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to the water's edge, even when the meandered line of the lake differs from the actual water line. In a recent case in Michigan it was said that it had always been customary to permit the public to take fish in the small lakes and ponds of that State, and it was therefore held that the plaintiff in that case who had never given notice forbidding the exercise of this customary right could not maintain an action of trespass against the defendant for passing upon his land with the intention of fishing and for taking fish in a pond which was almost exclusively enclosed by the plaintiff's farm.?
47 Wis. 662; Olson v. Merrill, 42 right to take fish in a private river or Wis. 203; Wright v. Day, 33 Wis. lake is a profit à prendre which could 260; Shufeldt v. Spaulding, 37 Wis. not be acquired by custom unless .662; Mariner v. Schulte, 13 Wis. 692; pleaded with a que estate. Waters v. Jones v. Phettibone, 2 Wis. 308. Lilley, 4 Pick. 145; Murphy v. Ryan,
Boorman v. Sunnuchs, 42 Wis. Ir. R. 2 C. L. 143; Bland v. Lips233; Delaphine v. Chicago Railway comb, 24 L. J. Q. B. 155, note; GateCo., Ibid. 214; Diedrich v. North-west- wood's case, 6 Co. 60; Grimstead v. ern Railway Co., Ibid. 248.
Marlow, 4 T. R. 718; Cobb v. Daven? Marsh v. Colby, 39 Mich. 626. port, 4 Vroom, 223; 3 Id. 369, 389; Elsewhere it has been held that a Winder v. Blake, 4 Jones (N. C.), 332.
THE PUBLIC RIGHT OF NAVIGATION.
86. Navigable waters. 87, 88. The right of navigation paramount to private and other public right3
in these waters. 89, 90. The right is to be exercised with reasonable regard to the rights of
the right of eminent domain.
106. Public landing places. . 107–110. Floatable streams. 111. Waters are navigable wherever they are naturally capable of gen
eral use, notwithstanding obstructions.
116. Liability of quasi-corporations. 117, 118. Powers of such corporations to improve harbors, canals, etc., and to
levy assessments therefor.
119. Public and private wharves, how distinguished. 120. Wharfage, liability therefor.
121. Remedies for public nuisances. 122–127. When by private suits.
128. Abatement of public nuisances. 129–132. The relative powers of Congress and of the State legislatures to
obstruct navigable waters. 133. The effect of the ordinance of 1787 upon these powers. 134–137. Construction and interpretation of statutes conferring such authority.
138. Harbor lines. 139. Power of the subordinate authorities of the State to encroach upon
navigable waters. 140. Wharves. 141–147. Tolls.
§ 86. The privilege of navigation upon all waters which are capable of such use in their natural condition and are accessible without trespassing upon private lands, is a common and paramount right. It is not confined to the channel or to those parts of the water highway which are most frequently used by vessels, but extends to high-water mark in tidal rivers and tide waters generally ;) and to the line along the shore of navigable fresh waters at which navigability ceases.2 In England, the right of navigation is public in tide water, but depends upon user in the case of navigable fresh waters. In this country, tide waters and fresh waters which are navigable in fact are alike open to the public for passage.4 The purpose of the navigation is immaterial, and those who pass upon the water for purposes of pleasure, fishing, or fowling have equal rights with those who navigate for business, trade, or agriculture.5
i Williams v. Wilcox, 8 Ad. & El. Porter, 9; Simpson v. Seavey, 8 Maine, 314; Colchester v. Brooke, 7 Q. B. 138; State v. Babcock, 30 N. J. L. 29; 339; Attorney General v. Terry, L. Porter v. Allen, 8 Ind. 1. R. 9 Ch. 423; Orr Ewing v. Colqu- ? Ibid. houn, 2 App. Cas. 839; Common 3 Ante, $$ 51, 52. wealth v. Church, 1 Penn. St. 105; 4 Ante, S$ 53, 54. Mobile v. Eslava, 9 Porter, 577; 165 West Roxbury v. Stoddard, 7 Pet. 234; Hagan v. Campbell, 8 Allen, 158, 171; Attorney General v.
