without the king's license. Nor is a grant from the Crown sufficient for this purpose, unless some benefit is shown to the community at large which forms a just consideration." "If," says Hale, C. J., "any man will prescribe for a toll upon the sea, he must allege a good consideration; because by Magna Charta and other statutes every one has a right to go and come upon the sea without impediment." The ownership of the soil of an arm of the sea, which is not a port, does not support a claim for tolls, even on the ground of immemorial usage, from those who, in the usual course of navigation, exercise there the common rights of passage and anchorage. The making of a port is, however, a consideration for toll; 5 so is the keeping of a capstan and rope necessary to assist vessels; the maintenance of lights, beacons, or buoys; the cleansing of a river; the repairing of a port, or the liability

8

1 Hale, De Jure Maris, ch. 3; Hargrave's Law Tracts, 10, 46, 73, 78.

2 Haspurt v. Wills, 1 Mod. 47; 1 Sid. 454; 1 Vent. 71; 2 Keb. 624, 665; Vinkensterne v. Ebden, 1 Salk. 248; 1 Ld. Raym. 384; Hill v. Smith, 4 Taunt. 520; Falmouth v. George, 5 Bing. 286; Brett v. Beales, 10 B. & C. 508; Gann v. Whitstable Free Fishers, 11 H. L. Cas. 192; Heddy v. Wheelhouse, Cro. Eliz. 558; Nottingham v. Lambert, Willes, 111; Exeter v. Warren, 5 Q. B. 773; Kingston Docks v. La Marche, 8 B. & C. 42; Jenkins v. Harvey, 1 C. M. & R. 877; 1 Gale, 23. See Woolrych on Waters, 299, 303; Gunning on Tolls, passim; Coulson & Forbes on Waters, ch. 9.

3 Warren v. Prideaux, 1 Mod. 105; Woolrych on Waters, 237; Matson v. Scobell, 4 Burr. 2258; Juxon v. Thornhill, Cro. Car. 132.

4 Gann v. Free Fishers, 11 H. L. Cas. 193; 19 C. B. N. s. 802; Colchester v. Brooke, 7 Q. B. 339; Woolrych on Waters, 299; Nottingham v. Lambert, Willes, 111; Wilkes Kirby, 1 Lutw. 490; 2 id. 519; Com. Dig. tit. Toll Thorough, and Prerogative, D. 48.

V.

5 Ibid.; Yarmouth v. Eaton, 3 Burr.

1402; Hale, De Jure Maris, ch. 3; Hargrave's Law Tracts, 51; Exeter v. Warren, 5 Q. B. 773; Foreman v. Whitstable Free Fishers, L. R. 4 H. L. 281. See London v. Hunt, 2 Lev. 37; Wilkes v. Kirby, 2 Lutw. 1519; Woolrych on Waters, 300; Topsell v. Ferrers, Hob. 175; London v. Hunt, 3 Lev. 37.

6 Falmouth v. George, 5 Bing. 286; Foreman v. Whitstable Free Fishers, L. R. 4 H. L. 285.

7 Ibid.; Foreman v. Whitstable Free Fishers, L. R. 2 C. P. 688; L. R. 3 C. P. 586; L. R. 4 H. L. 266; Trinity House v. Sorsbie, 3 T. R. 768, n. (a); Matson v. Scobell, 4 Burr. 2258; Poole v. Johnson, 2 W. Bl. 764; Woolrych on Waters, 304; Smithett v. Blythe, 1 B. & Ad. 509; Trinity House v. Clark, 4 M. & S. 288; Hamilton v. Stow, 5 B. & A. 649; Rex v. Jones, 8 East, 451; Trinity House v. Staples, 2 Chitty, 689; Vallego v. Wheeler, Cowper, 143; Rex v. Rebowe, id. 583; Reg. v. Durham, 2 El. & El. 230; Rex v. Tynemouth, 12 East, 46; Rex v. Coke, 5 B. & C. 797.

8 Ibid.; Haspurt v. Wills, 1 Mod. 47; King v. London, 4 T. R. 21.

9 Casher v. Holmes, 2 B. & Ad. 592;

3

And the

to repair the same, in case repairs are not needed. right to collect such a charge, within the limits of a port, may be acquired by prescription. In Foreman v. Whitstable Free Fishers, the respondents' claim to anchorage dues was maintained upon evidence of their ownership of the soil of the anchorage, of the maintenance of buoys and beacons, and the immemorial payment of tolls for merchandise and anchorage, these facts being held sufficient to warrant the inference that a port had once existed, although the place in question was not artifically formed, but was a natural roadstead, imposing no obligation on the owner to repair it and keep it accessible, so as to form a consideration for the toll demanded.

