
 
 effect of alluvion and changes in channel, 155, 158, 159. 
 
 boundary river, title to thread, 202. 
 
 diversion from, 202, note, 240, note. 
 
 effect of grant by one nation owning territory on both sides of a river, 
 and bounding upon the stream, 64, note, 202. 
 NATURAL GAS, 
 
 property in, 291. 
 
 right of eminent domain as to, 241, 291. 
 NATURAL STREAM. See Flow of the Stream; Percolating Waters; 
 
 Rivers. 
 NATURAL WANT, 
 
 what is, 205. 
 
 irrigation is not, 205, 217. 
 NAVIGABLE WATERS. See Boundaries; Bridges; Riparian Rights; 
 Tide Waters. 
 
 what are, 42, note, 43, 48, note, 54, 57, 72, 86. 
 
 include floatable streams, 107-110, 608. 
 
 made such by improvements, 111. 
 
 of the United States, what are, 31 
 
 declared such by statute, 65, note, 67, note, 75, 78, 111, note, 608, note. 
 NAVIGATION. See Admiralty; Riparian Rights; Tide Waters; Tolls. 
 
 rules of, upon the sea, established by civilized nations, 1. 
 
 a common right, 17, 21, 86. 
 
 purpose of, immaterial, 86. 
 
 whether an easement, 55. 
 
 cannot be impaired by the Crown, 21, 93. 
 
 but may be by the Legislature, 21, 32. 
 
 includes the right to anchor, or to lie aground for the tide, 20, 95. 
 
 extends to high-water mark, 27, 42. 
 
 even at low tide, 20, 26, 87. 
 
 relative powers of Congress and State Legislatures over, 33-35, 129-132. 
 as to bridges, 35, 129-132. 
 
936 INDEX. 
 
 NAVIGATION — continued. 
 
 relative powers as to dams, 35, 130-132. 
 
 as to navigable waters in Territories, 40. 
 as to improving or obstructing navigation, 34, 35, 129, 
 130. 
 ordinance of 1787, 68, 133. 
 
 exclusive rights of, when State may grant, 36, 142. 
 by what terms they pass, 36. 
 
 individuals cannot acquire by prescription, 86, 121, 
 note, 
 right of, in navigable fresh waters, 52, 53, 55, 86. 
 
 acquirable by the public by prescription or dedication, 
 121, 143, note, 
 gives no right to take fish or stones from private streams, 93a. 
 superior to common right of fishery, 87, 180. 
 
 or passage across navigable waters by ferries 
 or bridges. 88. 
 is to be exercised with proper regard to private rights of shore owners, 
 
 of fishery, etc., 88-90. 
 public nuisances from obstruction of, 91-94, 140. 
 unlawful to obstruct by rubbish, 93. 
 includes right to moor or anchor, and to temporarily and reasonably 
 
 obstruct the channel, 95-98. 
 effect on owner's liability of abandonment of vessel or Works causing 
 
 injury, 90, 98. 
 floatable streams, 107-110, 608. 
 
 effect of local, temporary, or periodical obstructions, 111. 
 presumption and judicial notice of navigability, 112. 
 defective wharves and docks, 113, 114 
 tolls and charges, 115-120. 
 remedies against obstructions to, 121-128. 
 harbor lines, 138. 
 municipal corporations, etc., cannot obstruct without express authority, 
 
 139. 
 tolls, 35, 141-147. 
 NAVIGATORS, 
 
 when may maintain suit for delay by public nuisance, 92, 126, 127. 
 rights under Mill Act of Pennsylvania, 608. 
 NEBRASKA, 
 
 Mill Act of, 611, 619. 
 
 NECESSITY, 
 
 easement of, 314, 355, 360, 362. 
 
 as foundation for implied grants, 306, 362. 
 
 public access to sea for bathing, etc., not a right of, 26, 104 
 
 NEGLIGENCE. See Acquiescence ; Repairs. 
 in navigating vessels, 88-90. 
 
 as to riparian owners, 89, 90, 98. 
 
 as to other vessels, 96-98. 
 
 as to rights in subjacent soil, 88, 92. 
 
index. 937 
 
 NEGLIGENCE — continued 
 
 on the part of companies and trustees to improve navigation, 108, note,. 
 115. 
 
 in protecting property overflowed or injured, 211a, 2116, 220, 364. 
 
 in maintaining artificial ditches, 232. 
 
 in maintaining reservoirs and dam, 296-298. 
 NETS. See Seine. 
 NEVADA. 
 
 appropriation of water in, 228. 
 
 NEW HAMPSHIRE, 
 rights in flats, 169. 
 in lakes, 84 
 law as to surface water, 265. 
 
 as to percolating water, 281, 296. 
 Mill Act of, 586, note, 605. 
 
 NEW JERSEY, 
 
 rights in flats, 171. 
 
 drainage of low lands, 212. 
 
 law as to surface water, 265, 268. 
 NEW YORK, * 
 
 boundary between, and Connecticut, through. Long Island Sound, 5, note. 
 
 law as to rivers, 57. 
 as to lakes, 82. 
 as to flats, 175. 
 
 proceedings to abate nuisance, 368. 
 
 liability for creating nuisance, 390, 394. 
 
 NICHOLAS v. CHAMBERLAIN, 
 rules in, generally approved, 356. 
 
 NON-RIPARIAN PROPRIETORS. See Reparian Proprietors. 
 
 NON-USER See Abandonment ; Flow op the Stream. 
 ferry franchise may be lost by, 193, note. 
 
 NORTH CAROLINA, 
 law as to rivers, 60. 
 wharflng out, 178. 
 MiU Act of, 603, note, 611, 621. 
 
 NOTICE. See Lis Pendens. 
 
 of space left for navigation, 96. 
 to abate a nuisance, 128, 392-395. 
 
 NUISANCE. See Abatement; Continuing Injury; Indictment; Injunc- 
 tion; Navigation; Purpresture; Remedies at Law. 
 public, by encroaching upon navigable waters, how distinguished from, 
 purpresture, 21, 93, 167, 168. 
 not justifiable by prescription, 22, note, 121, 532. 
 whether a structure is, a question of fact, 21, 92. 
 pro tanto, when in excess of statute, 92, 134, note, 548, note. 
 
