2

creeks and coves. (a) The common law, as we have already seen, has been rejected, or deemed inapplicable to the great inland rivers in Pennsylvania, and the owners of the land on the banks of them do not, as of course, acquire right to the soil covered by the waters of the rivers; but the soil and waters of the rivers, with the rights and privileges incident thereto, remain in the public. (b) In South Carolina the doctrine of the common law on this

(a) Storer v. Freeman, 6 Mass. 435; Dane's Abr. vol. ii. 693, 694; Commonwealth v. Roxbury, 9 Gray, 541, and note by the Reporter; Parker C. J., in Ingraham v. Wilkinson, 4 Pick. 258; Sale v. Pratt, 19 Pick. 191. In the case of Thomas v. Hatch, 3 Sumner, 170, in a case in the district of Maine, it was held, that a boundary on a stream, or by or to a stream, includes the flats to low-water mark, and in many cases to the middle thread of the river. But if the boundary be to the bank, or by the bank, or on the bank of a river, the boundary may be limited to the bank. Stone v. City of Augusta, 46 Maine, 127. So, if it be bounded by the margin of the stream. Nickerson v. Crawford, 16 Maine, 245. See Chapman v. Edmands, 3 Allen, 512. See, also, supra, 415. The colonial ordinance of 1641 extended the title of riparian proprietors to the low-water mark, and though originally limited to the Plymouth Colony, and afterwards annulled, yet the doctrine of it is held in Massachusetts and Maine to be part of the common law of those states. Parsons C. J., in Storer v. Freeman, 6 Mass. 438; Lapish v. Bangor Bank, 8 Greenl. 85. In the case of The Commonwealth of Massachusetts v. Wright, (American Jurist, No. 6, 185,) it was decided, in 1829, that a wharf extending into the navigable channel in Boston harbor, so as in the course of time to injure the navigation, was indictable as a public nuisance; and upon conviction, it was ordered to be abated at the expense of the defendants. See Rex v. Lord Grosvenor, 2 Starkie, 511, and Hale, De Portibus Maris, c. 7, sec. 2. Whether the erection in such cases amounts to a common nuisance, is a question of fact. The law of Connecticut declares it to be a common nuisance to dam, stop, or obstruct any river, brook, stream, or run of water, or divert the same from its natural course, to the prejudice of any person, without liberty from the town, where such town has a right to grant it. Revised Statutes of Connecticut, 1821, 362.

3

(b) Carson v. Blazer, 2 Binney, 475; Shrunk v. President of the Schuylkill Navigation Company, 14 Serg. & Rawle, 71; Zimmerman v. The Union Canal Company, 1 Watts & Serg. 351. In Starr v. Child, 20 Wendell, 149, Mr. J. Bronson earnestly contended, that the rule of the common law, that the flow and reflow of the tide was a test of a public river, did not apply to the great fresh-water rivers of New York, and that they belonged to the public; but the majority of the court adhered to and declared the common-law rule. In Alabama, the rule is, that every watercourse, suited to the ordinary purposes of navigation, whether the tide ebbs and flows or not, is a public highway, and the riparian owner cannot assert any private right of soil to the bed of the river beyond the low-water mark. The question in that state does not de pend upon the common-law test of the ebbing and flowing of the tide; for if the river be suited to the ordinary purposes of navigation, it is, by statute, declared to be a public highway, and the title to the bed of the river remains in the public, unless it has been expressly granted. Bullock v. Wilson, 2 Porter, 436. And it is competent to a state government to authorize the erection of a bridge across a navigable river, below

2 See a recent analogous statute in New Jersey. Acts of N. J. p. 335.

3 See Browne v. Scofield, 8 Barb. (N. Y.) 239.

subject has been held to be inapplicable; but as the common law still applies to rivers capable of being made navigable, and which possess obstructions to the passage of boats of every de* 431 scription, and * as the adjoining owners in such cases go ad filum aquæ, (a) the modifications which the common law has undergone do not seem to be very material. So, in North Carolina, the ebbing and flowing of the tide is not the sole test of a navigable river. If a river be deep enough for sea-vessels to navigate to and from the ocean, it is a navigable stream, and the boundary of the adjacent land is not the thread or middle of the channel, but the edge of the water at low-water mark. (b)1

