where navigable fresh waters are public property; and if land is made by a stranger by filling in earth in front of land bounding upon such waters, the riparian owner, while entitled to damages for any interference with his access to the water, cannot maintain ejectment for the land so made.1 But the riparian owner may, as against the public, reclaim the marshy land lying in front of his estate, if he does not obstruct the navigation, and conforms to the regulations of the State.? He may, also, under the same restrictions, intrude upon the water as far as low-water mark, and erect embankments there for the purpose of protecting his land, when by natural causes the water is wearing away the banks. But if, without authority, he erects structures below low-water in navigable waters which belong to the State, he loses all title to the property so placed.4

§ 180. The exercise of this right to build out into navigable waters, wharves, piers, and docks, tends to aid navigation and commerce. The legislature may authorize the extension of such structures beyond low-water mark; but if not sanctioned by the legislature, they are illegal so far as they interfere with or limit the right of navigation. The public right of fishery, however, is subordinate to the right of navigation, and wharves and buildings upon flats which are consistent with the latter right will not be declared unlawful for want of legislative sanction because they exclude the public from taking shell-fish or floating fish in the space covered by the structure."

§ 181. In determining the distance from the bank to which a wharf or other similar structure may thus be ex

tended, the rule, as generally stated, is that these structures must not pass the point of navigability.1 This rule is somewhat indefinite, and, as wharves, piers, booms, and the like, are valuable aids to navigation and commerce, the limits would be so narrow as to make these structures practically useless, if the point of navigability is fixed at the line beyond which a boat, raft, or log could not float. In the case of encroachments upon tide waters, the question of nuisance or not nuisance is one of fact.2 With respect to encroachments, the correct rule seems to be indicated in the following remarks of Ryan, C. J.:3 "A pier upon Lake Michigan, to aid navigation, must go into water deep enough to be accessible to vessels navigating the lake. A boom on a logging stream, to aid such navigation, must go into water deep enough to be accessible to floating logs; must be so constructed as to receive and discharge floating logs. In either case, to reach navigable water reasonably implies reaching it with effect to accomplish the purpose; the word often signifying some penetration of the thing reached. One is not understood to stop outside the limits of a place when he is said to reach it. He is understood to enter it, as far as may be necessary for his purpose. The right in question necessarily implies some intrusion into navigable water, at peril of obstructing navigation. This intrusion is expressly permitted to aid navigation, and expressly prohibited to obstruct navigation. It is impossible to give a general rule limiting its extent. That will always depend upon the conditions under which the right is exercised; the extent and uses of the navigable water; the nature and object of the structure itself. A structure in aid of navigation, which would be a reasonable intrusion into the waters of Lake Michigan, would probably

1 Dutton v. Strong, 1 Black, 1, 23; Atlee v. Packet Co., 2.Dillon, 479, 485; 21 Wall. 389; Diedrich v. Northwestern Railway Co., 42 Wis. 248; Ripper. Chicago Railroad Co., 23 Minn. 18; Brisbine v. St. Paul Railroad

Co., Ibid. 114, 130. 2 Ante, § 93.

3 Stevens Point Boom Co. v. Reilly, 46 Wis. 237, 244; 44 Wis. 295; Atlee v. Packet Co., 21 Wall. 389, 393; Cohn v. Wausau Boom Co., 47 Wis. 314, 322.

See, also, Buszard v. Capel, 4 Bing. 137, 140; 12 Moore, 339; The Wharf Case, 3 Bland. Ch. 361, 369.

be an obstruction of navigation in any navigable river within the State. A logging boom which would be a reasonable intrusion into the waters of the Mississippi, would probably be an obstruction of navigation in most or all the logging streams within the State. The width of a river may justify a liberal exercise of the right of intrusion, or may exclude it altogether. Its extent is purely a relative question." It was accordingly held in this case that the erection of booms extending through shoal water only so far as was necessary to reach the navigable part of the river was not within the prohibition of a statute forbidding the obstruction of navigable rivers without authority from the legislature.

§ 182. Riparian proprietors upon fresh-water streams have the exclusive right of fishing in the water opposite their lands, and this right extends to navigable fresh rivers as well as those which are unnavigable, where the soil of the former is held to be private property.1 Riparian proprietors upon all such streams, whose title extends ad filum aquae, can maintain an action of trespass against those who draw a seine between the centre of the stream and the bank of his land. This exclusive right exists, also, in the case of private lakes and ponds. In those States in which the soil of navigable fresh streams or lakes is held to be public property, the right of fishing in them is a common right, as in the case of tide waters.4

1 Hale, De Jure Maris, c. 1, 5; Hargrave's Law Tracts, 2, 56; 3 Kent Com. 409, 417; Royal Fishery of the Banne, Davies, 149; Freary. Cooke, 14 Mass. 488; Commonwealth v. Chapin,. 5 Pick. 199; Vinton . Welsh, 9 Pick. 87; Waters v. Lilley, 4 Pick. 145; Commonwealth v. Alger, 7 Cush. 53, 97; McFarlin v. Essex Co., 10 Cush. 304; Commissioners v. Holyoke Water Power Co., 104 Mass. 446; Commonwealth. Vincent, 108 Mass. 441; People v. Platt, 17 Johns. 195; Hooker r. Cummings, 20 Johns. 90; Trustees v. Strong, 60 N. Y. 56; Gould v. James, 5 Cowen, 369; Adams v. Pease, 2

Conn. 481; Smith v. Miller, 5 Mason, 191; Cobb v. Davenport, 32 N. J. L. 369; Browne v. Kennedy, 5 H. & J. 195; Beckman v. Kraemer, 43 Ill. 447; Lewis v. Keeling, 1 Jones (N. C.) 299; Ingram v. Threadgill, 3 Dev. 59.

