it would not be reasonable for the traveler to go upon the field and defile the ice; that both uses were lawful, but neither must exclude the other. And he further says: "Both cannot have the possession and use of the same ice for different purposes, although both have a common right to it so long as it remains unappropriated by either. The taker of water from a stream may not interfere with the navigation of it; but the harvester of ice obstructs the public highway at that place, so the one can no more take the whole ice, and destroy the public highway, than the other without legislative authority could divert the stream, and leave its bed dry and unnavigable. Courts may declare the relative rights of persons, but they cannot extinguish them."

In conclusion, the judge says that "the plaintiff's servant had no need to enter upon the defendant's ice-field, and he is chargeable with notice of the dangerous character of the spot; and for his imprudence in so doing, the plaintiff is not entitled to recover."

ICE - RIGHT TO TRAVEL UPON. —The right of the public to pass over the surface of navigable rivers when the latter are covered with ice does not seem to have been the subject of judicial investigation to any great extent, and no case is found where the questions arising in the principal case have been in conflict and before a court for determination. In French v. Camp, 36 Am. Dec. 728, defendant claimed the right to cut a hole in the ice on a roadway for the purpose of watering stock, but the court held that the public have the right to travel on the ice on public rivers, and that any one who cuts a hole in the ice in or near the traveled way is liable for injuries to those passing over such way without fault on their part. And in State v. Wilson, 42 Me. 9, where the defendant erected a wharf on the shore of a navigable river, it was held that the use of the shore as a way of travel was a right possessed by the public which the owner of the shore could not abridge; that when the river was covered by ice the right remained the same, and might be exercised at pleasure. In Massachusetts it is held that ponds containing more than ten acres are public property, and that all who own land adjoining them, or can gain access to them without becoming trespassers, have the right of travel thereon, so long as they do not interfere with their reasonable use by others or the public, except when the legislature has provided otherwise: Inhabitants of West Roxbury v. Stoddard, 7 Cush. 158.

ID. RIGHT OF OWNERSHIP IN: Lorman v. Benson, 77 Am. Dec. 435; Wood v. Fowler, 40 Am. Rep. 330; Village of Brooklyn v. Smith, 44 Id. 90; Brookville etc. Co. v. Butler, 46 Id. 580, containing a discussion of many cases on the subject; People's Ice Co. v. Steamer Excelsior, 38 Id. 246, and note 255–260, treating the topic. The late case of Brastow v. Rockport Ice Co., 77 Me. 100, shows that the Massachusetts rule has been adopted in that state; such rule briefly stated is, that ponds containing ten or more acres are great ponds, and the right to cut ice upon them is a public right, free to all. That in this particular the right of the riparian owner is no greater than that of every other person who can reach the pond without becoming a trespasser upon the lands of others. In support of this rule, see Gage v. Steinkrauss, 131 Mass. 222; Rowell v. Doyle, 131 Id. 474. In those states where navigable rivers are held to be public property, the riparian proprietor has no title to the ice forming in such streams as an incident to his ownership of the bank, but the ice belongs to the first appropriator, such appropriation being affected by marking, surveying, and staking off the ice, and these acts give sufficient possession to support trespass: Wood v. Fowler, supra; Hickey v. Hazard, 3 Mo. App. 480. On the other hand, where navigable fresh-water streams and ponds are not considered public property, but the bed of which belongs to

the riparian proprietor, the ice forming on the stream is his absolute property, and he may maintain trespass against one who cuts or removes it without license: Washington Ice Co. v. Shortall, 101 Ill. 46; Brooklyn v. Smith, 44 Am. Rep. 90; Mill River Mfg. Co. v. Smith, 34 Conn. 462; Edgerton v. Huff, 26 Ind. 36; State v. Pottmeyer, 33 Id. 402. The trespass in taking the ice cannot justified on the ground that the right of navigation required it, or that it sadvantageous thereto: Washington Ice Co. v. Shortall, supra.

AYER V. WESTERN UNION TELEGRAPH COMPANY.

[79 MAINE, 493.[

OMISSION OF MATERIAL WORD IN TRANSMISSION OF TELEGRAPHIC MESSAGE raises a presumption, in the absence of proof to the contrary, that the mistake resulted from the fault of the telegraph company.

STIPULATION IN TELEGRAPH BLANKS that the company shall not be liable for mistakes or delays in transmission, delivery, or non-delivery of unrepeated messages, whether happening by the negligence of its servants or otherwise, beyond the amount received for sending the message, is void as against public policy.

AS BETWEEN SENDER AND INNOCENT RECEIVER OF TELEGRAM, the party who selects the telegraph as means of communication must bear any loss occasioned by errors in transmission on the part of the telegraph company. But the sender can recover his loss from such company.

AS BETWEEN SENDER AND RECEIVER OF TELEGRAM in which an error is made by the telegraph company, the telegram received is the original and best evidence of the contract binding on the sender.

Wilson and Woodward, for the plaintiff.

Baker, Baker, and Cornish, for the defendant.

By Court, EMERY, J. On report. The defendant telegraph company was engaged in the business of transmitting messages by telegraph between Bangor and Philadelphia, and other points. The plaintiff, a lumber dealer in Bangor, delivered to the defendant company in Bangor, to be transmitted to his correspondent in Philadelphia, the following message: "Will sell 800 M laths, delivered at your wharf, two ten net cash. July shipment. Answer quick." The regular tariff rate was prepaid by the plaintiff for such transmission. The message delivered by the defendant company to the Philadelphia correspondent was as follows: "Will sell 800 M laths delivered at your wharf two net cash. July shipment. Answer quick." It will be seen that the important word "ten," in the statement of price, was omitted.

