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streams, and is an inconvenient rule for the determination of rights in large lakes, yet the public have no greater privileges in them than in fresh-water rivers. The public right of navigation in them doubtless depends upon prescription and proof of long-continued user.2
$ 82. In this country the question has received greater attention than in England. In the case of Canal Commissioners v. People,: decided in the Court of Errors in New York in 1830, Chancellor Walworth, while holding that the common-law rule was applicable to the navigable fresh rivers of the State, said: “ The principle itself does not appear to be sufficiently broad to embrace our large fresh-water lakes, or inland seas, which are wholly unprovided for by the common law of England. As to these there is neither flow of the tide, or thread of the stream, and our own local law appears to have assigned the shores down to the ordinary lowwater mark to the riparian owners, and the beds of the lakes with the islands therein to the public.” The common-law rule as to fresh streams has been held in that State, and also in Vermont,5 to be inapplicable to Lake Champlain. In the case of Champlain and St. Lawrence Railroad Co. v. Valentine,6 in New York, the boundary line of lands bordering upon the lake was thus defined: “Lake Champlain has no flux and reflux of the tide; but, like most other similar bodies of fresh water in this country, it is high and full in the spring when replenished by rains and melting snows; and, as the season advances, becomes low by the evaporation and efflux
? Bristow v. Cormican, ante, $ 79. 616, 621; 3 Kent Com. 429, note (a),
? See Marshall v. Ulleswater Steam 430; Kingman v. Sparrow, 12 Barb. Navigation Co., L. R. 7 Q. B. 166; 301; Ledyard v. Ten Eyck, 36 Barb. Bloomfield v. Johnston, Ir. R. 8 C. L. 102. 68; Bristow v. Cormican, 3 App. Champlain Railroad Co. v. ValenCas. 641 ; Ir. R. 10 C. L. 398, 412; tine, 19 Barb. 484. See Trustees v. Marshall v. Ulleswater Steam Navi- Dennett, 9 N. Y. Sup. Ct. 669. gation Co., 3 B. & S. 732 ; Reg. v. 5 Fletcher v. Phelps, 28 Vt. 257; Barrow, 34 Justice of the Peace, Jakeway v. Barrett, 38 Vt. 316, 323; 53; Mackenzie v. Bankes, 3 App. Austin v. Rutland Railroad Co., 45 Cas. 1324.
Vt. 215. 35 Wend. 423, 446; Canal Ap- 619 Barb. 484, 492. praisers v. People, 17 Wend. 571, 597,
of its waters. The annual rise and fall, as proved in this case, must be several feet, probably five or six; and the diminution is gradual. A great deal of land, valuable for agricultural purposes, is necessarily overflowed in the spring, which of course can be of no use to the public for the purposes of navigation after the waters recede. The land upon its shores or borders which is inundated in the spring, unlike that which is diurnally (or semi-diurnally) overflowed by the tide, gradually becomes dry, and so remains for the season. Its condition, perhaps, bears some resemblance to that which Lord Hale says is overflowed by high spring-tides, and which, he says, belongs, in England, to the subject and not to the king. It seems to me that, upon principle and sound reason, the proprietors on the borders of Lake Champlain must be deemed the owners to low-water mark, unless otherwise limited by the terms of their grants.”1 Lands in Vermont bounded on Lake Champlain, and upon the streams which empty into that lake, and ordinarily maintain the same level as its waters, also extend to the edge of the water at lowwater mark.2 :
$ 82a. The distinction between public and private lakes depends upon the size and navigability of the particular lake, and its relation to other waters which flow into it or with which it is connected. Lake Winnipiseogee, which is of irregular shape, being about twenty-five miles in length, and varying in width from one to ten miles, and is considerably used for purposes of navigation, is held in New Hampshire to be public property, both with respect to its bed and the right of fishing in its waters. So it has been expressly held in Ohio that the common-law rule as to fresh streams is wholly inapplicable to Lake Erie and the bays which form a part of it, and that the right of fishing in them is as much a
As to boundaries upon lakes and 3 State v. Franklin Falls Co., 49 ponds, see post, $ 203.