$ 87. The riparian proprietors, and those who have private rights in the water or the soil beneath, cannot lawfully obstruct or limit the navigation in any part of the channel without a special power conferred by competent legislative authority. The master of a vessel is not required to shorten sail, or yield the channel to a fishing net, but may lawfully prosecute his voyage, or approach the shore at any point, without regard to seines or nets drawn across the way. If, under the pretence of exercising the right of navigation, he turns out of his course to run upon a net, or lies in wait until it is spread, and then crowds sail to reach it; or, if he unnecessarily anchors on a fishing ground, or loiters about it to prevent its use as such, or does not change his course, when he can do so without prejudice to the reasonable prosecution of his voyage, and has warning that he is approaching the net, he is answerable in damages, because the right of navigation, though superior, does not take away the right of fishery, and cannot be so abused as to excuse wantonness or malice. In a tidal river the right of navigation is not suspended at low tide when the channel is too shallow to float vessels; and a vessel, which is waiting until the tide serves, is not liable for injury caused without wantonness to an oyster bed upon which the vessel settles.3
§ 88. At common law the right of navigating a public stream is paramount to the right of passage across the stream by means of a bridge. It is so far superior to a ferry priv
Woods, 108 Mass. 436, explaining delphia, 42 Penn. St. 219, 228; Mason Rowe v. Granite Bridge, 21 Pick. 344; 7. Mansfield, 4 Cranch C. C. 580; The Charlestown v. County Commission- City of Baltimore, 5 Ben. 474; Comers, 3 Met. 202, and Murdock v. Stick- monwealth v. Chapin, 5 Pick. 199. ney, 8 Cush. 113; Attorney General ? Ibid.; Post v. Munn, 1 South. v. Lonsdale, L. R. 7 Eq. 377; The (N. J.) 61, 62; Cobb v. Bennett, 75 Montello, 20 Wall. 430.
Penn. St. 326 ; Jones v. Keeling, 1 | Anon., 1 Camp. 517, note; Colches. Jones (N. C.), 299. ter v. Brooke, 7 Q. B. 339; Post v. 3 Colchester v. Brooke, 7 Q. B. 339; Munn, 1 South. (N. J.) 61 ; Jones v. 9 Jur. 1090. Keeling, 1 Jones (N. C.), 299; Davis Castello v. Landwehr, 28 Wis. 522; v. Jerkins, 5 Id. 290; Cobb v. Bennett, Scott v. Chicago, 1 Biss. 510. The 75 Penn. St. 326; Moulton v. Libbey, legislature is the only tribunal that is 37 Maine, 472; Flanagan v. Phila- to reconcile these conflicting interests.
ilege across the stream, exercised by means of a cable, that a steamboat which has not given warning of its approach, is not required to wait for the cable to be lowered, if any damage to the steamer, or chance of damage, could be reasonably apprehended from delay. So the right of a gas company to lay its pipes in the bed of a river is subordinate to the right of navigation; and a vessel which is dragging its anchor as a proper and usual act of navigation under the circumstances in which it is placed, is not responsible, in the absence of negligence or malice, for injury thus caused to the pipes.?
$ 89. The public right of passage must also be exercised with due regard for the rights of riparian proprietors. A vessel in motion is required to use ordinary care not to injure, by its swell, other vessels, rafts, or property attached to the shore, as well as to avoid striking them. If a man
Commonwealth v. Breed, 4 Pick. 460; the naked object of his license. He Commonwealth v. Essex Co., 13 Gray, is allowed to keep a ferry, not to ob239; Middlesex Railroad Co. v. Wake- struct the navigation or place a nuisfield, 103 Mass. 261, 265.
ance in the river.” A license to keep Steamboat Globe v. Kurtz, 4 G. a ferry upon a navigable stream does Greene (Iowa), 433; Babcock v. Her- not authorize the grantee to place bert, 3 Ala. 392. A wire ferry cable any obstruction across the stream. across a navigable river is not an un- Babcock v. Herbert, supra. lawful obstruction to navigation, un- 2 Milwaukee Gas Light Co. v. The less it actually prevents the naviga- Gamecock, 23 Wis. 144. tion or renders it hazardous. The 3 Wright v. Brown, 4 Ind. 95; The Vancouver, 2 Sawyer, 381. In Steam- Rhode Island, 8 Ben. 50; The C. H. boat Globe v. Kurtz, 4 G. Greene, 433, Northam, 13 Blatch. 31; 7 Ben. 249; 436, Hall, J., said: “The lawful navi. The Morrisania, 13 Blatch. 512 ; The gation of the river can never be a Daniel Drew, Id. 523; Browne v. Stone, nuisance to a ferry owner, but a ferry 1 Phila. 241; 5 Penn. Law Jour. 75. may become a nuisance by obstruct. A vessel which involuntarily causes ing the navigation. While the ferry injury to another vessel lying alongowner is protected in the enjoyment side, in consequence of the swell of his franchise and property pertain caused by a passing steamer, is not ing to the ferry, against wanton and liable. Kissam v. The Albert, 21 Law wilful injury from those who are en Rep. 41. The owners of rafts or vesgaged in navigating the river, where sels moored to the banks are required he has received the usual courtesies to take reasonable precautions to that are extended between man and prevent injuries liable to be caused man, he has no cause of complaint. by the swell of passing steamers. His interest is at best but a servient · Fawcett v. The Natchez, 3 Woods, right, and cannot be extended beyond 16.