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In the case of Ball v. Herbert,1 Buller, J., said: "Callis compares a navigable river to a highway, but no two cases can be more distinct. In the latter case, if the way be founderous and out of repair, the public have a right to go on the adjoining land; but, if a river should happen to be choaked up with mud, that would not give the public a right to cut another passage through the adjoining lands." A road or highway by land is limited in locality,2 being confined within specific lines and not extending over tracts of land generally; and the public right to use it arises by statute, or by dedication, prescription, contract, or by survey and plat. If by statute, compensation must be made; in other cases the consent of the owner is required. But, as the right of navigation extends to all waters which have a natural capacity for such use, there is a general presumption of an easement, and the owners of the adjoining lands can neither prevent its acquisition or exercise,5 or obtain compensation for such appropriation of private property to the public use. The anomalous nature of this doctrine is further illustrated

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Pick 199; Hooker v. Cummings, 20 Johns. 90; Varick v. Smith, 9 Paige, 137, 143; Morgan v. King, 35 N. Y. 454; Chenango Bridge Co. v. Paige, 23 Alb. L. Jour. 15; Young v. Harrison, 6 Ga. 130, 141; McCullough v. Wall, 4 Rich. (S. C.) 68; Ensminger v. The People, 47 Ill. 384; Braxton v. Bressler, 64 Ill. 488; The Magnolia v. Marshall, 39 Miss. 109; Morgan v. Reading, 3 S. & M. 366.

Ball v. Herbert, 3 T. R. 253, 263; Williams v. Wilcox, 8 Ad. El. 314.

2 See, e. g., Gentleman v. Soule, 32 Ill. 271; Plimpton v. Converse, 44 Vt. 158; Hart v. Connor, 25 Conn. 331; Jones v. Percival, 5 Pick. 485; Holmes v. Seely, 19 Wend. 507; Brice Randall, 7 Gill & J. 349.

v.

3 See, e. g., as illustrating the text as to highways, State v. Kansas City Railway Co., 45 Iowa, 139; State v. Welpton, 34 Iowa, 144; State v. Tucker, 36 Iowa, 485; Detroit v. Detroit Railway Co., 23 Mich. 173; Cemetery

Association v. Meninger, 14 Kansas, 312; Oliphant v. Atchison Co., 18 Kansas, 386; State v. O'Laughlin, 19 Kansas, 504; Belleville v. Stookey, 33 Ill. 441; Grube v. Nichols, 36 Ill. 92; Smith v. Flora, 64 Ill. 93; Plimpton v. Converse, 44 Vt. 158; Johnson v. Stayton, 5 Harr. (Del.) 448; Melvin v. Whiting, 13 Pick. 184.

There appears to be no analogy for a general presumption of an easement. Mr. Phear says there cannot be such a presumption. Phear's Rights of Water, 15, note.

5 An easement cannot be supported on the ground of long user, unless it was capable of prevention, or actionable at some time by the owner of the servient tenement. Sturges v. Bridgman, 11 Ch. D. 852, Gilmore v. Driscoll, 122 Mass. 199, 207, Mitchell v. Mayor, 49 Ga. 19; Webb v. Bird, 13 C. B. N. s. 841; Chasemore v. Richards, 7 H. L. Cas. 349.

by a decision in Michigan, in which it was held that the right of navigation in a private fresh river, though nominally an easement, is not, like other easements, an incorporeal hereditament or real estate; and that an action for obstructing this right, though local at common law, was not so under a statute which made actions on the case, for injuries to real estate, local, and other actions transitory.1

§ 56. In this country the doctrine of private ownership has been generally recognized as the rule of the common law; but it has been held to be inapplicable to the condition of many of those States in which the inland rivers are large.2 It is in force in all the New England States, where the fresh rivers are comparatively unimportant, although in Rhode Island it does not appear to have been directly passed upon.1

