of enjoying this flow without disturbance, interference or natural diminution by any other proprietor is natural and is an incident of property in the land, like the right the proprietor has to enjoy the land itself without molestation from his neighbors. The right of property is in the right to use the flow, and not in the specific water. Each proprietor may make any use of the water flowing over his premises which does not essentially or materially diminish the quantity, corrupt the quality, or detain so as to deprive other proprietors or the public of a fair and reasonable participation in its benefits. Race v. Ward, 30 Eng. L. & Eq. 187; Johnson v. Jordan, 2 Met. 239, 37 Am. Dec. 5; Tyler v. Wilkinson, 4 Mason, 397. This rule does not require that there shall be no diminution, abstraction or detention by the upper or lower riparian proprietor, as that would be to prevent all reasonable use of it. The same principle in regard to use by the riparian proprietors applies as to the public use of the stream. As a highway, it must be reasonable use, and not inconsistent with the reasonable enjoyment of the stream by others who have an equal right to its use. Reasonable use is the touchstone for determining "the rights of the respective parties." Thus in considering this subject, we find the public right of way over the stream, and the land owner's right of soil under it, and his right to use its flow, are the same. The rights of both these parties are necessary for the purposes of commerce, agriculture and manufacture. The products of the forest would be of little value if the riparian proprietors have no right to use the water by dams, and erect mills for the manufacture of these products into lumber. 195; Curtis v. Keesler, 14 Barb. 511; Hubbard v. Bell, 54 Ill. 112; Treat v. Lord, 42 Me. 552; Walker v. Shepardson, 4 Wis. 486; Stuart v. Clark, 2 Swan (Tenn.) 9; Weise v. Smith, 3 Or. 445; Fe'ger v. Robinson, Id. 458; Rhodes v. Otis, 33 Ala. 578; Com. v. Chapin, 5 Pick. 199, 16 Am. Dec. 386. The old English cases do not decide that any stream is navigable or a public highway unless the tide ebbs and flows in such stream, and then when it is thus a tidal stream it is held to be a navigable stream in law, whether in fact it be or be not navigable. But, as we have shown, the civil law held as navigable every stream, whether thus tidal or not, if it was in point of fact navigated by boats and lighters, so that it was in its natural state capable of being used by the public profitably to carry on commerce in the usual manner, and this has been universally held to be law in the United States; and though perhaps it would be difficult to find such decision in England, yet I apprehend it has always been the common law of England, though the occasion to so declare it may not have arisen in any English case. Thus Lord Hale, who is the highest English authority on this subject, in chapter 3 of his treatise De Jure Maris, says: "There be some streams or rivers that are private, not only in property or ownership, but in use, as little streams and rivers that are not of common passage for the King's people. Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters. And these, whether they are fresh or salt, whether they flow or reflow or not, are prima facie publici juris common highways for man or goods, or both, from one inland town to another. Thus the rivers of Wey, of Severn, and of Thames, as well above the bridges and forts as below, as well above the flowings of the sea as below, and as well when they have come to be private property, as in what part they are the King's property, are public rivers juris publici." mode and hinder the public from using them for such floating purposes. The right to use the water of such streams for milling purposes is as necessary as the right of transportation. Indeed, it is this consideration that often imparts the chief value to the estate of the riparian proprietors, and without The third class of public highways, floatable which it would have no value whatever in streams, are not, so far as I know, recognized many instances. Each right is the hand maid in England, and I doubt whether they in point of civilization, and neither can be exercised of fact exist in England. But they are very without in some degree impairing the others. common in the United States, and, as we have This conflict of rights must therefore be recon- seen, while they are the private property of the ciled. The common law in its wonderful adap- riparian owners, yet the public has a right to tation to the vicissitudes of human affairs, and use them as public highways, to float their lumto promote the comfort and convenience of ber and other product of their land to mill or men, as unfolded in the progress of society, market, and the riparian proprietor cannot so furnishes a solution of this difficulty by allow-use these streams as unreasonably to incoming the owner of the soil over which a floatable stream which is not technically navigable, passes, to build a dam across it and erect a We will now apply these principles of law to mill thereon, provided he furnishes a conven- the case under our consideration. The court ient and suitable sluice or passageway for the below did not err in refusing to give the inpublic by or through his erections. In this struction asked for the plaintiff. It was: “If way both these rights may be exercised without the jury find that plaintiff's dam was at the substantial prejudice or inconvenience. These same place and of like character and dimenviews are sustained, not only by reason, but sions and height, for a period of twenty years by the decided weight of American authorities. or more, and further find that Stone Coal See Brown v. Chadbourne, 31 Me. 9, 50 Am. Creek, in which said dam existed, was floataDec. 