But in such cases, the timber is not lost to its owners, who have a right by our law to enter upon the uplands and remove it. This subject has been regulated by Statute, c. 67, § 11, by which the owners of timber may enter upon the land and remove it, within a certain time, by tendering to the owner or occupier of the land a reasonable compensation for his damages. The banks of the stream may therefore be used for driving logs.

No request was made to instruct the jury, that if the stream was incapable of being used, without travelling upon its banks to propel the logs, there could be no public servitude in it.

The instruction given to the jury was, "that if it was necessary to go on the banks more or less, for the purpose of driving logs in Little River, that fact would not take from the stream its public character, if they found it capable, in other respects, of being used as a public stream." It belonged to the jury to determine whether the river possessed those requisites, which would give it the character of a public stream, and if they found it to be so, it could not be deprived of that character by the acts of those who might use it. In narrow places, it might at times be blocked up, or it might, as has been stated, overflow. The necessity of going upon the banks in such instances to effect a floating of the logs, would not prevent the river from being public. The inquiry related to the capacity of the river, and that could not be altogether decided, by what those using it might find necessary at times to do. Some might find it absolutely necessary, in their mode of driving logs, to commit trespasses on the adjoining lands, but their unlawful acts could not affect the stream, if it was really and intrinsically capable of public use.

If the plaintiff and others were in the habit of going upon the banks of Little River to drive their logs, it does not appear but that they might have confined themselves to its waters, though it might be more inconvenient for them so to have done. Their want of care in the use of the river, creating a necessity to commit trespasses, to relieve their property, would not prevent it from being public, nor justify the defendant in obstructing it. They would be responsible in damages for any trespasses committed.

The public are not entitled to tow on the banks of ancient navigable rivers, at common law. Ball v. Herbert, 3 T. R. 253. And where a river cannot be used without towing, or going upon its banks to propel what is floating, such fact would evince its want of capacity, in itself, for public use.

Sometimes the flow of rivers is broken by cataracts and falls, while in most of their course there is a smooth current, and they are of great utility in the transportation of property. Where such obstructions exist to so great extent, as to require the use of the shores, to carry property by them, though in those places they might not have a public character, yet for many miles above and below them they might be capable of a beneficial use for trade and commerce, and thereby be pub

lic. These obstructions may occur at long or short intervals, leaving other portions of the streams clearly public.

It is further contended by the defendant, that if the dam was an unlawful obstruction, the plaintiff had no right to run his logs through the defendant's sluice, built on his land, and recover damages for repairing it, although such course would be less detrimental than the destruction of the dam, but that he should have cut away the defendant's dam.

If a man has a right of way over another's land, unless the owner of the land is bound by prescription or his own grant to repair the way, he cannot justify going over the adjoining land, when the way is impassable by the overflowing of a river, but if public highways are out of repair or impassable, as by a flood, there is a temporary right of way over the adjoining land. 2 Black. Com. 36; 3 Kent's Com. 424.

Those obstructions, which prevent a passage, while they remain, are insurmountable.

It is said by Buller, J., in Ball v. Herbert, "that if a river should happen to be choked up by mud, that would not give the public a right to cut another passage through the adjoining lands." The right of way is in the waters, and the defendant had no authority to prevent its exercise. He could, by law, erect and continue his dam and mills, but was bound to provide a way of passage for the plaintiff's logs. He obstructed the river improperly by his dam and logs. The plaintiff must either have left his property and lost its whole value, carried it by the dam, repaired the sluice and run the logs through it, or have removed such portion of the dam as would have afforded a passage. He adopted that course, which was least injurious to the defendant.

The plaintiff would have had the right to enter upon the defendant's land to remove the obstruction. Colburn v. Richards, 13 Mass. 420; Inhabitants of Arundel v. McCulloch, 10 Mass. 70.

The plaintiff might not be bound to repair the sluice, but having done so to obviate the difficulty created by the defendant, there does not appear to be any reason why he should be held to have taken that course, which would have produced a greater injury to the defendant. Miller v. Mariner's Church, 7 Greenl. 51.

The argument, that damages cannot be recovered for removing the logs, because the dam is alleged in the declaration to have caused the obstruction, cannot prevail, even if such construction should be given to it. For the dam stopped the water and retained the defendant's logs in his mill-pond. The removal of it would have allowed a free passage to the logs in the pond, as well as those of the plaintiff. The dam was the cause of the injury; its direct result was the detention of the water above it, and whatever might be in it. The necessity of a removal of the logs was a damage caused by the dam.

The defendant had a concurrent right with others in the use of the stream, but it appears that he transcended that right by filling his pond with logs, and refused to remove them upon request.

It may be difficult, in some cases, to draw the line between public

and private streams. The jury have decided that Little River belongs to the former class, upon the exhibition to them of much testimony, by both parties. And there does not appear to be any sufficient reason why the verdict should be disturbed.

Both the motion for a new trial and the exceptions are overruled, and there must be judgment on the verdict.

D. T. Granger and S. Greenleaf, for defendant.
T. J. D. Fuller, for plaintiff.1

SECTION II.

HIGHWAYS.

ABSOR v. FRENCH.

KING'S BENCH. 1678.

[Reported 2 Show. 28.]

TRESPASS. The defendant pleads, that there was a highway from such a place to such a place; that the plaintiff stopped the same so as he could not pass, and therefore he went over the plaintiff's close, doing as little harm as he could.

