But with convert a promenade into wharfs and landings. out authority from the legislature, a town cannot convert a private wharf or landing into a town way.2 § 105. In Pearsall v. Post,3 in New York, in which it appeared that land adjoining a harbor had been used for many years as a place for the landing and deposit of large quantities of manure brought from the city of New York, it was held: first, That the right to encumber lands adjoining navigable waters with manure or merchandise, being more than a simple right of passage, could not be acquired by the public by custom or prescription; second, That the doctrine of parol dedication of highways, streets, and public squares does not extend to public landings. In Talbot v. Grace, in Indiana, there was evidence that the place in question had been long used both for the purpose of a landing, and for the loading and unloading of vessels, and one ground of the decision was, following Pearsall v. Post,5 that the public right could not rest upon the ground of prescriptive user. In Massachusetts, the public may, by immemorial usage, acquire the right to use the banks of a river for the purpose of landing. The same doctrine was early River Ferry Co., 69 N. C. 165. The right of jury trial, to determine the value of the land so taken, must be secured to the land-owner. Day v. Stetson, 8 Maine, 365. But a horse ferry is not of such public interest as to justify taking private property for its establishment. Day v. Stetson, 8 Maine, 365. 1 Memphis v. Wright, 6 Yerger, 497. 2 Kean v. Stetson, 5 Pick. 492, 495. 320 Wend. 111; 22 Wend. 425; Pearsall v. Hewlett, 20 Wend. 111; 22 Wend. 559. See also Cortely ou v. Van Brundt, 2 Johns. 357; Hunter v. Sandy Hill, 6 Hill, 407, 411; Cady v. Conger, 19 N. Y. 256; Bloomfield Gas Light Co. v. Calkins, 62 N. Y. 386; Munson v. Hungerford, 6 Barb. 265; Adams v. Rivers, 11 Barb. 390; Wig- 5 20 Wend. 111; 22 Wend. 425. Kean v. Stetson, 5 Pick. 492; Coolidge v. Learned, 8 Pick. 504; Green v. Chelsea, 24 Pick. 80; Boston v. Richardson, 105 Mass. 351, 357. In North Carolina the use of a landing by the public for twenty years as of right affords ground for a presumption of dedication to the public use. Askew. Wynne, 7 Jones, 22. See, also, Hardy v. Memphis, 10 Heisk. 127; Barney v. Baltimore, 1 Hughes, 118. recognized in Maine. But in the latter State a general right to use the river banks as a place of deposit cannot now be acquired by custom; 2 and a landing, even for the purpose of direct transit, is held to be more than a highway.3 In Minnesota and Wisconsin 5 the doctrine that land cannot be dedicated by parol as a landing has been disapproved; and in Iowa and Kentucky it has been held that land dedicated to the public use as a street or common may be used for the purposes of a wharf. In Godfrey v. Alton, the Supreme Court of Illinois held that a parol dedication of land is not within the Statute of Frauds, and that, if the owner of the land makes a survey and lays it off by plat for public use as a landing, and makes sales in reference thereto, such acts amount to a dedication, although there are no declarations, either oral or on the plat, showing that a dedication was in 3 Ibid.; State v. Wilson, 42 Maine, 9. See Hasty v. Johnson, 3 Maine, 282; Thompson v. Androscoggin Bridge, 5 Maine, 62; Kaler v. Beaman, 49 Maine, 207. The grant of a saw-mill, "with a convenient privilege to pile logs, boards, and other lumber," conveys only an easement in the land used for piling. Thompson v. Proprietors, 5 Maine, 62. 4 Mankato v. Willard, 13 Minn. 13; Brisbine v. St. Paul Railroad Co., 23 Minn. 114. 5 Gardiner v. Tisdale, 2 Wis. 153; Connehan v. Ford, 9 Wis. 240. See, also, Bird v. Smith, 8 Watts, 434; Chambers v. Furry, 1 Yeates, 167. Haight v. Keokuk, 4 Iowa, 199, 214; Grant v. Davenport, 18 Iowa, 179; Cowles v. Gray, 14 Iowa, 1. See Bingham v. Doane, 9 Ohio, 165; State v. Graham, 15 Rich. (S. C.) 310; Sloane v. McConahy, 4 Ohio, 157, and note; Price v. Methodist Episco pal Church, Id. 516; Cincinnati v. 1st Presbyterian Church, 8 Ohio, 298; Cincinnati v. Hamilton Co., 7 Ohio, 88; Commonwealth v. Philadelphia, 16 Penn. St. 79; State v. Randall, 1 Strob. (S. C.) 110. As to the meaning of the words "reserved landing" upon a recorded plat, see above cases of Grant v. Davenport and Cowles v. Gray. See, also, Emmons v. Milwaukee, 32 Wis. 434; Dietrich v. Northwestern Union Railway Co., 42 Wis. 248; Cook v. Burlington, 30 Iowa, 94; 36 Ibid. 357; Mankato v. Meagher, 17 Minn. 265; Arnold v. Elmore, 16 Wis. 509; Yates v. Judd, 18 Wis. 118. 