brought from the city of New York, it was held: first, That the right to encumber lands adjoining navigable waters with manure or merchandise, being more than a simple right of passage, could not be acquired by the public by custom or prescription; second, That the doctrine of parol dedication of highways, streets and public squares does not extend to public landings. In Talbot v. Grace,' in Indiana, there was evidence that the place in question had been long used both for the purpose of a landing, and for the loading and unloading of vessels, and one ground of the decision was, following Pearsall v. Post, that the public right could not rest upon, the ground of prescriptive user. In Massachusetts the public may, by immemorial usage, acquire the right to use the banks of a river for the purpose of landing; and a tract of land or an open square in a town may be dedicated to the public as a park. The same doctrine, as to landings, was early recognized in Maine. But in the latter State a general right to use the river banks as a place of deposit cannot now be acquired by custom; and a landing, even for the purpose of direct transit, is held to be more than a highway.' In Minne

430 Ind. 389.

6

220 Wend. 111; 22 Wend. 425.

3 Kean v. Stetson, 5 Pick. 492; Coolidge v. Learned, 8 Pick. 504; Green v. Chelsea, 24 Pick. 80; Boston v. Richardson, 105 Mass. 351, 357. In North Carolina the use of a landing by the public for twenty years as of right affords ground for a presumption of dedication to the public use. Askew v. Wynne, 7 Jones, 23. See also Hardy v. Memphis, 10 Heisk. 127; Barney v. Baltimore, 1 Hughes, 118.

Stetson v. Bangor, 60 id. 313. See
Newcastle v. Haywood, 68 N. H. 179.

7 Ibid.; State v. Wilson, 42 Maine, 9. See Hasty v. Johnson, 3 id. 282; Thompson v. Androscoggin Bridge, 5 id. 62; Kaler v. Beaman, 49 id. 207. The dedication must be accepted; but this may be proved by acts. People v. Williams, 64 Cal. 498; Brakken v. Minneapolis Ry. Co., 29 Minn. 41. A dedication can properly be to public use only; a private right of way cannot be created by dedication. Hall v. McLeod, 2 Met. (Ky.) 98; Steele v. Sullivan, 70 Ala. 589, 594. In Alabama a presumption of dedication does not arise from user for a less period than twenty years, unattended by unequivocal acts evincing See such intent, and may be disproved by protests on the owner's part. Ibid.; Nichols v. Aylor, 7 Leigh, 505. A user for twenty years will not raise a prescription where the right has always been contested. Smith v.

4 Abbott v. Cottage City, 143 Mass. 521. In this State, neither under the Province Charter nor by custom can permanent structures be erected upon a public landing place. Att. Gen. v. Tarr, 148 Mass. 309.

5 Sevey's Case, 6 Maine, 118. Duley v. Kelley, 74 Maine, 556.

"Littlefield v. Maxwell, 31 Maine, 134; Bethum v. Turner, 1 id. 111; Moor v. Lang, 42 id. 29; State v. Wilson, id. 9; Hill v. Lord, 48 id. 83, 100;

sota and Wisconsin2 the doctrine that land cannot be dedi-
cated by parol as a landing has been disapproved; and in
Iowa and Kentucky it has been held that land dedicated to
the public use as a street or common may be used for the pur-
poses of a wharf. In Godfrey v. Alton, the Supreme Court
of Illinois held that a parol dedication of land is not within the
Statute of Frauds, and that, if the owner of the land makes
a survey and lays it off by plat for public use as a landing,
and makes sales in reference thereto, such acts amount to a
dedication, although there are no declarations, either oral or
on the plat, showing that a dedication was intended. 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, although a definite grantee is not named or in exist-

Miller, 11 Gray, 148; Livett v. Wil- Elmore, 16 Wis. 509; Yates v. Judd,
3 Bing. 115.
18 Wis. 118.

son,

1 Mankato v. Willard, 13 Minn. 13; Brisbine v. St. Paul R. Co., 23 Minn. 114.

2 Gardiner v. Tisdale, 2 Wis. 153; Connehan v. Ford, 9 Wis. 240. See also Bird v. Smith, 8 Watts, 434; Chambers v. Furry, 1 Yeates, 167.

