are illegal, if they cause the diversion of a stream from its accustomed channel, and throw the water upon the land of an opposite or adjoining proprietor;1 and while mere apprehension of danger is not sufficient to support an action for this cause, yet any operation extending into the stream itself is prima facie an encroachment upon the common interest of the other riparian proprietors, and the burden is upon the party doing such act to show that it is not injurious. If a sea-wall or embankment is erected in tide-waters beyond the limits of the owner's land, it is doubtless illegal at common law as being a purpresture, since it does not appear that littoral proprietors are authorized, as against the Crown or without its sanction, to erect even defenses against the sea below high-water mark.3 In this country, it is doubtless a principle of general application, as has been expressly held in Wisconsin, that, as a right

1 Farquharsen's Case, cited 3 Wils. & Shaw, 235; Morr. Dict. 12, 787; Att. Gen. v. Lonsdale, L. R. 7 Eq. 387; Bickett v. Morris, 1 H. L. Sc. 47, affirming Aberdeen v. Menzies, Morr. Dict. 12, 787; Blantyre v. Doon, 10 Dunlop, 542; Hamilton v. Eddington, Morr. Dict. 12, 826; Burnis v. Brown, Hume's Dict. 504; Gellathy's Case, 1 Macph. 592; Menzies v. Breadalbane, 3 Wils. & Shaw, 235; Hartshorn v. Chaddock, 135 N. Y. 116; New Albany R. Co. v. Higman, 18 Ind. 77; Railroad Co. v. Carr, 38 Ohio St. 448; Crawford v. Rambo, 45 id. 279; Niles Works v. Cincinnati, 2 Disney (Ohio), 400; Longstreet v. Harkrader, 17 Ohio St. 23; Cincinnati R. Co. v. Ahr, 2 Sup. Ct. (Ohio) 515; Ten Eyck v. Delaware Canal Co., 3 Harr. (N. J.) 200; Tinsman v. Delaware R. Co., 2 Dutch. 148; O'Connell v. East Tennessee, etc. Ry. Co., 87 Ga. 246; Vernum v. Wheeler, 35 Hun, 53. Necessity will not justify a defendant, in order to save his own property, in cutting an embankment and thereby destroying the plaintiff's property; quære, as to saving life. Newcomb v. Tisdale, 62 Cal. 575.

2 Bickett v. Morris, 1 H. L. Sc. 47;

Att. Gen. v. Lonsdale, L. R. 7 Eq. 387; Att. Gen. v. Terry, L. R. 9 Ch. 425; Orr Ewing v. Colquhoun, 2 App. Cas. 839; Brownlow v. Metropolitan Board of Works, 13 C. B. N. s. 768; 16 id. 546; Cracknell v. Thetford, L. R. 4 C. P. 629; Wishart v. Wyllie, 1 Macq. 389; Brown v. Gugy, 2 Moo. P. C. 341; Norbury v. Kitchen, 15 L. T. N. S. 501; Norway Plains Co. v. Bradley, 52 N. H. 86; Bowers v. Miss. & R. R. Boom Co. (Minn.), 81 N. W. Rep. 208. If the bank of a stream is washed away, and its bed widened by a flood, a corporation which has the franchise of a toll-bridge across the river, and is required by its charter to keep the bridge in repair, is bound to extend the bridge to the new bank. Com. v. Dearfield, 6 Allen, 449. In an action to recover damages for taking stones from a river, and thereby causing the plaintiff's land to be washed away, evidence that the removal of stones at another part of the river produced the same effect is not admissible, unless it appears affirmatively that the conditions are the same. Hawks v. Charlestown, 110 Mass. 110.

3 Coulson & Forbes on Waters, 33.

of necessity, when water, navigable or not navigable, is by natural causes wearing away and intruding upon the banks, the riparian owner, whether he owns the soil ad filum aqua or not, may, as against the public, intrude into the shoal unnavigable water near the banks so far as may be necessary for the purpose of constructing works essential to the protection of his land against the action of the water. Such structures are public nuisances if they interfere with the navigation.2

§ 161. Same. The owner of the soil of navigable waters is not liable to keep it free from obstructions or to compensate the adjoining owners for damage done by overflow of the water, even when toll is taken for navigating thereon.3 But liability to cleanse a river may arise from prescription.* So, a littoral proprietor may be bound by contract3 or by prescription to maintain and repair a sea-wall; but the mere fact that he has always maintained an embankment in front of his own land, and that adjoining proprietors have not, be

cause of its existence, found it necessary to erect walls against their own frontages, is not sufficient evidence to establish this liability;1 and even a trespasser who partially removes such structure, and lets in the tide, may not be liable to him. The owner of land, upon which exists a natural barrier against the sea, may also be restrained from destroying or removing it,3 upon proceedings on behalf of the Crown or public, if not of individuals liable to sustain peculiar injury. Riparian proprietors may maintain an action for breaking levees built by them, but are not required to pen in the water by artificial barriers for the benefit of their neighbors. There is no duty resting upon the owner of an artificial canal, analogous to that imposed on the owners of a natural watercourse, not to impede the flow of the water; and, if the overflow of a neighboring river increases the water of the canal to the injury of his premises adjoining, he may pen up the canal, and thus exclude the water from his premises, and will not be liable to a neighbor whose land he thus causes to be flowed; but this does not apply so as to permit a railroad company, in order to protect its embankment from water accumulated there after an unprecedented rainfall, to cut trenches through which the water is discharged upon private lands."