7 Newport v. Taylor, 16 B. Mon. 699, 804; Rowan v. Portland, 8 B. Mon. 236; Louisville v. Bank of the United States, 3 B. Mon. 138. 9 Godfrey v. Alton, 12 Ill. 30; Alton . Illinois Transportation Co., Ibid. 38; Field v. Carr, 59 Ill. 198, 200; First Evangelical Church v. Walsh, 57 Ill. 363, 369; Smith v. Flora, 64 Ill. 93; McIntire v. Storey, 80 Ill. 127, 130; Warren v. Jacksonville, 15 Ill. 236; Waugh v. Leech, 28 Ill. 488, 491; Rees v. Chicago, 38 Ill. 322. See Newport v. Taylor, 16 B. Mon. 699, 803; Rowan v. Portland, 8 B. Mon. 232. tended. The result of the authorities seems to be that a dedication of land adjoining a river for the purpose of public passage to and from the water, with perhaps the incidental right of temporary deposit, or a claim of prescriptive user, for the purpose of landing and embarkation, is valid; but that the right to encumber the land with lumber, merchandise, and the like, to a greater extent or for a longer time than would be permissible in a highway, is neither within the purpose of the dedication nor valid as a custom.3 § 106. When a way in a city extends to navigable waters, and is dedicated to the public use as a street, it carries with it, by necessary implication, the right of the city to extend it into the water by the construction of a wharf at the end thereof. Evidence that land has been used as a landing place by the inhabitants of the town in which it is situated, and, also, by those of other towns, is sufficient to establish a right in all the inhabitants of the State. But evidence of user by the individual inhabitants of a town does not tend to show a possession by the town in its corporate capacity. 1 See Gardiner v. Tisdale, 2 Wis. 153, 191; Knowles v. Dow, 22 N. H. 387. 2 See People v. Cunningham, 1 Denio, 524; Gerrish v. Brown, 51 Maine, 256, 263; Graves v. Shattuck, 35 N. H. 257. 3 See authorities above cited. Also, Penny Pot Landing, 16 Penn. St. 79; Carrollton Railroad Co. v. Winthrop, 5 La. Ann. 36. As to the reservation and dedication of landings by the government, or by cities, see Cincinnati v. White, 6 Peters, 431; Barclay . Howell, Ibid. 498; Irwin v. Dixion, 9 How. 10; New Orleans v. United States, 10 Peters, 662; Cook v. Burlington, 30 Iowa, 94; 36 Ib. 357; Walker v. Columbus, 4 B. Mon. 259, 260; Alves v. Henderson, 16 B. Mon. 131; Burr v. Dana, 22 Cal. 11; Blanc v. Bowman, 22 Cal. 23; San Francisco v. Calderwood, 31 Cal. 385; Schermerhorn v. New York, 3 Edw. Ch. 119. When a Dedication may be presumed even against the sovereign. Day v. Allender, 22 Md. 511. In conveyances between individuals, a deed of a mill, dam, and falls, "and a right to the road and landing, to land logs, as has been customary," conveys only an easement in the road and landing. Hasty v. Johnson, 3 Maine, 282. And the grant of a saw-mill "with a convenient privilege to pile logs, boards, and other lumber," conveys only an easement in the land used for piling. Thompson v. Androscoggin Bridge, 5 Maine, 62. McMurray v. Baltimore, 54 Md. 103; Barney v. Keokuk, 94 U. S. 324: Haight v. Keokuk, 4 Iowa, 199; Bowman v. Portland, 8 B. Mon. 253; Newport v. Taylor, 16 B. Mon. 700; Barney v. Baltimore, 1 Hughes, 118. 5 Coolidge v. Learned, 8 Pick. 504 6 Green v. Chelsea, 24 Pick. 71; Hill v. Lord, 48 Maine, 83, 97. public landing place is once established, it may be discontinued by the legislature, but not by a town, or by county commissioners. Commissioners of highways, having authority to regulate public landings and watering-places, have no power to lay out a new landing place.3 § 107. A stream is a public highway wherever it is suitable in its natural condition for general use in travel or in the transportation of property. Lord Hale says that the right of navigation extends to rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges, boats, or lighters.1 He does not refer to it as extending to streams which are navigable during a part of the year, or to those which, being unnavigable for boats at ordinary water, are useful, either at all seasons or in times of freshets, for floating rafts and logs to market. In this country, where this question is more important than in England, notwithstanding the conflict respecting the title to large fresh-water rivers, the authorities agree that streams which in their natural condition are only useful for rafting purposes during the whole or a part of each year, are highways for that purpose, and that the title of the riparian owners 5 to the beds of such streams is subject to this right of passage. § 108. Streams which are not floatable, or cannot, in their natural state, be used for the carriage of boats, rafts, or other property, are absolutely private, and if the stream is so small and shallow that logs cannot be driven in them without trav 1 Commonwealth v. Tucker, 2 Pick. 44; Kean v. Stetson, 5 Pick. 492, 495. 