'938 INDEX. 
 
 NUISANCE — continued. 
 
 public, does not justify wanton, and unnecessary destruction of that 
 which constitutes it, 87, 92, 121. 
 is such, although the structure produces counterbalancing ben- 
 efits to the public, 94 
 how remedied, 84, 121-134. 
 dam flowing highway or impairing health, 212. 
 private, when public nuisance so treated, 121-128, 212, 223, 547, 566. 
 parties liable for continuance of, 387-395. 
 coming to, 219. 
 continuing, 387, 413. 
 
 •OBSTRUCTION. See Flow of the Stream; Navigation. 
 
 OCCUPANCY. See Appropriation. 
 
 OHIO, 
 
 law as to rivers, 70. 
 OHIO RIVER, 
 
 property and jurisdiction in, 62, 71. 
 
 ORDINANCE OF 1787, 
 
 effect of, upon State authority over navigable waters, 68, 133. 
 OREGON, 
 
 rights in flats, 177. 
 
 law as to rivers, 76. 
 
 Mill Act of, 623. 
 
 OYSTERS. See Shell-fish. 
 PARISHES, 
 
 boundaries of, at high-water mark of tide waters, 14, 202. 
 at thread of fresh-water streams, 202. 
 
 the shore is presumably extra-parochial, 22. 
 
 but may be part of a parish by prescription, 22. 
 
 PARLIAMENT. See Legislature. 
 
 powers unlimited, 21, note. 
 
 what acts of, bind colonies, 30, note. 
 
 may sanction public nuisance, 21, 91, 93. 
 PAROL LICENSE. See License. 
 
 PARTIES, 
 
 to action, 222, note, 376-400. 
 
 joinder of, as plaintiffs, 121, 206, 222, 564, note. 
 
 as defendants, 121, 222, 564. 
 plaintiffs in proceedings under Mill Acts, 595, 596. 
 defendants in same, 597. 
 
 PARTITION. See Tenants in Common. 
 
 of lands on either side of a stream, 186. 
 
 of riparian estates and water rights, how made, 315, 316, 349. 
 PENALTIES. See Statutory Remedies. 
 
 PENNSYLVANIA 
 law as to rivers, 65. 
 rights in flats, 173. 
 
INDEX. 939 
 
 PENNSYLVANIA— continued. 
 
 rule as to consequential injuries from public works, 249 and note, 
 law as to surface water, 266, 268. 
 assize of nuisance in, S68, note. 
 Mill Act of, 608. 
 
 PERAMBULATIONS, 
 
 as showing that the shore is part of a town or parish, 22, 37. 
 
 PERCOLATING "WATERS. See Springs; Wells. 
 
 for diversion from watercourse by percolation into reservoirs, compen- 
 sation to be made, 245. 
 
 belong to the realty when flowing in undefined courses, 280, 286, 542. 
 
 rights in, when flowing in defined channels, 281, 286, 542. 
 
 English decisions as to, 283, 284. 
 
 construction of grants and agreements as to, 286, 304a. 
 
 rights in, by prior appropriation, 287, 543. 
 
 effect of mill-pond causing subterranean springs to set back, 287. 
 
 pollution of, 219, 288. 
 
 withdrawal of, causing subsidence of the surface, 289, 295, note. 
 
 effect of malicious motive in exercising rights as to, 290. 
 
 petroleum oil, 291. 
 
 in mines, 294-296. 
 
 injuries from, when escaping from reservoirs, 296. 
 
 injunction to prevent diversion from springs and subterranean streams, 
 536, 542. 
 
 PETROLEUM OIL, 
 
 rights in, beneath surface, 291. 
 PIER. See Wharves. 
 defined, 304a, note. 
 PILOTS, 
 
 laws respecting, by Congress or State, 35 and note. 
 PLAT, 
 
 as a dedication of highway, 260, 307, note. 
 PLEADING. See Amendment; Damages; Evidence; Mill Acts; Que 
 Estate; Remedies; Variance; Verdict. 
 of prescriptive rights, 330. 
 of permanent injury, 420. 
 the declaration, 475-480. 
 
 allegation of possession or title, 475-480. 
 variance, 478. 
 by reversioner, 479, 480. 
 
 allegations and proof of breach, 210, note, 481-487. 
 former judgment, 505. 
 special damages, to be definitely alleged, 486. 
 
 in private suit for injury from public nuisance, 121-134. 
 general issue, 488, 489. 
 plea of license, 489, 496. 
 
 of prescriptive right, 490, 491.. 
 of former judgment, 504, 505. 
 POLICE POWER, 
 
 invading property rights under, 241, note, 247, 363, note. 
 
940 INDEX. 
 
 POLICE REGULATIONS, 
 
 as to harbor masters stationing vessels, 35. 
 as to navigation upon canals, 242, note. 
 POLLUTION. See Action; Flow of the Stream; Health; Injunction; 
 Prescription. 
 injuring fishery, 185, 189, 544 
 sediment causing backwater, 211c. 
 injuring health, 212, 541, 544, 581. 
 what means of pollution wrongful, 219, 544. 
 by cemeteries, 544, note, 
 by cattle, 219, 544, note, 
 by sawdust, 220. 
 by salt water, etc., 219. 
 by changing soft water to hard, 220. 
 to what extent lawful, 220. 
 
 an indictable offence to pollute a public spring, 219. 
 liability, when joint and when several, 222. 
 under grant, 308. 
 
 by prescription, 345, 346, 348, 491, note, 
 of surface water, 278, 546. 
 of percolating waters, 219, 288. 
 case lies for, 375. 
 
 injunction against polluting streams, 220-223, 510, 544-546. 
 
 springs or wells, 542, 544-546. 
 when reversioner may sue for, 379. 
 POND. See Dams; Lakes; Mill Acts. 
 
 meaning of, 79, note. 
 POOL, what passes under in grant, 28, note, 79, note. 
 PORPOISE, are royal fish', 8, note. 
 PORT. See Manor. 
 what is, 4 and notes, 
 how established, 4, 17. 
 dutiable goods to be landed only in, 4, 120. 
 may be granted to a subject, 4. 
 franchise of, may be granted apart from soil, 4 
 in grants does not pass the soil, 30, 31. 
 making of, a consideration for toll, 141. 
 duty to repair, i, note, 141. 
 
 by municipal corporation, 98, note, 
 by prescription, 4, note, 43, 161. 
 PREROGATIVE, 
 sources of, 19. 
 
 for what purposes allowed, 20. 
 PRESCRIPTION. See Abandonment; Acquiescence. 
 as the source of the Crown's prerogatives, 19. 
 subject's rights by, in shore, 22, 23, 37. 
 
 in a several fishery, 22, 183, 184 189. 
 
 in seaweed, 25. 
 
 in wreck, 22, 37. 
 
 against sovereign, 22, 37, 84, 121, 240. 
 
