The right of way, as to a foot or tow-path along the banks of navigable rivers, has been a subject of great discussion, and of much regulation in the laws of different nations.

In the civil law, the banks of public rivers and the seashore were held to be public. Riparum usus publicus est; littorum quoque usus publicus est jure gentium. The law of nations was here used for natural right, and not international law, in the modern sense of it; and it is stated in the Institutes of Justinian, that all persons have the same liberty to bring their vessels to land, and to fasten ropes to the banks of the river, as they have to navigate the river itself. These liberal doctrines of the Roman law have been introduced into the jurisprudence of those nations of Europe which have followed the civil, and made it essentially their municipal law. Thus, in Spain, the sea-shore is common to the public; and any one may fish, and erect a cottage for shelter. The banks of navigable rivers may also be used to assist navigation. In the French law, navigable or floatable rivers, as they are termed, have always been regarded as dependencies of the public domain, and the lands on each side subject to the servitude or burthen of towing-paths for the benefit of the public.c

The English law was anciently the same as the Roman *law, if we may judge from the authority of *426 Bracton, who cites the words of the civil law, declaring the banks of navigable rivers to be as much for public use as the rivers themselves. So, Lord Holt held,e that every

■ Inst. 2. 1. 4, 5. The bank of a river is that which contains the water in its utmost height. Ripa ea putatur esse, quæ plenissimum flumen continet. Dig. 43.

. 12. 3. 1.

b Institutes of the Civil Law of Spain, by Doctors Asso and Manuel, b. 2. tit. 1. This is also the law in Louisiana; the banks of navigable rivers, though they are the property of those who possess the adjacent lands, are nevertheless subject to the public use so far that vessels may make fast to the shore and to the trees planted there, and they may be unloaded and the goods deposited, and nets dried there. So, any persons may build cabins on the sea-shore for shelter, and fish from the shore, and moor ships, and dry nets there. Civil Code, art. 443. 446. Hanson v. City Council of Lafayette, 18 Louis. R. 295.

• Ferrier's Inst. 2. 1. 4, 5, and note, ibid. Code Napoleon, Nos. 538. 650.

d Lib. 1. c. 12. sec. 6.

• 1 Lord Raym. 725. 6 Mod. Rep. 163.

man, of common right, was justified in going with horses on the banks of navigable rivers for towing. But Sir Matthew Hale, in his treatise De Jure Maris, and in which he has exhausted the learning concerning public property in the sea and rivers, and collected all the law on the subject, concluded that individuals had a right to a tow-path, for towing vessels up and down rivers, on making a reasonable compensation to the owner of the land for the damage. This condition, which he annexes to the privilege, shows, that, in his opinion, there was no such common right in the English law, inasmuch as it depended on private agreement with the owner of the soil. The point remained in this state of uncertainty, until the case of Ball v. Herbert, in 1789,b brought the whole doctrine into discussion. The case was respecting a claim to tow on the bank of the river Ouze, in Norfolkshire, with men and horses, whenever it was necessary for the purposes of navigation, doing as little damage as possible. It was admitted that the Ouze was a navigable river, where the tide ebbed and flowed. The question was, whether, at common law, the public had a right to tow yessels on the banks of either side of a navigable river; and it was investigated and argued with great ability. All the cases bearing on the question were collected and reviewed, and the court concluded that there was not, and never had been, any right at common law, for the public to tow on the banks of navigable rivers. The claim

was directly contrary to common experience; and it #427 was observed by Lord Kenyon, that the navigators *on

the Thames were frequently obliged, at several places, to pass from one side of the river to the other, with great inconvenience and delay, because they had no such general right. It was admitted, that on many navigable rivers, there was a custom to tow on the banks; but the privilege in those cases rested on the special custom, and not on any common law right. The statutes which have given a right of towing on parts of the Severn, Trent and Thames, are evidence that no such general right before existed.c

b3 Term Rep. 253.

a Harg. L. T. 85, 86, 87. In New-York it has been adjudged, after a very able and thorough examination of the question, that the public have not the right to use and occupy the soil of an individual adjoining navigable waters, as a public landing and place of de

(2.) Of riparian rights.

