tended. The result of the authorities seems to be that a dedication of land adjoining a river for the purpose of public passage to and from the water, with perhaps the incidental right of temporary deposit, or a claim of prescriptive user, for the purpose of landing and embarkation, is valid; but that the right to encumber the land with lumber, merchandise, and the like, to a greater extent or for a longer time than would be permissible in a highway, is neither within the purpose of the dedication nor valid as a custom.3

2

§ 106. When a way in a city extends to navigable waters, and is dedicated to the public use as a street, it carries with it, by necessary implication, the right of the city to extend it into the water by the construction of a wharf at the end thereof. Evidence that land has been used as a landing place by the inhabitants of the town in which it is situated, and, also, by those of other towns, is sufficient to establish a right in all the inhabitants of the State. But evidence of user by the individual inhabitants of a town does not tend to show a possession by the town in its corporate capacity. When a

'See Gardiner v. Tisdale, 2 Wis. 153, 191; Knowles v. Dow, 22 N. H. 387.

2 See People v. Cunningham, 1 Denio, 524; Gerrish v. Brown, 51 Maine, 256, 263; Graves v. Shattuck, 35 N. H. 257.

3 See authorities above cited. Also, Penny Pot Landing, 16 Penn. St. 79; Carrollton Railroad Co. v. Winthrop, 5 La. Ann. 36. As to the reservation and dedication of landings by the government, or by cities, see Cincinnati v. White, 6 Peters, 431; Barclay v. Howell, Ibid. 498; Irwin v. Dixion, 9 How. 10; New Orleans v. United States, 10 Peters, 662; Cook υ. Burlington, 30 Iowa, 94; 36 Ib. 357; Walker v. Columbus, 4 B. Mon. 259, 260; Alves v. Henderson, 16 B. Mon. 131; Burr v. Dana, 22 Cal. 11; Blanc r. Bowman, 22 Cal. 23; San Francisco r. Calderwood, 31 Cal. 385; Schermerhorn . New York, 3 Edw. Ch. 119.

Dedication may be presumed even against the sovereign. Day v. Allender, 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 convenient privilege to pile logs, boards, and other lumber," conveys only an easement in the land used for piling. Thompson v. Androscoggin Bridge, 5 Maine, 62.

McMurray v. Baltimore, 54 Md. 103; Barney v. Keokuk, 94 U. S. 324; Haight v. Keokuk, 4 Iowa, 199; Bowman v. Portland, 8 B. Mon. 253; Newport v. Taylor, 16 B. Mon. 700; Barney v. Baltimore, 1 Hughes, 118.

5 Coolidge v. Learned, 8 Pick. 504 6 Green v. Chelsea, 24 Pick. 71; Hill v. Lord, 48 Maine, 83, 97.

public landing place is once established, it may be discontinued by the legislature, but not by a town, or by county commissioners. Commissioners of highways, having authority to regulate public landings and watering-places, have no power to lay out a new landing place.3

§ 107. 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.4 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 useful, either at all seasons or in times of freshets, for floating rafts and logs to market. In this country, where this question is more important than in England, notwithstanding the conflict respecting the title to large fresh-water rivers, the authorities agree that streams which in their natural condition are only useful for rafting purposes during the whole or a part of each year, are highways for that purpose, and that the title of the riparian owners 5 to the beds of such streams is subject to this right of passage.

§ 108. Streams which are not floatable, or cannot, in their natural state, be used for the carriage of boats, rafts, or other property, are absolutely private," and if the stream is so small and shallow that logs cannot be driven in them without trav

1 Commonwealth v. Tucker, 2 Pick. 44; Kean v. Stetson, 5 Pick. 492, 495. 2 Bennett v. Clemence, 6 Allen, 10. 3 Commissioners v. Queen's Coun

ty, 17 Wend. 9.

v Chadbourne, 31 Maine, 9; Treat v. Lord, 42 Maine, 552; Knox v. Chaloner, Ibid. 150; Brown v. Black, 43 Maine, 443; Dwinel v. Veazie, 44 Maine, 167; Veazie v. Dwinel, 50

