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obstinately refuses to remove his ship from opposite a wharf, and it would be as convenient for himself a little one way or the other, this would be an abuse of the common right, and the owner of the wharf may recover for such injury as he thereby sustains. In a recent case in Michigan,2 a steamboat was run to and fro in the Detroit River so unnecessarily near a boom which an ice company had constructed near the shore, that the ice within the boom was broken up by the agitation of the water, and the company being unable to procure sufficient ice to fill its houses, the steamboat was held responsible for the loss. The court, in its opinion, after referring to the obligation imposed upon those who use a highway to avoid unnecessary injury to trees, carriages, and other articles that may be within the limits of the way,3 and to the case of the wanton destruction of a fishing-net by a vessel, said: "The right of navigation, while paramount, is not exclusive, and cannot be exercised to the unnecessary or wanton destruction of private rights or property, where both can be freely and fairly enjoyed. But in this case the vessel did not run into the boom, and therefore it may be said the case is not parallel with those we have been considering. The principle, however, is the same, which recognizes the superior right of the vessel, but punishes any abuse of that right. It is also clearly apparent that vessels have not an exclusive right to use the entire channel, which may be narrowed or used for purposes, some of which are but remotely, if at all, connected with the subject of navigation. It is well known, as this case proves, that there is a class of vessels navigating our lakes and rivers which cause, when running, very great commotion or swells in the water. It is also well known that on many of the rivers a class of lighters and barges are used for the lighterage or necessary transportation. of the agricultural, manufacturing, and mining products of the country. This class of vessels are often loaded to the

1 Anon., 1 Camp. 517, note.

People's Ice Co. v. Steamer Excelsior, 44 Mich. 229; 22 Alb. Law Jour. 342.

3

Citing Clark v. Dasso, 34 Mich. 86; Cary v. Daniels, 8 Met. 478. 4 Citing Post v. Munn, 1 South. (N. J.) 61. See ante, § 87.

water's edge, and in smooth waters are thus considered perfectly safe, and yet they could not venture out where the wind or waves could reach them. Would a steamer, approaching such a tow, where it was clearly apparent the swell she created would endanger the lighter or cargo, be justified in recklessly pursuing her course at full speed, in case damage resulted? Upon some of our rivers and water highways artificial banks have been formed for the benefit of commerce, and to prevent a spread of the waters over the adjoining country. The swell caused by steamers of a certain class would, by washing such banks, and otherwise, weaken and injure them, and thus create danger of public and private damage. Such dangers are frequently guarded against by legislation, or rules of the highway; but it may be questionable whether such regulations are not merely declaratory of the common-law maxim that a man must enjoy his own property in such a manner as not to injure that of another person. So the right to boom logs is necessary to their profitable manufacture. The owners must therefore be protected in this right, else it would be of but little value. Vessels would have no right to destroy them, or wantonly run so close to them as to cause a loss of the property therein. A vessel has no right to wantonly run so close to the shore, to a boom, or to a dock, as to cause damage which could easily be avoided by standing farther off." The owner of a vessel is not responsible for injuries caused by inevitable accident,' but is liable for the resulting consequences, as well as the immediate consequences, of negligence on the part of those in charge. If a vessel runs aground in consequence of a mistake as to the channel, and another vessel collides with it under the same mistake, the grounding of the first vessel is not the proximate cause of the injury, nor is that vessel bound to signal the approaching vessel as to the course the latter should take, but the owner of the second vessel is

1 Ibid.; Doward v. Lindsay, L. R. 5 P. C. 338; The Thornley, 7 Jur. 659; Brown v. Lynn, 31 Penn. St. 510; The Louisiana, 3 Wall. 164; Dygert v.

