to the injury. A vessel lying at anchor in a gale, which has the power to avoid a threatened collision, is bound to do so.2 So, the anchoring of a vessel at an unsafe and improper place is a negligent act,3 and if the improper anchorage is the proximate cause of a collision with a vessel in motion, no action, according to the principles of the common law, lies against the latter vessel to recover compensation, although in admiralty the loss would be divided if both vessels were at fault. A vessel which breaks from her moorings, and strikes a seawall or another vessel, is required to show affirmatively that the drifting was caused by inevitable accident and not by lack of proper precaution."

Co. v. Austin, 69 N. Y. 470; Whitehall Transportation Co. v. New Jersey Steamboat Co., 51 N. Y. 369; Nelson v. Leland, 22 How. 48; Silliman v. Lewis, 49 N. Y. 379; The Victoria, 3 W. Rob. 52; The City of Baltimore, 5 Ben. 474; The Express, 1 Blatch. 355; Bill v. Smith, 39 Conn. 206; The City of London, Swa. Adm. 245; Browne v. Stone, 1 Phila. 241; 5 Clark, 75; Baltimore Railroad Co. v. Wheeling Transportation Co., 32 Ohic St. 116; Billings v. Breinig, 45 Mich. 65; The Scioto, Davies, 359; The Saxonia, Lush. Adm. 419; The Industrie, L. R. 3 Adm. & Ec. 308; Rathbun v. Payne, 19 Wend. 399; Kennard v. Barton, 25 Maine, 39, 47; Union Steamship Co. v. Nottinghams, 17 Gratt. 115; The Clara, 13 Blatch. 509; The Indiana, Abb. Adm. 330; The Lyon, Sprague, 40; Lenox v. Winissimmet Co., Ibid. 160; Cuthbertson v. Shaw, 18 How. 584; Ure v. Coffman, 19 How. 56; Sparks v. Saladin, 6 La. Ann. 764; Beyer v. The Nurnberg, 3 Hugh. 505.

1 Hoffman v. Union Ferry Co., 47 N. Y. 176; Mellon . Smith, 2 E. D. Smith, 462; The Farragut, 10 Wall. 334; The Masters, 1 Brown Adm. 342; Meigs v. Steamship Northerner, 1 Wash. Ter. 91.

2 The Sapphire, 11 Wall. 164.

Pet. 107; The Electra, 6 Ben. 189; The Indiana, Abb. Adm. 330; Knowlton v. Sanford, 32 Maine, 148.

4 Vennall v. Garner, 1 Comp. & M. 21; Luxford v. Large, 5 Car. & P. 421; Dowell v. General Steam Navigation Co., 5 El. & Bk. 195; Vanderplank v. Miller, Mood. & M. 169; The Marcia Tribon, 2 Sprague, 17; The Scioto, 2 Ware, 366; Strout v. Foster, 1 How. (U. S.) 89; Atlee v. Packet Co., 21 Wall. 389; Lambert v. Staten Island Railroad Co., 70 N. Y. 104; Arctic Fire Ins. Co. v. Austin, 9 N. Y. 470; 3 Hun, 195; The Clarita, 23 Wall. 1,14; Halderman v. Beckwith, 4 McLean, 296; Broadwell v. Swigert, 7 B. Mon. 39; Steamboat v. McCraw, 26 Ala. 189, 203; Adams v. Wiggins Ferry Co., 27 Mo. 95.

5 Catharine v. Dickinson, 17 How. 170; Atlee v. Packet Co., 21 Wall. 389; The Morning Light, 2 Wall. 550; Union Steamship Co. v. New York Steamship Co., 24 How. 307; The Clara, 102 U. S. 200; The Rival, Sprague, 128; The Marcia Tribon, 2 Sprague, 17; O'Neil v. Sears, Id. 52; The Comet, 1 Abb. (U. S.) 451; The Nautilus, Ware, 529; Vanderplank v. Miller, Mood. & M. 169; Simpson v. Hand, 6 Whart. 311; The Atlas, 93 U. S. 302.

6 The Louisiana, 3 Wall. 164; The 3 Strout v. Foster, How. 89; 17 Titan, 8 Ben. 7; The Christopher Co

§ 97. The right of moorage cannot be lawfully exercised in such a manner as to create a permanent obstruction to the navigation, even if the obstruction would be in the aid of commerce. A boom which obstructs the use of a river for navigation or floating lumber, or raft of timber moored continually to its shores, is a public nuisance, as limiting the right of navigation; and, also, a private nuisance, if it causes peculiar injury to a navigator, or deprives the riparian owners of access to their premises.2 Keeping a raft moored for six weeks in one place has been held to be an unreasonable obstruction to the right of passage.3 The proprietors of a dock privilege constructed in front of their lots, upon the Hudson River at Albany, a floating storehouse or vessel with a roof and convenient openings for receiving and discharging merchandise. This permanent occupation of a portion of the river was held to be an obstruction to its free and common use, the same as if it were erected in the open channel.1 The same has been held with respect to a disused canal-boat, which, being nearly sunken, was fastened to the shore and rendered the navigation less safe and convenient.5

§ 98. The duty of a person, using a navigable river as a highway, to exercise reasonable care and skill to prevent injury to other vessels, continues so long as he retains the management and control of the vessel. If he remains in possession, his liability is the same whether the vessel is in motion or stationary, floating or aground, under water or

lumbus, Ibid. 239; The Petunia, Ibid. 349; The Queen of the East, 4 Ben 103; The Johannes, 10 Blatch. 478; The Fremont, 3 Sawyer, 571; The Buckhurst, 30 W. R. 232; Love v. Montgomery, 10 La. Ann. 113.

