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line, the first act is not a mere revocable license but a grant which is not impaired by the act of incorporation.1 But a statute which merely authorizes a corporation to open and widen a creek or stream for the public good is not a compact, and may be repealed by the legislature.2 The grant by a State legislature of a charter for a ferry across a navigable river does not give the grantee any right to control the channel of the river or to prevent its improvement without compensation to him by the United States.3 A grant of a bridge or ferry franchise, which is not in terms exclusive, does not preclude a subsequent grant, to other parties, of another franchise which impairs the value and takes away the profits of the first.4 But a statute which authorizes lands to be taken for a railway must be construed strictly, and not extended to a taking for ferries.5 And if a charter expressly provides that no other bridge or ferry shall be maintained on the same river within five miles either above or below the bridge which it authorizes, the distance is to be measured by the course of the river.6 A statute which prohibits the establishment of private ferries within a certain distance from any public bridge does not prohibit private ferries within such distance from a public ferry.7 The right to a ferry does not include the power to erect a bridge, nor does a right to build a bridge convey a ferry franchise.8 A ferry does not necessarily infringe upon an exclusive right to maintain a bridge.9 An exclusive right to maintain a toll bridge is not infringed by the erection of a railroad bridge, or the maintenance of a railroad ferry, within
the specified limit.1 If the owner of an exclusive ferry franchise fails to properly accommodate the publie, a court of equity may decline to aid him by enjoining the infringement of his right, and leave him to his action for damages.2 Such exclusive right may be lost by estoppel, as by silently permitting another ferry or bridge to be completed at great expense.3 The provision of a charter authorizing a railroad company to cross a river by a bridge or ferry, "as may be most convenient," regards the convenience both of the navigation and the railroad; and, if there is nothing in the charter to the contrary, the decision as to which will be most convenient rests with the railroad company, which is not deprived of the right to build a bridge by the fact that a bridge would be less convenient to navigation than a ferry.4
§ 147. At common law a right of distress is incident to all tolls.6 Persons or companies authorized to receive tolls may also recover upon an express promise to pay;6 and if the statute provides no remedy for non-payment, the law will imply a promise to pay, which will sustain an action,7 even though the defendant claimed an exemption from toll and refused to pay.8 If a company is authorized by its charter
i Lake v. V. & S. R. Co., 7 Nev. 294; Mayor v. New England Transportation Co., 14 Blatch. 159; Enfield Bridge Co. v. Hartford Railroad Co., 17 Conn. 40; Charles River Bridge v. Warren Bridge, 11 Peters, 420.
2 Ferrel v. Woodward, 20 Wis. 458.
3 Fremont Ferry Co. v. Dodge Co., 6 Neb. 18.
4 Easton v. New York Railroad Co., 24 N. J. Eq. 49.
5 Vin. Abv. tit. Toll, 1.; Bacon's Abv. tit. Distress, pl. 0; Heddy v. Wheelhouse, Cro. Eliz. 558; Vinkersterne v. Ebden, 1 Salk. 248; 1 Ld. Raym. 386. See Woolrych on Waters, 01, 312; Dresser v. Bosanquet, 4 B. & S. 460; Stourbridge Canal v. Wheeley, 2 B. & A. 793; Jenkins v. Cooke, 1 Ad. & El. 871; Fraser v. Swansea Coal
Co., Ibid. 354; Nicholl v. Gardner, 13 Wend. 288; Mangum v. Farrington, 1 Daly, 230; Warren v. MeDiarmid, 34 How. Pv. 304; Wooster v. Blossom, 5 Jones (N. C.) 244; State v. Patrick, 3 Dev. (N. C.) 478.
6 Dorman v. Turnpike Co., 3 Watts, 120; Beeler v. Turnpike Co., 14 Penn. St. 102 ; Penobscot Boom Co. v. Baker, 10 Maine, 233; Middle Bridge Co. v. Marks, 20 Maine, 320; Proprietors of Upper Locks v. Abbott, 14 N. H. 157.
