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ject to these rules the question whether a stream is a highway is a question of fact for the jury.i A riparian proprietor who, by means of a dam, and by accumulating his own logs above the dam, intentionally prevents the passage of another's logs down the stream, is liable in damages for the delay and injury so caused. The person thus injured may lawfully boom the proprietor's logs, and repair and open his sluices, if such means of effecting a passage is the least injurious to the proprietor; and in his action he may recover, with his damages, the expenses which he incurs in thus securing a passage.3 Mill-owners whose dams interfere with the reasonable use of floatable streams by the public are liable to a private action by any citizen so injured.3
§ 109. If the stream is not always navigable it must be capable of floatage, as the result of natural causes, at periods ordinarily recurring from year to year, and continuing for a sufficient length of time in each year to make it useful as a highway. The mere possibility of occasional use during brief or extraordinary freshets does not give it a public character.4 A similar principle applies in the case of small tidal creeks, in which, although prima facie they are public and navigable, private property may be maintained.6 It is
552; Hooper v. Hobson, 57 Maine, 273.
i Treat v. Lord, 42 Maine, 552; Bryant v. Glidden, 30 Maine, 36.
* Brown v. Chadbourne, 31 Maine, 9; Dwinel v. Veazie, 44 Maine, 107; 50 Maine, 479; Gerrish v. Brown, 51 Maine, 250 ; Parks v. Morse, 52 Maine, 260; Veazie v. Dwinel, 50 Maine,479. Upon the question what is a reasonable use of the stream, sec Ibid.; Davis v. Winslow, 51 Maine, 204; Weise V. Smith, 3 Oregon, 445; Sewall's Fall Bridge v. Fisk, 23 N. H. 171; Carter v. Berlin Mills Co., 58 N. H. 52; Brown v. Kentfield, 50 Cal. 129; Enos v. Hamilton, 27 Wis. 256; 24 Wis. 658.
3 Parks v. Morse, 52 Maine, 260. As to what constitutes reasonable use,
see Davis v. Winslow, 51 Maine, 264; Lancey v. Clifford, 54 Maine, 487; Veazie v. Dwinel, 50 Maine, 479; Gerrish v. Brown, 51 Maine, 256, 263.
4 Munson v. Hungerford, 6 Barb. 205; Morgan v. King, 35 N. Y. 45; 18 Barb. 277; 30 Barb. 9; Curtis v. Keesler, 14 Barb. 511; Olson v. Merrill, 42 Wis. 203; Thunder Bay River Booming Co. v. Speecliiy, 31 Mich. 330; Middleton v. Flat River Booming Co., 27 Mich. 533; Hubbard v. Bell, 54 1ll. 110; Cates v. Wadlington, 1 McCord (S. C.) 580; Brown v. Chadbourne, 31 Maine, 9; Treat v. Lord, 42 Maine, 552.
5 Commonwealth v. Charlestown, 1 Pick. 180, 180, and authorities in next note.
not every small creek in which a fishing skiff or gunning canoe can be made to lioat at high tide which is deemed subject to public use; but in order to have a public character, it must be navigable for some purpose useful to business or pleasure.1 The only decisions tending to limit the above right of floatage appear to be: first, that of Hubbard v. Bell,9 in Illinois, in which it is said that no such necessity exists in that State, as in Maine or Michigan, for requiring private rights to yield to the floating of logs; but the stream to which this case related seems to have been capable of bearing rafts and logs only in seasons of freshets, and then for a few days or weeks only.8 Second, an early case in California in which it was held that a stream is navigable which has capacity to float rafts of lumber, but that the rule does not extend to streams which can only float logs or planks.4 Third, decisions in Alabama in which the duration of previous enjoyment by the public, as well as the extent to which the stream is floatable, are considered material in determining whether it is a public highway, and the question whether it is a highway is held to be a question of law for the court, after the facts are determined by a jury.5 In Stump v. McNairy,6 it was held that a private unnavigable brook which flows into a public navigable river, and is floatable in times of high water, becomes a public thoroughfare by being publicly used without objection for twenty years as an inlet for rafts.
§ 110. The rights of the public are not superior to private rights, in streams which are merely floatable, to the same ex
1 Ibid.; Commonwealth v. Breed, 3 Ibid. p. 114. See Thunder Bay
4 Pick. 460; Rowe v. Granite Bridge Booming Co. v. Speechly, 31 Mich.
Co., 21 Tick. 344, 347 ; Charlestown v. 336, 343.
County Commissioners, 3 Met. 202; 4 American River Water Co. v.
Murdock v. Rtickney, 8 Cush. 113,115; Amsden, 6 Cal. 443.
West Roxbury v. Stoddard, 7 Allen, 5 Ellis v. Carey, 30 Ala. 725;
158, 171; Attorney General v. Woods, Rhodes v. Otis, 33 Ala. 678; Peters v.