1

The sea-shore, according to Lord Hale's definition, is the ground between the ordinary high and low-water mark, and it prima facie, and of common right, belongs to the king, but may be vested in a subject by prescription, or by grant, as if the king grants a manor cum littore maris eidem adjacente, the shore itself will pass. (c) 2

where the coasting trade is carried on by licensed vessels, provided the bridge be built with a drawbridge, for the passing and repassing of vessels, free of expense. The People v. S. and R. Railroad Company, 15 Wendell. 113.*

(a) Cates v. Wadlington, 1 M'Cord, 580.

(b) Wilson v. Forbes, 2 Dev. 30; Ingraham v. Threadgill, 3 Ibid. 59. In the latter case it was the language of the court, that in a river not navigable for the purposes of navigation, the right of fishing belongs to the riparian owners. In Elder v. Burrus, 6 Humph. 358, the Supreme Court of Tennessee followed the rule in North Carolina, and in opposition to the rule of the English law, held, that the owners of land on a navigable stream above tide-water had title only to ordinary low-water mark, and not to the centre of the stream.

By compact between the states of Virginia and Kentucky, in the years of 1789 and 1792, the jurisdiction of the river Ohio, below high-water mark, was to be common to the people of each state.

(c) Hale, De Jure Maris, c. 4, 5; Constable's case, 3 Co. 105, 107, b. The shore of a fresh river is where the land and water ordinarily meet. 6 Cowen, 547. By the Civil Code of Louisiana, art. 442, the sea-shore is declared to be that space of land over which the sea spreads in the highest water, during the winter season.

4 United States v. New Bedford Bridge, 1 Wood. & Minot, 401. In this case the right of constructing bridges across navigable waters is elaborately examined by Mr. Justice Woodbury. Subject, perhaps, to an exception in the states formed from the N. W. Territory, it was considered that the states have sovereign power over their tide-waters and navigable rivers, in all cases where such power has not been delegated to and exercised by Congress.

1 The criterion of a navigable river seems to be substantially the same in Tennessee. Stuart v. Clark, 2 Swan, 9.

2 In a note to Calmady v. Rowe, 6 Man. G. & Scott, 878, doubt is expressed whether the treatise De Jurie Maris be really the production of Lord Hale. No one else is, however, named as the probable author. As to what are ordinary high tides, the line reached by which is the limit of the shore, see Attorney-General v. Chambers, 27 Eng. L. & Eq. 242.

But it was said by the Ch. J., in Arnold v. Mundy, (d) that a grant bounded upon navigable water, where the tide ebbs and flows, extended to high-water mark when the tide was high, and to low-water mark when the tide was low, and that the immediate space between high-water and low-water mark might be reclaimed, and exclusively appropriated by the owner of the adjacent land, to wharves, buildings, and other erections. (e) 3 There may be a movable freehold, as is stated by Lord Coke; (f) and if a grant was made of the sea-shore, the freehold would shift as the sea receded or encroached, and it would take all the soil that should, from time to time, be within high and low-water mark. (g) But I should apprehend the better opinion to be, that in ordinary grants of land bounded on the sea, or a river, the boundary limit must be stable, either at ordinary high or low water mark, and not subject to alternate change with the flux and reflux of the tide. In Handley's Lessee v. Antony, (h) it was considered as a general, natural, and convenient rule of construction in public grants of territory bounded by a river, instead of being bounded by the bank or * shore, to take the permanent river for the * 432 boundary line, and that would, of course, carry the line to ordinary low-water mark, and include the land left diurnally bare by the receding of the water. The rule was, in that case, applied to a country or state bounded by a river; and the English common law does not allow the riparian owner, under the grant of the sovereign, of lands bounded on tide-waters, to go beyond ordinary high-water mark. (a) Such grants are construed most favorably

(d) 1 Halst. 1.

