ter.

They argue that "all the duties and liabilities" the water, turned into the canal, would afford thus retained and perpetuated are obligations a more convenient passage. All the water, of an affirmative nature,—to permit logs to turned into the flume, would work the sawpass through the canal on payment of toll, to mill. The whole of it is necessary for either pay debts, and the like,-are not restrictions of the three purposes to which it may be apof authority. But it would be a violent con- plied. The flume gate is open, and the mill in struction to draw a line between the affirma- operation. There is no water in the canal, tive and the negative duties and liabilities of and none running over the dam. The lumberthe canal company, and hold that by "all the man demands a passage through the canal, and duties and liabilities now legally binding on tenders the toll. His demand must be comsaid corporate rights, powers, and privileges" plied with. The canal, like a turnpike or a only those of an affirmative nature were des- railroad, is a highway. As a canal company, ignated. It is not probable that the Legislature the defendants have not been relieved from the employed that inferential distinction as an im highway duties and liabilities of their predieplied release of the canal company's grantee cessors. The canal gate must be opened, and from one of that company's incapacities, and an the flume gate must be shut, although for a implied grant of power to discontinue the time the mill will be stopped, and its operator highway. Whatever else the proviso in the thrown out of employment. As soon as the Act of 1848 may mean, it must be held to ex- defendants have performed this canal duty, press the legislative will that the defendants, another lumberman arrives, and demands a if they bought the powers of the canal com- passage for his logs without payment of toll. pany, would hold them subject to the pro- Whether the defendants furnish it in the canal, viso of 1807, and that, as a canal company, or through a sluice over the dam, the flume they should erect no dam so as "to prevent gate remains shut, and the mill and its operathe free passage of lumber down the Connec- tor remain idle, while the highway demand ticut River as used and enjoyed" be- of the second lumberman is complied with. fore the grant of the canal company's char- Whether the number of his logs is ten or ten The words "subject to all the duties and million; whether their passage stops their mill liabilities now legally binding on said corporate an hour or a month; and whether the number rights, powers and privileges" do not specially of mill operators is one or one thousand,--the refer to that company's duty of allowing a free lumberman is entitled to a free way as good as passage of lumber, but evince a general resolve he would have if no dam had been built, and to annul none of the limitations of their pow- no water had been diverted from the ancient ers; and among those limitations is the public channel. There is nothing in the Statute to right of free passage of lumber down the river. indicate an intention that the public right shall By purchasing the old company's franchises, be restricted to the passage of a fixed number the new company acquired no authority to or a reasonable number of logs, or shall deerect a dam that would infringe that right.pend upon the extent of the defendants' manuThis lack of authority is among the incapaci- facturing industry and the number of persons ties unnecessarily re-enacted by the fourth sec- engaged therein. If the Legislature had meant tion of the charter of 1848. The defendants the public right might be indefinitely impaired, could not obtain, by purchase from the canal as it would be if a judicial tribunal were aucompany, a power of highway discontinuance thorized to decide each case upon the comparathat had not been granted to that company. tive importance of the logging business of the As a canal company, the defendants can build lumbermen and the manufacturing business a dam that will turn the whole stream into a of the defendants, it is not probable that they canal for the use of which they are entitled to would have been silent on that subject. The toll; but, if a lumberman chooses a free log-reduction of the highway from one measured way which they choose not to give him in the canal, be is entitled to one over, through, or around the dam, as good as he would have in the old undammed channel at the time he is ready to use it. As a manufacturing company, the defendants can also turn the river to their wheels through a flume. How much of it shall run through the canal for a transportation purpose, how much through the flume for On the question whether a wharf in the port a manufacturing purpose, and how much over of Newcastle is a nuisance, evidence is not adthe dam, is for them to decide, with this quali-missible to show that the public inconvenience fication: their control is subject to any public caused by its obstruction of the Tyne is balright of way that the Legislature have not re-anced by the public benefit derived from the linquished.