4 Hale, De Jure Maris, c. 2, 3; Har- Maine, 479; Gerrish v. Brown, 51 grave's Law Tracts, 8, 9.

Maine, 256; Davis v. Winslow, Ibid. 264; Lancey v. Clifford, 54 Maine, 487; Holden v. Robinson Co., 65 Maine, 215; Lawler v. Baring Boom Co., 56 Maine, 443; Hooper v. Hobson, 57 Maine, 273.

elling upon the banks, it is not open to public for passage.1 It is not necessary that the stream, in order to be a highway, should be capable of floating logs at all seasons of the year, but its public character depends upon its fitness to answer the wants of those whose business requires its use. The fact that the banks are commonly used for the purpose of towing or propelling what is floating, is evidence merely of want of capacity for public use. The test is the natural capacity of the stream, and the fact that those who drive logs trespass on the adjoining lands, or at times find it necessary or convenient to do so, does not deprive the stream of the public character which it may otherwise possess.1 Sub

1 Brown v. Chadbourne, 31 Maine, 9; Treat v. Lord, 42 Maine, 552; Hooper v. Hobson, 57 Maine, 273; Morrison v. Bucksport Railroad Co., 67 Maine, 353; Olson v. Merrill, 42 Wis. 203; Morgan v. King, 35 N. Y. 454; 18 Barb. 277; 30 Barb. 9; Munson 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. Schofield, 8 Barb. 239; Palmer v. Mulligan, 3 Caines, 307; Ex parte Jennings, 6 Cowen, 518; Pierrepont v. Loveless, 72 N. Y. 211, 216; Slater v. Fox, 5 Hun, 544; Moore v. Sanborne, 2 Mich. 519; Lorman v. Benson, 8 Mich. 18; Ryan v. Brown, 18 Mich. 196; Middleton v. Flat River Booming Co., 27 Mich. 533; Brig City of Erie v. Canfield, 27 Mich. 479; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 345; Attorney General v. Evart Booming 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 r. 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; Whistler r. Wilkinson, 22 Wis. 572; Wisconsin River Co. r. Lyons, 30 Wis. 61, 66; Sellers v. Union Lumbering

Co., 39 Wis. 525; Olson v. Merrill, 42 Wis. 203; Cohn v. Wausau Boom Co., 47 Wis. 314, 324; Stevens Point Boom Co. v. Reilly, 44 Wis. 295; 46 Wis. 237; Barclay Railroad Co. v. Ingham, 36 Penn. 194; Hickok v. Hine, 23 Ohio St. 523; Weise v. Smith, 3 Oregon, 445; Felger v. Robinson, 3 Oregon, 455. See, also, Commonwealth v. Chapin, 5 Pick. 199, 202; Blood r. Nashua Railroad Co., 2 Gray, 137; Rowe v. Granite Bridge Co., 21 Pick. 344; Attorney General v. Woods, 108 Mass. 436; Neaderhouser v. State, 28 Ind. 257; Esson v. McMaster, 1 Kerr (N. B.) 501; Rowe v. Titus, 1 Allen (N. B.) 326; Boissonnault v. Oliva, Stuart (Low. Can.) 564; Hayward v. Knapp, 23 Minn. 430; Lamprey v. Nelson, 24 Minn. 304; Commonwealth v. Charlestown, 1 Pick. 180; Commonwealth v. Chapin, 5 Pick. 199; Knight v. Wilder, 2 Cush. 199, 209; Charlestown v. Middlesex Commissioners, 3 Met. 202; Attorney General v. Woods, 108 Mass. 436.

