lands, by reason of the construction of a railway, it is proper to be considered by the jury in estimating land damages to such owners.7 But the owner of a tide-mill has no right to have such riparian flats, as he owns, kept open and unobstructed for the free flow of tide-water to his mill.

6. The adjoining owners of such flats in Massachusetts have the right to build solid structures to a certain extent, and thus obstruct the ebb and flow of the tide, if in so doing they do not wholly obstruct the access of other proprietors to their houses and lands; and if the mill-owner and other proprietors suffer damage therefrom, it is damnum absque injuria.8 "Therefore," say the tained at the equal expense of all the owners and possessors of the meadows, defining the limits up the creek; and provided the manner in which the natural watercourse of the creek should be kept clear, and for the election yearly, by all the land-owners, of two managers, empowered to assess the owners or occupiers of such meadows, as they should deem necessary for repairing and maintaining the dam; and the act had been accepted by the owners of the meadow, managers elected, and the dam repaired, under the provisions of the act, and a large amount expended, from time to time, after the passage of the act; and where the legislature in the year 1854 passed an act, declaring this creek to be a public highway in all respects, as fully as it was before the erection of such dam, and empowering the municipal authorities to remove the dam, and open the navigation:

It was held, upon a bill filed in equity to restrain the committee of the township from performing this duty, so imposed upon them;

That the legislature had the right to make the grant, there being nothing to show that the public interest demanded the navigation of the creek;

That it does not follow, that every creek or rivulet, into which the tide ebbs and flows, is to be regarded as navigable water, in such sense as to be beyond the control of the legislature, except as a public highway; and the legislature is the sole judge, to determine when such streams shall be considered navigable rivers, and be maintained and protected as such; that the act of 1760 did not only authorize the owners of the meadows to continue the dam, but it gave the authority of the state to compel its continuance; that the act of 1854 was in violation of the United States Constitution, inhibiting the several states from passing laws impairing the obligation of contracts. It was a virtual repeal of the former act, under which rights had become vested, and valuable property acquired;

That the act of 1854 was also repugnant to the constitution of the state, as a taking of private property for public use, without just compensation; a partial destruction or diminution of the value of property, being to that extent, a taking. Glover v. Powell, 2 Stockton's Ch. 211.

7 Commonwealth v. Boston & Maine Railw., 3 Cush. 25; s. c. 1 Am. Railw. C. 482; Fitchburg Railw. v. Boston & Maine Railw. 3 Cush. 58; s. c. 1 Am. Railw. C. 508.

8 Davidson v. Boston & M. Railw., 3 Cush. 91; s. c. 1 Am. Railw. C. 534.

court, "so far as the railroad erected by the legislature affected the right of the claimants to pass and repass to and from their lands and wharves with vessels, it was a mere regulation of a public right, and not a taking of private property for a public use, and gave no claim for damages."

7. The grant of a railway "to the place of shipping lumber" on a tide-water river, justifies an extension across flats and over tide-water to a point at which lumber can be conveniently shipped."

8. In a recent case in the House of Lords,10 it was held, that where a statute authorizes a company to construct certain works, as a harbor, it is to be presumed they have power to execute all works incidental to their main purpose, and which they deem necessary, provided they act bona fide.

9. Accordingly, when public trustees for improving the navigation of the Clyde were authorized by statute to acquire lands adjoining the river, and to construct a quay, or harbor, and having acquired part of A.'s land, proposed to erect a large goods-shed fronting the river, and between the rest of A.'s land and the river, it was held, that although the statute gave no express power to erect sheds, it must be presumed that a harbor, equipped with all the most approved appliances for trade, was intended by the legislature, and that therefore a power to erect sheds was implied.10

10. An interesting case 11 has recently been determined by the 9 Peavy v. The Calais Railw., 30 Maine, 498; s. c. 1 Am. Railw. C. 147. See also Babcock v. Western Railw., 9 Met. 553; s. c. 1 Am. Railw. C. 399. So the grant of a railway between certain termini, which line passes over navigable rivers, authorizes the company to bridge such rivers. Attorney-Gen. v. Stevens, Saxton, Ch. 369.

10 Wright v. Scott, 34 Eng. L. & Eq. 1; ante, § 63.

"McManus v. Carmichael, 5 Am. Law Reg. 593. It is maintained in this case, with great labor and research, that a large number of the states have adopted similar views in regard to their large rivers. See also Bowman v. Wathen, 2 McLean's C. C. 376, where the learned judge of that circuit thus lays down the law, in regard to the shores of the Ohio river: "On navigable streams the riparian right we suppose cannot extend generally beyond high-water mark. For certain purposes, such as the erection of wharves and other structures for the convenience of commerce, and which do not obstruct the navigation of the river, it may be exercised beyond this limit. But in the present case this inquiry is not important. It is enough to know that the riparian right on the Ohio River extends to the water, and that no supervening right over any part of this space can be exercised or maintained without the consent of the proprietor. He has the right of fishery, of ferry, and every other right which is properly appurte

Supreme Court of Iowa, in regard to the important question, to what extent the large rivers in this country, as the Mississippi, are to be regarded as navigable waters, above where the tide ebbs and flows.

11. It is there held, that all waters are to be regarded as navigable, above where the tide ebbs and flows, which are of common use to all the citizens of the republic for purposes of navigation, or that navigability, in fact, is to be regarded as the decisive test, rather than the ebb and flow of the tide. And it is here maintained, that the acts and declarations of the United States constitute the Mississippi a public highway, and that consequently the riparian proprietors have no interest in the lands below high-water mark.

