swelled by rains, or the melting of snow, is not, in any legal sense, navigable, but is private property, not subject to the servitude of the public interest by a passage upon it; unless the use of it had been dedicated to the public, by the owners. And where the owner of land on both sides of such a stream, has erected a dam across the same, to supply his mills, which would be injured by the floating of logs down the stream, over such dam, he is entitled to an injunction.1

12. Towing on the Banks of Public Rivers.

2

73. By the civil law, which prevails in the greatest part of Europe and in Louisiana, the privilege of towing on the banks of navigable rivers is embraced in the public right of navigation. In this respect, it is at variance with the common law. Bracton, it is true, has adopted the doctrine of the civilians, and his passage-Riparum etiam usus publicus gentium sicut ipsius fluminis-is plainly taken from Justinian; and though the same doctrine is quoted by Callis, in his work on Sewers, it is impeached by the otherwise unanimous current of authority. The little to be found in the books upon the subject, prior to the time of Lord Hale, he has collected, and, after commenting upon it, he very evidently concludes, that no such right as the one in question existed, inasmuch as he says, that where private interests are involved, they shall not be infringed without satisfaction being made to the party injured. The doctrine, therefore, of the civil law on this subject, conflicts with the principle of the common law, and with one of the characteristics of the express written American constitutional law, that public convenience is to be viewed with a due regard to private property. The statute of 19 Hen. VII. c. 18, rel

1 Curtis v. Keesler, 14 Barb. (N. Y.) Sup. Ct. R. 511.

3

2 Just. Inst. L. 2, tit. 1, s. 4; Coop. Just. tit. De Usu et Proprietate Riparum. The Civil Code of Louisiana follows the Roman Civil Law.

3 De Jure Maris et Portibus.

ative to the navigation of the river Severn, allows a towingpath to the navigators, upon making reasonable compensation for the inconvenience they may thereby afford; and it thereby distinctly affords a negative to the idea of a common-law right without compensation. In a modern case, by an act of parliament, authorizing certain persons to make a certain part of the river Avon navigable, and to set out and appoint towing-paths, it was required that satisfaction should first be given to the owners of the land, and commissioners were appointed to settle by inquisition, what satisfaction every person, having a particular estate or interest therein, should receive for his respective interest.1 But the question was brought directly before the King's Bench, in Ball v. Herbert, whether, at common law, the public have the right of towing on navigable rivers, and it was expressly decided that they had not. Lord C. J. Kenyon said, he remembered when the case of Peirse v. Lord Fauconberg was sent to that Court from the Court of Chancery; and it was then the current opinion in Westminster Hall, that the right of towing depended on usage, without which it could not exist. Some of the passages, he said, in Lord Hale, which seem to favor the common-law right, are rather applicable to banks of the sea, and to ports.*

§ 74. The Supreme Court of Illinois, and that of Tennessee, have, however, decided, agreeably to the civil law, that the right of navigators was not limited to the bare privilege of floating upon the river Mississippi, but included a right to land, to fasten to the shore, as the exigencies of the navigation may require; and that such was a burden upon the owner of the land, which he must bear as a part of the public ease

1 Bath River Navigation Co. v. Willis, 2 Cases relating to Railways and Canals, 7.

2 Ball v. Herbert, 3 T. R. 253.

3 See this case cited and approved by the Judges, in Blundell v. Catterall, 5 B. & Ald. R. 91.

ment.1 Such, doubtless, had become established usage in respect to the great river in question, and if so, the decision is in accordance with the opinion of the Court in Ball v. Herbert. It was observed by Lord C. J. Kenyon, in that case, that "perhaps small evidence of usage before a jury would establish a right by custom, on the ground of public convenience."

§ 75. In Mississippi, the banks of a river, which is a public highway, are private property, subject to the exclusive appropriation of the owner, and are not subject to the use of the public, although the river itself may be a public highway.2 The banks of navigable rivers, in Missouri, are public highways, and, though owned by private individuals, fishermen and navigators are entitled to a temporary use of them in landing, fastening, and repairing their vessels, and exposing their goods or merchandise; yet this right has its reasonable qualifications and restrictions, and will not allow a navigator to land for an unreasonable length of time, and, under pretence of repairing, employ teams, &c., thereby unreasonably obstructing the owner's enjoyment of his property.