§ 142. Same- Under statutes.- In general, and especially in this country, where grants from the Crown and prescriptive rights of this character are comparatively unknown, a toll, being in the nature of a common charge upon the public, can be exacted for passing upon the sea or upon rivers only under the sanction of acts of the legislature. Such acts will

Jones v. Phillips, 7 Ex. 85; Wilson v.
Robertson, 4 El. & Bl. 923; Ribble
Nav. Co. v. Hargraves, 17 C. B. 285;
Harvey v. Lyme Regis, L. R. 4 Ex.
260.

1 Vinkensterne v. Ebden, 1 Salk. 248; 1 Ld. Raym. 384; 5 Mod. 359: Yarmouth v. Eaton, 3 Burr. 1402; Mersey Docks v. Gibbs, L. R. 1 H. L. 93; Foreman v. Whitstable Free Fishers, L. R. 4 H. L. 266; L. R. 3 C. P. 586; L. R. 2 C. P. 688.

2 Woolrych on Waters, 238, 305; Exeter v. Warren, 5 Q. B. 773; London v. Hunt, 3 Lev. 37; Exeter v. Trimlet, 2 Wils. 95; Wilkes v. Kirby, 2 Lutw. 1519; Yarmouth v. Eaton, 3 Burr. 1402; Sargent v. Reed, 2 Stra. 1228; 1 Wils. 91; Colton v. Smith, 1 Cowper, 47; Falmouth v. George, 5 Bing. 286; Pelham v. Pickersgill, 1 T. R. 660; Richards v. Bennett, 1 B. & C. 223; Nottingham v. Lambert, Willes, 111; Jenkins v. Harvey, 1 Cr. M. & R. 877. A mortgage of harbor duties is not an interest in land within the Mortmain Act. Christmas, 33 Ch. D. 332; 30 id. 544.

In re

3 L. R. 4 H. L. 266; L. R. 3 C. P. 578; L. R. 2 C. P. 688. See Aiton v. Stephen, 1 App. Cas. 456; Durham v Bishopwearmouth, 2 El. & El. 230.

4 Kingston Docks v. La Marche, 8 B. & C. 42; Wadsworth v. Smith, 11 Maine, 278; Olcott v. Banfill, 4 N. H. 537; State v. Olcott, 6 N. H. 74; McKee v. Grand Rapids Ry. Co., 41 Mich. 274, 279; Pennsylvania R. Co. v. National Ry. Co., 8 C. E. Green, 441; Camden R. Co. v. Briggs, 2 Zab. 623; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Blake v. Winona R. Co., 19 Minn. 418; Boykin v. Shaffer, 13 La. Ann. 129; Turnpike Co. v. Illinois, 96 U. S. 63; Bonaparte v. Camden R. Co., Bald. C. C. 205; The Geneva, 16 Fed. Rep. 874; State v. Real Estate Bank, 5 Ark. 595; McPheeters v. Merimac Bridge Co., 28 Mo. 465; Turnpike Road Co. v. Campbell, 44 Cal. 89; State v. Lake, 8 Nev. 272. See Reg. v. Salisbury, 8 Ad. & El.. 716; Duluth Lumber Co. v. St. Louis Boom Co., 17 Fed. Rep. 419.

be effectual to enforce a toll anywhere within their operation.' The franchise of collecting wharfage, or of taking tolls upon public bridges, ferries and canals,3 is a part of the sovereign power reserved to the States and not delegated to the general government. But under the constitution and laws of the United States, the States or municipal corporations cannot impose taxes on vessels mooring at wharves or the banks of navigable rivers, except as a compensation for the advantage gained and the expense of maintaining them. A riparian proprietor may open or improve an unnavigable stream, or excavate a canal, upon his own land and for his own accommodation, and refuse to permit others to use it without making compensation. But the owner of either or both banks of a stream, although he may exclude the public therefrom and prohibit vessels and boats from landing thereon, could not maintain a public ferry, a lock in aid of navigation, or a

1 Woolrych on Waters, 299. A bridge company chartered by a single State cannot collect toll from a person who passes over a part of the bridge which is beyond the limits of the State, unless there is an express promise to pay. Middle Bridge Co. v. Marks, 26 Maine, 326; South Carolina R. Co. v. Jones, 4 Rich. Eq. (S. C.) 459; Claremont Bridge Co. v. Royce, 42 Vt. 730.

8

worth v. Smith, 11 Maine, 278; Dwinel v. Barnard, 28 id. 554; Harvey v. Potter, 19 La. Ann. 264. A tow boat has not such relation to a vessel in tow as to make it liable for tolls authorized by statute and due from the towed vessel for passing through a private channel. The Fox, 4 Woods,

199.

7 Post, § 144; Mills v. St. Clair Co., 8 How. 581; Conway v. Taylor, 1

2 Pelham v. Woolsey, 16 Fed. Rep. Black, 603; Pennsylvania R. Co. v. 418.

3 Morris v. State, 62 Texas, 728. 4 Hudson v. State, 3 Zab. 206; 4 Zab. 718.

5 Cannon v. New Orleans, 20 Wall. 579; Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. Tobin, id. 430; Guy v. Baltimore, id. 434; St. Martinsville v. The Mary Lewis, 32 La. Ann. 1293; New Orleans v. Wilmot, 31 La. Ann. 65; Huse v. Glover, 119 U. S. 543; ante, § 35; New Orleans R. Co. v. Ellerman, 105 U. S. 166.