N. H. 240, 250. ? Fletcher v. Phelps, 28 Vt. 257; 4 State v. Gilmanton, 9 N. H. 461; Jakeway v. Barrett, 38 Vt. 316, 323; S. c. 14 N. H. 467 ; State v. Franklin Austin v. Rutland Railroad Co., 45 Falls Co., 49 N. H. 240, 250. Vt. 215.
common right as in tide waters. In Rice v. Ruddiman,2 the Supreme Court of Michigan passed upon the title to the soil of Lake Muskegon, which was shown to be about six miles long, with an average width of two and one-half miles, and to be separated from Lake Michigan by an outlet about sixty rods long. The fact that the level of Lake Muskegon was affected by the rise and fall of the waters of Lake Michigan was held not to make the former lake necessarily a part of the latter, rather than a mere widening of Muskegon River which flowed into it; and the common-law rule as to fresh streams was held so far applicable to this lake as to entitle the riparian owner to such parts of its bed as were near the shore and capable of beneficial private use, subject, however, to the common right of navigation.3
$ 83. A lake which is not really useful for navigation, although of considerable size compared with ordinary freshwater streams, may be private property. Thus, in New York, it has been held that an inland lake, five miles long and three-quarters of a mile wide, which has no important inlet, and does not form a part of a chain of connecting waters, is subject to the common-law rule as to fresh-water streams. In New Jersey, where there are no large inland
Sloan v. Biemiller, 34 Ohio St. to all small lakes within the State; 492. See, also, La Plaisance Bay but not so to Lake Michigan. It is Harbor Co. v. Monroe, Walk. Ch. also true that some of the opinions 156, 168 ; Bay City Gas-Light Co. v. speak, and we cannot help thinking Industrial Works, 28 Mich. 182, 185; somewhat loosely, of some measure Verplank v. Hall, 27 Mich. 79.
of riparian right of use, 'not ex• 10 Mich. 125.
clusively or unrestricted,' of the bed 3 In Diedrich 0. North-western of navigable waters under the shallow Railway Co., 42 Wis. 248, 271, the water by the shore.” In Vermont it court say of this case : “ The same seems that the creeks and inlets which ground of the rule in Rice v. Ruddi- empty into Lake Champlain, so far as man, 10 Mich. 125, that the riparian they are of the same level as the lake owner takes usque ad medium filum and ordinarily rise and fall with it, aquae upon Muskegon Lake, is that the are public like the lake. Fletcher v. lake is only a widening of the river. Phelps, 28 Vt. 257, 262; Jakeway v. With the same view of the lake, we Barrett, 38 Vt. 316, 323. should hold the same view of the law. Ledyard v. Ten Eyck, 36 Barb. It is true that some of the opinions 102. In New York, by statute, the speak of extending the same rule of State's title to its navigable waters is ownership usque ad medium filum aquae a trust for the owners of the upland
lakes extensively used for commerce, it is held that the test by which to determine whether waters are public or private, is the ebb and flow of the tide, and that the decisions in other States, by which the great lakes and navigable rivers were held to be public, otherwise than for purposes of navigation, are alike a departure from the common law. It has accordingly been held in that State that a fresh-water pond or lake, which was three miles long and one mile wide, and of sufficient depth to float large vessels, but which had no navigable outlet, and had never been navigated by vessels larger than fishing craft thirty feet long, was private property with respect to its soil and fishings.