641: Knox v. Chaloner, 42 Me. 150; Mun-ble for saw logs, and not for other purposes of son v. Hungerford, 6 Barb. 268; Burrows v. Gallup, 32 Conn. 501; Volk v. Eldred, 23 Wis. 410; Moore v. Sanborne, 2 Mich. 523; Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525; Neaderhouser v. State, 28 Ind. 270; Veazie v. Dwinel, 50 Me. 479; People v. Platt, 17 Johns. navigation, still the plaintiff had a prescriptive right to have such dam, and so hold and use the same, notwithstanding said stream is floatable for saw logs, and not for other purposes of navigation" In such floatable stream as is described in this instruction the plaintiff, a riparian proprietor, | taining suitable sluices around or through it for had a right, as we have seen, to build a mill and erect a dam across the stream to accumulate water to run bis mill, and this right belonged to him as a riparian proprietor, and did not depend upon his having acquired it by prescription by the use of such dam and mill for twenty years. It will be observed that Lord Hale, in laying down the rights of the riparian owners and of the public in such streams makes no mention of prescription of length of time by which the rights are obtained either by the public or by the riparian owners; but he speaks of the actual use in fact of the stream as a public highway, as establishing the right of the public to such use, and this, for the obvious reason that such actual use by the public of such stream as a public highway proves that such stream is capable of such use by the public; and it is this, as we have seen, which makes it a public highway, though the public has not before exercised its rights. So we have seen the riparian owner has a right to use the banks of such stream and the flow of water in it for his private property, though he has not heretofore exercised this right, if exercised in such a reasonable manner as not to interfere necessarily in an injurious way with the public right to use such stream as a public highway for floating logs down such stream to market or to mills. There is nothing in this record from which the jury could infer that the defendants used this Stone Coal Creek in an unreasonable manner as a public highway, down which to float logs to markets or mills; on the contrary, the inference might be drawn that the plaintiff or riparian owner did undertake to use the flow of the water in this creek in an unreasonable manner, thereby unnecessarily prejudicing the rights of the defendants, as a portion of the public, to use such stream to float their logs down the same to mills or markets. That their right of so floating their logs was so unnecessarily prejudiced appears from the fact that these logs, so floated, lodged against a dam the plaintiff had built across the stream, and were thus detained till by their pressure they broke the dam down. Such a dam on such a stream was a public nuisance unless the owner had provided suitable sluices to allow logs floated down the creek to pass around or through said dam, and the record does not state that any such sluices were made and kept up by the plaintiff; on the contrary, the fact that the logs by their weight broke the dam would seem to indicate clearly that there were no sluices by which they would have passed through, or they could not have carried away this dam of the plaintiff; for, had there been, these logs would hardly have accumulated in this dam till by their pressure the dam was broken. The erection of such dam across such floatable stream, without making or keeping suitable sluices for the passage around or through such dam of logs floating in the stream, is a nui sance. This was held in Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641, which was a case in which an individual recovered against the riparian owners of land along a floatable stream, not properly speaking navigable, for maintaining a dam across such stream without main the passage of logs. This case would closely resemble the case before us if the defendants had sued the plaintiff for injuring them by unreasonably interfering with their right of floating logs. The law is so well stated by Wills, Judge, in delivering the opinion of the court in this case, that I cannot better express it than by quoting portions of this opinion. He says: "This is an action on the case for erecting and maintaining a dam across a stream called 'Little River' and obstructing the passage of the water and the plaintiffs' logs. The river is about three miles in length, and runs from a lake to tide water. It is from nine feet to four rods in width, and has been used many years for floating logs and rafts, and sometimes boats. In