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 strictness, the question whether a wharf or building erected in tide waters is a purpresture depends upon the ownership of the soil which it covers. At common law, if the person who makes such a structure establishes his right to the soil by producing a grant or license from the Crown, it is not a purpresture, although it may still be unlawful if it obstructs the navigation. In the latter case, the structure is abatable as a nuisance notwithstanding the king's license, for a common nuisance is not warrantable by the Crown. Whether a wharf or building extended into tide waters is a nuisance is purely a question of fact.1

1 Ante, § 21; Blundell v. Catterall, keep in the sea-water from diffusing 5 B. & Ad. 268.

2 Ibid.

3 Hale, De Portibus Maris, ch. 7; Hargrave's Law Tracts, 85; Mississippi R. 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 Portibus 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 building 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 highwater mark; for otherwise vessels could not come at them to unlade; and some are built below the lowwater mark. And it would be impossible for the king to license the building of a new wharf or key, whereof there are a thousand instances, if ipso facto it were a common 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

at large; and the water may flow in shallows, where it is impossible for vessels to ride. Indeed, where the soil is the king's, the building below the high-water mark is a purpresture, an 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 navigation."

4 Ibid.; ante, § 21; Queen v. Betts, 16 Q. B. 1022; Abraham v. Great Northern Ry. Co., 16 Q. B. 586, 591; Dutton v. Strong, 1 Black, 23, 31; Columbus Bridge Co. v. Peoria Bridge Co., 6 McLean, 70; Nichols v. Boston, 98 Mass. 39, 41; Burnham v. Hotchkiss, 14 Conn. 318; Thornton v. Grant, 10 R. L. 477; The Erie v. Canfield, 27 Mich. 479; Clark v. Lake St. Clair Ice Co., 24 Mich. 508; Att. Gen. v. Evart Booming Co., 34 Mich. 462; People v. Carpenter, 1 Mich. 273; Howard v. Robbins, 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. Lawrence, 2 Hun, 163; 56 N. Y. 612.

§ 93a. Same-Same-In navigable fresh rivers.-The above rules apply also to navigable fresh rivers in those localities where they are held to be public property like the sea. But when the title of the riparian proprietors extends usque ad filum aquæ, 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, provided they do not interfere with the navigation,' 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 private property, and the owner of the adjoining land may maintain an action of trespass for this cause, or replevy from the wrongdoer the rocks or soil so taken. Stone cannot be quarried, 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 bridge. In Pennsylvania, where the large fresh-water rivers belong to the public, paving stones taken from such rivers belong to the taker.

§ 94. Same Same - Benefits to the public.— In Rex v. Russell' the defendants were indicted for wrongfully continuing two coal staiths or geers in a navigable river to the public nuisance of the navigation. The geers extended over the space between high and low-water mark, and one or two feet below low-water mark, with spouts projecting therefrom, one of which extended outward thirty-six feet. The opinion of

1 Orr Ewing v. Colquhoun, 2 App. Cas. 839, 845, 853, 854, 870; Walker v. Board of Works, 16 Ohio, 544; Att. Gen. v. Evart Booming Co., 34 Mich. 462.

2 Ibid. So in the case of a highway on land, the public have merely a right of passage, and no right to take waters from springs or streams in the highway. Old Town v. Dooley, 81 Ill. 255. The fact that a river is navigable does not prevent the acquisition by a riparian owner of 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. C. 237.

3 Braxton v. Bressler, 64 Ill. 488; June v. Purcell, 36 Ohio St. 396; Ross v. Faust, 54 Ind. 471; Berry v. Snyder, 3 Bush, 266, 285.

4 Braxton v. Bressler, 64 Ill. 488. 5 Overman v. May, 35 Iowa, 89. 6 Solliday v. Johnson, 38 Penn. St. 380.

76 B. & C. 566; 9 D. & R. 561. See, also, Rex v. Grosvenor, 2 Starkie, 511, 514.

the majority of the court was that the defendants should be acquitted if the abridgment of the navigation caused by these structures was for a public 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 offsetting the benefit which may arise to another part of the public elsewhere. In the case of Rex v. Ward, in which the decision of Rex v. Russell was reviewed, it was held that a finding by the jury, that an embankment in a water highway is a nuisance, as interfering with the navigation, but that the inconvenience is counterbalanced by the public benefit arising therefrom, amounted to a verdict of guilty. The rule now is that the inquiry for the jury is whether the structure is a nuisance to the navigation, and not whether it is beneficial to the public; and that counterbalancing benefits which may accrue to the public from that which is found to be a nuisance are immaterial."

§ 95. Same-Anchoring and mooring.— The right of navigation includes the right to anchor as incidental to its beneficial enjoyment; and a claim by individuals or corporations, founded on royal grant or immemorial usage, for a toll or anchorage on all vessels which anchor in an arm of the sea

1 Bayley and Holroyd, JJ., Lord Tenterden, C. J., dissenting.

2 Rex v. Ward, 4 Ad. & El. 384; Rex v. Morris, 1 B. & Ad. 441; Reg. v. Betts, 16 Q. B. 1022, 1037; Reg. v. Randall, 1 Car. & M. 496; Reg. v. Charlesworth, 16 Q. B. 1012.

