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ing of rafts and logs in the condition in which it generally appears by nature, it will be regarded as public, notwithstanding [* 590] there may be times when it becomes too dry and *shallow for the purpose. "The capacity of a stream, which generally appears by the nature, amount, importance, and necessity of the business done upon it, must be the criterion. A brook, although it might carry down saw-logs for a few days, during a freshet, is not therefore a public highway. But a stream upon which and its tributaries saw-logs to an unlimited amount can be floated every spring, and for the period of from four to eight weeks, and for the distance of one hundred and fifty miles, and upon which unquestionably many thousands will be annually transported for many years to come, if it be legal so to do, has the character of a public stream for that purpose. So far the purpose is useful for trade and commerce, and to the interests of the community. The floating of logs is not mentioned by Lord Hale

De Jure Maris], and probably no river in Great Britain was, in his day, or ever will be, put to that use. But here it is common, necessary, and profitable, especially while the country is new; and if it be considered a lawful mode of using the river, it is easy to adapt well-settled principles of law to the case. And they are not the less applicable because this particular business may not always continue; though if it can of necessity last but a short time, and the river can be used for no other purpose, that circumstance would have weight in the consideration of the question." But if the stream was not thus useful in its natural condition, but has been rendered susceptible of use by the labors of the owner of the soil, the right of passage will be in the nature of a private way, and the public do not acquire a right to the benefit of the owner's labor, unless he sees fit to dedicate it to their use.2

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All navigable waters are for the use of all the citizens; and there cannot lawfully be any exclusive private appropriation of

missioners of Homochitto River v. Withers, 29 Miss. 21; Rhodes v. Otis, 33 Ala. 578; McManus v. Carmichael, 3 Iowa, 1; Weise v. Smith, 3 Oreg. 445; s. c. 8 Am. Rep. 621. 1 Morgan v. King, 18 Barb. 288; Moore v. Sanbourne, 2 Mich. 519;

Brown v. Chadbourne, 31 Me. 9;

Treat v. Lord, 42 Me. 552; Weise v. Smith, 3 Oreg. 445; s. c. 8 Am. Rep. 621. Compare Hubbard v. Bell, 54 Ill. 110.

2 Wadsworth's Adm'r v. Smith, 11 Me. 278; Ward v. Warner, 8 Mich. 521.

any portion of them. The question what is a navigable stream would seem to be a mixed question of law and fact; and though it is said that the legislature of the State may determine whether a stream shall be considered a public highway [* 591] or not, yet if in fact it is not one, the legislature cannot

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make it so by simple declaration, since, if it is private property, the legislature cannot appropriate it to a public use without providing for compensation.*

The general right to control and regulate the public use of navigable waters is unquestionably in the State; but there are certain restrictions upon this right growing out of the power of Congress over commerce. Congress is empowered to regulate commerce with foreign nations and among the several States; and wherever a river forms a highway upon which commerce is conducted with foreign nations or between States, it must fall under the control of Congress, under this power over commerce. The circumstance, however, that a stream is navigable, and capable of being used for foreign or inter-state commerce, does not exclude regulation by the State, if in fact Congress has not exercised its power in regard to it; or having exercised it, the State law does not come in conflict with the congressional regulations, or interfere with the rights which are permitted by them.

The decisions of the federal judiciary in regard to navigable waters seem to have settled the following points:

1. That no State can grant an exclusive monopoly for the naviWeise v. Smith, 3 Oreg. 445; s. c. 8 Am. Rep. 621.

1 Commonwealth v. Charlestown, 1 Pick. 180; Kean v. Stetson, 5 Pick. 492; Arnold v. Mundy, 6 N. J. 1; Bird v. Smith, 8 Watts, 434. They are equally for the use of the public in the winter when covered with ice; and one who cuts a hole in the ice in an accustomed way, by means of which one passing upon the ice is injured, is liable to an action for the injury. French v. Camp, 6 Shep. 433. An obstruction to a navigable stream is a nuisance which any one having occasion to use it may abate. Inhabitants of Arundel v. McCulloch, 10 Mass. 70; State v. Moffett, 1 Greene (Iowa), 247; Selman v. Wolfe, 27 Tex. 68.