these twenty years dams and mills have been erected upon it. The plaintiffs disclaim the right to recover upon the ground of prescription or use, but claim it because the stream was a public one in its natural state. "The jury were instructed that, it being a fresh-water stream, the presumption is that it is private property, and the burden is on the plaintiffs to establish the contrary by satisfactory proof that it is a navigable or floatable river, and in its natural condition capable of being used for running logs. The rule of the common law, that riparian proprietors own to the center of fresh water rivers, has been adopted in this and many other States. Berry v. Carle, 3 Me. 269; Spring v. Russell, 7 Me. 273. "The first question which arises is, It being conceded that the bed of the river belongs to the owners of the land on either side, can a right to use the waters be obtained unless that use has continued twenty years, the ordinary length of time for the acquisition of an easement? "In Berry v. Carle, 3 Me. 269; Shaw v. Crawford, 10 Johns. 236, and Scott v. Willson, 3 N. H. 321,-the right is considered as dependent on long usage.' He then quotes what is laid down by Lord Hale in his celebrated treatise De Jure Maris, above stated, and makes on it this comment: "He makes no mention of prescription or length of time by which the right is obtained, but of the actual use in fact as indicating public rivers.' In Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525, the doctrine is stated by Paris, Judge, that when a stream is naturally of sufficient size to float boats or mill logs, the public has a right to the free use for that purpose. But such little streams or rivers as are not floatable, that cannot in their natural state be used for the carriage of boats, rafts or other property, are wholly and absolutely private, not subject to the servitude of the public interest, not to be regarded as public highways by water because they are not susceptible of use as a common passage for the public. The same principle was stated by Miller, Ch. J., in Spring v. Russell, 7 Me. 273, and is also recognized in Angell on Tide Waters, 75, and Palmer v. Mulligan, 3 Cai. 307, 2 Am. Dec. 270. The distinguishing test between those rivers which are entirely private property, and those which are private property subject to the pub lic use and enjoyment, consists in the fact whether they are susceptible or not of use as a common passage for the public. Per Spence, Ch. J., in People v. Platt, 17 Johns. 216, 8 Am. Dec. 382; Hooker v. Cummings, 20 Johns. 91, 11 Am. Dec. 249. The right of passage and of transportation upon rivers not strictly navigable belongs to the public by the principles of the common law. Per Parker, Ch. J., in Com. v. Chapin, 5 Pick. 199, 16 Am. Dec. 386. This subject was very fully considered with great ability in Esson v. McMaster, 1 Kerr (N. B.) 501, in the Province of New Brunswick, deciding the rule of law as it is stated to be in Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525. The case of Rove v. Titus, 1 Allen (N. B.) 326, in that Province was decided upon the same principle. See also Adams v. Pease, 2 Conn. 481; Carson v. Blazer, 2 Binn. 475, 4 Am. Dec. 463. A stream could be subjected to public servitude by long use, only there are many large rivers in newly settled States, and some in the interior of this State, of which the public would be deprived of the use, although nature has plainly declared such rivers to be public highways. The true test, therefore, to be applied in such cases, is whether a stream is inherently in its nature capable of being used for the purpose of commerce for the floating of vessels, boats, rafts or logs. When a stream possesses such a character, then the case must exist leaving to the owner of the bed all other modes of use not inconsistent with it. For in this State the rights of public use have been carried so far as to place fresh-water streams on the same ground as those in which the tide ebbs and flows, and which alone are considered strictly navigable at common law, and to exclude the owners of the banks and beds from all property in them. In some States of the Union such a rule has been established by judicial decisions, and in others, by legislative Acts. It is contended that to show that a river is public, it is not enough to prove that logs may be floated down at certain seasons of the year, when it is affected by a freshet, but it should have that capacity in its natural and ordinary state at all seasons of the year. None of the authorities require the stream to possess the quality of being capable of such use during the whole year. A distinguishing criterion consists in its fitness to answer the wants of those whose business requires its use. Its perfect adaptation to such use may not exist at all times, although the right to it may continue and be exercised whenever an opportunity occurs. In many rivers when the tide ebbs and flows, the public are deprived of their use for navigation during the reflux of their waters. A way over which one has a right to pass may be periodically covered with water. In high northern latitudes most fresh-water rivers are frozen over during several months of the year. Even