2 Adams v. Pease, 2 Conn. 483; ante, § 100.

3 Ibid.; Woolrych on Waters, 96; Cobb v. Davenport, 32 N. J. L. 369; 33 N. J. L. 223; ante, §§ 79–85.

4 Carson v. Blazer, 2 Binney, 475; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Hart v. Hill, 1 Whart. 124; Tinicum Fishing Co. v. Carter,

§ 183. The authorities refer to four kinds of fishery: First, a several fishery, where he who hath the exclusive right of fishery is presumably the owner of the soil;1 second, a free fishery, which is an exclusive franchise existing by grant or prescription in public navigable waters in the hands of a subject who hath a property in the fish, and may bring a possessory action for them without making any title to the soil; third, a common of fishery, which resembles the case of other common, and is a right or liberty of taking fish in common with certain others in waters flowing through another man's land; fourth, a common fishery, which may be for all mankind, as in the sea, and not merely in common with certain other persons in a particular stream. Much confusion exists, however, respecting the distinctions between

61 Penn. St. 21; West Roxbury v. Stoddard, 7 Allen, 158; State υ. Franklin Falls Co., 49 N. H. 240; Sloan v. Biemiller, 34 Ohio St. 492; Cates v. Wadlington, 1 McCord, 580; Collins v. Benbury, 5 Ired. 118; 3 Id. 277; Wilson v. Forbes, 2 Dev. 30; Ingram v. Treadgill, 3 Dev. 59; State v. Glen, 7 Jones, 321; Boatwright v. Bookman, Rice (N. C.) 447.

v.

1 Pollexfen . Crispin, 1 Vent. 122; Smith v. Kemp, 2 Salk. 637; Holt, 322; Somerset v. Fogwell, 5 B. & C. 875; Co. Litt. 122a; Marshall Ulleswater Steam Navigation Co., 3 B. & S. 732, 744, 747; Anon., Loft. 364; Partheriche v. Mason, 2 Chitty, 658; Holford v. Bailey, 13 Q. B. 425, 444; 8 Q. B. 1000; Rex v. Old Arlesford, 1 T. R. 358; Seymour v. Courtenay, 5 Burr. 2814; Alderman v. Hastings, 2 Sid. 8; Carlisle v. Graham, L. R. 4 Ex. 361; Miller v. Little, L. R. 2 Ir. 304; Northumberland v. Houghton, L. R. 5 Ex. 127; Queen v. Steer, 3 Salk. 291; Malcomson v. O'Dea, 10 H. L. Cas. 618; Moulton v. Libbey, 37 Maine, 489; Preble v. Brown, 47 Maine, 284; Caswell v. Johnson, 58 Maine, 164; Freary v. Cooke, 14 Mass. 488; Stoughton v. Baker, 4 Mass. 522; Melvin v. Whiting, 5 Pick. 79; 10

Pick. 295; 13 Pick. 184; McFarlin v. Essex Co., 10 Cush. 304; Chalker v. Dickinson, 1 Conn. 510; Munson v. Baldwin, 7 Conn. 168; Trustees v. Strong, 60 N. Y. 56; Skinner v. Ilettrick, 73 N. C. 53. A several fishery does not merge upon its being resumed by the crown. Northumberland v. Houghton, L. R. 5 Ex. 127. User for forty-five years of certain engines for catching salmon, without evidence of previous user, does not raise a conclusive presumption of law that the engines had been used from time immemorial, and were not of recent origin. Holford v. George, L. R. 3 Q. B. 639. The presumption is against the existence of a several fishery in tide waters, and the burden of proof is upon him who claims the exclusive right. Fitzwalter's Case, 1 Mod. 105; Crichton v. Collery, Ir. R. 4 C. L. 508.

2 Smith v. Kemp, 2 Salk. 637; 2 Black. Com. 34; 3 Kent Com. 409; Upton v. Dawkin, 3 Mod. 97; Child v. Greenhill, Cro. Car. 553; Alderman v. Hasting, 2 Sid. 8; 1 Swift's Dig. 110. 3 Smith v. Kemp, 2 Salk. C37.

4 Benett v. Costar, 8 Taunt. 183; 2 Moore, 83; Lord Fitzwalter's Case, 1 Mod. 105.

these classes. By the apparent weight of authority a several fishery may exist independently of the ownership of the soil beneath the water, and it has been held that a free fishery is not an exclusive right, but the same as a common of fishery. "The more easy and intelligible arrangement of the subject," says Kent, "would seem to be, to divide the right of fishing into a right common to all, and a right vested exclusively in one or a few individuals."3

§ 184. A right of fishery in another's stream is not a mere easement, or right of user without derogation of the property, but is a profit à prendre, a taking or diminution pro tanto of the property itself. A custom thus to take anything from another's land is not a lawful custom, and, if available at all,