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where the rivers are larger, the question was directly presented, apparently for the first time in the United Kingdom, in Murphy v. Ryan,i decided by the Irish Court of Common Pleas in 1868. This was an action of trespass for breaking and entering the plaintiffs close covered with water, called the River Barrow, and fishing therein. The issue presented, upon a demurrer to the defendant's plea, was whether, the Barrow being admitted to be from time immemorial a public and navigable river above and beyond the ebb and flow of the sea, and the alleged trespass being above that point, the defendant as one of the public had there the privilege of fishing. The demurrer was allowed, it being considered that no river had "been ever held navigable, so as to vest in the Crown its bed and soil, and in the public the right of fishing, merely because it has been used as a general highway for the purpose of navigation; and that, beyond the point to which the sea ebbs and flows, even in a river so used for public purposes, the soil is prima facie in the riparian owners, and the right of fishing private."
§ 52. According to recent decisions in England, the title of the riparian owners extends to the centre of all non-tidal streams,2 but the ground of prescription on which the rule now rests is different from that supported by the early
in England as suitable, which it would be folly in the extreme, in countries differently located, to recognize as law; and, in our opinion, this distinction between rivers 'navigable' and not ' navigable,' causing it to depend upon the ebbing and flowing of the tide, is one of them. The insular position of Great Britain, the short courses of her rivers, and the wellknown fact that there are none of them navigable above tide-water but for very small craft, well warrants the distinction there drawn by the common law. But very different is the situation of the continental powers of Europe in this particulav. Their streams are many of them large and long and navigable to a great extent
authorities, and is inapplicable in this country.1 In 1838, the question was regarded as not fully settled by Lord Denman, C. J., who, in Williams v. Wilcox,8 said: "It is clear that the channels of public navigable rivers were always highways : up to the point reached by the flow of the tide, the soil was presumably in the Crown; and, above that point, whether the soil at common law was in the Crown or the owners of the adjacent lands (a point perhaps not free from doubt), there was at least a jurisdiction in the Crown, according to Sir Matthew Hale, ' to reform and punish nuisances in all rivers, whether fresh or salt, .that are a common passage, not only for ships and greater vessels, but also for smaller, as barges or boats.'1 In either case, the right of the subject to pass up and down was complete."
1 Post, § 63.
* 8 Ad. & El. 314, 333. This important passage of the opinion in Williams v. Wilcox is not noticed by Mr. Houck in his work on Rivers, in which he combats the supposed rule of the common law, or in Mr. Angell's works on Tide Waters and Watercourses. Although noticed in Hall on the Seashore (2d cd.), 3, note (f), and in Phear's Rights of Water, its meaning seems to have been misunderstood by those writers, Lord Denman'8 doubt being there referred to as if it related to tidal rivers, and as settled by Lord St. Leonard's opinion in Lord Advocate v. Hamilton, 1 Macq. II. L. 46, in which the language of the court was limited to navigable rivers. A comparison of the two cases, and an examination of the passage in De Jure Maris, c. 2, pi. 3, referred to in Williams v. Wilcox, shows that the two judges were thinking of different subjects. See Murphy v. Ryan, Ir. R. 2 C. L. 143, 153, 164; Ipswich Dock v. Overseers, 7 B. & S. 310, 335. In Bristow v. Cormican, 3 App. Cas. 641,660; Ir. R.10C.L.425, it was held that the crown has no title de jure to the soil or fisheries of an inland lake ; and Lord Blackburn, referring to the doubt expressed by Wightman, J., in Marshall v. Ulleswater Navigation Co., 3 B. & S. 742, upon the question whether the soil of lakes, like that of fresh-water rivers, prima fade belonged to the riparian owners ad Jilum aquae, or to the Crown, said: "That learned judge did not think that the law as to land covered by still water was so clearly settled to be the same as the law as to land covered by running water, as
to justify him in unnecessarily deciding that it was the same. ... I own myself to be unable to see any reason why the law should not be the same, at least where the lake is so small, or the adjoining manor so large, that the whole lake is included in one property. Whether the rule that each adjoining proprietor, where there are Beveral, is entitled usque ad Jilum aquae, should apply to a lake, is a different question. It does not seem very convenient that each proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough many miles in length tacked on to his frontage. But no question arises in this case as to the rights of the riparian proprietors among themselves, for no title is made by either party through any one as riparian owner." In the same case in the lower court, Pallas, C. B. (p. 402), considered that the question whether "navigable" was synonymous with "tidal," so as to limit the public right of fishing to tide waters, would be worthy of grave consideration, if it were unfettered by authority; and Dowse, B., referring to the American decisions said (p. 412) that it would amount to an absurdity if a man, who owned a strip of land containing perhaps a quarter of an acre on the bank of the Mississippi, should be entitled to a several fishery extending threequarters of a mile out to the middle of the river. In the Exchequer Chamber (Ibid. p. 412, 434), Whiteside, C. J., declared the test afforded by the tide to be "an arbitrary rule, repugnant to reason, convenience, and the common sense of mankind."