1 Barnard v. Hinckley, 10 Mich. 28 Vt. 257, 262. In Maine, Berry v. 458.

2 Post, §§ 64, 75.

3 In Connecticut, Adams v. Pease, 2 Conn. 481; Bissell v. Southworth, 1 Root, 269; Warner v. Southworth, 6 Conn. 471, 474; Chapman v. Kimball, 9 Conn. 38, 41; Enfield Bridge Co. v. Hartford Railroad Co., 17 Conn. 40, 63; Mill River Woollen Manuf. Co. v. Smith, 34 Conn. 463. In New Hampshire, Scott v. Willson, 3 N. H. 321; Rix v. Johnson, 5 N. H. 520; State v. Gilmanton, 9 N. H. 461; 14 N. H. 467; Greenleaf v. Kilton, 11 N. H. 530; State v. Canterbury, 28 N. H. 195; Boscawen v. Canterbury, 23 N. H. 189; Nichols v. Suncook Manuf. Co., 34 N. H. 345; Kimball v. Schoff, 40 N. H. 190; Clement v. Burns, 43 N. H. 609; Norway Plains Co. v. Bradley, 52 N. H. 86. (In Nichols v. Suncook Manuf. Co. 34 N. H. 345, it was held that adverse possession of land bordering upon a river not navigable, gives title to the thread of the stream.) Claremont v. Carlton, 2 N. H. 369; Thompson v. Androscoggin Co., 54 N. H. 548; 58 Id. 108; Carter v. Thurston, 58 N. H. 104; State v. Canterbury, 28 N. H. 195. In Vermont, Fletcher v. Phelps,

Carle, 3 Maine, 269; Morrison v. Keen, 3 Maine, 474; Lincoln v. Wilder, 29 Maine, 169; Spring v. Russell, 7 Maine, 273, 290; Spring v. Seavey, 8 Maine, 138; Wadsworth v. Smith, 11 Maine, 278; Bradley v. Rice, 13 Maine, 198, 201; Nickerson v. Crawford, 16 Maine, 245; Brown v. Chadbourne, 31 Maine, 9; Knox v. Chaloner, 42 Maine, 150; Moor v. Veazie, 32 Maine, 343; 31 Maine, 360; 14 How. 100; Bradford v. Cressey, 45 Maine, 9; Strout v. Millbridge Co., 45 Maine, 76; Veazier. Dwinell, 50 Maine, 479, 484; Granger v. Avery, 64 Maine, 292; Holden v. Robinson Manuf. Co., 65 Maine, 215; Pejepscot Proprietors v. Cushman, 2 Maine, 94. For the Massachusetts cases, see the next note.

See Hughes v. Providence Railroad Co., 2 R. I. 508, 512; Olney v. Fenner, Id. 211, 214. See opinion of Story, J., in Tyler v. Wilkinson, 4 Mason, 397, which related to the Pawtucket River. Storer v. Freeman, 6 Mass. 435, 438; Hatch v. Dwight, 17 Mass. 289, 298; Ingraham v. Wilkinson, 4 Pick. 268; Commonwealth v. Chapin, 5 Pick. 199; Waterman v.

In an early case in Massachusetts, Parker, C. J., said:2 "The common-law right of public property, restricted as it seems to be except for easement or right of way, may be found very inconvenient in its application to many of the magnificent fresh-water rivers of the United States, which are navigable for small vessels and boats much above the flux of the tide, especially by the aid of steam power so rapidly getting into use." The rule has been held applicable to the Connecticut River above the tide, in Connecticut,3 Massachusetts, and New Hampshire,5 and to the Penobscot and Saco Rivers in Maine. In Vermont, Lake Champlain is public property, and the creeks and streams which empty into that lake, so far as they are ordinarily of the same level as the lake, and rise and fall with its waters, are held to be public also; and private conveyances of lands bounding upon such creeks and streams pass title only to the water's edge, or to the low-water mark, if there is a definite low-water line.8

§ 57. In New York, the question has given rise to conflict. of decision.9 The later decisions follow the common-law

Johnson, 13 Pick. 261, 265; Hopkins Academy v. Dickinson, 9 Cush. 544, 547; Commonwealth v. Alger, 7 Cush. 53, 90, 97; McFarlin v. Essex Co., 10 Cush. 304, 309; Blood v. Nashua Railroad Co., 2 Gray, 137, 139; Boston v. Richardson, 13 Allen, 146, 154; 105 Mass. 351, 355; Commonwealth v. Vincent, 108 Mass. 441, 447; 1 Dane's Abr. ii., 692, § 13; Knight v. Wilder, 2 Cush. 199; King v. King, 7 Mass. 496.