108 Mass. 430; The Montello, 20 New Orleans Railroad Co., 50 Ala.
Wall. 442,443; Getty v. Hudson River 528; Alabama v. Bell, 6 Porter, 379.
Railroad Co., 21 Barb. 017. • 5 Humph. 363. 'Hubbard v. Bell, 64 111. 110.
tent as in rivers which are capable of more extended navigation. In the latter the public right extends equally to all navigable portions of the river. But the right of floatage is not paramount to the use of the water for machinery , and the rights of the public and those of the riparian owners are both to be enjoyed with a proper regard to the existence and preservation of the other. If dams are so constructed as to limit the public passage to a small portion of the stream, and sufficient provision is made for the passage of logs, the public cannot complain, while those who exercise the right of floatage are liable to the riparian owners for such exercise of the common right as causes them an injury.i In streams which are only floatable, the riparian owner is only bound not to obstruct its reasonable use for that purpose.2 If he obstructs the stream by making a new channel into which its waters are turned, the public are authorized to use it for floating logs and rafts as they had been accustomed to use the old channel ;3 and if the new channel becomes obstructed, they may effect a suitable passage over the former channel, causing no unnecessary damage thereby.4 If a break in a dam is per^ mitted to remain without repair, and the water in the millpond is thereby so reduced as to make it difficult or impossible to pass logs through a chute in the dam, the owner of logs floating down the stream to market may pass them through a new channel created by the break, doing no unnecessary damage.6 In Maine a stream which is only
i Erie v. Canfield, 27 Mich. 479; v. Clifford, 54 Maine, 487; Brown v.
Middleton c. Flat River Rooming Co., Chadbourne, 31 Maine, 9; Knox v.
27 Mich. 533; Grand Rapids Rooming Chaloner, 42 Maine, 150, 157; Veazie
Co. v. Jarvis, 30 Mich. 308; Thunder v. Dwinel, 50 Maine, 479, 487; Davis v.
Bay River Booming Co. v. Speecliiy, Winslow, 51 Maine, 289; Parks v.
31 Mich. 336; Attorney General v. Morse, 52 Maine, 200; Wood v.
Evart Booming Co., 34 Mich. 402; Ilustis, 17 Wis. 416; Cobb v. Smith,
Newbold v. Mead, 57 Penn. St. 487; 10 Wis. 061. In Harrington v. Ed
EnoS v. Hamilton, 27 Wis. 256; wards, 17 Wis. 580, held that rafts
Rassett v. Carleton, 32 Maine, 553. men cannot establish a custom among
See Barties t>. Heath, 58 N. H. 190; themselves which impairs the rights
State v. Gilmnnton, 14 N. H. 467, 479; of the riparian proprietors.
Sewall's Fall Bridge v. Fisk, 23 N. H. 8 Morgan v. King, 18 Barb. 277.
171; George v. Fisk, 32 N. H. 32, 43; 3 Dwinel v. Barnard, 28 Maine, 554.
Thompson v. Androscoggin River Co., 4 Dwinel v. Veazie, -14 Maine, 10?.
54 N. H. 545; 58 N. H. 108; I-ancey 5 Whistler v. Wilkinson, 22 Wis. 572. capable of floating rafts or logs, is "not navigable" within the meaning of the mill act of 1841, which authorizes the erection and maintenance of water mills and dams upon and across any unnavigahle stream.i In Pennsylvania, where the principal fresh-water rivers are held to be public property like tide waters, fresh streams which are merely floatable and nave been included in the warrants and surveys of the land office as part of the public lands, belong to the riparian owners usque ad filum aquae, subject to the public right of passage.2 A similar rule prevails in Tennessee.3
§ 111. When a river is capable of navigation in different parte of its course, but, by reason of rocks, sand-bars and other obstructions, does not admit of continuous navigation,4 the public may pass and repass in those parts of the river which are navigable.6 If the natural navigation of the river affords a channel for useful commerce, it continues to be navigable and open to the publie, although the natural barriers which render its navigation difficult are afterwards removed by artificial means, such as locks, canals, aud dams.6
i Veazie v. Dwinel, 50 Maine, 479, Bridge Co., 0 McLean, 237; Brown v.
