New York. Doubts, it is true, have been expressed by some of the judges in New York, to the contrary; but the effect of those doubts is removed by the decision in the court of errors in that state, in the case of the Commissioners of the Canal Fund v. Hemphill, in which the judgment of the supreme court in favor of the riparian owner, was unanimously affirmed. The rule of the common law has been recognized also in the states of Massachusetts and New Hampshire, and has been applied by the courts of both of those states to the river Connecticut. It has also been recognized by the courts in the states of Connecticut, Maine, Maryland, Virginia, and Ohio.' It

5

6

8

1 Palmer v. Mulligan, 3 Caines (N. Y.) R. 307; Shaw v. Crawford, 10 Johns. (N. Y.) 236; People v. Platt, 17 Ib. 15; Hooker v. Cummings, 20 Ib. 90; Jennings, ex parte, 6 Cow. (N. Y.) R. 518; Canal Commissioners v. People, 5 Wend. (N. Y.) 423; People v. Canal Appraisers, 13 Ib. 355.

2 Commissioners of the Canal Fund v. Hemphill, 26 Wend. (N. Y.) 404.

'So declared by Walworth, Chan. in Child v. Hart, 4 Hill (N. Y. R. 372.

* Commonwealth v. Chapin, 5 Pick. (Mass.) R. 190; Scott v. Wilson, 3 N. Hamp. R. 321; and see also Gray v. Bartlett, 20 Pick. R. 186.

5 Adams v. Pease, 2 Conn. R. 48; Chapman v. Kimball, 9 Ib. 38; East Haven v. Hemingway, 7 Ib. 186; Middletown v. Page, 8 Ib.

221.

Berry v. Carle, 3 Greenl. (Me.) R. 269; Spring v. Russell, 7 Ib. 273; Same v. Seavey, 8 Ib. 138.

'Brown v. Kennedy. 5 H. & Johns. (Md.) R. 195.

8 Hays v. Bowman, 1 Rand. (Va.) R. 417; Mead v. Haynes, 3 Ib. 33.

• Gavitt v. Chambers. 3 Ohio. R. 495; Lamb v. Rickets, 11 Ib. 311.

has been held by the supreme court of Illinois, that the part of the river Mississippi upon which that state is bounded, is not a "navigable " stream at common law, and that, therefore, the riparian ownership extends to the middle of the stream.1

2

By the civil law, all rivers in which the flow of water is perennial belong wholly to the public, and the public right extends to the use of the banks as well as to fishing. Navigable rivers, in the language of the civil law, are not merely rivers, in which the tide flows and reflows, but rivers capable of being navigated, that is, navigable in the common sense of the term. In the words of the Digest, a navigable river is "statio iturve navigio." In the code Napoleon, navigable rivers are spoken of as "flottables," that is, rivers admitting floats.3

Common law

1 Middletown v. Pritchard, 3 Seam. (Ill.) R. 500. rule also recognized in Indiana, Cox v. The State, 3 Black. (Ind.) R. 193. A writer in the American Jurist, Vol. 16, on the codification of the laws, thinks the subject of rivers "navigable" commends itself to the cognizance of legislatures, as worthy of a more definite settlement, (p. 70.)

'Dig. 43, 12, 13, 14; Inst. 212; 2 Domat Civ. Law, 382, b. 1, t. 8, s. 1, 2.

3 Dig. 43, 12, 13, 14, 15; Zouch, El. Jur. Descriptio Juris et Indi cii Maritimi, Part. 1, s. 5; Code Napoleon, b. 2, t. 2, c. 2, art. 556, 560, 561, 562, 563; b. 2, t. 1, c. 3; Ord. Louis 14, s. 3, art. 5.

CHAPTER IV.

OF THE PUBLIC RIGHT OF NAVIGATION.

THE public rights to the use of tidal or "navigable" waters which exist, ex commune jure, or of common right, and which as jura communia, are contradistinguished from jura coronæ, or the sovereign. right of property, are the rights of NAVIGATION and of FISHERY.' The former we here proceed to consider.

The public right of navigation may be called the primary right, it being paramount to the public right of fishery. Should an individual, whether in the exercise of the piscarial right which he has in common with the people at large, or of an exclusive right which he has acquired, by grant or prescription, extend a seine across the navigable part of an inlet of the sea, or "navigable" river, he might be incommoded by the passing of a vessel. To determine in such an event which right should yield to the other, it is only necessary to consider the nature of the two rights, and it will appear obvious at once, that the right of navigation necessarily supposes a free passage, and from its nature excludes every interruption of it. This has been moreover so expressly decided

'See ante, Chap. I.

in a case in the state of New Jersey: M. owned a fishery on the Passaic river, and while his net was out in the river, P., who was the owner of a vessel, was navigating it, and in so doing he ran through and injured the net, so as to deprive M. of the use of it. The decision was, that the right of fishing must yield to the right of navigation, where the two rights come in conflict, and that where one right only can be enjoyed, that of navigation must be the one. At the same time, it does not swallow up and obliterate the right of fishery; and where both rights can at the same time be enjoyed freely and fairly, that of navigation has no authority to trespass upon and incommode the other. The right of navigation, though superior, does not take away the right of fishery, but only limits it; and limits it only so far as it interferes with its own fair, useful and legitimate exercise. If the master of a vessel, under the pretence of exercising his right, should wantonly turn out of his regular course to run upon a net, or lie in wait till the net be spread, and then crowd sail to reach it; or, if he should unnecessarily and wantonly anchor on fishing ground; in these, and in like cases, he is answerable in damages.1

In an action for disturbing plaintiff's fishery in the river Tweed, it was proved, that the defendant's vessel was moored against a rock on the bank of the

1 Post v. Munn, 1 South. (N. J.) R. 61.

river, where she delivered her cargo; and that the plaintiff was prevented, by the situation of the vessel, from taking as many fish as he would have otherwise done. It further appeared, that vessels frequently lie there; and that there were mooring rings upon the rock, to one of which was fastened the defendant's vessel. The opinion by Wood B. was, "All persons have a right to come there in ships, and to unload, moor, and stay as long as they please. Nevertheless, if they abuse that right, so as to work a private injury, they are liable to an action. The question will therefore be, whether the defendant has abused his right. The privilege of the plaintiff must be subservient to the right of the public. It would be of very mischievous consequence, if the owner of a fishery could prescribe how and where they are to moor in a navigable river. The only case I remember like this, is, where a man obstinately refused to move his ship from opposite a wharf, although it would have been just the same if he had moved a little one way or the other; and therefore he abused his right, and the plaintiff recovered. The defendant had a right to moor and remain where his ship lay, as long as convenience required. Yet if he acted wantonly and maliciously, for the purpose of injuring the fishery, the plaintiff is entitled to a verdict; but not otherwise.'

1 Anonymous, Durham Assizes, in note to p. 516 of 1 Campb. R.