1 Ingraham v. Wilkinson, 4 Pick. 268. See, however, the opinion of the same judge in Commonwealth v. Chapin, 5 Pick. 199, 202.

2 Ibid. 272.

5 State v. Canterbury, 28 N. H. 195. In this case a town was bounded upon the river.

Veazie v. Dwinel, 50 Maine, 479. 7 Berry v. Carle, 3 Greenl. 269; Spring v. Russell, 7 Greenl. 273, 290.

Fletcher v. Phelps, 28 Vt. 257, 262; Jakeway v. Barrett, 38 Vt. 316, 323; Austin e. Rutland Railroad Co., 45 Vt. 215; Newton v. Eddy, 23 Vt. 319.

Palmer v. Mulligan, 3 Caines, 307; People v. Platt, 17 Johns. 195; Hooker v. Cummings, 20 Johns. 90; Canal Appraisers v. People, 5 Wend. 423; People v. Canal Appraisers, 13 Wend. 355; 17 Wend. 571; People v.

3 Adams v. Pease, 2 Conn. 481, and Seymour, 6 Cowen, 579; Ex parte cases above cited.

4 Commonwealth v. Chapin, 5 Pick. 199; Bardwell v. Ames, 22 Pick. 333; Hopkins Academy v. Dickinson, 9 Cush. 544, 547.

Jennings, 6 Cowen, 518, and notes; Ex parte Tibbetts, 6 Cowen, 551; 5 Wend. 423; People v. Seymour, 6 Cowen, 518; Arthur v. Case, 1 Paige, 44, 75, 447; 3 Wend. 632; Jackson v. Hal

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rule, which has been held applicable to the Hudson,2 the Oswego, and the Genesee Rivers. The Mohawk River seems, however, to form an exception. In the case of The People v. Canal Appraisers,5 Davis, J., delivered an elaborate opinion, in which he held that this river was public property, upon two grounds: (1) that the word "navigable" denotes merely navigability in fact, and is so employed in the early authorities; (2) that the course of the State's legislation had been such as to amount to a reservation for public purposes of the Mohawk and other navigable rivers of the State. This decision does not appear to have been expressly overruled in its application to the particular river, but the first ground on which the judgment proceeds cannot now be regarded as tenable.8 The Niagara River, which is the national boundary between the United States and Canada,

stead, 5 Cowen, 216; Varick v. Smith, 5 Paige, 137; 9 Id. 547; Starr v. Child, 20 Wend. 149; 5 Denio, 599; 4 Hill, 369; Jackson v. Halstead, 5 Cowen, 216; Jackson v. Louw, 12 Johns. 252; Munson v. Hungerford, 6 Barb. 265; Luce v. Carey, 24 Wend. 451; Commissioners v. Kempshall, 26 Wend. 404; Gould v. Hudson River Railroad Co., 6 N. Y. 522; People v. Tibbetts, 19 N. Y. 523; Browne v. Scofield, 8 Barb. 239; Morgan v. King, 35 N. Y. 454; 18 Barb. 277; 30 Id. 9; Mott v. Mott, 68 N. Y. 246; Pierrepont v. Loveless, 72 N. Y. 211, 216; Chenango Bridge Co. v. Paige, 83 N. Y. 178. See also Shaw . Crawford, 10 Johns. 236; Furman v. New York, 5 Sand. 16; Curtis v. Keesler, 14 Barb. 511; Lownes r. Dickerson, 34 Barb. 586, 592; People v. Allen, 1 Lans. 248; Champlain Railroad Co. v. Valentine, 19 Barb. 484, 489. As to the legislation in this State, bearing upon the ownership of rivers and restricting the power of the commissioners of the land office so that they can convey the soil of navigable rivers and lakes only to the adjacent owners, see Canal Appraisers v. People, 17

Wend. 571, 577; Gould v. Hudson River Railroad Co., 2 Selden, 522; 1 Greenl. Laws, 280; Laws 1815, c. 199, p. 201; 1 Rev. Laws, 293, § 4; Laws of 1850, c. 283, p. 621; 1 Rev. Stats. 208, § 67; 1 Rev. Stats. (5th ed.), 552, § 82.