6 Hale, De Jure Maris, ch. 3; Hargrave's Law Tracts, 9, 10; Wads

National Ry. Co., 23 N. J. Law, 441;
Prosser v. Wapello Co., 18 Iowa, 327;
Trustees v. Tatman, 13 Ill. 27; Nash-
ville Bridge Co. v. Shelby 10 Yerger,
280; McRoberts v. Washburne, 10
Minn. 23; Norris v. Farmers' Co., 6
Cal. 590; Henshaw v. Supervisors, 19
Cal. 150; Enfield Toll Bridge Co. v.
Hartford R. Co., 17 Conn. 40. 64;
Hartford Bridge Co. v. East Hart-
ford, 16 Conn. 170; Hartford Bridge
Co. v. Union Ferry Co., 29 Conn. 229;
Fitch v. New Haven Co., 30 Conn. 39;
Stark v. Miller, 3 Mo. 470; Young v.
Harrison, 6 Ga. 130; Greer v. Hauga-
book, 47 Ga. 282; Murray v. Menifee,

8 Boykin v. Shaffer, 13 La. Ann. 129.

wharf,1 and collect a settled toll from all who use it, without prescription time out of mind, a charter from the king, or, in this country, the consent of the legislature. To establish a toll, the channel or passage must be open, for a fixed and reasonable compensation, to the use of all who may have occasion to use it, and must have become such a common way, by the owner's consent, that he cannot maintain an action of trespass against those who use it and are willing to pay the prescribed toll. This general right, in favor of those paying toll, is, however, subject to reasonable limitations. If, for example, a company, authorized to construct a canal, is bound to keep it in good order, it doubtless has necessarily discretionary powers essential to regulate the canal and its navigation, and, acting in good faith, may exercise these powers so as to exclude steamers if they injure the canal and impede the navigation.3

§ 143. Same-Same. The provisions in State constitutions and bills of rights, prohibiting the taking of private property without due process of law or without compensation, do not impair the power of State legislatures to regulate compensation in the shape of tolls. Nor are the States prevented by

20 Ark. 561; Cloyes v. Keatts, 18 Ark. 19; Bell v. Clegg, 25 Ark. 26; Haynes v. Wells, 26 Ark. 464; Pipkin v. Wynns, 2 Dev. (N. C.) 402. A grant from the State of land on a river, "with the appurtenances," conveys no right to maintain a public ferry. Harrison v. Young, 9 Ga. 359; 2 Black. Com. 38, 236. See Londonderry Bridge Com'rs v. McKeever, 27 L. R. Ir. 86, 464. In Braddock Ferry Co.'s Appeal, 3 Penny. (Pa.) 32, 36, the master, in an opinion accepted by the court, after referring to the legislation of Pennsylvania, said: "The conclusion to be drawn is that the right to keep and maintain a public ferry belonged to every riparian owner, so long as it did not conflict with any exclusive grant. The paucity of exclusive grants over the Monongahela, Allegheny, and Ohio rivers, compared with the number of ferries we know to be maintained

over these streams, leads to the irresistible conclusion that the right to maintain a public ferry was and is common to all, and restricted only when interfering with special grants; otherwise, the river was and is a highway of wrong-doers."

1Ante, § 120.

2 Dwinel v. Barnard, 28 Maine, 554; Wood v. Truckee Turnpike Co., 24 Cal. 474; Walker v. Jackson, 10 M. & W. 161; Bonaparte v. Camden & Amboy R. Co., Bald. C. C. 205; Perrine v. Chesapeake Canal Co., 9 How. 172. See Boston & Roxbury Mill Dam v. Newman, 12 Pick. 476; Com. v. Wilkinson, 16 Pick. 175; Monongahela Nav. Co. v. Wood, 47 Pitts. L. J. 93. 3 See Sheldon v. New Orleans Canal Co., 9 Rob. (La.) 360.

4 Munn v. People, 69 Ill. 80; Munn v. Illinois, 94 U. S. 113; Burlington v. Beasley, id. 310; Peik v. Chicago Ry. Co., id. 164; Sands v. Manistee River

their constitutions, or by the commerce clause of the federal constitution, in the absence of Congressional action thereunder, or by that prohibiting tonnage duties, from improving their rivers or delegating this power to others.1 State legislatures may determine the mode and extent of such improvements; may sanction the construction and maintenance of dams and locks upon navigable streams, or the removal of obstructions from the channel, for the purpose of improving the navigation or of facilitating the passage and collection of logs and rafts; and may authorize persons or corporations erecting such structures to collect reasonable tolls for the increased facilities thus afforded for public travel and transportation. The privilege thus created is a franchise, and it is nec