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.2 Subject 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. 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. They cannot by prescription acquire a right which will defeat or destroy the public right of floating logs.

§ 109. Same Same.-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

1 Ibid.

2 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) ch. 42, § 7, 8; R. S. (1871) ch. 42, $$ 7. 8. See Brown v. Chadbourne, 31 Maine, 9; Treat v. Lord, 42 id. 552; Hooper v. Hobson, 57 id. 273. See Smith v. Fonda, 64 Miss. 551; Goodwill v. Bossier Police Jury,38 La. Ann. 752.

3 Treat v. Lord, 42 Maine, 552; Bryant v. Glidden, 36 id. 36; Jones v. Johnson, 6 Tex. Civ. App. 262; Haines v. Welch, 14 Oregon, 319.

4 Brown v. Chadbourne, 31 Maine,

9; Dwinel v. Veazie, 44 id. 167; 50 id. 479; Gerrish v. Brown, 51 id. 256; Veazie v. Dwinel, 50 id. 479. Upon the question what is a reasonable use of the stream, see Ibid.; Davis v. Winslow, 51 Maine, 264; Lancey v. Clifford, 54 id. 487; Weise v. Smith, 3 Oregon, 445; Sewall's Fall Bridge v. Fisk, 23 N. H. 171; Carter v. Berlin Mills Co., 58 id. 52; Brown v. Kentfield, 50 Cal. 129; Enos v. Hamilton, 27 Wis. 256; 24 id. 658. See Merriman v. Bowen, 33 Minn. 455.

5 Ibid.; Parks v. Morse, 52 Maine, 260.

6 Collins v. Howard, 65 N. H. 190.

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.3 It is 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,' 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

1 Lewis v. Coffee County, 77 Ala. 190; Shaw v. Oswego Iron Co., 10 Oregon, 371; Hines v. Hall, 17 id. 165; Gaston v. Mace, 33 W. Va. 14; Gwaltney v. Scottish-Carolina T. Co., 111 N. C. 547; 115 id. 579; Commissioners v. Catawba Lumber Co., 115 id. 590; 116 id. 731; 47 Am. St. Rep. 829, 840, n.; Walker v. Allen, 72 Ala. 456; Goodin v. Kentucky Lumber Co., 90 Ky. 625.

2 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 B. Co. v. Speechly, 31 Mich. 336; Middleton v. Flat River B. Co., 27 id. 533; Hubbard v. Bell, 54 Ill. 110; Cates v. Wadlington, 1 McCord (S. C.), 580; Allison v. Davidson (Tenn. Ch.), 39 S. W. Rep. 905; Brown v. Chadbourne, 31 Maine, 9; Treat v. Lord, 42 id. 552;

Lewis v. Coffee County, 77 Ala. 190; Bayzer v. McMillan Mill Co., 105 id. 395; 5 Alb. L. J. 407.

3 Com. v. Charlestown, 1 Pick. 180, 186, and see next note; Blood v. Nashau R. Co., 2 Gray, 137.

4 Ibid.; Com. v. Breed, 4 Pick. 460; Rowe v. Granite Bridge Co., 21 Pick. 344, 347; Charlestown v. County Com'rs, 3 Met. 202; Murdock v. Stickney, 8 Cush. 113, 115; West Roxbury v. Stoddard, 7 Allen, 158, 171; Att. Gen. v. Woods, 108 Mass. 436; The Montello, 20 Wall. 442, 443; Getty v. Hudson River R. Co., 21 Barb. 617.

554 IIL 110; 5 Am. Rep. 108, note. 6 Ibid. p. 114. See Thunder Bay B. Co. v. Speechly, 31 Mich. 336, 343.

7 American River Water Co. v. Amsden, 6 Cal. 443; Caldwell v. Sacramento County, 79 Cal. 350.

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. 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. Same- Navigation in - Relation to riparian rights. The rights of the public are not superior to private rights, in streams which are merely floatable, to the same extent as in rivers which are capable of more extended navigation. In the latter the public right extends equally to all navigable portions of the river, and in the former also the right to drive logs is paramount to the right to obstruct the river by a boom. But a riparian owner has a right, without license, and as appurtenant to the ownership of the bank, to construct, across a floatable stream, a dam which does not obstruct or interfere with the navigation of the stream for the purposes for which it is navigable. The right of floatage is not exclusive of the use of the water for machinery, and the rights of the public and those of the riparian owners are both to be enjoyed with a proper regard to the existence and preservation of the other. If dams are so constructed as to limit the pub

1 Ellis v. Carey, 30 Ala. 725; Rhodes v. Otis, 33 Ala. 578; Peters v. New Orleans R. Co., 56 Ala. 528; Alabama v. Bell, 5 Porter, 379.

25 Humph. 363; post, § 111.

3 Sullivan v. Jernigan, 21 Fla. 264. 4 Kretzschmar v. Meehan, 74 Minn. 211; Hallock v. Suitor (Oregon), 60 Pac. Rep. 384.

