may decline to aid him by enjoining the infringement of his right, and leave him to his action for damages.1 Such exclusive right may be lost by estoppel, as by silently permitting another ferry or bridge to be completed at great expense.? The provision of a charter authorizing a railroad company to cross a river by a bridge or ferry, "as may be most convenient," 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 charter is not exclusive, has no cause of action against others who open a winter road near by across the river with the intention of diverting travel. 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."

§ 147. Same-Remedies.- At common law a right of distress is incident to all tolls. Persons or companies authorized to receive tolls may also recover upon an express promise to pay; and if the statute provides no remedy for non-payment, the law will imply a promise to pay, which will sustain an action, even though the defendant claimed an exemption from

Hartford R. Co., 17 Conn. 40. Charles
River Bridge v. Warren Briage, 11
Peters, 420.

1 Ferrel v. Woodward, 20 Wis. 458. 2 Fremont Ferry Co. v. Dodge Co., 6 Neb. 18.

& A. 793; Jenkins v. Cooke, 1 Ad. & El. 871; Fraser v. Swansea Coal Co., id. 354; Nicholl v. Gardner, 13 Wend. 288; Mangum v. Farrington, 1 Daly, 236; Warren v. McDiarmid, 34 How. Pr. 304; Wooster v. Blossom, 5 Jones

3 Easton v. New York R. Co., 24 (N. C.), 244; State v. Patrick, 3 Lev.

N. J. Eq. 49.

4 Union Bridge Co. v. Spaulding, 63 N. H. 298.

St. Tammany W. W. Co. v. New Orleans W. W. Co., 120 U. S. 64; 4 Woods, 134.

6 Vin. Abr. tit. Toll, 1; Bacon's Abr. tit. Distress, pl. 6; Heddy v. Wheelhouse, Cro. Eliz. 558; Vinkersterne v. Ebden, 1 Salk. 248; 1 Ld. Raym. 386. See Woolrych on Waters, 61, 312; Dresser v. Bosanquet, 4 B. & S. 460; Stourbridge Canal v. Wheeley, 2 B.

(N. C.) 478.

7 Dorman v. Turnpike Co., 3 Watts, 126 Beeler v. Turnpike Co., 14 Penn. St. 162; Penobscot Boom Co. v. Baker, 16 Maine, 233; Middle Bridge Co. v. Marks, 26 id. 326; Proprietors of Upper Locks v. Abbott, 14 N. H. 157. 8 Hopkins v. Stockton, 2 Watts & Serg. 163; Kellogg v. Union Co., 12 Conn. 16; Baltimore v. White, 2 Gill, 444; Quincy Canal v. Newcomb, 7 Met. 276. See A Coal Float, 112 Ind. 15.

toll and refused to pay. 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. 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. A promise to pay toll is without consideration, 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 payment. A person is not liable in damages who avoids a tollbridge and the payment of tolls, or who induces others to do so.

1 Central Bridge v. Abbott, 4 Cush. 473. See Manistee River Impr. Co. v. Lamport, 49 Mich. 442.

2 Bear Camp River Co. v. Woodman, 2 Maine, 404; Penobscot Boom Co. v. Baker, 16 id. 233; Bronte Harbour Co. v. White, 23 C. P. (Can.) 164.

3 Vestry of St. Pancras v. Batterbury, 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; Dorman v. Turnpike Co., 3 Watts, 126; Beeler v. Turnpike Co., 14 Penn. St. 162; Chestnut 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. Dearborn, 15 id. 402; 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. 300; Louisville v. Bank of United States, 3 B. Mon. 138, 158; Penobscot Boom Co. v. Penobscot Lumber Ass'n, 61 Maine, 533.

4 Waterloo Turnpike Road Co. v. Cole, 51 Cal. 381.

5 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. Dunbar, 75 Wis. 133; Appleman v. Myre, 74 Mich. 359.

6 Wright v. Morris, 43 Ark. 193. See "toll-bridge" defined in State v. Hannibal R. Co., 97 Mo. 348. As to contracts relating to wharfage, see Taylor 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.

SECTION.

CHAPTER V.

RIPARIAN RIGHTS - BOUNDARIES.

148, 149. Riparian rights defined.

150-154. The right of access.

155-157. 158, 159.

Accretions.

The effect upon private rights of sudden changes caused by the

currents.

160, 161. Defenses against the sea and rivers.

162-165. Apportionment of alluvion between coterminous proprietors.

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 Maryland.

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.

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, aecording to the strict meaning of the term, are such as follow or are connected with the ownership of the banks of streams or rivers. 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.

or phrase of sufficiently broad meaning to include both riparian and littoral, although each is sometimes used to denote the other. The distinction between tide waters and fresh, or between 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 naturæ, 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 existence of a riparian right that the land should be in contact with the flow of the stream; but lateral contact is as good jure naturæ as vertical." "It is true that the banks of a

1 Littoral is derived from Latin litus, the sea-shore. It is now in general use, and should be employed rather than "riparian," in respect to the shores of the sea, and also, according to important authorities, as including "riparian." Regina V. Keyn, 2 Ex. D. 63; Boston v. Lecraw, 17 How. 432, 433; West Roxbury v. Stoddard, 7 Allen, 158, 167; 9 Gray, 521, note; Hamilton v. Menifee, 11

Texas, 718; Smith v. Power, 14 Texas, 146.

21 App. Cas. 662; L. R. 10 Ch. 679; Diedrich v. Northwestern Ry. Co., 42 Wis. 248; Stevens Point Booming Co. v. Reilly, 44 Wis. 295, 305; Morrill v. St. Anthony Falls Co., 26 Minn. 222; Meyers v. St. Louis, 8 Mo. App. 266.

3 Miner v. Gilmour, 12 Moo. P. C. 131; Chasemore v. Richards, 7 H. L Cas. 349, 373, 382. See, also, Lord 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 foundation for a natural riparian right." All riparian rights depend upon the ownership of land which is contiguous to and touches upon the water; 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. They attach to the land, and an express mention in the deed that they are sold with it is surplusage. They do not attach to any lands, however near, which do not extend to the water; nor do they necessarily attach to a State grant of lands lying below the tidal high-water mark. An allegation in a bill in equity that the plaintiff owns land "lying upon the bay" does not clearly imply a water boundary. 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. The mere opportunity, because of Commissioners of Sidney, 12 Moo. P. den v. Long, 8 Oregon, 244. See ShirC. 473. ley v. Bishop, 67 Cal. 543; New Orleans W. Co. v. Ernst, 32 Fed. Rep. 5; Re State Reservation Com'rs, 37 Hun, 537.

1 Jones v. Johnston, 18 How. 150; Johnston v. Jones, 1 Black, 209; Bates v. Illinois Central R. Co., id. 204; People v. Commissioners, 15 N. Y. S. 644; Stark v. Miller, 113 Mich. 465; Boehmer 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 adjoining owners. Rowe v. Luddington, 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 . 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 U. S. 672, 683; McArthur & 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

3 Meyers v. Mathis, 42 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, Ferrière 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, conduct of parties, etc. Turner v. People'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.