On the question whether any such right has been released by grants of manufacturing powers, the intention of the Legislature can be seen in a supposed case in which the defendants use a canal as a canal company, and a flume as a manufacturing company. At the lower end of the flume they have a saw mill in which one man is employed. In June a lumberman arrives at the falls with a drive. There is water enough to carry his logs over the falls in the natural channel if there was no dam there. All

by the power of the undiverted stream to carry logs over the unobstructed falls to one measured in each particular case, or in this case, by an appraisal of the logging and manufacturing interests, is a piece of legislation that cannot be inferred from the fact that the statutes contain no allusion to so extraordinary an alteration.

delivery of coal in the London market in a better condition and at a reduced price in consequence of the shipping facilities afforded by the wharf. The contrary doctrine maintained by a majority of the court in King v. Russell, 6 Barn. & C. 566, 569, 570, 590, 591, 593, 594, 597, 598, and by a minority in Pennsylvania v. Wheeling & B. Bridge, 54 U. S. 13 How. 518. 591, 605, 14 L. ed. 249-280, 286, has not prevailed. The true view was presented by counsel in Rex v. Ward, 4 Ad. & El. 384, 394: "Nor is the principle a just one that a nuisance in

one place may be compensated by any degree | tion is not unnecessarily extinguished by a of benefit conferred in another; as if a gasom- mere conveyance of land, or a mere creation of eter created a nuisance in Southwark, and it an imaginary being called a corporation. "The was answered that the gas-lights connected dominion and property in navigable waters" is with it were beneficial to a street in London. "held by the king as a public trust." "When No comparison can be instituted between ac- the Revolution took place, the people of each commodation to one set of persons and loss of State became themselves sovereign, and in that rights to another." The necessity of slaugh- character hold the absolute right to all their ter-houses in this country does not legalize the navigable waters, and the soil under them, for diffusion of an intolerable stench from a struc- their own common use."' Martin v. Waddell, ture of that kind in the center of Manchester. 41 U. S. 16 Pet. 367, 401, 410, 10 L. ed. 997. The violation of a public right enjoyed by a "By the principles of the common law, the title portion of the community is not justified by to navigable waters and the soil beneath is offsetting an advantage accruing to others. vested in the crown in trust for the public. The State's abandonment of the whole or a And by the charters under which these part of the Connecticut easement, in considera- colonies were planted there was vested in the tion of the receipt of a public benefit of equal grantees not only the crown's title to the lands or greater value, is an exchange which the granted, but its rights and jurisdiction in and riparian owners cannot make without the over the navigable waters and seashores, to be State's consent. Rex v. Ward, 4 Ad. & El. 384; | held, as by the crown, in trust for the public." Jolliffe v. Wallasey Local Board, L. R. 9 C. P. Clement v. Burns, 43 N. H. 609, 616, 619. “By 62, 88; Atty-Gen. v. Terry, 29 L. T. N. S. 716, the common law, the king was held to be the on appeal, L. R. 9 Ch. App. 423, 432; Pennsyl- owner and proprietor of the soil under the sea, vania v. Wheeling & B. Bridge, 54 U. S. 13 its shores, and all tide-waters, and as such How. 518, 577, 14 L. ed. 249, 274; Gould, could grant the right of property therein to a Waters, 94: Angell, Tide-Waters, 203-223; subject, though this was not usually done withAngell, Highways, 233, 235. out the previous execution and return of a writ ad quod damnum, to ascertain whether such grant would cause any injury to any public right. But it was further held at common law that, beyond a right of property, the king's Gil-prerogative extended to the dominion and control of the shores of the sea, as a power held in trust for the security and protection of the public rights in the navigation and fisheries; that these were among the regalia or incidents of sovereignty, which could not be alienated by royal grant alone. . . . Supposing, then, that the Commonwealth does hold all the power which exists anywhere to regulate and dispose of the seashores and tide-waters, and all lands under them, and all public rights connected with them,

A bridge across a navigable river may be a more important highway than the river, and "it is for the municipal power to decide which shall be preferred, and how far either shall be made subservient to the other." man v. Philadelphia, 70 U. S. 3 Wall. 713, 729, 18 L. ed. 96, 99; Re Clinton Bridge, 77 U. S. 10 Wall. 454, 19 L. ed. 969; Miller v. New York, 109 U. S. 385, 394-398, 27 L. ed. 971, 974976.

"The Legislature alone could determine the question of comparative public convenience, and either refuse to lay out a highway which would impede navigation, or grant it upon terms, conditions, and reservations, as the public interests might in their judgment require for the protection of the navigation." Charlestown v. Middlesex County Comrs. 3 Met. 202, 206; Com. v. Essex Co. 13 Gray, 239, 247; Com. v. Charlestown, 1 Pick. 180, 185, 187.