3 Haight v. Keokuk, 4 Iowa, 199, 214; Grant v. Davenport, 18 Iowa, 179; Cowles v. Gray, 14 Iowa, 1. See Bingham v. Doane, 9 Ohio, 165; State v. Graham, 15 Rich. (S. C.) 310; Sloane v. McConahy, 4 Ohio, 157, and note; Price v. Methodist Ep. Church, id. 516; Cincinnati v. First Presb. Church, 8 Ohio, 298; Cincinnati v. Hamilton Co., 7 Ohio, 88; Com. v. Philadelphia, 16 Penn. St. 79; State v. Randall, 1 Strob. (S. C.) 110. As to the meaning of the words "reserved landing" upon recorded plat, see above cases of Grant v. Davenport and Cowles v. Gray. See also Emmons v. Milwaukee, 32 Wis. 434; Dietrich v. Northwestern Union Ry. Co., 42 Wis. 248; Cook v. Burlington, 30 Iowa, 94; 36 Iowa, 357; Mankato v. Meagher, 17 Minn. 265; Arnold v.

4 Newport v. Taylor, 16 B. Mon. 699, 804; Rowan v. Portland, 8 id. 232; Louisville v. Bank of the United States, 3 id. 138; Potomac S. Co. v. Upper Potomac S. Co., 109 U. S. 672, 686.

5 Godfrey v. Alton, 12 IIL 30; Alton v. Illinois Transp. Co., id. 38; Field v. Carr, 59 Ill. 198, 200; First Evangelical Church & Walsh, 57 Ill. 363, 369; Smith v. Flora, 64 Ill. 93; McIntire v. Storey, 80 Ill. 127, 130; Warren v. Jacksonville, 15 Ill. 236; Waugh v. Leech, 28 Ill. 488, 491; Rees v. Chicago, 38 Ill. 322. See Newport v. Taylor, 16 B. Mon. 699, 803; Rowan v. Portland, 8 id. 232; Hurley v. Miss. Boom Co., 34 Minn. 143; California Nav. Co. v. Union Transp. Co., 126 Cal. 433; Pittsburg v. Epping-Carpenter Co., 194 Penn. St. 318; Whyte v. St. Louis (Mo.), 54 S. W. Rep. 478. See 14 Harv. L. Rev. 65.

6 See Gardiner v. Tisdale, 2 Wis 153, 191; Knowles v. Dow, 22 N. H. 387; Taft v. Tarpey, 125 Cal. 376. The usage by which, in the South-west, goods are put off by carriers of goods

ence, and no formal acceptance is shown,' 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

§ 106. Same-Public landings. 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.1 But evidence of user by the individul inhabitants of a town, unauthorized by the town, does not tend to show a possession by the town in its corporate capacity. When a public landing place is once established, it may be discontinued by the legislature, but not by a town,3 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."

107. Floatable streams-Logs - Rafts.- 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. 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 to the beds of such streams is subject to this right of passage.'

§ 108. Same-What are.-Streams which are not floatable, or cannot, in their natural state, be used for the carriage

Barney v. Keokuk, 94 U. S. 324; Haight v. Keokuk, 4 Iowa, 199; Bowman v. Portland, 8 B. Mon. 253; New. port v. Taylor, 16 id. 700; Barney v. Baltimore, 1 Hughes, 118; Ellerman 2. Morgan's La. R. Co., 34 La. Ann. 698.

1 Coolidge v. Learned, 8 Pick. 504. 2 Green v. Chelsea, 24 Pick. 71, 79; Hill v. Lord, 48 Maine, 83, 97.

Com. v. Tucker, 2 Pick. 44; Kean v. Stetson, 5 Pick. 492, 495.

4 Bennett v. Clemence, 6 Allen, 10. 5 Com'rs v. Queens County, 17 Wend. 9.

6 Hale, De Jure Maris, ch. 2, 3; Hargrave's Law Tracts, 8, 9.

7 Shaw v. Oswego Iron Co., 10 Oregon, 371; Nutter v. Gallagher, 19 Oregon, 375; Falls Manuf. Co. v.

of boats, rafts, or other property, are absolutely private,1 and if the stream is so small and shallow that logs cannot be driven in them without traveling upon the banks, it is not open to the public for passage. 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