12. And where one, upon the shore of a navigable stream or arm of the sea, is cut off by a railway or other public work from * all communication with the navigation, to the injury of wharves or other erections which the party made upon his land, it has been held that such person is entitled to damages under the statutes allowing parties compensation where their estate is "injuriously affected." 12

13. And it seems to be regarded as settled, that where the grant of any authority, by the state legislature, in regard to navigable waters, in its exercise works an interference with the exclusive power of Congress to regulate commerce, whether foreign or internal, such interference being unlawful is a nuisance, and any private person suffering special damage thereby is entitled to an action at law, or to maintain a bill in equity for a perpetual injunction.13

nant to the soil. And he holds every one of these rights by as sacred a tenure as he holds the land from which they emanate. The state cannot, either directly or indirectly, divest him of any one of these rights, except by a constitutional exercise of the power to appropriate private property for public purposes. And any act of the state, short of such an appropriation, which attempts to transfer any of these rights to another, without the consent of the proprietor, is inoperative." See also Lehigh Valley Railw. v. Trone, 28 Penn. St. 206.

12 Bell v. Hull & Selby Railw., 6 M. & W. 699.

13 State of Pennsylvania v. Wheeling Bridge Co., 13 How. 518; s. c. 18 id. 421. The same principle is recognized in other cases. Works v. Junction Railw., 5 McLean, 425; United States v. Railroad Bridge Co., 6 id. 517.

When the case of Pennsylvania v. Wheeling Bridge Co. was last before the court, it was held, that the paramount authority of Congress, in the regulation of commerce, included the power to determine what was an obstruction to nav

14. The questions are very numerous which have arisen in regard to the conflicting rights of different grantees affecting franchises and easements of different kinds. In a case in New Hampshire,14 some questions affecting the construction of grants, and reservations of this kind, are very extensively discussed.

*15. It seems to be well settled, both in England and in this country, that if there is no legal authority for the erection of a pier in a navigable river, such erection will become a nuisance per se, and that no evidence can be received to show that although illegal it will do no harm, that question being wholly immaterial.15

SECTION XVII.

Obstruction of Streams by Company's Works.

1. Cannot divert stream, without compensa- 5. Company liable for defective works, done

§ 79. 1. In regard to the obstruction of streams, by building railways, the better opinion seems to be, that the company are bound to do as little damage to riparian proprietors as is reasonigation. And Congress having legalized the bridge of defendants, after the judgment of the court to abate it, but before it was carried into effect, it was held, that the occasion for executing the judgment was thereby removed. Mr. Justice Nelson, p. 432, thus lays down the law, as to streams under state control:

"The purely internal streams of a state, which are navigable, belong to the riparian owners to the thread of the stream," and they have a right to use them, "subject to the public right of navigation.". "They may construct wharves or dams or canals, for the purpose of subjecting the stream to the various uses to which it may be applied, subject to this public easement. But if these structures materially interfere with the public right, the obstruction may be removed or abated as a public nuisance."—"These purely internal streams of a state, as to the public right of navigation, are exclusively under the control of the state legislature." And although erections authorized by grant from the state legislature cause "real impediment to the navigation," they are nevertheless lawful, and the riparian owner has no redress. See also Morgan v. King, 18 Barb. 277. 14 Goodrich v. Eastern Railw. Co., 37 N. H. 149.

15 The People v. Vanderbilt, 38 Barb. 282.

ably consistent with the enjoyment of their grant.1. The state cannot grant the power to divert a stream of water without compensation.2

2. Thus if by making needless obstructions in streams, in the erection of bridges, or by imperfect or insufficient sluices or ducts for the passage of streams, intersected by a railway, the land or adjoining property is injured, the company are liable.3

3. So, too, the company are liable to pay damages for an injury caused to the plaintiff, by flowing his land in a great freshet, in consequence of their bridges damming up the water, although the bridges were erected by another company, before the defendants' company was chartered, and there had been no request to the defendants to remove the obstruction.5

*4. And where the waters on certain lowlands were flowed back upon the plaintiff's land, by reason of insufficient openings in a railway constructed across such lowlands, it was held that the company were liable to make good the damages sustained by plaintiff, although no statute required them to make the openings, and they could not be compelled to do so by writ of mandamus. So, too, in regard to other public works, if damage accrue to others in consequence of their imperfect construction, the proprietors are

1 Boughton v. Carter, 18 Johns. 405; Hooker v. N. H. & Northampton Co., 14 Conn. 146.

2 Gardner v. Newburgh, 2 Johns. Ch. 162.

3 Hatch v. Vermont Central Railw., 25 Vt. 49 et seq.; Mellen v. Western Railw., 4 Gray, 301; March v. C. & P. Railw., 19 N. H. 372.

* Brown v. Cayuga & Susquehannah Railw., 2 Kern. 386.

* Per Denio, J., 2 Kern. 486. But the question in regard to the liability of the company for continuing the obstruction, without notice to remove it, was not decided by the court. This subject, in regard to the necessity of a special request, is somewhat discussed in Norton v. Valentine, 14 Vt. 239, 244. In Hubbard v. Russell, 24 Barb. 404, it is held, that in order to recover damages of the "continuator of a private nuisance, originally erected by another," there must be proof of a request to remove the same. But where a railway company bought up a navigation company, and suffered the works of that company to fall to decay, so that damage was suffered by a municipal corporation, in regard to their harbor, it was held the company were liable; although only a nonfeasance in form, it operated substantially as a misfeasance, they having maintained and used the locks of the navigation company in such a state as to cause the injury. Preston v. Eastern Counties Railw., 30 Law Times, 288; s. c. nom. Preston v. Norfolk Railw., 2 H. & N. 735.

6 Lawrence v. Great Northern Railw., 4 Eng. L. & Eq. 265; s. c. 16 Q. B. 643, and 6 Railw. C. 656.