stream; and that he who owns both sides, is the owner of the whole river.1

The common law upon this subject has undergone the same change in the State of South Carolina.2

Sec. III.-Public Right to the Banks of public Rivers.

The Roman jurists seem to have considered that the use of the banks of rivers was public, by the law of nations.3 Riparum quoque usus publicus jure gentium, sicut ipsius fluminis." The same opinion formerly prevailed in England; and Bracton copied into his treatise the section of Justinian, de usu et proprietate riparum, almost literally. There have been some English judges, since the time of Bracton, who have inclined to the same doctrine; but in Ball v. Herbert it was solemnly determined that, by the common law, the public are not allowed to make use of the banks of a river, for towing vessels, &c. On this subject, (besides the case just mentioned) very little is to be found in the books. All that existed before the time of Lord Hale, this eminent writer has collected; and, in his comments, seems to deny any such common law right.

1 Shrunk v. Schuylkill Navigation Co. 14 S. & Rawle, 71.

2 Cates v. Wadlington, 1 M'Cord's Rep. 580. The common law definition of a "navigable" river has also been declared by Hall, J., to be inapplicable to the rivers in North Carolina. Ingraham v. Threadgill, 3 Devereaux's (N. C.) Rep. 59. But in Ohio the definition is applied strictly. Gavit v. Chambers, Wilcox's Con. (Ohio) Rep. 643.

3 See opinion of Richardson, C. J., in Scott v. Wilson, 3 N. H. Rep. 324. 4 Institute of Just. lib. 2, tit. i. sec. 4.

5 1 Ld. Raym. 726; 6 Mod. 163. Ball v. Herbert, 3 T. R. 253.

"When private interests (he observes) are involved, they shall not be infringed, without satisfaction being make to the parties injured.' "If satisfaction then is necessary, (says Lord Kenyon, in the case of Ball v. Herbert,) and this satisfaction is not ascertained, there can be no ground which will support a common law right, and it must thus resolve itself into an agreement between the parties, and cannot be considered as a right to use the banks indefinitely." If, indeed, the law in this respect was different, not only infinite difficulty would arise in ascertaining what shall be a reasonable satisfaction, but all the buildings and conveniencies constructed upon the banks of large rivers would be public nuisances. The Court, however, allowed, in the case last referred to, that the right of using the banks of a river may be acquired by long and constant usage."

Sec. IV. Obstructions to the Navigation of public Rivers.

All obstructions to the free use of such rivers as we have just been considering, are prohibited by law. They are to be referred to that class of injuries denominated "public nuisances," and therefore render the authors of them liable to be proceeded against by indictment. A sense of the importance of preserving the navigation free and unobstructed, seems to have been manifested in England, at an early period, by the

The banks of the river Mississippi may be used so far as may be necessary for exercising the right of navigation. Memphis (Corporation of,) v. Overton, 3 Yerger's (Tenn.) Rep. 390.

laws relating to sewers, which are remarkable for their antiquity.'

That great importance was anciently attached to the uninterrupted use of rivers, appears also by Magna Charta. In that celebrated instrument, it is declared that "omnes kidelli deponantur de cetero penitus per Thamesia met Medwayam et per totam Angliam." The principle of this clause has been considered as discountenancing all obstructions to navigation; although in effect it was held to forbid the continuance of open wears only. And therefore, on an information filed against the defendant, for building locks on the Thames, Lord Chief Justice Holt said, that to hinder the course of a navigable river was against Magna Charta.3

After Magna Charta, the statute of Ed. III. enacted that "all mills, wears, stanks, stakes, and kiddels, which were levied and set in the time of King Edward I., and after, whereby ships and vessels were disturb

1 Callis on Sewers, 25. Thus, in the Register, in oyer and terminer, are two several writs or commissions of this nature; the one authorizing certain persons to survey the defences in a part of the county of Lincoln; the other for viewing and surveying the surrounding grounds between the two rivers of Humber and Auckholm, in the same county. The first of these commissions is set down, verbatim, in Fitzh. N. B. 113. The first statute which appears in print, wherein is the frame of a commission of sewers, is the statute of 6 Henry VI. ch. v. But the commissions contained in the Register, and in Fitzh. N. B. were unquestionably long before that time, though they received additional aid and power from the statute just mentioned. And Sir Edward Coke, in the case of the Isle of Ely, says, (10 Rep. 141) " that the kings of England, before the making of any statute relative to sewers, might grant commissions for the surveying and repairing of walls, banks, and rivers; and that the first statute was in the time of Hen. III. 9, which is in the first volume of the English statutes."

2 Chap. xxiii.

3 Rex v. Clark, 12 Mod, 615.

Chap. iv.

ed, &c., should be cut and pulled down, without being relieved." The next statute in succession is the statute of 45 Ed. III.1 confirming the one just mentioned, and adding, "that if any such annoyance be done, it shall be pulled down; and that he who shall relevy such annoyance, and be thereof duly attainted, he shall incur the penalty of one hundred marks to the King, to be levied by the estreats of the exchequer."

The next statute, in order of time, is the statute 4 Henry IV. ch. xi., which recites, "that by wears, stakes, and kiddels, in the water of the Thames, and in other great rivers through the realm, the common passage of ships and boats be disturbed; and also the young fry of fish be destroyed, &c., therefore this statute enacts, that all former statutes thereof made, be holden, kept, and put in execution."

The statute of 12 Ed. IV. ch. vii. confirms all the before mentioned statutes, and further enacts, "that if, contrary to the award, rule, or judgment of the commissioners, made according to the statute of 1 Henry IV., it be found that any wears, stakes, kiddels, hecks, or flood-gates, be made, levied, enhanced, straitened. or enlarged, against the said statute, and the offenders therein contrary to the aforesaid award, rule, and judgment, being warned by the sheriff or under-sheriff of the county, upon a scire facias to that purpose directed, where those annoyances be, and within three months after such garnishment, do not wholly amend, break down, and avoid the said levying, enhancing, &c., the party being defective in that behalf, shall forfeit one hundred marks, the one moiety to the King,

' Chap. ii.

the other moiety to the party who will sue for the same." And by this statute it was further enacted, "that if any person or persons other than such against whom such award, rule, or judgment was made, or any of them, do presume to occupy or continue any of the wears, fish-garths, or impediments, aforesaid, or other incumbrances, he shall, for every default, for every mouth, forfeit one hundred marks, the one half to the King, and the other half to the party who will sue for the same." Then followed the similar statute of Hen. VIII. and others.

The right of an individual to a fishery in a river, is subject to the right of the public to the use of the river as a highway. As in an action for disturbing plaintiff's fishery, in the river Tweed. It was proved that the defendant's vessel was moored against a rock, on the bank of the river, where she delivered her cargo; and that plaintiff was prevented, by the situation of the vessel, from taking so many fish as he would otherwise have done. It further appeared, that vessels frequently lie there; and that there were mooring-rings upon the rock, to one of which the vessel in question was fastened. Wood, B.-" All persons have a right to come there in ships, and to unload, moor, and stay as long as they please. Nevertheless, if they abuse that right, so as to work a private injury, they are liable to an action. The question will therefore be, whether the defendant has abused his right? The privilege of the plaintiff must be subservient to the right of the public. It would be of very mischievous consequence, if the owner of a fishery could prescribe to the public how and where they are to moor in a navigable river. The only case I remember, like this, is where a man obstinately re