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 estates.' 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, and a passing vessel is not warranted in destroying 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 connection 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. In Kentucky, it has been held that the owner of a boat which sinks in a navigable stream between high and lowwater 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. 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

The H. S. Nichols, 53 id. 665; Casement v. Brown, 148 U. S. 615; Boston S. Co. v. Munson, 117 Mass. 34; Taylor v. Atlantic Ins. Co., 37 N. Y. 275; 9 Bosw. 369; 2 Bos. 106; Sheldon 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. Juniata Bridge Co., 16 Penn. St. 393; Livezey v. Philadelphia, 64 id. 106; Roush v. Walter, 10 Watts, 86; Winpenny v. Philadelphia, 65 Penn. St. 135; Piedmont, etc. Ry. Co. v. McKenzie, 75 Md. 458; Withers v. North Kent Ry. Co., 3 H. & M. 969; 7 West. L. J. 567. A bridge or way is negligently 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, 2 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 obstructions. See Hale, De Portibus Maris,

ch. 7; 1 Hawk. P. C. ch. 32, § 13; Colchester v. Brooke, 7 Q. B. 339; Williams v. Wilcox, 8 Ad. & El. 314; The Maggie P., 25 Fed. Rep. 202. In Winpenny v. Philadelphia, 65 Penn. St. 135, 140, Agnew, J., said: "The general understanding in this country is that the clearing out of streams and removing obstructions to navigation belong to the State or the United States, according to the character of the stream, as confined within the State limits or as extending beyond, and necessary to interstate commerce. Yet it is not a duty of perfect obligation, but one of voluntary assumption or imperfect obligation, inasmuch as it cannot 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 v. Wood, 146 Penn. St. 370.

4 Missouri River Packet Co. v. Hannibal R. Co., 1 McCrary, 281.

5 Morrison v. Thurman, 17 B. Mon. 267.

1

left in the river in à condition dangerous to vessels, the company was held responsible for injuries to a vessel which struck thereon, although the vessel was prosecuting her voyage on Sunday. 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. A vessel which leaves an anchor in a navigable channel without a buoy is liable for the injury sustained by another vessel which runs foul of it.

§ 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. But in the case

1 Philadelphia R. Co. v. Philadelphia Towboat Co., 23 How. 209. In Bearrs v. Sherman, 56 Wis. 55, held that the owner of logs is not liable for the obstruction of a navigable river thereby, when they are under the control of another person under a contract to run them down the stream. See Lammers v. Brennan, 46 Minn. 209; Miller v. Chatterton, id. 338. As to injuries caused by logs broken from a raft, see New Orleans, etc. R. Co. v. McEwen (La.), 22 S. Rep. 675.

2 See, also, Merchants' Wharf-Boat Ass'n v. Wood, 64 Miss. 661; Wallace v. Merrimack River Nav. Co., 134 Mass. 95 (collision on Sunday).

3 Bartlett v. Baker, 3 H. & C. 153. 4 Philadelphia R. Co. v. Philadelphia Towboat Co., 23 How. 209; The Alabama, 18 Fed. Rep. 831; Inland

Coasting Co. v. The Commodore, 40 id. 258.

5 Young v., 1 Ld. Raym. 725; Queen v. Cluworth, 6 Mod. 163; Pierse v. Fauconberg, 1 Burr. 292; Martin v. Leavers, 46 J. P. 807; Bracton, lib. 1. ch.12, fol. 6; Just. Inst. lib. 2, tit. 1, fol. 4; Cooper's Justinian, lib. 2, tit. 1; Civil Code of La. art. 443, 1446; Com. Dig. tit. Chimin, D. 4; Hale, De Portibus Maris, ch. 7; Hargrave's Law Tracts, 79, 85, 86; Callis on Sewers, 73; Carrollton R. Co. v. Winthrop, 5 La. Ann. 36; Municipality No. 2 v. Orleans Cotton Press, 18 La. 122; Natchitoches. v. Coe, 3 Martin, N. s. 140; New Orleans v. New Orleans R. Co., 27 La. Ann. 414; Pulley v. Municipality No.2, 2 La. 278; Hanson v. Lafayette, 18 La. 295; McKeen v. Kurfurt, 10 La. Ann. 523; Leonard v. Baton Rouge, 39 id. 275; Sweeney v. Shakspeare, 41 id. 614.

of Ball v. Herbert,1 it was held that the right of towage depends 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. 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. The public have, therefore, as against the riparian owners, and as incident to the right of navigation, no common-law right to use the land adjoining a river above high-water mark for the purpose of landing or embarkation, or of mooring. Proof of necessity or danger would not apparently free the navigator from liability for appreciable damage thus caused to a riparian proprietor. Those who travel upon the banks of streams for the purpose of propelling their