5 Pearson v. Rolfe, 76 Maine, 380, 391; Erie v. Canfield, 27 Mich. 479; Middleton v. Flat River B. Co., 27 Mich. 533; Grand Rapids B. Co. v. Jarvis, 30 Mich. 308; Thunder Bay River B. Co. v. Speechly, 31 Mich. 336; Att. Gen. v. Evart B. Co., 34 Mich. 462; White River Log Co. v.

Nelson, 45 Mich. 578; Buchanan v. Grand River Log Co., 48 Mich. 364; A. C. Conn. Co. v. Little Suamico L. Co., 55 Wis. 580; Anderson v. Munch, 29 Minn. 414; Bearrs v. Sherman, 56 Wis. 55; Newbold v. Mead, 57 Penn. St. 487; Enos v. Hamilton, 27 Wis. 256; Bassett v. Carleton, 32 Maine, 553. See Barnes v. Heath, 58 N. H. 196; State v. Gilmanton, 14 N. H. 467, 479; Sewall's Fall Bridge v. Fisk, 23 N. H. 171; George v. Fisk, 32 N. H. 32, 43; Thompson v. Androscoggin River Co., 54 N. H. 545; 58 N. H. 108; Lancey v. Clifford, 54 Maine, 487; Brown v. Chadbourne, 31 id. 9; Knox v. Chaloner, 42 id. 150, 157; Veazie

lic passage to a small portion of the stream, and sufficient provision is made for the passage of logs, the public cannot complain, while those who exercise the right of floatage are liable to the riparian owners for a negligent exercise of the common right which causes them an injury,1 including damages for breaking a mill-dam or the banks of the stream. In streams which are only floatable, the riparian owner is only bound not to obstruct its reasonable use for that purpose. His obligation to supply reasonable facilities for the passage of logs does not extend to the passage of rafts of considerable size. If he obstructs the stream by making a new channel into which its waters are turned, the public may use it for floating logs and rafts as they

had been accustomed to use the old channel,' the right of passage applying to the natural flow of the stream or its equivalent; and if the new channel becomes obstructed, they may effect a suitable passage over the former channel, causing no unnecessary damage thereby. If a break in a dam is permitted to remain without repair, and the water in the mill-pond is thereby so reduced as to make it difficult or impossible to pass logs through a chute in the dam, the owner of logs floating down the stream to market may pass them through a new channel created by the break, doing no unnecessary damage.1 In Maine a stream which is only capable of floating rafts or logs, is "not navigable" within the meaning of the mill act of 1841, which authorizes the erection and maintenance of water mills and dams upon and across any unnavigable stream. In Pennsylvania, where the principal fresh-water rivers are held to be public property like tide waters, fresh streams which are merely floatable and have been included in the warrants and surveys of the land office as part of the public lands, belong to the riparian owners usque ad filum aquæ, subject to the public right of passage. A similar rule prevails in Tennessee."

§ 111. Same-Obstructions - Improvements. When a river is capable of navigation in different parts of its course, but, by reason of rocks, sand-bars and other obstructions, does not admit of continuous navigation, the public may pass and

1 Dwinel v. Barnard, 28 Maine, 554. 2 Pearson v. Rolfe, 76 Maine, 380. 3 Dwinel v. Veazie, 44 Maine, 167; Roush v. Walter, 10 Watts, 86.

4 Whistler v. Wilkinson, 22 Wis. 572. See Roby Lumber Co. v. Gray, 73 Mich. 356, 363; Pratt v. Brown, 106 Mich. 628.

5 Veazie v. Dwinel, 50 Maine, 479, 483; Stetson v. Bangor, 60 id. 313. See, also, State v. Cullum, 2 Speers (S. C.), 581; State v. Hickson, 5 Rich. (S. C.) 447; Witt v. Jefcoat, 10 id. 389; Wood v. Hustis, 17 Wis. 416; Waller v. McConnell, 19 Wis. 417; Crosby v. Smith, id. 449; Cobb v. Smith, 16 Wis. 661. In proceedings under a statute to obtain the right to dam an unnavigable stream, it is presumed,

on appeal, in the absence of evidence to the contrary, that it appeared to the court below that the stream was not navigable. Siman v. Rhodes, 24 Minn. 25. That “dam” and “dyke” are synonymous, see Com. v. Tolman, 149 Mass. 229, 232.

6 Coovert v. O'Conner, 8 Watts, 477; Barclay R. Co. v. Ingham, 36 Penn. St. 194.

7 Stuart v. Clark, 2 Swan, 9; Sigler v. State, 7 Baxter, 493.

8 The Montello, 20 Wall. 430; 11 Wall. 411; The Daniel Ball, 10 Wall. 557; Spooner v. McConnell, 1 McLean, 337, 350; Jolly v. Terre Haute Bridge Co., 6 McLean, 237; Brown v. Chadbourne, 31 Maine, 9, 23, 25; Treat v. Lord, 42 id. 552; People v. Canal Ap