INDEX. 941 
 
 PRESCRIPTION — continued. 
 
 ancient grant interpreted by usage thereunder, 23. 
 rights destructive of the subject-matter not acquirable by, 24, 184, 299, 
 ool. 
 
 as supporting public right of navigation, 52, 53, 55, 121, 342. 
 
 right by, to landings, 105. 
 
 will not authorize a public nuisance, 22, note, 121, 212, 532. 
 
 right to collect toll, acquirable by, 141. 
 
 duty by, to cleanse stream or repair sea-wall, 161. 
 
 right to obstruct passage of fish, 187, 189. 
 
 to ferry, 193. 
 no title by, to another's land flowed by dam, 203, 227, 602. 
 reasonable use of a stream by riparian owners not dependent upon, 204, 
 
 207. 
 rights by, in artificial streams, 225. 
 loss by, of rights acquired by appropriation, 238. 
 eaves-drip, 293. 
 surface water, 279. 
 
 applies strictly to incorporeal hereditaments only, 329. 
 title by, how different from that by grant, 343, note, 351. 
 what time necessary, 329. 
 presumption of lost grant, 330. 
 
 effect of disabilities upon, 331. 
 title by, to land and to easements distinguished, 332, 333. 
 
 strength of, 334, 351. 
 elements in, 334 
 none against a statute, 339. 
 
 or the public, 37, 84, 121, 230, 345. 
 burden of proof to establish, 341. 
 the adverse use must be continuous, 335, 336. 
 
 when treated as continuous, 335, 336. 
 ■must be open and notorious, 337. 
 especially in case of unenclosed property like the shore, 
 
 37. 
 of flash-boards, 337. 
 
 must be as of right, and not permissive, 338, 339. 
 may be restricted by conditions or by negative adverse 
 
 rights, 340. 
 limited to the actual user, 100, 342-344 
 of land, if doubtful in extent, limited by the occupation, 37. 
 in case of mixed possession, seisin follows the legal title, 37. 
 extent of right to flow, how determined, 343, 344 
 right to pollute, 339, 345, 346. 
 rights acquired by, lost by abandonment or acquiescence, 335, 348-351. 
 
 whether lost by parol assent or agreement, 351. 
 when the owner of the servient tenement can insist upon continued 
 
 exercise of the prescriptive right, 225, 340, 352. 
 flowage under Mill Acts without claim of payment, whether evidence of 
 
 a right by prescription, 227, 353, 602, 608, note. 
 proofs in support of, and defense to claim of, 330, 490, 491, 500 -503. 
 
942 INDEX. 
 
 PRESUMPTIONS. See Easement. 
 
 the title to the soil of tide waters as far as high-water mark is prima 
 
 facie in the Crown, 19. 
 as to navigability, 43, 110, note, 112. 
 that purchaser's title to riparian land extends as far as the grantor 
 
 owns, 195, 196. 
 as to courses of percolating waters, 281. 
 
 of lost grant, as foundation for prescriptive rights, 330, 331, 334 
 permanent injury from nuisance not presumed, 420. 
 
 PRIOR OCCUPANCY. See Appropriation. 
 
 rights acquired by, in the sea and uninhabited lands, 1, 25, 30. 
 
 PRIVATE ACTION. See Action; Navigation; Nuisance. 
 
 PRIVATE STREAMS, 
 
 fresh, title ad filum aquae, 46; 56, 58, 69, 75. 
 
 even in States where large fresh rivers are public property, 65, 110. 
 
 unnavigable tidal creeks may be, 21, 195. 
 
 what are deemed unnavigable, 110, 608. 
 
 floatable streams, 107-110, 608. 
 PRIVILEGE, 
 
 meaning of, 25, note, 305. 
 PROFIT A PRENDRE, 
 
 what is, 25, 184. 
 
 how distinguished from an easement, 24. 
 
 right of fishery in alieno solo is a, 85, note, 184 
 
 right to take water from a well is not a, 299. 
 
 when acquirable by prescription, 24, 184, 299, 331. 
 
 PROFITS, 
 
 evidence of, in action for backing water upon mill, 2116. 
 PROPERTY. See Accretions ; Appropriation; Eminent Domain; Ripa- 
 rian Rights; Rivers; Seaweed; Shore. 
 PROSPECT, 
 
 when protected, 128. 
 PROXIMATE AND REMOTE CAUSE, 
 
 injuries by, 296-298. 
 PUBLIC "WATERS. See Admiralty ; Boundaries ; Navigable "Waters ; 
 Navigation ; Nuisance ; Riparian Rights ; Rivers ; Shore ; Tide 
 "Waters. 
 PURCHASER. See Grants. 
 
 rights and liabilities under Mill Acts, 595-597. 
 
 to accretions, 156. 
 enjoyment by, may be counted with vendor's, to make up the period 
 of prescription, 335. 
 
 PURPRESTURE. See Nuisance. 
 what is, 21, 48, 93, 167, 168. 
 may be abated by the Crown, 21, 93, 167. 
 whether a nuisance is a question of fact, 21, 93, 168. 
 
INDEX. 943, 
 
 PURPRESTURE — continued. 
 
 punishment of, evidence of title to shore, 22. 
 
 is not indictable, 21, 167. 
 
 jurisdiction over, in this country, 167, 168. 
 
 remedies against, 21, 167. 
 
 compensation not recoverable for use of wharf which is a, 120. 
 
 does not carry accretions formed thereby, 155. 
 PYER v. CARTER, 
 
 rule in, where followed, 357, 358, 361. 
 where disapproved, 354-360. 
 QUE ESTATE, 
 
 prescription in, 24, 85, note, 184, 330, note. 
 
 pleading in, 24, 85, note. 
 