some tide waters are incapable of any beneficial use for purposes of commerce in the season of winter owing to the accumulation of ice. The lapse of time during which a dam has been used across a floatable stream by a riparian owner can give no prescriptive right to such use as against and to the prejudice of the public use, though it might give a right to keep up such dam as against another riparian owner by prescription. If the law was otherwise, in many parts of the United States, and in portions of this State, the public would necessarily lose the use of many floatable streams over which riparian owners have kept up dams for more than twenty years before the public had any occasion to float logs down them, because the banks of the streams remained unsettled and the timber on such streams therefore entirely uncut. The riparian owner of such dam could never acquire by prescription an exclusive right to the use of such stream as if it were a private stream as against the public. It, therefore, this instruction asked by the plaintiff was refused by the court below, it was properly refused if it meant to declare the law to be that the plaintiff had or could acquire the exclusive right to use the water of Stone Coal Creek as if it were a private stream as against the public use of it as a floatable stream, by maintaining a dam across it for twenty years. And if this instruction did not mean this but merely "that the plaintiff had, as riparian owner, the right to maintain and construct a dam to use the water of this stream for his mill, but in such a way as to be consistent with the right of the public to use the water of this stream to float logs to market down it," then this was correct law; but the instruction ought to have been refused if it was believed to have been immaterial and calculated to mislead the jury. We have seen that if, as assumed in this instruction, Stone Coal Creek is a floatable, but not strictly navigable, stream, the plaintiff, as a riparian owner, had a perfect right to erect his mill and to build his dam provided he did not unreasonably obstruct or interfere with the public use of this stream by floating logs down the stream in flood times. This reasonable use of the water of this stream by the plaintiff, and of his dam across the same, would have existed had the plaintiff made and kept in repair suitable sluices in or around said dam, through which logs might pass whilst being floated down this stream. This he did not do, but on the contrary it would seem, from the record, he unnecessarily obstructed the passage of logs floating down this stream. His dam was broken as the result of his illegal and improper obstruction of the logs floating in this stream; and he had therefore no right to recover in this suit. The court below did not err in giving the instructions Nos. 4 and 5, asked for by the defendants. They were as follows: (See bill of exceptions No. 2 as set out in statement of the case.) It will be seen that these instructions are in strict accord with the law as we have stated it above, and of course the court below did not err in refusing to grant a new trial and in entering up the judgment it did for the defendants. We have decided this case and written this opinion as if the respective rights of the public and the riparian owners on and in Stone Coal Creek were governed solely by the common law. It is true there are statutes of Virginia and of this State which may or may not affect this question. If these statutes are applicable to this stream, they put the rights of the public and riparian owners on the same footing as if Stone Coal Creek was a tidal river and strictly and legally navigable. In regarding these statutes as applicable to Stone Coal Creek, we have taken the view most favorable to the plaintiff in error. The record is so imperfect that we do not know whether the statutes have or have not any application to the Stone Coal Creek. These statutes are thus referred to and stated by Minor in his Institutes, vol. 2, p. 20: "At common law the beds of rivers not navigable are always private and belong to the neighbor riparian proprietor each coming ad filum fluminis; or if the same person own both banks, the whole bed belongs to him, subject however in both cases, to whatever use the public may be able to make of a stream for a public highway for boats or rafts." In Virginia the principle is only so far changed as that by statute the banks, shores and beds of all streams are reserved which were granted by the State east of the Blue Ridge after 1780, and west of it after 1802. Whether this law would affect Stone Coal Creek would depend on whether the riparian owners on that stream claim under patents prior or subsequent to 1802. What is the fact on this question this record does not disclose. Mr. W. W. Arnett for plaintiffs in error. Messrs. W. P. Hubbard and I. F. Jones, for defendants in error: An undertaking by the lessor to repair will not be implied, and the lessor is not liable unless he has agreed to repair. Witty v. Matthews, 52 N. Y. 512; Clark v. Babcock, 23 Mich. 164: Estep v. Estep, 23 Ind. 114; Kahn v. Love, 3 Or. 206, and many cases collected in the note to 50 Am. Dec. 779. The lessor is not liable for the damages