from straying on the land of others,298 except in the single case of cattle which are being properly driven on the highway.2

299

In some of the states the common-law rule has been recognized as in force, enabling the owner of unfenced land to recover for injury caused by cattle trespassing thereon, without reference to the negligence of their owner,300 and in some states this rule has been confirmed by statute.801 In many, perhaps a majority, of the states, this rule is no longer in force, owing either to express legislation to the contrary, or as being inconsistent with the custom of the community to allow live stock to run at large, and legislation recognizing such custom;302 and in some states the question whether cattle shall be allowed to run at large, and whether the owner of land must fence against them, is a matter which each

298 3 Bl. Comm. 211; Gale, Easements (7th Ed.) 440; Boyle v. Tamlyn, 6 Barn. & C. 329, 337; Rust v. Low, 6 Mass. 90.

299 Hartford v. Brady, 114 Mass. 466, 19 Am. Rep. 377; Lord v. Wormwood, 29 Me. 282; Avery v. Maxwell, 4 N. H. 36; Dovaston v. Payne, H. Bl. 527, 2 Gray's Cas. 580.

800 2 Shearman & R. Neg. (5th Ed.) 655; Holladay v. Marsh, 3 Wend. (N. Y.) 143, 20 Am. Dec. 678; Thayer v. Arnold, 4 Metc. (Mass.) 589; Noyes v. Colby, 30 N. H. 143; Bonner v. De Loach, 78 Ga. 50; Webber v. Closson, 35 Me. 26; Vandegrift v. Rediker, 22 N. J. Law, 185, 51 Am. Dec. 262.

301 Bulpit v. Matthews, 145 Ill. 345; Wells v. Beal, 9 Kan. 597; Hahn v. Garratt, 69 Cal. 146; Little v. McGuire, 38 Iowa, 560.

802 Merritt v. Hill, 104 Cal. 184; Savannah, F. & W. Ry. Co. v. Geiger, 21 Fla. 669, 58 Am. Rep. 697; Delaney v. Errickson, 10 Neb. 492; Sprague v. Fremont, E. & M. V. R. Co., 6 Dak. 86; Kerwhaker v. Cleveland, C. & C. R. Co., 3 Ohio St. 172, 62 Am. Dec. 246; Seeley v. Peters, 10 Ill. 130; Pruitt v. Ellington, 59 Ala. 454; Hine v. Wooding, 37 Conn. 123; Clark v. Stipp, 75 Ind. 114; Gorman v. Pacific R. Co., 26 Mo. 441, 72 Am. Dec. 220; Pace v. Potter, 85 Tex. 473. See 1 Stimson's Am. St. Law, § 2189; 12 Am. & Eng. Enc. Law (2d Ed.) 1042 et seq.

The common-law rule has been decided not to apply to cattle grazing on public lands of the United States. Buford v. Houtz, 133 U. S. 320.

particular county or other municipal division of the state is allowed to decide for itself.308

The effect of statutes altering the common law is limited to negativing a right of recovery for injuries by trespassing cattle, and they impose no obligation upon one to fence land belonging to him, as against the public.804

263. Railroad fences.

The common-law rule exempting landowners from the obligation of fencing against animals, where it is in force and there is no special statute on the subject, applies to railroad companies as well as to individuals, and such a company is consequently entitled to recover for injuries caused by animals trespassing on its grounds or track, and is not liable for injuries to such animals unless guilty of such negligence as would render it liable to any trespassers.305 In those states where the common-law rule is not in force, "the owners of cattle, except as otherwise prescribed by statute, are not bound to keep them in, and railroad companies are not bound to keep them out."306 The owner of the cattle is, accordingly, not liable for damage to the railroad by reason of their trespass thereon, and he may recover for injuries to them caused by the failure of the company to use ordinary care.307

803 Mathis v. Jones, 84 Ga. 804; Bulpit v. Matthews, 145 Ill. 345; Lammert v. Lidwell, 62 Mo. 188; Wells v. Beal, 9 Kan. 597; 1 Stimson's Am. St. Law, § 2190.