And held good upon demurrer; for if the way be so foul as is not passable, I may then justify the going over another man's close next adjoining.

Judgment for the defendant.2

1 See Treat v. Lord, 42 Me. 552; Moore v. Sanborne, 2 Mich. 519; Morgan v. King, 35 N. Y. 454; Olson v. Merrill, 42 Wis. 203. But cf. Hubbard v. Bell, 54 Ill. 110; Lewis v. Coffee County, 77 Ala. 190.

In Hooper v. Hobson, 57 Me. 273, it was held, that if persons driving logs in a stream go upon the banks, they are liable for the actual damage caused to the riparian proprietors.

The right of a riparian owner to damages for being cut off from the river was allowed in Lyon v. Fishmongers' Co., 1 Ap. Cas. 662; Chapman v. Oshkosh & Miss. R. R. Co., 33 Wis. 629. Contra, are Gould v. Hudson River R. R. Co., 6 N. Y. 522; Tomlin v. Dubuque R. R. Co., 32 Iowa, 106; Stevens v. Paterson R. Co., 5 Vroom, 532; Thayer v. New Bedford R. R. Co., 125 Mass. 253. See Barney v. Keokuk, 99 U. S. 324.

On rights in ice, see Gould, Waters, § 191.

See The Queen v. Ramsden, E. B. & E. 949; Dawes v. Hawkins, 8 C. B. N. S.

818.

UPON trial of an action of trespass a case was made, that the place where the supposed trespass was committed was formerly the property of the plaintiff, who some years since built a street upon it, which has ever since been used as a highway. That the defendant had land contiguous parted only by a ditch, and that he laid a bridge over the ditch, the end whereof rested on the highway. And it was insisted for the defendant, that by the plaintiff's making it a street, it was a dedication of it to the public; and therefore however he might be liable to an indictment for a nuisance, yet the plaintiff could not sue him as for a trespass on his private property. Sed per CURIAM, It is certainly a dedication to The public, so far as the public has occasion for it, which is only for a right of passage. But it never was understood to be a transfer of the absolute property in the soil. So the plaintiff had judgment.

REPLEVIN for taking the cattle of the plaintiff. Avowry, that the defendant was seised in fee of the locus in quo, and took the cattle damage feasant. Plea, that the locus in quo “lay contiguous and next adjoining to a certain common and public king's highway, and that the defendant and all other owners, tenants and occupiers of the said place in which, &c., with the appurtenances, for the time being, from time whereof the memory of man is not to the contrary, have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and the said defendant still of right ought to repair and amend the hedges and fences between the said place in which, &c., and the said highway, when and so often as need or occasion hath been or required, or shall or may be required to prevent cattle being in the said highway from erring and escaping thereout into the said place in which, &c., through the defects and defaults of the said hedges and fences, and doing damage there.

1 See Peck v. Smith, 1 Conn. 103.

In Goodtitle d. Chester v. Alker, 1 Burr. 133 (1757), it was held that ejectment would lie for land, although there was a highway over it. See Cincinnati v. White, 6 Pet. 431, contra, criticised in 2 Sm. L. C. (8th Am. ed.) 170-172.

And because the said hedges and fences between the said place in which, &c., and the said highway, before and at the time when, &c., were ruinous, broken down, prostrated, and in great decay for want of needful and necessary repairing and amending thereof, the said cattle in the said declaration mentioned just before the said time when, &c., being in the said highway erred and escaped thereout, into the said place in which, &c., through the defects and defaults, &c." To this plea there was a special demurrer, For that it is not shown in or by the said plea, that the said cattle before the said time when, &c., when they escaped out of the said highway into the said place in which, &c., were passing through and along the said highway, nor that they had any right to be there at all &c."

Williams, Serjt., in support of the demurrer.

Heywood, Serjt., contra.

LORD CH. J. EYRE. I agree with my Brother Williams as to the general law, that the party who would take advantage of fences being out of repair, as an excuse for his cattle escaping from a way into the land of another, must show that he was lawfully using the easement when the cattle so escaped. This therefore reduces the case to a single point, namely, Whether it does not appear on the plea, to a common intent, that the cattle were on the highway, using it in such a manner as the owner had a right to do, from the words "being in the said highway?” This is a different case from cattle escaping from a close, where it is necessary to show that the owner had a right to put them there, because a highway being for the use of the public, cattle may be in the highway of common right; I doubt therefore whether it requires a more particular statement. It would certainly have been more formal to have said that the cattle were passing and repassing, and if the evidence had proved that they were grazing on the way, though the issue would have been literally, it would not have been substantially proved. But I doubt whether the being in the highway might not have been traversed, and if the being in the highway can be construed to be certain to a common intent, the plea may be supported, notwithstanding there is a special demurrer, for a special demurrer does not reach a mere literal expression. The precedents indeed seem to make it necessary to state that the cattle were passing and repassing, but they are but few; yet upon the whole, I rather think the objection a good one, because those forms of pleading are as cited by my Brother Williams.

BULLER, J. This is so plain a case that it is difficult to make it a ground of argument. But my Brother Heywood says, there is a difference between trespass and replevin in the rules of pleading. In some cases there is certainly a material difference in the pleading in the two actions, though in others they are the same. One of the cases in which they differ, is that if trespass be brought for taking cattle which were distrained damage feasant, it is sufficient for the defendant to say that he was possessed of the close, and the cattle were doing damage but in replevin the avowant must deduce a title to the close.