$ 84. In Massachusetts the colony ordinance of 1641 provided in substanoe that great ponds containing more than ten acres of land, and lying in common, though within the bounds of a town, should be free for fishing and fowling ; and that for this purpose the public might pass on foot over any man's property, provided they do not trespass on corn or meadow lands. The ordinance of 1641, as amended by that of 1647, prohibited the towns from granting away great ponds, but affirmed their power to regulate the fisheries both in them and in tide waters, and that of the legislature to dispose of great ponds and of tidal bays, coves, and rivers, or of the common rights of fishing and fowling in them. This is the foundation of the law of that State upon the subject,
as well as for the public; and the dard, 7 Allen, 158; Commonwealth State can only convey the soil under v. Vincent, 108 Mass. 441, 445, 446; such waters, whether they are lakes Paine v. Woods, Ibid. 160, 169; Comor tide waters, to the owner of the monwealth v. Tiffany, 119 Mass. 300, adjoining land. Ibid.
303; Hittinger v. Eames, 121 Mass. Cobb v. Davenport, 32 N. J. L. 539; Tudor v. Cambridge Water 369, 380.
Works, 1 Allen, 164. 3 Ibid. p. 377. In Pennsylvania a 5 Commonwealth v. Vincent, 108 pond is not a "private pond” which Mass. 441, 446; Fay y. Salem Aquecovers the soil of a person who stocks duct Co., 111 Mass. 27; Berry v. Radit with fish, and also the soil of others. din, 11 Allen, 577; Tudor v. CamIt is an entirety, and the whole or bridge Water Works, 1 Allen, 164; none is private. Reynolds v. Com- Commonwealth v. Weatherhead, 110 monwealth, 93 Penn. St. 458.
Mass. 177 ; Commonwealth v. Tiffany, • Commonwealth v. Alger, 7 Cush. 119 Mass. 300. 53, 67, 68; West Roxbury r. Stod- 6 Ibid.
by which ponds of sufficient size, which were not granted away before the year 1647, are public property like tide waters, both with respect to the soil under them, and the right of reasonable use for all lawful purposes, including fishing, fowling, boating, skating, bathing, the taking of ice for use or for sale, or of the water for domestic or agricultural purposes, or for use in the arts. The owners of lands bordering upon great ponds have no peculiar right in them, except by grant from the legislature or by prescription,3 and the only restriction upon their enjoyment by all persons is that they shall not interfere with the reasonable use of the ponds by others, or with the public right in cases where the legislature has made no special provision.
§ 85. In the Western States it is held that the owners of lands bordering upon unnavigable lakes situated within the congressional surveys, own the bed of the lake to its centre,5 as in the case of unnavigable streams.6 In Wisconsin, however, although a riparian owner upon a river or stream takes prima facie to its thread, yet the owner of land which borders upon a natural lake, whether navigable or unnavigable, is entitled only to the accretions which are added to his land and to the soil which may be left by the recession of the water, and has no title to the soil which remains submerged.? Such owner takes, however,
1 Paine v. Woods, 108 Mass. 160, 3 Ibid.; Hittinger v. Eames, 121 169. The term “ great pond," as used Mass. 539, 546. in the Massachusetts ordinances and West Roxbury v. Stoddard, 7 Althe statute of 1869, c. 384, means a pond len, 158. of a certain area created by the natu- • Ridgway v. Ludlow, 58 Ind. 248; ral formation of the land at a particu- Edwards v. Ogle, 76 Ind. 302; Forlar place. Commonwealth v. Tiffany, syth v. Smale, 7 Biss. 201. In the 119 Mass. 300, 303. Under the stat above case of Ridgway v. Ludlow, it ute of 1869 the public have no right was also held that a title, by adverse of fishing in a pond which is not more possession, to land bordering upon an than twenty acres in extent. Ibid. unnavigable lake, gives title to the
? West Roxbury v. Stoddard, 7 Al centre of the lake. len, 158; Cummings v. Barrett, 10 6 Ante, $ 78. Cush. 186, 188; Fay v. Salem Aque ? Delaphine v. Chicago Railway duct Co., 111 Mass. 27; Hittinger v. Co., 42 Wis. 214; Boorman v. SunEames, 121 Mass. 539; Gage v. Stein- nuchs, 42 Wis. 233; Diedrich v. Northkraus, 131 Mass. 222.
western Railway Co., 42 Wis. 248;