was gradually washed away by tide-water, and the soil was afterwards restored by the deposit of alluvion, the new soil was held to belong to the owner of the fast land. But if the sea gradually and imperceptibly encroach upon private lands, or the bounds are lost, and the situation and extent of the lost land cannot be ascertained, it belongs to the Crown at common law, and in this country to the State.2 § 159. When a tidal river does not work a shifting of the shore, but by the irruption of its waters forms an entirely new channel in private lands, not only does the right to the soil thus covered remain in the owner, but the right of fishery is his and not in the public, though the public right of navigation may extend to the new channel. If an unnavigable stream, in which the title of the riparian owners extends ad filum aquae, slowly and imperceptibly changes its course, the boundary line is at the centre of the new channel. But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits between the two estates.5 Where a right of several fishery had been exercised to the thread of a river flowing through an estuary, and the river changed its 1 Morris v. Brooke (Del.) 25 Alb. L. Journ. 90. 2 Ibid.; Dyer, 326 a; 2 Roll. Abr. 168; Phear's Rights of Water, 43; Schultes's Aquatic Rights, 122; Woolrych on Waters, 23, 37; In re Hull & Selby Railway, 5 M. & W. 327; Zetland v. Glover Incorporation of Perth, L. R. 2 H. L. Sc. 70; Wedderburn v. Paterson, 2 Sc. Sess. Cas. (3d series), 902. 3 Carlisle v. Graham, L. R. 4 Ex. 366; Miller v. Little, L. R. 2 Ir. 304; Hale, De Jure Maris, c. 6; Hargrave's Law Tracts, 34; Rolle Abr. 390. In this country it would extend to the new channel, navigable waters being those which are navigable in fact. Ante, c. 3. In England, it would still seem to depend upon user or the fact that the river was tidal. Ibid. 4 Ford v. Lacey, 7 H. & N. 151; 7 Jur. N. s. 684; Foster . Wright, 4 C. P. D. 438; Carlisle v. Graham, L. R. 4 Ex. 361; Hopkins Academy v. Dickinson, 9 Cush. 544; Gerrish v. Clough, 48 N. H. 9; Niehaus v. Sheperd, 26 Ohio St. 40; Collins y. State, 3 Texas App. 323; Woodbury v. Short, 17 Vt. 387; Browne v. Kennedy, 5 H. & J. 195; Goodsell v. Lawson, 42 Md. 348; 2 Black. Com. 262. 5 Ibid; Spigener v. Cooner, 8 Rich. (S. C.) 301; Lynch v. Allen, 4 Dev. & Bat. 62; Dwinel v. Barnard, 28 Maine, 469; Just. Inst. lib. 2, tit. 1,. § 23; Bracton, 221; 2 Black. Com. 262. course, it was held, in an action of trespass for fishing to the thread of the new river, that the middle of the new stream and not of the old was the local limit of the fishery.1 But where a river which was originally within the lands of one proprietor encroached by gradual and imperceptible degrees upon the land of the defendant, an adjoining proprietor, so that a strip of such land became part of the river bed, it was held that the first proprietor had not lost his property in the bed of the stream by the gradual change of its course, and could maintain an action of trespass against the defendant for fishing at a point in the bed which was the latter's property before the encroachment.2 When a stream flowing through a person's land is diverted into a new channel, either artificially or by a sudden flood, affecting the rights of other riparian proprietors favorably, and the owner acquiesces in the new state of the stream for so long a time that new rights accrue, or may be presumed to have accrued, such acquiescence is binding, like a public dedication, and the stream cannot be lawfully returned to its former channel.3 If a boundary river between States forms a new and distinct channel, the jurisdiction of the respective States is not affected, but any gradual accretion of land belongs to the State which owns the bank to which it is added.5 § 160. The owners of lands exposed to the inroads of the sea or of inland waters may erect walls and embankments to prevent the wearing away of the land or to protect it from overflow. It is lawful to embank against the sea, even when the effect may be to cause the water to beat with increased violence against the adjoining land, thereby rendering it necessary for the adjoining land-owner to enlarge or 1 Miller v. Little, 2 L. R. Ir. 304. 2 Foster . Wright, 4 C. P. D. 438. 