 QUIETING TITLE, BILL FOR, 
 
 effect of decree for plaintiff, 549. 
 QUOD PERMITTAT PROSTERNERE, 
 
 writ of, 368. 
 RACEWAY. See Artificial Waters. 
 
 whether it passes with mill conveyed, 307. 
 RAFTS. See Floatable Streams. 
 
 meaning of, 608, note. 
 
 navigation by, 89, 107-110, 135, note, 584, 608. 
 
 injunction to prevent injury to dams by, 547, note. 
 
 regulation of, by State, in navigable waters, 34, note, 35. 
 RAILROAD COMPANIES, 
 
 diversion by, as riparian owners, 205, 410, note. 
 
 taking by, of property or rights previously acquired by eminent domain,. 
 255-259. 
 
 when liable for cutting off access, 122, 150, 151. 
 
 passage-ways for water through embankments, duty to provide, 256- 
 258. 
 
 rights as to water acquired by taking, 252, 256-258. 
 
 interference with percolations, 257, 285. 
 surface water, 273. 
 
 RAIN WATER See Surface Water. 
 REALM OF ENGLAND, 
 
 extent of, seaward, 2-16. 
 REASONABLE USE. See Flow of the Stream. 
 
 RECLAIMING. See Embanking. 
 
 stranded property, 102. 
 
 wreck. (See Wreck.") 
 
 waifs, 192. 
 
 flats, 169-178. 
 
 wet lands, 241, 247. , 
 REGINA v. KEYN, 
 
 the rule in, 11-14 
 
 authority of, in this country, 9, 13. 
 
"944 INDEX. 
 
 RELEASE, 
 
 of damages for flowage, 349, 599, note, 
 by prescription, 353, 602. 
 
 RELICTION. See Accretions. 
 
 REMAINDER-MAN. See Reversioner. 
 
 REMEDIES. See Abatement; Action; Case, Action on the; Dam- 
 ages ; Equitable Remedies ; Mill Acts ; Pleading ; Statutory 
 Remedies. 
 
 REMEDIES AT LAW. See Action. 
 
 original private remedies at law, assize of novel disseisin, quod permit- 
 tat prosternere, praecipe quod reddat, assize of nuisance, 368. 
 action of trespass, 369-375. 
 case, 370-375. 
 parties plaintiff, 376-386. 
 
 tenant in possession, 376, 377. 
 reversioner, 376, 378-381, 385, note, 
 parceners and tenants in common, 382, 540, note, 
 between co-tenants, 383, 384, 470. 
 vendors and purchasers, 385. - 
 
 purchaser cannot sue for injury prior to his purchase, 386. 
 parties defendant, 387-399. 
 
 creator of nuisance, 387-391, 399. 
 continuer of nuisance, 387-390, 413. 
 landlord and tenant, 391. 
 
 notice to abate, when necessary to be given to continuer, 392. 
 requisites of such notice, 393, 394. 
 grantee liable, without notice, for new nuisance, 395. 
 tort-feasors, when jointly and when severally liable, 222, 396-398. 
 survival of suits, 400. 
 
 what damage necessary to support action, 208, 214, 401-410. 
 where damage is the gravamen of the action for nuisance, 412-414. 
 exemplary damages, where the wrongful character of the act has been 
 
 judicially determined, 415-420. 
 permanent injuries, 415-420. 
 
 not presumed, 420. 
 where, upon a single trespass, the damages are merely consequential, 
 
 421, 422. 
 in case of continuing trespasses, 423, 424 
 venue and jurisdiction, 425-146. 
 of private actions, 425-431. 
 venue of indictments, 432-435, 443, 443. 
 in equity, 444. 
 
 in the Federal courts, 445, 446. 
 
 where the act is done outside the jurisdiction, 436-441. 
 on covenants, 447-468. 
 
 running with land, 447, 450. 
 respecting water privileges, 448. 
 
INDEX. 945 
 
 REMEDIES AT LAW — continued, 
 on covenants. 
 
 licenses, 449. 
 
 by assignees, 450. 
 ' against incumbrances, 303, 453-455. 
 
 not broken by taking under the right of eminent domain, 456, 457. 
 
 of seisin, warranty, and quiet enjoyment, 458-461. 
 
 particular covenants, 462-468. 
 assumpsit, 469, 470. 
 ejectment, 471. 
 mandamus, 478:474 
 pleading, 475-491. (See Pleading.), 
 evidence, 493-503. (See Evidence.) 
 former judgment, 504, 505. 
 effect of statutory remedies upon, 579-591. 
 
 REPAIRS. See Bridges ; Cleansing Stream. 
 duty to make, 113-116. 
 
 as to wharves and docks, 113, 114. 
 
 as to bridges washed away, 98, 160, note. 
 
 by those receiving toll, 115, 116, 141. 
 
 as to levees, 347. 
 
 obligation to keep mining and agricultural ditches in repair, 233. 
 
 between mill-owners, 328, 366, 367. 
 
 under covenants, 303, 328, 366, 367. 
 right to enter for, when implied in grant, 354. 
 covenant to make, not implied, 468. 
 failure to make, interrupts adverse possession, 336. 
 injunction to restrain interference with, 548, 553. 
 
 REPUTATION, 
 
 as showing that the shore is part of a vill or parish, 22. 
 
 as establishing public right to a landing place by prescription, 37, note. 
 
 RESERVOIR See Artificial Streams; Dams; Mill Acts. 
 duty as to waters collected in, 296-298. 
 
 RESTRICTION. See Prescription ; Presumptions. 
 
 REVENUE, 
 
 protection of, under international law, 11, note. 
 
 Crown's ownership of tide waters a means of protecting, 19. 
 
 REVERSIONER, 
 
 acquisition of prescriptive right against, 331. 
 
 as plaintiff in action for tort, 376, 378-381, 479, 480. 
 
 right to complete works under the Mill Act of Virginia, 609, note. 
 
