impossible for vessels to ride. Indeed, where the soil is the king's, the building below the high-water mark is a purpresture, an encroachment and intrusion upon the king's soil, which he may either demolish or seize, or arent at his pleasure; but it is not ipso facto a common nuisance, unless, indeed, it be a damage to the port and navigation." Whether a wharf or building extended into tide waters is a nuisance is purely a question of fact.1 § 93 a. The above rules apply also to navigable fresh rivers in those localities where they are held to be public property like the sea. But when the title of the riparian proprietors extends usque ad filum aquae, such proprietors are at liberty, as against the public, to erect any structure, or to do any act with respect to the water, or the portion of the riverbed owned by each, provided they do not interfere with the navigation, and the public have no other right than that of free and unmolested passage. This right of This right of passage does not include the right to take rocks, gravel, or soil from the bed of non-tidal rivers which are private property, and the owner of the adjoining land may maintain an action of trespass for this cause, or replevy from the wrongdoer the rocks or soil so taken.5 Stone cannot be quarried, without compensation, from the bed of a private stream, for the purpose of constructing a public bridge, even at that part of the bed which is beneath the proposed bridge. In Pennsylvania, 1 Ibid.; ante, § 21; Queen v. Betts, 16 Q. B. 1022; Abraham v. Great Northern Railway Co., 16 Q. B. 586, 591; Dutton v. Strong, 1 Black, 23, 31; Columbus Bridge Co. v. Peoria Bridge Co., 6 McLean, 70; Nichols v. Boston, 98 Mass. 39, 41; Burnham v. Hotchkiss, 14 Conn. 318; Thornton v. Grant, 10 R. I. 477; The Erie v. Canfield, 27 Mich. 479; Clark v. Lake St. Clair Ice Co., 24 Mich. 508; Attorney General v. Evart Booming Co., 34 Mich. 462; People v. Carpenter, 1 Mich. 273; Howard v. Robbins, 1 Lans. 63; Knox v. New York, 55 Barb. 404; 38 How. Pr. 67; Van Der Brooks v. Currier, 2 Mich. N. P. 21; Delaware Canal Co. v. Lawrence, 2 Hun, 163; 56 N. Y. 612. 2 Orr Ewing v. Colquhoun, 2 App. Cas. 839, 845, 853, 854, 870; Walker v. Board of Works, 16 Ohio, 544; Attorney General v. Evart Booming Co., 34 Mich. 462. 3 Ibid. Braxton v. Bressler, 64 Ill. 488; June v. Purcell, 36 Ohio St. 396; Ross v. Faust, 54 Ind. 471; Berry v. Snyder, 3 Bush, 266, 285. 5 Braxton v. Bressler, 64 Ill. 488. Overman v. May, 35 Iowa, 89. where the large fresh-water rivers belong to the public, paving stones taken from such rivers belong to the taker.1 § 94. In Rex v. Russell 2 the defendants were indicted for wrongfully continuing two coal staiths or geers in a navigable river to the public nuisance of the navigation. The geers extended over the space between high and low-water mark, and one or two feet below low-water mark, with spouts projecting therefrom, one of which extended outward thirty-six feet. The opinion of the majority of the court was that the defendants should be acquitted if the abridgment of the navigation caused by these structures was for a public purpose, and produced a public benefit, by enabling coals to be supplied at a cheaper price and in better condition than before, provided that a reasonable space was left for the passage of vessels upon the river. In subsequent English cases it was held that, upon an indictment for a public nuisance, the violation of rights which belong to any part of the public cannot be excused or vindicated by offsetting the benefit which may arise to another part of the public elsewhere. In the case of Rex v. Ward,5 in which the decision of Rex v. Russell was reviewed, it was held that a finding by the jury, that an embankment in a water highway is a nuisance, as interfering with the navigation, but that the inconvenience is counterbalanced by the public benefit arising therefrom, amounted to a verdict of guilty. The rule now is that the inquiry for the jury is whether the structure is a nuisance to the navigation, and not whether it is beneficial to the public; and that counterbalancing benefits which may accrue to the public from that which is found to be a nuisance are immaterial.6 1 Solliday v. Johnson, 38 Penn. St. 380. 