3 Ford v. Whitlock, 27 Vt. 265; Woodbury. Short, 17 Vt. 387. In the last case acquiescence for ten years was held sufficient. 4 Missouri v. Kentucky, 11 Wall. 395; Holbrook v. Moore, 4 Neb. 437; Vattel's Law of Nations; § 270; 8 Op. 5 Handly v. Anthony, 5 Wheat 380; Vattel, lib. 1, c. 22, § 268. strengthen his defences.1 But this rule is not applicable in the case of embankments by the side of a river, whether public or private.2 A riparian proprietor is not only entitled to have the water flow to him in its natural state, so far as that is a benefit, as, e.g., to turn his mill or water his cattle, but in times of ordinary flood he is bound to receive the water, so far as it is a nuisance by its tendency to flood his land, and cannot exclude the superabundant water to the injury of other proprietors.3 The owner of land, bounding upon an inland stream, may repair and restore the banks, when broken, but cannot make different ones. So long as his operations tend only to confine the waters within their original channel, they are not responsible for any damage to neighboring proprietors. If the owner of a dam upon a stream, the course of which is changed by an extraordinary flood, does not elect to restore the banks, he is not liable for injuries to others caused by the altered course of the stream and the continuance of his dam.5 Erections, intended to exclude the water, are illegal, if they cause the diversion of a stream from its accustomed channel, and throw the water upon the land of an opposite or adjoining proprietor; and 1 Rex v. Pagham, 8 B. & C. 355; Rex v. Trafford, 1 B. & Ad. 874; 8 Bing. 204; Gerrish v. Clough, 48 N. H. 9, 13; Hall on the Seashore (2d ed.), 167, 168. If A. by banks or trenches diverts more than the natural flow of the stream upon the land of B., the latter may remedy it by erecting banks upon his own land. Merritt v. Parker, Coxe (N. J.) 460. 2 Rex v. Trafford, supra; Menzies v. Breadalbane, 3 Wils. & Shaw, 243; 3 Bligh, N. s. 414; Gerrish v. Clough, 48 N. H. 9, 13. 3 Ibid.; Mason v. Shrewsbury Railway Co., L. R. 6 Q. B. 578, 582; Burwell v. Hobson, 12 Gratt. 322. 4 Menzies v. Breadalbane, 3 Wils. & Shaw, 235; 3 Bligh, N. s. 414; Rex v. Commissioners of Sewers, 2 B. & C. 355; Rex v. Pagham, 8 B. & C. 355; Rex. v Trafford, 1 B. & Ad. 874; 8 Bing. 204; Farquharsen v. Farquharsen, 3 Bligh, N. s. 421; Avery v. Empire Woolen Co., 82 N. Y. 582; Jones v. Soulard, 24 How. 41; Rix v. Johnson, 5 N. H. 520; Gerrish v. Clough, 48 N. H. 9; Adams v. Barney, 25 Vt. 225; Tuthill v. Scott, 43 Vt. 525; Rood v. Johnson, 26 Vt. 64, 72; Harding . Whitney, 40 Ind. 379; Merritt v. Parker, Coxe (N. J.) 460; Pierce v. Kinney, 59 Barb. 56; Slater v. Fox, 5 Hun, 544; Mailhot v. Pugh, 30 La. Ann. 1359; New Orleans v. Henderson, 5 La. 423. 5 Jones v. Turner, 46 Barb. 527. 6 Farquharsen's case, cited 3 Wils. & Shaw, 235; Morr. Dict. 12, 787; Attorney General v. Lonsdale, L. R. 7 Eq. 387; Bickett v. Morris, 1 H. L. Sc. 47, affirming Aberdeen v. Menzies, Morr. Dict. 12, 787; Blantyre v. Doon, 10 Dunlop, 542; Hamilton v. while mere apprehension of danger is not sufficient to support an action for this cause, yet any operation extending into the stream itself is prima facie an encroachment upon the common interest of the other riparian proprietors, and the burden is upon the party doing such act to show that it is not injurious. If a sea-wall or embankment is erected in tide-waters beyond the limits of the owner's land, it is doubtless illegal at common law as being a purpresture, since it does not appear that littoral proprietors are authorized, as against the Crown or without its sanction, to erect even defences against the sea below high-water mark.2 In this country, it is doubtless a principle of general application, as has been expressly held in Wisconsin, that, as a right of necessity, when water, navigable or not navigable, is by natural causes wearing away and intruding upon the banks, the riparian owner, whether he owns the soil ad filum aquae or not, may, as against the public, intrude into the shoal unnavigable water near the banks so far as may be necessary for the purpose of constructing works essential to the protection of his land against the action of the water. Such Eddington, Morr. Dict. 12, 826; Burnis v. Brown, Hume's Dict. 504; Gellathy's Case, 1 Macph. 