the immemorial payment of tolls for merchandise and anchorage, these facts being held sufficient to warrant the inference that a port had once existed, although the place in question was not artificially formed, but was a natural roadstead, imposing no obligation on the owner to repair it and keep it accessible, so as to form a consideration for the toll demanded.

§ 142. In general, and especially in this country, where grants from the Crown and prescriptive rights of this character are comparatively unknown, a toll, being in the nature of a common charge upon the public, can be exacted for passing upon the sea or upon rivers only under the sanction of acts of the legislature.1 Such acts will be effectual to enforce a toll anywhere within their operation.2 The franchise of taking tolls upon public bridges and ferries is a part of the sovereign power reserved to the States and not delegated to the general government.3 But under the constitution and laws of the United States, the States or municipal corporations cannot impose taxes on vessels mooring at wharves or the banks of navigable rivers, except as a compensation for the advantage gained and the expense of maintaining them.1

1 Kingston Docks v. La Marche, 8 B. & C. 42; Wadsworth v. Smith, 11 Maine, 278; Olcott v. Banfill, 4 N. H. 537; State v. Olcott, 6 N. H. 74; McKee v. Grand Rapids Railway Co., 41 Mich. 274, 279; Pennsylvania Railroad Co. v. National Railway Co., 8 C. E. Green, 441; Camden Railroad Co. v. Briggs, 2 Zab. 623; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Blake . Winona Railroad Co., 19 Minn. 418; Boykin v. Shaffer, 13 La. Ann. 129; Turnpike Co. v. Illinois, 96 U. S. 63; Bonaparte v. Camden Railroad Co., Bald. C. C. 205; State v. Real Estate Bank, 5 Ark. 595; McPheeters v. Merimac Bridge Co., 28 Mo. 465; Turnpike Road Co. v. Campbell, 44 Cal. 89; State v. Lake, 8 Nev. 272. See Reg. v. Salisbury, 8 Ad. & El.

2 Woolrych on Waters, 299. A bridge company chartered by a single State cannot collect toll from a person who passes over a part of the bridge which is beyond the limits of the State, unless there is an express promise to pay. Middle Bridge Co. v. Marks, 26 Maine, 326; South Carolina Railroad Co. v. Jones, 4 Rich. Eq. (S. C.) 459; Claremont Bridge Co. v. Royce, 42 Vt. 730.

3 Hudson v. State, 3 Zab. 206; 4 Zab. 718.

4 Cannon v. New Orleans, 20 Wall. 579; Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. Tobin, Id. 430; Guy v. Baltimore, Id. 434; St. Martinsville v. The Mary Lewis, 32 La. Ann. 1293; New Orleans v. Wilmot, 31 La. Ann. 65.

A riparian proprietor may open or improve an unnavigable stream, or excavate a canal, upon his own land and for his own accommodation, and refuse to permit others to use it without making compensation.! But the owner of either or both banks of a stream, although he may exclude the public therefrom and prohibit vessels and boats from landing thereon, could not maintain a public ferry,2 a lock in aid of navigation, or a wharf, and collect a settled toll from all who use it, without prescription time out of mind, a charter from the king, or, in this country, the consent of the legislature. To establish a toll, the channel or passage must be open, for a fixed compensation, to the use of all who may have occasion to use it, and must have become such a common way, by the owner's consent, that he cannot maintain an action of trespass against those who use it and are willing to pay the prescribed toll.5 This general right, in favor of those paying toll, is, however, subject to reasonable limitations. If, for example, a company, authorized to construct a canal, is bound to keep it in good order, it doubtless has necessarily discretionary powers essential to regulate the canal and its naviga

1 Hale, De Jure Maris, c. 3; Hargrave's Law Tracts, 9, 10; Wadsworth v. Smith, 11 Maine, 278; Dwinel v. Barnard, 28 Maine, 554; Harvey v. Potter, 19 La. Ann. 264.

2 Post, § 144; Mills v. St. Clair Co., 8 How. 581; Conway v. Taylor, 1 Black, 603; Pennsylvania Railroad Co. v. National Railway Co., 23 N. J. L. 441; Prosser v. Wapello Co., 18 Iowa, 327; Trustees v. Tatman, 13 Ill. 27; Nashville Bridge Co. v. Shelby, 10 Yerger, 280; McRoberts v. Washburne, 10 Minn. 23; Norris v. Farmers' Co., 6 Cal. 590; Henshaw r. Supervisors, 19 Cal. 150; Enfield Toll Bridge Co. v. Hartford Railroad Co., 17 Conn. 40, 64; Hartford Bridge Co. v. East Hartford, 16 Conn. 170; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 229; Fitch . New Haven Co., 30 Conn. 39; Stark v. Miller, 3 Mo. 470; Young. Harrison, 6 Ga. 130; Greer v. Hangabook, 47 Ga. 282;

