by the erection and continuance of the dam across Saco River at Union Falls." The arbitrators, reciting that they had viewed the premises, awarded that J. Ț. "and other proprietors of the Union Falls Mills" should pay to R. G. a certain sum, and costs. It was held, that here were sufficient indications that the award was between the parties to the bond; that the award was of itself a bar to any farther claim for damages, and operated to secure to the obligors the right to flow the land in future, without payment of damages to the obligee; and that, therefore, it was mutual and final.1

§ 533. A special act of the legislature, relieving mill-owners from a statute obligation to keep a passage open for fish, four months in the year, will not affect their liability to the owners of land, for the increased injury to them by flowing.2

§ 534. By the statutes of flowing of Massachusetts, as they existed in Maine before it was separated from Massachusetts, whether a complainant had been injured or not, was a proper subject for the consideration of the jury. But it is held to be beyond doubt the intention of the legislature of Maine, to require that defence to be first made before the commissioners whose report may be impeached, and this question among others may be regularly presented to a jury for decision. The difference between the statutes before the revision in 1821, and since, is noticed in the case of Cowell v. The Great Falls Manufacturing Company,3 by WESTON, J., who says, "It has been contended

1 Gordon v. Tucker, 6 Greenl. (Me.) R. 247.

2 Hathorne v. Stinson, 3 Fairf. (Me.) R. 183.

3 Cowell v. Great Falls Manuf. Co., 6 Greenl. (Me.) R. 285.

by the counsel for the party claiming an appeal in this case, that the second section of the act of Massachusetts, stat. 1797, ch. 63, and the third section of our statute, for the support and regulation of mills, are substantially the same. Upon comparing them, however, a manifest difference will be found to exist. In the Massachusetts statute it is provided, that if any owner or occupant of any mill shall plead to such complaint, and in his plea shall dispute the statement made by the complainant, or shall deny the complainant's title to the lands, said to be damaged by flowing, &c., after the trial of an issue joined thereon in the Common Pleas, an appeal is given to the Supreme Judicial Court. In the corresponding section in the revised statutes of Maine, the words, and in his plea shall dispute the statement made by the complainant,' are omitted." By the additional act of Massachusetts passed on the 28th of February, 1798, the complainant was required to state that "he sustains damages in his lands by their being flowed in the manner mentioned in said act." And the owner or occupant of the water-mill might, among other matters of defence, "dispute the statement made by the complainant;" and the act of that State passed on the 27th of Febru ary, 1796, did not authorize the jury which assessed the damages, to decide, that the complainant had not suffered any damages. On a revision of these statutes in Maine, in the year 1821, the words "dispute the statement made by the complainant," were omitted in the statement of the defences, which might be made before a jury on the first trial in Court. And there was a provision inserted, "that if said jury (alluding to the jury authorized to view the land and assess the damages) shall find and so return in their verdict

that no damage is done to the complainant by flowing his land as aforesaid, the respondent shall recover his costs." The additional act passed in Maine on the 14th day of February, 1824, c. 261, also provided, that the commissioners appointed to view the land and assess the damages, should determine, whether the complainant had suffered damage, subject to a revision before a jury. The statutes of Massachusetts did authorize the jury in the first instance to determine, whether the complainant had suffered damage; but the statutes in Maine have taken from such a jury that power, and transferred it to the jury or commissioners authorized to assess the damages. Testimony, therefore, tending to prove that the complainant had not suffered damage, must be excluded from the consideration of this jury. The question, whether the complainant has suffered any damages, is to be determined only when the amount of damage is also under consideration.1

1 See opinion of Shepley, J., in Nelson v. Butterfield, 8 Shepl. (Me.) R. 220. In Cowell, &c. ub. sup., it was held, that in a complaint for flowing land under the statute of Maine of 1821, no appeal lies from the judgment of the Court below, unless the respondent, in his plea, either denies the title to the complainant to the lands flowed, or claims the right to flow them without the payment of damages, or for an agreed composition.

CHAPTER XIII.

OF SUCH WATERCOURSES AS ARE SUBJECT TO PUBLIC USE.

1. When a Watercourse is a Public Highway.

2. The Common-Law Distinction between Rivers boatable and navigable, and how far the distinction has been recognized in this Country.

3. Public Right to the Banks of Public Rivers.

4. Obstructions to the Navigation of Public Rivers.

5. Remedies in Cases of Obstruction to Navigation.

1. When a Watercourse is a Public Highway.

§ 535. Ir was mentioned in the beginning of the work, that a watercourse, as subservient to the rules of law, in respect to the right to its use, is to be regarded in two points of view; first, where it is altogether private, as in the case of shallow streams; and secondly, where it is both private and public, that is, where the private property therein is subject to public use.1 All rivers above the flow of tide-water are, by the Common Law, prima facie private; but when they are naturally of sufficient depth for valuable flotage, the public have an easement therein for the purposes of transportation and commercial intercourse; and, in fact, they are public highways by water. Such is the Common Law, as laid down in the excellent treatise of Sir Matthew Hale, which in England has ever commanded profound respect. It certainly has the merit of defining, with much precision, what constitutes a public highway by

water, and of illustrating, with an equal degree of perspicuity, the distinction between such rivers as are exclusively private, and those in which the community may assert an interest. Fresh rivers, of what kind soever, says he, do of common right, belong to the owners of the adjacent soil; but that such rivers, as well as those which ebb and flow, may be under the servitude of the public interest; that is to say, they may be of public use for the carriage of boats. As instances, he mentions the Wye, the Severn, and the Thames, which he says are public rivers, juris publici, as well above as below the flowing of the tide, and as well in the parts where they are of private as of public (as in the case of tide rivers) property; and nuisances and impediments therein are liable to be punished by indictment. They are called public rivers, not in reference to the property of the river, for that is in the individuals who own the land, but in reference only to the public use."

§ 535 a. In Munson v. Hungerford it was held by the Supreme Court of the State of New York, that a stream, in which the tide does not ebb and flow, and which is not navigable for boats or vessels or rafts, and has not been declared a public highway by statute, is not a navigable stream, within the meaning of the authorities, so as to subject it to the use of the public, but is altogether private property.3

1 See Chap. I.

2 Royal Fishery in the River Banne, Davies, R. 152; Carter v. Murcot, 4 Burr. R. 2162; Callis on Sewers, 78.

3 Munson v. Hungerford, 6 Barb. (N. Y.) Sup. Co. R. 265. It is not enough that a stream is capable, (during a period in the aggregate of from two to four weeks in the year, when it is swollen by the spring and autumn