sumably in the Crown; and, above that point, whether the soil at common law was in the Crown or the owners of the adjacent lands (a point perhaps not free from doubt), there was at least a jurisdiction in the Crown, according to Sir Matthew Hale, ' to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges or boats.' In either case, the right of the subject to pass up and down was complete." § 53. In view of the hesitation manifested in this country, especially in the Western States, to apply the English rule to our navigable fresh-water rivers and lakes, it should be remarked that the doctrine of Lord Hale and the early English decisions appears to be defective in that, according to the theory which they support, the general right of navigation in fresh waters is inconsistent with the private ownership of the soil beneath. Woolrych says: 2 "Waters flowing inland, where the public have been used to exercise a free right of passage from time whereof the memory of man is not to the contrary, or by virtue of legislative enactments, are public navigable rivers. This is the most unfailing test to apply in order to ascertain a common right, others have been attempted, and frequently without success." In England, prescription appears to be the ground upon which the right of navigation in these waters now depends,3 and in early decisions in this country it was held that fresh rivers, though navigable in fact, are not open to the public unless they have been long used for navigation, or have been declared highways by the legislature. This is contrary to Lord Hale, 1 Citing Hale, De Jure Maris, c. 2. 274, Weston, J., said, in speaking of ? Woolrych on Waters, 31. the public right of navigation in the 3 King v. Montague, 4 B. & C. 96; Saco River above the tide: "In the Bristow v. Cormican, 3 App. Cas. 641; case of Dunbar v. Vinal, in the SuOrr Ewing v. Colquhoun, 2 App. Cas. preme Court of Massachusetts in 1801, 839; Murphy v. Ryan, Ir. R. 2 C. L. it was decided that the navigable 143; Hargreaves v. Diddams, L. R. 10 waters of the country were a common Q. B. 582; Coulson & Forbes on privilege for passing upon them, and Waters, 92, 93, 441; Addison on Torts that the plaintiff had no right to in(5th Eng. ed.), 561. tercept it by a dam.' But in the case 4 In Berry v. Carle, 3 Greenl. 269, of Spring v. Chase et al., it was, in who makes no distinction in this respect between tidal and fresh navigable rivers, and says that both are common highways and prima facie publici juris, whether they are fresh or salt, whether they flow and reflow or not. If proof of long-continued exercise of the right to pass over the soil covered by the water were required in newly settled colonies and territories, in which the rivers are often the chief means 1799, decided by the same Court to be otherwise, where the party owns the adjoining land, and no tide ebbs and flows. In that case the plaintiff, being the owner of the adjoining lands, erected a bridge over Saco River, above, but near, the great falls and above the tide waters. The defendants threw down the bridge as a nuisance, for which they were called upon to answer in trespass. The plaintiff had judgment because, in the opinion of the Court, those were not navigable waters where the bridge was built, although the river was there convenient for boats and rafts, and for many miles above. These cases are not reported at large, but are briefly stated in 2 Dane's Abridgment, 696. Notwithstanding the Saco, above the tide waters, may not be open to the public as a highway of common right, yet by long usage as such, it may acquire this character. In the case before us, it is not stated as a fact that the Saco River is, at the place where the injury complained of was done, a public highway. . . . The facts are imperfectly exhibited if the river has, in the place in question, by long usage, the attributes of a public highway, and the ground taken by the counsel for the plaintiffs in error is therefore insufficient to entitle them to a reversal of the judgment." Evidence of long-continued public use was also held to be essential or material in Scott v. Willson, 3 N. H. 321, 325; State v. Gilmanton, 14 N. H. 467, 478; Browne v. Scofield, 8 Barb. 239; Shaw v. Crawford, 10 Johns. 