Murray v. Menifee, 20 Ark. 561; Cloyes v. Keatts, 18 Ark. 19; Bell v. Clegg, 25 Ark. 26; Haynes v. Wells, 26 Ark. 464; Prosser v. Wapello County, 18 Iowa, 327; Pipkin v. Wynns, 2 Dev. (N. C.) 402. A grant from the State of land on a river, "with the appurtenances," conveys no right to maintain a public ferry. Harrison v. Young, 9 Ga. 359; 2 Black. Com. 38, 236.

tion, and, acting in good faith, may exercise these powers so as to exclude steamers if they injure the canal and impede the navigation.1

§ 143. The provisions in State constitutions and bills of rights, prohibiting the taking of private property without due process of law or without compensation, do not impair the power of State legislatures to regulate compensation in the shape of tolls. Nor are the States prevented by their constitutions, or by the commerce clause of the Federal constitution, in the absence of Congressional action thereunder, or by that prohibiting tonnage duties, from improving their rivers or delegating this power to others.3 State legislatures may determine the mode and extent of such improvements; may sanction the construction and maintenance of dams and locks upon navigable streams, or the removal of obstructions from the channel, for the purpose of improving the navigation or of facilitating the passage and collection of logs and rafts; and may authorize persons or corporations erecting such structures to collect reasonable tolls for the increased facilities thus afforded for public travel and transportation.1

1 See Sheldon v. New Orleans Canal Co., 9 Rob. (La.) 360.

2 Munn v. People, 69 Ill. 80; Munn v. Illinois, 94 U. S. 113; Burlington v. Beasley, Id. 310; Peik v. Chicago Railway Co., 94 U. S. 164; Blake v. Winona Railroad Co., 19 Minn. 418; Aborn v. Dubuque Mining Co., 48 Ill. 140, 144. See Androscoggin Booms v. Haskell, 7 Maine, 474; Middlesex Turnpike Co. v. Freeman, 14 Conn. 91.

3 Withers v. Buckley, 20 How. 84; Thompson v. Androscoggin River Co., 58 N. H. 108; Chicago v. McGinn, 51 Ill. 266; Carondelet Canal Co. v. Parker, 29 La. Ann. 430; Kellogg v. Union Co., 12 Conn. 7; Thames Bank v. Lovell, 18 Conn. 500; Risley v. Farwell, 4 Chand. (Wis.) 106; Fali e. Sutter, 21 Cal. 237; Shrunk Schuylkill Navigation Co., 14 Serg. & R. 71; Spring v. Russell, 7 Maine, 273; Moor v. Veazie, 32 Maine, 343; 31 Maine, 360; 14 How. 568; Knox v.

.

Chaloner, 42 Maine, 156. Power reserved by the government to regulate tolls is not lost by non-user. Chicago Railroad Co. v. Iowa, 94 U. S. 155.

+ Ibid.; Attorney General v. Eau Claire, 37 Wis. 400; Risley v. Farwell, 4 Chand. (Wis.) 106; Wisconsin River Improvement Co. v. Manson, 43 Wis. 255; Tewksbury v. Schulenberg, 41 Wis. 584; 48 Wis. 577; Wisconsin v. Eau Claire, 40 Wis. 533; Stevens Point Boom Co. v. Reilly, 46 Wis. 237; 44 Wis. 295; Susquehanna Boom Co. v. Dubois, 58 Penn. St. 182; McKeen v. Delaware Division Canal Co., 49 Penn. St. 424; White Deer Creek Improvement Co. v. Sassaman, 67 Penn. St. 415; Hart v. Hill, 1 Whart. 136; Boykin v. Shaffer, 13 La. Ann. 129; McReynolds v. Smallhouse, 8 Bush, 447; Simpson County Court v. Arnold, 7 Bush, 354; La Plaisance Bay Harbor Co. v. Monroe, Walk. Ch. 155; People v. New York Ferry Co.,

The privilege thus created is a franchise, and it is necessary to its validity that the grantee shall be certain. A statute which purported to grant the right to collect tolls upon logs floated in a navigable river, to any person or corporation which should improve the navigation of such river in the manner prescribed in the statute, is void for want of a certain grantee.1 If the State, or its agents or grantees, in improving the navigation, takes, flows, or otherwise injures private property, compensation must be afforded therefor.2 Statutes authorizing bridges, booms, and similar structures are not construed as authorizing the taking of the private property of riparian proprietors without their consent, further than is necessary to give a reasonable construction to the act. If a corporation is created "for making, laying, and maintaining side booms in suitable and convenient places in a river," it has no authority to enter upon private lands adjoining the river without the owner's consent.1 The State

68 N. Y. 71; Muskegon Booming Co. r. Evart Booming Co., 34 Mich. 462; Ryerson v. Utley, 16 Mich. 269; Plecker v. Rhodes, 30 Gratt. 795; Moor v. Veazie, 14 How. 568; 32 Maine, 343; 31 Maine, 360. As to improvements in a river by an improvement company beyond the State line, see Abbott v. Baltimore Steam Packet Co., 1 Md. Ch. Dec. 542. If a corporation for the improvement of a boundary river between States is chartered in both States, it may be sued in the State in which its principal place of business is, and its principal officers reside. Culbertson v. Wabash Navigation Co., 4 McLean, 544.