13 T. R. 253.

which the effect of an early grant

2 Lee Nav. Conservators v. Button, from the king of Spain was discussed, 6 App. Cas. 685.

8 Ball v. Herbert, 3 T. R. 253; Williams v. Wilcox, 8 Ad. & El. 314; Blundell v. Catterall, 5 B. & Ald. 268; Gray v. Bond, 2 Brod. & Bing. 667; Brown v. Chadbourne, 31 Maine, 9, 25; Treat v. Lord, 42 id. 552, 564; Hooper v. Hobson, 57 id. 273, 276; Ledyard v. Ten Eyck, 36 Barb. 102, 127; Lorman v. Benson, 8 Mich. 18, 27: Reimold v. Moore, 2 Brown (Mich.), 15; Ensminger v. People, 47 Ill. 384, and Chicago v. Laflin, 49 Ill. 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. Reading, 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

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 v. Mead, 1 Grant's Cas. (Penn.) 197.

4 Ibid.; Ecroyd v. Coulthard, [1898] 2 Ch. 358; [1897] 2 Ch. 554; Devonshire v. O'Connor, 24 Q. B. D. 468; Ensminger v. People, 47 Ill. 384; Stewart v. Fitch, 2 Vroom, 17, 20. As to the rule in Pennsylvania, see ante, § 65.

5 Post, 102; Hale, De Portibus Maris, ch. 3; Hargrave's Law Tracts, 51; Blundell v. Catterall, 2 B. & Ald. 268; Wyatt v. Thompson, 1 Esp. 252; Morrison v. Thurman, 17 B. Mon. 249, 257; 14 id. 367; Morgan v. Reading, 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.

logs are liable in trespass to the owner of the banks,' 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."

§ 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 drawing up and leaving their boats,* in the absence of a prescriptive right. A littoral proprietor has the exclusive right to draw a boat or seine on his own land, to erect fishing huts there, or to fix stakes in his own flats below the high-water mark of tide waters for the purpose of spreading a seine. 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 Pac. Rep. 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 Ry. 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 unless it appears that such trespasses are contemplated or that the riparian owners object. Fuller v. Rice, 52 Mich. 435.

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. 3 Brooke's Abr., tit. Custom, pl. 46; Westfall v. Van Anker, 12 Johns. 425; Fitz. Barre, 93. Freary v. Cooke, 14 Mass. 488. See Ilchester v. Raishleigh, 61 L. T. Pitkin v. Olmstead, 1 Root, 219; Munson v. Baldwin, 7 Conn. 171. See Sidwell v. Greig, 53 N. Y. S. 1115. 7 Ibid.

477.

5 Gray v. Bond, 2 Brod. & Bing. 667; Holroyd, J., in Blundell v. Catterall, 5 B. & Ald. 268; Coolidge v. Williams, 4 Mass. 140; Hart v. Hill, 1 Whart. 138; Shrunk v. Schuylk Nav. Co., 14 Serg. & R. 71; Cortelyou v. Van Brundt, 2 Johns. 357; Jacobson v. Fountain, id. 170; Whittaker

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.

prietor of land on which a seine reel is placed, without his license, cuts it down and thrusts it toward the water, after notice to remove it, and neglect to do so, he is not liable if the reel floats away, although he might have prevented it.' The right to draw a seine upon the land of 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. 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.1

§ 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. Land taken under a statute 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; and the banks of a navigable stream may be appropriated by statute to the use of the public as a towing path. In such case, also, the riparian proprietors retain 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; the rule being that, in the 6 Grand Junction Canal Co. v. Petty, 21 Q. B. D. 273; Rex v. Leake,

6

1 Almy v. Grinnell, 12 Met. 53.

2 Hart v. Hill, 1 Whart. 138; Bald. Ct. Dig. 339, pl. 12, 13.

8

5 B. & Ad. 469. See Alexander v.

3 Tinicum Fishing Co. v. Carter, 61 Tolleston Club, 110 Ill. 65. Penn. St. 21.

204.

7 Winch v. Conservators of the

Hierlihy v. Loggie, 3 Allen (N. B.), Thames, L. R. 7 C. P. 471; Lee Con

5 Winch v. Conservators of the River Thames, L. R. 7 C. P. 471; L. R. 9 C. P. 378; Rex v. Severn Nav. Co., 2 B. & A. 646; Hollis v. Goldfinch, 1 B. & C. 205; Lee Conservancy Board v. Button, 12 Ch. D. 383; 6 App. Cas. 685; 15 Ir. L. T. 235

servancy Board v. Button, 12 Ch. D. 383; 6 App. Cas. 685; Rex v. Leake, 5 B. & Ad. 469; Grand Junction Canal Co. v. Petty, 21 Q. B. D. 273; 68 L. T. 167.

8 Ibid.; Carpenter v. State, 12 Ohio St. 457; Indiana Central Canal Co. v. State, 53 Ind. 575. A canal and its