Bradley, 8 Wend. 469. See Mark v.
Hudson River Bridge Co., 56 How.
Pr. 108; The Oler, 2 Hughes, 12.

liable for the damage to the first. Where a vessel, being disabled by a collision, and left helpless in the track of navigation, is afterwards injured by a passing vessel, the vessel at fault is liable for the additional injuries thus caused to the disabled vessel.2 Where, also, a ship became unmanageable through the negligence of the captain and crew about three-quarters of a mile from a lee-shore, and was then driven by the wind and tide upon a sea-wall, which it damaged, it was held that the negligence was the proximate cause of the injury, and that the owners of the ship were liable therefor.3 In this, and similar cases, the fact that the riparian owner, in the lawful use of his own property, and by his own act, builds out from the shore or river bank, thereby exposing his property to danger of accidental injury from the lawful acts of others, does not deprive him of his remedy for an injury caused by the culpable negligence of such other persons. But the riparian owner will be liable for any act on his part which causes injury to vessels lawfully navigating the stream. If a vessel or raft, moored without his consent against the front of his land, interferes with his right of access thereto, he may unfasten it and set it adrift, and, if it floats away or is wrecked, he is not liable to the owner for the loss. But he is not justified in setting adrift anything that will injure vessels navigating the stream. Where the enjoyment of such owner's property was interfered with by a large log, which landed opposite his premises, and he towed it to another part of the river and there left it, he was held liable for the loss of a vessel which struck upon the log and was injured.

Austin v. New Jersey Steamboat Co., 43 N. Y. 75.

The Oler, 14 Am. L. Reg. 300; 2 Hughes, 12.

3

Romney Marsh v. Trinity House, L. R. 5 Ex. 204; L. R. 7 Ex. 247; The George and Richard, L. R. 3 Adm. & Ecc. 446; Austin v. New Jersey Steamboat Co., 43 N. Y. 75; Bowas v. Tow Line, 2 Sawyer, 21.

Cook v. The Champlain Transportation Co., 4 Denio, 91; Kerwhaker v. The Cleveland Railroad Co., Ohio St. 172, 193.

Dutton v. Strong, 1 Black, 23; Harrington v. Edwards, 17 Wis. 586. 6 Porter v. Allen, 8 Ind. 1. In Satterly v. Hallock, 5 Hun, 178, the defendant unlawfully removed the plaintiff's vessel from the dock, in which it was lying, to a position where it was injured by settling at low water upon a log which the plaintiff had previously thrown overboard. The plaintiff was held not guilty of contributory negligence.

§ 90. The public right is only limited in this respect by the requirement that it shall be exercised in a reasonable manner; and the fact that the riparian owner sustains damage from this cause does not, in all cases, give him a cause of action. Lands adjoining a river may, without compensation, be legally flowed, to some extent, by persons exercising the right of navigation. Vessels, boats, or logs floating in the water may cause it to rise above its natural level; and, when numerous, they may thus be the source of appreciable damage to the riparian owners. Damage thus caused to the lands of riparian proprietors would be damnum absque injuria in the case of rivers navigable for vessels and boats, and a boom company, engaged in driving logs down a stream, is not an insurer that the riparian owners shall not suffer damage.1 If a log or other property is lodged upon the adjoining

1 White River Booming Co. v. Nelson (Mich.), 7 So. L. Rev. 497, and authorities cited, note 2 below; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, 318. In this case, the court said: "In addition to the fact that waters in which ships and other vessels of such burden as would be likely materially to retard the currents, ever become collected or crowded together to such an extent as might, in the shallow and narrow waters, impede the current, are of necessity so much deeper (and generally of much greater width) than rivers like this, whose navigation can be rendered valuable principally for the running of logs, such ships and vessels, by their shape and construction, are so entirely different from sawlogs in respect to the facility afforded for the passage of the current under and around them, that the analogy between the two becomes exceedingly faint, if it does not disappear. when we consider further, that sawlogs, without any bond of connection, coming down a river, each in its own careless way, and stopped by a boom or other obstruction, collecting into a jam, run over and under each other