§ 53. In view of the hesitation manifested in this country, especially in the Western States, to apply the English rule to our navigable fresh-water rivers and lakes, it should be remarked that the doctrine of Lord Hale and the early English decisions appears to be defective in that, according to the theory which they support, the general right of navigation in fresh waters is inconsistent with the private ownership of the soil beneath. Woolrych says:a "Waters flowing inland, where the public have been used to exercise a free right of passage from time whereof the memory of man is not to the contrary, or by virtue of legislative enactments, are public navigable rivers. This is the most unfailing test to apply in order to ascertain a common right, others have been attempted, and frequently without success." In England, prescription appears to be the ground upon which the right of navigation in these waters now depends,3 and in early decisions in this country it was held that fresh rivers, though navigable in fact, are not open to the public unless they have been long used for navigation, or have been declared highways by the legislature.4 This is contrary to Lord Hale,
i Citing Hale, De Jure Maris, c. 2. 274, Weston, J., said, in speaking of
* Woolrych on Waters, 31. the public right of navigation in the
3 King v. Montague, 4 B. & C. 96; Saco River nbove the tide: "In the Bristow v. Cormican, 3 App. Cas. 641; case of Dunbar v. Vinal, in the SuOrr Ewing v. Colquhoun, 2 App. Cas. yreme Court of Massachusetts in 1801, 839; Murphy v. Ryan, Iv. R. 2 C. L. it was decided 'that the navigable 143; Hargreaves v. Diddams, L. R. 10 waters of the country were a common Q. B. 582; Coulson & Forbes on privilege for passing upon them, and Waters, 92, 93, 441; Addison on Torts that the plaintiff had no right to in(5th Eng. ed.), 561. tercept it by a dam.' But in the case
4 In Berry v. Carle, 3 Greenl. 209, of Spring v. Chase et ai, it was, in who makes no distinction in this respect between tidal and fresh navigable rivers, and says that both are common highways and prima facie publici juris, whether they are fresh or salt, whether they flow and reflow or not.1 If proof of long-continued exercise of the right to pass over the soil covered by the water were required in newly settled colonies and territories, in which the rivers are often the chief means of transportation and travel, and the riparian owners were permitted, in the absence of such evidence, to obstruct large rivers by dams, bridges, or booms, or to demand compensation from navigators, it would amount to a serious grievance.
1790, decided by the same Court to be otherwise, where the party owns the adjoining land, and no tide ebbs and flows. In that case the plaintiff, being the owner of the adjoining lands, erected a bridge over Saco River, above, but near, the great falls and above the tide waters. The defendants threw down the bridge as a nuisance, for which they were called upon to answer in trespass. The plaintiff had judgment because, in the opinion of the Court, those were not navigable waters where the bridge was built, although the river was there convenient for boats and rafts, and for many miles above. These cases are not reported at large, but are briefly stated in 2 Dane's Abridgment, 606. Notwithstanding the Saco, above the tide waters, may not be open to the public as a highway of common right, yet by long usage as such, it may acquire this character. In the case before us, it is not stated as a fact that the Saco River is, at the place where the injury complained of was done, a public highway. . . . The facts are imperfectly exhibited if the river has, in the place in question, by long usage, the attributes of a public highway, and the ground taken by the counsel for the plaintiff* in error is therefore insufficient to entitle them to a reversal of the judgment." Evidence of long-continued public use was also held to be essential or material in Scott v. Willson, 3 N. H. 321, 325; State v. Gilmanton, 14 N. H. 467,478; Browne v. Scofleld, 8 Barb. 230; Shaw v. Crawford, 10 Johns. 230; Palmer v.