 RHODE ISLAND, 
 
 jurisdiction over Narragansett Bay, 5, note, 
 territorial limits of, seaward, 16, note, 
 rights in flats, 172. 
 MiU Act of, 604. 
 60 
 
946 INDEX. 
 
 RIPARIAN PROPRIETORS. See Appropriation ; Flow of the Stream ; 
 Riparian Rights. 
 ■who are, 148, 155, note. 
 
 rights of those having contracts for purchase, 156* 220. 
 non-riparian proprietors, who are, and rights of, 224 
 
 RIPARIAN RIGHTS, 
 defined, 148. 
 
 are rights of property, 148. 
 
 the right of access, 149-154 » 
 
 accretions, 155-159. 
 wharfing out and rights to reclaim flats, 160, 167-181. 
 
 no such general right at common law in tide waters, 167. 
 
 under the Massachusetts ordinance of 1647, 27, 169. 
 
 in Connecticut, 170. 
 
 in New Jersey, 171. 
 
 in Rhode Island, 172. 
 
 in Pennsylvania, 173. 
 
 in California, 174 
 
 in New York, 175. 
 
 in Maryland, 176. 
 
 in Florida and Oregon, 177, 178. 
 
 in navigable fresh waters, 110, 179, 180. 
 
 to what extent, 182. 
 rights of fishery, 182-190. 
 property in ice not harvested, 191. 
 wreck, waifs, and drift-wood, 192. 
 ferries, 193. 
 
 RIVERS. See Mill Acts ; Navigation; Private Streams. 
 denned, 41, 45. 
 how distinguished from surface water and subterranean percolations, 
 
 41. 
 tidal, are public property, like the sea, 4, 19, 42, 43. 
 are tidal as far as the water, though fresh, regularly rises and falls with 
 
 the tide, 44 
 bed of, what is, 41, 45. 
 banks of, 41, 45. 
 mouth of, 44, note, 
 boundaries upon, 76, 77, 194-202. 
 
 when unnavigable, are exclusively private property as to the soil and 
 fishing, 46, 61. 
 belong to opposite riparian proprietors ad filum aquce, 46. 
 
 but, under the Acts of Congress as to the public lands, are 
 owned in common, 78. 
 common-law rule as to property in, 46-50, 53-55. 
 the present English rule as to, 51, 52. , 
 relation of our admiralty jurisdiction to, 66, 67. 
 effect upon, of Confederate ordinance of 1787, 68. 
 
 of the system of surveys and grants of public lands, 69. 
 
INDEX. O-j-7 
 
 RIVERS — continued. 
 
 title to navigable fresh rivers, 46-79, 107, 179, 471, note. 
 
 are private property, subject to the public right of navigation, 
 in New England, 56. 
 in New York, 57. 
 
 in Delaware, Maryland, and Georgia, 58. 
 in Kentucky, 62. 
 in Mississippi, 63, 64 
 in Illinois, 69. 
 in Ohio, 70, 71. 
 in Michigan, 75. 
 are public property beyond low-water mark, 
 
 in South Carolina, North Carolina, and Tennessee, 59, 60. 
 in Pennsylvania, 65. 
 in Iowa, 72. 
 in Missouri, 73. 
 in Alabama, 74. 
 under the decisions of United States Supreme ,Court, 66, 67, 76. 
 emptying into lakes, when of same level, are public, 56, 82. 
 when purchaser held to pay for the river bed, 194-196. 
 grant of a " river " does not convey river bed or islands, 31, 166, note, 
 
 304a. 
 as a boundary on fresh waters, " river " means the centre of the stream, 
 196. 
 ROAD. See Highways. 
 ROOF. See Eaves-Drip; Ice. 
 
 projection of, over another's land a trespass, 373, note. 
 ROYAL FISH, 
 
 property of the Crown in, 6, 8, 48. 
 what are, 8, note. 
 ROYAL GRANT. See Grants. ' 
 how restrained, 21. 
 how construed, 23, 31, 36. 
 RUBBISH. See Navigation; Pollution; Saw-dust. 
 
 SALT MEADOWS, 
 meaning of, 28. 
 
 SAND, 
 
 what is, 24, note. 
 
 as synonymous with shore, 28 and note. 
 
 and shingle, property in, upon the shore, 24, 25. 
 
 digging and taking, as evidence of ownership of the shore, 22. 
 
 right to take from another's beach, 24, 25. 
 
 owner not liable for injury by the sea to adjoining land in consequence 
 
 of removal of, 24, 161. 
 removal of, may be prohibited by legislature, 24, 117, note, 161. 
 
 by city ordinance, 117, note. 
 no right to remove, as incident to navigation, 93a. 
 as a source of pollution or deposit, 220. 
 
948 INDEX. 
 
 SAW-DUST, 
 
 causing obstruction or pollution, 220. 
 
 SEA. See Admiralty; Arms of the Sea; Embanking; National and 
 State Boundaries; Navigation; Seaweed; Shore; Tide 
 Waters; Tolls. 
 property in, how acquired, 1-21. 
 sailing rules upon, established by civilized nations, 1. 
 jurisdiction over, 1-20. 
 fishery in, 1, 16. 
 high seas, what are, 4, note, 
 territorial waters, what are, 2, 4. 
 
 jurisdiction over, by sovereign, 2, 15. 
 
 by the State, 35, note, 
 the three-mile belt, 2, 4, 5, 9, 16. 
 title to soil of, 4-6, 9, 10, 19. 
 
 present jurisdiction over, for what purposes, 11, note, 
 the narrow seas, 3 and notes, 8, 9, notes, 10. 
 statutes relating to, 15, 16. 
 
 SEA MANURE, 
 
 no general right to take, 24, 25. 
 custom, to take, when valid, 24, 25. 
 
 SEA-WALL. See Embanking. 
 
 liability to repair by prescription, 161. 
 
 covenant to repair, may run with the land, 161, note. 
 
 SEAWEED, 
 
 when attached to sea bottom, belongs to Crown, 25. 
 when floating, belongs to first appropriator, 25. 
 when washed ashore, is an accretion, 25, 155. 
 reservation of the right to pile on the shore, means what, 29. 
 the public have no general right to take, 25 and note, 
 right to, by prescription, 37. 
 
 whether it shows title to seashore, 22, 37. 
 larceny of, 25, note, 
 trover for, 25, notes. 
 
 SECRETARY OF WAR, 
 . approving bridges, 129. 
 
 SEINE, 
 
 lawful to fish with, 38. 
 no right to dry or use on another's land, 100. 
 drawing, in another's fishery actionable, 182. 
 regulation of use of, by legislature, 189. 
 