236; Palmer v. Mulligan, 3 Caines, 307, 312. And see McManus v. Carmichael, 3 Iowa, 1, 31. In the case of Brown v. Chadbourne, 31 Maine, 9, 21, the court considered the view expressed in Berry v. Carle erroneous, Wells, J., saying: "If a stream could be subject to public servitude by long use only, many large rivers in newly settled States, and some in the interior of this State, would be altogether under the control and dominion of the owners of their beds, and the community would be deprived of the use of those rivers, which nature has plainly declared to be public highways. The true test, therefore, to be applied in such cases, is, whether 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. When a stream possesses such a character, then the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it." See, also, Carter v. Thurston, 58 N. H. 104, 106; 54 N. H. 545, 549, overruling the dicta in Scott v. Willson, above cited; Tyrrell v. Lockhart, 3 Blackf. 136; Brubaker v. Paul, 7 Dana, 428; State v. Thompson, 2 Strob. (S. C.) 12; Hubbard v. Bell, 54 Ill. 110; Ellis v. Carey, 30 Ala. 725, Rhodes v. Otis, 33 Ala. 578; Peters v. New Orleans Railroad Co., 56 Ala. 528. Hale, De Jure Maris, c. 1, 2, 3; Hargrave's Law Tracts, 6, 8, 9; Williams v. Wilcox, 8 Ad. & El. 314, 333, referred to ante, § 52. of transportation and travel, and the riparian owners were permitted, in the absence of such evidence, to obstruct large rivers by dams, bridges, or booms, or to demand compensation from navigators, it would amount to a serious grievance. § 54. Nature is competent, it has been said, to make a navigable river without the aid of the legislature; and it is now fully established in this country, overruling the earlier decisions, that the public have a right of passage over all fresh-water streams which are by nature susceptible of general use, and that those rivers are public and navigable in law which are navigable in fact. This right of navigation is distinct from the public right of fishery, which may or may not exist in the same waters.3 2 § 55. In theory, it would seem that prescription, as suggested by Woolrych, is the only ground upon which the right of navigation can be reconciled with the private ownership of the soil. The public right is said to be an easement to which the title of the adjoining owners is subjected, as in the case of a highway on the land, but the analogy is imperfect. 1 Martin v. Bliss, 5 Blackf. 35. Hale, De Jure Maris, c. 2, 3; Williams v. Wilcox, 8 Ad. & El. 314, 333; Barney v. Keokuk, 94 U. S. 342; Pound v. Turck, 95 U. S. 459; The Daniel Ball, 10 Wall. 557; The Montello, 20 Wall. 430, 442; Carter r. Thurston, 58 N. H. 104, 106; Thompson v. Androscoggin Co., 54 N. H. 545; 58 N. H. 108; Brown . Chadbourne, 31 Maine, 9; Moor r. Veazie, 32 Maine, 343; Spring r. Russell, 7 Greenl. 273, 290; Wadsworth r. Smith, 11 Maine, 278; Adams r. Pease, 2 Conn. 481; Ingraham v. Wilkinson, 4 Pick. 268; Commonwealth v. Chapin, 5 Pick. 199, 202; Avery r. Fox, 1 Abb. U. S. 246; Palmer. Mulligan, 3 Caines, 307; People r. Platt, 17 Johns. 195, 211; Hooker r. Cummings, 20 Johns. 90; Canal Commissioners v. People, 5 Wend. 423; Morgan v. King, 35 N. Y. 454; 30 Barb. 9; 18 Barb. 277; Munson v. Hungerford, 6 Barb. 265; Rowe v. Titus, 1 Allen (N. B.), 326; Esson v. McMaster, 1 Kerr (N. B.), 501; Boissonnault . Oliv, Stuart (Low. Can.), 565; Moore v. Sanborne, 2 Mich. 519; Lorman v. Benson, 8 Mich. 18; Rhodes v. Otis, 33 Ala. 578, 596; Cox v. State, 3 Blackf. 193; Weise v. Smith, 3 Oreg. 445, 448; Healy v. Joliet Railroad Co., 2 Ill. App. 435; People v. St. Louis, 5 Gilman, 351; Godfrey v. Alton, 12 Ill. 29; Memphis v. Overton, 3 Yerger, 389; Elder v. Burrus, 6 Humph. 358; Stuart v. Clark, 2 Swan, 15; Sigler v. State, 7 Baxter, 493; Yates v. Judd, 18 Wis. 118; Hickok v. Hine, 23 Ohio St. 523; Selman v. Wolfe, 27 Texas, 68. 3 See Leconfield v. Lonsdale, L. R. 6 C. P. 665; People v. Platt, 17 Johns. 195, 211. 4 Orr Ewing v. Colquhoun, 2 App. Cas. 839; Ingraham . Wilkinson, 4 Pick. 268; Commonwealth v. Chapin, 5 In the case of Ball v. Herbert,1 Buller, J., said: "Callis compares a navigable river to a highway, but no two cases can be more distinct. In the latter case, if the way be founderous and out of repair, the public have a right to go on the adjoining land; but, if a river should happen to be choaked up with mud, that would not give the public a right to cut another passage through the adjoining lands." A road or highway by land is limited in locality, being confined within specific lines and not extending over tracts of land generally; and the public right to use it arises by statute, or by dedication, prescription, contract, or by survey and plat. If by statute, compensation must be made; in other cases the consent of the owner is required. But, as the right of navigation extends to all waters which have a natural capacity for such use, there is a general presumption of an easement, and the owners of the adjoining lands can neither prevent its acquisition or exercise, or obtain compensation for such appropriation of private property to the public use. The anomalous nature of this doctrine is further illustrated Pick. 199; Hooker v. Cummings, 20 Johns. 