Rex v. Ward, 4 Ad. & El. 384. The occupation of much of a water highway, and extending ropes across its banks, for building and repairing ships, will not be protected as incidental to public navigation. Pollock v. Cleveland S. B. Co., 56 Ohio St. 655; 2 Ohio Dec. 305.

4 Ibid.; Rex v. Tindall, 6 Ad. & El. 143; 3 El. & Bl. 942; Rex v. Morris, 1 B. & Ad. 441; Folkes v. Chad, 3 Dougl.

340; Reg. v. Betts, 16 Q. B. 1022, 1037; Reg. v. Randall, 1 Car. & M. 496; Att. Gen. v. Terry, L. R. 9 Ch. 423; Com. v. Wright, 3 Am. Jur. 185; People v. Vanderbilt, 26 N. Y. 287, 297; Hart v. Albany, 9 Wend. 571, 582; People v. Horton, 64 N. Y. 610, 620; Respublica v. Caldwell, 1 Dallas, 150; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 577; State v. Kaster, 35 Iowa, 221; Garitee v. Baltimore, 53 Md. 422, 436; Blanchard v. Moulton, 63 Maine, 434; People v. St. Louis, 5 Gilman, 351, 372; Works v. Junction R. Co., 5 McLean, 425; Thornton v. Grant, 10 R. I. 477, 482; Simon v. Atlanta, 67 Ga. 618, 623. But see Mississippi R. Co. v. Ward, 2 Black, 485,

which is not a port, cannot be maintained. As against other vessels, but not against the riparian owners, it includes the right to moor to wharves and to the shore, and thereby to occupy exclusively, for a reasonable time and in a proper manner, the portion of the channel covered by the vessel.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. 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; 5 and, if the logs of different owners are necessarily intermingled in passing down a stream which is only capable of floating them loose, one owner may reasonably detain the mass in order to select and separate his own logs. The reasonableness of the time, place, and manner of the mooring under the foregoing rules is a question of fact for the jury,' and the privilege of stopping upon the water is practically the same as in the case of a carriage upon a road. 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. Whitstable 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. Rafté, 15 App. Cas. 188; Wyatt v. Thompson, 1 Esp. 252; Hayward 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.

4 Ibid.

5 Hayward 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.

6 Osborne v. Knife Falls Boom Co., 32 Minn. 412, 419; Watts v. Tittabawassee Boom Co., 52 Mich. 293. See Kroll v. Nester, 52 Mich. 70; Butterfield v. Gilchrist, 53 Mich. 22; Chesley 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.

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, or interferes with the use of a dock built by a riparian proprietor in aid of navigation. The owner of floating logs who wishes to direct them into his millpond, may use, for that purpose, temporary guide booms which do not unreasonably obstruct the channel; and, if a booming company encloses part of a floatable stream in a reasonable and prudent manner for its own purposes, the fact that another booming company upon the same stream is thereby inconvenienced, does not necessarily make the boom of the first company a public nuisance.1

96. Negligent navigation.- All persons have an equalright 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 incidental to navigation, and if it is driven into a position where it obstructs the channel, other navigators are bound to submit to a reasonable delay in order that the owner may remove it, before attempting to destroy it as a nuisance. The fact that a portion of a vessel in landing at a wharf overlaps in front of an adjoining wharf or 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; but, in the absence of wharfage regula

8

Thompson, 2 Strob. (S. C.) 12; Sawyer v. Eastern S. Co., 46 Maine, 400; People v. Horton, 64 N. Y. 610; 5 Hun, 516; Wall v. Pittsburgh Harbor Co., 152 Penn. St. 427; Dzik v. Bigelow, 44 Pitts. L. J. 360; Sturgeon River Boom Co. v. Nester, 55 Mich. 113; State v. Holman, 29 Ark. 58.

5 Davis v. Winslow, 51 Maine, 264; Lancey v. Clifford, 54 id. 489; Gerrish v. Brown, 51 id. 263; Canfield v. Erie, 27 Mich. 479; 1 Mich. N. P. 105.

6 Colchester v. Brooke, 7 Q. B. 339; The Ellen S. Terry, 7 Ben. 401; The Coleman, 1 Brown Adm. 456; The Thomas A. Scott, id. 503; Cummins

1 McPheters v. Moose River L. D. v. Spruance, 4 Harr. (Del.) 315. Co., 78 Maine, 329.

7 Lallande v. The C. D. Jr., Newb.

2 Union Mill Co. v. Shores, 66 Wis. Adm. 501.

476.

3 Ibid.; Veazie v. Dwinel, 50 Maine, Ch. D. 713; The St. Lawrence, 19 Fed.

493.

8 Original Hartlepool Co. v. Gibb, 5

Rep. 328; Sherlock v. Bainbridge, 41

Att. Gen. v. Evart Booming Co., Ind. 35; Bainbridge v. Sherlock, 29 34 Mich. 462. Ind. 364; Jencks v. Miller, 40 N. Y. S.