7 Hopkins c. Stockton, 2 Watts & Serg. 103; Kellogg v. Union Co., 12 Conn. 10; Baltimore v. White, 2 Gill, 444; Quiney Canal v. Neweomb, 7 Met. 276.
8 Central Bridge v. Abbott, 4 Cush. 473.
to "demand and recover" tolls for the passage of logs, and to stop and detain them until the tolls are paid, it can maintain an action to recover toll.1 But if a summary remedy only is given by statute to enforce the payment of tolls, a promise to pay them is not implied, and an action of debt or assumpsit will not lie.2 A promise to pay toll is without consideration, if the promissor is not legally liable to pay.8
RIPARIAN RIGHTS AND BOUNDARIES UPON NAVIGABLE
148, 149. Riparian rights defined.
150-154. The right of access.
168,159. The effect upon private rights of sudden changes caused by the currents.
160,161. Defences against the sea and rivers.
162-165. Apportionment of alluvion between coterminous proprietors.
167, 168. Wharfing out.
169. The Massachusetts Ordinance of 1647.
170-178. The right to occupy flats under the usages of Connecticut, New • Jersey, Rhode Island, and Pennsylvania.
174. The same in California.
175. In New York.
176. In Maryland.
177. In Florida and Oregon.
178. In Virginia.
179. Wharfing out in fresh waters.
180,181. The outward limit of the right of extending wharves, etc.
182-190. Rights of fishery.
191. The right to ice.
192. Wrecks and waifs.
194. Description of boundaries upon streams.
195. Boundaries upon tide water.
196. Boundaries upon non-tidal waters.
197. Description limiting to bank.
198. The location of a stream's thread as a boundary. 199,200. Boundary when limited to high-water mark or bank.
201. Course of stream not always followed as a boundary.
202. Boundaries of towns, parishes, and nations upon waters. 208. Boundaries upon lakes and ponds.
§ 148. Riparian rights, according to the strict meaning of the term, are such as follow, or are connected with, the ownership of the banks of streams or rivers.i Those whose lands border upon tide waters are called "littoral" proprietors, and there appears to be no word or phrase of sufficiently broad meaning to include both riparian and littoral, although each is sometimes used to denote the other.2 The distinction between tide waters and fresh, or between public and private waters, is not necessarily a material consideration in determining questions relating to riparian rights, since riparian rights proper depend upon the ownership of land contiguous to the water, and are the same whether the proprietor of such land owns the soil under the water or not. In Lyon v. Fishmongers' Co.,3 Lord Selborne thus states what is now to be regarded as the established law upon this subject: "The rights of a riparian proprietor, so far as they relate to any natural stream, exist jure naturae, because his land has by nature the advantage of being washed by the stream; and if the facts of nature constitute the foundation of the right, I am unable to see why the law should not recognize and follow the course of nature in every part of the same stream. With respect to the ownership of the bed of the river, this cannot be the foundation of riparian rights properly so called, because the word 'riparian * is relative to the bank, and not to the bed of the stream, and the connection, when it exists, of property on the banks with property in the bed of the stream depends not upon nature, but on grant or presumption of law. The title to the soil constituting the bed of a river does not carry with it any exclusive right of property
i Riparian is derived from Latin ripa, a river bank.
2 Littoral is derived from Latin titta, the sea-shore. It is now in general use, and should be employed rather than "riparian," in respect to the shores of the sea, and, also, according to important authorities, as including " riparian." Ilegina v. Keyn, 2 Ex. D. 03; Boston v. Lecraw, 17 How. 432, 433; West Roxbury v.
Stoddard, 7 Allen, 158,. 167; 9 Gray, 521, note; Hamilton v. Manifee, 11 Texas, 718; Smith v. Power, 14 Texas, 146.
8 1 App. Cas. 662; L. R. 10 Ch. 679; Diedrich v. Northwestern Rail-, way Co., 42 Wis. 248; Stevens Point Booming Co. v. Reilly, 44 Wis. 295, 305; Morrill v. St. Anthony Falls Co., 20 Minn. 222; Meyers v. St. Louis, 8 Mo. App. 206.