90; Varick v. Smith, 9 Paige, 137, 143; Morgan v. King, 35 N. Y. 454; Chenango Bridge Co. v. Paige, 23 Alb. L. Jour. 15; Young v. Harrison, 6 Ga. 130, 141; McCullough v. Wall, 4 Rich. (S. C.) 68; Ensminger v. The People, 47 Ill. 384; Braxton v. Bressler, 64 Ill. 488; The Magnolia v. Marshall, 39 Miss. 109; Morgan v. Reading, 3 S. & M. 366. 1 Ball v. Herbert, 3 T. R. 253, 263; Williams v. Wilcox, 8 Ad. El. 314. 2 See, e. g., Gentleman v. Soule, 32 Ill. 271; Plimpton v. Converse, 44 Vt. 158; Hart v. Connor, 25 Conn. 331; Jones v. Percival, 5 Pick. 485; Holmes v. Seely, 19 Wend. 507; Brice v. Randall, 7 Gill & J. 349. 3 See, e. g., as illustrating the text as to highways, State v. Kansas City Railway Co., 45 Iowa, 139; State v. Welpton, 34 Iowa, 144; State v. Tucker, 36 Iowa, 485; Detroit v. Detroit Railway Co., 23 Mich. 173; Cemetery Association v. Meninger, 14 Kansas, 312; Oliphant v. Atchison Co., 18 Kansas, 386; State v. O'Laughlin, 19 Kansas, 504; Belleville v. Stookey, 33 Ill. 441; Grube v. Nichols, 36 Ill. 92; Smith v. Flora, 64 Ill. 93; Plimpton v. Converse, 44 Vt. 158; Johnson v. Stayton, 5 Harr. (Del.) 448; Melvin v. Whiting, 13 Pick. 184. 4 There appears to be no analogy for a general presumption of an easement. Mr. Phear says there cannot be such a presumption. Phear's Rights of Water, 15, note. 5 An easement cannot be supported on the ground of long user, unless it was capable of prevention, or actionable at some time by the owner of the servient tenement. Sturges v. Bridgman, 11 Ch. D. 852; Gilmore v. Driscoll, 122 Mass. 199, 207; Mitchell v. Mayor, 49 Ga. 19; Webb v. Bird, 13 C. B. N. s. 841; Chasemore v. Richards, 7 H. L. Cas. 349. by a decision in Michigan, in which it was held that the right of navigation in a private fresh river, though nominally an easement, is not, like other easements, an incorporeal hereditament or real estate; and that an action for obstructing this right, though local at common law, was not so under a statute which made actions on the case, for injuries to real estate, local, and other actions transitory.1 § 56. In this country the doctrine of private ownership has been generally recognized as the rule of the common law; but it has been held to be inapplicable to the condition of many of those States in which the inland rivers are large.2 It is in force in all the New England States, where the fresh rivers are comparatively unimportant, although in Rhode Island it does not appear to have been directly passed upon.1 458. 'Barnard v. Hinckley, 10 Mich. 28 Vt. 257, 262. In Maine, Berry v. Post, §§ 64, 75. 3 In Connecticut, Adams v. Pease, 2 Conn. 481; Bissell v. Southworth, 1 Root, 269; Warner v. Southworth, 6 Conn. 471, 474; Chapman v. Kimball, 9 Conn. 38, 41; Enfield Bridge Co. v. Hartford Railroad Co., 17 Conn. 40, 63; Mill River Woollen Manuf. Co. v. Smith, 34 Conn. 463. In New Hampshire, Scott r. Willson, 3 N. H. 321; Rix v. Johnson, 5 N. H. 520; State v. Gilmanton, 9 N. H. 461; 14 N. H. 467; Greenleaf v. Kilton, 11 N. H. 530; State v. Canterbury, 28 N. H. 195; Boscawen v. Canterbury, 23 N. H. 189; Nichols v. Suncook Manuf. Co., 34 N. H. 345; Kimball v. Schoff, 40 N. H. 190; Clement v. Burns, 43 N. H. 609; Norway Plains Co. v. Bradley, 52 N. H. 86. (In Nichols v. Suncook Manuf. Co. 34 N. H. 345, it was held that adverse possession of land bordering upon a river not navigable, gives title to the thread of the stream.) Claremont v. Carlton, 2 N. H. 369; Thompson v. Androscoggin Co., 54 N. H. 548; 58 Id. 108; Carter v. Thurston, 58 N. H. 104; State v. Canterbury, 28 N. H. 195. In Vermont, Fletcher v. Phelps, Carle, 3 Maine, 269; Morrison v. Keen, 3 Maine, 474; Lincoln v. Wilder, 29 Maine, 169; Spring v. Russell, 7 Maine, 273, 290; Spring v. Seavey, 8 Maine, 138; Wadsworth v. Smith, 11 Maine, 278; Bradley v. Rice, 13 Maine, 198, 201; Nickerson v. Crawford, 16 Maine, 245; Brown v. Chadbourne, 31 Maine, 9; Knox v. Chaloner, 42 Maine, 150; Moor v. Veazie, 32 Maine, 343; 31 Maine, 360; 14 How. 100; Bradford v. Cressey, 45 Maine, 9; Strout v. Millbridge Co., 45 Maine, 76; Veazie v. Dwinell, 50 Maine, 479, 484; Granger v. Avery, 64 Maine, 292; Holden v. Robinson Manuf. Co., 65 Maine, 215; Pejepscot Proprietors v. Cushman, 2 Maine, 94. For the Massachusetts cases, see the next note. See Hughes v. Providence Railroad Co., 2 R. I. 508, 512; Olney v. Fenner, Id. 211, 214. See opinion of Story, J., in Tyler v. Wilkinson, 4 Mason, 397, which related to the Pawtucket River. Storer v. Freeman, 6 Mass. 435, 438; Hatch v. Dwight, 17 Mass. 289, 298; Ingraham v. Wilkinson, 4 Pick. 268; Commonwealth v. Chapin, 5 Pick. 199; Waterman v. |