By an exercise of legislative power, authority can be given to wholly or partly discontinue a public way on land or water. The Connec ticut easement is public property that can be abandoned by due action of the government. But no power has been conferred on the defendants or the court to exchange any part of it for public benefits derivable from the defendants' manufacturing enterprise.

The forests formerly owned by the State were held by the body politic in trust, in a certain sense, for the common benefit of the people. When the State sold them, the proceeds, like money raised by taxation, went into the vendor's treasury for public, not for private, use. When the title was in the State, it was not held for the several benefit of everybody who desired the timber for the construction of houses or ships. The public right of navigation in navigable water, salt or fresh, is held by the State in a different trust. It is a right that all may exercise for private profit. The State, as trustee, holds the legal title. The State, and the people, as individuals, have the The object of the trust is evidence tend ing to show that the common right of naviga

use.

it must be regarded as held in trust for the best interest of the public, for commerce and navigation, and for all the legitimate and appropriate uses to which it may be made subservient. . Two distinct rights are regarded, viz.: (1) The jus privatum, or right of property in the soil, which the king may grant, and which may be held by a subject, and the grant of which will confer on the grantee such privileges and benefits as can be enjoyed therein subject to the jus publicum. (2) The jus publicum, the royal prerogative, by which the king holds such shores and navigable rivers for the common use and benefit. This royal right, or jus publicum, is held by the crown in trust for such common use and benefit, and cannot be transferred to a subject, or alienated, limited, or restrained, by mere royal grant, without an Act of Parliament. The king's grant, therefore, although it may vest the right of soil in a subject, will not justify the grantee in erecting such permanent structures thereon as to disturb the common rights of navigation; and such obstruction, notwithstanding such grant, is held to be a public or private nuisance, as the case may be." Com. v. Alger, 7 Cush. 53, 82, 83, 90. The king takes this right of soil in trust for the public, so far as fishing is concerned; and, although the king may grant away this right of soil to another, yet his grantee will take it subject to

the same trust; and by such grant, however | old way without providing a new one. If they comprehensive in its terms, the public cannot be deprived of their common rights." Weston v. Sampson, 8 Cush. 347, 352; Dunham v. Lamphere, 3 Gray, 268, 271; Moore v. Sanford, 151 Mass. 285, 7 L. R. A. 151; Free Fishers & D. v. Gann, 11 C. B N. S. 387, 417; Angell, Tide-Waters, 2d ed. 22-25, 27, 64; Gould, Waters, SS 17, 18, 20, 21.

"The right of soil must in all cases be considered as subject to the public right of passage, . . . and any grantee of the crown must of course take subject to such right.” Colchester v. Brooke, 7 Q. B. 339, 374.

can stop the passage of logs a single day in the dry season because they need all the water on that day for an up and down saw, they can discontinue the old way entirely by building and operating mills large enough to require all the water every day. They do not claim a power of total and absolute discontinuance; and in the statutes on which they rely there is no mention of any discontinuance, total or partial, permanent or temporary, to be accomplished by a manufacturing diversion of the water. There is no expression of a legislative intent to introduce such an uncertainty and such a prolific source of litigation as a corporate power of discontinuing the highway to some extent by turning a reasonable amount of the water from the natural channel for manufacturing purposes. The Acts of 1848 and 1881 enable the defendants to act as a corporate body in the exercise of riparian rights that existed before those Acts were passed, and do not curtail the measure of the public right of flcatation which the common law finds in the natural capacity of the stream. If a temporary interruption is unvoidable in the erection or repair of a dam, the right of incorporated or unincorporated riparian owners to bar the way for that purpose without such a license from the State as is given by municipal governments for the occupation of streets during the erection or repair of buildings is a question that need not now be considered. The general rights of the riparian owners and the public may be subject to various qualifications. So far as this suit is concerned, the public right of way is not impaired by the Acts of 1807, 1848, and 1881. It is a right to a way of which the floating capacities of the undiverted river, in its natural channel, is the measure. The defendants' right is to use the river and its bed without an invasion of the public easement. Both rights are established by law. Neither of them can be altered by the trial and determination of any issue of fact. The only question of fact is as to the manner in which the public and the defendants can enjoy their several titles, and exercise their indisputable rights. The prayer of the bill is for a necessary regulation of the common use of the river for commercial and manufacturing purposes by a specific decree that cannot be rendered in a suit at law.