 SERVITUDES, 
 
 by prescription, 329-358. 
 
 under the civil law, as to surface water, 266, 268, 273, 276. 
 
 use of river banks, 99. 
 
INDEX. 949 
 
 SET-OFF, 
 
 of benefits against injuries, 94, 220. 
 SEVERAL FISHERY. See Burden of Proof; Fishery. 
 
 does not merge on being resumed by the Crown, 183, note. 
 SEVERANCE OF TENEMENTS, 
 
 easements necessary to the enjoyment of the granted premises pass by 
 implication, 306, 354. 
 
 tbe grantor must expressly reserve those which he wishes to retain in 
 or over the granted premises, 306, 354, 357, 358. 
 
 contra, under the French law and in New Jersey, 361. 
 
 what implied grants favored, 355. 
 
 the easement, in order to pass by implication, must be open and con- 
 tinuous, 355, 360. 
 
 the rule in Nicholas v. Chamberlain, 356. 
 
 simultaneous and non-simultaneous grants, 359, 360. 
 
 necessity, not convenience, the ground upon which the implication de- 
 pends, 306, 362. 
 SEWAGE. See Municipal Corporation. 
 
 injunctions, 220, 223, 270, 546. 
 
 eminent domain, 261, 262. 
 SHELL-FISH. See Fishery. 
 
 public right to take, 20. 
 
 private rights, 190. 
 
 what this includes, 24 
 
 taking, does not show a disseisin, 37. 
 
 larceny of, 189, 190. 
 
 disturbance of bed, as incident to navigation, 20, 26, 87. 
 
 planting of, when a public nuisance, 92. 
 SHORE. See Boundaries; Navigable Waters; Navigation; Sand; 
 Tide Waters. 
 
 limited by the ordinary high and low-water marks, 4, 27. 
 
 in grants, meaning of, and under what terms it passes, 28, 29. 
 as a boundary, 199. 
 
 belongs to the Crown at common law, and in this country to the State, 4 
 
 so of the products of the shore, 6. 
 
 is presumably extra-parochial, 14 
 
 but may be part of vill or parish by prescription, 22. 
 
 disseisin of, how proved, 37. 
 
 does not pass under a grant of wreck, 6. 
 
 grant of, does not convey wreck, without express words, 6. 
 
 what words are synonymous with " shore " in grants, 28, 29. 
 
 Crown, or State legislature, may regulate the use of, 24 
 
 present control over, in England, 21, note. 
 
 belongs to littoral owners in Massachusetts and Maine, under the ordi- 
 nance of 1647, 27, 169. 
 
 rights of such owners in, in other States, 170-181. 
 
 SIC UTERE TUO, 
 
 this maxim, how applied, 24, 186, 206, note, 284 
 
950 INDEX. 
 
 SNOW. See Ice. 
 
 liability of horse-railroad company for obstructing gutters by, 296, note. 
 
 SOUTH CAROLINA, 
 law as to rivers, 59. 
 wharfing out, 178. 
 
 SPECIAL DAMAGE. See Nuisance. 
 
 SPECIFIC PERFORMANCE, 
 
 of contracts and covenants relating to water, 569-578. 
 
 to prevent repeated and vexatious breaches, 569. 
 
 to supply water to a mill, 569. 
 
 of covenant for quiet enjoyment, 569. 
 the contract must be in clear and definite terms, and free from fraud, 
 570. 
 
 not against public policy, 571. 
 
 containing option, 570. 
 bill for reformation and specific performance, 570. 
 
 causing inconvenience to public, 571. 
 
 continuing, 572. 
 
 must be mutual, 573. 
 
 must not have become impossible or useless, 574 
 
 where a forfeiture may be declared, 574. 
 
 providing for extensive works, 575. 
 of covenants running with the land, 576. 
 of oral contracts, 577. 
 of parol licenses, 333, 578. 
 as to acts beyond the jurisdiction, 441, note. 
 SPRINGS. See Percolating Waters. 
 
 when compensation allowed for destruction of, 65, 252. 
 
 flowage of, 65, 249. 
 
 diversion injuring, 212. 
 
 protected under certain Mill Acts, 611, note. 
 
 meaning of, in grant, 286, 291, note, 304a. 
 
 STATE. See Eminent Domain; Grants; Legislature; Navigation; 
 Rivers; United States; Vessels. 
 
 seaward jurisdiction of a, 13, 16, note. 
 
 succeeded, at the Revolution, to the Crown's interests in tide waters 
 within its limits, 32. 
 
 and to the powers of Parliament as to them, 32. 
 
 did not cede this property to the United States, 32. 
 
 powers of, how affected by the Federal Constitution, 33-35. 
 
 grants by, in navigable waters, how construed, 36. 
 
 a grant of the soil of such waters does not authorize obstructing navi- 
 gation, 36. 
 
 rights against, in navigable waters, acquired by prescription, 37. 
 
 have exclusive control of public right of fishery, 38. 
 
 may grant soil or fishery in navigable waters, 36. 
 
 rights of new States in their navigable waters, 39. 
 
 cannot condemn beyond its own limits, 35, 242. 
 
INDEX. . 951 
 
 STATUTE OF FRAUDS. See Frauds, Statute op. 
 
 STATUTE OF LIMITATIONS. See Limitations, Statute op. 
 
 STATUTES. See Grants ; Mill Acts ; Statutory Remedies. 
 relating to national jurisdiction seaward, effect of, 15, 16. 
 declaring streams navigable, 39, 65, note, 67, note, 78, 111, note, 
 construction of, when authorizing obstructions to navigation, 132, 134, 
 137. " 
 when conveying the soil of navigable waters, 36. 
 when authorizing collection of tolls, 144, 145. 
 authorizing obstruction of navigation, a defense against indictment, 132, 
 136, 243. 
 not against action for flowing, 132, 243, 584, note, 
 enactment of a general law does not repeal a prior special act, 146, 
 
 note, 
 for regulation of fishing, are public, 189. 
 repeal of Mill Act, effect of, 591. 
 under right of eminent domain, not presumed to authorize taking of the 
 
 fee, 101, 241. 
 have no extra-territorial force, 443, 593. 
 when obnoxious to constitutional provisions as to contents, and as to 
 
 containing more than one subject, 145, 189, note, 
 prescriptive rights not acquirable against, 339. 
 