See the cases of Chenango Bridge Co. v. Paige; Pierrepont v. Lovelace; Mott v. Mott; Morgan v. King, above cited.

2 Palmer v. Mulligan, 3 Caines, 307; Ex parte Tibbits, and Ex parte Rogers, 6 Cowen, 551, note; Harris v. Thompson, 9 Barb. 350; Walton v. Tifft, 14 Barb. 216, 219.

3 Varick v. Smith, 9 Paige, 547; 5 Paige, 137.

4 Commissioners v. Kempshall, 26 Wend. 404.

People v. Canal Appraisers, 33 N. Y. 461; Crill v. Rome, 47 How. Pr. 398.

633 N. Y. pp. 466, 467, 475, 500. 7 See Crill v. Rome, 47 How. Pr. 398; People v. Gutchess, 48 Barb. 656, 667; Canal Appraisers v. People, 17 Wend. 571, 608; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44.

See ante, $$ 42, 48, notes.

also forms another exception, under the decisions in New York, to the application of the common-law rule in that State.1

§ 58. The English rule is also adopted in New Jersey,2 Delaware, Maryland, and Georgia. In the last named State it is held that, as the western bank of the Chattahoochee River, and not the river itself, is the boundary between that State and Alabama, the title of the riparian owners in Georgia, whose lands border upon this river, extends to the opposite bank, thus including the entire river-bed, and is not limited by the thread of the stream.7

§ 59. In South Carolina, the common-law rule was considered inapplicable to the condition of that State in the early case of Cates v. Wadlington; but, in the later case of McCullough v. Wall, the court said: "The rivers of our State are not of remarkable magnitude, and whether we adhere to the common-law definition, or consider as navigable

'Kingman v. Sparrow, 12 Barb. 201; Canal Appraisers v. People, 17 Wend, 571, 597.

2 Arnold v. Mundy, 1 Halst. 1; Gough v. Bell, Zab. 441, 490; Bell v. Gough, 3 Zab. 624; Martin v. Waddell, 3 Harr. 495; 16 Peters, 367; Rundle v. Delaware Canal Co., 1 Wall. Jr. 275; 14 How. 80; Attorney General v. Delaware Railroad Co., 27 N. J. Eq. 1,8, 631; Society v. Low, 2 C. E. Green, 20; Cobb v. Davenport, 32 N. J. 369.

3 Delaney v. Boston, 2 Harr. (Del.) 489; Bickel v. Polk, 5 Id. 325.

Browne v. Kennedy, 5 H. & J. 196; Ridgely v. Johnson, 1 Bland Ch. 316, note; Baltimore v. McKim, 3 Ibid. 453; Binney's Case, 2 Ibid. 99; Casey v. Ingloes, 1 Gill, 430; Day v. Day, 22 Md. 530, 537; Goodsell v. Lawson, 42 Md. 348; Chapman v. Hoskins, 2 Md. Ch. 485.

5 Young v. Harrison, 6 Ga. 130, 141; Jones v. Waterlot Co., 18 Ga. 539; Stanford v. Mangin, 30 Ga. 355; IIendrick v. Cook, 4 Ga. 241. See, gen

erally, Cobb's Digest of the Laws of Georgia, p. 902 et seq.

6 Howard v. Ingersoll, 13 How. (U. S.) 381; Alabama v. Georgia, 23 How. 505.

Young v. Harrison, 6 Ga. 130; Jones v. Waterlot Co., 18 Ga. 539; Moses v. Eagle Manuf. Co., 62 Ga. 455.

1 McCord, 580.

9 McCullough v. Wall, 4 Rich. 68; Boatwright v. Bookman, Rice, 447; Jackson v. Lewis, Cheves, 259; State v. Hickson, 5 Rich. 447; Witt v. Jefcoat, 10 Rich. 388; Noble v. Cunningham, McMullan, 289. In Shands v. Triplet, 5 Rich. Eq. 76, 79, the court say of the passage quoted in the text: "We entirely concur in this doctrine as to rivers altogether within the State, reserving our opinion as to rivers which may be conterminous between this and other States." See the numerous statutes upon the subject of rivers, in the ninth volume of the State Statutes.

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