which it could not exist. Some of the passages, he said, in Lord Hale, which seem to favor the common law right, are rather applicable to banks of the sea, and to ports. The supreme court of Illinois, and that of Tennessee, have however decided, agreeably to the civil law, that the right of navigators was not limited to the bare privilege of floating upon the river Mississippi, but included the right to land, and to fasten to the shore, as the exigencies of the navigation may require; and that such was a burden upon the owner of the land, which he must bear as a part the public easement. Such, doubtless, had become established usage in respect to the great river in question, and if so, the decision is in accordance with the opinion of the court in Ball v. Herbert. It was observed by Lord C. J. Kenyon in this case, that "perhaps small evidence of usage before a jury would establish a right by custom, on the ground of public convenience."

2

of

3. Analogous to the right of towing on the banks of navigable rivers is the right of landing, lading, and unlading thereon. The latter right, as well as the former, exists by the civil law, and Bracton has

1 See this case cited and approved by the judges in Blundell v. Catterall, 5 B. & Ald. R. 91, and App. p. i.

2 Middletown v. Pritchard, 3 Scam. (Ill.) R. 520; Corp. of Memphis v. Overton, 3 Yerg. (Tenn.) R. 390. That the right of the public to tow vessels and boats upon the banks of navigable rivers, may be acquired by usage. See Kinlock v. Nevile, 6 Mees. & Welsb. (Eng. Exchr.) R. 794.

made it a part of his work de legibus et consuetudinibus Angliæ. He says, (lib. 1, cap. 12, s. 6) "that any one may, in any river, fasten vessels with ropes to the trees on the banks, and unload the cargoes on the banks." Though the case before mentioned of Ball v. Herbert, is not a distinct authority upon this point, as in that case the right of towing was claimed; yet the general question as to the right of the public on the ripa of a navigable river was discussed, and the court were of opinion, (as stated by Mr. J. Bayley') that the ripa of a navigable river was not public juris, and they therefore virtually overruled the authority of Bracton. Lord Hale, after citing Bracton, says, "As touching ports and the public right to them, Bracton saith true; with this allay, that hath been before observed, that the law of England does thus far abridge that common liberty of ports, that no port can be erected without license or charter of the king, or that which presumes and supplies it, viz. custom and prescription." But in another passage Lord Hale says,

66

Though A. may have the propriety of a creek or harbor, or navigable river, yet the king may grant there the liberty of a port to B., and so the interest of the propriety, and the interest of the franchise, several and divided. And in this, no injury is at all

* In Blundell v. Catterall, 5 B. & Ald. R. 91, and App. p. xxxiv. In his Treatise De Portibus Maris, p. 84.

done to A., for he hath what he had before, viz. the interest of the soil, and consequently the improvement of the shore, and the liberty of fishing; and as the creek was free for any one to pass in it against all but the king, (for it was public juris, as to the matter before) so now the king takes off that restraint, and by his license and charter, makes it free for all to come and unlade." But," says Lord Hale, “If A. hath the ripa or bank of the port, the king may not grant a liberty to unlade upon that bank or ripa without his consent, unless custom had made the liberty thereof free to all, as in many places it is; for that would be a prejudice to the private interest of A. which may not be taken from him without his consent." If there be, says Mr. J. Bayley, after citing this passage, in Blundell v. Catterall, such a distinction, what becomes of the authority of Bracton, where he says, "Riparum etiam usus publicus, est jure gentium sicut ipsius fluminis?" The learned judge then adds, "No man can travel through this kingdom along the banks of rivers, without seeing that private rights, exclusive of public rights, exist there, and every one of those rights is at variance with the doctrine of Bracton." In the same case Mr. J. Holroyd says, "It was not by the common law, nor is it by statute,

1 Ib.

p.
73.

• Ub. sup.

'Abbott, C. J., in the same case comments in the same manner upon the authority of Bracton, and considers it overruled.

lawful to come with, or land, or ship customable goods in creeks or havens, or other places out of the ports, unless in cases of danger or necessity, where the shore or land adjoining is private property, unless upon the person's own soil, or with leave of the owner thereof, who Lord Hale' says, may, in such case, take amends for the trespass in unloading upon his ground." In case of necessity, as that author says, either of stress of weather, assault, or pirates, or want of provisions, any ship might put into any creek or haven. But this is plainly not consistent with a general right, as being in the public, or the right of landing and unloading upon the land of the riparian proprietor, ad libitum. The supreme court of Pennsylvania have referred to that author upon this subject, and they have said, that originally in England, as in Pennsylvania, goods might be landed any where, on permission from the owner of the adjacent soil; and that now, in both countries, on account of revenue, ports of entry are established, at which alone certain goods can be legally landed, except in case of storm or distress.2

In Pennsylvania, (in which state all inland fresh water rivers which by the common law are "public highways" are considered as "navigable" according

1 De Portibus Maris, p. 51. Landing for any purpose on another's land is a trespass. Gray v. Bond, 2 B. & Bing. R. 667, and 6 Eng. Com. Law R. 308.

2 Ball v. Slack, 2 Whart. (Penn.) R. 530.

to the technical meaning of the term,') it has been held, that the owner of a private ferry over the river Monongahela, has no right to land boats and passengers at the terminus of a public highway, between high and low-water mark on the opposite margin of the river, without the consent of the owner of the soil. The locus in quo, said the court in this case, was the terminus of a public road on the margin of the river; and there was not even a public ferry to give color to the pretence of a right to use the shore as a landing or wharf for the mooring of boats. It has been further decided in Pennsylvania, that an act of assembly authorizing J. S. to establish a ferry over the Youhiogany river, and all other acts of the legislature of that state, show the uniform opinion of the legislature to have been, that to enable a person to keep such ferry, he must either hold the ground where the landing place is made, or obtain the consent of the owner of the land for that purpose. The right to land and unlade upon the banks of a navigable river, without consent, was first agitated in that

1 See ante, p. 76.

3

2 Chess v. Manown, 3 Watts (Penn.) R. 219. The right of exclusive navigation of a public river, either transverse or otherwise, is susceptible of exclusive occupation only by grant from the public to whom it belongs; but the owners of the shores have the power to control the subservient and indispensable right of embarkation and landing, at the terminus of a public road. Per Gibson, C. J., in giving the opinion of the court in Bird v. Smith, 8 Watts (Penn.) R. 434.

3 Cooper v. Smith, 9 S. & Rawle (Penn.) R. 26: