If the

repass in those parts of the river which are navigable. natural navigation of the river affords a channel for useful commerce, it continues to be navigable and open to the public, although the natural barriers which render its navigation difficult are afterwards removed by artificial means, such as locks, canals and dams. If the navigation of a river which was originally navigable in fact, to a greater or less extent, be improved by the act of the riparian owners in deepening the channel, the public have the right to use it for all purposes to which it is suited in its improved condition, and when the riparian owners alter the channel and divert the water for manufacturing purposes, a bill in equity may be maintained by them or the attorney-general to establish the boundary line between the public and private rights. But if, being originally unnavigable, it is made navigable by the riparian proprietors, the public right does not attach.5 A log-owner who, under a

praisers, 33 N. Y. 461; Morgan v. King, 25 N. Y. 459; Flanagan v. Philadelphia, 42 Penn. St. 219; Monongahela Bridge Co. v. Kirk, 46 id. 112; Cox v. State, 3 Blackf. 193; Hogg v. Zanesville Canal Co., 5 Ohio, 410; Hickok v. Hine, 23 Ohio St. 527; Rowe v. Granite Bridge Co., 23 Pick. 346; Att. Gen. v. Woods, 108 Mass. 436; Illinois River Packet Co. v. Pe oria Bridge Co., 38 Ill. 467; Harrington v. Edwards, 17 Wis. 586.

1Ibid.; St. Anthony Falls W. P. Co. v. St. Paul Water Com'rs, 168 U. S. 349; Brown v. Chadbourne, 31 Maine, 9, 23, 25. An accidental or intentional obstruction, which was not in the stream in its natural condition, does not take away its character as a highway. Treat v. Lord, 42 Maine, 552; Brown v. Black, 43 id. 443.

2 Ibid.; The Montello, 20 Wall. 430; Egan v. Hart, 165 U. S. 188. The Canadian statute, 12 Vict. ch. 87, § 5, includes the user, without compensation, of improved streams during freshets. Caldwell v. McLaren, 9 App. Cas. 392, overruling Boale v. Dickson, 13 U. C. P. 337. See 1 Canada Rev. Stats. (1886), p. 156, art. 27. See

The Athabasta, 45 Fed. Rep. 651, 654. As to compensation for dredging the foreshore owned by a littoral proprietor, see Blantyre v. Clyde Nav. Trustees, 6 App. Cas. 275; or for making waterway excavations, see Mississippi Valley Trust Co. v. Hofius, 20 Wash. 272.

3 The Montello, 20 Wall. 430; Holden v. Robinson Co., 65 Maine, 215; Toothaker v. Winslow, 61 id. 133; Wadsworth v. Smith, 11 id. 278; Volk v. Eldred, 23 Wis. 410; Cates v. Wadlington, 1 McCord (S. C.), 580. So of raising the waters of a navigable lake. Pewaukee v. Savoy (Wis.), 79 N. W. Rep. 436.

4 Connecticut River Lumber Co. v. Olcott Falls Co., 65 N. H. 290; 13 L. R. A. 826, and note.

5 Hale, De Jure Maris, ch. 3; Wadsworth v. Smith, 11 Maine, 278; Cro. Car. 132; Cowper, 47; Ligare v. Chicago, etc. R. Co., 166 Ill. 249; East Hoquiam Boom Co. v. Neeson, 20 Wash. 142; Holden v. Robinson Co., 65 Maine, 215; Ten Eyck v. Warwick,75 Hun, 562; De Camp v. Thompson, 44 N. Y. S. 1014; Nutter v. Gallagher, 19 Oregon, 375.

charter from the legislature, removes obstructions from a floating stream, thereby increasing its capacity to float logs, cannot require a mill-owner below to increase the floating capacity of the sluice-way in his dam, which was sufficient for the passage of all logs in the natural condition of the stream. The legislature cannot, by means of dams or otherwise, make an unnavigable stream public and navigable, or deprive the riparian owners of their right to use the water, without affording them compensation; 2 nor, if the legislature declares a stream to be navigable, does it divest the property previously acquired in its bed under a patent from the State. But such owners cannot recover for merely consequential injuries, such as the washing away of the banks of an improved stream. They may dedicate to the public use highways by water as well as by land, and if, when dedicated, they are not passable, the public may make them so.

