able privilege of sailing with scows and boats to and from his land; the defendant was held liable for the damage. In an action by the owner of a salt meadow above a dam on a navigable stream against the owner of the dam for obstructing the natural ebb of the tide, and thereby injuring the grass on the meadow, a verdict in the court of common pleas in Massachusetts was found for the plaintiff. Where a corporation was authorized by the legislature to create water power by penning tide water in a full basin, and excluding the water from another basin which was to receive the water from the full basin through raceways; it was held, that the person who owned the flats in the receiving basin, suffered an injury, when the basin was excluded from the tide water, and he was thereby prevented from beneficially using his land, and therefore he was entitled to compensation.3 An ingenious device was once practised near Harrisburg, in Pennsylvania, of anchoring a raft, at a small distance from the shore, and converting it into a landing place;

1 Harrison v. Sterrett, 4 H. & McHen. (Md.) R. 540 (in 1774). See also Wilson v. Inloes, 11 G. & J. (Md.) R. 351.

2 Turner v. Blodget, 5 Met. (Mass.) R. 240 (note). The supreme court on appeal, dismissed the action, for want of jurisdiction, that court having original and exclusive jurisdiction in all actions respecting easements on real estate.

Ib.

Boston and Roxbury Mill Dam Corp. v. Newman, 12 Pick. (Mass.) R. 467; and see Baker v. Boston, Ib. 184.

but the contrivance was rendered abortive by the verdict of a jury.1

2

Persons interested in land, who are damnified by the extension of any public improvement, as a railroad, between them and the water, are entitled to compensation. The case of Bell v. The Hull and Selby Railway Company is an important case upon this subject. By the Hull and Selby railway act, it is provided," that where any part of any carriage, horse, or foot road, railway or tram road, quay, wharf or slope, or other communication, either public or private, shall be found necessary to be cut through, or so much injured as to be impassable or inconvenient, for carriages, or for the transporting, conveying, landing, shipping, or depositing of any goods or merchandise, the company shall, at their own expense, before any such road, &c. shall be cut through, raised, sunk, taken, or injured, cause another good and sufficient road, quay, wharf, slope, or other communication, as the case shall require, to be set out and made instead thereof, as convenient for passengers, &c., and for transporting, &c. of goods and merchandise, as the said road, quay, wharf, slope, or other communication, so to be cut through, raised,

' Per Yeates, J., in Carson v. Blazer, 2 Binn. (Penn.) R. 486. Fresh water rivers which are public highways, are put upon the same footing in that state, as "navigable" or tide rivers. Ib. And see ante, p. 76.

2 As a general rule, parties interested in land not taken for a railroad, but so near as to be necessarily damnified by it, are entitled to compensation. Dodge v. County Commissioners, 3 Met. (Mass.) R. 380.

sunk, taken or injured, as aforesaid, or as near thereto as may be." The plaintiff had a wharf on the river Humber, between which and the low-water mark, the defendants constructed their railway, (in the line prescribed by the act of Parliament,) thereby rendering the communication between the wharf and the river inconvenient and dangerous. It was held, that the plaintiff's wharf was thereby injured, within the meaning of this section, (which was not confined to any injury done bodily to the wharf itself); that he was entitled to have a new wharf constructed for him by the defendants, and was not bound to apply for compensation under another section of the act, which empowered a sherifi's jury to assess the sum payable for any future temporary or perpetual, or recurring damages, done or sustained by reason of the taking of land for the purpose of the act. In Massachusetts (in which state riparian proprietors upon tide water, are entitled under the colonial ordinance of 1641, and the usage under it, to the flats opposite their lands, to the channel,) where the value of a wharf is impaired by the construction of a rail-road across the flats below the wharf, the owner of it is entitled to recover of the rail-road company the damages thus sustained by him. The riparian proprietor, in virtue of the above

2

Bell v. Hull and Selby Railway Co. 6 Mees. & Welsb. (Exchr.) R. 699.

2 Ashby et al. v. Eastern R. Ro. Co. 5 Met. (Mass.) R. 368.

ordinance and usage, may, whenever he pleases, build and obstruct to low-water mark, and exclude all mankind.1

2

2. By the civil law which prevails in the greatest part of Europe and in Louisiana, the privilege of towing on the banks of navigable rivers is embraced in the public right of navigation. This is another of the respects in which that law is at variance with the common law. Bracton, it is true, has adopted the doctrine of the civilians, and his passage-Riparum etiam usus publicus gentium sicut ipsius fluminis—is plainly taken from Justinian, and though the same doctrine is quoted by Callis in his work on sewers, it is impeached by the otherwise unanimous current of authority. The little to be found in the books upon the subject, prior to the time of Lord Hale, he has collected, and after commenting upon it, he very evidently concludes that no such right as the one in question existed, inasmuch as he says, that where private interests are involved, they shall not be infringed without satisfaction being made to the party injured.3 The doctrine therefore of the civil law on this subject, conflicts with the principle of the common law, and with one of the character

1 Austin v. Carter, 1 Mass. R. 231.

2 Just. Inst. L. 2, tit. 1, s. 4; Coop. Just. Tit. De Usu et Proprietate Riparum. The civil code of Louisiana follows the Roman civil law.

3 De Jure Maris et Portibus.

istics of the express written American constitutional law, that public convenience is to be viewed with a due regard to private property. The statute of 19 Hen. VII. c. 18, relative to the navigation of the river Severn, allows a towing path to the navigators upon making reasonable compensation for the inconvenience they may thereby receive; and it therefore distinctly affords a negative to the idea of a common law right without compensation. In a modern case, by an act of Parliament, authorizing certain persons to make a certain part of the river Avon navigable, and to set out and appoint towing paths, it was required, that satisfaction should first be given to the owners of the land, and commissioners were appointed to settle by inquisition what satisfaction every person having a particular estate or interest therein, should receive for his respective interest. But the question was brought directly before the king's bench in Ball v. Herbert, whether, at common law, the public have the right of towing on navigable rivers; and it was expressly decided, that they had not. Lord C. J. Kenyon said, he remembered when the case of Peirse v. Lord Fauconberg was sent to that court from the court of chancery, and it was then the current opinion in Westminster Hall, that the right of towing depended on usage, without

1 Bath River Navigation Co. v. Willis, 2 Cases relating to Railways and Canals, 7.

2 Ball v. Herbert, 3 T. R. 253.