taxes upon the transportation of passengers; or imposts or duties upon exports and imports.2 Wharfage charges, imposed on vessels as an equivalent for the benefits and facilities furnished to them in mooring and landing cargoes, are not within these prohibitions, even though the vessels are enrolled and licensed under the acts of Congress, and the rates are proportioned to their tonnage; but one State cannot, under the pretence of exacting wharfage dues, build up its domestic commerce by means of oppressive burdens upon the industry and business of other States. A State may also authorize enrolled and licensed steamboats, plying between different ports upon a river, to be taxed as personal property by the city which is their home port, and in which the company owning them has its principal office.5 So, it may provide a remedy in personam for injuries caused by the negligence of a common carrier upon the bays and rivers within its territorial jurisdiction, and the law giving such remedy is not invalid as a hindrance to the free exercise of the license to vessels navigating such waters under the acts of Congress.6 It may regulate the manner of rafting and driving logs down its rivers, and may incorporate companies, with power to 1 Smith v. Turner, 7 How. 283; 4 Denio, 475, n.; New York v. Miln, 11 Pet. 102; Groves v. Slaughter, 15 Pet. 449; Railroad Co. v. Maryland, 21 Wall. 456; Chy Lung v. Freeman, 92 U. S. 275; Henderson v. New York, 92 U. S. 259; Norris v. Boston, 7 How. 283; 4 Met. 282. Brown v. Maryland, 12 Wheat. 419; The License Cases, 5 How. 504; Nathan v. Louisiana, 8 How. 73; Mager v. Grima, Id. 490; Aguirre v. Maxwell, 3 Blatch. 140; Clarke v. Clarke, 3 Woods, 408. 3 Packet Co. v. Keokuk, 95 U. S. 80; Northwestern Union Packet Co., v. St. Louis, 4 Dillon, 10, 18, n.; The Ann Ryan, 7 Ben. 20; Keokuk v. Keokuk Northern Line Packet Co., 45 Iowa, 196; Worsley v. 2d Municipality, 9 Rob. (La.) 324; Schwartz v. Flatboats, 14 La. Ann. 243; Eller man v. McMains, 30 La. Ann. 190; 1st Municipality v. Pease, 2 La. Ann. 538; Cannon v. New Orleans, 20 Wall. 577; 27 La. Ann. 16; Leathers v. Aiken, 25 Alb. L. Journ. 254; Sterrett v. Houston, 14 Texas, 153. See Northwestern Co. v. St. Paul, 3 Dill. 454. 4 Guy v. Baltimore, 100 U. S. 434; The John M. Welch, 18 Blatch. 54; Webb v. Dunn, 18 Fla. 721. Transportation Co. v. Wheeling, 99 U. S. 273; The North Cape, 6 Biss. 505; People v. Commissioners, 48 Barb. 157. 6 Steamboat Co. v. Chase, 16 Wall. 522; 9 R. I. 419; Sherlock v. Alling, 93 U. S. 99; 44 Ind. 184. 7 Scott v. Wilson, 3 N. H. 321; Craig v. Kline, 65 Penn. St. 399; Harrigan v. Connecticut River Lumber Co., 129 Mass. 580; Treat v. Lord, 42 Maine, 552; Mandlebaum v. Russell, convert unnavigable into navigable streams, and to levy tolls on vessels or logs passing them, or to improve the navigation of streams partially navigable; but it cannot authorize the imposition of tolls for the passage of logs to other States, upon waters the navigation of which it has not improved.2 It cannot grant exclusive rights of navigation upon waters which are channels of intercourse between different States ;3 but it may grant such rights upon lakes which are wholly within its limits, and not accessible from other States, and upon those parts of rivers from which, by reason of rocks, or other obstructions, inter-state communication is excluded.* The power to establish and regulate ferries is subject to the control of the States, and not of the general government; 5 and, in the case of boundary rivers, like the Mississippi, a ferry franchise conferred by a single State is valid without the concurrent sanction either of Congress or of the State which bounds upon the opposite side of the river, or the right of landing beyond the limits of the State by which the grant is made.6 4 Nev. 551; Mason v. Boom Co., 3 Maine, 360; The Daniel Ball, 10 Wall. Wall. Jr. 252. 557; The Montello, 20 Wall. 430; The Bright Star, Woolw. 266. 1 Carondelet Canal Co. r. Parker, 29 La Ann. 430; Commissioners v. Green River Navigation Co., 79 Ky. 73; post, c. 4. 2 Carson R. L. Co. v. Patterson, 33 Cal. 334. See Conley . Chedic, 7 Nev. 336. 3 Gibbons v. Ogden, 9 Wheat. 1, reversing s. c. 17 Johns. 488; and overruling Livingston v. Van Ingen, 9 Johns. 507; North River Steamboat Co. v. Livingston, 3 Cowen, 713; Hopk. Ch. 149; Ogden v. Gibbons, 4 Johns. Ch. 174; United States v. Morrison, 4 New York Leg. Obs. 333; United States v. Jackson, Id. 450. 