The Philadelphia party immediately returned by telegraph

AM. ST. REP., VOL. I.-23

the following answer: "Accept your telegraphic offer on laths. Cannot increase price spruce." Letters afterward passed between the parties, which disclosed the error in the transmission of the plaintiff's message. About two weeks after the discov ery of the error, the plaintiff shipped the laths, as per the message received by his correspondent, to wit, at two dollars per M. He testified that his correspondent insisted he was entitled to the laths at that price, and they were shipped accordingly.

The defendant telegraph company offered no evidence whatever, and did not undertake to account for or explain the mistake in the transmission of the message. The presumption therefore is, that the mistake resulted from the fault of the telegraph company. We cannot consider the possibility that it may have resulted from causes beyond the control of the company. In the absence of evidence on that point, we must assume that for such an error the company was in fault: Bartlett v. Tel. Co., 62 Me. 221; 16 Am. Rep. 437.

The fault and consequent liability of the defendant company being thus established, the only remaining question is the extent of that liability in this case. The plaintiff claims it extends to the difference between the market price of the laths and the price at which they were shipped. The defendant claims its liability is limited to the amount paid for the transmission of the message. It claims this limitation on two grounds:

son.

1. The company relies upon a stipulation made by it with the plaintiff, as follows: "All messages taken by this company are subject to the following terms: to guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for compariFor this, one half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that the said company shall not be liable for mistakes or delays in the transmission, or delivery, or for nondelivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same." This is the usual stipulation printed on telegraph blanks, and was known to the plaintiff, and was printed at the top of the paper upon which he wrote and signed his message. He did not ask to have the message repeated.

Is such a stipulation in the contract of transmission valid

as a matter of contract assented to by the parties, or is it void as against public policy? We think it is void.

Telegraph companies are quasi public servants. They receive from the public valuable franchises. They owe the public care and diligence. Their business intimately concerns the public. Many and various interests are practically dependent upon it. Nearly all interests may be affected by it. Their negligence in it may often work irreparable mischief to individuals and communities. It is essential for the public good that their duty of using care and diligence be rigidly enforced. They should no more be allowed to effectually stipulate for exemption from this duty than should a carrier of passengers, or any other party engaged in a public business. This rule does not make telegraph companies insurers. It does not make them answer for errors not resulting from their negligence. It only requires the performance of their plain duty. It is no hardship upon them. They engage in the business voluntarily. They have the entire control of their servants and instruments. They invite the public to intrust messages to them for transmission. They may insist on their compensation in advance. Why, then, should they refuse to perform the common duty of care and diligence? Why should they make conditions for such performance? Having taken the message and the pay, why should they not do all things (including the repeating) necessary for correct transmission? Why should they insist on special compensation for using any particular mode or instrumentality as a guard against their own negligence? It seems clear to us that, having undertaken the business, they ought without qualification to do it carefully, or be responsible for their want of care.

It is true, there are numerous cases in other states holding otherwise, but we think the doctrine above stated is the true one, and in harmony with the previous decisions of this court: True v. Tel. Co., 60 Me. 1; 11 Am. Rep. 156; Bartlett v. Tel. Co., 62 Me. 221; 16 Am. Rep. 437.

2. The defendant company also claims that the plaintiff was not, in fact, damaged to a greater extent than the price paid by him for the transmission. It contends that the plaintiff was not bound by the erroneous message delivered by the company to the Philadelphia party, and hence need not have shipped the laths at the lesser price. This raises the question whether the message written by the sender and intrusted to

the telegraph company for transmission, or the message written out and delivered by the company to the receiver at the other end of the line, as and for the message intended to be sent, is the better evidence of the rights of the receiver against the sender.

The question is important, and not easy of solution. It would be hard that the negligence of the telegraph company, or an error in transmission resulting from uncontrollable causes, should impose upon the innocent sender of a message a liability he never authorized nor contemplated. It would be equally hard that the innocent receiver, acting in good faith upon the message as received by him, should, through such error, lose all claim upon the sender. If one, owning merchandise, write a message offering to sell at a certain price, it would seem unjust that the telegraph company could bind him to sell at a less price, by making that error in the transmission. On the other hand, the receiver of the offer may, in good faith, upon the strength of the telegram as received by him, have sold all the merchandise to arrive, perhaps at the same rate. It would seem unjust that he should have no claim for the merchandise. If an agent receive instructions by telegraph from his principal, and in good faith act upon them as expressed in the message delivered him by the com. pany, it would seem he ought to be held justified, though there were an error in the transmission.

It is evident that in case of an error in the transmission of a telegram, either the sender or receiver must often suffer loss. As between the two, upon whom should the loss finally fall? We think the safer and more equitable rule, and the rule the public can most easily adapt itself to, is, that as between sender and receiver, the party who selects the telegraph as the means of communication shall bear the loss caused by the errors of the telegraph. The first proposer can select one of many modes of communication, both for the proposal and the answer. The receiver has no such choice, except as to his answer. If he cannot safely act upon the message he receives through the agency selected by the proposer, business must be seriously hampered and delayed. The use of the telegraph has become so general, and so many transactions are based on the words of the telegram received, any other rule would now be impracticable.

Of course the rule above stated presupposes the innocence