483; Stetson v. Bangor, 00 Maine, Chadbourne, 31 Maine, 9, 23,25; Treat
313. See, also, State v. Cullum, 2 v. Lord, 42 Maine, 552; People v.
Speers (S. C.) 581; State v. Hickson, Canal Appraisers, 33 N. Y. 461; Mon
i, Rich. (S. C.) 447; Witt v. Jefcoat, gan v. King, 35 N. Y. 459; Flanagan
10 Id. 389; Wood v. Hustis, 17 Wis. v. Philadelphia, 42 Penn. St. 219;
416; Waller c. McConncll, 19 Wis. Monongahela Bridge Co. v. Kirk, 46
417; Crosby v. Smith, Id. 449; Cobb Penn. St. 112; Cox v. State, 3 Blackf.
v. Smith, 16 Wis. 661. In proceedings 193; Hogg v. Zanesville Canal Co.,
under a statute to obtain the right to 5 Ohio, 410; Hickok v. Hine, 23 Ohio
dam an unnavigable stream, it is pre- St. 527; Rowe v. Granite Bridge Co.,
sufied, on appeal, in the absence of 23 Pick. 340; Attorney General v.
evidence to the contrary, that it ap- Woods, 108 Mass. 436; 11linois River
peared to the court below that the Packet Co. v. Peoria Bridge Co., 38
stream was not navigable. Siman v. 1ll. 467; Harrington v. Edwards, 17
Rhodes, 24 Minn. 25. Wis. 586.
'Coovert v. O'Conner, 8 Watts, 1 Ibid.; Brown v. Chadbourne, 31
l77; Barclay Railroad Co. v. Ingham, Maine, 9, 23, 25. An accidental or
36 Penn. St. 194. intentional obstruction, which was not
3 Stuart v. Clark, 2 Swan, 9; Sigler in the stream in its natural condition,
v. State, 7 Baxter, 493. does not take away its character as a
4 The Montello, 20 Wall. 430; 11 highway. Treat e. Lord, 42 Maine,
Wall. 411; The Daniel Ball, 10 Wall. 552; Brown v. Black, 43 Maine, 443. 557; Spooner v. McConnell, 1 Mc- 6 Ibid.; The Montello, 20 Wall.
Lean, 337, 350; Jolly v. Terre Haute 430.
If the navigation of a river which was originally navigable in fact, to a greater or less extent, he improved by the act of the riparian owners in deepening the channel, the public have the right to use it for all purposes to which it is suited in its improved condition.i But if, being originally unnavigable, it is made navigable by the riparian proprietors, the public right does not attach.2 The legislature cannot, by means of dams or otherwise, make an unnavigable stream public and navigable, or deprive the riparian owners of their right to use the water, without affording them compensation ;3 nor, if the legislature declares a stream to be navigable, does it divest the property previously acquired in its bed under a patent from the State.4 But such owners may dedicate to the public use highways by water as well as by land, and if, when dedicated, they are not passable, the public may make them so.B The mere user by the public of a private stream for floating logs at irregular intervals, neither interrupted nor acquiesced in, is not evidence of a dedication to the public.6 A
i The Montello, 20 Wall. 430; Holden v. Robinson Co., fl.r, Maine, 215; Toothaker c. Winslow, 61 Maine, 123; Wadsworth v. Smith, 11 Maine, 278; Volk v. Eldred, 23 Wis. 410; Cates v. Wadlington, 1 McCord (S. C.) 580.
• Hale, De Jure Maris, c. 3; Wadsworth v. Smith, 11 Maine, 278; Cro. Cav. 132; Cowper, 47; Holden v. Robinson Co., 05 Maine, 215.
3 Ibid.; Walker v. Board of Public Works, 10 Ohio, 540; Clay v. Pennoyer Creck Improvement Co., 34 Mich. 204; Thunder Ray River Booming Co. v. Speecliiy, 31 Mich. 336; Moor v. Venzie, 32 Maine, 343; 31 Maine, 360; State v. Cullum, 2 Speers (S. C.) 581; Binney's Case, 2 Bland, 158; State v. Pool, 74 N. C. 402, 407; Barclay Railroad Co. v. Ingham, 36 Penn. St. 194; Morgan v. King, 35 N. Y. 454; 18 Barb. 277; 30 Barb. 9; Cates v. Wadlington, 1 McCord (S. C.) 585; Wilson v. Smith, 10 Wend. 324; Partridge V. Eaton, 3 Hun, 533; 5 S. C.
625; White Deer Creck Co. v. Sassamen, 07 Penn. St. 415; State v. Glen, 7 Jones, 321. Legislative enactments relating to navigable streams extend to those afterwards declared by the legislature to be highways. Walker v. Board of Public Works, 16 Ohio, 540; Brown v. Commonwealth, 3 Serg. & R. 273; State v. Cullum, 2 Speers (S. C.) 581; People v. Gutchess, 48 Barb. 056. A statute which declares a stream to be a public highway for the passage of boats and rafts embraces logs not fastened togethev. Ofddrick v. Wood, 15 Penn. St. 9.
4 Coovert v. O'Connor, 8 Watts, 447; Monongahela Navigation Co. v. Coons, 0 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Barclay Railroad Co. v. Ingham, 36 Penn. St. 194; People v. Gutchess, 48 Barb. 656.
» Yates v. Judd, 18 Wis. 118, 128; Arnold v. Elmore, 10 Wis. 509; Mariner v. Schulte, 13 Wis. 092.
6 Curtis v. Keesler, 14 Barb. 511.