2 Bennett v. Clemence, 6 Allen, 10. 3 Commissioners v. Queen's County, 17 Wend. 9. v Chadbourne, 31 Maine, 9; Treat v. Lord, 42 Maine, 552; Knox v. Chaloner, Ibid. 150; Brown v. Black, 43 Maine, 443; Dwinel v. Veazie, 44 Maine, 167; Veazie v. Dwinel, 50 Hale, De Jure Maris, c. 2, 3; Har- Maine, 479; Gerrish v. Brown, 51 grave's Law Tracts, 8, 9. 5 Post, § 110. 6 Berry v. Carle, 3 Maine, 269; Spring v. Russell, 7 Maine, 273; Wadsworth. Smith, 11 Maine, 278; Dwi nel v. Barnard, 28 Maine, 554; Brown Maine, 256; Davis v. Winslow, Ibid. 264; Lancey v. Clifford, 54 Maine, 487; Holden v. Robinson Co., 65 Maine, 215; Lawler v. Baring Boom Co., 56 Maine, 443; Hooper v. Hobson, 57 Maine, 273. elling upon the banks, it is not open to the public for passage.' It is not necessary that the stream, in order to be a highway, should be capable of floating logs at all seasons of the year, but its public character depends upon its fitness to answer the wants of those whose business requires its use. The fact that the banks are commonly used for the purpose of towing or propelling what is floating, is evidence merely of want of capacity for public use.3 The test is the natural capacity of the stream, and the fact that those who drive logs trespass on the adjoining lands, or at times find it necessary or convenient to do so, does not deprive the stream of the public character which it may otherwise possess. Sub 'Brown v. Chadbourne, 31 Maine, 9; Treat v. Lord, 42 Maine, 552; Hooper v. Hobson, 57 Maine, 273; Morrison v. Bucksport Railroad Co., 67 Maine, 353; Olson v. Merrill, 42 Wis. 203; Morgan v. King, 35 N. Y. 454; 18 Barb. 277; 30 Barb. 9; Munson v. Hungerford, 6 Barb. 265; Curtis v. Keesler, 14 Barb. 511; Shaw v. Crawford, 10 Johns. 236; Varick v. Smith, 9 Paige, 547; Browne v. Schofield, 8 Barb. 239; Palmer v. Mulligan, 3 Caines, 307; Ex parte Jennings, 6 Cowen, 518; Pierrepont v. Loveless, 72 N. Y. 211, 216; Slater v. Fox, 5 Hun, 544; Moore v. Sanborne, 2 Mich. 519; Lorman v. Benson, 8 Mich. 18; Ryan v. Brown, 18 Mich. 196; Middleton v. Flat River Booming Co., 27 Mich. 533; Brig City of Erie v. Canfield, 27 Mich. 479; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 345; Attorney General v. Evart Booming Co., 34 Mich. 462; Wood v. Rice, 24 Mich. 423; Scott v. Willson, 3 N. H. 321; Barron r. Davis, 4 N. H. 338; State r. Gilmanton, 14 N. H. 467, 479; Thompson. Androscoggin Co., 54 N. H. 545; 58 N. H. 108; Carter v. Thurston, 58 N. H. 104, 107; Whistler r. Wilkinson, 22 Wis. 572; Wisconsin River Co. r. Lyons, 30 Wis. 61, 66; Sellers v. Union Lumbering Co., 39 Wis. 525; Olson v. Merrill, 42 Wis. 203; Cohn v. Wausau Boom Co., 47 Wis. 314, 324; Stevens Point Boom Co. v. Reilly, 44 Wis. 295; 46 Wis. 237; Barclay Railroad Co. v. Ingham, 36 Penn. 194; Hickok v. Hine, 23 Ohio St. 523; Weise v. Smith, 3 Oregon, 445; Felger v. Robinson, 3 Oregon, 455. See, also, Commonwealth v. Chapin, 5 Pick. 199, 202; Blood v. Nashua Railroad Co., 2 Gray, 137; Rowe v. Granite Bridge Co., 21 Pick. 344; Attorney General v. Woods, 108 Mass. 436; Neaderhouser v. State, 28 Ind. 257; Esson v. McMaster, 1 Kerr (N. B.) 501; Rowe v. Titus, 1 Allen (N. B.) 326; Boissonnault v. Oliva, Stuart (Low. Can.) 564; Hayward v. Knapp, 23 Minn. 430; Lamprey v. Nelson, 24 Minn. 304; Commonwealth v. Charlestown, 1 Pick. 180; Commonwealth v. Chapin, 5 Pick. 199; Knight v. Wilder, 2 Cush. 199, 209; Charlestown v. Middlesex Commissioners, 3 Met. 202; Attorney General v. Woods, 108 Mass. 436. 2 Ibid. 3 Ibid. 4 Ibid.; Holden v. Robinson Co., 65 Maine, 215. In Maine it is provided by statute that the banks of a stream may be used for driving logs. R. S. (1857) c. 42, §§ 7, 8; R. S. (1871) c. 42, §§ 7, 8. See Brown v. Chadbourne, 31 Maine, 9; Treat v. Lord, 42 Maine, |