8 Glover v. Powell, 2 Stockt. 211; American River Water Co. v. Amsden, 6 Cal. 443; Baker v. Lewis, 33 Penn. St. 301.

Morgan v. King, 18 Barb. 284; s. c. 35 N. Y. 454.

5 Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245. In this case it was held that a State law permitting a creek navigable from the sea to be dammed so as to exclude vessels altogether was not opposed to the Constitution of the United States, there being no legislation by Congress with which it would come in conflict. And see Wheeling Bridge Case, 13 How.

2 See Treat v. Lord, 42 Me. 552; 518, and 18 How. 421.

gation of any portion of the waters within its limits upon which commerce is carried on under coasting licenses granted under the authority of Congress,' since such a grant would come directly in conflict with the power which Congress has exercised. But a State law granting to an individual an exclusive right to navigate the upper waters of a river, lying wholly within the limits of the State, separated from tide water by falls impassable for [* 592] purposes of navigation, and not forming a part of any continuous track of commerce between two or more States, or with a foreign country, does not come within the reason of this decision, and cannot be declared void as opposed to the Constitution of the United States.2

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2. The States have the same power to improve navigable waters which they possess over other highways; and where money has been expended in making such improvement, it is competent for the State to impose tolls on the commerce which passes through and has the benefit of the improvement, even where the stream is one over which the regulations of commerce extend.*

3. The States may authorize the construction of bridges over navigable waters, for railroads as well as for every other species of highway, notwithstanding they may to some extent interfere with the right of navigation. If the stream is not one which is

1 Gibbons v. Ogden, 9 Wheat. 1. The case was the well-known historical one, involving the validity of the grant by the State of New York to Robert Fulton and his associates of the exclusive right to navigate the waters of that State with vessels propelled by steam. This subject is further considered in Gilman v Philadelphia, 3 Wall. 713; and in The Daniel Ball, 10 Wall. 557, in which the meaning of the term "navigable waters of the United States" is defined. And see Craig v. Kline, 65 Penn. St. 399; s. c. 3 Am. Rep. 636.

2 Veazie v. Moor, 14 How. 568. The exclusive right granted in this case was to the navigation of the Penobscot River above Old Town, which was to continue for twenty years, in consideration of improvements in the navigation to be made

by the grantees. Below Old Town there were a fall and several dams on the river, rendering navigation from the sea impossible. And see McReynolds v. Smallhouse, 8 Bush, 447.

The improvement of a stream by State authority will give no right of action to an individual incidentally injured by the improvement. Zimmerman v. Union Canal Co., 1 W. & S. 346.

4 Palmer v. Cuyahoga Co., 3 McLean, 226; Kellogg v. Union Co., 12 Conn. 7; Thames Bank v. Lovell, 18 Conn. 500; McReynolds v. Smallhouse, 8 Bush, 447.

5 See Commonwealth v. Breed, 4 Pick. 460; Depew v. Trustees of W. and E. Canal, 5 Ind. 8; Dover v. Portsmouth Bridge, 17 N. H. 200; Illinois, &c. Co. v. Peoria, &c. Association, 38 Ill. 467.