1 Ibid.; Sellers v. Union Lumbering Co., 39 Wis. 525; Chenango Bridge Co. v. Paige, 83 N. Y. 178.

2 Thompson v. Androscoggin River Co., 58 N. H. 108; Orr v. Quimby, 54 N. H. 590; Wood v. Nashua Manuf. Co., 5 N. H. 467; Lebanon v. Alcott, 1 N. H. 339; Moor v. Veazie, 31 Maine, 360; White Deer Creek Improvement Co. v. Sassaman, 67 Penn. St. 415; Sharpless v. Philadelphia, 21

Penn. St. 147, 170; Schuylkill Navigation Co. v. Freedley, 6 Whart. 109; Ten Eyck v. Delaware Canal Co., 18 N. J. L. 200; Clay v. Pennoyer Creek Improvement Co., 34 Mich. 204; Cooper v. Williams, 5 Ohio, 391; Ryan v. Brown, 18 Mich. 196; Hamilton v. Fond du Lac, 40 Wis. 47; Alexander r. Milwaukee, 16 Wis. 247; Steele v. Western Inland Lock Navigation, 2 Johns. 283. See Chicago v. McGraw, 75 Ill. 566; Nash v. Upper Appomattox Co., 5 Gratt. 332; James River Co. v. Thompson, 3 Gratt. 270; Avery v. Police Jury, 12 La. Ann. 554; Walker v. Board of Public Works, 16 Ohio, 540. If the water at a public ford is raised by the dam of a navigation company chartered by the State so as to make the ford useless, the public right is restored upon the destruction of the dam. Crump Mims, 64 N. C. 767.

8 Hood v. Dighton Bridge, 3 Mass. 263; Thacher v. Dartmouth Bridge, 18 Pick. 501.

4 Perry r. Wilson, 7 Mass. 393.

or its grantees are not liable for remote or incidental injuries to individuals, caused by improving the navigation of those rivers which are public property, or for injuries, however serious, which, being common to all others similarly situated, result from the regulation of the navigation.2 Tolls may be authorized for the use of a stream, the navigation of which has been improved, but which was navigable in its natural condition, if such navigation is thereby facilitated.3

§ 144. The power of a corporation to demand toll, when chartered, like a canal company, for the purposes of public transportation, depends upon the terms of its charter and not upon the rules of the common law entitling the owner of property to demand such compensation and from such

1 Henly v. Lyme, 5 Bing. 91; Rex v. Pegham, 5 B. & C. 350; British Cast Plate Manufacturers v. Meredith, 4 T. R. 794; Lansing v. Smith, 8 Cowen, 146; Spring v. Russell, 7 Greenl. 273; Parker v. Cutler Mill Dam Co., 20 Maine, 353; Moor v. Veazie, 31 Maine, 360; Sugar Refining Co. v. Jersey City, 26 N. J. Eq. 247; Tinsman v. Belvidere Delaware Railroad Co., 26 N. J. L. 148; Hollister v. Union Co., 9 Conn. 436; Hooker v. New Haven Co., 15 Conn. 323; Alexander v. Milwaukee, 16 Wis. 247; Commonwealth v. Fisher, 1 Penn. 462; Hart v. Hill, 1 Whart. 124, 136; Zimmerman v. Union Canal Co., 1 Watts & Serg. 346; Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 71; Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle, 9; Bell v. McClintock, 9 Watts, 119; Bald Eagle Boom Co. v. Sanderson, 81 Penn. St. (Pt. 2) 402; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Schuylkill Navigation Co. v. Freedley, 6 Whart. 109; Newport Bridge Co. v. Foote, 9 Bush, 264; Barney v. Keokuk, 94 U. S. 324; Canal Appraisers v. People, 17 Wend. 571; 13 Id. 355; Lansing v. Smith, 8 Cowen,

146; 4 Wend. 9; Radcliff v. Brooklyn, 4 N. Y. 195; Coster v. Albany, 43 N. Y. 399; 52 Barb. 276; Waddell v. New York, 8 N. Y. 95; Chapman v. Albany Railroad Co., 10 N. Y. 360; Ely v. Rochester, 26 N. Y. 133; Sweet v. Troy, 62 N. Y. 630; Kavanagh v. Brooklyn, 38 Barb. 232; Spring v. Russell, 7 Maine, 273; Parker v. Cutler Mill Dam Co., 20 Maine, 353.

2

Ante, § 122. When a company is authorized by the State to improve the navigation of a stream, subsequent purchasers from the State are not entitled to damages for a diversion of the water of the stream by the company, for the purpose of improving the navigation. Block River Improvement Co. v. La Crosse B. & T. Co., 54 Wis. 659. A canal cut for the purpose of improving the navigation of a stream may be dedicated to the public. Weatherby v. Micklejohn, 13 N. W. Rep. 697.

3 Nelson v. Cheboygan Slackwater Navigation Co., 44 Mich. 7. In this case, Cooley, J., doubted whether the State can give to private parties the control of a navigable stream for improvement, with power to charge toll at discretion.