(e) In Scotland, the owner of land, bounded on the sea-shore, may prevent the encroachments of the sea by artificial operations, and thereby gain by embankments, holding the shore subject to the public uses. Bell's Principles of the Law of Scotland, 169. A similar principle was declared in Connecticut, in Nicholas v. Lewis, 15 Conn. 137, and that the freehold so reclaimed from the sea-shore was in the riparian proprietor, subject to the public right to abate it, if it proves to be a nuisance.

(f) Co. Litt. 48, b.

(g) Bayley J., in Scratton v. Brown, 4 Barn. & Cress. 485. So, also, as to admiralty jurisdiction. See supra, vol. i. 366.

(h) 5 Wheat. 374.

(a) Parsons C. J., in Storer v. Freeman, 6 Mass. 438; Cortelyou v. Van Brundt, 2 Johns. 357. In Kean v. Stetson, 5 Pick. 492, it was considered that the whole of a navigable river included within high-water mark, on each side, was a public highway, and owners of the adjoining lands have no right to erect wharves and other obstruc

3 See this doctrine elaborately discussed in Bell v. Gough, 3 Zabr. 624. See, also, State v. Jersey City, 1 Dutch. (N. J.) 525.

for the king, and against the grantee; and Sir William Scott has vindicated (b) such a construction as founded in wise policy; for grants from the crown are made by a trustee for the public, and no alienation should be presumed that was not clearly and indisputably expressed.

(3.) Of highways.

Every thoroughfare which is used by the public, and is, in the language of the English books, "common to all the king's subjects," is a highway, whether it be a carriage-way, a horse-way, a foot-way, or a navigable river. It is, says Lord Holt, the genus of all public ways. (c) The law with respect to public highways, and to fresh-water rivers is the same, and the analogy perfect, as concerns the right of soil. The presumption is, that the owners of the land on each side go to the centre of the road, and they have the exclusive right to the soil, subject to the right of passage in the public. (d) Being owners of the soil, they have a right to

tions between high and low water mark, if it materially injure or straighten the passage for vessels and boats.1 A grant or prescription to occupy the flats of a navigable river with wharves and other erections, is always upon the implied condition, that they do not essentially impair the public easements in the stream, for then the erection would become a nuisance.2

(b) 5 Rob. Adm. 182. In Hollister v. Union Company, 9 Conn. 436, a grant on a navigable river was not construed so as to impede the reasonable improvements of the navigation, though remote and consequential damages to the banks or shores of the river might ensue.

(c) The Queen v. Saintliff, 6 Mod. 255.

(d) The law is well settled, that where a mere easement is taken for a public highway, the soil and freehold remain in the owner of the land, incumbered only with the easement, or right of passage in the public. Dovaston v. Payne, 2 H. Blacks. 527. And upon the discontinuance of the highway, the soil and freehold revert to the owner of the land. Fairfield v. Williams, 4 Mass. 427; Perley v. Chandler, 6 Ibid. 454; Stackpole v. Healey, 16 Mass. 33; Mayor &c. of Savannah v. Steamboat Company, R. M. Charlton, 342; United States v. Harris, 1 Sumner, 21, 37; Nicholson v. Stockett, 1 Walker (Miss.) 67; In the matter of John and Cherry streets, 19 Wendell, 659, 666; Nelson, J., 12 Wendell, 371, 373. It is a principle of the common law, and equally the law in every state, unless specially controlled. In one of the cases above cited, the owner was held to be restored to the use of the soil, though he had received compen sation for it. Kelly v. Donahoe, 2 Metc. (Ky.) 482.

: When a vessel is sunk by accident, and without any default in the owner, no duty is ordinarily cast upon him to use any precaution, by placing a buoy to prevent other vessels from striking against it. Brown v. Mallett, 5 Man. Gr. & Scott, 599.

2 The People v. Lambier, 5 Denio, 9; Thurman v. Morrison, 14 B. Mon. (Ky.) 367; Mayor &c., of Jersey City v. Morris Canal Co. 1 Beasley, 544.

