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good, though they cannot justify digging there for the purpose of fixing stakes upon which to dry their nets but it is now settled that the public right of fishery affords no justification for any act committed upon the dry land, in the absence of a prescriptive right.2 A littoral proprietor has the exclusive right to draw a boat or seiue on his own land,3 to erect fishing huts there,4 or to fix stakes in his own flats below the high-water mark of tide waters for the purpose of spreading a seine.5 If the proprietor of land on which a seine reel is placed, without his license, cuts it down and thrusts it toward the water, after notice to remove it, and neglect to do so, he is not liable if the reel floats away, although he might have prevented it.6 The right to draw a seine upon the land of another person is an easement, and when acquired by prescription, its extent is commensurate with, and is determined by the previous user.7
§ 101. If the public acquire the right to use a river bank as a towing path by grant, user, or dedication, the title to the bank remains prima facie vested in the original owners, subject to the public right to use it as a highway in this particular manner.8 The banks of a navigable stream may be
37 Conn. 136; Locke v. Motley, 2
'Locke B. Motley, 2 Gray, 266;
8 Almy B. Grinnel, 12 Met. 53.
'Hart (-. Hill, 1 Whart. 138; Bald. Ct. Dig. 339, pi. 12, 13.
8 Winch p. Conservators of the River Thames, L. R. 7 C. P. 471 : L. appropriated by statute to the use of the public as a towing path.1 In such case, also, the riparian proprietors retain the ownership of the soil subject to the public easement, unless the language of the statute shows an intention to take the fee for the purpose of the act;2 the rule being that, in the absence of express words, the courts do not infer that a statute of this kind gives to the public, or to a board of conservators, or navigation companies, acting in the public interest, a greater interest in the soil than is necessary for the purposes of the navigation.3
§ 102. The oidy instance in which the common law recognizes the right of the public to enter upon the land of a riparian owner above high-water mark, in connection with the right of navigation, appears to be for the purpose of reclaiming stranded property which may have been washed ashore without fault on the part of its owner.4 In Maine
B. 9 C. P. 378; Rex v. Severn Navigation Co., 2 B. & A. 640; Hollis v. Goldfinch, 1 B. & C. 205; Lee Conservancy Board v. Button, 12 Ch. I). 383.
1 Winch !■. Conservators of the River Thames, L. R. 7 C. P. 471; Lee Conservancy Board !•. Button, 12 Ch. D. 383.
* Ibid.; Carpenter v. State, 12 Ohio St. 457; Indiana Central Canal Co. v. State, 63 Ind. 075. A canal and its towing paths, which are directed by statute to be kept in repair for the use of the public, are highways. Bosley v. Susquehanna Canal, 3 Bland, 68.
3 Badger v. South Yorkshire Railway Co., 1 El. & El. 340, 350, 368; Reg. v. Archbishop of York, 14 Q. B. 81; Hollis v. Goldfinch, 1 B. & C. 205; Bruce v. Willis, 11 A. & E. 463; Lee Conservancy Board ;•. Button, 12 Ch. D. 383; Monmouthshire Canal Co. v. Hill, 4 H. & N. 421; Kinlock v. Neville, 6 M. & W. 795; Newcastle v. Clarke, 2 B. Moore, 060; Buckeridgc v. Ingram, 2 Ves. Jr. 652; Stanley r. White, 14 East, 332; New Shoreham Harbor Commissioners v. Lansing,
L. R. 5 Q. B. 489; Rex r. Mersey Navigation, 9 B. & C. 95; Rex v. Thomas, Ibid. 114; Rex v. Aire Navigation, Ibid. 820; 3 B. & Ad. 139; Cory v. Bristow, 2 App. Cas. 202; Simpson Staffordshire Water Co., 4 Dc G. J. & S. 079; Somerset Canal
Harcourt, 2 De G. & J. 590; Chelsea Water Co. v. Bowley, 17 Q. B. 358; Patrick v. Beaufort, 6 Exch. 498; Robins v. Warwick, 2 Bing. (N. C.) 483 ; Harborough v. Shadlow, 7 M. & W. 37; Dimes v. Grand Junction Canal, 3 H. L. Cas. 794. A person who, being seized of land, conveys to a canal company "such portion and quantity of his land as may be covered, used, or occupied by the said canal, or the necessary works thereof," and describes the premises conveyed, does not surrender the privilege of using public highways passing through the granted premises. Leopold v. Chesapeake Canal Co., 1 Gill, 222; Carpenter v. State, 12 Ohio St. 457.
♦ Carter r. Thurston, 58 N. H. 104, 107; Hoit P. Stratton Mills, 54 N. H. 109, 116; Aldrich r. Wright, 53 N. H. the right to reclaim stranded logs is expressly recognized by a statute which requires payment or tender of compensation for damages.1 The common-law rule is that a person whose propertj' is carried, by flood or inevitable accident, upon another's land, and who elects to reclaim and not abandon it, becomes responsible, immediately upon its removal, for the damage done by the property upon such land; and the law implies, in such case, a promise of compensation, upon which, in the absence of an express promise, an action may be maintained.2 In case' a bridge is carried away and the materials do injury upon another's land, the owner would doubtless be liable if the bridge was negligently constructed.3
§ 103. A corporation which is authorized by statute to construct booms upon a river for the purpose of holding and storing logs, acquires thereby no right to appropriate and use the banks, except by the consent of the owners, or in the exercise of the power of eminent domain.4 This property cannot be taken for a purely private purpose; and the fact that booming companies and companies for the improvement of the navigation are quasi public corporations, and hold their franchises for a public use,5 does not give them
398; Brown r. Collins, Ibid. 442, 449; Thompson r. Androscoggin Co., 54 N. H. 645, 558; Eaton v. B. C. & M. Railroad Co., 51 N. IL 504, 530; Brown v. Chadbourne, 31 Maine 9, 24; Treat v. Lord, 42 Maine, 552; Colchester v. Brooke, 7 Q. B. 339; Rogers v. Judd, 5 Vt. 223; Forster v. Juniata Bridge Co., 10 Venn. St. 393. If the logs or timber of different owners, floated into a river, become so mixed that the property of each cannot be identified, they become tenants in common. Moore v. Krie Railway Co., 7 Liins. 30.