Mulligan, 3 Caines, 307, 312. And see McManus p. Carmichael, 3 Iowa, 1, 31. In the case of Brown v. Chadbourne, 31 Maine, 0, 21, the court considered the view expressed in Berry r. Carle erroneous, Wells, J., saying: "If a stream could be subject to public servitude by long use only, many large rivers in newly settled States, and some in the interior of this State, would be altogether under the control and dominion of the owners of their beds, and the community would be deprived of the use of those rivers, which nature has plainly declared to be public highways. The true test, therefore, to be applied in such cases, is, whether a stream is inherently, and in its nature, capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs. When a stream possesses such a character, then the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it." See, also, Carter v. Thurston, 58 N. H. 104, 106; 54 N. H. 545, 540, overruling the dicta in Scott v. Willson, above cited; Tyrrell v. Lockhart, 3 Blackf. 136; Brubaker v. Paul, 7 Dana, 428; State v. Thompson, 2 Strob. (S. C.) 12; Hubbard v. Bell, 54 111. 110; Ellis t>. Carey, 30 Ala. 725 , Rhodes v. Otis, 33 Ala. 578; Peters v. New Orleans Railroad Co., 56 Ala. 628.
'Hale, De Jure Maris, c. 1, 2, 3; Hargrove's Law Tracts, 6, 8, 0; WilliamB v. Wilcox, 8 Ad. & EL 314, 333, referred to ante, § 62.
§ 54. Nature is competent, it has been said, to make a navigable river without the aid of the legislature;1 and it is now fully established hi this country, overruling the earlier decisions, that the public have a right of passage over all fresh-water streams which are by nature susceptible of general use, and that those rivers are public and navigable in law which are navigable in fact.2 This right of navigation is distinct from the public right of fishery, which may or may not exist in the same waters.3
§ 55. In theory, it would seem that prescription, as suggested by Woolrych, is the only ground upon which the right of navigation can be reconciled with the private ownership of the soil. The public right is said to be an easement to which the title of the adjoining owners is subjected, as in the case of a highway on the land,4 but the analogy is imperfect.
1 Martin v. Bliss, 5 Blackf. 35. v. Hungerford, 6 Barb. 265; Rowe * Hale, De Jure Maris, c. 2, 8; v. Titus, 1 Allen (N. B.), 326; EsWilliams v. Wilcox, 8 Ad. & El. 314, son v. McMaster, 1 Kerr (N. B.), 501; 333; Barney v. Keokuk, 94 U. S. Boissonnault v. Olir, Stuart (Low. 342; Pound v. Turck, 96 U. S. 459; Can.), 505; Moore p. Sanborno, 2 Mich. The Daniel Ball, 10 Wall. 557; 519; Lorman v. Benson, 8 Mich. 18; The Montello, 20 Wall. 430, 442; Rhodes r. Otis, 33 Ala. 678, 596; Cox Carter v. Thurston, 58 N. H. 104, r. State, 3 Blackf. 193; Weise v. Smith, 100; Thompson v. Androscoggin 3 dreg. 445, 448; Healy r. Joliet RailCo., 64 N. H. 545; 58 N. H. 108; road Co., 2 111. App. 435; People v. Brown v. Chadbourne, 31 Maine, 0; St. Louis, 6 Oilman, 351; Godfrey v. Moor v. Veazie, 32 Maine, 343; Spring Alton, 12 111. 29; Memphis p. Overton, v. Russell, 7 Greenl. 273, 290; Wads- 8 Yerger, 389; Elder v. Burrus, 6 worth p. Smith, 11 Maine, 278; Adams Humph. 358; Stuart p. Clark, 2 Swan, v. Pease, 2 Conn. 481; Ingraham v. 15; Siglor p. State, 7 Baxter, 493; Wilkinson, 4 Pick. 208; Common- Yates r. Judd, 18 Wis. 118; Hickok wealth p. Chapin, 5 Pick. 199, 202; ». Hine, 23 Ohio St. 623; Selman v. Avery P. Fox, 1 Abb. U. S. 246; Pal- Wolfe, 27 Texas, 68. mer P. Mulligan, 3 Gaines, 307; Peo- 3 See Leconfield v. Lonsdale, L. R. pie p. Piatt, 17 Johns. 195,211; Hooker 0 C. P. 005; People v. Piatt, 17 Johns. e. Curamings, 20 Johns. 90; Canal 195, 211.
Commissioners P. People, 5 Wend. 4 Orr Ewing r. Colquhoun, 2 App.
423; Morgan v. King, 36 N. Y. 464'; Cas. 839; Ingraham p. Wilkinson, 4
30 Barb. 9; 18 Barb. 277; Munson Pick. 208; Commonwealth v. Chapin, 6