§ 162. Alluvion - How apportioned. The general rules by which alluvion is apportioned between different riparian owners are analogous to those applied in the division of flats between the proprietors of lands on the sea-shore owning to

1 Hudson v. Tabor, 2 Q. B. D. 290; Att. Gen. v. Tomline, 12 Ch. D. 214; Collins v. Macon, 69 Ga. 542. See 67 L. T. 314; 20 Ir. L. T. 430; 19 L. J. 566. It seems that a covenant to repair a sea-wall runs with the land, and would therefore bind a purchaser even without notice express or implied. Morland v. Cooke, L. R. 6 Eq. 252.

Cush. 53, 86; Crowley v. Copley, 2 La.
Ann. 390; Watson v. Marshall, 16 id.
231; Leblanc v. Pittman, 26 id. 433;
O'Connor v. Stewart, 19 id. 127.

4 Belcher v. Murphy, 81 Cal. 39.
5 Ibid. See Rowland v. Carmichael,
77 Ga. 350.

6 Nield v. London Ry. Co., L. R. 10 Ex. 4. See Delaware & H. Canal Co. v. Goldstein, 125 Penn. St. 246; Jer

2 Koch v. Delaware, etc. R. Co., 53 emy v. Elwell, 5 Ohio Cir. Ct. 379. N. J. L. 256.

Ibid.; Att. Gen. v. Tomline, 12 Ch. D. 214; Crompton v. Lea, L. R. 19 Eq. 115; 67 L. T. 93; Philadelphia v. Scott, 81 Penn. St. 80, 88; Com. v. Alger, 7

7 Whalley v. Lancashire Ry. Co., 13 Q. B. D. 131. See Harrison v. Great Northern Ry. Co., 3 H. & N. 231; Myers v. Nelson (Cal.), 44 Pac. Rep. 801.

3

7

low-water mark. In all cases, when practicable, every proprietor is entitled to a frontage of the same width on the new shore as on the old shore, and at low-water mark as well as high-water mark, without regard to islands, or to the side lines of the upland, unless referred to as guides in particular grants, or established as boundaries by the agreement or conduct of the conterminous proprietors," or the acts of public authorities." "In general," says Merrick, J., "where there are no circumstancs or peculiarities in the formation of the shore or the course of the channel, the lines of division are to be made to the channel in the most direct course from the lateral boundaries of the several tracts of upland to which the flats are appended." So, also, in the case of unnavigable streams which are the property of the riparian proprietors usque ad filum aquæ, the side lines are extended to the center of the stream from the termini on the bank at right angles with the general course of the river, unless varied by the terms of the con

1 Deerfield v. Arms, 17 Pick. 41, 44; Wonson v. Wonson, 14 Allen, 85; Thornton v. Grant, 10 R. I. 477, 489; Hubbard v. Manwell, 60 Vt. 235.

2 Ibid.; Gray v. Deluce, 5 Cush. 9, 12; Walker v. Boston & Maine Railroad, 3 Cush. 23; Porter v. Sullivan, 7 Gray, 443; Att. Gen. v. Boston, 12 Gray, 558; Valentine v. Piper, 22 Pick. 96; Wonson v. Wonson, 14 Allen, 71, 79; Stone v. Boston Steel & Iron Co., id. 230; Knight v. Wilder, 2 Cush. 209; Kennebec Ferry Co. v. Bradstreet, 28 Maine, 374; Newell v. Leathers, 50 La. Ann. 162; People v. Woodruff, 51 N. Y. S. 515.

3 Roberts v. Richards. 84 Maine, 1. 4 Ibid.; Rust v. Boston Mill Corp., 6 Pick. 169; Dawes v. Prentice, 16 Pick. 435, 442; Piper v. Richardson, 9 Met. 158; Curtis v. Francis, 9 Cush. 427, 438; 9 Gray, 522; Winnisimmet Co. v. Wyman, 11 Allen, 432; Stone v. Boston Steel & Iron Co., 14 Allen, 230, 234; Clark v. Campau, 19 Mich. 325; Emerson v. Taylor, 9 Maine, 42. Cf. Hamilton v. Gould, 24 Q. B. (Can.) 58.

