Weise v. Smith.

evidence of its navigability. People v. Canal Appraisers, 33 N. Y. 472.

The case just cited is a very full and thorough exposition of the test of navigability, and it is more than inferable, from the reasoning in that case, and in the numerous American cases there cited, that if a stream is in fact capable, in its natural condition, of being profitably used for any kind of navigation, its use is to that extent subjected to the general rules of law relating to navigation, applicable to the circumstances of the case. The large amount of lumber business done in the State of Maine has undoubtedly led the courts of that State to give great consideration to the particular subject involved in this case, and they hold to the same rules on the subject of the use of small streams that are announced in the case last cited. A stream which, in its natural condition, is capable of being commonly and generally useful for floating boats, rafts or logs, for any useful purpose of agriculture or trade, though it be private property, and not strictly navigable, is subject to the public use as a passageway. Brown v. Chadbourne, 31 Me. 9; 42 id. 558.

"Though the adaptation of the stream to such use may not be continuous at all seasons, and in all its conditions, yet the public right attaches and may be exercised whenever opportunities occur." Id. "When a stream is inherently and in its nature capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts or logs, the public easement exists, notwithstanding it may be necessary for persons floating logs to use its banks." Id. "The Penobscot river, above the tide, is not a navigable stream, technically speaking, although a highway, floatable for boats, rafts or logs, and as such subject to the public use." Veazie v. Dwinell, 50 Me. 479.

"No person has the right to permanently obstruct the channel of such stream by a boom across it, though he may do so temporarily, if necessary for the useful navigation of the stream." Davis v. Winslow, 51 Me. 264.

The court in this case remarks: "What is reasonable use, or due use, depends in every case on the subject-matter to which the case is to be applied, and the circumstances attending the subject-matter at the time." Every person has an undoubted right to use a public highway, whether upon land or water, for all legitimate purposes of trade and transportation, and if in doing so, while in the exercise of ordinary care, he necessarily and unavoidably impede or obstruct another temporarily, he does not thereby become a wrong-doer; his

acts are not illegal, and he creates no nuisance for which an action can be maintained. If we concede the correctness of the reasoning in the above cases, it follows that upon a stream capable of being commonly and generally useful for floating boats, rafts or logs, for any useful purpose," and consequently "subject to the public use as a passage-way," the persons lawfully using it can invoke in their favor all general rules of navigation that are in the nature of things applicable to the particular circumstances and kind of navigation. How far, then, may one who has an undoubted right to navigate the stream, meddle with or touch upon the bank of the stream, which is private property? Whatever he has is founded upon necessity. If he has a right to meddle with the bank, it is only an incidental one. Although the riparian owner has an absolute right to enjoy his land, in all proper ways, the adverse party has an absolute right, as one of the public, to navigate the stream. Neither one can justly deprive the other of his rights. If the riparian proprietor could deny the navigator the right to come to land, in a case where the business of navigating could not be performed without the privilege of landing, he could deny all use of the stream. He would thus overturn all that was contended for and adjudged in the cases above cited. While it is beyond question that the riparian owner is entitled to be protected from any unnecessary intrusion on his premises, it is equally certain that he cannot, solely for the maintenance of an abstract right, or an exclusive possession, deny to the public the right of navigation. He takes his title subject to this right vested in the public.

If there had been no necessity for fastening the boom to the plaintiff's land, the act of fastening it would have been a trespass, for which the plaintiff ought to recover nominal damages, at least; but if the act was necessary, in order to enable the plaintiff to exercise a right of navigation, no cause of action would lie for a bare intrusion which worked no appreciable damages. Whether the necessity existed was a question for the jury.

It was said in argument "the respondent claims the right to obstruct the river as a public right." I think this was stating the respondent's claim too strongly; he claimed the right to attach his boom as a public right, and as necessary in order to use the stream, and it is true that the boom, if kept attached too long, became an obstruction, but he sought to excuse his act of leaving the boom attached a considerable time, upon the plea that an unexpected rise

of water rendered it impossible to detatch it sooner. If he had a right to extend the boom to catch the logs, he, of course, had a right to keep it extended a reasonable time for that purpose. The question, what was a reasonable time for the removal of the boom, was a question of fact, and was properly left to the jury. The record does not disclose that the plaintiff was injured, or that admitting proof that the plaintiff had permitted booms to be placed on his land on previous occasions the court erred in that particular; for aught that appears by the record it may have been properly offered in mitigation of damages.

VOL. VIII. - 79

Judgment should be affirmed.

CASES

IN THE

SUPREME COURT

OF

ILLINOIS.

THE CINCINNATI MUTUAL HEALTH ASSURANCE Co., appellant, v. ROSENTHAL.

(55 Ill. 85.)

Foreign insurance company-power of State to regulate-validity of contracts of.

A foreign insurance company cannot, without first complying with the laws of Illinois enacted for their regulation, make contracts which it may enforce; and where the company fails to file the statement of its condition and the consent of the auditor to transact business within the State, as required by law, the company cannot recover on a note given in such State, for stock and premiums, notwithstanding the law imposes a penalty for doing business in such State in violation of its provisions.

ACTION of assumpsit, brought by appellants, in the recorder's court of Chicago, against appellee, to recover the unpaid balance of a note. The note was given to appellants for stock in the company and for premium, subject to the call of the directors of the company The general issue was filed, also a special plea. The latter plea, in substance, averred that appellants were an assurance company, created under the laws of the State of Ohio, and not under or by the laws of this State, for the purpose of insuring the health of persons against personal injury or disability; that, at the time the note was given, appellants were an insurance company, under the laws of

The Cincinnati Mutual Health Assurance Co. v. Rosenthal.

Ohio, and had come into this State to transact business as such; that in consideration appellee would pay to appellants $150 cash, and would execute to the company a note for $350, due on demand, to be paid subject to the call of the directors of the company, did unlawfully enter into a contract to insure the health of appellee, for the period of five years, in the sum of $25 for each week he might be prostrated by disease during the next five years, whether from disease or by accident, which should prevent him from prosecuting any kind of business, and the company then issued a policy on these terms to appellee. Appellants also agreed to issue to appellee a certificate of stock of its guaranteed capital in the company, to the amount of $500, which was issued and delivered, and was by him accepted, when he paid the money and gave the note sued upon in this case.

It was further averred that, at the time this agreement and transaction were consummated, appellants were a corporation created by the laws of the State of Ohio, and had not, at any time previous thereto, furnished the auditor of this State with the statement of the condition and affairs of the company, under the oath of the president or secretary of the company, showing the facts required by the laws of this State, nor had the auditor issued to the company, or any agent, any authority to transact business in this State, which, it is averred, rendered the note sued upon void and of no binding effect. To this plea, appellants filed a demurrer, which was overruled by the court, and judgment was rendered on the demurrer in favor of appellee, to reverse which the record is brought to this court by appeal, and appellants assign the overruling of the demurrer as

error.

Moore & Caulfield, for appellants.

Rosenthal & Pence, for appellee.

WALKER, J. (after stating facts). This record presents the question, whether foreign insurance companies can, without first complying with the laws of our State, enacted for their regulation, make contracts which they may enforce. The general assembly on the 14th of February, 1855 (Scates' Comp., § 1, p. 596), enacted, that it should not be lawful for any agent or agents of any insurance company incorporated by any other State than this, to directly or