A legal reason for the king's inability to surrender navigation is the establishment of the trust by usage and universal understanding for the maintenance of the common right. For the same reason, the right is not destroyed by the State's conveyance of the basin or bed in which the navigable waters rest, or through which they flow. No federal question being raised, this case is to be determined by the local law which regards the people and the State as holding the beneficial interest in an easement, the legal title of which is vested in the State as trustee. Acting as a body politic and trustee, the beneficiaries, by their legislative agents, can authorize an extinguishment of the trust and an abandonment of the trust estate. Wales v. Stetson, 2 Mass. 143, 146; Com. v. Charlestown, 1 Pick. 180, 185. But there is a natural presumption that, if the Legislature intend to do this, their purpose will be distinctly expressed, as in the provisions for the discontinuance of highways, and the assessment of damages therefor. Gen. Laws, chap. 71. "An intention to discontinue such a highway [as the Androscoggin] cannot be inferred from a public grant of the land under and around it,-a mere alienation of the ownership of the soil by an ordinary form of conveyance. A sale by the State of all its ungranted land could not be construed as a relinquishment and abolition of the public rights of navigation in Piscataqua River or Lake Winnipiseogee." Thompson v. Androscoggin River Imp. Co. 54 N. H. 545, 548. Such a sale was authorized by chapter 42, Laws 1867. When the soil under the Connecticut at Olcott Falls passed from the king or the State to the first grantees (under whom the defendants claim), it did not cease to be subject to the easement. An express reservation of the public trust and common use was unnecessary. And the nature of the trust which would have made that reservation superfluous in a state grant of the land to the de- | fendants had the same effect in grants of cor- attorney-general, as the representative of the porate capacities deemed appropriate for other purposes than the total or partial discontinuance of the highway. Like the riparian rights comprised in the land title, the franchise of their artificial body to exercise those rights is subject to the easement held in trust for com

mon use.

The express refusal of the Legislature to allow the defendants, as a canal company, to extinguish the old free way, if they furnished a new and better one, through a canal subject to tolls, has no tendency to show that the Legislature intended, for the sake of the most insignificant mill, to authorize them to stop the

When the defendants were preparing to build the dam, the question necessarily arose by what sluice and what appliances they could avoid an infringement of the public right, and this question they were not compelled to decide at their peril. On their amicable bill, in which the

State, would be defendant (Samson v. Smith, 8 Sim. 272; Tasker v. Lord, 64 N. H. 279, 283), and of which notice would be given to persons specially interested, the defendants could have obtained a provisional decree of regulation operating like a partition, marking the boundary line between the public and the private right, and enabling them to construct their works in a manner authorized by law. The proceeding would have been in the nature of an ad quod damnum. King v. Montague, 4 Barn. & C. 598; King v. Russell, 6 Barn. & C. 566, 588, 600; Nichols v. Boston, 98 Mass. 39, 41; Gould, Waters, §§ 21, 43. The decree,