2 Ibid.

3 Ibid.

4 Ibid.; Holden v. Robinson Co., 65 Maine, 215. In Maine it is provided by statute that the banks of a stream may be used for driving logs. R. S. (1857) c. 42, §§ 7, 8; R. S. (1871) c. 42, §§ 7, 8. See Brown v. Chadbourne, 31 Maine, 9; Treat v. Lord, 42 Maine,

ject to these rules the question whether a stream is a highway is a question of fact for the jury. 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.2 Mill-owners whose dams interfere with the reasonable use of floatable streams by the public are liable to a private action by any citizen so injured.3

§ 109. If the stream is not always navigable it must be capable of floatage, as the result of natural causes, at periods ordinarily recurring from year to year, and continuing for a sufficient length of time in each year to make it useful as a highway. The mere possibility of occasional use during brief or extraordinary freshets does not give it a public character. A similar principle applies in the case of small tidal creeks, in which, although prima facie they are public and navigable, private property may be maintained.5 It is

552; Hooper v. Hobson, 57 Maine, see Davis v. Winslow, 51 Maine, 264 ; 273. Lancey v. Clifford, 54 Maine, 487; Veazie v. Dwinel, 50 Maine, 479; Gerrish v. Brown, 51 Maine, 256, 263.

Treat v. Lord, 42 Maine, 552; Bryant v. Glidden, 36 Maine, 36.

Brown v. Chadbourne, 31 Maine, 9; Dwinel v. Veazie, 44 Maine, 167; 50 Maine, 479; Gerrish v. Brown, 51 Maine, 256; Parks v. Morse, 52 Maine, 260; Veazie v. Dwinel, 50 Maine, 479. Upon the question what is a reasonable use of the stream, see Ibid.; Davis v. Winslow, 51 Maine, 264; Weise v. Smith, 3 Oregon, 445; Sewall's Fall Bridge v. Fisk, 23 N. H. 171; Carter v. Berlin Mills Co., 58 N. H. 52; Brown v. Kentfield, 50 Cal. 129; Enos v. Hamilton, 27 Wis. 250; 24 Wis. 658.

3 Parks v. Morse, 52 Maine, 260. As to what constitutes reasonable use,

Munson v. Hungerford, 6 Barb. 265; Morgan v. King, 35 N. Y. 45; 18 Barb. 277; 30 Barb. 9; Curtis v. Keesler, 14 Barb. 511; Olson v. Merrill, 42 Wis. 203; Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336; Middleton v. Flat River Booming Co., 27 Mich. 533; Hubbard r. Bell, 54 Ill. 110; Cates v. Wadlington, 1 McCord (S. C.) 580; Brown v. Chadbourne, 31 Maine, 9; Treat v. Lord, 42 Maine, 552.

5 Commonwealth v. Charlestown, 1 Pick. 180, 186, and authorities in next note.

not every small creek in which a fishing skiff or gunning canoe can be made to float at high tide which is deemed subject to public use; but in order to have a public character, it must be navigable for some purpose useful to business or pleasure. The only decisions tending to limit the above right of floatage appear to be: first, that of Hubbard v. Bell,2 in Illinois, in which it is said that no such necessity exists in that State, as in Maine or Michigan, for requiring private rights to yield to the floating of logs; but the stream to which this case related seems to have been capable of bearing rafts and logs only in seasons of freshets, and then for a few days or weeks only. Second, an early case in California in which it was held that a stream is navigable which has capacity to float rafts of lumber, but that the rule does not extend to streams which can only float logs or planks.* Third, decisions in Alabama in which the duration of previous enjoyment by the 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 determined by a jury.5 In Stump v. McNairy, 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. The rights of the public are not superior to private rights, in streams which are merely floatable, to the same ex

4 American River Water Co. v. Amsden, 6 Cal. 443.

1 Ibid.; Commonwealth v. Breed, 3 Ibid. p. 114. See Thunder Bay 4 Pick. 460; Rowe v. Granite Bridge Booming Co. v. Speechly, 31 Mich. Co., 21 Pick. 344, 347; Charlestown v. 336, 343. County Commissioners, 3 Met. 202; Murdock v. Stickney, 8 Cush. 113, 115; West Roxbury v. Stoddard, 7 Allen, 158, 171; Attorney General v. Woods, 108 Mass. 436; The Montello, 20 Wall. 442, 443; Getty v. Hudson River Railroad Co., 21 Barb. 617.

* Hubbard v. Bell, 54 Ill. 110.

725;

5 Ellis v. Carey, 30 Ala. Rhodes v. Otis, 33 Ala. 578; Peters v. New Orleans Railroad Co., 56 Ala. 528; Alabama v. Bell, 5 Porter, 379. 5 Humph. 363.

6