304 12 Am. & Eng. Enc. Law (2d Ed.) 1044; Westgate v. Carr, 43 Ill. 450; Williams v. Michigan Cent. R. Co., 2 Mich. 260, 55 Am. Dec. 59; Kerwhaker v. Cleveland, C. & C. R. Co., 3 Ohio St. 172, 62 Am. Dec. 246.

305 2 Shearman & R. Neg. § 418; Fawcett v. York & N. M. Ry. Co., 16 Q. B. 610; Munger v. Tonawanda R. Co., 4 N. Y. 349; Eames v. Salem & L. R. Co., 98 Mass. 560, 96 Am. Dec. 676; Louisville & F. R. Co. v. Ballard, 2 Metc. (Ky.) 177; Stucke v. Milwaukee & M. R. Co., 9 Wis. 202; Vandergrift v. Rediker, 22 N. J. Law, 185, 51 Am. Dec. 262.

306 2 Shearman & R. Neg. § 419.

JOT Mobile & O. R. Co. v. Williams, 53 Ala. 593; Kerwhaker v.

In England and in many states in this country, there is a statutory regulation requiring all railroad tracks to be fenced.808 In some jurisdictions these statutes either expressly or by implication impose a duty on the railroad company for the benefit of the adjoining landowner only,309 while in others they are regarded as for the benefit of the public generally, and as giving a right of action to any person injured by their violation.810

IX. LAND UNDER WATER.

Land under navigable tide waters belongs prima facie to the state, as does, in some states, land under navigable non-tidal streams. In other states, land under such streams belongs to the riparian proprietors or other individuals, as does land under non-navigable streams in all the states.

Land under the larger lakes belongs generally to the state, and that under the smaller lakes and ponds to individuals.

The owner of land bordering on navigable water has generally a right of access to the water for purposes of navigation, of which he cannot be deprived, and likewise he has rights, varying in different states, of erecting wharves or making reclamations on the shore or banks.

Cleveland, C. & C. R. Co., 3 Ohio St. 172, 62 Am. Dec. 246; Moses v. Southern Pac. R. Co., 18 Or. 385; Layne v. Ohio River R. Co., 35 W. Va. 438; Prickett v. Atchison, T. & S. F. R. Co., 33 Kan. 748; New Orleans, J. & G. N. R. Co. v. Field, 46 Miss. 573; Hill v. Missouri Pac. Ry. Co., 49 Mo. App. 520, 121 Mo. 477.

308 2 Shearman & R. Neg. § 421 et seq.; 12 Am. & Eng. Enc. Law, 1063.

309 Ricketts v. East & West India, D. & B. J. Ry. Co., 12 C. B. 160; Dawson v. Midland Ry. Co., L. R. 8 Exch. 8; Cornwall v. Sullivan R. Co., 28 N. H. 161; Allen v. Boston & Maine R. R., 87 Me. 326; Jackson v. Rutland & B. R. Co., 25 Vt. 150, 60 Am. Dec. 246; Eames v. Salem & L. R. Co., 98 Mass. 560, 96 Am. Dec. 676.

310 Warren v. Keokuk & D. M. R. Co., 41 Iowa. 484; Jeffersonville, M. & I. R. Co. v. Nichols, 30 Ind. 321; McCall v. Chamberlain, 13 Wis. 637; Corwin v. New York & E. R. Co., 13 N. Y. 42; Gill v. Atlantic & G. W. Ry. Co., 27 Ohio St. 240. See 12 Am. & Eng. Enc. Law, 1067.

The private owner of land under water is entitled to the ice formed on the water, while the public are entitled to that formed over land belonging to the state.

264. Tide waters.

Tide waters are those in which the tide ordinarily ebbs and flows, including the sea, and also bays, rivers, and creeks, so far as they answer this description. A body of water cannot be considered as tidal merely because, under unusual circumstances, the level of the water is affected by the tide,311 nor is the amount of salt in the water material.3 312

The crown in England, and in this country the state, has rights of jurisdiction and control over the sea and the bed thereof for a distance of three miles from low-water mark.313

Land under tide waters within the state, below low-water mark, belongs to the state,314 except, it seems, in the case of creeks and inlets of the sea so small as not to be susceptible of use for navigation.315

Land bordering on the sea, or on an arm thereof, and lying above ordinary low-water mark, but below ordinary highwater mark, is known as the "shore," and this belongs, prima facie, to the state.316 The state's right of ownership in the

811 Reece v. Miller, 8 Q. B. Div. 626, 2 Gray's Cas. 567.

812 Peyroux v. Howard, 7 Pet. (U. S.) 343; Attorney General v. Woods, 108 Mass. 436; People v. Tibbetts, 19 N. Y. 523; Gould, Waters, 44.