26 B. & C. 566; 9 D. & R. 561. See, also, Rex v. Grosvenor, 2 Starkie, 511, 514. v. Betts, 16 Q. B. 1022, 1037; Reg. v. 5 Rex v. Ward, 4 Ad. & El. 384. Bayley and Holroyd, JJ., Lord 143; 3 El. & Bl. 942; Rex v. Morris, 1 B. Tenterden, C. J., dissenting. Rex v. Ward, 4 Ad. & El. 384; Rex v. Morris, 1 B. & Ad. 441; Reg. & Ad. 441; Folkes v. Chad, 3 Dougl. 340; Reg. v. Betts, 16 Q. B. 1022, 1037; Reg. v. Randall, 1 Car. & M. § 95. The right of navigation includes the right to anchor as incidental to its beneficial enjoyment; and a claim by individuals or corporations, founded on royal grant or immemorial usage, for a toll or anchorage on all vessels which anchor in an arm of the sea which is not a port, cannot be maintained.1 As against other vessels, but not against the riparian owners,2 it includes the right to moor to wharves and to the shore, and thereby to occupy exclusively, for a reasonable time and in a proper manner, the portion of the channel covered by the vessel. Ships may land and remain at the shore during such periods, and at such places as may be reasonably necessary for loading and unloading and awaiting cargoes. So logs and rafts, floated down a stream, may be moored for a reasonable time to the shore for the purpose of making up the logs into rafts, or for breaking up the rafts, or to enable the owners to sell them.5 The reasonableness of the time, place, and manner of the mooring under the foregoing rules is a question of fact for the jury, and the privilege of stopping upon the water is practically the same 496; Attorney General v. Terry, L. R. 9 Ch. 423; Commonwealth v. Wright, 3 Am. Jur. 185; People v. Vanderbilt, 26 N. Y. 287, 297; Hart v. Albany, 9 Wend. 571, 582; People v. Horton, 64 N. Y. 610, 620; Respublica v. Caldwell, 1 Dallas, 150; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 577; State v. Kaster, 35 Iowa, 221; Garitee v. Baltimore, 53 Md. 422, 436; Blanchard v. Moulton, 63 Maine, 434; People v. St. Louis, 5 Gilman, 351, 372; Works v. Junction Railroad, 5 McLean, 425; Thornton v. Grant, 10 R. I. 477, 482. Mississippi Railroad Co. v. Ward, 2 Black, 485, 494; Pilcher v. Hart, 1 Humph. 524, modified in Gold v. Carter, 9 Humph. 369; Commonwealth v. Bilderback, 2 Parsons (Pa.), 447; People v. Horton, 64 N. Y. 610; 5 Hun, 516; Delaware Canal Co. v. Lawrence, 2 Hun, 163; 56 N. Y. 612; Commonwealth v. May, 3 Am. Jur. 190; Commonwealth v. Crowninshield, 2 Dane's Abr. 697. But see 1 Gann v. Whitstable Free Fishers, 11 H. L. Cas. 192; Foreman v. Whitstable Free Fishers, L. R. 4 H. L. 266. 2 Post, § 98. 3 Original Hartlepool Co. v. Gibb, 5 Ch. D. 713; Wyatt v. Thompson, 1 Esp. 252; Hayward v. Knapp, 23 Minn. 430; Sherlock v. Bainbridge, 41 Ind. 35; Bainbridge v. Sherlock, 29 Ind. 364; Baker v. Lewis, 33 Penn. St. 301; Browne v. Stone, 1 Phila. 241; 5 Clark, 75; Gerrish v. Brown, 51 Maine, 256, 263; Culbertson v. The Southern Belle, 1 Newb. 461; The Granite State, 3 Wall. 310; Culbertson v. Shaw, 18 How. 584. as in the case of a carriage upon a road.1 The owner of floating logs who wishes to direct them into his mill-pond, may use, for that purpose, temporary guide booms which do not unreasonably obstruct the channel; and, if a booming company encloses part of a floatable stream in a reasonable and prudent manner for its own purposes, the fact that another booming company upon the same stream is thereby inconvenienced, does not make the boom of the first company a public nuisance.3 § 96. All persons have an equal right to the reasonable use of public streams for travel and transportation; and a navigator who, in the proper exercise of this right, temporarily obstructs another, does not become guilty of a nuisance or trespass. The occasional grounding of a vessel or