4 Veazie v. Moor, 14 How. 568; Withers v. Buckley, 20 How. 84; Moore v. American Transportation Co., 24 How. 1, 36; United States v. Railroad Bridge Co., 6 McLean, 517; Moor v. Veazie, 32 Maine, 343; 31 Conway v. Taylor, 1 Black, 603; Gibbons v. Ogden, 9 Wheat. 1, 214; Fanning v. Gregoire, 16 How. 534; Hall v. De Cuir, 95 U. S. 485, 488; Elizabethport Ferry Co. v. United States, 5 Blatch. 198; United States v. The James Morrison, 1 Newb. 241, 257; United States v. The William Pope, Id. 256; People v. Babcock, 11 Wend. 506; People v. T. R. Co., 19 Wend. 113; Freeholders v. New Jersey, 4 Zab. 718; Columbia Bridge Co. v. Geisse, 38 N. J. L. 39, 580; Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560; Chilvers v. People, 11 Mich. 43; Jones e. Fanning, Morris (Iowa), 348; Burlington Ferry Co. v. Davis, 48 Iowa, 133; Alb. L. J. June 16, 1883. 6 Ibid.; Marshall v. Grimes, 41 Miss. 27. As to the right of ferriage over a river forming a national boundary, and its suspension during war between § 36. The State may grant to individuals or corporations the soil of public navigable waters or exclusive rights of fishery in them.2 If the terms of the grant are doubtful, that construction will be adopted which least restricts the rights of the State and of the public, inasmuch as public grants, whether made by the Crown, or by Congress, or by a State, are construed strictly, and pass only what appears by express words or necessary implication. When the legisla ture provides for the sale or occupation of lands owned by the State and adjacent to tide water, an express declaration is necessary to warrant the inference that it was intended to permit the shore below high-water mark to be converted into private property.4 A statute which extends the bounds of a town over tide waters, so as to include certain islands therein, confers jurisdiction only, and conveys no right of property in the soil under the water.5 A confirmation the nations on opposite sides of the stream, see Ogden v. Lund, 11 Texas, 688; Prather v. New Orleans, 24 La. Ann. 42. The commissioners of either of two countries bounding upon a river may license a ferry across it. Jones . Johnson, 2 Ala. 746. 1 Commonwealth v. Alger, 7 Cush. 53; Arnold v. Mundy, 1 Halst. 1; Bell v. Gough, 23 N. J. L. 624; Attorney General r. Delaware Railroad Co., 27 N. J. Eq. 1, 631; Hudson Tunnel Co. r. Attorney General, Id. 176, 573; Galveston v. Menard, 23 Texas, 349. 2 Post, c. 4. Royal Fishery of the Banne, Davies, 149; Somerset v. Fogwell, 5 B. & C. 875; The Rebekah, 1 Rob. Adm. 227, 230; Feather v. The Queen, 6 B. & S. 257; Attorney General v. Farmer, Sir T. Raym. 241; 2 Lev. 171; Bro. Abr. Patent, pl. 62; Charles River Bridge v. Warren Bridge, 11 Peters, 420, 544, 557; Leavenworth Railroad Co. v. United States, 92 U. S. 733; Minturn v. Larue, 23 How. 435; 1 McAll. 370; Rice v. Railroad Co., 1 Black, 358; Boston v. Richardson, 13 Allen, 146; 105 Mass. 351; Com missioners v. Holyoke Water Power Co., 104 Mass. 446, 449; People v. New York Ferry Co., 68 N. Y. 71; People v. Canal Appraisers, 33 N. Y. 461; Clark v. Reeves, 3 Caines, 293; Lansing v. Smith, 4 Wend. 9; 8 Cowen, 46; Morris Canal Co. v. Central Railroad Co., 16 N. J. L. 419; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210; West Branch Canal Co. v. Elmira Railroad Co., 55 Penn. St. 180; McManus v. Carmichael, 3 Iowa, 1; La Plaisance Bay Co. v. Monroe, Walk. Ch. 155; Haight v. Keokuk, 4 Iowa, 200; North-Western Fertilizing Co. v. Hyde Park, 70 Ill. 634; Mills v. St. Clair County, 2 Gilman, 198; 8 How. 569; Vansickle v. Haines, 7 Nev. 249. See Hyman v. Reed, 13 Cal. 444. So a grant from the sovereign of the right to take toll is construed against the grantee. Stourbridge Canal v. Wheeley, 2 B. & A. 793; Britain v. Cromford Canal, 3 B. & Ald. 140; Leeds Canal v. Huster, 1 B. & C. 424; Woolrych on Waters, 306, 312. 103. Kimball v. Macpherson, 46 Cal. 5 Palmer v. Hicks, 6 Johns. 