1 Moore v. Jackson, 2 Abb. (N. C.) 211; Lowber v. Wells, 13 How. Pr. 454; Commonwealth v. Fleming, Lewis's Crim. Law, 534; Bigler v. O'Connor, 32 Leg. Int. 355. So storing merchandise upon a street or road is not a lawful use of the public easement. Coburn v. Ames, 52 Cal. 385;

above it. This liability may be transferred with the transfer of the possession and control to another person.2 If an unavoidable accident causes a vessel to sink, the law does not add to the owner's misfortune by requiring him to remove the impediment to navigation which the wreck may create, or to mark its position by a buoy or light. If he abandons the vessel, his duty and responsibility cease; but if he retains the possession and control, he is bound to take proper precautions for the safety of the public. These rules apply also where bridges, dams, or houses, swept away by extraordinary floods or by high winds, without negligence on the part of the owners, become obstructions to navigation, or encumber riparian estates. In Kentucky, it has been held that the owner of a boat which sinks in a navigable stream between high and low-water mark is liable for any damages thereby caused to the owner of the soil on which it lies, if he does not remove it within a reasonable time. Where a rail

1 Brown v. Mallett, 5 C. B. 599; White v. Crisp, 10 Exch. 312, 321.

2 Ibid.

3 Ibid., King v. Watts, 2 Esp. 675; Hancock v. York Railway Co., 10 C. B. 348; The Swan, 3 Blatch. 285.

* Harmond v. Pearson, 1 Camp. 515; White v. Crisp, 10 Exch. 312; Brown v. Mallett, 5 C. B. 599; Boston Steamboat Co. v. Munson, 117 Mass. 34; Taylor v. Atlantic Ins. Co., 37 N. Y. 275; 9 Bosw. 369; 2 Bosw. 106; Sheldon v. Sherman, 42 N. Y. 484; Eads v. Brazelton, 22 Ark. 499; Missouri River Packet Co. v. Hannibal Railroad Co., 1 McCrary, 281; Winpenny v. Philadelphia, 65 Penn. St. 135; Eads v. Brazelton, 22 Ark. 499.

5 Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle, 9, 24; Forster v. Juniata Bridge Co., 16 Penn. St. 393; Livezey v. Philadelphia, 64 Penn. St. 106; Roush v. Walter, 10 Watts, 86; Winpenny v. Philadelphia, 65 Penn. St. 135; Withers v. North Kent Railway Co., 3 H. & M. 969. A bridge or way is negligently constructed if built of earth in the channel of a stream,

where it may be swept away by floods. Kansas Pacific Railway Co. v. Miller, 2 Col. 442; Kansas Pacific Railway Co. v. Lundin, 3 Col. 94. It seems to be doubtful whether at common law it was the duty of cities and towns to keep their ports free from obstructions. See Hale, De Portibus Maris, c. 7; 1 Hawk. P. C. c. 32, § 13; Colchester v. Brooke, 7 Q. B. 339; Williams v. Wilcox, 8 Ad. & El. 314. In Winpenny v. Philadelphia, 65 Penn. St. 135, 140, Agnew, J., said: "The general understanding in this country is that, the clearing out of streams and removing obstructions to navigation belong to the State or the United States, according to the character of the stream, as confined within State limits or as extending beyond, and necessary to inter-state commerce. Yet it is not a duty of perfect obligation, but one of voluntary assumption or imperfect obligation, inasmuch as it cannot be enforced against the will of the State." See ante, § 90.

6 Morrison v. Thurman, 17 B. Mon. 267.

road company employed a contractor to build a bridge, and for that purpose to drive piles in a river, and, the contract being abandoned, the piles were left in the river in a condition dangerous to vessels, the company was held responsible for injuries to a vessel which struck thereon, although the vessel was prosecuting her voyage on Sunday.1 Where, however, piles were left by the defendants in a navigable river in such condition that a vessel could not be injured by them without gross negligence, and, being then sold and cut off by the buyer even with the bottom of the river, they afterwards protruded above the bed in consequence of a washing away of the soil and injured a vessel, the defendants were held not liable.2

§ 99. The early authorities were to the effect that, under the law of England, as by the civil law prevailing upon the continent of Europe and in Louisiana, the right of navigation includes the right to use the shores or banks of navigable waters for the purpose of fastening vessels, and for towing barges, to whomsoever the soil belongs; and that, if the water of the river impairs the banks, the public have a right of way for the purpose of towing in the nearest part of the fields next adjoining to the river. But, in the case of Ball v. Herbert, it was held that the right of towage depends upon usage or statute, and that there was no general right to use the banks of English rivers for this purpose. This decision determined the rule of the common law, by which, as now established, the right of navigation ceases at the high-water mark of tide waters, and at the water's edge