4

The mere user by the public of a

1 Stratton v. Currier, 81 Maine, 497; Foster v. Block Co., 79 id. 508; Pearson v. Rolfe, 76 id. 380.

2 Ibid.; Walker v. Board of Public Works, 16 Ohio, 540; Clay v. Pennoyer Creek Impr. Co., 34 Mich. 204; Thunder Bay River B. Co. v. Speechly, 31 Mich. 336; Moore v. Veazie, 32 Maine, 343; 31 Maine, 360; 14 How. 568; State v. Cullum, 2 Speers (S. C.), 581; Binney's Case, 2 Bland, 158; State v. Pool, 74 N. C. 402, 407; Barclay R. Co. v. Ingham, 36 Penn. St. 194; Morgan v. King, 35 N. Y. 454; 18 Barb. 277; 30 Barb. 9; Cates v. Wadlington, 1 McCord (S. C.), 585; Wilson v. Smith, 10 Wend. 324; Partridge v. Eaton, 63 N. Y. 482; 3 Hun, 533; 5 S. C. 625; White Deer Creek Co. v. Sassamen, 67 Penn. St. 415; State v. Glen, 7 Jones, 321; Stofflet v. Estes, 104 Mich. 208; Clarke v. Hall Lumber Co., 41 Minn. 105. Legislative enactments relating to navigable streams extend to those after wards declared by the legislature to be highways. Walker v. Board of Public Works, 16 Ohio, 540; Brown v. Com., 3 Serg. & R. 273; State v. Cullum, 2 Speers (S. C.), 581; People

v. Gutchess, 48 Barb. 656. A statute which declares a stream to be a public highway for the passage of boats and rafts embraces logs not fastened together. Deddrick v. Wood, 15 Penn. St. 9.

3 Coovert v. O'Conner, 8 Watts, 447: Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Barclay R. Co. v. Ingham, 36 Penn. St. 194; People v. Gutchess, 48 Barb. 656; Allen v. Weber, 80 Wis. 531; People v. Elk River M. & L. Co., 107 Cal. 221. 4 Brooks v. Cedar Brook Imp. Co., 82 Maine, 17.

5 Yates v. Judd, 18 Wis. 118, 128; Arnold v. Elmore, 16 Wis. 509; Mariner v. Schulte, 13 Wis. 692; People v. Williams, 64 Cal. 498. See Jeremy v. Elwell, 5 Ohio Cir. Ct. 379. Making a private road usable by the public, subject to tolls, is not a dedication of the road to the public as a highway; and, apparently, a dedication subject to tolls can only be made by authority of the Crown or Parlia ment. Austerberry v. Oldham, 29 Ch. D. 750.

private stream for floating logs at irregular intervals, neither interrupted nor acquiesced in, is not evidence of a dedication to the public;1 nor can such user by a small number of persons give to the public a prescriptive right. A navigable stream may be useful as a highway when covered with ice. In Maine it is held that the public right of passage is not suspended or changed in winter by the fact that it cannot be used with boats, and that those who cut holes in the ice upon or near a winter road along the shore of a navigable river which has been used for twenty years, are liable to those who, without being themselves at fault, suffer injury or loss thereby.3 But this right of travel is not paramount to the right to cut ice when roads and ferries are available to the traveler.1

§ 112. Navigability — Judicial notice. By the commonlaw rule, a river is prima facie navigable only so far as the tide ebbs and flows in it, and, in case of doubt, the burden of proof is upon those who allege navigability above that point.5 But the courts take notice of general statutes," and of those characteristics of streams which are matters of general history'

1 Curtis v. Keesler, 14 Barb. 511; ante, § 53, 55, 109; Munson v. Hungerford, 6 Barb. 265; Shaw v. Crawford, 10 Johns. 236; Clements v. West Troy, 10 How. Pr. 199; post, § 121; Barker v. Deignan, 25 S. C. 252.