3

1 Middletown v. Pritchard, 3 Scam. (Ill.) R. 520; Godfrey v. Alton, 12 Ill. R. 29; Alton v. Illinois Transp. Co. Ibid. 38; Corp. of Memphis v. Overton, 3 Yerg. (Tenn.) R. 390. That the right of the public to tow vessels and boats upon the banks of navigable rivers, may be acquired by usage, see Kinlock v. Nevile, 6 Mees. & Welsb. (Eng. Exchr.) R. 794.

2 Morgan v. Reading, 3 Smedes & Marsh. (Mississip.) R. 366.

3 O'Fallan v. Daggett, 4 Missou. R. 343. The waters of the Albany Basin, as well as the navigable waters of the river, are a public highway. Hart v. Mayor, &c. of Albany, 3 Paige, (N. Y.) Ch. R. 213; and see State v. Wilkinson, 2 Vt. R. 480; Gould v. Hudson River Railroad Co. 12 Barb. (N. Y.) Sup. Ct. R. 616.

§ 76. IT has ever been the persuasion of mankind, that one of the principal powers, and one of the imperative duties of the sovereign power of a State is to provide for the wants of the community, as well for its own immediate emergencies, means of facilitating communication between distinct localities, both rural and urban. This, it is apparent, cannot be accomplished, (at least to the extent demanded, and in the manner the most desirable and satisfactory to all concerned,) without resort to an appropriation of private property. Hence, the power of making this appropriation is included in the general prerogatives which the government of every country retains over the estates of its subjects, a power that has been known and exercised under the appellation of "THE RIGHT OF EMINENT DOMAIN." Persons who have made but partial inquiry into the theory of social organization must perceive that the right which every individual, as one of that organization, has over his own property, must, to a certain degree, ever be subordinate to the right which the

community has over all; for without it there would be no compactness in the social union, nor any really effective force in the sovereign power.1

1

§ 77. Between this right of "Eminent Domain" and the governmental prerogative of "Taxation," the difference is very considerable. Taxation exacts money from individuals as their share of the public burden, and the tax-payer is supposed to receive a just compensation in the benefits conferred by the government, and in the proper application of the tax. It deals, as has been justly remarked with the whole community, or with a special class of persons in the community, on some rule of apportionment. But what is taken under the right of eminent domain, is separate or aside from the owner's share of the common expenses, and to be compelled to contribute more than his share, he must be reimbursed.3

§ 78. It is indeed a rule insisted on by Pufendorf, Grotius, Vattel, and all eminent publicists as a rule founded in equity, that a provision for COMPENSATION is a necessary attendant on the due exercise of the power of the lawgiver to deprive an

1 That private inconvenience and even injury, is to be endured rather than public inconvenience or injury, is a right of public necessity. 2 Kent, Comm. 337, 338. It is justifiable, in case of fire, for example, to raze houses to the ground to prevent the spreading of conflagration. Ibid. and the authorities there cited; Peckham v. Justices, &c. 9 Geo. R. 391; Taylor v. Inhabitants of Plymouth, 8 Met. (Mass.) R. 462. Congress, in 1777, lawfully directed the removal from Philadelphia of articles that were necessary to the maintenance of the continental army, or useful to the enemy, and in danger of falling into his hands; and an individual, whose property was lost in consequence of such removal, had no legal claim to compensation. Respublica v. Sparhawk, 1 Dall. R. 357; and see Dorsey's Ex'tor v. State, 4 H. & M'Hen. (Md.) R. 165. In regard to highways, there can be no destruction of the public right, at common law. According to Fowler v. Saunders, (Cro. Jac. 446,) a highway must always continue a highway, and can neither be narrowed nor inclosed, except by the agency of the representatives of the people in Parliament.

2 See the judgment of the New York Court of Appeals in the case of the People v. Mayor of Brooklyn, 4 Comst. (N. Y.) R. 419.

3 See post, Chap. IV.