1 Philadelphia Railroad Co. v. Philadelphia Towboat Co., 23 How. 209. 2 Bartlett v. Baker, 3 H. & C. 153. 3 Young v. 1 Ld. Raym. 725; Queen v. Cluworth, 6 Mod. 163; Pierse v. Fauconberg, 1 Burr. 292; Bracton, lib. 1, c. 12, fol. 6; Just. Inst. lib. 2, tit. 1, fol. 4; Cooper's Justinian, lib. 2, tit. 1; Civil Code of La. art. 443, 1446; 3 Com. Dig. tit. Chimin, D. 4; Hale, De Portibus Maris, c. 7; Hargrave's Law Tracts, 79, 85, 86;

Callis on Sewers, 73; Carrollton Railroad Co. v. Winthrop, 5 La. Ann. 36; Municipality No. 2 v. Orleans Cotton Press, 18 La. 122; Natchitoches v. Coe, 3 Martin N. s. 140; New Orleans v. New Orleans Railroad Co., 27 La. Ann. 414; Pulley v. Municipality No. 2, 2 La. 278; Hanson v. Lafayette, 18 La. 295; McKeen v. Kurfurt, 10 La. Ann. 523.

43 T. R. 253.

in the case of navigable fresh waters. The public have, therefore, as against the riparian owners, and as incident to the right of navigation, no common-law right to use the lands adjoining a river above high-water mark for the purpose of landing and embarkation, or of mooring.2 Proof of necessity or danger would not apparently free the navigator from liability for appreciable damage thus caused to a riparian proprietor. Those who travel upon the banks of streams for the purpose of propelling their logs are liable in trespass to the owner of the banks, and he may require from navigators such price as he chooses for the use of the shore in loading and unloading vessels, if he gives notice of the charge before his property is so used.5

§ 100. It was early laid down that fishermen may go on. land adjoining the sea to fish, that being for the common

1 Ball v. Herbert, 3 T. R. 253; Williams . Wilcox, 8 Ad. & El. 314; Blundell . Catterall, 5 B. & Ald. 268; Gray r. Bond, 2 Brod. & Bing. 667; Brown v. Chadbourne, 31 Maine, 9, 25; Treat v. Lord, 42 Maine, 552, 564; Hooper v. Hobson, 57 Maine, 273, 276; Ledyard . Ten Eyck, 36 Barb. 102, 127; Lorman v. Benson, 8 Mich. 18, 27; Reimold v. Moore, 2 Brown (Mich.) 15; Ensminger v. People, 47 Ill. 384, and Chicago . Laflin, 49 Ill. 172, (overruling, apparently, the dicta in Middleton v. Pritchard, 3 Scam. 510, 521,522). Chambers v. Furry, 1 Yeates, 167; Bird v. Smith, 8 Watts, 434; Balle. Slack, 2 Whart. 530; Morgan v. Reading, 3 S. & M. 366; The Magnolia . Marshall, 39 Miss. 109, 131; Bell. Gough, 23 N. J. L. 624, 677; Bainbridge v. Sherlock, 29 Ind. 364; Sherlock v. Bainbridge, 41 Ind. 35; Talbot v. Grace, 30 Ind. 389; Bickel v. Polk, 5 Harr. (Del.) 325. See Greenwich Board of Works ». Maudslay, L. R. 5 Q. B. 397. In O'Fallon . Daggett, 4 Mo. 342, in which the effect of an early grant from the king of Spain was discussed, the

banks of navigable rivers were held to be public highways, upon the authority of writers upon the civil law. See, also, Memphis v. Overton, 3 Yerger, 387; Benson v. Morrow, 61 Mo. 345; Lewis v. Keeling, 1 Jones (N. C.) 299; Dalrymple v. Mead, 1 Grant's Cas. (Penn.) 197.

Ibid.; Ensminger v. People, 47 Ill. 384; Stewart v. Fitch, 2 Vroom, 17, 20.

3

Hale, De Portibus Maris, c. 3; Hargrave's Law Tracts, 51; Blundell v. Catterall, 2 B. & Ald. 268; Wyatt v. Thompson, 1 Esp. 252; Morrison v. Thurman, 17 B. Mon. 249, 257; 14 Ibid. 367; Morgan v. Reading, 3 S. & M. 366, 407; The Magnolia v. Marshall, 39 Miss. 109, 132; Bell v. Gough, 23 N. J. L. 624, 677; Weise . Smith, 3 Oreg. 445; Bainbridge v. Sherlock, 29 Ind. 364; Sherlock v. Bainbridge, 41 Ind. 35. See Gunning on Tolls, 126. Hooper v. Hobson, 57 Maine, 273. See Weiser. Smith, 3 Oreg. 445.

4

Steamer Magnolia . Marshall, 39 Miss. 109; Morgan v. Reading, 3 S. &. M. 366; Commissioners v. Withers, 29 Miss. 21.