raft is incidental to navigation,5 and if it is driven into a position where it obstructs the channel, other navigators are bound to submit to a reasonable delay in order that the owner may remove it, before attempting to destroy it as a nuisance. The fact that a portion of a vessel in landing at a wharf overlaps in front of an adjoining wharf or dock, thereby rendering access to the latter temporarily inconvenient, does not create any liability if other vessels do not at the time desire to approach the adjoining premises; and, even if they do, the same rule undoubtedly applies if the first vessel exercises proper skill and despatch, and causes as little inconvenience as possible to others. Vessels have also the Gerrish v. Brown, 51 Maine, 263; 5 Colchester v. Brooke, 7 Q. B. 339; The Ellen S. Terry, 7 Ben. 401; The Coleman, 1 Brown Adm. 456; The Thomas A. Scott, Id. 503; Cummins v. Spruance, 4 Harr. (Del.) 315. 6 Lallande v. The C. D. Jr., Newb. Adm. 501. 7 Original Hartlepool Co. v. Gibb, 5 Ch. D. 713; Sherlock v. Bainbridge, 41 Ind. 35; Bainbridge v. Sherlock, 29 Ind. 364; Delaware River Steam right to use a warp in getting in or out of harbor, if they do not interfere with navigation. They may extend the warp across the entire channel if no other vessels are passing; but must take notice of the approach of another vessel, and slacken the warp so as to allow sufficient space for the approaching vessel to pass, and give timely notice of the space so left. If this notice is disregarded, and injury results, the burden of proof will be upon the latter vessel." Where a collision occurs between a vessel which is stationary or in stays, and another which is in motion, the presumption of negligence is against the latter.5 This rule of admiralty, which is also applied by the common-law courts, is a presumption of fact which may be rebutted. Want of a proper watch, or neglect to show proper lights or signals at night, especially when lying in a navigable channel, would be sufficient to overcome it, if the neglect of such precaution contributed boat Co. v. Burlington Ferry Co., 81 Penn. St. 103. 1 Potter v. Pettis, 2 R. I. 483, 487; McCord v. The Tiber, 6 Biss. 409; Annett v. Foster, 1 Daly, 502; The Maverick, 1 Sprague, 23; 5 Law Rep. 106; The Hope, 2 W. Rob. 8. 2 Ibid. 3 Ibid. The Lady Franklin, 2 Lowell, 220; The J. W. Everman, 2 Hugh. 17; Hall v. Little, 18 Alb. L. Journal, 151; 6 Rep. 577; The A. R. Whetmore, 5 Ben. 147; The Pennsylvania, 4 Ben. 257; Mercer v. The Florida, 3 Hugh. 488; The Midas, 6 Ben. 173; The Duchess, Id. 48; The Planet, 1 Brown Adm. 124; The Masten, Id. 436; Jerome v. 4 The Charlotte Roab, 1 Brown Floating Dock, Id. 508; The MilwauAdm. 453. 5 The Victoria, 3 W. Rob. 52; The Egyptian, 1 Moo. P. C. N. s. 373; The Otter, L. R. 4 Adm. 203; Cuthbertson v. Shaw, 18 How. 584; Ure v. Coffman, 19 How. 56; The Bridgeport, 41 Wall. 116; The Granite State, 3 Wall. 310; The Louisiana, 3 Wall. 164; The Bridgeport, 14 Wall. 116; The Clarita, 23 Wall. 1, 14; Bill v. Smith, 39 Conn. 206; Baker v. Lewis, 33 Penn. St. 301; Austin v. New Jersey Steamboat Co., 43 N. Y. 75; Foster v. Holly, 38 Ala. 76; The Fremont, 3 Sawyer, 571; Steamboat United States v. St. Louis, 5 Mo. 230; Buzzard v. The Petrel, 6 McLean, 491; The Indiana, Abb. Adm. 330; Sterling v. The Jennie Cushman, 3 Cliff. 636; kee, 2 Biss. 509; Amoskeag Manuf. Co. v. The John Adams, 1 Cliff. 404; The Bridgeport, 7 Blatch. 361; 1 Ben. 65; The Helen R. Cooper, Id. 378; The E. C. Scranton, 2 Ben. 25; The Baltic, Id. 452; The Nebraska, Id. 500; The Patterson, 3 Ben. 299; The Avid, Id. 434; The Leo, Id. 569. When a ship is about to be launched, and the navigation will thereby be obstructed temporarily, reasonable notice must be given to avoid collisions. The Vianna, Swa. Adm. 405. 6 Bill v. Smith, 39 Conn. 206. 7 Sproul v. Hemingway, 14 Pick. 1; Carsley v. White, 21 Pick. 254; The Julia, 2 Lush. 231; The John Fenwick, L. R. 3 Ad. & Ec. 500; The Clara, 102 U. S. 200; Arctic Fire Ins. |