 STATUTORY REMEDIES. See Mill Acts ; Statutes. 
 
 when exclusive of common-law remedies as to compensation for injuries 
 
 from public works, 121, 250. 
 when damages are included in the assessment, 252. 
 validity of Mill Acts, 253. 
 if the stafute provides no remedy, common-law remedy to be pursued, 
 
 582. 
 what, take away the usual remedies, 579-582. 
 
 effect of acts authorizing the taking of streams for canals or for improv- 
 ing navigation, 582. 
 how far they protect from indictment for obstructing a public right, 
 
 132, 243. 581. 
 whether Mill Acts give such protection, 581, 584. 
 
 common-law and equitable remedies are not taken away, as to injuries 
 caused before the proceedings began, 617, note, 620. 
 nor as to injuries not authorized by the statute, 583, 588. 
 or in excess of the authority conferred, 584, 609, note. 
 or trespasses committed in erecting the works, 585. 
 or injuries resulting from failure to comply with the act or in 
 
 abuse thereof, 586, 589. 
 or for injuries unforeseen and unprovided for, 587. 
 or as to rights by contract, 590. 
 
 or by a statute making the obstruction of a private stream in- 
 dictable, 121, note. 
 or imposing a penalty, 121, 187, note. 
 
952 INDEX. 
 
 STOCKHOLDERS. See Corporation. ' 
 
 not individually liable for flowage by corporation, 697. 
 
 STRANDED PROPERTY. See Wreck. 
 right to reclaim, 102. 
 
 STREAM. See Appropriation; Flow of the Stream; Navigation; 
 Pollution; Prescription; Riparian Rights; Rivers; Water- 
 courses. 
 
 STURGEON, 
 
 are royal fish, 8, note. 
 
 SUBTERRANEAN WATERS. See Percolating Waters. 
 
 SURFACE SUPPORT, 
 
 duty to provide for, in mining, etc., 289, 295, note. 
 
 SURFACE WATER, See Percolating Waters; Springs. 
 what is, 263, 264 
 common-law rights as to, 265. 
 civil-law rule, 266, 276. 
 changing grade of land, 267, 268. 
 percolating through walls, 267, 268. 
 cannot be lawfully collected and discharged through artificial channels 
 
 upon others' lands, 271, 272, 536. 
 such injury may be restrained by injunction, 536, 553. 
 may be thus discharged into natural watercourses, 274 
 may be excluded by barriers, 275, 278. 
 pollution of, 278, 546. 
 
 prescriptive rights not usually acquirable in, 279. 
 duties of municipal corporations as to, 261, 262, 269-272. 
 sewers and gutters, 262, 270,-546. 
 duties of railroad companies as to, 273. 
 rights as to, under the civil law, 266, 268, 273. 
 servitudes under, 276. 
 eaves-drip, 292, 293. 
 
 SURPLUS WATER, 
 
 how it may be disposed of, 241 and note, 375. 
 
 value of, how estimated under eminent domain, 259. 
 
 grant of, how construed, 241. note,i 320. 
 SURVEYS, 
 
 public, effect on title to Western rivers and lakes, 69, 84 
 
 Acts of Congress relating to, 69 and note. 
 
 boundaries of, 40, 69, 77, 85, 194, 200. 
 SWAMP, 
 
 natural, owner not usually bound to drain, 212. 
 as a boundary, 196. 
 when part of a watercourse, 263. 
 SWAMP AND OVERFLOWED LANDS, 
 
 do not include the soil of tide waters, 36, 60, 174 
 
 under Federal statutes, 36, 112. 
 
INDEX. 953- 
 
 TAILINGS, 
 
 property in, 239. 
 
 TAKING. See Eminent Domain. 
 TANNERY. See Pollution. 
 TAXATION, 
 
 for improving navigation, constructing canals, etc., 244 
 assessments upon riparian owners for, 117, 118. 
 
 for construction of levees, 247. 
 
 for the reclamation of wet lands, 241, note. 
 
 adjacency to navigable waters may be considered in, 171, note. 
 
 of land over which exists a prescriptive right of flowage, 203, note. 
 
 of vessels by State in home port, 35. 
 TENANTS IN COMMON. See Logs; Partition; Remedies at Law. 
 
 one cannot use watercourse for his own mill so as injuriously to affect 
 the mill owned in common, 205, 213. 
 
 when liable for act of co-tenant, 222, 396-398, 565, 566. 
 
 in mining ditches, Tights of, 231, note. 
 
 partition between, 315, 316. 
 
 as co-plaintiffs, 382. 
 
 actions against each other, 383, 384, 470. 
 
 regulation of rights of, in equity, 540. 
 TENNESSEE, 
 
 law as to rivers, 60. 
 
 Mill Act of, 611, 622. 
 TERRITORIAL WATERS. See Appropriation ; Sea. 
 TERRITORIES. See State. 
 
 control of United States over tide waters of, 40. 
 
 TEXAS, 
 
 seaward limits of, 16, note. 
 
 THREAD OF STREAM. See Filum AqVM. 
 
 "TIDE LANDS," 
 what are, 28. 
 
 TIDE MILL, 
 
 not included in Mill Acts, 594. 
 TIDE WATERS. See Public Waters; Seaweed. 
 
 within the reajm, are the Crown's property at common law, 3, 4. 
 
 what are within the realm, 3-5, 7-16. 
 
 the Crown's rights in the outer sea, 3, 11-14 
 
 in this country, belong to the respective States, 32. 
 
 nature and extent of this interest before and since the Revolution, 30-32. 
 
 boundaries upon, 195, 198, 199. 
 
 TOLLS. See Wharfage. 
 
 a franchise from sovereign, 141, 144, 193. 
 
 grant of, construed against grantee, 36, note. 
 
 consideration necessary, 141. 
 
 taking of, how authorized and for what purposes, 35, 141, 142, 193. 
 
■954 INDEX. 
 