8 A court, or street closed at one end, is not a highway, capable of dedication to the public as such. Holdane v. Trustees, 23 Barb. (N. Y.) 103.

all ordinary remedies for the freehold. They may maintain an action of ejectment for encroachments upon the road, or an assize if disseised of it, or trespass against any person who digs up the soil of it, or cuts down any trees growing on the side of the road, and left there for shade or ornament. The *433 freehold and profits belong to the owners of the adjoining lands. They may carry water in pipes under the highway, and have every use and remedy that is consistent with the servitude or easement of a way over it, and with police regulations. (a) The

(a) 1 Rol. Abr. 392, B.; 2 Inst. 705; Lade v. Shepherd, Str. 1004; Gibbs C. J., 7 Taunt. 39; Abbott C. J., 2 Starkie, 463; Doe v. Pearsey, 7 Barn. & Cress. 304; Goodtitle v. Alker, 1 Burr. 133, 143; Headlam v. Headley, 1 Holt N. P. 463; Cortelyou v. Van Brundt, 2 Johns. 357; Jackson v. Hathaway, 15 Ibid. 447; Makepeace v. Worden, 1 N. Hamp. 16; Peck v. Smith, 1 Conn. 103; Perley v. Chandler, 6 Mass. 454 ; Robbins v. Borman, 1 Pick. 122; Adams v. Emerson, 6 Pick. 57; Writter v. Harvey, 1 M'Cord, 67; Bolling v. Mayor of P. 3 Rand. 563; Chambers v. Furry, 1 Yeates, 167; Pomeroy v. Mills, 3 Vermont, 279; Gidney v. Earll, 12 Wendell, 98; Mayor &c. of Savannah v. Steamboat Company, R. M. Charlton, 342; People v. Law, 34 Barb. 494. The owner of the land over which a public highway passes, if he digs a raceway across the road, and builds a bridge over it, and a traveller sustains damage by its being out of repair, is liable in damages. Dygert v. Schenck, 23 Wendell, 446.2

1 It has been decided in New York, that it is no violation of the state constitution forbidding private property to be taken without compensation, to authorize cattle, &c., to depasture in public highways, without any compensation to the owner of the fee for the loss of his herbage, &c. Griffin v. Martin, 7 Barb. (N. Y.) 297; Hardenburgh v Lockwood, 25 Barb. (N. Y.) 9. But see Woodruff v. Neale, 28 Conn. 165.

To allow a street to be used as a railway track is not a misapplication, if it does not interfere with the public use. Adams v. Saratoga & W. R. Co. 11 Barb. (N. Y.) 415. This case was, however, reversed in the Court of Appeals upon another point, no opinion being expressed on that to which it is here cited. S. C. 10 N. Y. 328. The law upon this subject in the state of New York cannot now be stated with certainty, further than it is covered by the propositions, that the owners of the fee of a highway are injured by its application to the use of a railway track, and are within the constitutional protection of the clause forbidding the taking of private property for public use without compensation. Williams v. N. Y. Central R. 16 N. Y. 97. And that the authority of the legislature, either directly exercised, or delegated to a municipal body, is sufficient to mould and control the public use as against all persons but the owners of the fee. Brooklyn Central R. v. Brooklyn City R. 33 Barb. (N. Y.) 420; Brooklyn City R. v. Cony Island R. 35 Barb. (N. Y.) 364; People v. Law, 34 Barb. (N. Y). 494. See, also, Mercer v. Pittsburg R. 36 Penn. 99; Brown v. Duplessis, 14 Louis. An. 842. And the right to construct sewers underneath a city street is inherent in the public easement. Kelsey v. King, 32 Barb. (N. Y.) 410; Cone v. Hartford, 28 Conn. 363. But a city corporation may not erect a market in a public street. St. John v. Mayor of New York, 3 Bosw. (N. Y.) 483.

2 A person excavating under a public street is liable for all damages sustained by another who is free from negligence, and that irrespective of the degree of care he may have employed to prevent injury to others. Congreve v. Smith, 18 N. Y. 79, 81.