done by the falling of a wall which becomes out of repair, of which he has notice. Brewster v. De Fremery, 33 Cal. 341. No implied covenant to rebuild or repair damages on the part of the landlord arises at common law from an exception of casualties by fire, tempest or other causes, in the tenant's covenant to repair. Weigall v. Waters, 6 T. R. 488. English, J., delivered the opinion of the court: On the 8th day of May, 1886, Simon Kline and Ralph Kline, partners under the firm name and style of Kline Bros., brought an action of trespass on the case in assumpsit against H. B. and R. B. McLain, laying their damages at $10,000, in the Circuit Court of Ohio County, and filed their declaration at rules held on the first Monday in July, 1886, to which declaration the defendants demurred, and on consid The judgment of the court below must be affirmed; defendants in error must recover of the plaintiff in error their costs in this court expenderation the court below sustained the said deed, and $30 damages. Simon KLINE et al., Plffs. in Err., v. H. B. McLAIN et al. (....W. Va.....) *1. A lessee of a store room cannot recover in an action of assumpsit against his lessor for damages sustained by reason of the failure of said lessor to repair damages to said building caused by unavoidable accident, where there is a written lease between said contracting parties, in the absence of an express covenant that said lessor should make such repairs. 2. Where a written lease of such building provides that the lessee shall keep the same in repair except as to "unavoidable accidents and natural wear and tear," the law will not imply a contract on the part of the lessor to repair damages caused by unavoidable accidents, and a demurrer will be sustained to a declaration setting forth these facts in a special count. 3. The lessee in such an action will be confined to the terms of the written contract declared upon, and cannot recover upon a verbal contract or understanding made or had contemporaneously with said written lease. murrer as to the first two or special counts, and overruled the same as to the other or common counts, and thereupon the plaintiffs obtained leave to amend; and on the 14th day of January, 1887, the plaintiffs tendered for filing an amended declaration, to which the defendants objected, on the ground that the same and each count thereof was insufficient in law, which objection being argued by counsel and considered by the court, was sustained; and afterwards, on the 14th day of February, 1887, the plaintiffs tendered another amended declaration to each count of which the defendants demurred, which demurrer was sustained by the court, and, the plaintiffs electing not to further amend, their action was dismissed, with costs; and afterwards, to wit, on the 7th day of to set aside the judgment entered in this cause October, 1887, the plaintiffs moved the court at that term and for leave to file an amended declaration therein; and on the 8th day of October, 1887, no cause being shown by the plaintiffs in support of their motion to set aside said judgment, the said motion was overruled, and the plaintiffs applied for and obtained a writ of error and supersedeas to said judgment. As there was no bill of exceptions taken in the case, the facts can only be ascertained so far as they appear from the pleadings. From the first count in the last amended declaration filed by plaintiffs it appears that defendants were the owners of a three-story brick building situated in the City of Wheeling, the locality of which is therein described, and that 1882, said defendants leased to plaintiffs the first by an agreement in writing dated October 22, story of said building for the period of one year next ensuing from the 1st of April, 1883, to be used as a store room, which lease by its terms provided that the rental should be $800 per annum, payable quarterly from the 1st day of | stock of merchandise insured notified plaintiffs April, 1883, and that the plaintiffs should keep that said companies would consider the plainthe building in repair, except as to "unavoid- tiffs' longer remaining in said store room as able accidents and natural wear and tear;' just grounds for canceling the policies they held which said exception of "unavoidable acci- on their lives and their stock, of all which the dents" was construed and understood by and defendants had notice; and that, although often between both plaintiffs and defendants at the requested, the defendants refused and neglected time of the execution of the lease and ever to make said repairs. That by reason of said afterwards as imposing upon the defendants the unavoidable accident, and the failure and negobligation in consideration of which they (de-lect of the defendants, to make the repairs made fendants) promised and undertook to keep said building in repair as to and against unavoidable accidents, and the plaintiffs averred that such construction was the true intent and meaning of said clause, as understood and meant by both plaintiffs and defendants in the making and executing the said contract and lease. The plaintiffs, in the second count, aver that said lease, by indorsements made thereon at different times, was extended until the 31st