 TOLLS — continued 
 
 duty of those receiving to repair, 115, 116. ' 
 
 right of municipal corporation to, 116-118. 
 
 wharfage, 120. 
 
 suits against those preventing collection of, 126. 
 
 for improving navigation, 35, 141, 143. 
 
 when a State may authorize, 35, 142, 143. 
 
 construction of statutes authorizing, 144. 145. 
 
 exclusive rights to, 144-146. 
 
 remedies for, 147. 
 
 for grinding grain at public mills, 254 
 
 TONNAGE DUTIES, 
 
 a State cannot levy, 35. 
 to be laid by Congress, 35. 
 
 TOWAGE, 
 
 no common-law right to use river banks for, without long user, 99-104. 
 
 TOWNS. See Boundaries; Municipal Corporations. 
 
 extension, by State, of bounds of, over navigable waters, relates to juris- 
 diction and not to property, 36. 
 rights of, in seashore and landing places by prescription, 37. 
 in waters under Indian grants, 30. 
 
 to landing places by dedication and prescription, 105, 106. 
 in fisheries, 188. 
 boundaries on waters, 14, 202. 
 when liable to repair roads illegally laid out, 121. 
 
 TRESPASS. See Case, Action on the ; Remedies at Law. 
 for injury to flats or land under water, 136, note, 169. 
 for disturbance of fishery, 185. 
 for taking shell-fish, 189, 190. 
 for cutting ice, 191. 
 
 UNCERTAIN DESCRIPTION, 
 when fatal, 194, 195, 610, note. 
 
 UNITED STATES. See Grants; Navigation; Nuisance; Rivers. 
 
 have no title to soil of navigable waters, as against State, 32, 166, note, 
 but hold title to such soil in the Territories, 39, 40. 
 rights of, as to appropriations of water in the West, 240. 
 may exercise right of eminent domain, 242, and note, 
 land occupied by it cannot be flowed, 255, 593, 
 
 UNITY OF POSSESSION, 
 
 does not affect rights of riparian owners in stream, 204. 
 stops the acquisition of prescriptive rights, 335. 
 extinguishes what easements, 313, 314. 
 
 may be shown by plaintiff in answer to defence, without a special repli- 
 cation, 491. 
 
 USAGE. See Custom ; Prescription. 
 
INDEX. 955 
 
 USE AND OCCUPATION, 
 
 upon implied contract to pay wharfage, 130, note. 
 
 injunction not granted to compel compensation for holding over, 511. 
 
 as to water rights, 469, 470. 
 USE, REASONABLE. See Flow or the Stream. 
 USER. ADVERSE. See Prescription. 
 VARIANCE, 
 
 what amounts to, 478, 483, 484. 
 
 as to general and prescriptive rights, 330. 
 VENUE. See Remedies at Law. 
 VERDICT, 
 
 defects cured by, 122, note, 483. 
 
 when set aside, 495. 
 
 VERMONT, 
 
 law as to property in lakes and rivers, 56, 82. 
 Mill Act of, 607. 
 
 VESSELS. See Admiralty ; Navigation. 
 
 law of the flag, 1. 
 
 carry with them the law of the State rather than of the United States 
 in matters not delegated to Congress, 1, note. 
 VIRGINIA. See Mill Acts. 
 
 law as to rivers, 61, 62, 71. 
 
 jurisdiction over Potomac river, 61, note. 
 
 rights in flats, 178. 
 
 Mill Act of, 212, note, 609, 610. 
 
 the Virginia system, 587, 592, 609-623. 
 VIS MAJOR See Act of God. 
 WAIFS. See Wreck. 
 WASTE, 
 
 as descriptive of the shore, 28. 
 
 at common law, to flow pasture land, 211a. 
 
 of flowing waters, 208, 231, 306. 
 
 WASTE MATERIALS. See Navigation; Pollution. 
 WATER COMPANIES, 
 
 right to divert, 84, 148, 214, 241, note. 
 
 rights and duties of, 245a. 
 
 eminent domain by, 241, 245. 
 WATERCOURSES. See Boundaries; Easement; Flow op the Stream; 
 Grants; Navigation; Pollution; Prescription; Rivers. 
 
 defined, 41, 264. 
 
 no exclusive property in the flowing water, 204. 
 
 in grant, meaning of, 30, 31, 304a. 
 WAY. See Eminent Domain; Highways; Navigation. 
 
 grant of, when implied, 306, 355, 362. 
 
 WEIRS, 
 
 when legal in navigable waters, 21, note, 189. 
 
956 
 
 INDEX. 
 
 WELLS. See Grants; Percolating Waters. 
 
 injury to, by flowage or percolation, 211. 
 
 enjoining pollution of, 288, 542. 
 WEST VIRGINIA, 
 
 rivers, 71. 
 
 Mill Act of, 611, 613. ! 
 
 WHARFAGE. See Tolls. 
 
 defined, 118, note. 
 
 right to collect, 120, 304a, note. 
 
 how distinguished from tonnage duties, 35. 
 
 charges for, authorized by State, 34. 
 
 damages for neglect to repair, in defence to suit for, 120, note. 
 
 contract for, when implied, 120, note. 
 WHARVES. See Navigation; Nuisance; Purpresture ; Riparian 
 Rights; Wharfage. 
 
 right to extend into navigable waters, how acquired, 18, 21, 35, 132, 140, 
 167. 
 
 in grants, may include flats, 304a, note. 
 
 duty of owner to keep in repair, 113. 
 of occupants and lessees, 113. 
 toward what persons, 113. 
 to keep dock free of obstructions, 114. 
 
 rights of municipal corporations as to, 115-118. 
 
 what are public and what private, 118, 119. 
 
 harbor lines, 138. 
 WIDOW. See Dower. 
 
 rights under Mill Acts, 595. 
 WISCONSIN, 
 
 law as to rivers and lakes, 75, 85. 
 
 Mill Act of, 598, note, 601. 
 WRECK, 
 
 property in, 6, 98, 192. 
 
 right to, is a franchise, and does not give property in the shore, 6, 22. 
 
 grant of shore does not convey wreck without express words, 6, 31. 
 
 right to, by prescription, 37. 
 
 whether the habitual taking of, shows title to the shore, 22, 24, note, 37. 
 
 right to reclaim, 102, 192. 
 to abandon, 98. 
 
 impeding navigation, 98. 
 
 YEAR, 
 
 beginning of, in eminent domain proceedings, 245, note, 
 under Mill Acts, 597, note.