2

common right as in tide waters. In Rice v. Ruddiman, 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 Michigan was held not to make the former lake necessarily a part of the latter, rather than a mere widening of Muskegon River which flowed into it; and the common-law rule as to 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 the common right of navigation.3

§ 83. A lake which is not really useful for navigation, although of considerable size compared with ordinary freshwater streams, may be private property. Thus, 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. In New Jersey, where there are no large inland

Sloan v. Biemiller, 34 Ohio St. 492. See, also, La Plaisance Bay Harbor Co. v. Monroe, Walk. Ch. 155, 168; Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 182, 185; Verplank v. Hall, 27 Mich. 79.

10 Mich. 125.

3 In Diedrich v. North-western Railway Co., 42 Wis. 248, 271, the court say of this case: "The same ground of the rule in Rice v. Ruddiman, 10 Mich. 125, that the riparian owner takes usque ad medium filum aquae 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 filum aquae

to all small lakes within the State; but not so to Lake Michigan. It is also true that some of the opinions speak, and we cannot help thinking somewhat loosely, of some measure 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; Jakeway v. Barrett, 38 Vt. 316, 323.

lakes extensively used for commerce, it is held that the test. by which to determine whether waters are public or private, is the ebb and flow of the tide, and that the decisions in other States, by which the great lakes and navigable rivers were held to be public, otherwise than for purposes of navigation, are alike a departure from the common law. It has accordingly 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 navigable 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.3

§ 84. In Massachusetts the colony ordinance of 1641 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 for this purpose the public might pass on foot over any man's property, provided they do not trespass on corn or meadow lands. The ordinance of 1641, as amended by that of 1647, prohibited the towns from granting away 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 common rights of fishing and fowling in them.5 This is the foundation of the law of that State upon the subject,

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.

dard, 7 Allen, 158; Commonwealth v. Vincent, 108 Mass. 441, 445, 446 ; Painé v. Woods, Ibid. 160, 169; Commonwealth v. Tiffany, 119 Mass. 300, 303; Hittinger v. Eames, 121 Mass. Cobb v. Davenport, 32 N. J. L. 539; Tudor v. Cambridge Water Works, 1 Allen, 164.

369, 380.

2 Ibid. 3 Ibid. p. 377. In Pennsylvania a pond is not a "private pond" which covers the soil of a person who stocks it with fish, and also the soil of others. It is an entirety, and the whole or none is private. Reynolds v. Commonwealth, 93 Penn. St. 458.

* Commonwealth v. Alger, 7 Cush. 53, 67, 68; West Roxbury r. Stod

by which ponds of sufficient size, which were not granted away before the year 1647, are public property like tide waters, both with respect to the soil under them,' and the right of reasonable use for all lawful purposes, including fishing, fowling, boating, skating, bathing, the taking of ice 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 interfere with the reasonable use of the ponds by others, or with the public right in cases where the legislature has made no special provision.1

§ 85. In the Western States it is held that the owners of lands bordering upon unnavigable lakes situated within the congressional surveys, own the bed of the lake to its centre, as in the case of unnavigable streams." In Wisconsin, however, although a riparian owner upon a river or stream takes prima facie to its thread, yet the owner of land which borders upon a natural lake, whether navigable or unnavigable, 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, and has no title to the soil which remains submerged. Such owner takes, however,

1 Paine v. Woods, 108 Mass. 160, 169. The term "great pond," as used in the Massachusetts ordinances and the statute of 1869, c. 384, means a pond of a certain area created by the natural formation of the land at a particular place. Commonwealth v. Tiffany, 119 Mass. 300, 303. Under the statute of 1869 the public have no right of fishing in a pond which is not more than twenty acres in extent. Ibid.

2 West Roxbury v. Stoddard, 7 Allen, 158; Cummings v. Barrett, 10 Cush. 186, 188; Fay v. Salem Aqueduct Co., 111 Mass. 27; Hittinger v. Eames, 121 Mass. 539; Gage v. Steinkraus, 131 Mass.

to the water's edge, even when the meandered line of the lake differs from the actual water line.1 In a recent case 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 forbidding the exercise of this customary right could not maintain 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 plaintiff's farm.2

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. Phettibone, 2 Wis. 308.

1 Boorman v. Sunnuchs, 42 Wis. 233; Delaphine v. Chicago Railway Co., Ibid. 214; Diedrich v. North-western Railway Co., Ibid. 248.

Marsh v. Colby, 39 Mich. 626. Elsewhere it has been held that a

right to take fish in a private river or lake is a profit à 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. Lipscomb, 24 L. J. Q. B. 155, note; Gatewood's case, 6 Co. 60; Grimstead v. Marlow, 4 T. R. 718; Cobb v. Davenport, 4 Vroom, 223; 3 Id. 369, 389; Winder v. Blake, 4 Jones (N. C.), 332.

CHAPTER IV.

THE PUBLIC RIGHT OF NAVIGATION.

SECTION.

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.

94. Benefit to the public cannot be offset against a nuisance to navigation.

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.

102. 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 quasi-corporations.

117, 118. Powers of such corporations to improve harbors, canals, etc., and to

levy assessments therefor.