subject to the control of Congress, the State law permitting the erection cannot be questioned on any ground of public inconvenience. The legislature must always have power to determine what public ways are needed, and to what extent the accommodation of travel over one way must yield to the greater necessity for another. But if the stream is one over which the regulations of Congress extend, the question is somewhat complicated, and it becomes necessary to consider whether such bridge will interfere with the regulations or not. But the bridge is not necessarily unlawful, because of constituting, to some degree, an obstruction to commerce, if it is properly built, and upon a proper plan, and if the general traffic of the country will be aided rather than impeded by its construction. There are many cases where a bridge over a river may be vastly more important than the navigation; and there are other cases where, although the traffic upon the river is important, yet an* inconvenience caused [* 593] by a bridge with draws would be much less seriously felt by the public, and be a much lighter burden upon trade and travel, than a break in a line of railroad communication necessitating the employment of a ferry. In general terms it may be said that the State may authorize such constructions, provided they do not constitute material obstructions to navigation; but whether they are to be regarded as material obstructions or not is to be determined in each case upon its own circumstances. The character of the structure, the facility afforded for vessels to pass it, the relative amount of traffic likely to be done upon the stream and over the bridge, and whether the traffic by rail would be likely to be more incommoded by the want of the bridge than the traffic by water with it, are all circumstances to be taken into account in determining this question. It is quite evident that a structure might constitute a material obstruction on the Ohio or the Mississippi, where vessels are constantly passing, which would be unobjectionable on a stream which a boat only enters at intervals of weeks or months. The decision of the State legislature that the erection is not an obstruction is not conclusive; but the final determination will rest with the federal courts, who have jurisdiction to cause the structure to be abated, if it be found to obstruct unnecessarily the traffic upon the water. Parties constructing the bridge must be prepared to show, not only the State authority, and that the plan and construction are

proper, but also that it accommodates more than it impedes the general commerce.1

4. The States may lawfully establish ferries over navigable waters, and grant licenses for keeping the same, and forbid unlicensed persons from running boats or ferries without such license. This also is only the establishment of a public way, and it can make no difference whether or not the water is entirely within the State, or, on the other hand, is a highway for interstate or foreign commerce.2

5. The States may also authorize the construction of [*594] dams across *navigable waters; and where no question of federal authority is involved, the legislative permission to erect a dam will exempt the structure from being considered a nuisance, and it would seem also that it must exempt the party constructing it from liability to any private action for injury to navigation, so long as he keeps within the authority granted, and is guilty of no negligence.+

6. To the foregoing it may be added that the State has the

1 See this subject fully considered in the Wheeling Bridge Case, 13 How. 518. See also Columbus Insurance Co. v. Peoria Bridge Co., 6 McLean, 72; Same v. Curtenius, 6 McLean, 209; Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237; United States v. New Bedford Bridge, 1 W. & M. 401; Commissioners of St. Joseph Co. v. Pidge, 5 Ind. 13.

2 Conway v. Taylor's Ex'r, 1 Black, 603; Chilvers v. People, 11 Mich. 43; Marshall v. Grimes, 41 Miss. 27. In these cases the State license law was sustained as against a vessel enrolled and licensed under the laws of Congress. And see Fanning v. Gregorie, 16 How. 534. Under a power to amend the charter of a ferry company, the legislature may regulate the tolls chargeable by it. Parker v. Metropolitan, &c. R. R. Co., 109 Mass. 506. Ferry rights may be so regulated as to rates of ferriage, and ferry franchises and privileges so controlled in the hands of grantees and lessees, that they shall not be abused

to the serious detriment or inconvenience of the public. Where this power is given to a municipality, it may be recalled at any time. People v. Mayor, &c. of New York, 32 Barb. 102.

And

8 Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; Brown v. Commonwealth, 3 S. & R. 273; Bacon v. Arthur, 4 Watts, 437; Hogg t. Zanesville Co., 5 Ohio, 410; Neaderhouser v. State, 28 Ind. 257. see Flanagan v. Philadelphia, 42 Penn. St. 219; Depew v. Trustees of W. and E. Canal, 5 Ind. 8; Woodburn v. Kilbourne Manuf. Co., 1 Bissell, 546; s. c. 1 Abb. U. S. 158; Hinchman v. Patterson, &c. R. R. Co., 2 Green (N. J.) 75; Stoughton v. State, 5 Wis. 291.

4 See Bailey v. Philadelphia, &c. R. R. Co., 4 Harr. 389; Roush v. Walter, 10 Watts, 86; Parker v. Cutler Mill Dam Co., 7 Shep. 353; Zimmerman v. Union Canal Co., 1 W. & S. 346; Depew v. Trustees of W. and E. Canal, 5 Ind. 8.

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