318 Gould, Waters, §§ 7-16. See Reg. v. Keyn, 2 Exch. Div. 63; Manchester v. Massachusetts, 139 U. S. 241.

814 Martin v. Waddell's Lessee, 16 Pet. (U. S.) 367; Shively v. Bowlby, 152 U. S. 1; Com. v. City of Roxbury, 9 Gray (Mass.) 451; State v. Sargent, 45 Conn. 358; Coburn v. Ames, 52 Cal. 385; Lang. don v. City of New York, 93 N. Y. 129.

815 Com. v. Inhabitants of Charlestown, 1 Pick. (Mass.) 179, 186; Providence Steam-Engine Co. v. Providence & S. Steamship Co., 12 R. I. 348, 359; Gould, Waters. § 43, note.

816 Gould, Waters, §§ 4, 27, 169-175, 178; 3 Kent, Comm. 427; Barney v. Keokuk, 94 U. S. 324; Gough v. Bell, 21 N. J. Law, 156;

shore is, however, merely in trust for the public, and it cannot dispose of the shore to an individual so as to enable him to make use of it in a way which will impair the public rights of navigation and fishing.317 Subject to this requirement, that the rights of the public shall be protected, the state may grant the shore to the owner of the adjoining land or to any other individual,318 and the latter may, it seems, obtain title thereto by acts of user continued for such a length of time as to give prescriptive rights.319

Whether the ownership of the shore is in the state or an

Hathaway v. Wilson, 123 Mass. 361; People v. Morrill, 26 Cal. 336; Eisenbach v. Hatfield, 2 Wash. St. 236. See, especially, the opinion of Justice Gray in Shively v. Bowlby, 152 U. S. 1, where the whole law of the subject is reviewed. The "ordinary" high-water mark, for determining the line between the shore and the land of the adjoining proprietor, is that indicated "by the average of these medium tides in each quarter of a lunar revolution" (Attorney General v. Chambers, 4 De Gex, M. & G. 206, 2 Gray's Cas. 543), or, as otherwise expressed, by "the medium line between the ordinary line of high water in ordinary spring tides at the full and change of the moon, and the ordinary line of high water at neap tides, at about midway in time between the full and change of the moon" (Com. v. City of Roxoury, 9 Gray [Mass.] 451, 483).

817 Gann v. Free Fishers of Whitstable, 11 H. L. Cas. 192; Providence Steam-Engine Co. v. Providence & S. Steamship Co., 12 R. I. 348, 357; Com. v. Alger, 7 Cush. (Mass.) 53, 65; Nichols v. City of Boston, 98 Mass. 39; Bell v. Gough, 23 N. J. Law, 624, affirming 22 N. J. Law, 441; People v. New York & S. I. Ferry Co., 68 N. Y. 71; Clement v. Burns, 43 N. H. 609. See Illinois Cent. R. Co. v. Illinois, 146 U. S. 387.

318 Shively v. Bowlby, 152 U. S. 1; Rivas v. Solary, 18 Fla. 122; People v. New York & S. I. Ferry Co., 68 N. Y. 71; Gough v. Bell, 22 N. J. Law, 441; Com. v. Alger, 7 Cush. (Mass.) 53; City of Galveston v. Menard, 23 Tex. 349.

819 2 Kent, Comm. 427; Gould, Waters, §§ 22, 23, 37; Nichols v. City of Boston, 98 Mass. 39; Church v. Meeker, 34 Conn. 421.

In Maine and Massachusetts, by the terms of a general grant made at an early date, the shore in most cases belongs to the proprietor of the land adjoining. Duncan v. Sylvester, 24 Me. 482; Com. v. Alger, 7 Cush. (Mass.) 53; Com. v. City of Roxbury, 9 Gray (Mass.) 451.