592; Menzies v. Breadalbane, 3 Wils. & Shaw, 235; New Albany Railroad Co. v. Higman, 18 Ind. 77; Niles Works v. Cincinnati, 2 Disney (Ohio) 400; Longstreet v. Harkrader, 17 Ohio St. 23; Cincinnati Railroad Co. v. Ahr, 2 Sup. Ct. (Ohio) 515; Ten Eyck v. Delaware Canal Co., 3 Harr. (N. J.) 200; Tinsman v. Delaware Railroad Co., 2 Dutch. 148. 1 Bickett v. Morris, 1 H. L. Sc. 47; Attorney General v. Lonsdale, L. R. 7 Eq. 387; Attorney General v. Terry, L. R. 9 Ch. 425; Orr Ewing v. Colquhoun, 2 App. Cas. 839; Brownlow v. Metropolitan Board of Works, 13 C. B. N. s. 768; 16 Id. 546; Cracknell v. Thetford, L. R. 4 C. P. 629; Wishart v. Wyllie, 1 Macq. 389; Brown v. Gugy, 2 Moo. P. C. 341; Norbury v. Kitchen, 15 L. T. N. s. 501; Norway Plains Co. v. Bradley, 52 N. H. 86. If the bank of a stream is washed away, and its bed widened by a flood, a corporation which has the franchise of a toll bridge across the river, and is required by its charter to keep the bridge in repair, is bound to extend the bridge to the new bank. Commonwealth v. Dearfield, 6 Allen, 449. In an action to recover damages for taking stones from a river, and thereby causing the plaintiff's land to be washed away, evidence that the removal of stones at another part of the river produced the same effect is not admissible, unless it appears affirmatively that the conditions are the same. Hawks v. Charlestown, 110 Mass. 110. 2 Coulson & Forbes on Waters, 33. 8 Diedrich v. Northwestern Railway Co., 42 Wis. 248; Delaphine v. Chicago Railway Co., Ibid. 214; Boor structures are public nuisances if they interfere with the navigation.1 3 § 161. The owner of the soil of navigable waters is not liable to keep it free from obstructions or to compensate the adjoining owners for damage done by overflow of the water, even when toll is taken for navigating thereon.2 But liability to cleanse a river may arise from prescription. So, a littoral proprietor may be bound by prescription to maintain and repair a sea-wall, even against extraordinary tides or floods; but the mere fact that he has always maintained a wall in front of his own land, and that adjoining proprietors have not, because of its existence, found it necessary to erect walls against their own frontages, is not sufficient evidence to establish this liability. The owner of land, upon which exists a natural barrier against the sea, may also be restrained from destroying or removing it,6 upon proceedings on behalf of the Crown or public, if not of individuals man v. Sunnachs, Ibid. 233; Olson v. Merrill, Ibid. 203. 1 Bickett v. Morris, 1 H. L. Sc. 47; Attorney General v. Lonsdale, L. R. 7 Eq. 377; Attorney General v. Terry, L. R. 9 Ch. 425; Orr Ewing v. Colquhoun, 2 App. Cas. 839; Atlee v. Packet Co., 21 Wall. 389; 2 Dillon, 479; Diedrich v. Northwestern Railway Co., 42 Wis. 248. 2 Hodgson v. York, 28 L. T. N. s. 836; Cracknell v. Thetford, L. R. 4 C. P. 629; Parrett Navigation v. Robins, 10 M. & W. 593; Bridge's Case, 10 Rep. 33; Coulson & Forbes on Waters, 84. 3 Lynn v. Turner, Cowper, 86. 4 Reg v. Leigh, 10 Ad. & El. 398; Henley v. Lyme, 2 Cl. & Fin. 331; Rex v. Commissioners of Sewers, 8 T. R. 312; Keighley's Case, 10 Coke, 139; Rooke's Case, 5 Coke, 99; Case of the Isle of Ely, 10 Coke, 140; Wingate v. Waite, 6 M. & W. 739; Reg. v. Wharton, 2 B. & S. 719; Rex v. Commissioners of Sewers, 1 B. & C. 477; Griffith's Case, Moore, 62; NitroPhosphate Co. v. London Docks, 9 Ch. D. 503, 921; River Wear Commissioners v. Adamson, 2 App. Cas. 750, 780; Reg. v. Baker, L. R. 2 Q. B. 621; Rex v. Paul, 2 M. & R. 307; Morland v. Cooke, L. R. 6 Eq. 252; Collins v. Middle Level Commissioners, L. R. 4 C. P. 279; Callis on Sewers, 107, 151; Coulson & Forbes on Waters, 27-32; Hunt on Boundaries (2d ed.), 37. 5 Hudson v. Tabor, 2 Q. B. D. 290; Attorney General v. Tomline, 12 Ch. D. 214; Collins v. Macon (Ga.), 27 Alb. L. Journ. 116. It seems that a covenant to repair a sea-wall runs with the land, and would therefore bind a purchaser even without notice express or implied. Morland v. Cooke, L. R. 6 Eq. 252. 6 Ibid.; Attorney General v. Tomline, 12 Ch. D. 214; Crompton v. Lee, 31 L. T. N. s. 469; Philadelphia v. Scott, 81 Penn. St. 80, 88; Commonwealth v. Alger, 7 Cush. 53, 86; Crowley v. Copley, 2 La. Ann. 390; Watson v. Marshall, 16 La. Ann. 231; Leblanc v. Pittman, 26 La Ann. 433; O'Connor v. Stewart, 19 La. Ann. 127. |