2 Ibid.; Meyer v. Phillips, 97 N. Y. 485. In this case a stream, five miles long, two of which were through the plaintiff's lands, had been used for thirty years for floating saw-logs by not more than twelve persons in all, usually by not more than three or four persons in any one year. Their user was only for about six days in any one year, and in some years not more than three. It was held that even if such a public right could be acquired by prescription, it was not established by these facts; that, as the defendants claimed a right in the public to use the stream, and threatened to exercise it whenever they chose, the plaintiff was entitled to equitable relief to quiet his title

and prevent the threatened injury; and that all who asserted the common right could be joined as defendants. As to improvements as between landlord and tenant, see Foss v. Cosgriff, 19 N. Y. S. 941.

3 French v. Camp, 18 Maine, 433; State v. Wilson, 42 id. 9. See Roxbury v. Stoddard, 7 Allen, 158. Traveling over the ice in a public river is, like navigating it, the exercise of a public right, which cannot raise a prescriptive right against an individual. Ibid.; Dinn v. Queen, 1 Haszard & W. (Pr. Edw. Island), 361; Carvell v. Charlottetown, 2 id. 115, 123.

4 Woodman v. Pitman, 79 Maine, 456.

5 Rhodes v. Otis, 33 Ala. 578; Bowman v. Wathen, 2 McLean, 376; Adams v. Pease, 2 Conn. 483.

6 North Platte W. W. Co. v. North Platte, 50 Neb. 853; 56 id. 403.

7 See Josh v. Marshall, 53 N. Y. S. 419.

or common knowledge,1 as that the tide ebbs and flows in such well-known rivers as the Thames and Mersey. In Indiana judicial notice is taken of the course of the Ohio River,3 of the position of the falls of the Ohio, and of the navigability of streams. In Wisconsin the court has taken notice of the fact that the capacity of many of the smaller streams in that State to float logs and lumber to market has been increased by dams. And generally a stream is presumably navigable, when it is subject to the commercial power of Congress and that power has been exerted over it, or when the river remains public property and does not pass to the riparian proprietors. So judicial notice has been taken of the fact that no part of a river lies within the corporate limits of a city; that there are no tidal streams in a particular county; 1o and that the boundary between the States of Illinois and Michigan is in the middle of Lake Michigan." If the character of the stream is not defined in any public statute, or in a private statute introduced in evidence, and it is not of such notoriety as to be generally understood, it cannot be known judicially that it is navigable.12 So the court

1 Bittle v. Stuart, 34 Ark. 224; Thompson v. Androscoggin Co., 54 N. H. 545, 548; De Baker v. So. Cal. Ry. Co., 106 Cal. 257; People v. Brooks, 101 Mich. 98; New York & L. I. Bridge Co. v. Smith, 35 N. Y. S. 920; De Camp v. Thompson, 44 id. 1014; Lands v. A Cargo, 4 Fed. Rep. 478; Ex parte Davidson, 57 id. 883.

2 Whitney v. Gauche, 11 La. Ann. 432; McIntosh v. Gastenhofer, 2 Rob. (La.) 403.

3 Hays v. State, 8 Ind. 425.

4 Cash v. Auditor, 7 Ind. 227.

5 Neaderhouser v. State, 28 Ind. 257; Ross v. Faust, 54 Ind. 471; Mossman v. Forrest, 27 Ind. 233. So of the county in which a public ditch is located and the lands which it affects, if described by averment. Smith v. Clifford, 99 Ind. 113. So of State and Federal reports and correspondence as to swamp land titles. Kirby v. Lewis, 39 Fed. Rep. 66. So of an act of Congress authorizing a bridge over navigable waters. Penn.

10

9

Ry. Co. v. Baltimore Ry. Co., 37 Fed.
Rep. 129.

6 Tewksbury v. Schulenberg, 41 Wis. 584, 593; Siegbert v. Stiles, 39 Wis. 533. See Hilliker v. Coleman, 73 Mich. 170; Clark v. Cambridge Impr. Co., 45 Neb. 798.

7 Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 556, 564; Hodgman v. St. Paul Ry. Co., 23 Minn. 153, 160; Com. v. King, 150 Mass. 221; State v. Wabash Paper Co., 21 Ind. App. 167. 8 Wood v. Fowler, 26 Kansas, 682. 9 Montgomery v. Montgomery Plank road Co., 31 Ala. 76.