1 Rev. Stats, of Maine (1857), c. 42, § 8; Rev. Stats. (1871), c. 42, §§ 7, 8; Hooper v. Hobson, 57 Maine, 276; Brown v. Chadbourne, 31 Maine, 9; Treat p. Lord, 42 Maine, 552.
a Ibid.; Sheldon v. Sherman, 42 N. Y. 484.
3 Livezey v. Philadelphia, 04 Penn.
St. 100. The carrying away, by flood, of a bridge not part of the demised premises, whereby their value is diminished, is no ground for an abatement of the rent. Smith v. Ankrim, 13 S. & R. 391.
4 Cohn v. Wausau Boom Co., 47 Wis. 314; Carpenter v. State, 12 Ohio St. 457. If a public road, which has been legally established along the banks of a river by condemnation of the land of an individual proprietor, is washed away by a flood, there is no right of necessity to use the adjoining land for the highway without a new condemnation and compensation for the same. Commonwealth i>. Beeson, 3 Leigh, 281. They may, however, use such land temporarily for the pur. pose of passage. Ball r. Herbert, 3 T. R. 263, 263; ante, § 90.
6 Attorney General r. Railroad Co., the privileges of a riparian owner, or enable them, by legislative authority, to devote the river banks to the purposes of their charter, without compensation to the riparian owners.1 Compensation is also necessary where the banks are flooded by public improvements,2 or by dams erected for the collection and storage of logs, or by a collection of logs in great numbers;3where the value of the banks for boom purposes is injured by dams erected under legislative authority for supplying a city with water ;4 and where a landing and buildings used in connection with a fishery are destroyed by the construction of a railroad.6 The liberty of a ferry is limited by high-water mark upon either shore;6 and it has been held that such a franchise, conferred by the legislature, carries with it no right, without the riparian owner's consent, or the payment of compensation, to use the land adjoining the river above high-water mark as a landing, even though such land is already subject to an easement in favor of the public for the purpose of a highway." But if a highway extends to
St. 37!). A state may authorize a corporation to take the fee of private property for the purpose of constructing a boom. Patterson v. Mississippi Boom Co., 3 Billon, 465.
* Harper v. Milwaukee, 30 Wis. 305; Arimond i>. Green Bay Canal Co., 81 Wis. 310; 36 Wis. 41; Cobb v. Smith, 23 Wis. 261; 38 Wis. 21; Sheboygan v. Sheboygan Railroad Co., 21 Wis. 667.
3 Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336. If the dam of a navigation company chartered by the State raises the water at a ford so as to render it unfordable, the right to use the ford is merely suspended, and is restored upon the destruction of the dam. Crump v. Minis, 64 N. C. 767; Bislicr v. Richards, 9 Ohio, 496.
1 Barrett v. Bangor, 70 Maine, 335.
6 Alexandria Railway Co. r. Faunce, 81 Gratt. 701.
0 State v. Wilson, 42 Maine, 9; French v. Camp, 18 Maine, 433.
7 Prosser v. Wapello County, 18
35 Wis. 425; Wisconsin Railroad Co. v. Manson, 43 Wis. 255; Pelaphine v. Railroad Co., 42 Wis. 214; Stevens Point Boom Co. v. Reilly, 46 Wis. 237; 44 Wis. 296; Denniston v. Unknown Owners, 29 Wis. 351; Pound v. Turck, 95 U. S. 469; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Lawler v. Boom Co., 56 Maine, 443; Perry v. Wilson, 7 Mass. 393; Ten Eyck v. Delaware Canal Co., 18 N. J. Eq. 200, 204; Sinnickson v. Johnson, 2 Har. (N. J.) 120, 152; Brady's Appeal, 26 Md. 290; Texas Navigation Co. t>. Galveston Co., 45 Texas, 274.
1 Ibid.; Schoff r. Upper Connecticut River Co., 57 N. H. 110; Colin r. Wausau Boom Co., 47 Wis. 314; Stevens Point Boom Co. v. Reilly, 44 Wis. 295; 46 Wis. 237; Reimold ». Moore, 2 Brown (Mich.) 15; Margrave's Law Tracts, 79; Bath River Navigation Co. v. Willis, 2 Railway & Canal Cases, 7; Clay v. Pennoyer Creek Improvement Co., 34 Mich. 204; Hooker v. New Haven Co., 15 Conn. 321; Monongahela Navigation Co. v. Coons, 6 Penn.
navigable waters, the better doctrine would seem to be that the riparian owner has no exclusive right of landing.i
§ 104. The right of towage along the banks of navigable rivers resembles the right of passage upon a highway. It may be acquired by the public by custom. or prescription;2 and Lord Kenyon suggests that small evidence of usage would be sufficient before a jury to establish the right by custom, upon grounds of public convenience.3 Analogous to this is the right of way to navigable waters from lands lying inward. Tide waters are common property with respect to navigation and fishing, but the public have no general right of access to them over private lands.4 This privilege cannot be claimed as a right of necessity,6 but depends, as in the case of highways generally, upon statute, or upon grant, dedication, or prescription.6 It is competent for the legislature to take private property for public use as a wharf, landing place, or ferry landing;7 and to authorize a town to