But

in a confused mass, pile upon and across each other in every conceivable direction, and fill the stream from the surface to the bottom, setting back the water like a dam; while ships and vessels, if they do occasionally run others down, have not acquired so general a habit of running over, and across, and under one another, several tiers in depth, as to make the danger of the setting back of a river from this cause, an ordinary or probable incident of navigation. The assumed analogy, therefore, if any can be said to exist, is too faint, shadowy, and uncertain, to serve as the basis of the right here claimed, and would (in the language of Judge Story) betray us into an extravagant looseness which would destroy private rights.' The respective rights of the public to use the stream for the purposes of navigation and the floating of logs, and of the riparian owner to the use of his land, must be harmonized, and those running logs down a stream, or collecting, dividing, and storing them, can with no more propriety be allowed, for the sake of rendering the business more safe, convenient, or profitable to them, to raise the water over the

lands by a subsiding freshet, without fault chargeable to any person, the owner may reclaim it, and, doing no unnecessary damage, may go upon the land for that purpose, without being liable for such mishaps or for trespass.1 So, if a bridge, which was properly constructed and has been kept in repair, is carried away by an extraordinary flood, and is lodged upon the land of a riparian proprietor, the land-owner or the owner of the bridge may remove it, but the former cannot convert it to his own use, and the latter is neither liable for injuries caused by the wreck, nor bound to remove it until he is notified so to do, and even then he may abandon the property. The property near a water highway is thus held subject to the risks incident to the reasonable exercise of the public right.3

§ 91. In England the right of navigation has always been jealously guarded as a great public interest. In Rex v. Clark,* Holt, C. J., said that to hinder the course of a navigable river was against Magna Charta; and, by numerous acts of Parliament, annoyances to this common privilege were pun

lands of others, than the latter can be allowed, for their convenience and profit, to erect or maintain, in connection with their lands, dams, or other obstructions to the navigation which the river, in its natural condition, may afford."

Chase v. Corcoran, 106 Mass. 286; Proctor v. Adams, 113 Mass. 376; Barker v. Bates, 13 Pick. 255; Dunwich v. Sterry, 1 B. & Ad. 831 ; Thompson v. Androscoggin Co., 54 N. H. 545, 558; Etter . Edwards, 4 Watts, 65; 2 Kent Com. 322, 359, 360; 1 Black. Com. 293, 297.

2 Livezey v. Philadelphia, 64 Penn. St. 106; Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle, 94; Forster v. Juniata Bridge Co., 16 Penn. St. 393; Sheldon v. Sherman, 42 N. Y. 484; 42 Barb. 368; post, § 98.

3 Thompson v. Androscoggin Co., 54 N. HI. 545, 558; 58 Id. 108; Brown

v. Collins, 53 N. H. 442, 449; Eaton v. B. C. & M. R. Co., 51 N. H. 504, 530; Carter v. Thurston, 58 N. H. 104.

+ 12 Mod. 615. See, also, Warren v. Prideaux, 1 Mod. 105; Magna Charta, c. 23; Oldbury v. Stafford, 1 Sid. 145; Carter v. Murcot, 4 Burr. 2162; Rex v. Smith, 2 Dougl. 441; Blundell v. Catterall, 5 B. & Ald. 91; Greenwich Board of Works v. Maundslay, L. R. 5 Q. B. 397; Barclay Railroad Co. v. Ingham, 36 Penn. St. 194, 201; Browne v. Kennedy, 5 Harr. & J. 195, 203.

5 These early statutes are cited and considered in Hale, De Jure Maris, c. 3, 5; Hargrave's Law Tracts, 9, 22; Woolrych on Waters, 155; Fitz. N. B. 113; Callis on Sewers, 255, 256; Weld v. Hornby, 7 East, 195, 198; Robson v. Robinson, 3 Dougl. 307; Williams v. Wilcox, 8 Ad. & El. 314; Case of Chester Mill, 10 Rep.

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