10 Walker v. Allen, 72 Ala. 456. 11 Thorson v. Peterson, 9 Fed. Rep. 517.

12 People v. Allen, 42 N. Y. 378, 381; New York Co. v. Brooklyn, 71 N. Y. 580; Leighy v. Ashland Lumbering Co., 49 Wis. 165; Geise v. Green, id. 334; Oelrich v. Gilman, 31 Wis. 495; Siman u Rhoades, 24 Minn. 25; Waller v. MoConnell, 19 Wis. 417. See Conde v. Schenectady, 51 N. Y. S. 854. The

cannot take judicial notice that a vessel lying "near the mouth of " a certain harbor is in the county adjoining,' or that certain land lying under a navigable lake is not subject to location." If streams flowing through territory which was under the land system of the United States are not meandered, the presumption is that they are not navigable.3

§ 113. Wharves-Repairs.-The owner of a wharf is bound to exercise due diligence to keep it safe for the uses for which it was made. If he permits persons to come there and to have access to and from vessels over the wharf, he is liable for injuries which they, being in the exercise of due care, sustain by reason of his negligence. His duty is the same as that which is imposed upon the keeper of an inn or store to keep the access to his premises, and the passages, rooms, and floors therein, safe for those who enter under the express or implied invitation of the owner. The true rule is, perhaps, even more stringent, the wharf-owner, upon whose vigilance often depends the personal safety of many, being, it has been said, bound to

courts take judicial notice of early Mexican laws, upon which title to lands in California depended. Bouldin v. Phelps, 30 Fed. Rep. 547,

1Des Brisay v. Com'rs, 1 Hannay (N. B.), 48.

2 Wilcox v. Jackson, 109 Ill. 261. 3 Clute v. Briggs, 22 Wis. 607; Jones v. Pettibone, 22 Wis. 308; Hubbard v. Bell, 54 Ill. 110.

Wendell v. Baxter, 12 Gray, 494; Carleton v. Franconia Iron & Steel Co., 99 Mass. 216; Nickerson v. Tirrell, 127 Mass. 236; Macaulay v. New York, 67 N. Y. 602; Swords v. Edgar, 59 N. Y. 28; Buckbee v. Brown, 21 Wend. 110; Moody v. New York, 43 Barb. 282; 34 How. Pr. 288; Carroll v. New York, 51 N. Y. S. 620; Newell v. Bartlett, 114 N. Y. 399; Thomas v. Henges, 131 N. Y. 453; Delaney v. Penn. R. Co., 78 Hun, 393; Railroad Co. v. Hanning, 15 Wall. 649; Hall v. Tilson, 81 Maine, 362; De Gruy v. Aiken, 43 La. Ann. 798.

El. 168; Corby u Hill, 4 C. B. N. s. 556; Collis v. Selden, L. R. 3 C. P. 495; Smith v. London Dock Co., L. R. 3 C. P. 326; Plant Inv. Co. v. Cook, 74 Fed. Rep. 503; Smith v. Burnett, 173 U. S. 430; Sweeney v. Old Colony R. Co., 10 Allen, 368; Elliott v. Pray, id. 378; Knight v. Portland Ry. Co., 56 Maine, 234; Ackhert v. Lansing, 59 N. Y. 646; Swords v. Edgar, id. 28; Cusick v. Adams, 115 N. Y. 55; Trim v. Vallejo St. Wharf Co., 7 Cal. 253; Fennimore v. New Orleans, 20 La. Ann. 124; Philadelphia R. Co. v. Irwin, 89 Penn. St. 71; Buckingham v. Fisher, 70 Ill. 121; Grand Tower Co. v. Hawkins, 72 Ill. 386; Freer v. Cameron, 4 Rich. (S. C.) 228; Maenner a Carroll, 46 Md. 193; Barrett v. Black, 56 Maine, 498; Pittsburg v. Grier, 22 Penn. St. 54; Campbell v. Portland Sugar Co., 62 Maine, 552; Wendell v. Baxter, 12 Gray, 494; Cahill v. Layton, 57 Wis. 600; Minneapolis Mill Co. v. Wheeler, 31 Minn.

5 Chapman v. Rothwell, El. Bk. & 121; Stewart v. Newport News, etc.