It is a settled principle in the English law, that the right of soil of owners of land bounded by the sea, or on navigable rivers, where the tide ebbs and flows, extends to high-water mark; and the shore below common, but not extraordinary high-water mark, belongs to the state as trustee for the public; and in England the crown, and in this country the people, have the absolute proprietary interest in the same, though it may, by grant or prescription, become private property. The public have at common law a right to navigate over every part of a common navigable river, and on the large lakes; and in England even the crown has no right to interfere with the channels of public navigable rivers. (1) They are public highways at common law. The sovereign is trustee for the public, and the use of navigable waters is inalienable. But the shores of navigable waters, and the soil under them, belong to the state in which they are situated as sovereign. (2) The right of sovereignty in public rivers above the flow of the tide is the same as in tide waters; they are juris publici, except that the proprietors adjoining such rivers own the soil, ad filum aquæ. But grants of land, bounded on rivers, or

posit of property in its transit, against the will of the owner, although such user has been continued upwards of twenty years with the knowledge of the owner. Pearsall v. Post, 20 Wendell, 111. S. C. 22 Wendell, 425. On the other hand, it is held, in Missouri, that navigators and fishermen are entitled to the temporary use of the banks of the navigable rivers in that state, though owned by private individuals, for the purpose of landing and repairing their vessels, and exposing their sails and merchandise. But this use is only for transient purposes, and under restrictions. O'Fallon v. Daggett, 4 Missouri Rep. 343.

Pollard v. Hagan, 3 Howard's U. S. Rep. 212.

b Hale, De Jure Maris, c. 4, 5, 6. Rex v. Smith, Doug. 425. Williams v. Wilcox, 1 Willmore & Hodges, 477. La Plaisance Bay Harbour v. City of Monroe, 1 Walker Mich. Ch. R. 155. Louisiana Civil Code, art. 442, 443, 444. In Connecticut, it was held, in the case of East-Haven v. Hemingway, 7 Conn. Rep. 186, that the owners of land adjoining a navigable river, have an exclusive right to the

(1) If a vessel cannot reach her destination in a single tide, she may remain aground between high and low tide during the ebb. But a vessel will not be justified in unnecessarily running upon oysters deposited in the bed of the stream. The Mayor, &c. v. Brooke, 7 Ad. & El. N. S. 889.

v.

(2) See Howard v. Ingersoll, 14 How. R. 381, where the legal extent of banks or shores of navigable rivers is examined. "Beach" is synonymous with shore. Littlefield v. Littlefield, 28 Maine R. 180. Another case makes a distinction between "Bank" and "Shore." McCullough v. Wainwright, 14 Penn. St. R. 171.

upon the margins of the same, or along the same, above tidewater, carry the exclusive right and title of the grantee to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river; and the public, in cases where the river is navigable for boats and rafts, have an easement therein, or a right of passage, subject to the jus publicum as a public highway.a (1) The

stores.

soil between high and low-water mark, for the purpose of erecting wharves and But see infra, 432, note, cases contra, and the case of Chapman v. Kimball, 9 Conn. Rep. 38, also recognised the English rule; and it is there held, that the riparian proprietor on a navigable river or arm of the sea, is not entitled to the seaweed which grows and accumulates on the bed below low-water mark. It belongs to the public. In the case of the Canal Appraisers v. The People, 17 Wendell, 571, Chancellor Walworth stated the true rule of the common law to be, that grants embracing within their bounds rivers and streams above tide-water, convey not only the banks, but the beds of the rivers or streams, and the islands therein, unless clearly, by the grant itself, excluded from it. But the right of the grantee to the rivers or streams above tide-water, if they be navigable, is not absolute, but subject to the right of the public to use the waters as a highway, for the passage of boats, &c. The common law rule, however, does not apply to large navigable lakes, nor to rivers constituting the boundaries between New-York and other states. In the state of New-York, by statute, N. Y. R. S. 3d edit. vol. i. 78, 79, it is declared, that whenever two counties are separated from each other by a river or creek, the middle of the channel is the division line; and if the boundary line crosses an island, the whole of it is deemed to be within the county in which the greater part of lies; and the officers of the counties bordering on Seneca Lake, and of the counties of Kings, Richmond and New-York, on the waters in Kings and Richmond, south of New-York, have concurrent, civil and criminal jurisdiction for the purpose of serving process.

Child v.

Esson v.