virtually laying out a logway over the project- | nience of the defendants will be consulted so ed dam would have afforded adequate protec- far as it reasonably may be without a violation tion against suits at law for damages, and of the public right to a way as good as the efforts to abate an alleged nuisance by chan- stream would furnish in its natural condition, cery suits, criminal prosecutions, and force and the location will be alterable, at any future without legal process. If it were found by time, on application of either party. No locaexperiment after the completion of the dam tion will be made unless a necessity for it is that either or both of the water-rights re- shown. It would seem that this question of quired an alteration, justice would be necessity will be best tried and decided upon done on application of either party. An the experiments annually made at the falls. unalterable adjudication would not be made in How long the bill should be retained for a sata matter in which changes might be rendered isfactory settlement of this point is a matter to necessary by results and circumstances that be considered at the trial term. As either could not be foreseen and provided for. Either party can obtain equitable relief in vacation party might be plaintiff, and either party might without this suit, it is possible that the case be defendant. And, if this bill is necessary for will be properly disposed of at the next trial a regulation of the manner of exercising the term, or after another annual experiment, by common rights by constituting and using a dismissing the bill without costs and without sluice and other appliances, it is not barred prejudice except so far as equity may require by the defendants' erection of a dam. "Courts a decree for the adjustment of expenses that of equity have jurisdiction of that class of cases have been incurred by either party under interwhere there is an admitted common right locutory orders. among several owners of the same privilege to regulate the common use, to determine the extent of their respective rights, and the proper mode of exercising and enjoying them, as tending to prevent litigation, and as affording a more complete and perfect remedy than could be obtained at law, and as furnishing, in fact, the only adequate means of ascertaining and determining the respective rights of the parties." Burnham v. Kempton, 44 N. H. 78, 100; Ranlet v. Cook, 44 N. H. 512-515; Bean v. Coleman, 44 N. H. 539, 542; Lawson v. Menasha Wooden-Ware Co. 59 Wis. 393; Gould, Waters, 540, and cases there cited. The ground of equity jurisdiction in many other cases is the want of an adequate process at law for finding lost boundaries (Story, Eq. Jur. chap. 11), and locating private ways. In Gardner v. Webster, 64 N. H. 520, 6 New Eng. Rep. 894, the defendant had conveyed land, reserving a right of way across to "the point so-called." In the opinion, the court says: "The locations and limits of the reserved ways are not specified. . . The defendant is entitled to a reasonable, convenient, and suitable way, across the land conveyed, to the point. The defendant's right of way through the plaintiff's pasture does not authorize him to pass over all parts of the pasture at his pleasure. Its route through that lot is determined, not by the sole interest of either of the parties, but by the reasonable convenience of both. If its location were contested, the controversy might not be settled by the negative result of many actions at law. Both parties, or either of them, might need a decree in equity that would fix the route affirmatively and specifically."

In the present case, on the question of proper form, dimensions, and place of a sluice, the jurisdiction of equity is as plain as a partition of water-power between mill-owners, the ascertainment of lost boundaries, or the laying out of a private way. At the trial term, the court can cause the logway to be located and defined by a jury, and put upon them the duty of drawing a report containing a specification for the construction of a dam and sluice. But it has not been shown that the law of any county requires such work to be done by twelve unanimous persons. If a judicial location of a logway over a dam is necessary, the conve

If a logway is laid out in this suit, the public will have a right to a reasonable use of it. A controversy as to what would be a reasonable use of it, or of the stream in its natural condition, will not be a dispute about the public right in any sense that will require the right to be settled by the trial of a question of fact before the bill can be maintained for the laying out. As a fee simple in land is, for many purposes, nothing more than a right of exclusive possession and reasonable use (Bassett v. Salisbury Mfg. Co. 43 N. H. 569. 577; Thompson v. Androscoggin River Imp. Co. 54 N. H. 545, 551, 552, 555; Com. v. Alger, 7 Cush. 53, 84, 87); so an ordinary public or private right of way is a right of using land or water or both as a way, reasonably and with due care (Sewall's Falls Bridge v. Fisk, 23 N. H. 171; George v. Fisk, 32 N. H. 32; Graves v. Shattuck, 35 N. H. 257; Thompson v. Androscoggin River Imp. Co. 54 N. H. 545, 555, 58 N. H. 108; Hall v. Brown, 54 N. H. 493, 495; Carter v. Thurston, 58 N. H. 104, 107; Varney v. Manchester, 58 N. H. 430; Collins v. Howard, 65 N. H. 190; Gould, Waters, 95, 96, 110). The entire natural capacity of the river for floatation is public property. The lumbermen, as travelers on the highway, are entitled to a reasonable and careful use of the estate. Reasonableness of use and care, attached as a limitation to the ownership and enjoyment of corporeal and incorporeal property, does not permit the lumberman to injure the defendants' works by negligence or an unreasonable use of the entire natural floating power of the river, nor allow the defendants to deprive the lumbermen of the reasonable use of any part of the power. Both parties are bounded by the line established between the incorporeal rights of the public and the other rights of which the defendants' title is composed. There is no question of right or title, in the sense in which these words are used, when it is said that the legal right must be established at law before it is specially enforced in equity. If it is necessary to lay out the undeniable public way over the dam, one question may be how narrow the sluice should be, at different times, to secure a sufficient depth of water. The defendants are apparently as much interested as the lumber company in an economical solution