"For, as the common highways upon the land are for the common land passage, so these kind of rivers, whether fresh or salt, that bear boats or barges, are highways by water, and as the highways by land are called alta viæ regiæ, so these public rivers, for public passage, are called fluvii regales, and haut Streames le Roy; not in reference to the propriety of the river, but to the public use."

Again he says, in chap. 3: "There be some streams or rivers that are private, not only in propriety 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 and 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, of Thames, and divers others, as well above the bridges and ports as below, as well above the flowings of the sea as below, and as well where they have come to be of private propriety, as in what part they are of the king's propriety, are public rivers, juris publici.”

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, 2 Fairf. 278, the doctrine is stated by Parris, J., that where a stream is naturally of sufficient size to float boats or mill logs, the public have a right to its 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 servi tude of the public interest, nor 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 Mellen, C. J., in Spring v. Russell et al.; and is also recognized in Angell on Tide Waters, 75; Palmer v. Mulligan, 3 Caines, 307.

The distinguishing test between those rivers which are entirely private property, and those which are private property subject to the public use and enjoyment, consists in the fact, whether they are susceptible, or not, of use as a common passage for the public. Per Spencer, C. J., in The People v. Platt, 17 Johns. R. 211; Hooker v. Cummings, 20 Johns. R. 90.

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, C. J., in Com. v. Chapin, 5 Pick. 199.

This subject was very fully considered, and with great ability, in Ersing v. McMaster, in the Province of New Brunswick, 1 Kerr, 501, deciding the rule of law, as it is stated to be in Wadsworth v. Smith. The case of Rowe v. Titus, 1 Allen, 326, in that Province, was decided upon the same principle.

It is said, in Adams v. Pease, 2 Com. 481, that the public have an easement in Connecticut River, above the flowing of the tides, for passing and repassing with every kind of craft, and that all rivers, above the tides, in reference to the use of them, are public, and of consequence subservient to public accommodation. Hence fisheries, ferries, bridges, and inland navigation are subject to the regulation of the government.

In Pennsylvania it is held, that the large fresh water rivers, in that State, are altogether public; not only their waters, but their beds. This conclusion is drawn from the inapplicability of the rule of common law to large rivers; also from the fact that neither the original proprietors nor the government have ever granted them to individuals. Carson v. Blazer, 2 Binney, 475; Shrunk v. Schuylkill Nav. Com., 14 S. & R. 71.

If a stream could be subject to public servitude, by long use only, many large rivers in newly settled States, and some in the interior of this State, would be altogether under the control and dominion of the owners of their beds, and the community would be deprived of the use of those rivers, which nature has plainly declared to be public highways. The true test, therefore, to be applied in such cases, is, whether a stream is inherently and in its nature capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs. Where a stream possesses such a character, then the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it. For in this State, the rights of public use have never 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 of the 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 Little 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 that it should have that capacity in its natural and ordinary state at all seasons of the year.

In the test, which has been mentioned, to determine whether a stream should be considered public, none of the authorities, from which it is derived, requires the stream to possess the quality of being capable of 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, where 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.

Every creek or river, into which the tide flows, it has been held in England, is not on that account necessarily a public navigable river. If it is navigable only at certain periods of the tide, and then only for a very short time, it is not to be supposed to be a navigable channel. Angell on Tide Waters, 89. Nor, as said by Shaw, C. J., in Roe v. Granite Bridge Corporation, 21 Pick. 344, is it every small creek, in which a fishing skiff or gunning canoe can be made to float at high water, which is deemed navigable. But in order to have this character, it must be navigable to some purpose, useful to trade or agriculture. It is not a mere possibility of being used under some circumstances, as at extraordinary high tides, which will give it the character of a public stream, but it must be generally and commonly useful to some purpose of trade or agriculture.

But those authorities, upon which reliance is placed, show nothing more than that small creeks or inlets, penetrating into marshes, and which can only be used at certain periods of the tide, and then only for a short time, or in which there is only a possibility of use, under some circumstances, at extraordinary high tides, are not navigable rivers. Such streams are incapable of any practical, general use for the purposes of navigation, and they are dissimilar to the river under consideration.

Most of the great rivers of this State, in some portions of their passage, are so much impeded by rocks, falls, and other obstructions that logs cannot be floated in them, any great distance, at what might be called an ordinary state of water. It is only in the spring and fall, and occasionally at other times, when their channels are filled with water, that they are capable of floating timber to market. They generally remain in this condition a sufficient length of time to answer the purposes of a common highway, and their fitness and character as such cannot be destroyed because they cannot be used in their ordinary state.

A test so rigid and severe, as that required by the instruction requested, would annihilate the public character of all our fresh rivers, for many miles in their course, from their sources towards the ocean. The timber floated upon our waters to market is of great value, and neither the law nor public policy requires the adoption of a rule, which would so greatly limit their use, for that purpose.

The right to the use of the stream in question must prevail when ever it may be exercised at any state of the water.

Another instruction requested to be given was, that "the plaintiff has no right to use the banks of this stream for driving logs, and if such use is necessary for driving logs, the plaintiff has no right to drive this stream."

This request is manifestly too broad, and could not, with propriety, be given. When the stream overflows its banks, it carries some of the timber with it, and when it subsides, the timber is left upon the uplands.

1

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- 37

VOL. II.

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. Mc Culloch, 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