Hale, De Jure Maris, 6. 9. 22. 36. Palmer v. Mulligan, 3 Caines' R. 318. The River Baune, Davies' Rep. 152. 155. 157. Deerfield v. Arms, 17 Pick. 41. Commissioners of the Canal Fund v. Kempshall, 26 Wendell's R. 404. Starr, 4 Hill's N. Y. Rep. 369. 373. Adams v. Pease, 2 Conn. R. 481. M'Master, Kerr's N. P. Rep. 501. Bowman & Burnley v. Watken, 2 M’Lean's R. 376. [Walton v. Tift, 15 Barb. R. 216.] In Pennsylvania it is held, that the owners of land on the rivers Delaware and Schuylkill, have a right to the land between high and low-water mark, subject to the public easement, or right to pass over it when covered by the water. Ball v. Slack, 2 Wharton, 508. The riparian proprietor also owns the land in the river Ohio, between high and lowwater mark. Lessee of M'Culloch v. Aten, 2 Ohio R. 307. Lessee of Blanchard v. Porter, 11 Ohio R. 138. By compact between Pennsylvania and New-Jersey, the river Delaware remains a common highway, equally free and open to both states, but each state reserves the right of regulating the fisheries on the Dela

(1) If a riparian proprietor diverts the water of a running stream into his own land, so as to leave insufficient for navigation in the natural channel, the public may navigate the new channel. Dwinel v. Barnard, 28 Maine R. 554.

proprietors of the adjoining banks have a right to use the land and water of the river, as regards the public, in any way

ware annexed to their respective shores, and each state exercises concurrent jurisdiction on the waters of the river. So, by compact, the boundary line between New-York and New-Jersey, on the Hudson river, is the middle of the river, but the exclusive jurisdiction over the waters of the rivers and bays, but not reaching to the wharves and improvements on the Jersey shore, is in New-York. So, New-Jersey has exclusive jurisdiction over the waters of the sound between Staten Island and New-Jersey, with like reservations. Rights of property in each state reach to the middle of the rivers. Elmer's Dig. 562. (1) The ordinance of Congress of 13th July, 1787, for the government of the Territory of the United States northwest of the river Ohio, declared it to be a fundamental provision, to remain for ever unalterable, that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, should be common highways, and for ever free. But this provision did not abolish or impair the common law principle, that he who owns the lands on both banks, owns the entire river, subject only to the easement of navigation; and he who owns the land upon one bank only, owns to the middle of the river, subject to the same easement. Gavitt v. Chambers, 3 Ohio Rep. 496. Nor did it prohibit the legislatures of the states to improve the navigation of such rivers and carrying places by canals, rail-roads and turnpikes, and for charging tolls for such increased facilities. Spooner v. M'Connell, 1 M'Lean's R. 337. All the navigable waters in the western states and territories have, by successive acts of Congress, been declared public highways, as, see acts of May 18th and June 1st, 1796, March 3d, 1803, March 26th, 1804, March 3d, 1811, February 20th, 1811, April 8th, 1812, June 4th, 1812, March 1st, 1817, May 8th, 1817. In the case of Middleton v. Pritchard, 3 Scammon R. 510, this subject was learnedly discussed, and it was justly held, that at common law the title of the riparian proprietor, bounded by a navigable stream, extended only to high-water mark, and in streams not navigable, the rights of the riparian proprietor extended exclusively to the middle thread of the current. That arms of the sea, and streams where the tide ebbs and flows, are by the common law deemed navigable; and streams above tide-water, though navigable in fact, are not deemed navigable in law. All government grants bounded upon a river not navigable, entitle the grantee to all islands lying between the main land and the centre thread of the current, for grants by the government are to be construed by the common law, unless the government qualify or exclude that construction; for where government makes a grant, and does not reserve any right or interest that could pass by the grant, and shows no intention to make such reservation, the grant must be intended to include all that might pass by it. Grants are to be taken most strongly against the grantor. The clear and frank exposition of the common law in this learned case, and especially in respect to government grants, does honour to the court which delivered it. It was further declared, that the Mississippi river was not a navigable stream at common law, and the title of the riparian

(1) Where a state, possessing a river, cedes the territory on the other side of it, making the river the boundary, it retains the river, as to soil and jurisdiction, unless there are express stipulations to the contrary. Howard v. Ingersoll, 13 How. R. 381.