133; by a colonial assembly to proprietors, who had purchased from the Indians, of lands which included an arm of the sea, with all ports, rivers, etc., was held not to be a grant of the soil between high and low-water mark. So, a general authority conferred by the legislature to lay out highways will not authorize the laying out of a highway over navigable waters.2 A conveyance by the State of all its right, title, and interest in and to the bed of a navigable river does not authorize a destruction or exclusive use of the navigation; and if the legislature confers upon a railroad company power to construct its road "along" tide water, this does not authorize the construction of the road below high-water mark. So, a charter to a mill corporation, authorizing it to exclude tide water from flats belonging to the State, and to use them as a basin for the purpose of mill People v. Schermerhorn, 19 Barb. 540. This was an action of debt for a penalty prescribed by the town of Flushing against any person raking clams within its boundaries, and the regulation prescribing the penalty was held to be illegal and void. The court said that the statute by which the bounds of the town were extended over the bay and into the Sound, so as to include the islands southward to the main channel, was merely for the purpose of jurisdiction and no evidence of a grant of property in the soil covered by the water, and that the town must show such right of property in order to entitle it to regulate the use of such lands. It was also said: "All the ground, under the navigable waters of the Hudson River, is within the boundaries of some town, for the purposes of civil and criminal jurisdiction; but it does not follow that the lands under the water belong to the town situated on the river." In Commonwealth v. Roxbury, 9 Gray, 451, 594, Shaw, C. J., said: "Counties are composed of towns. And for many purposes, the body of the county extends not only over the shores of the sea, but to 1 East Haven v. Hemingway, 7 Conn. 186; Middletown v. Sage, 8 Conn. 221; Commonwealth v. Roxbury, 9 Gray, 493, 494. 2 Post, c. 4. Treat v. Lord, 42 Maine, 552. power, does not release the title of the State to the flats.1 State laws providing for the entry and sale of public lands, or for the sale of swamp and overflowed lands, do not extend to the soil beneath navigable waters, and no right to obstruct the navigation passes to the purchaser under such laws. In Attorney General v. Hanmer,3 letters patent of the Crown, as lord of the manor of Englefield, granting "all those coal mines found or to be found within the commons, waste grounds, or marshes within the said lordship of Englefield," with a proviso that the grant should be construed strictly against the Crown, and most strictly and beneficially for the grantees, was held to pass coal lying under the foreshore of the estuary of the River Dee, between high and low-water marks, and forming part of the manor of Englefield. § 37. Individuals may also acquire by prescription, against the Crown or the State, the right to the soil of public waters; 4 and, by the weight of authority, they may gain, in the same way, exclusive rights of fishery in them. When the shores or flats of tide waters have become private property, the 1 Commonwealth v. Roxbury, 9 St. 118. In People v. Morrill, 26 Cal. Gray, 451. 336, land containing asphaltum between high and low-water mark on the Pacific Ocean, was treated as open to location of mining claims under the general law the same as other lands of the State. See, also, More v. Massine, 37 Cal. 432. 2 Chapman v. Hoskins, 2 Md. Ch. 485; People v. Morrill, 26 Cal. 336; Taylor v. Underhill, 40 Cal. 471; Tatum . Sawyer, 2 Hawks (N. C.) 226; Smith . Ingram, 7 Ired. 175; Freytag . Powell, 1 Whart. 536; Barton v. Bouvier, 1 Phila. 523; Brandt v. McKeever, 18 Penn. St. 70; Barclay Railroad Co. v. Ingham, 36 Penn. St. 194; Storer v. Jack, 60 Penn. St. 339; Allegheny City v. Moorehead, 80 Penn. St. 118; Philadelphia v. Scott, 81 Penn. St. 80; Hinman . Warren, 6 Oregon, 408; Norfolk City v. Cooke, 27 Gratt. 430. If the stream of a public navigable river is artificially diverted from its channel, the land reclaimed cannot be appropriated by warrant and survey. Poor v. McClure, 77 Penn. St. 214; Wainwright v. McCullough, 63 Penn. St. 66; Allegheny City v. Moorehead, 80 Penn. 3 27 L. J. Ch. 837. 4 Hale, De Jure Maris, c. 5; Hargrave's Law Tracts, 18; Nichols v. Boston, 98 Mass. 39; Boston v. Richardson, 105 Mass. 41; Kean v. Stetson, 5 Pick. 492, 495; Leffingwell v. Warren, 2 Black, 599; Tracy v. Norwich Railroad Co., 39 Conn. 382; Seeley v. Brush, 5 Conn. 419; Church v. Meeker, 34 Conn. 421; Chapman v. Kimball, 9 Conn. 41; Middleton v. Sage, 8 Conn. 228; Palmer v. Hicks, 6 Johns. 133; 2 Kent Com. 427. In Massachusetts, see Stat. 1867, c. 275. 5 Post, c. 5. |