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navigable stream may be useful as a highway when covered with ice. In Maine it is held that the public right of passage is not suspended or changed in winter by the fact that it cannot be used with boats, and that those who cut holes in the ice upon or near a winter road along the shore of a navigable river which has been used for twenty years, are liable to those who, without being themselves at fault, suffer injury or loss .thereby.1
§ 112. By the common-law rule, a river is prima facie navigable only as far as the tide ebbs and flows in it, and, in case of doubt, the burden of proof is upon those who allege navigability above that point.2 But the courts take notice of those characteristics of streams which are matters of general history or common knowledge,3 as that the tide «bbs and flows in such well-known rivers as the the Thames and Mersey.4 In Indiana judicial notice is taken of the course of the Ohio River,5 of the position of the falls of the Ohio,6 and of the navigability of streams.7 In Wisconsin the court has taken notice of the fact that the capacity of many of the smaller streams in that State to float logs and lumber to market has been increased by dams.8 And generally a stream is presumably navigable, when it is subject to the commercial power of Congress and that power has been exerted over it,9 or when the river remains jjublic property and does not pass to the riparian proprietors.10 So judicial notice has been taken of the fact that no part of a river lies within the corporate limits of a city.11 If the character
of the stream is not defined in any public statute, or in a private statute introduced in evidence, and it is not of such notoriety as to be generally understood, it cannot be known judicially that it is navigable.i If streams flowing through the territory which was under the land system of the United States are not meandered, the presumption is that they are not navigable.2
§ 113. The owner of a wharf is bound to exercise due diligence to keep it safe for the uses for which it was made. If he permits persons to come there and to have access to and from vessels over the wharf, he is liable for injuries which they, being in the exercise of due care, sustain by reason of his negligence.8 His duty is the same as that which is imposed upon the keeper of an inn or store to keep the access to his premises, and the passages, rooms, and floors therein, safe for those who enter under the express or implied invitation of the owner.4 The true rule is, perhaps, eveu more stringent, the wharf owner, upon whose vigilance often depends the personal safety of many, being, it has been said, bound to the utmost care.* He is not liable for latent defects, or
i People v. Allen, 42 N. Y. 378, 495; Smith v. London Dock Co., L.
381; New York Co. v. Brooklyn, 71 R. 3 C. P. 326; Sweeney v. Old Colony
N. Y. 580; Leighy v. Ashland Lum- Railroad Co., 10 Allen, 368; Elliott v.
bering Co., 40 Wis. 105; Geise v. Pray, Ibid. 378; Knight v. Portland
Green, Ibid. 334; Oelrich v. Gilman, Railway Co., 56 Maine. 234; Ackhert
31 Wis. 495; Siman v. Rhodes, 24 v. Lansing, 59 N. Y. 640; Swords v.
Minn. 25; Waller v. McConnell, 19 Edgar, Ibid. 28; Trim v. Vallejo St.
Wis. 417. Wharf Co., 7 Cal. 253; Fennimore v.
* Clute v. Briggs, 22 Wis. 607; New Orleans, 20 La. Ann. 124 ; Phila
Jones v. Pettibone, 22 Wis. 308; Hub- delphia Railroad Co. v. Irwin, 89
bard v. Bell, 54 1ll. 110. Penn. St. 71; Buckingham v. Fisher,
'Wendell v. Baxter, 12 Gray, 494; 70 1ll. 121; Grand Tower Co. v.
Carleton v. Franeonia Iron & Steel Hawkins, 72 1ll.386; Freer v. Came
Co., 90 Mass. 210; Nickerson c. Tir- ron, 4 Rich. (S. C.) 228; Maenner v.
rell, 127 Mass. 236; Macauley v. New Carroll, 40 Md. 193; Barrett v.
York, 67 N. Y. 602; Swords v. Edgar, Black, 56 Maine, 498; Pittsburg v.
59 N. Y. 28; Buckbee v. Brown, 21 Grier, 22 Penn. St. 54; Campbell v.
Wend. 110; Moody v. New York, 43 Portland Sugar Co., 02 Maine, 552;
Barb. 282 ; 34 How. Pr. 288; Railroad Wendell v. Baxter, 12 Gray, 494;
Co. v. Banning, 15 Wall. 649. Carleton v. Franeonia Iron Co., Oft
4 Chapman v. Rothwell, El. Bk. & Mass. 216. El. 168; Corby v. Hill, 4 C. B. K. s. 4 Ibid. 556; Collis v. Selden, L. R. 3 C. P.
for those which are caused by inevitable accident, such as the exceptional violence of the sea.i But in these cases he cannot escape liability if he does not make such examination and inspection as the construction, uses, and exposure of the wharf reasonably require;2 and if he has knowledge of a defect which is not apparent to all,3 it is his duty, even before there is opportunity to repair, to close the wharf or to give proper notice of the danger.4 So long as the wharf is kept open, it amounts to a representation that it is safe to enter, and that due diligence has been used both in its construction and repair.6 This obligation rests upon the owner, not only in favor of those who compensate him for its use* or of those who contract with him therefor, but of all persons who enter rightfully upon the premises for the purposes of lawful business.6 It is not limited to persons who come upon the wharf to transact the business for which it is adapted, but extends to all who come there for legitimate purposes, as a customs officer whose duty is to prevent smug
i Wendell v. Baxter, 12 Gray, 494; Garrison v. New York, 5 Bosw. (N. Y.) 497; Wallace e. New York, 2 Hilt. 440; 18 How. Pv. 169.
