state, in Chambers v. Furey,' where the act above mentioned was relied on as evidence of legislative construction, that there is no right or custom in the state, by which one man can land or receive freight on another's freehold, without the consent of the owner of such freehold, on the banks of navigable rivers. The right of the bed and soil of navigable waters, is presumed to be in the state; but in Pennsylvania, the right to the soil as far as there is a navigable channel, vests in the owner of the adjoining land; and hence arises the private right to wharves in the city of Philadelphia, which no one can use without making compensation to the owner. No further right was conveyed to a devisee in a will, by the words "I give my fishing place," &c. in the soil on the bank of the river, than a right to so much of the soil as was necessary for the purpose of fishing.3

In Post v. Pearsall, in the court of errors of the state of New York, the action was trespass for entering upon the land of the plaintiffs, prostrating his fences, and depositing à quantity of manure. The defendant pleaded not guilty, and gave notice with his plea, that he would give in evidence in bar of a recovery, that at the time when, &c. and long before,

1 Chambers v. Furey, 1 Yeates (Penn.) R. 167.

2 Cooper v. Smith, ub. sup.; and see the following chapter as to

wharves.

3 Hart v. Hill, 1 Whart. (Penn ) R. 124.

Post v. Pearsall, 22 Wend. (N. Y.) R. 425.

there was and had been, on the close of the plaintiff a public highway and landing, on the east side of Hempstead harbor for all the inhabitants of the state of New York to go to, and to deposit, load and unload manure and other materials, at their free will and pleasure. It was held, that the public have not the right, against the will of the owner, to use and occupy his soil adjoining navigable waters, as a public landing, and place of deposit of property in its transit to and from vessels navigating such waters, although such user had continued upwards of twenty years with the knowledge of the owner. The supreme

court, when this case was before them, held that the doctrine of dedication of highways, streets, &c. did not extend to public landings; and the judgment of the court was affirmed in the above case in the court for the correction of errors. Opinions were delivered by five of the members of the court; four for affirmance, and one for reversal of the judgment of the supreme court. The chancellor, and senators Edwards and Livingston, held, that the principle of dedication of highways and of streets and public squares in cities and villages did not extend to public landings, and therefore they were in favor of affirming the judgment below. Senator Verplanck, although concurring in the judgment of affirmance, held that the principle of dedication of highways and streets applies to every use or easement in land, which can be of any service, convenience or pleasure

to the community at large, and that consequently public landing places are the subject of dedication. He however further held, that user alone, though admissible as evidence in corroboration of other proof of actual dedication by the declarations or acts of the owner of the soil, is not enough in itself to warrant the presumption of the dedication of easements, other than of highways, streets and places in the nature of public ways. Senator Furman agreed with senator Verplanck as to the extension of the principle of dedication; but went further, and held, that proof of a continued user by the public of the soil of another for the term of twenty years for any beneficial purpose, with the knowledge of the owner, is sufficient to warrant the presumption of a dedication, unless rebutted by evidence on the part of the owner that he was permitted by mere license, revocable of course at the will of the owner, or by other evidence showing the absence of intention on his part to dedicate the land to public use, so as to deprive himself of the power of dedication.

In Massachusetts, landing places have existed, in some instances, on the banks of creeks and rivers, by immemorial usage.' The public use and enjoyby the inhabitants of other

ment of a landing place

towns, as well as those of the town in which it is

1 Keen v. Stetson, 5 Pick. (Mass.) R. 492; Green v. Chelsea, 24 Ib. 80.

situated, long enough continued, and without any interruption or objection, is sufficient, it has been held in Massachusetts, to establish a right in all the inhabitants of the commonwealth. The use by the individual inhabitants of a town, of land for a landing place, does not tend to show a possession by the town in its corporate capacity, but, on the contrary, is adverse to the claim of such possession.2 In one case in the supreme court of that state, the facts and the opinion of the court thereon, were given by the court, in substance, as follows. The place where the nuisance is alleged to be erected, was laid out by the town of Dorchester in the year 1658 as a common landing place. It was not stated to have been laid out for the particular benefit of the town; and if it were, upon the incorporation of the town of Milton the inhabitants of the several towns composing Dorchester when it was thus appropriated, would retain their right to use it, and this would constitute it a public landing place. The inhabitants of Milton have exercised acts of ownership over it; for Dorchester having laid it out without designating it to be for the use of that town only, it is to be considered as laid out for the public convenience; and the public had a right to use it until it should be discontinued by proper authority. Common landing

1 Coolidge v. Learned, 8 Pick. (Mass.) R. 504.

2 Green v. Chelsea, 24 Pick. (Mass.) R. 71.

places are recognized by statute, and provision is made for abatement of nuisances on them. The statute (1786, c. 67), however, contains a provision in favor of persons who have encroached and have had possession for a certain number of years; and so much of this land as has been occupied by houses for the time mentioned in the statute, the public do not attempt to meddle with; but with the rest Milton has no particular right. It was contended, that the landing place in question was a town way, and that such way might be discontinued by the town in which it is situated. But the court thought it something distinct from a way. No express authority had been given to towns to discontinue town ways, but without doubt such authority exists by implication, towns having power to make new ways which would render old ways of no use. But a public landing place is not within their power; and although some landing places may become of no use, the authority to discontinue them is in the legislature.1

When New Orleans was established as a town, the country was under the jurisdiction of the "Western Company," and the dedication to public use was made by it of a vacant space of land lying on the river Mississippi, designated on the maps of the town, which were made, by the name of quay. This vacant space had been used for the commercial pur

1 Commonwealth v. Tucker, 2 Pick. (Mass.) R. 44.