day of March, 1888; that immediately after the execution of said lease they took possession of the room demised to them as aforesaid, and put and placed therein a large stock of ready-made clothing and other goods, wares, and merchandise, and commenced carrying on in and at said room a wholesale and retail and jobbing clothing and other business store and trade, and established and built up a very large and profitable wholesale, retail and jobbing trade and business, which they continued to conduct and carry on until compelled by reason of the negligence, wrong and breach of contract of the defendants, as is thereinafter stated and set forth, to vacate and remove their said store from said room. necessary by the same, they were compelled to remove, and did remove, their stock of goods, wares, and merchandise out of the said store room, and that thereby they sustained great loss, damage, and injury for various reasons therein set forth, and were compelled to abandon, and did abandon, their entire wholesale and jobbing trade. That in consideration of the payment of $800 per annum, and keeping said building in repair, except as to unavoidable accidents and natural wear and tear, the defendants were by the said lease obligated, and it became their duty, and in consideration thereof defendants undertook, to furnish to them the entire and full use and benefit of said room for the purpose for which it was intended and rented, and for the term of the said lease. The plaintiffs, in their declaration, made other averments as to the character and extent of the damages sustained by them by reason of said unavoidable accident and the failure and refusal of the defendants to repair the same, although often requested so to do; and that by reason of the premises the defendants were guilty of a breach of their contract of leasing, and the plaintiffs were compelled to abandon, and did abandon, their wholesale and jobbing trade, to the damage of the plaintiffs $10,000, which the defendants undertook and promised to pay, etc., but which they have failed to do, although often requested, etc., to the damage of the plaintiffs $10,000. The plaintiffs further averred that during the time of their occupancy under the lease aforesaid of said room they not only paid their rent, but kept the said room in repair as they contracted to do, except as to "unavoidable accidents and natural wear and tear," and that the said store room became, by reason of an una- The only question presented for consideravoidable accident uninhabitable and unfit for tion is whether the court erred in sustaining the purposes for which it was rented, and that the demurrer to the plaintiffs' declaration. It the defendants, although frequently notified of appears that there was a contract in writing the fact, and requested to make said store room between the plaintiffs and defendants for the habitable and fit for the purpose for which it rental of said store room for one year, the date was rented, by making the repairs which were of which is set out; and said lease was extended made necessary by the unavoidable accident from year to year by indorsements made thereaforesaid, did at the time aforesaid fail, neglect on; and that on the face of said contract the and refuse to, as by the terms of said lease and plaintiffs agreed to keep said store room in rethe mutual construction thereof they (defend- pair, "except as to unavoidable accidents and ants) promised and undertook to do, repair the natural wear and tear;" and although the plaininjury occasioned by the said unavoidable ac- tiffs aver in their declaration that the defendcident. That the unavoidable accident which ants orally rented to the plaintiffs the said store occurred to the said store room, and which room for the period of - years for the sum rendered the same uninhabitable and unfit for of $800 per annum, and by the terms of said use of any kind, and which, though often re-leasing the defendants promised and undertook quested, the defendants refused to repair, con- to keep the said building in repair against unsisted of the swaying, falling out, and bulging avoidable accidents, the plaintiffs agreeing to out of the two parallel side walls of the brick store room, which was caused by the great weight of the walls and building of the second and third stories immediately upon and above the said store room, which was so great as to make it dangerous, and as to make it necessary to tear down the western wall of said room, and the wall of the rooms above, to the foundation. That the fire wardens of the city condemned the said wall and store room as unsafe, dangerous and uninhabitable, and the insurance companies in which the plaintiffs had their lives and provide for other and ordinary repairs, yet, if said allegation be true, it is not such a contract as could be enforced, for the reason that, being a lease of real estate for more than one year, it would be considered void, because it is not in writing. Neither could it be enforced if the proof should disclose the fact that said oral agreement was contemporaneous with the written agreement. See Towner v. Lucas, 13 Gratt. 705. "Parol evidence will not be received to ingraft'upon or incorporate with a valid written |