'Ibid. In Hill Manuf. Co. v. Providence Steamship Co., 125 Mass. 292, it was held that upon the issue whether piers in New York were properly constructed, evidence that piers are similarly constructed elsewhere was rightly excluded.
3 See Southeote v. Stanley, 1 H. & N. 247; Holmes v. North Eastern Railway Co., L. R. 4 Ex. 254; 0 Id. 123, It is contributory negligence to drive upon a pier, knowing that it is out of repaiv. Claney v. Byre, 58 Barb. 449; 56 N. Y. 129; Durkin v. Troy, 61 Barb. 437.
4 Gibbs v. Liverpool Docks, 3 H. & N. 164, 176; s. c. nom. Mersey Docks e. Gibbs, 11 H. L. Cas. 687; I.. R. 1 H. L. 93; Mersey Docks v. IVnhallow, 7 H. & N. 329; Indemaur v. Dames, L. R. 2 C. P. 311; 1 Ibid., 274; Smith v. London Docks Co., L. B. 3 C. P. 326; Thompson v. North
gling;i the agents of the post-office ;2 the vendors of goods to those upon a vessel lying the dock;3 hack-men who are awaiting passengers;4 and those who come to make inquiries.6 The occupant is primarily chargeable with the duty to repair, and is liable by reason of his occupaney, without proof of title.6 The lessor of a wharf who reserves rent is also liable for injuries caused by defects which existed when the tenant entered, although the latter may have covenanted to repair.7 But the lessor is not liable when the premises become defective after they have passed from his control,8 or in consequence of obstructions placed there by third persons, of which he has no notice, express or implied.9 Where premises may cause injury to the public from want of repair, the owner's responsibility to keep them in proper condition
86; Pretty v. Bickmore, L. R. 8 C. P. 401; Gwinnell v. Eamer, L. R. 10 C. P. 058; Rosewell v. Prior, 12 Mod. 635; 2 Salk. 459; Rex v. Pedly, 1 Ad. & El. 822; Todd v. Flight, 9 C. B. N. s. 377; White v. Phillips, 12 W. R. 85; 15 C. B. x. s. 245. If the lessee of a wharf covenants to make any repairs required by the proper municipal authorities for the safety or convenience of vessels lying at the wharf, the covenant is not broken by neglect to make repairs ordered by such authorities for the purpose of preventing injury to the rivev. Myers v. Myrrell, 57 Ga. 516. Proof of a right to unload a vessel at a wharf does not establish title to the wharf, but the easement of unloading is consistent with title in anothev. Kipp v. Den, 24 N. J. L. 854.
8 Ibid.; Claney v. Byre, 56 N. Y. 129; 58 Barb. 449; Albany v. Cunliff, 2 Comst. 165; Walsh v. Mead, 8 Hun, 387; Radway v. Briggs, 37 N. Y. 256; 35 How. Pv. 422; Cannavan v. Conklin, 1 Daly, 509; Owings v. Jones, 9 Md. 108.
9 Seaman v. New York, 3 Daly, 147; Griffin v. Mayor, 9 N. Y. 456; Barton v. Syracuse, 36 N. Y. 54; Tarry v. Aahton, 1 Q. B. D. 314.
is not lessened by the employment of a competent person to repair them, if they are not repaired, and injury is caused in consequence.
§ 114. These rules apply when the owner or occupant of a wharf, dock, or canal expressly or impliedly invites vessels to enter. In Carleton v. Franconia Iron & Steel Co.,1 it appeared that the defendants procured the plaintiffs to bring their vessel to the defendants' wharf for the purpose of discharging a cargo of iron, and that, while lying at the wharf, the vessel settled with the ebb of the tide and was injured by a rock, of the existence and position of which the defendants had long known, but of which the plaintiffs and their employees had no notice. It did not appear that the defendants owned the soil of the dock in which the rock was imbedded, but they had excavated the dock for the purpose of accommodating vessels bringing cargoes to the wharf. The court said:2 "It is immaterial in this case whether the danger had been created or increased by the excavation made by the defendants, or had always existed, if they, knowing of its existence, neglected to remove it or to warn those transacting business with them against it. Even if the wharf was not public, but private, and the defendants had no title in the dock, and the qpncealed and dangerous obstacle was not
v. Phoenix Chemical Works, 7 Ben.