5 Ibid.; Adams v. Boston Wharf Co., 10 Gray, 521; Att. Gen. v. Boston Wharf Co., 12 Gray, 553, 560; Stone v. Boston Steel & Iron Co., 14 Allen, 230, 234; Sparhawk v. Bullard, 1 Met. 95; Breed v. Breed, 117 Mass. 593, 596; 110 Mass. 532; Central Wharf v. India Wharf, 123 Mass. 561, 567; Jones v. Boston Mill Co., 6 Pick. 148; Rider v. Thompson, 23 Maine, 243; Treat v. Chipman, 35 Maine, 34; Thornton v. Foss, 26 Maine, 405.

6 Ibid.; Brimmer v. Long Wharf, 5 Pick. 135; Valentine v. Piper, 22 Pick. 95; Piper v. Richardson, 9 Met. 163; Wheeler v. Stone, 1 Cush. 319: Com. v. Alger, 7 Cush. 53, 73; Drake v. Curtis, 9 Cush. 447; 9 Gray, 523; Gorton v. Rice (Mo.), 55 S. W. Rep. 241.

7 Att. Gen. v. Boston Wharf Co., 12 Gray, 553, 558; Ashby v. Eastern R. Co., 5 Met. 368; Walker v. Boston & Maine R. Co., 3 Cush. 1, 23; Morris v. Beardsley, 54 Conn. 338. As to the apportionment of costs of proceedings for division of flats, see King, Petitioner, 129 Mass. 413.

veyance under which the proprietors hold,' or the circumstances of the particular case.2

§ 163. Same Same. When the general course of the shore or river bank approximates to a straight line, alluvial deposits as well as flats are divided among the conterminous proprietors by lines perpendicular to the general course of the original bank, or of the original high-water mark of the shore.3 When it curves or bends, two objects are to be kept in view: namely, to give to each proprietor a fair share of the land, and to secure to him convenient access to the water from all parts of his land by giving him a share of the outward line proportioned to the share of the line of high-water mark or original shore owned by him. In such case, the general rule is to measure the whole extent of high-water mark or of the ancient line along the shore; to then divide the line of lowwater mark, or, in the case of alluvion, the newly formed water line, into equal parts, corresponding in number to the feet or rods ascertained by the above measurement; and, after apportioning to each proprietor as many of these parts as he owned feet or rods on the old line, to draw lines from the original termini of the boundaries of the upland to the points of division on the newly formed line, or, in the case of flats, on the line of low-water mark. If, for example, the shore line,

1 Knight v. Wilder, 2 Cush. 199; Batchelder v. Keniston, 51 N. H. 496; Bay City Gaslight Co. v. Industrial Works, 28 Mich. 182; Clark v. Campau, 19 Mich. 325; Miller v. Hepburn, 8 Bush, 326; Irwin v. Towne, 42 Cal. 326; People v. Schermerhorn, 19 Barb. 540; Blodgett & D. L. Co. v. Peters, 87 Mich. 498. See Inhabitants of Ipswich, Petitioners, 13 Pick. 431; Au Gres Boom Co. v. Whitney, 26 Mich.

42.

2 Kreiter v. Bigler, 101 Penn. St. 94; Wood v. Appal, 63 id. 210.

3 Note 1 above; Sparhawk v. Bullard, 1 Met. 106; Knight v. Wilder, 2 Cush. 209; Porter v. Sullivan, 7 Gray, 443; Wonson v. Wonson, 14 Allen, 71, 79; Batchelder v. Keniston, 51 N. H. 496, 498; People v. Woodruff, 56 N. Y.

S. 681; 159 N. Y. 536; Delaware R. Co. v. Hannon, 37 N. J. L. 276; Miller v. Hepburn, 8 Bush, 326; Rice v. Ruddiman, 10 Mich. 125; Clark v. Campau, 19 Mich. 325; Bay City Gaslight Co. v. Industrial Works, 28 Mich. 182; Graves v. Fisher, 5 Maine, 69. See Crook v. Seaford, L. R. 6 Ch. 551; L. R. 10 Eq. 678; Newton v. Eddy, 23 Vt. 319; Delord v. New Orleans, 11 La. Ann. 699; Michon v. Gravier, id. 596.

4 Deerfield v. Arms, 17 Pick. 41, 45; Batchelder v. Keniston, 51 N. H. 496; Lowndes v. Wicks, 69 Conn. 15.

5 Deerfield v. Arms, 17 Pick. 41; Tappan v. Boston W. P. Co., 157 Mass. 24; Batchelder v. Keniston, 51 N. H. 496; Jones v. Johnston, 18 How. 150; Johnston v. Jones, 1 Black, 209; South